Week 10 tute structure WEEK 10: TERMINATION OF LEASES ANSWER GUIDE HOW A LEASE CAN END Expiration of time A fixed term lease automatically ends on the last day of the term Where lease has expired, lessor may recover possession in a summary way through magistrates Court PLA ss 140-152 Notice to quit (periodic tenancy only) Note application of s 129 - 137 (see detailed notes) Otherwise, the periodic tenancy continues to renew indefinitely Forfeiture after termination for breach At common law, breach of essential term gives rise to right to terminate, while breach of non-essential term gives rise to action in damages (not termination), unless: a) lease expressly provides for a right of re-entry and forfeiture in the event of a breach of covenant; OR b) right to re-enter and take possession is provided for by statute Progressive Mailing House v Tabali Under statute (in absence of express clause / agreement), forfeiture allowed where: . rent is in arrears for the space of one month, even though no formal demand for rent has been made; OR . default is made in the fulfilment of any covenant, obligation, condition or stipulation PLA s 107(d) TERMINATION OF FIXED TERM LEASE LESSOR STEPS TO FORFEIT AND RE-ENTER FOR BREACH Breach by lessee Contract principles apply At common law, and usually found as an express term in the contract, lessor may terminate and re-take possession: a) breach of an essential term Progressive Mailing House v Tabali
b) breach of an in-essential term where the lease expressly provides for a right of re-entry Whall v Bulman - landlord must still comply with s 124 PLA c) repudiation - lessee abandons property (although difficult to prove - see PLA s 124 notice) Breach may not occur until expiry of a particular time - e.g. rent must be paid 14 days after due date ... Under statute, lessor may terminate and re-take possession whenever: a) rent is in arrears > 1 month, even though no formal demand has been made; or b) default is made in fulfilment of any covenant, obligation, condition or stipulation, whether expressed or implied in the lease PLA s 107(d) Lessor election / waiver Lessor must elect to either waive the breach or to forfeit the lease Matthews v Smallwood Waiver (words or conduct) will occur if the lessor does "some unequivocal act recognising the continued existence of the lease" - only applies to the particular breach in Q (not continuing breaches) PLA s 119 Matthews v Smallwood > Lessor knew of lessee breach but accepted rent falling due after the breach occurred Notice - under PLA s 124 (if not capable of remedy Outside 5 124 - Central Estates) SP - Right of re-entry or forfeiture for breach is not enforceable by action or otherwise unless notice of breach is served on lessee - otherwise risk repudiation: a) specifying particular breach complained of b) requiring lessee to remedy the breach (provided it is capable of being remedied) c) requiring lessee to