Does the party enjoy exclusive possession? no landlord can stay, right to add – lodgers License if owner provides services that require constant access Key is it actually exercised not just reservations look past agreement to actual – – – situation *Note, landlord may try to make it look like licence (not lease) Greater power/authority Can evict No legal recourse if interference with possession Licensee may not get same protections as tenants (depends on BC law) Obligations of Landlords and Tenants Freedom of contract commercial leases – Terms implied by CL: Covenant by landlord not to derogate from lease Covenant by tenant to pay rent, keep up repair, pay taxes, allow landlord to enter/view state of property Covenant for Quiet Enjoyment Gives tenant protection against substantial interference w/ use/enjoyment of premises by landlord or others claiming under landlord Includes: Direct physical interference (Kenny v Preen) Indirect action in certain circumstances (Pellatt v Monarch Investments – renovating apt during bar exam) May include regular excessive noise/odour/mess Southwark LBC v Tanner 2 separate properties, two separate P’s. Neighbour’s noise reasonable paper thin – walls. No sound insulation. Issue: breach to right to quiet enjoyment? Right doesn’t cover paper thin walls disturbance there at beginning of term, so not – covered no breach – Different approaches to whether disturbances by tenants is breach: 1) Disturbances caused by tenants in circumstances where landlord could’ve taken action but didn’t breach (Albamor Construction) – 2) Where tenants cause disturbance, landlord must have consented or actively participated (Curtis Investments) Survivorship Estates and Succession Act Part 2, Division 2 Survivorship Rules – Order of Death in Common Disaster Doctrine of lapses gift to a beneficiary who predeceases the testator, will lapse –
Does the party enjoy exclusive possession? – no landlord can stay, right to add lodgers License if owner provides services that require constant access Key – is it actually exercised – not just reservations – look past agreement to actual situation *Note, landlord may try to make it look like licence (not lease) Greater power/authority Can evict No legal recourse if interference with possession Licensee may not get same protections as tenants (depends on BC law) Obligations of Landlords and Tenants Freedom of contract – commercial leases Terms implied by CL: Covenant by landlord not to derogate from lease Covenant by tenant to pay rent, keep up repair, pay taxes, allow landlord to enter/view state of property Covenant for Quiet Enjoyment Gives tenant protection against substantial interference w/ use/enjoyment of premises by landlord or others claiming under landlord Includes: Direct physical interference (Kenny v Preen) Indirect action in certain circumstances (Pellatt v Monarch Investments – renovating apt during bar exam) May include regular excessive noise/odour/mess Southwark LBC v Tanner 2 separate properties, two separate P’s. Neighbour’s noise reasonable – paper thin walls. No sound insulation. Issue: breach to right to quiet enjoyment? Right doesn’t cover paper thin walls – disturbance there at beginning of term, so not covered – no breach Different approaches to whether disturbances by tenants is breach: 1) Disturbances caused by tenants in circumstances where landlord could’ve taken action but didn’t – breach (Albamor Construction) 2) Where tenants cause disturbance, landlord must have consented or actively participated (Curtis Investments) Survivorship Estates and Succession Act Part 2, Division 2 – Survivorship Rules Order of Death in Common Disaster Doctrine of lapses – gift to a beneficiary who predeceases the testator, will lapse
Reynolds_60_Full_2013_Kellan_McKeen.docx