Restrictive Covenants and Leases

Restrictive Covenants and Leases

This assessment aims to provide you with an opportunity to demonstrate your understanding of doctrinal areas of property law. You should have: read thoroughly in the particular areas relevant to the questions. written a well-structured, clearly expressed response to the questions. identified key issues and provided a coherent resolution of each issue. used proper referencing Both Questions are based on Property Law. Question 1 is on Restrictive Covenants. Question 2 is on Leases. Maximum of 2000 words in total. No more than 1000 words for each question. It is up to you as to how you distribute these words across the answers. You should start each question on a new page. Please use a font of not less than 12-point type. Referencing. When using published sources (e.g. statutes, case law) you must cite them in a footnote. Note the following simple conventions for referencing primary Legal materials: the short title of the Act, followed by ?s? or ?ss?, for a particular section or sections. similarly for cases, use the short version of the case name + citation, and page reference if any (eg Applicant v Respondent (1904) 1 CLR 154 at 155.) For subsequent references it is okay to use part of the case name (eg Bahr or Smith case). for other sources, refer to the Australian Guide to Legal Citation (3rd edition). The Guide is downloadable via http://law.unimelb.edu.au/__data/assets/pdf_file/0007/1586203/FinalOnlinePDF-2012Reprint.pdf. The assessment criteria is as follows: issue identification. identifying relevant Legal provisions/principles. quality/coherence of analysis and argument in applying relevant Legal provisions/principles. quality of written expression (effectiveness of headings; style/clarity; expression/grammar; spelling; punctuation and referencing). Research: You are expected to use information from essential reading listed in the topic study guides and may use information listed in further reading in the topic study guides. This is located in the dropbox links at the bottom of the page. There is no need to research any further than these sources. {These questions are based on Queensland Law. I can?t stress enough how important it is to note that no reference whatsoever is to be made from any outside sources, so no other cases or legislation AT ALL other than what’s detailed in the material Dropbox folders included to support any sort of argumentation and answering of these hyothectical problems } QUESTION 1 Nacer Bouhani owned a large block of land in Coomera, just north of the Gold Coast. Nacer obtained Council approval to sub-divide his block into two lots. He built a one-storey house on each lot. In order to defray the building costs of the new houses, Nacer sold one of the lots to Chloe Hosking (Lot B), and retained the other lot for himself (Lot A). As part of the sale, Nacer and Chloe entered into the following Deed of Covenant: This covenant is made for the benefit of land retained by the covenantee. The covenantor undertakes to: Maintain the house on Lot B as a one-storey house. Re-paint the house on Lot B every five years. Re-paint the house on Lot B using Taubwoman?s Cream Exterior House Paint. Maintain cordial relations with the owners from time to time of Lot A. The necessary formalities were completed, including registration, and Nacer and Chloe lived harmoniously as neighbours for ten years. In March 2010 Chloe obtained a job in Tasmania and decided to sell Lot B. Lauren purchased Lot B from Chloe, and was informed by Chloe of the obligations set out in the original Deed of Covenant. Lauren is non-committal about those obligations, and subsequently becomes the registered proprietor of Lot B. Nacer sold Lot A to Mark in January 2014, informing him that Lauren was due to repaint her house in a couple of months? time. In December 2014 Lauren had still not repainted the house. Mark raised this with Lauren, who told him to ?get lost?. As well, Mark has become aware that Lauren has engaged builders to renovate her house, following approval of a development application to raise her house and build in underneath. The application documents disclose that the exterior of the renovated house will be painted green and orange. Mark seeks your advice on any action he may be able to take against Lauren. QUESTION 2 Luke is a collector of fine ceramics, having studied fine arts at university. Having amassed a substantial personal ceramic collection, Luke decided he would open a gallery in inner Brisbane, exhibiting and selling fine ceramic pieces. Katrin met Luke at an art fair in 2010, where they discovered a mutual appreciation of fine art. Katrin is a successful businesswoman, developing commercial properties and then leasing or selling them. When Katrin discovered that Luke was looking to rent some premises to establish a ceramics gallery business, she suggested a shop that she owned, part of a small complex of two other shop premises. Luke and Katrin agreed to enter into a lease over the premises for a period of seven years, with a monthly rent of $6,000. As a gesture of goodwill, and consistent with their developing friendship, Katrin agreed to meet half the cost of the shop fit-out (costing Katrin approximately $6,000). Luke executed the lease on 2 January 2012 and took possession. Luke returned the executed lease to Katrin for registration, although for reasons unknown registration was never completed. In February 2016 Katrin leased the premises adjoining Luke?s gallery to a new tenant, Fitness Central, a company operating a personal fitness studio. Noise from the fitness studio – loud music with a thumping bass played during regular daily exercise classes (up to two one-hour classes per day) – is causing a nuisance to Luke?s business, with customers distracted by the noise, and conversation often being difficult. Katrin has refused to intervene to require Fitness Central to reduce the noise level. She tells Luke that he is being overly sensitive, and that some noise from adjacent premises is to be expected. Given Katrin?s intransigence on this issue, Luke is ready to provide one month?s notice of termination and find alternative premises. (Please note: for the purposes of this exercise, the application of the Retail Shop Leases Act 1994 (Qld) should not be considered.) Advise Luke. Please note. Referencing-Footnotes: you need to write the names of cases and or legislation with each specific number sections each time you’re referring it to the facts of the hypothetical question in support of your argument and what you’re trying to prove and or advice. Followed by a footnote. It is very important that you write any act, case etc completely the first time round of mentioning it in the answer. And then when the same citation ( case or act etc ) may be mentioned again anywhere within the answer, it can be abbreviated. Example: property law act 1974 Qld ss 10 short version: PLA ss 10 always followed by the correct full footnoted reference each and every time regardless of how many times the same one is mentioned. (I have included with the order for 20 different references. But you may end up using less. So in other words, approximately UP TO about 10 different cases and sections of legislation may be required to answer each hypothetical) You will see that you will probably end up mentioning the same case law and acts/sections throughout answering each problem. And for that matter, you will probably end up with well over 20 footnotes in total for each answered question. But only 10 or below will actually be different footnoted case law/ legislation. Here is a list of specific cases and legislation sections below (as detailed in the study guide pages and Dropbox folders as well) the ONLY material to be used to answer the questions. LEASES LEGISLATION: Land Title Act 1994 (Qld) ss 62, 64 & 65. Property Law Act 1974 (Qld) ss 10, 11, 59, Part 8. LEASES CASES: Aussie Traveller Pty Ltd v Marklea Pty Ltd [1998] 1 Qd R 1. Chan v Cresdon Pty Ltd (1989) 168 CLR 242. Leitz Leeholme Stud Pty Ltd v Robinson (1977) 2 NSWLR 544. Progressive Mailing House v Tabali (1985) 157 CLR 17. Prudential Assurance Co v London Residuary Body [1992] 2 AC 386. Radaich v Smith (1959) 101 CLR 209. Other required cases and case law please refer to lecture slides. COVENANTS LEGISLATION: Land Title Act 1994 (Qld) ss 97A?97DA. Property Law Act 1974 (Qld) ss 13(1), 53(1) & (2), 55, 181 Sustainable Planning Act 2009 (Qld) ss 87, 349. COVENANTS CASES: Ryan v Brain [1994] 1 Qd R 681. Other required cases and case law please refer to lecture slides. Hypothetical structure. For most problems (but by no means all) a good structure will canvas some or all of the following areas: 1. Nature of Interest (Nb interest = lease, or restrictive covenant) This will usually be clear when dealing with a mortgage, but, as we’ll see, may be less so for other interests (eg may need to establish you have a lease not a license (including the type of lease), or that the four key requirements for an easement are satisfied). 2. Compliance with Formalities You need to establish whether you’re dealing with a Legal or equitable interest. As a general rule a Legal interest requires writing (to satisfy ss 10-12 of the PLA) and registration (to satisfy LTA). If writing/registration requirements are not satisfied need to consider consequences (ie existence of equitable interest). 3. Key Provisions/Enforceability of the Interest What are the key terms/clauses of the interest relevant to the problem (eg obligation to repay mortgage; obligation to pay rent). What is the source of these obligations (eg express term, implied by statute)? Who is entitled to enforce (eg for a lease, has there been an effective assignment)? 4. Has there been a Breach of Key Provisions Often there will be a breach of a provision(s) (eg for a lease, failure to pay rent; for a mortgage, failure to repay). 5. Consequences of Breach Where there is a breach, need to state the consequences (eg for a lease, termination or just damages; for a mortgage, exercise of a power of sale). What is the source of this right to enforce (eg express term, implied by statute)? Often there will be procedural steps to comply with before a breach can be enforced (eg for a mortgage, exercise of a power of sale must be preceded by notice of default). An alternative hypothetical structural approach is included https://www.dropbox.com/s/p0qk6lxlf85ffks/Irac%20alternative%20structure%20.docx?dl=0 Restrictive COVENANTS https://www.dropbox.com/sh/5ml1ifmmniivwlm/AAClkIFVTt7I2Gom9TcZfapKa?dl=0 LEASES https://www.dropbox.com/sh/amvp8pxtnt58q0y/AAAz5lpdYlZ1LwxTKLLuNpnCa?dl=0 And heres a link to further ?Hypothetical info? in my Dropbox: https://www.dropbox.com/sh/3wnykdlzpdqwzhb/AADpQ7jo5Qvh43Si-RyGMrhla?dl=0 Given the time frame, it would be totally awesome upon immediate completion of the first question to send to me for review as you continue working on completing the second hypothetical. Appreciate it!!


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