Statutory protections from forfeiture of a leasehold estate following Apriaden Pty Ltd v Seacrest Pty Ltd

In Apriaden Pty Ltd v Seacrest Pty Ltd the Victorian Court of Appeal decided that termination of a lease under common law contractual principles following repudiation is an alternative to reliance upon an express forfeiture provision in the lease and that it is outside the sphere of statutory protections given against the enforcing of a forfeiture. The balance of authority supports the first aspect of the decision. This article focuses on the second aspect of it, which is a significant development in the law of leases. The article considers the implications of this decision for essential terms of clauses in leases, argues that common law termination for breach of essential terms should be subject to compliance with these statutory requirements and, as an alternative, suggests a way forward through appropriate law reform, considering whether the recent Victorian reform goes far enough.

State of Origin : Queensland Crown Leasehold - lessons from New South Wales

Throughout Australia freehold land interests are protected by statutory schemes which grant indefeasibility of title to registered interests. Queensland freehold land interests are protected by Torrens system established by the Land Title Act 1994. However, no such protection exists for Crown land interests. The extent of Queensland occupied under some form of Crown tenure, in excess of 70%, means that Queensland Crown land users are disadvantaged when compared to freehold land users. This article examines the role indefeasibility of title has in protecting interests in Crown land. A comparative analysis is undertaken between Queensland and New South Wales land management frameworks to determine whether interests in crown land are adequately protected in Queensland.

Adverse possession and Crown Leasehold in Queensland

The decision of Eckford v Stanbroke Pastoral Co Pty Ltd [2012] QSC 48 ,although a decision refusing summary judgement raises a very important question of the ability to claim adverse possession of a pastoral lease issued in 1956 under the Land Act 1962 (Queensland).Division 5 of Part 6 of the Land Title Act 1994 (Qld) which guarantees registered freehold title expressly deals with the right of adverse possession however, there is no such provision in the present Land Act 1994 unlike s 170 of the Crown Lands Act 1989(NSW) which expressly precludes claims for adverse possession of specified non freehold land. There is no mention of adverse possession in any version of the Queensland Land Acts and only s 6(4) of the Limitation of Actions Act 1974 makes it clear that “the right, title or interest of the Crown” in or to any land is not affected by any adverse possessor.It is against the background that the Court considered the right of an adverse possessor to a Crown lease.

The compatibility of leasehold and freehold tenure arrangements with environmental offset and trading initiatives

Environmental offsets and environmental trading initiatives are being rapidly introduced into environmental regulatory regimes. These relatively new legal mechanisms are attempting to fill in the gaps left by command and control regulation. The introduction of environmental offset and trading policy in Queensland will need to be compatible with existing land tenure regulation. Who owns and who uses natural resources are controlled by a range of legislative reservations and restrictions. Reservations give the State ownership of certain natural resources such as minerals, quarry material and, in some circumstances, forest products. Where there is a reservation in operation, the land holders rights are weakened. Restrictions in relation to uses prevent land holders from carrying out certain activities on the land. An example of a restriction of use is the operation of the Vegetation Management Act 1999(Qld), which prescribes the manner in which vegetation is to be dealt with. This article explores the nature of freehold and leasehold land tenure in Queensland and examines the effect of reservations and restrictions upon the operation of environmental offset and trading initiatives. Presently Queensland legislation does not directly address the relationship between land tenure and environmental offset and trading initiatives. The stability of tenure required for the creation of environmental offsets can be at odds with the flexibility allowed for under leasehold arrangements. This flexibility may act to undermine the permanency requirement of environmental offset creation (i.e. the guarantee that the offset is created for the long term).

Assessing the long term viability of leasehold rural land in Queensland

Rural land holdings in a number of states in Australia can be freehold or leasehold. The actual type and tenure of the leasehold varies according to each state, but the underlying principles of ownership, transferability and farming and grazing rights are reasonably similar. There are rural areas that are all leasehold title such as the western lands in NSW, while rural land in some states and areas can be a mix of both freehold and lease hold rural property. Over the years many rural farming areas that were originally developed or granted as leasehold land have been converted to freehold title. In many instances the cost of purchasing perpetual leasehold property is similar to the equivalent freehold property despite the fact that an additional rental charge is applied to this form of ownership. Many of the current leasehold rural holdings are located in the more arid regions of the state and the prevailing agricultural farming system is either cattle or sheep grazing.

Duty to mitigate in leasehold law

Discusses by reference to case law, including Commonwealth authorities, the rights and duties of landlords where demised premises are abandoned by a tenant who has defaulted on the rent, including the remedies available to the landlord, the limitations on his right to sue for loss of rent due between abandonment and expiration of the term, and the applicability of the contractual doctrine of mitigation of damages in leasehold law. Examines the Court of Appeal decision in Reichman v Beveridge on the duty of mitigate loss in an action merely seeking recovery of rent as it accrues due.

Can valuation factors be prescribed? The case of collective enfranchisement and leasehold extension of flats in England and Wales

Recent concerns over the valuation process in collective leasehold enfranchisement and lease extension cases have culminated in new legislation. To underpin this, the Government (Department of Environment Transport and the Regions (DETR)) commissioned new research, which examined whether the valuation of the freehold in such cases could be simplified through the prescription of either yield or marriage value/relativity. This paper, which is based on that research, examines whether it is possible or desirable to prescribe such factors in the valuation process. Market, settlement and Local Valuation Tribunal (LVT) decisions are analysed, and the basis of 'relativity charts' used in practice is critically examined. Ultimately the imperfect nature of the market in freehold investment sales and leasehold vacant possession sales means that recommendations must rest on an analysis of LVT data. New relativity curves are developed from this data and used in conjunction with an alternative approach to valuation yields (based on other investment assets). However, the paper concludes that although the prescription of yields and relativity is possible, it is not fully defensible because of problems in determining risk premia; that the evidential basis for relativity consists of LVT decisions; and that a formula approach would tend to 'lead' the market as a whole.

Relative values: residential leasehold reform in England and Wales - valuation of lease extension and enfranchisement

This research report was commissioned by the DETR and examines valuation issues relating to leasehold enfanchisement and lease extension - the right for flat owners to collectively purchase the freehold or buy a longer lease. The two factors examined examined in detail are the yield to be applied when capitalising the ground rent and the relative value of leases with a relatively short period left to run as against the value of the freehold or a new long lease, which determines the level of 'marriage level'. The research report will be of interest to all those involved in the valuation of residential leasehold property and those with an interest in legislative proposals for leasehold reform.

Tables for the purchasing of estates, freehold, copyhold, or leasehold annuities, advowsons, &c., and for the renewing of leases ...

Mode of access: Internet.

Enforceability of leasehold covenants and the landlord and tenant (Covenants) Act 1995

Describes the impact of the English Landlord and Tenant (Covenants) Act 1995, reforming liability in the context of new leases, extending the 'touching and concerning' requirement so all covenants 'run with the land' (with some exceptions), and abolishing the enduring liability of the original tenants and landlords. Explains that landlords will have more freedom to prescribe in advance the circumstances in which they consent to an assignment, referring also to changes in default notices requiring an 'early warning' to defaulters, and overriding leases, with a remedy for former tenants. Expects future leases to be shorter as landlords realize they cannot hold original tenants liable any more.

Mere equities and third parties in leasehold law

Examines the concept of a "mere equity" in the context of the Land Registration Act 2002 s.116(b). Considers, by reference to case law, the nature and status of a mere equity and equities coming within the category of equitable rights binding third parties, including a landlord's right to rectification of a lease, the right to set aside a lease and a tenant's right to relief against forfeiture of a lease. Comments on the extent to which s.116(b) requires a mere equity to be more than just procedural and to be an equitable proprietary right capable of binding successors in title.

Case Comment : Challenging the validity of leasehold guarantees:undue influence, non-est factum and formality issues

Case: Beardsley Theobalds Retirement Benefit Scheme Trustees v Yardley [2011] EWHC 1380 (QB) (QBD). The recent case of Beardsley Theobalds Retirement Benefit Scheme Trustees v Yardley, nicely illustrates, inter alia, the impact of the contractual defences of undue influence and the plea of non est factum in the context of avoiding liability under leasehold guarantees, within the setting of the landlord and tenant relationship. Additionally, the case also gives us an insight into the possible application of other technical defences relating to the law of formalities for leases. Judgment in this case was handed down on September 30, 2011.