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LEASES OF IMMOVABLE PROPERTY

Transfer Of Property Act

By Shivraj Singh Roll No.-098 Div-B

LEASE

Sections-(105-117 of TOPA) Definition-Transfer of right to enjoy an immovable property for certain time and rent. Person who transfers the right- lessor Person whom right is transferred- lessee

LEASE defined inTOPA

Section 105 of TOPA defines lease as-

A lease of immoveable property is a transfer of a right to enjoy such property, made for a certain time, express or implied, or in perpetuity, in consideration of a price paid or promised, or of money, a share of crops, service or any other thing of value, to be rendered periodically or on specified occasions to the transferor by the transferee, who accepts the transfer on such terms. Lessor, lessee, premium and rent defined.- The transferor is called the lessor, the transferee is called the lessee, the price is called the premium, and the money, share, service or other thing to be so rendered is called the rent.

SALE & LEASE

SALE- All rights of ownership, which transferor has transfers to transferee. Valid for minor. LEASE- Partial transfer,that is transfer of right of enjoyment for certain time.Void for minor.

Essential Elements of LEASE

Parties; Subject matter of immovable property; Duration; Consideration. Parties- lessor and lessee must be competent to contract. There must be contract between the parties,express or implied,in consideration of either premium, rent or both.

Lease to a minor is void,as lease imports a binding agreement,to pay rent & to perform various conditions. Subject matter- subject matter must be immovable property. immovable also includes any benefit out of land such as fisheries,ferries,market dues. Duration- lease must be for a certain time or in perpetuity. It may commence on present day,future date,happening of some event.

Sec.110 enacts if no commencement day stated,lease begins from date of execution. Both time of beginning and ending date must be fixed. Consideration- Either premium or rent. Premium is price paid or promised to be paid in a lump sum. Rent is a periodical payment. Rent can also be delivery of share of crops or rendering of services etc.

Difference between Rent and PremiumWhen the interest of lessor is parted with for a price the price paid is called premium or salami. The periodical payments made for continuous enjoyment of benefits under the lease are in nature of rent. In Member for the board of agriculture incometax v. sindhurani chowherani AIR 1957 SC 729 SC told the indicia of salami are: 1)its single non-recurring character 2)payment prior to the creation of tenancy.

Renewal clause in lease- In state of U.P. Vs. Lalji Tondon, AIR 2004 SC 32 it was held A lease, which creates a tenancy for a term of years, may yet confer on the lessee an option of renewal.The option is exercisable not merelyby the lessee personally but also by hisrepresentative-in-interest. If the option does not state the terms of renewal, the new lease will be for the same period and on the same terms as the original lease, in respect of all the essential conditions thereof, except as to the covenant for renewal itself.

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