LEASES

Is it a lease?
(1) Exclusive possession (2) Certainty of Term (3) Rent
What does it mean? Why such a rule? The qn is whether thr need be
No set definition but the closest the courts have come to o Common law preference for crystalline edges esp. periodic payment of money, or
expounding this illusory concept is in Street v Mountford an repugnant to have an indeterminate or perpetual lease (which can thr be some lump sum
instinct to defend the space from outsiders, incl e landlord. threatens to blur e line btw leasehold and freehold estates). payment at the start.
Street v. Mountford rent is
What are some factors? Development of law one of the decisive
1) Provision of services unlimited access for L or Ls agents to o Lace v. Chantler lease until WWII ended strictest appln of hallmarks or a tenancy.
provide services (like housekeeping) = no exclusive possession rule. Ashburn Anstalt v. Arnold a
(Marchant v. Charters) o Re Midland Railway Cos Agreement simply said tt thr can tenancy is usually marked by
2) Control over when T has access to premises + how he runs be leases which are exceptions to certainty of term rule rent but not necessarily so.
business = no exclusive possession (Re Tan Tye) high watermark of liberal attitude to the rule. o UK Law of Property Act
3) L can command T to leave the house at specific periods of each o Ashburn less blatant but still liberal effectively changed 1925 makes no mention
day = no exclusive possession rule from certainty of term to certainty of termination of rent when defining a
o But quite difficult to convince Ct to take this term for real you just need to state how e lease is to be terminated and so lease.
(just as it was rejected in Aslan v. Murphy)1 Initially, law viewed rent as
long as terminating event is within either partys control.
4) Possession of keys o Prudential Assurance HL reaffirmed orthodox certainty the modern equivalent of
o Ambivalent factor depends on e underlying purpose of term rule thus, u cannot create tenancies with all sorts tenure2 but then moved away
behind Ls retention of keys. (Aslan) of weird termination events rejects Ashburn. from that. Now rent is viewed
o No exclusive possession if it is done to enter hse at his no diff from the consideration
own convenience or to check on T. in any other contract. Hence,
How to reconcile the periodic tenancy?
5) Familial settings sometimes L tells T tt he can do anything he it is very common for yr 99-
o The periodic tenancy is too entrenched in Eng law to be
wants in a space and even keeps out of it but it is still clearly year leases to be subj to lump
disregarded as a lease and indeed even the HL in Prudential
personal in nature = no exclusive possession (Abbeyfield sum payment at the start.
had to acknowledge it.
(Harpenden) Society Ltd v. Woods frail old man case) o With the exception of
o Lord Templeman sought to argue tt periodic tenancy fits into
6) It is only logical tt if both landlord and tenant are in occupatn of periodic tenancy
the rule bec. the max length of each period is known.
prop, thr cannot be any tenancy bec no exclusive possession. quite difficult to
o But many academics still feel tt it fits quite uncomfortably
doctrinally with the certainty of term rule. construe a periodic
Substance, not labels tenancy w/o some
o Note: A lease for 99 years subject to be determined when
Cts will look at substance and conduct of parties and not labels (in Eng wins the world cup is a fixed term lease even though periodic payment of
dicta in Goh Gin Chye v. Peck Teck Kian Realty [SGCA]). it may end earlier than 99 yrs. rent.
Even if parties expressly state that this is not a lease, its But whr a tenancy imposes
inconsequential (Antoniades v Villiers) * A periodic lease is always more vulnerable than a fixed rent, the sum and time of
term bec it can be easily terminated by L serving notice. payment must be certain (as
w any term in a contract) to

1 In such sham cases, the evidence (for eg. though e L retains the right, he does not ever exercise it) convinces e Cts tt such written rights are merely a mask and that in
practice, the parties do sth entirely different.

2 The service tt a tenant provides to his feudal lord in exchange for staying on his land

What is the significance of distinguishing license from lease?
Lease
Conceptually A proprietary estate (w the
exception of tenancy by estoppels?)
Common law - Interest capable of assignment
rights to 3rd P
- Capable of binding a 3rd P
transferee of land
- Subj to Ls remedy of distress
- Can seek relief against forfeiture
- Can create a sublease
Trespass/ - Can sue in an action for
nuisance nuisance or trespass
- Can recover land from
be enforceable.
Can there be a gratuitous
tenancy?
o Probably not, bec. then there
cant even be a contract
mere licensee.
Exclusive possession is not
conclusive of a lease
License A may have exclusive possession,
A purely personal permission to occupy but he may be a:
- Fee simple owner
- Not capable of assignment to 3rd P - Adverse possessor
- Incapable of binding a 3rd P transferee of land - Mtgee in possession
- Not subj to Ls remedy of distress - Beneficiary under a charitable
- Cannot seek relief against forfeiture trust
- No such right
- (A rare case whr licensee has a right tt lessee does not is when licensee
sues licensor for negligence in safeguarding the formers belongings. A
 trespassers tenant on the other hand is deemed to have excl possession and is
responsible for the defence of his own land)

What if facts give rise to both a possible

equitable fixed term lease and legal
implied periodic tenancy (as in the facts
of Walsh)? Equity will trump.

ASSIGNMENT BY LANDLORD OR TENANT WITHOUT INFORMING THE OTHER PARTY An equitable lease: a weaker lease?
Original lease < 7 yrs Original lease => 7 yrs - The recognition of the Walsh v. Lonsdale doctrine has
Regardless whether it is registered Registered lease of Unregistered Unregistered lease of given rise to a saying that an agreement to grant a
land or unregistered land, a new registered land lease of unregistered land lease is as good as a lease.
Purchaser is always deemed to registered - However, there are a no. of disadvantages of an
have constructive notice of the land equitable lease:
lease, and cannot deny the lease. If lease is registered, it If lease is unreg but deeded, and if the (i) Can be defeated by a bona fide purchaser of a
Bec. a short-term lessee is serves as notice to the deed is registered, it will serve as legal estate for value without notice.
usually in occupation and world and binds all constructive notice. But this can be remedied if equitable
when P buys, he must subsequent R/P. If lease is unreg and undeeded = lessee lodges a caveat protecting his
inspect the house T may want to be kept equitable lease. It can be defeated by a interest.
notified by lodging a bona fide purchaser of a LEGAL (ii) No privity of estate
(Kingsnorth Finance v
 Tizard situation) caveat. ESTATE for value without notice. - Note tt for the purpose of CLPA, an equitable lease is
[Purchaser must give valuable treated no differently (since s. 4 defines lease to
consideration (see s.4 CLPA definition)] include an agreement to grant a lease as well)
- One possible situation whr an equitable lease > legal
Covenant against assignment lease is tt an equitable fixed term lease is less
- Most tenancies include a covenant whr one or both parties cannot assign without the others permission. Such vulnerable than a legal implied periodic tenancy.
a breach is usually serious enough to justify termination. At law, such unauthorized assignment does not
affect the 3rd P purchasers title, but in the case of a unauthorized assignment of the lease, 3 rd P may be
vulnerable to forfeiture.

LANDLORDS COVENANTS AND THE TENANTS REMEDIES

Express Covenants Implied Covenants Tenants remedies in the case of Ls breach
Most leases will 1) Covenant to give T quiet enjoyment. Damage Specific Set-off Termination
contain a whole - The very basis of T claiming exclusive s performance
host of express possession. As with Common law has General rule: no interdependence btw L and If Ls
covenants. 2) Covenant against derogation from grant. any long been Ts covenants breach by L does not justify covenant
Thr is no rule tt a - L cannot grant land on terms which effectively contract prepared to order breach by T. is a
or substantially negative the utility of the , L is spec perf for a Ls But for covenant to repair, law allows T condition
Ct will disregard
grant. liable in covenant to to set-off future rent against cost of (or very
the express
- A lessor having given with one hand is not to
covenants in a damage repair (Jeune v. repairs. serious
take away the means of enjoying it with the Cost of repairs may also be a defence
Walsh v. Lonsdale s for Queens Cross using the
other (Lord Millet, Southwark LBC v. Mills)
lease (since spec breach. Properties Ltd) against Ls claim for arrears of rent. Hong Kong
- Eg. you lease commercial property then L
perf is the L may only deny T this by expressly Fir test), T
disallows you from letting customers into the
condition for stipulating so (Batshita International v. can
building.
Equity to Lim Eng Hock). terminate
intervene) for breach.

TENANTS COVENANTS AND THE LANDLORDS REMEDIES

Express covenants commonly found in leases
(1) Covenan (2) * Covenant against assigning (3) Covenant to repair (4) Covenant to insure (5) Covenant as to user
t to pay
rent
Most Leases will usually incl. a covenant to prevent T from assigning, Depends on how parties Shd the premises be Common to restrict
leases subject to Ls approval. negotiate, either L or T damaged by fire, user eg. for
contain When breached, it is usually viewed as a one-off breach may bear the burden of neither party is liable residential premises,
such an incapable of remedy = L can forfeit. repair. to the other. prohibit it from being
express T is well advised to include a covenant tt L shall not - Regardless, there is Hence, there is usually used for any business
covenan unreasonably withhold consent. usually an implied an express covenant or trade.
t and it s 17 CLPA states tt L cannot impose a fine in exchange for Ls covenant tt T will that one party will take Common for L to seek
is an approval. take care of the the responsibility of an injunction
impt - But this does not preclude L seeking reasonable expenses in waste generated insuring the premises. restraining continued
 covenan giving the approval.
t.
(a) Distress (for arrears
of rent only)
Source: Common law.
Right to distress need
not be expressly
reserved (but can only
be exercised by party
holding the reversion).
Old common law
remedy allowing L to
impound Ts goods
to force repayment.
After seizure, T has a
reasonable period to
discharge arrears
before goods are
sold off.
Subject to Distress
Act (Cap 84) see
ss. 4 12
L can only claim up
to 12 mths arrears
preceding the
application (s. 5)
Note tt items exempt
from seizure (s. 8)
Burden of proof for
wrongful seizure is
on party challenging
3 This view is supported by s. 18(1) of CLPA, which states: A right of re-entry or forfeiture under any provision or stipulation in a lease. This means tt if a lease had no such provision, there is no
right of forfeiture.
4 Technically, under contract law, the innocent party has a choice whether to accept the repudiation. However, innocent party also subj to duty to mitigate unless the White & Carter v MacGregor
conditions can be satisfied. This is unlikely bec. L cannot perform the tenancy w/o Ts cooperation + cannot see why L would have a legitimate interest to insist on perf.
from his/her breach in cases of Ts
occupation. breach.
Remedies of the L (other than damages and spec perf)
(b) Forfeiture or re-entry (c) Repudiation of lease
Source: Must be expressly reserved3. Source: But s.93(1) LTA implies such a Rule: Contractual remedies
right into every registered lease. are technically available
(*Tan Soo Leng David)
Always discuss dicta tt
short-term leases more
contractual while long-
What sort of breaches entitles L to forfeiture? term leases look more
Any covenant cast as a condition tt entitles L to forfeit. a) If there is arrears of rent for 30 days; or like estates and less
b) Continuing breach of ANY covenant for contractual.
30 days. May suggest that this
Breach of any other covenants Breach of covenant to pay rent remedy only confined
only
to short-term leases.
Exercising the right to forfeiture
Regardless whether right is expressly reserved or provided by way of However, for breach of covenant
Differs from forfeiture:
s.93(1), L must comply with s. 18 CLPA in exercising his right of to pay rent (regardless whether Available to both T and
forfeiture: right to forfeiture arises under
L
- Notice + demanding remedy (if breach is capable of remedy) contract or LTA), L does not
No need to serve s.18
within reasonable time need to serve notice (s.
notice (but per ordinary
The big fight is always whether the breach is one capable of remedy. 18(9))
contract law, must still
- Traditional position: Most positive covenants are capable of If right to forfeiture for arrears is
remedying while negative covenants are not. elect to terminate)
express (eg. can forfeit if in Still a young doctrine
- Covenant not to assign almost never remediable (Scala House v.
arrears for a day), L can directly
Forbes) + reqt of notice not even necessary (s. 18(8))
exercise. If right is implied by Differs from surrender:
- Modern approach: Instead of technical rules, simply look at whether
LTA, L must wait for T to be in T does not need to
remedy is practically able to compensate L (*Expert Clothing
arrears for 30 days. get Ls acceptance of
Services v Hillgate)
the termination4
Relief against forfeiture Another adv is tt
 the Sheriff (Plaza s 18(2) CLPA simply apply to court for relief. At courts discretion, but court s 18(A) CLPA : prospective damages
Singapura v. Cosdel generally quite lenient. Reasonable time pay up after termination are
Pte Ltd) If L has actually exercised re-entry, can still get relief (Billson v. Residential Ct order given still got 4 recoverable as well5
Apartments Ltd the dawn raid case) additional weeks.
But if court order for forfeiture has been given, then no more relief against After tt, barred from all relief. Similar to forfeiture,
forfeiture (s.18A is the only statutory exception) ones right to
Waiver of forfeiture termination can be
IF L accepts rent after awareness of Ts breach for the period in arrears after the breach, L may be waiving his waived.
right (Expert Clothing)
If L has filed for a writ of possession, there is no more timeous repentance (Protaz Co-operative Society v. Toh
Teng Seng [2001, SGHC])
Note:
- Forfeiture is quite a harsh remedy, hence T has multiple defences against this outcome:
1) Breach must be one tt entitles L to forfeit ---------- 2) L must serve notice ------------ 3) Breach must be irremediable ------------- 4) T can go to court and seek relief against
forfeiture.

ASSIGNMENTS AND PRIVITY OF ESTATE

Assignments can go two ways:
1) L1 ------- assigns L2 (we call this assignment of reversion)
2) T1 ------- assigns T2 (we call this assignment of term)

What is Privity of Estate (POE)?

It is a distinct feature of leases that serves as an exception to privity of contract.
It creates privity as between the current Landlord and current Tenant. It only exists bec. the law treats the landlord-tenant relationship as special.

L1 ---------- sells the fee simple L2 Btw T1 and L1, there is privity of contract. Shd anyone down the line (of either line) breach, L1 and T1 can sue each other.
| Btw L2 and T2, if there is privity of estate (ie. conditions for POE are met), they can sue each other.
| lease However, btw L2 and S1, there is no POE bec. L2 and S1 do not enjoy a landlord tenant relationship (since the landlord of S1
| o Hence, POE only exists for assignment. If L1 does not assign the entire reversion but merely grants another lease, this
V Landlord.
Of course, if as btw L1 and L2 or T1 and T2, there is express covenant to observe the covenants of the head lease, then there i
T1 ----------------- assigns T2 -------
btw each pair and usually parties will get the new assignees to indemnify the assignor (bec. even with POE, ctee may want
sublets S1

At general law (Spencers Case) Statutory intervention

Two conditions must be satisfied:
1) T1 must have a legal lease (otherwise all
down the line are merely equitable)
- Only exception: always worth discussing
Boyer v. Warby [1953, ECA]. Most
consider it poorly reasoned but the result
is probably fair. No principled reason tt an
equitable lease shd be denied POE.
(anw its somewhat moot bec CLPA
- Statute intervened to allow
2) Covenants must touch and concern land covenants to run with the
reversion as well.
- What it means: a covenant which affects landlord in his position as landlord and o s 10 benefits on L run w
tenant in his position as tenant. reversion
Clear cut ones: o s 11 - burdens on L run w
I. Covenant to repair the premises reversion
II. Covenant relating to user - Whats remarkable is that
III. Covenant to pay rent equitable leases enjoy this as well

5 Because contract compensates ur expectation measure. For a surrender, however, you only get damages up to the point of surrender (Wood Factory Pty Ltd v Kiritos Pty Ltd)
 applied both to legal and equitable leases More controversial ones: (by way of s. 2 definition of lease)
but only moot wrt covenants tt run a) Covenant of surety [] accepted in Kumar v Dunning and P&A Swift Investments. o But this rule does not
with the reversion, bec. CLPA is silent b) Covenant to return security deposit [x] Hua Chiao (PC) accepted in Sgp in derogate the general law
on covenants tt run with the term. United Malayan Banking v Goodhope Realty rules. Hence in order for
Runs with the term but not the reversion covenants to run with the
- At general law, covenants which touch and concern land run with the term and not with the reversion. term in an equitable lease
o Hence, T1s assignees can sue and be sued (ie. take the burdens AND benefits of the head lease) by the current L1. (ie. undeeded or
o However, if L1 assigns to L2, L2 gets neither the burdens nor benefits of the head lease (except for implied covenants unregistered), Boyer v
eg. rent, quiet possession etc). Warby must be accepted
in Sgp.

Restrictive covenants bind
sublessees
- Tulk v Moxhay
- Restrictive covenants run with
the land and bind all
sublessees who take with
notice
- When sublessees have notice
depends on whether S1 has
inspected the title before
taking the lease.
o More likely in long
term leases than short
term leases.
o S 3(1) and (2) of CLPA
now states tt S1
What if there are covenants which
are not touching and concerning
land?
- Use CRPTA
- Provided T1 makes T2
promise to uphold
covenants in head lease,
then L1 may claim tt the
contract purports to
benefit L1.
o Same logic for the
contract btw L1
and L2.
- Sometimes, contract btw
T1 and L1 contains
promise that they will
When does a lease come to the end?
1) Effluxion of time automatic
- But for reg land, s.92 LTA req notification in register to confirm tt lease has
ended.
2) Notice to quit must be expressly reserved
3) Surrender
- Express: deed in Eng language
- Implied by conduct of parties
- Surrender of head lease may affect sublessees
4) Merger
- Lessee has both reversion and term.
- S. 67 LTA
5) Holding over
- With consent of L can become new periodic tenancy
- Without consent of L s.28(4) Civil Law Act penalizes the T by
subjecting him to paying double rent or value.