Proper Possession For Exclusive Possession

1421 Words Nov 13th, 2014 6 Pages
A lease involves a grant of the right of exclusive possession for a certain period of time as per Radaich v Smith where it was held that whether the transaction creates a lease or licence depends on the intention of the parties regarding what relationship the lessee shall have to the land. It does not matter whether the terms ‘licensee’ or ‘tenant’ are used, as it is a matter of substance rather than form. In the present case, there is an agreement that states the duration of the tenancy as being one year and the rent as $1000 per month. Thus certainty of duration is clearly stated. It is therefore a matter of whether the right of exclusive possession has been granted. Here the tenant is entitled to uninterrupted possession for the full …show more content…
The lease is not registered and being a one-year lease, it is protected as an exception to the indefeasibility principle as a short-term lease under the relevant statutes except the Law of Property Act 1936 (SA). There is no need to execute a lease and the agreement may take effect via an oral agreement.

In terms of leases under the Torrens system, registration of the lease is not compulsory and short-term leases may be protected from subsequent registration, despite the fact that it has not been registered.

Law of Property Act 1936 (SA) s 30(2) states oral agreements are valid for leases of less than 3 years.

Real Property Act 1886 (SA) ss119 and ss119A, state that a lease for less than one year does not need to be registered and that the registered owners title (Charlie) will be subject to the tenants interests, meaning that a lease (less than a year) is an exception (s. 69(h)) to indefeasibility under the Real Property Act but after the 12 months Charlie can take possession of the house by terminating the lease, which ends anyway, he has a reversion subject to the lease. Also as the lease is not registered the right to renew after 12 months is not protected in any case under the act. The lease is a legal interest even though it is not registered.

Has Captain Benedict Assigned or Subleased the house to Molly?

If the

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