SUMMARIES LEASE COVENANTS SUMMARY Covenants implied by common law: · Quiet Enjoyment (Aussie Traveller v Marklea) · Non-derogation from grant (Martins Camera Corner v Hotel Mayfair) o has land been made materially less f i t for purpose for which it was let? (Martins Camera; Aldin v Latimer) o incr. in insurance is not a non-derogation unless so bad as to make business impossible / prohibitive (O'Cedar) . Does the conduct amount to a private nuisance as in Aussie Traveller v Marklea? Lease is treated as an ordinary contract ... Covenants implied by PLA - does not apply where express covenant ... · Repair (PLA s 105(1)(b)) Must be kept in a state of repair so can be used by class of persons for which the premises were occupied for, having regard to age, character and locality (Proudfoot v Hart) Standard of repair required is usually measured from the condition at commencement of lease (Proudfoot v Hart) Is there a higher obligation pursuant to an express covenant to keep 'in good and substantial' repaid (Lurcott v Wakely? Repair is renewal or replacement of defective parts not substantially the whole of the subject matter (Lurcott v Wakely) · Rent (PLA s 105(1)(a)) Covenants may also be implied by application of contractual principles · See relevant contract provisions - express covenant read subject to overriding implied obligations (quiet enjoyment / non-derogation) o Note - insurance to reimburse premiums relevant · eg business ef f i cacy BP Ref i nery v Shire of Hastings LEASE ASSIGNMENT SUMMARY · Consent obtained? · Transfer of lease · Privity of K / privity of estate? o No deed of covenant = no privity of K o If registered - LTA s 62(1) applies and all rights, powers and privileges and liabilities vest LTA s 62(3) - without limiting (1), the registered transferee of a registered lease is bound by and liable under the lease to the same extent as the original lease · Application of LTA s 62 o Uncertainty in application LTA s 62 only operates to transfer covenants that touch / concern the land (Jodaway v Langton)
· does NOT include personal covenants - eg repayment of security deposit o BUT s 62(3) purports to bind lesee upon transfer of lease 'to same extent as original lessee' o the effect of s 62 is that the transfer of a lease creates privity of estate and K between lessor and transferee (Karacominakis v Big Country Developments) Thus, if approach in Karacominakis is followed a lessee will be liable on the personal covenants and required to pay TERMINATION SUMMARY · Identify the type of lease o PLA s 129 tenancy at will? Can be determined on 30 days notice o Notice must be served in accordance with PLA s 347 · Identify breach / repudiation Repudiation? Breach of essential / non-essential term? . NOTE - if continuing breach - T fails to observe or perform any of the terms of the lease and the failure