Lease: did the parties agree on exclusive possession for a term?

In Radaich v Smith (101 CLR 209) S had entered into an agreement that allowed R to occupy a lock-up shop for a five year term to carry on a business. R applied for a fair rent to be determined. R argued that the agreement gave rise to a licence, rather than a lease, so that there was no jurisdiction to determine a fair rent. The High Court of Australia held that whether there was a lease or a licence depended entirely on whether, properly interpreted, the agreement conferred exclusive possession for a term. If it did then a lease had been created. Any label applied by the parties was irrelevant (for example Windeyer J. at 222). The court held that the agreement in this case did give rise to a lease.

Advertisements

One Response to “Lease: did the parties agree on exclusive possession for a term?”

  1. Street v Mountford | Land Law Says:

    […] with nearly all previous authority in England and in other jurisdictions (see, for example, Radaich v Smith (101) CLR […]

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s


%d bloggers like this: