Part A (21 marks – allow approximately 900 words)
Question 1 (7 marks)
Compare and contrast the old system of title with the ‘Torrens’ title system.
Question 2 (7 marks)
Explain the distinction between tenancy in common and joint tenancy. Also, explain what is meant by ‘unity of possession’. (7 marks)
Question 3 (7 marks)
Explain what is required for native title to exist under the Native Title Act 1993 (Cth) and how this title can be extinguished. (7 marks)
Part B (24 marks – allow approximately 1100 words)
Andrew (tenant / lessee) leased premises from Kathy (landlord / lessor) for use as a physiotherapy practice and for exercise classes for five years from 1 April 2015. The lease was registered. The premises were located in a small arcade owned by Kathy in Rowville Flats*, a town in NSW.
Kathy’s arcade was the only one in Rowville Flats and it had a mix of businesses. There were three professionals in the arcade, an accountant, a doctor and a solicitor and the remaining premises were used for retail purposes, a bakery, a pharmacy, a health food shop and an IXL supermarket. The IXL was at the rear of the arcade opening onto a carpark. It was a popular shopping area in town and Andrew thought it would be good for his business to be in a busy retail area. In addition, the space Andrew rented in the arcade fronted the street, so there was also the opportunity to attract passers-by.
In August 2015, structural repairs and alterations to the arcade were commenced that entailed the erection of scaffolding across the front of the arcade for three weeks. This blocked the front entrance to the arcade so that access to the arcade was only available through the IXL supermarket at the rear of the arcade.
The scaffolding also obscured the windows to Andrew’s premises and the signage advertising his physiotherapy practice.
During this time, the noise from the drilling and hammering was so intense, that it made it very difficult for Andrew to conduct his physiotherapy practice. His business practice did not prosper. He complained to Kathy about the impact on his business of the structural repairs to the arcade, but she told him he was oversensitive and in any event, it wouldn’t be for too long.
Andrew complained to Kathy that the carpet in his premises had frayed and needed replacement. He also reported a light fitting had been damaged when it was hit by a ball thrown in one of his exercise classes and he wanted Kathy to replace it. In addition, Andrew asked Kathy to replace the old and cracked tiles and the leaking tap in the small bathroom included in the premises he leased. Kathy said these repairs were all Andrew’s responsibilities. Kathy also said that it was up to Andrew to re-paint his leased premises so that they didn’t diminish the overall look of the arcade.
Andrew decided that the burden of all these expenses would be too much to bear and he decided to give up his business. He asked Courtney to take over the lease. She wanted to continue conducting exercise classes and also wanted to sell exercise equipment and health products direct to the public from the leased premises. Kathy refused permission for the assignment of the lease as she did not want another retail shop in the arcade.
Clause 5 of the lease provided:
“A tenant may not assign the whole or part of the tenant’s interest under this agreement or sub-let the premises without the landlord’s prior written permission.”
Discuss the legal issues in the scenario above.