LEASES

1. INTRODUCTION and DEFINITION OF LEASES

Also known as the term of years absolute.
A lease is an interest in land that gives the lesse exclusive possession over a fixed period of
time, usually in return for some consideration.
This topic is very relevant because a large majority of the property transactions in Singapore
involves leases and it is conceptually interesting bec. leases straddle the realm of proprietary
and contractual interests.
o A lease is traditionally viewed as a proprietary interest, which places it in stark contrast
to a mere license (which does not generally confer proprietary rights).

The elements and related issues

No case has definitively set out the exact elements of a lease but observing the cases in
general, 3 elements can be distilled:
(i) Exclusive possession
(ii) For a fixed or periodic term certain
(iii) In consideration of a premium or periodical payments.
(This is also the position in Street v Mountford [1985])

Exclusive Exclusive possession means tt the tenant has the right to

possession exclude the landlord if he so chooses.
Radaich v Smith (1959) Windeyer J. called the right to
exclusive possession the touchstone of a lease.
Exclusive possession is also the main difference btw a Lease
and a mere License.
For a fixed or Eng law strictly required tt a lease must have a certain
periodic beginning and a certain end.
term certain o The true rationale for this is not entirely certain and the
relevance of this rule is debated today.
But this rule probably embodies the proprietary perspective on
the law of leases since the law demanded crystallized edges
surrounding proprietary rights.
The different Kinds of Leases (see ) also arise based on the
diff ways to determine a fixed term.
In Street v Mountford compulsory to pay rent or money
consideratio consideration.
n of a Ashburn Anstalt v. Arnold (1989) doubts this.
premium or Eng Law of Property Act 1925 explicitly states tt there is no
periodical need for rent.
payments. Altho Sgp does not have the same Act, arguably we apply it if
this is the predominant common-law view.

2. CONCEPTUAL AMBIVALENCE OF THE LEASE

The lease developed from contract in the 15 th century as distinct to the feudal system
that passed land on freehold.
Progressive Mailing House Pty Ltd v Tabali Pty Ltd (1985, HCA) Deane J. describes the
lease as both an executor contract and an executed demise. And hence, the lease
possesses this duality of character (contract and proprietary) that can give rise to
conceptual difficulty.
 2.1 The Proprietary Perspective
Lord Templeman in Street (1985): The tenant is fully entitled to exercise the rights of an
owner of land, which is in the real sense his land albeit temporarily and subject to certain
restrictions
The right of exclusive possession shows the proprietary perspective.
Today, the fact tt many leases are granted for hundreds of years with a lump sum at the
start and little or no periodic rent brings to the fore the proprietary perspective bec. this
starts to resemble an estate in fee simple.

2.2 The Contractual Perspective

The lease is a specialized form of contract. In Javins v. First National Realty Corporation
(1970, US Fed CA), Skelly Wright J.: When American city dwellers, both rich and poor,
seek shelter today, they seek a well known package of goods and services a
package which includes not merely walls and ceilings, but also adequate heat, light and
ventilation, serviceable plumbing facilities, secure windows and doors, proper sanitation
and proper maintenance.
The implication of a lease being a contract is that contractual principles will apply. In Tan
Soo Leng David v Lim Thian Chai Charles & Anor [1998, SGHC] at [28] opined that usual
contractual principles like repudiation and mitigation of damages can apply to a lease.

2.3 Tension between Contract and Property

Lord Browne-Wilkinson in Hammersmeith and Fulham LBC v. Monk (1992, ECA): In
certain cases a contract between two persons can, by itself, give rise to a property
interest in one of them. The contract between a landlord and a tenant is a classic
example. The contract of tenancy confers on the tenant a legal estate in the land: such
legal estate gives rise to rights and duties incapable of being founded in contract alone.
The classic tension is embodied in the fact tt when one grants a lease, there is both
Privity of Estate (proprietary) and Privity of Contract (contractual).

3. KINDS OF LEASES
Recall that one of the elements of a lease is that the term must be determinable. This does not
mean that the term must be fixed.
The paramount rule is that the end must be ascertainable from the beginning.

3.1 Fixed Term Lease

A fixed term lease is one where the maximum duration is fixed from the very
commencement of the lease eg. a lease for ten years.
o Locus classicus is Lace v. Chantler (1944) a lease was granted for the duration
of the [second world] war. Held invalid because at the time of the granting of the
lease, it was uncertain when the war will end.
o Lord Greene MR:
A term created by a leasehold tenancymust be expressed with
certaintyat the time when the lease takes effect.
o This came to be known as the CERTAINTY OF TERM rule.

The true justification for this rule is uncertain and in the 1980s, there appeared to be a
relaxation of this rule:

* Ashburn Anstalt v Arnold (1989, ECA)

Facts An agreement to grant rent-free occupancy for an indefinite period.
Agreement terminable on the giving of 3 months notice by the owner.
Decisio Held tt there was a valid lease.
n
Reasoni Court held tt there was no uncertainty bec. the tenancy could be
ng brought to an end by either party in circumstances which are free
 from uncertainty in the sense that there would be no doubt
whether the determining event had occurred.
The determination of the relationship had lain within the full control of
both parties, unlike the situation in Lace v. Chandler.

Q: Agreement only states how landlord was to quit, but how about tenant
quitting?
The ECA answered tt since the tenant had no rent obligation to fulfil,
quitting could be effected by the tenant simply walking out. (And if we
follow the reasoning, the landlord would know when the tenant has
walked out and the tenant has control over when he/she wants to walk
out).
Dicta The vice of uncertainty in relation to the duration of a term is that the
parties do not know where they stand. Put another way, the court does not
know what to enforce. That Is not the position here. at p.12
N.B. It is unclear whether this was a fixed term lease or periodic lease.
This case marked the high watermark of the liberal view to certainty of
term.

The liberal attitude came to an end in Prudential Assurance:

* Prudential Assurance Co Ltd v. London Residuary Body (1992, HL)

Facts L granted T a lease for a strip of land until the L needed it for road
widening purposes.
Rent was to be paid quarterly.
L transferred land to another government body (L2) that wasnt in
charge of road widening. L2 tried to terminate by giving six months
notice to quit.
Decisio Held tt there was no valid lease neither a fixed term nor a periodic lease.
n
Reasoni This could not be a fixed term lease because it was an attempt to grant
ng a lease of an uncertain term until the tenancy shall be determined
The fact tt the tenant had entered into possession + paid a fixed rent
on a six-monthly basis meant that it was meant to be a periodic yearly
tenancy which could be terminated on giving six-month notice.
However, the fact tt L can only take the land back if it is for road
widening purposes restricted his ability to quit the lease, hence
this lease was unenforceable.
o It is the essence of a tenancy from year to year that both the
landlord and tenant shall be entitled to give notice determining
the tenancy. Lord Templeman
The HL also reaffirmed Lace v. Chandler and effectively overruled
Ashburn.
Dicta The vice of uncertainty in relation to the duration of a term is that the
parties do not know where they stand. Put another way, the court does not
know what to enforce. That Is not the position here. at p.12
N.B. It is unclear whether this was a fixed term lease or periodic lease.
This case marked the high watermark of the liberal view to certainty of
term.

o Prudential was accepted and applied by SGHC in *Chiam Heng Luan v Chiam Heng
Hsien [2007].

Contract Proprietary Tension

The debate about whether the certainty of term rule once again reflects how a
lease is not entirely contractual in nature.
If a lease is really a contract, shouldnt we allow freedom of contract and let parties
 choose how they want to end it (eg. only when it is used for road development
might be a valid term)?
It is English laws preoccupation with crystallized edges when it come to
proprietary interests that drives this need to have certainty of term.

3.2 Periodic Leases

A periodic lease is one that exists from year to year or month to month.
It goes on indefinitely until it is terminated by either of the parties giving the requisite
notice to quit. (Mellows v. Low [1923])
1. A periodic lease may be expressly granted by the parties.
2. Alternatively, it is created by (i) the tenant entering into possession of the property
and (ii) paying rent at periodic intervals.
a. This could be the case when what the parties thought was a fixed term lease
was void but the above two conditions have nevertheless been satisfied.
b. Another instance could be when a tenant of fixed term holds over upon
expiration of his lease, and then pays a periodic rent (Adler v. Blackman
[1953]).

Is a periodic lease an exception to the certainty of term rule?

If we accept that the sine qua non of a lease (c.f. to freehold) is the certainty of
term rule, then the qn arises whether periodic leases are really leases?

In Re Midland Railway Cos Agreement [1971, ECA], it was held tt there was no way
to reconcile the certainty of term rule with the existence of periodic tenancies,
hence they were simply deemed an exception to the rule, but it was still a lease.
o [t]he simple statement of law that the maximum duration of a term must
be certainly known in advance of its taking effect cannot therefore have
direct reference to periodic tenancies per Russell LJ.
o The ECA ruled in favour of there being a lease, in order to hold the parties to
their bargain.
However, this blatant disregard for the certainty of term rule was overruled by the
HL in Prudential Assurance. Lord Templeman:
o I consider that the principle in Lace v. Chandlerthat a term must be
certain applies to all leases and tenancy agreements. The tenancy from
year to year is saved from being uncertain because each party has power by
notice to determine at the end of any year
o Hence, HL reaffirms that it can be a lease if and only if there is certainty of
term and periodic tenancies, provided they are created properly, can have
that certainty.
This view was similarly favoured by the SGHC in Chiam Heng Luan.

What is the appropriate notice period to give?

In Ko Teck Kin v Watkinson [1961, Msia], it was held tt in a monthly tenancy, a full
months notice to quit should be given.
In Prudential, HL held tt yearly tenancies require a half-year notice to quit.
And finally in Chiam Heng Luan, as rent was paid every quarterly, the longest period
the tenant had to give for notice to quit was a quarter.
Q: Hence are these periods fixed rules or do courts generally set the notice to quit as
the periodic time where rent is due (ie. 3 mths rent = 3 mths notice)?
- The rule is really that the notice period equals the periodic frequency tt rent is
paid. The only exception is the yearly lease that has a 6-month notice period.

If there is more than one tenant in a lease and notice is given by one tenant to quit, is it
valid?
This issue arose in Hammersmith LBC v. Monk, and Lord Bridge held tt where one
tenant gave notice, it would be effective to terminate the tenancy (even if the
other tenants disagreed).
 o The notice merely signifies tt the tenant is not willing to continue and so the
lease will end at the end of the period.
Hence, all parties in a joint periodic tenancy (whether joint tenants or landlords) must
agree to continue in it.
o This seems congruent with the view of HL in Prudential: The term continues
until determined as if both parties made a new agreement at the end of
each year for a new term for the ensuing year. A power for nobody to
determine or for one party only to be able to determine is inconsistent with
the concept of a term from year to year
Thus, it goes against the grain of periodic leases for one of the joint tenants to be
robbed of his right to determine the lease.

Getting around the restrictions on periodic tenancies:

The restrictions on periodic tenancies can be circumvented by crafting the lease
carefully:
o For eg. A lease for 99 years subject to be determined when Eng wins the world
cup is a valid fixed-term lease bec. the max period is set out clearly;
notwithstanding that it might end earlier than the max period (per Prudential
Assurance)

Can we ever rationalize periodic tenancies in light of the certainty of term rule?
o Prof Gray says they are notoriously difficult to reconcile. Notwithstanding the
intellectual difficulty to reconcile (even the attempted explanation in Prudential
Assurance is not entirely convincing), almost all lawyers have agreed that there is
not a doubt that periodic leases are tenancies.
Probably bec. its too entrenched to remove.

4. DIFFERENTIATING LEASES FROM LICENSES

The primary distinguishing factor btw a Lease and a mere License is the right of exclusive
possession.
o A mere licensee can be arbitrarily evicted and has no right to sub-let the premises.
However, the question of what constitutes exclusive possession has befuddled courts for
awhile.

4.1 Overall territorial control

For a time, there seemed to be confusion over the test to differentiate a tenant from a
licensee. The traditional view was exclusive possession, but Lord Denning in the following
case seemed to go for an intention-based test:

Marchant v. Charters (1977, ECA)

Facts T was an occupier in a furnished room of Ls home, part of which she let off as
bachelors service apartments.
There was a housekeeper who cleaned the rooms daily and provided clean linen
every week.
Issue was whether T was a licensee or tenant for the purpose of the Rent Act
1968.
Decision Held tt T was a licensee and not a true tenant.
Quotes It does not depend on whether he or she has exclusive possession or
not. It does not depend on whether the room is furnished or not. It does not
depend on whether the occupation is permanent or temporary. It does not
depend on the label which the parties put upon it. All these are factors which
may influence the decision but none of them is conclusive.
Eventually the answer depends on the nature and quality of the occupancy.
Was it intended that the occupier should have a stake in the room or did he
have only permission for himself personally to occupy the room

The weakness of this test is tt it in unclear when a T has a stake in the room and it
is rather artificial to discern the parties intentions ex post facto.
N.B. With the Rent Control Act (alr repealed in Sgp), it was impt to determine whether
 one was a licensee or tenant. Only the latter enjoyed the protection of the
legislation.

However, the HL later reaffirmed the traditional test of exclusive possession:

** Street v. Mountford (1985, HL)

Facts Not impt
Reasonin o HL considered Lord Dennings stake test in Marchant, but concluded that to
g see whether the occupier has or has not a stake in the room the court must
decide whether upon its true construction the agreement confers on the
occupier exclusive possession.
o If exclusive possession at a rent for a term does not constitute a tenancy then
the distinction between a contractual tenancy and a contractual licence of land
becomes wholly unidentifiable.
o Lord Templeman: My Lords, there is no doubt that the traditional distinction
between a tenancy and a licence of land lay in the grant of exclusive
possession.

o A rather intuitive test for exclusive possession is: A tenant armed with
exclusive possession can keep out strangers and keep out the landlord
unless the landlord is exercising limited rights reserved to him by the tenancy
agreement to enter and view and repair.

Analysis It seems then that intention of the parties is not irrelevant, but rather that intention
is to be discerned from an objective construction of the agreement.

This position was accepted in Singapore in Re Tan Tye (1966, Fed Ct of Sgp).
o It was held tt exclusive possession means the occupier must not be subject to the
micro-management of the grantor.
o In this case, the occupier operated an amusement park where the grantor had the
power to dismiss any employee and could supervise how the occupier kept
accounts and how long the lights must be kept on.
o Ct held tt there was no exclusive possession and occupier was a mere licensee.

4.2 Distinguishing Exclusive Occupation from Exclusive Possession

Someone who enjoys exclusive occupation of a premises does not necessarily gain
exclusive possession.
Street pointed out that in residential accommodation settings (like Marchant), the
occupier is a mere lodger if the landlord provides attendance services tt require
unrestricted access by his servants.
o In such a case, there is exclusive occupation, but not possession.
o A lodger is entitled to live in the premises but cannot call the place his own
818
Sometimes, the arrangement may be so personal in nature that while owner says you
can do as you please, he still retains residual possession:

Abbeyfield (Harpenden) Society Ltd v. Woods(1968, ECA)

Facts Mr Woods was a very frail old man who lived on home for elderly people
(Abbeyfield Home)
Each person had his own furnished room and services for a weekly
payment.
o The society providing services, meals, heating, lighting and a
resident housekeeper.
Mr Woods is a smoker and might incinerate the home because he
dropped cigarette as he fell asleep.
The Home advised the man but they eventually gave up and gave him
notice to quit.
Reasoni ECA held he was a licensee.
ng Even though agreement expressly stated he was to have exclusive
possession + used the word tenancy, upon a true construction it was
merely a license.
 (i) The home provided attendance services like servants and meals
etc.
(ii) Agreement contained this clause: "I hope you will understand
that in order to make the Abbeyfield House run properly, the
society must reserve the right to take possession of your
room should it at its discretion think fit. You will, however,
be given at least one month's notice of the society's desire
to take possession.
Lord Denning concluded that: The whole arrangement was so
personal in nature that the proper inference is, as the judge found,
that he was a licensee on the terms
Sometimes, the arrangement may be so personal in nature that while owner says you
can do as you please, he still retains residual possession:

4.3 Labels are not conclusive

Goh Gin Chye v. Peck Teck Kian Realty Pte Ltd [1987, SGCA]: in every case, the
intention must be sought not from the mere words of the agreement but from its
substance andconduct of the parties and the surrounding circumstancesand
not by the label they choose to put on the agreement per Thean J.

4.4 Parties cannot contract away their legal status

It is on a true construction of the agreement tt the court decides whether there is a
landlord-tenant relationship. Express declaration by the parties tt there is no such
relationship is irrelevant.
Q: Does this go against the freedom of contract?
No case highlights this better than Street:

* Street v. Mountford (1985, HL)

Facts Mrs M was granted room in a Mr Ss flat.
There was no question she had exclusive occupation and there was also
no attendance services provided by the landlord.
But at the end of the agreement, she countersigned a declaration that
said: I understand and accept that a license in the above form does not
and is not intended to give me a tenancy protected under the Rent Acts.
Reasoni HL, having concluded that she clearly had exclusive possession, held tt she
ng was a tenant notwithstanding the declaration.
Both parties enjoyed freedom to contract or not to contract and
exercised that freedom by contracting on the terms set forthBut the
consequencesonce concluded, can only be determined by
consideration of the effect of the agreement.

Antoniades v Villiers [1990, HL]: A cat does not become a dog because the parties have
agreed to call it a dog.

4.5 Identification of misleading terms

Courts will look at substance of agreement and whether terms were meant to be taken
seriously or whether they were included so as to mislead a court into thinking that it was
a license (in many cases so as to escape the protection afforded by the Rent Control Act).

* Antoniades v Villiers [1990, HL]

Facts V and his partner rented a small attic flat (with hardly room to swing a
cat) from A.
V and his girlfriend were each given a separate document, entitled a
license.
Other terms were also added, such as:
(i) As right to enter the flat together with any other strangers;
(ii) If V and lover got married they would have to leave the premises
 immediately (because it would seem to look very much like joint
tenancy).
Reasoni The court should be astute to detect and frustrate sham devices
ng and artificial transactions whose only object is to disguise the grant
of a tenancy and to evade the Rent Acts
A written agreement is a sham where it incorporates clauses by
which neither party intends to be bound and which is obviously a
smokescreen to cover the real intentions
In this case, (i) could not be taken seriously bec. the room was so small.

Aslan v Murphy (No 1) [1990]

Facts Occupier of a small flat on upper floors
Physical document was called a license agreement and signed by
occupier
The licensee was required to vacate the premise between 10.30am and
midday everyday, including his possessions
Clause inserted to prove there was no excl possession and occupation
Holding HELD not a license bec. it simply did not make sense.
In dictum, Ct considered the significance of landlord retaining the keys.
o But retention of keys does not destroy the assertion of exclusive
possession if L needs it in cases of emergency.
o But if keys used for provision of daily services then it is a license.

5. Other forms of tenancy

1. Tenancy at will
o L consents to T staying on his land and recognizes him as a tenant, except that
either party may determine the tenancy at any time.
o Although T has very limited interest in the land, he is to be distinguished from a
licensee for he still retains exclusive possession.
o In the past, a tenant in occupation for 13 years may extinguish the landlords
interest by adverse possession, but this has since been abolished by the
amendments to Land Titles Act 1993.

2. Tenancy at sufferance
o If a tenant holds over after his lease has expired without the acknowledgement of
the landlord, he is a tenant at sufferance.
o Usually T will end up getting a renewal.

3. Tenancy by estoppel
o In a case where L has actually no title to the land, but represented that he could
grant a lease, is estopped from denying that he had title.
o The estoppel usually arises when one party wants to deny his obligations under the
tenancy on the ground tt the landlord had no legal estate.
The reasoning is that it makes no diff to the T whether L has title or not. Due
consideration has been given (detriment) and T relied on L holding himself
out as being a landlord (reliance).
Hence, L is stopped from denying occupation to T.
o Accepted in Singapore in Methani v. Perianayagam (1961).

6. Formalities in creating a Lease

The assignment of a lease requires certain formalities both for registered and unregistered land.
The failure to adhere to these formalities may nevertheless give rise to a equitable lease,
provided certain conditions are met.


- LEGAL -
Under CLPA [s. 53(1)] Under LTA [ss. 46, 86, 87*]
Lease Deed in the English language Approved form of instrument of lease +
>7 registration.
years (Strictly only if lease exceeds 7 years.)
Lease Ideally to be deeded, but absence of Need not be registered.
< or = deed can still give legal recognition at (In fact, s. 87(2)(a) states tt the Registrar
7 years common law. shall not register a lease tt is under 7
years)
In effect, no formality is required for a lease < 7 years. If A orally grants a lease (not
promise to grant, but actually grant) to B, it is considered valid at law.
- EQUITY (* Walsh v. Lonsdale [1881]) -
Justification
Equity looks beyond the outer form and to the inner substance of the agreement.
Since leases are generally specifically enforceable, equity looks as done that which
ought to be done.
Conditions
1. Lease must be specifically enforceable
[In a case where there is a contact to lease, s. 6(d) of Civil Law Act must be
satisfied]
2. Consideration (equity will not assist a volunteer)
3. Must come with clean hands
(Note that these formalities are largely for fixed-term leases. A periodic tenancy can be created
at law simply by possession + periodic payment of rent).

Expanding on the Walsh v. Lonsdale principle what does specifically enforceable mean?

* Golden Village Multiplex Pte Ltd v. Marina Holdings Pte Ltd [2002, SGCA]
Facts L and T entered into an agreement to lease several levels of a building for 15
years. At its inception, T agreed that there was no necessity to execute a
registered lease.
T then turned on its word 4 years later, requesting for a registered lease.
Lease could not be registered bec. the subdivision breached planning
regulations.

Issue Must the agreement be specifically enforceable for courts to grant an equitable
lease?
Reasoni HELD tt specific performance need not necessarily be available before courts can
ng grant a lease in equity.
While the basis for equitys intervention is bec. the agreement ought to be
specifically enforceable, the absence of this remedy being available does not
restrain a court from intervening.
Thean JA. held tt once a court is satisfied that the agreement is enforceable in
equity, other remedies like restrictive and mandatory injunctions may be
granted to ensure parties abide by terms in the agreement.
The understanding of specific performance should not be so narrow instead
it includes the power to grant necessary injunctions to protect rights of the
parties.
Quare - Does that mean the parties could disregard the planning controls?
No, its just tt the courts werent concerned with it. The parties may be
liable to be punished by the planning authorities, but that was not the
courts job in this case.
- Is specific performance the remedy or the precondition before a court is
convinced tt a lease in equity ought be granted?
Specific perf is the pre-condition to invoke the equitable jurisdiction in
Walsh v. Lonsdale.
Spec perf is also one of a number of remedies available to a court in
 such cases.

Is email valid for the purposes for s. 6(d) of Civil Law Act?
o Considering tt courts have rather wide discretion in equity to enforce a lease, the only
real pre-condition is that s. 6(d) of Civil Law Act is satisfied.
o In SM Integrated Transware Pte Ltd v. Schenker Singapore (Pte) Ltd (2005, SGHC),
Prakash J. held tt an email correspondence constituted a memorandum of contract in
writing and the inscription of the senders name next to the mail address was held to
satisfy the signature requirement.

Is there any practical difference btw getting an equitable lease and a lease at law?
o With equitable leases, some contend tt an agreement to lease is now as good as a
lease.
o However, an equitable lease differs in a no. of ways:
(i) No Privity of Estate (bec. this is a common law doctrine)

Even if legal formalities not complied with, if T occupies and pays monthly rent, doesnt he
have a legal periodic tenancy nonetheless?
This was exactly the situation in Walsh v. Lonsdale.
The Court held that there are not two estatesone at common law by reason of the
payment of the rent from year to year, and an estate in equity under the agreement.
There is only one Court, and the equity rules prevail in it.
o Hence, in this case the courts will look at the equitable fixed term lease first.
o Supposing the conditions for spec perf are lacking and there can be no equitable
lease then will courts imply a legal periodic lease.
But equitable lease always better than periodic, albeit legal, lease bec. the
periodic lease can be easily terminated by L serving notice.
(Equity trumps bec. it looks at the inner substance the true intention of the
agreement).

The part performance doctrine

o Under the doctrine, equity will allow a valid oral contract to be enforced by the party
who has partly performed the contract.

This doctrine was challenged in Joseph Mathew and Another v Singh Chiranjeev &
Anr [2010, SGCA] on two grounds:
Challen i. Firstly, that the enactment of s.6(d) to expressly require writing was
ge meant to abolish the doctrine of part performance.
ii. Secondly, the failure to re-enact a local variant of s. 40(2) of the UKs
Law of Property Act 1925 (which expressly retains the doctrine of part
performance) shows Parliaments intent to be rid of it.
Reasoni HELD tt the doctrine of part perf was very much alive in Singapore.
ng The first arg does not stand bec. the doctrine of part perf has its roots in
equity and was meant to prevent the very rule in 6(d) to be used to
perpetuate fraud. Hence, it was meant to be an exception to the rule.
As for (ii), s. 40(2) was merely declaratory in nature as a restatement of
the long-standing doctrine in the common law. Hence, its absence or
presence per se does not connote its applicability.
What counts as part perf?
Payment of money can go toward showing part performance, but the mere
payment of money per se does not, on its own, constitute part performance.
Must look at surrounding circumstances.
o In this case, it was acceptable bec. there was certainty as to what
that money was for, with the 3Ps of a deal clearly identified: Person,
Property, Price.
Note Part performance must be specifically pleaded (hence it was disallowed in
SM Integrated.
Note tt the ratio in this case was actually tt s. 6(d) was satisfied, hence
 technically no reason for doctrine of part performance to operate.)

7. What can a Lessee do with a lease?

1. Assignment / Transfer
Suppose L ---grants a lease of 20 years T1 (aft 5 years)-- transfers it T2 (has a lease for
15 years)
When T1 assigns his lease, he assigns away his entire interest, such that he retains nothing.

Leases usually contain a clause tt T1 is not allowed to assign the lease without the consent
of L.
But if T1 breaches that covenant and transfers it nonetheless, the assignment is still
considered good (Old Grovebury Manor Farm v. Seymour [1979] 3 All ER 504).
o But T2 has a very vulnerable title, bec. it is entitled to be forfeited by L.

2. Sub-lease
The main diff with subleases is that the sublessor necessarily retains a reversion on the
estate.
o A sublessor can seblet for whatever duration so long as it is shorter than his lease.
Eg. T1 has a lease for 10 years, he can sublet it for 9 years, 11 months.
Unlike in an assignment, a sublessor is both a tenant (in the original grant) and landlord of
the sublesse.
Can a tenant of a periodic lease sublet his lease?
o Yes; a month-to-month tenant may sublet for fixed period (eg. 5 years) or for a
periodic tenancy of the same period (ie. month-to-month).
o The theory is tt a periodic tenancy can exist for however long until the appropriate
notice to quit is served.
Hence, even if the sublease is for 50 years, there is a chance that the original
periodic lease might outlast it.

The importance of drawing the distinction

Only an assignment is subject to the Privity of Estate so the assignee will be
bound by the covenants (which are touching and concerning land) in the head lease.
In a sublease, a sublessee will not be bound by covenants in the head lease.

8. Leasehold covenants and successors in title

Many a time, leases are granted for a really long period of time and they may be assigned
numerous times down the road.
L1 L2 L3
If Tn breaches a
covenant, how
Head can L3 sue for
lease enforcement?

T1 T2 T3 Tn

Supposing Tn breached the covenant, who can sue?

o L1 can definitely sue T1 because there is Privity of Contract between them.
o But if T1 is untraceable, then L1 cannot sue T n.
o Furthermore, if landlord has changed to L3, L3 can sue neither T1 nor T n.
8.1 Privity of Estate
Hence, from very early on, the common law came up with the solution in the form of
Privity of Estate.
Spencers case (1583) is a locus classicus and invents this doctrine of Privity of
Estate and says that as long as the estate changes hands the current Landlord and
current Tenant enjoy privity of estate.
o The rights have been described as passing from one to another like a bird on
a wagon.
o Privity of Estate does not apply if T sublets to S.
T1 and T2 will enjoy Privity of Estate btw them and L1 and L2 will
nejoy Privity of Estate. But L2 cannot sue T2.

1. First condition is that the title must be legal in nature. Hence, privity of estate does
not exist for equitable titles.
o However in Boyer v. Warbey (1953, ECA), Denning LJ. said that the assignee of
an equitable lease should also be bound because of the fusion of law and
equity.
But this opinion has not gained wide acceptance and is unlikely to be
accepted by Singapore courts, which prefer more orthodox doctrines.
2. Second condition is that the covenant must be one that touch and concern the
land (City of London Corpn v. Fell [1993, HL]).

Analysing ss. 10, 11 of CLPA

o Applies only to covenants that are having reference to the subject-matter, but that
is co-terminus with touching and concerning land.
L1 ---------------- sells the fee simple L2
|
|
| (a) equitable lease (i) Can L2
(ii) Can T2 sue L2?
| sue T2?
|
V
T1 --------------------- assigns T2 (now has an equitable lease)

Under Privity of Estate at common-law, L2 or T2 could only sue if L1 had granted a legal
lease to T1.
o But s.10, CLPA applies to both types of leases (s.2, CLPA defines lease as both types)
All lessee covenants in (a) are absorbed and pass from L1 to L2
o Bec. of use of language to run with reversion (reversion refers to the fee simple less
the head lease)
o Hence, (i) is possible.
All lessor covenants in (a) are absorbed and imposed upon L2; but T2 can only sue upon
them if T2 has a legal lease.
o (bec. s.11 says enforced by the person in whom the term is from time to time vested
by conveyance, devolution in law, or otherwise)
o Here, T2 can only have an equitable lease bec. T1s lease was in equity. An equitable
lease cannot create a legal lease down the line.
o So (ii) is not possible.

Suppose then that L1 does not register the sale and T2 has no notice tt L1 has sold the fee
simple.
o Suppose further that instead of a equitable lease, T1 and T2 both have a legal lease.
 o In that case, will not T2 be a bona fide purchaser of a legal estate without notice (ie.
Equitys darling)?
Then, would T2 not be bound to L2 bec. privity of estate and s.10, 11 of CLPA both
dont apply?

8.2 Covenants touching and concerning land

What then are those covenants that are touching and concerning land?
o Courts have not been entirely clear. The following have been held to be:
I. Covenant to repair the premises
II. Covenant relating to user
III. Covenant to pay rent
o The following have been deemed not to touch and concern land:
I. Covenant to pay a 3rd P a sum of $
II. Option to purchase the freehold estate
One case tt has attempted to lay down a test is Rogers v. Hosegood [1900]:
[T]he covenant must either affect that land as regards mode of occupation; or it
must be such as per se, and not merely from collateral circumstances affect the
value of the land.
How to apply this test?

Kumar v. Dunning [1989, ECA]

Facts Lease with a covenant by a 3rd P surety would guarantee the
performance of the tenants obligations.
Decisio HELD tt the covenant of the surety was one that touched and concerned
n land
Reasoni Although earlier authorities was of the view that sure a covenant was a
ng mere collateral covenant, ECA begged to differ. Two-part test:
i. Is the covenant beneficial to the owner for the time being of the
covanantees land and, and to no one else?
ii. A covenant to pay a sum of money can be one touching and
concerning the land, provided the existence of the covenant
affects the value of the land in whomsoever it is vested for the
time being.

** Swift Investments v. CESG plc [1988, HL]

Facts Similar covenant as in Kumar.
Decision HELD tt the covenant of the surety was one that touched and concerned
land
Reasonin Lord Oliver laid down his own satisfactory working test:
g 1) Covenant must only benefit the owner of the relevant estate for the
time being, such that if separated from the estate, it ceases to be of
benefit to the covenantee.
2) Covenant must affect the nature, quality, mode of user or value of
the land.
3) Covenant must not be expressed to be personal (ie. must not have
been given only to a specific estate owner or refer to the obligations
of a specific tenant).
Although not meant to be an exhaustive test, this has been followed in
many cases.
o Coronation St Ltd v. Ingall Industries plc [1989, HL] The
Facts Surety to take up tenancy should the tenant disclaim the tenancy in the TheThe
event of him becoming a bankrupt. case
Decisio HELD tt the covenant of the surety was one that touched and concerned that
n land has
Reasoni General rule was tt an option in a lease to give a new lease is not one tt caused
ng touches and concerns land. the
However, such a covenant may actually be inextricably bound most
to the covenant to pay rent and therefore ran with the land.
confusion is actually Hua Chiao:

* Hua Chiao Commercial Bank v Chiaphua Industries Ltd [1987, PC on appeal from
HK]
Facts T had to pay a security deposit to L for any future damage (quite common).
L covenanted that he will hand back the deposit if there is no wrongdoing
by T.
But at the end of tenancy, L1 had already assigned the reversion of his
estate to L2. T went to L2 wanting his deposit $ back.
Decision HELD tt the covenant of the surety was NOT one tt touched and concerned
land.
Reasoni Such money payments are merely collateral to the lease and hence
ng created only rights in personam btw T1 and L1.
While the deposit provided security for the due performance of T1s
obligations during the term, not every covenant which is related, however
obliquely, to some other obligation which touches and concerns the land
necessarily takes on from that very relationship, the same character as
regards transmissibility to or against successors in title.
The PC was of the view that it was more realistic to view the obligation
to return the deposit as undertaken by the landlord qua payee rather than
qua landlord.
Analysis Gray: While it is true that T1 had no higher economic interest in the return
of his money than any person not a party to the lease, the decision seems
to run against normal expectations of transmissible benefit and burden.
o He acknowledges tt the L2 did not receive the deposit and it would
be an undue loss for him, but Gray rationalises tt L2 took the risk of
hidden obligations when he bought the land.

o Strangely, Thean J in United Malayan Banking Corp v. Goodhope Realty (1989, SGHC)
applied and accepted Hua Chiao.
But this problem may be averted if the head lease contained a term tt the
deposit must pass from the landlord to his assignee and for the tenants right
to repayment to pass to his assignee as well. (Moss Empires Ltd v. Olympia
(Liverpool) Ltd).

8.2.1 What if covenants are not touching and concerning land?

L1 ---------------- sells the fee simple L2
|
|
| covenants (i) Can L2
(ii) Can T2 sue L2?
| sue T2?
|
V
T1 --------------------- assigns T2
o Some of the problem may be overcome by express stipulation btw the
parties, bec. of the CRTPA.
Supposing L1 makes L2 promise to uphold all the covenants and L2
breaches. Can (ii) happen?
 Yes, bec. the contract btw L1 and L2 purports to confer a benefit
upon T2.
o Provided T2 is named or identified as a member of a
class
Supposing T1 makes T2 promise to uphold all the covenants and T2
breaches. (i) can succeed bec. the contract btw T1 and T2 purports to
confer a benefit upon L2. (provided L2 is named)
The only worry tt L2 and T2 may have is that L1 and T1 do not make
their respective successors in line promise to uphold the respective
covenants.
The prob can be overcome if T1 and L1 both promised that they
will make their successors in line promise to uphold the
covenants.
o T2/ L2 can directly sue on this promise-to-make-your-
successors-promise bec. it confers a benefit on them.

8.2.2 Generally, what is the effect of a lease on subsequent landlords?

Recall that if lease < 7 years, there is generally no need for formalities.
o T1 is protected by statute (s.46(1)(c)(vi) of LTA) tt states tt a purchaser
cannot evict someone who has a tenancy of a fixed-term not exceeding 7
years.
If a lease is > 7 years and it has been registered, then clearly L2 has actual
notice and must respect the lease.
o Supposing for some reason the lease > 7 years was not registered, but T1
lodged a caveat in the Register, L2 is also taken to have actual notice and
must respect the lease.

9. Remedies for Breach of Covenant

In the event of any party breaching a covenant (any covenant, including a promise to pay rent),
either party can sue for damages or an injunction just like any contract.
But on top of that, in a landlord-tenant relationship, there are other additional remedies:

9.1 Distress (for L only; for arrears of rent only)

Only available to the landlord and it originally was a self-help remedy allowing him to
step into the premises and seize goods to be sold to repay the arrears.
Today it is entirely governed by Distress Act (Cap 84):

s. No one can exercise the right of Distress, except in accordance with this Act.
4
s.5 - Lmakes application to a judge (HC or DC) or registrar
- Obtains a writ of distress
- Provided the arrears of rent does not exceed 12 months.
s.6 - If the landlord has a co-owner, any one of the co-owners may apply for the writ.
- But the registrar may require proof of consent by the other party
s.7 - Sheriff will then enter the premises and seize any movable property so as to
satisfy the rent owed + Sheriffs fees
s.8 Items exempt from seizure
Things that are being used and in the actual hands of a person
Stuff used in the ordinary course of the persons trade
Ts clothing + bedding and tt of his family
Goods belonging to guests at an inn
s.1 Application for discharge
0 If a good has been wrongly seized, owner may make application to judge for
release of the goods
o Provided the applicant is not a tenant of the property and not has no
beneficial interest in the tenancy
o And provided the applicant satisfies the court that the tenant in arrears
does not have any property or beneficial interest in the good seized
 But if the applicant is an under-tenant or lodger (T2), the goods will only be
released if he pays L or the Court any rent that he happens to owe T.

s.1 Exceptions to s.10

2 One of the exceptions is tt the Sheriff is entitled to seize any good that T
appears to be the reputed owner of.

Plaza Singapura (Pte) Ltd v. Cosdel S (Pte) Ltd [1990, SGCA] HELD tt
burden of proof is on the party alleged to be the reputed owner of the good.

9.2 Forfeiture (for L only; all covenants)

This is a powerful remedy available to the landlord. It allows him to re-enter the premises
and forfeit the entire lease, as if it never happened.
Conditions to complete forfeiture:
i. L must prove that Ts breach is one tt entitles him to forfeit
ii. L must satisfy all the statutory requirements governing forfeiture (s. 18, CLPA)
iii. L must not waive his right to forfeiture
iv. L must actually enter the premises or serve T a writ of possession.
v. (After L has done all of the above, T can still apply to courts for relief from
forfeiture.)

9.2.1 What sort of breaches entitle L to forfeit?

1. Breach of covenant for payment of rent does entitle one to forfeit if that covenant
has been cast as a condition of the lease.
o Abolition of the requirement of formal demand in most tenancy
agreements and also in s. 93(1)(d)(i), LTA.
2. Similarly, breach of a covenant not to assign or sublet does entitle one to
forfeiture supposing L has cast it as a condition or reserved the right to do so.
o Recall, that such an assignment in breach of a covenant is still valid;
however, bec. the L is usually entitled to forfeit the head lease, the
assigned or sublet lease is vulnerable.
3. Other covenants
- If covenant is not cast as a condition or expressly entitle L to forfeit,
forfeiture is still available by way of s. 93(1)(d), LTA.
- It is an implied term of every lease that the following entitles L to
forfeiture:
a. If there is arrears of rents of 30 days; or
b. Continuing breach of ANY covenant for 30 days.
- What happens if covenant is not capable of being breached continually?
Eg. covenant not to sub-let. (Then an exception is carved out in s.18(8) of
CLPA but what does section does not apply mean??)

9.2.2 What must L do before he actually re-enters the premises?

S. 18 of CLPA:
i. L must serve on T a notice specifying the breach;
ii. If breach can be remedied, L must demand remedy; and
iii. And if remedy involves money compensation, to demand such
compensation.
If after a reasonable time, the T does not do any of the above, L now has right to
execute forfeiture.

9.2.3 Waiver of right to forfeit

If L has waived his right to forfeit through an unequivocal act, he cannot turn around
and forfeit later.
o Analogous with the right of termination of contract once you waive, you are
electing to keep the contract as continuing and cannot turn around
unless a new breach arises.
The general rule is that acceptance of rent is regarded as an unequivocal act
constituting an act of waiver.
 o But the rent must be accepted after L is aware of the breach (Expert Clothing
Service and Sales Ltd v. Hillgate House Ltd [1986, ECA]).
o However, not all acceptance of rent is deemed as waiver (issue considered in
detail in the following case:

* Protaz Co-operative Society v. Toh Teng Seng [2001, SGHC]

Facts T was in arrears of rent for Nov.
After grace period elapsed, L served letters of demand.
A week later, L filed a writ of possession in court.
Then, before the writ could be served, T deposited $ for Nov arrears
(and this mode of acceptance of rent is the mutually-agreed
method).
$ only paid for Nov arrears of one out of two shop units.
L exercised peaceable re-entry to possess shop units T applied to
Court for relief relief granted L returned keys to T.
T sued L for trespass, claiming tt L had not validly exercised
forfeiture.
Decisio HELD tt when L exercised peaceable re-entry, it was within his right and
n no trespass occurred.
Reasoni Q: Exactly when does L waive his right to forfeit?
ng (1) T in breach for failing to pay rent for Month I
(2) L sends notice of breach to T, seeking compliance.
(3) (Usually T fails to comply) L will file a writ of possession.
(4) (Say for instance, rent for Month II accrues here)
(5) L serves the writ of possession OR personally re-enters premises.

What is clear is that once writ of possession is served (5),

acceptance of rent is not affirmation. (Similar to contract, once it is
terminated, no action can revive the contract).
Next principle is that if L only accepts rent tt accrues for Month I, he
does not waive right to forfeit.
o However, if rent that accrues due after the first breach is
accepted (ie. (4)), L is affirming the contract.

In the present case 2 grounds for decision:

(i) Ts payment of rent came after writ was filed; Ct held that there is no
locus poenitentiae btw (3) and (5)
(ii) T only paid over rent tt accrued before discovery of breach, hence
Ls acceptance is not waiver.
In dicta Ct clarified what is the diff btw a once-and-for-all breach and a
continuing breach:
If an obligation is to perform an act by a given time, once that time
has elapsed and the act has not been performed, there is a breach
of a single obligation and not of a continuing one [34]

9.2.4 What sort of breaches are remediable?

o Per s.18 of CLPA, L must demand for appropriate remedy if possible, before
threatening re-entry.
o Similarly, when courts consider granting relief against forfeiture, if the breach is
remediable, the courts will grant relief and order the remedy instead.
In equity, the right of forfeiture is a form of security, to ensure observance of
covenants. If the covenant is capable of being observed, then forfeiture is not
necessary in that case.
The forfeiture and the relief are founded upon this:the parties covenant for
their own security; therefore the breach works a forfeiture; but if the party
can be restored to the same situation, the right to relief arises.
(Saunders v. Pope [1806])
 the right of courts of equity in appropriate and limited cases to relieve
against forfeiture for breach of covenant where the primary object of the
bargain is to secure a stated result which ca effectively be attained when
the matter comes before the court (Shiloh Spinners v. Harding [1973, HL])
o Generally, covenants of a positive nature (ie. promise to do something) are
capable of remedy (eg. covenant to repair and keep premises clean. Notwithstanding
the delay, courts have held tt if T agrees to start repairing and cleaning, it remedies
the breach).

What is more tricky is breach of negative covenants.

In the case of Rugby School v. Tannahill (1934), ECA considered tt it was
conceptually possible tt a negative covenant and once-and-for-all breach be
remediable.
o IN that case, there was a covenant not to use premises for immoral
purposes and T opened a brothel. ECA held that while not all negative
covenants are irremediable, in this case the breach was irremediable bec.
the whole neighbourhood knew about it and the value of property dropped.
In Scala House Ltd v. Forbes (1974), ECA held that breach of a covenant not to
assign was a once-and-for-all breach that is incapable of remedy.
o This case cannot be direct authority in Singapore bec. s.18(8) of CLPA
exempts breaches of that nature from the operation of s.18.
The ECA in * Expert Clothing Service and Sales Ltd v. Hillgate House Ltd
[1986] held that the question is not whether the breach is positive or negative,
once-and-for-all or continuing; but whether the Ts compliance with covenant
coupled with appropriate money compensation would be sufficient to remedy the
damage caused by the breach.
o Ct also suggested that while most positive covenants were capable of
remedy, there were some that could not (an eg. being beach of a covenant
to insure the premises).
In Akici v. LR Butlin Ltd [1988, ECA], the ECA went further to opine that the
question of whether or not a breach is capable of remedy should be practical
rather than technical.
o This suggests that even some once-and-for-all breaches may be
remediable. But the applicability of this case in Sgp is limited bec. s.18(8)
of CLPA expressly exempts certain types of covenant from being deemed
remediable.

9.2.5 How much time does T have to seek relief against forfeiture?
Statutes governing relief:
o S. 18(2), CLPA: All covenants, except arrears in rent.
o S. 18A, CPA: Breach of covenant to pay rent.
If within a reasonable time after the writ is served on him the T pays over the
rent plus costs, then forfeiture is stayed.
If he fails to do so, he has one last chance if he pays up within four weeks that
court order for forfeiture is made.
If he still fails, then s. 18A(7) kicks in and T shall be barred from all relief.

o Can a T seek relief after the L has re-entered and possessed the premises?

* Billson v. Residential Apartments Ltd [1992, HL]

T breached a covenant not to alter the premises (and ironically, the alterations
had incr. the value of the premises).
The L organized a dawn raid, broke in, regained possession.
T then went to court seeking relief.
L argued that wording of (their equivalent of) s.18(2) CLPA said: Where a
lessor is proceeding, by action or otherwise to enforce such a right of re-
entry and this means tt right to relief only arises when L is proceeding to
forfeit. Since re-entry had been effected, forfeiture was no longer proceeding,
but has already proceeded.
 HELD tt T still had right of relief; but decided in this case that T did not deserve
such relief.
HL interpreted proceeding as including when a L has already proceeded to
effect forfeiture. Hence, re-entry does not bar relief.
HL then summed up the points in time that a T may apply for relief:
i. After notice of breach has been served, the T may pre-empt forfeiture
by applying to the courts.
ii. If L effects re-entry on his own instead of getting a court order, T is still
entitled to relief.
iii. However, if L has obtained an order of court to forfeit, then right of
relief is no longer available.

To re-cap, there are two ways a T can get relief:

(1) Argue tt Ls notice is invalid bec. it did not seek a remedy when the breach was
remediable.
(2) Go to court and apply under s.18(2) for relief.

9.3 Equitable Set off (Ts remedy)

If a L is in breach of covenant (eg. to repair), T can do it himself and seek recoupment
from future rent.
Where a T is sued for arrears of rent, but the L is also in breach (for eg. for failing to
repair premises), T can set-off against the arrears the sum for doing the repairs (as
happened in Batshita International Pte Ltd v. Lim Eng Hock Peter [1997, SGCA].
o SGCA also noted tt while parties may expressly exclude this remedy in their
contract, but if a contract is silent, it is insufficient to exclude this remedy.
But it is important to note that Ls failure to repair does not excuse Ts failure to pay
the rent.
o They may both plead an equitable set off against each other, but neither
partys breach should be taken as excusing the others breach.

10. Determination of Leases 4 common methods

10.1 Effluxion of time
A lease for fixed term is automatically over at the expiry of that term.
In the case of registered land, s.92 requires tt a notification be entered in the
land register where the lease has been determined.

10.2 Notice to quit

In most fixed-term leases, there would be a provision tt grants either party the right to
quit the lease by serving the appropriate notice to quit (and usually subject to the
attendant penalties).
In the case of periodic tenancies, the appropriate notice period is the duration of the
period.

10.3 Surrender
A tenant may also surrender his term and so end the lease, usually by paying a premium
to the landlord.
This has the effect of absorbing the lease in the reversion.
This procedure of surrender differs from serving notice in two important ways:
a. The L has a right to choose whether to accept the surrender.
b. Notice can be unilateral but in surrender, both parties must agree that the lease
be surrendered.
Hence, Ts unilateral abandonment of the premises does not amount to surrender.

Express or implied
 Surrender can be express or implied. An express surrender must be by deed in the
English language and signed (s.53, CLPA) and in the case of registered land, the deed is
to be registered.
Alternatively, surrender may be implied if both parties behave in a way inconsistent with
the continuance of the lease.
At law, the granting of a new lease by the L necessarily means that T has surrendered
the present lease.

What happens to subleases when a T surrenders the head lease?

Since surrender mergers the head lease with the reversion of the L, the head lease no
longer exists.
o However, the subtenant can still subsist because it is a general principle of law
that a person cannot be adversely affected by an agreement to which he is not a
party.
But the effect of this fusion of interests is that the sublease survives but without any of
the benefits or obligations.
o Unlike UK, Sgp does not have any statutory regime to correct this.
o TAN SOOK YEE suggests tt it may be up to the courts, perhaps by implying a
tenancy btw L and T2 if T2 is paying periodic rent.

10.4 Merger
This is the converse of surrender the L assigns his reversion to the lesse. The net effect
is still that the reversion merges with the lease.
Thus when a 3rd P buys over both the lease and the reversion, there is merger.
At law, prima facie there is a merger when a sole party has both the lease and reversion.
However, the equitable rule prevails and states tt merger only takes place when it was
intended by the party who acquired both interests.
o Hence, s. 67 LTA states tt where registration of a lease and reversion are in the
same proprietor, any merger must first be evidenced by a surrender of the lease.

10.5 Holding over

When after a tenancy is determined and the tenant remains on the property, he is said to
hold over. This can have two effects:
i. Holding over with Ls consent and if T pays a periodic rent, courts will presume a
new periodic tenancy.
ii. Holding over without Ls consent s.28(4) Civil Law Act penalizes the T by
subjecting him to paying double rent or value.
The effect of s. 28(4) can be quite harsh and before courts order it, they must first
determine if the T is truly holding over.

* Lee Wah Bank Ltd v. Afro-Asia Shipping Co (Pte) Ltd (1992, SGCA)
Fixed term lease had expired but T remained on the premises for the purpose
of effecting repairs to the premises as required by the terms of the lease.
T had also handed the keys over to Ls representatives at the end of the term.
HELD tt T was not holding over and should not be subject to the penalties under s.
28(4).
Yong CJ. considered that the test of whether a T is truly holding over is the
degree of possession and control over the premises so as to exclude
the L.
In this case, there was no evidence of this since keys were returned and in
fact, T was only on the premises solely on request of L.

10.6 Contractual methods of discharge

10.6.1 Frustration
The doctrine of frustration allows a contract to be discharged if the performance of it
would render it a thing radically different from that which was undertaken.
 However, traditionally, land law did not allow frustration to operate because of the
permanence of land even if the premises are destroyed.
o But this argument has lost considerable force in light of the urban landscape
where land includes defined airspace (which does disappear if the premises
are destroyed).
National Carriers Ltd v. Panalpina (Northern) Ltd [1981, HL]
o There was a 10 y lease granted by L to T. Unknown to the parties, the local
authority closed off the road outside the commercial premises for 2 years and
suffered a terrible hit in customer traffic
o HL held tt frustration can strike down a lease, but not in this case.
o The change was not so severe as to bringing the lease to an end bec. T could
still use it for 3 years after road works.

10.6.2 Repudiation
Where a party commits a repudiatory breach, the innocent party may choose to
accept the repudiation, terminate the contract and then sue for damages.
With the gradual acceptance of this doctrine in the area of leases, ,repudiation is
starting to look a lot like Forfeiture, with perhaps a few notable differences:
i. The scope of damages for repudiation may be larger than that for forfeiture
(see below)
ii. There is no statutory regime governing the serving of notice etc. for
repudiation
iii. Innocent party is only allowed to terminate for serious breaches tt are deemed
repudiatory.
iv. Repudiation is still a doctrine in its infancy stages in the eye of land law.

* Tan Soo eng David v. Lim Thian Chai Charles & Anr (1998, SGHC)
T wanted to terminate his lease soon after commencement, hence he returned
the keys to L by way of surrender. L accepted for keys to use it to allow for
viewing by potential new tenants.
After a year, L managed to find new tenants but sued T for the rent until the
premises could be let out.
T agued tt surrender had been accepted and lease had ended before that.
HELD tt T was not holding over and should not be subject to the penalties under s.
28(4).
Court held that contractual doctrine of repudiation can apply to a lease.
However, he opined tt it many not apply to all leases.
Khoo J. seemed to think tt it should be confined to short-term leases tt look
more like contract.
o It is particularly appropriate in the case of a lease in which the
element of a purchase of an interest in land is not significant or non-
existent. at 930
In this case, Khoo J. found tt T had sent a letter with language that showed T
wanted to repudiate the tenancy. And L had accepted that repudiation and
terminated the tenancy.
Duty to mitigate
Court held tt since the concept of termination can apply, so the innocent party
has a duty to mitigate losses.
o Altho the L took 1 year to find a new tenant, the duty to mitigate was
discharged bec. the premises was for a very specialised medical
purpose and finding a new tenant for that is not easy.
Some academics have questioned what qualifies as short term lease and
which is a long term lease.
First Difficulty: What is an act of repudiation?
Courts have held tt a mere failure to pay rent is not a repudiatory act; but rather a
persistent refusal to ever pay rent may be deemed so.
As per the usual contractual doctrines, not all breaches entitle the innocent party
to terminate.
 Second Difficulty: Duty to mitigate.
While Khoo J. in Tan Soo Leng assumed that the duty to mitigate applies,
authorities in England are not as clear (it was questioned in Reichman v.
Beveridge [2007]).
The more important question is whether the duty to mitigate extends to
the L being compelled to accept the repudiation.
o Tan Soo Leng seems to hint tt a L may have to accept termination.
Khoo J. opined that a L who wants to wait for rent to accrue each
time and take out legal action was a wasteful option for the
individuals concerned and for society.
o However in Reichman, Lloyd LJ held tt a landlord is entitled to insist
on the lease subsisting unless he was acting wholly unreasonably in
failing to take steps to find a new tenant.
o He even opined tt it may be the tenants responsibility to propose a
new tenant.

o Lastly, note tt termination for repudiation is available to the T as well, as

happened in Hussein v. Mehlman [1992], where the L was in breach for
persistently failing to repair the premises.