Nature of an unregistered lease for > 3 years Common law · Lease for > 3 years void unless registered, but took effect as a tenancy at will upon the lessee's entry into possession · Upon payment of rent, the tenancy at will converted to tenancy from year to year determinable on 6 months notice or otherwise expiring at end of term contracted for-> incorporating agreed terms of lease in so far as consistent with implied tenancy · NOW-> subject to section 71 LTA, s129(1) PLA and equity Unregistered lease - s 129 PLA · "No agreement as to duration" (informal lease at law)-> no express agreement which is effective to create a legal lease for the agreed period: Dockrill v Cavanagh · Must give tenant 30 days notice · Applies where: - Want of formality in creating legal term (e.g. lease term exceeds 3 years and is not in writing) - Lease exceeding 3 years is not in proper form for registration or not registered Equity · The lease will generally take effect as an equitable lease between the parties if it is capable of specific performance (discretionary remedy) · If specific enforcement granted: - treated for all purposes between the parties as a legal lease for agreed term - an order for specific performance could require the parties to execute and register the lease - not enforceable against 3rd parties · Defeated by subsequent registered interest in absence of an exception to indefeasibility e.g. in personam exception: s184 LTA, Valbirn v Powprop – Where lessee has an enforceable lease in equity against the lessor and the lessor transfers land to third party - as against that 3rd party the tenant has an equitable interest in land - can lodge caveat - subsequent owner will then also have an equitable interest if caveat is lodged early enough. IN the absence of caveat if new landlord obtains legal interest - on rules of priority then the legal interest will not be bound by the equitable interest residing in the tenant - s184 - HOWEVER a new landlord by virtue of the contract entered into to buy the property - if as part of the agreement they agree to be bound by the unregistered lease then a failure to acknowledge that lease as an unregistered lease will create an exception to indefeasibility under the in- personam exception s185(1)(a) LTA, Valbirn v Powprop Nature of an unregistered lease for > 3 years Land Title Act
· Not invalid merely because it is unregistered: s71 LTA · Not a legal interest - Legal interest only created upon registration: ss181, 182 LTA · The lease does not have the benefit of indefeasibility as against subsequent registered interests: s184 LTA Contract . The lease is still a contract between the lessor and lessee: National Carriers Ltd v Panalpina (Northern) Ltd [1981] · Right to occupy the premises · Capable of specific performance · Capable of being breached with contractual rights enforceable to obtain contract remedies