Issue 1: Can Bakertown Evict AustralBeauty?
There are several legal questions that have been laid out and my aim is to competently analyze the lease agreement a give a legal perspective. The analysis will denote the elements of the lease agreement and the issues raised by both the lessor and lessee.
The first issue to be addressed is whether Bakertown can evict AustralBeauty in respect to the provisions of the lease agreement. In respect to the facts, Bakertown cannot evict AustralBeauty from the premises. This is anchored by clause 10.4 (b) which denotes that the only time the lessor can forfeit or terminate the lease is when the lessee has breached the essential elements in the agreement.
The essential elements are:
1. Clause 2.1
This clause touches in the rental payment by the lessee to the lessor. The condition for termination of a lease is that if the lessee fails to pay the rent 14 days after the due rent date, it will be considered as a defaulted payment. This would give the lessor a justifiable claim of terminating the lease and hence evicting the lessee.
2. Clause 2.4
This provision is grounded on the payment of other fees that are incurred by the lessee in the operation of its firm. These fees include gas, electricity, water and any other bills accrued by the lessor including garbage duties.
Moreover, if the lessor is providing the services that the lessee ought to pay for, for instance water, the lessee must pay for the services within 14 days after being served with the bill by the lessor. It also highlights the lessee is subject to the timings of the charges as inferred by the lease agreement.
The lessee is also expected to pay and be competent with paying for safety measures like prevention against fire.
3. Clause 3.1
This clause is broad and based on the expected conduct of the lessee in reference to what the lessor wants. It reflects the interests of the lessor in respect to how the lessee should operate their occupied space.
4. Clause 8
In clause 8, the lessor puts forward their proprietary rights of safeguarding the sanctity and security of the property. This is met by the lessor prompting the lessee to obtain necessary insurance policies that would safeguard the proprietary rights of the lessor.
Moreover, it also has an exclusion clause where the lessor protects themselves from liability caused by lessee. However, if the damage to property or losses were incurred to an act or omission or even an act of negligence by the lessor, the lessor is held liable and the damages are remediable.
5. Clause 9
This provision is an essential element since it touches on the consent when it comes to leasing or subletting by the lessee to another potential lessee. This clause cements the fact that the lessor still holds the proprietary rights as long as they don’t sell the property to another party.
This clause talks about how a lessee should approach subletting or even proposing a new lessee for the property when their lease expires.
Issue 2: Effect of Registration of a Lease
In reference to these essential elements, Bakertown cannot evict AustralBeauty from the premises. This is because the Lessee had not breached any essential element after the Bakertown Representative cited their complaints. The lessor Bakertown, through its agent was authorized by clause 6 which enables them to at any reasonable time to check out the premises. After the inspection, the representative claimed that there was damage to the walls and tables. However, the damages to the property were obtained through the normal and the accepted ways that the premises would be used. This would mean that Bakertown do not have a justifiable claim to terminate the lease since no essential term was breached by the lessee.
The fifth clause touches on the repairs of the premises which are to be done by the lessee in a reasonable time as they carry out the operations which AustralBeauty could do. Moreover, the clause states that the lessor can only terminate the lease if the damages are so radical that the lessee cannot operate. But the premises are hospitable and the lessee is competent hence there are no grounds for the lease termination.
The second reason as to why Bakertown cannot evict Pathe is that the lease is meant to last for three years and at the time the alleged eviction would be auctioned at the 22 months mark. Depriving her of the rights to property that she lawfully acquired would contradict with Article 17 of the Universal Declaration of Human Rights. This article states that no one shall be denied the interest to their property. Bakertown do not have any sound reason to evict Veronique from the premises since she has upheld her end of the lease agreement whilst Bakertown fail to fix the solar panels as expressed in the special conditions number 3.
The third issue is based on the effect of registration of a lease. Section 71 of the Land Title Act 1994 depicts that a valid lease of land is not invalidated by the mere fact that it is not registered. This is an equitable principle that was put to aid in the protection of property rights where the parties are not well informed on the prerequisite rules set up by the Land Title Act 1994.this means that Bakertown cannot use the claim of an unregistered lease to evict AustralBeauty from the leased premises. In the eyes of the Queensland law, as long as the lease is enforceable due to its compatibility with the laws of the land it is immaterial whether it is registered or not.
The fourth aspect to be dissected is on the terms of renewal of a lease. Clause 12 clearly states that as long as the lessee has not breached the lease, they can opt to renew the lease. The only reservations that the lessor has on the issue are that if the lessee has breached the lease before, they have the option to deny the lease. Moreover, in respect to clause 5, if the property is unfit for operations the lessor can opt to terminate the lease completely and renovate the premises. These cannot be grounds to evict AustralBeauty from its premises since it has held up its lease and the repairs that they are yet to make do not inhibit their daily operations.
In the matter of who is liable in the repairs of the solar panels and the damages on walls, it is encapsulated in the special conditions section. The third special condition states that the lessee buys the solar panels and should competently install them by using a respectable firm. It however places the duty to repair the solar panels on the lessor. The ninth special condition states that the lessee is obligated to take care of all the necessary repairs related to the damages caused by the lessee or an agent of the lessee. The repairs on the solar panels have cost the lessee a substantial amount of money but they have not inhibited the operation of AustralBeauty, it just made the cost of operations to sky rocket. It should be noted that if AustralBeauty did not offer a written notice to the lessor based on the solar panels, they cannot be refunded on the expenses incurred. This is found in clause 8 that provides indemnity to the lessor. The lessor cannot evict the lessee on the above ground since they had not offered notice on the need to repair hence it doesn’t amount to a breach of the lease.
If Veronique intends to go with the solar panel and the benches, she is entitled to them and she can take them. In the cause of the lease transaction with Sandra, Sandra clearly stipulated that all assets were subject to the lease. This meant that after the transaction, Pathe owned everything that was put up by Sandra. According to clause 3 and 8 in the special condition, she is entitled of the claimed property since she hasn’t breached the lease.
In respect to the effectiveness of this lease, there was only one omission that stood out. The indemnity clause 8.2 (c) declares that the lessor is not being incompetent in its operations as long as the lessee has not issued a written notice of the breach of the lease and the lessor has taken a reasonable amount of time to work on the breach. In as much as written notices can be easily documented, there are other forms of sending notices including recorded zoom calls that are more time efficient. Omitting other ways of communication hinders the effective nature of fluid forms of communication.
In conclusion, Bakertown has no substantial legal claim to evict AustralBeauty legally. This is because the lease has not expired and the lessee is competent in holding up the requirements of the lease. Moreover, even though the premises have incurred damage on the walls and tables, the damage was incurred in the acceptable manner as in clause 3.1.
Land Title Act 1994
"Module 18: Land Rights", Hrlibrary.Umn.Edu (Webpage, 2022)
Universal Declaration of Human Rights 1948
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