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Leases repudiated without notice |
Due to the recent decision of Batiste v Lenin in the NSW Court of Appeal, it now appears that tenants may repudiate a lease even though no dispute notice under Section 129 (of the Conveyancing Act 1919 (NSW)) complaining of the misdeeds was served. |
Section 129 distinguishes between rent and other non-rent covenants. Where a non-rent covenant is breached, the landlord must give notice to the tenant to make good the covenant. Where a rent covenant is breached, the landlord is not required to give notice and may simply re-enter the premises. |
The decision creates risks for both landlords and tenants. The landlord may decide to re-enter premises without notice, only to discover that the tenant's conduct does not support a finding of repudiation. The tenant may find that although no notice was served complaining of a breach of covenant, its breaches are nevertheless determined with hindsight to have been so serious that the lease has come to an end. |
All lease disputes should be referred to your lawyers so notices can be given or remedial action taken to manage the risks created by this new uncertainty in property law. |
