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Chris The Lawyer
Chris The Lawyer, Lawyer
Category: New Zealand Law
Satisfied Customers: 22769
Experience:  38 years qualified as a lawyer; LLB, MMgt and FAMINZ.
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Our lease was registered by the lessor's legal firm as a

Customer Question

Our lease was registered by the lessor's legal firm as a lease in renewal of the previous lease, s117 LTA 1952; because it is in renewal, its operational provision, section 41(4) LTA1952 means it is effective from 1 November 2000 (based on previous signed
lease requiring this as well (we had agreed to the granting of a contract for a renewal lease prior to November 2000) and not from when it was executed; (this is stated within the First Schedule PBLA 1969, clause 16, as is to be incorporated in our present
lease as lease states). Our concern is the loss of property rights, the right to a renewal lease on the same terms and future property rights as the registered lease has no working terms without incorporating the PBLA 1969, which is excluded by this judgment.
Submitted: 1 year ago.
Category: New Zealand Law
Customer: replied 1 year ago.
Also we now have the registered lease and the land registers stating one thing while the Court of Appeal states another thing, what happens if we sell this property what does the new owner get the property rights based ont he land registers & registered lease or the property rights determined byt he Court of Appeal which are not clear as the lease has no other terms but PBLA 1969
Expert:  Chris The Lawyer replied 1 year ago.

I see the court says-

"Agreement was eventually reached to the extent that the parties were able to settle upon a new form of lease. The evidence is that the lease was vigorously negotiated by the Banks, and that they chose to sign the 2000 lease rather than take up an alternative offer of a lease based on historical lease terms. The 2000 lease is again for a period of 21 years but with perpetual rights of renewal for further 21-year terms. Like the 1979 lease, it provides for seven-yearly rent reviews."

So the court is saying you made a choice in 2006 when you signed the 2000 lease, rather than the historical lease. But you do have perpetual renewal although with the regular rent reviews. These rights of renewal in 2012 will be on the same terms as the lease you now have, in perpetuity to be renewed every 21 years. I may have missed your point however

Expert:  Chris The Lawyer replied 1 year ago.

The lease which applies is the one you signed in 2006, which the court refers to as the 2000 lease.

Expert:  Chris The Lawyer replied 1 year ago.

when you sell the property it will be based on that lease

Customer: replied 1 year ago.
We did not get a new lease nor vigorously negotiate a new lease or terms, the delay in signing was due to arbitration and then council took legal action but not against the terms of the renewal lease, when arbitration was settled, we signed but with removal of lease clause 21 PBLA 1969 & a clause relating to sea erosion as neither of these were in the previous lease so were removed to ensure the lease would be renewed on the same terms. All correspondence fromCouncil and a sworn affidavit by Council's Chief Executive (relied upon within legal action before the High Court and Court of Appeal) stated 9 August 2002, that the leases are perpetually renewable leases under the PBLA 1969 section 7(e). We also have a letter from Council regarding another lessee who has yet to sign their renewal lease confirming that the renewal lease is operational and legally binding even though it is not yet signed due to the operational clause within the previous lease being renewed. (We also had a letter used to continue with our mortgage stating that prior to signing we were in arbitration and were persuing a renewal lease) .We believe the lease we signed is legally effective but the Court requires the PBLA 1969 to be of no effect and that is causes a legal conflict given the lease relies on this enactment and is registered as such so we do not know where we stand legally.
Expert:  Chris The Lawyer replied 1 year ago.

The Court held that even if the lease was illegal (but said it likely was not illegal) then the Illegal Contracts Act would apply and the lease was effective. The lease is primarily a contractual document, and it is the act which gives the local authority the power to enter the contract. Subject to stutory limitations, the parties to the lease are free to enter any bargain they want. Even if the 1937 lease had been perpetually renewable, it came to an end, which is possible and in fact happened. Then the 200 lease, also renewable, came into replace this. The courts decison appears to be quite claer that you have a valid lease and you can rely on the judgment if anyone says otherwise

Customer: replied 1 year ago.
Just about to do tea but hope we can take this up tomorrow? Thanks for your comments.
Expert:  Chris The Lawyer replied 1 year ago.

No problem

Customer: replied 1 year ago.
The contract / lease between the parties includes the provisions of clauses 15, 16 & 19, First Schedule PBLA 1969 / clauses 11, 13 & 17 PBLA 1908, either directly as a clause within the 1937 & subsequent 1979 leases or as part of the First Schedule, PBLA 1969 being incorporated into the 2000 lease. On acceptance by the lessee of a renewal lease, the previous registered and signed lease binds the parties to the future renewal lease, legally effective as from the expiry of the previous lease and before it is registered; lawful through sections 18(2) PBLA 1969 / 9 PBLA 1980 and sec41(4) Land Transfer Act 1952. The First Schedule PBLA 1969 states that “A renewable lease granted under section 7(1)(e) may contain the following provisions, or any provisions substantially to the same effect ..”; the 1908 Act is similar. The renewal lease must be substantially to the same effect as the expiring lease, not word for word & both the 1937 & 1979 leases included this: “Any such notice by the lessee of his desire to have a renewed lease shall be deemed to constitute a contract between the Board and the lessee for the granting and acceptance of a renewed lease at a rent so valued and for the term of twenty-one years and upon the same conditions and covenants (as near as circumstances may then allow) as are herein expressed and/or implied”. The 2000 lease includes it through reliance on incorporation of the First Schedule PBLA 1969. Both the 1979 and 2000 lease contain either: “In pursuance of Section 117 of the Land Transfer Act 1952, the lessee requests you to state in the memorial of registration of this lease that it is in renewal of prior Lease No. 3249” or “Pursuant to Section 117 of the Land Transfer Act 1952 I hereby request that you state in the memorial of this Lease that it is in renewal of Lease No. 58138” This on going renewable contract is recognised by registration of the leases and the land registers which state: “The Greymouth Harbour Board is seised of an estate in fee simple (subject to such reservations, … and interests as are notified by memorial underwritten or endorsed hereon) in the land hereinafter described …. 58138 Lease in renewal of Lease 3249 [1937 lease] to (now) Douglas Banks of Greymouth, Spray Painter and Christine Banks his wife. Term 21 years from and including 1st November 1979 with renewal clause (Fencing Covenant) – 3.6.1980 at 2.06 o’c”; 58138 Lease containing Right of Renewal Term 21 years from and including 1st November 1979. Term expired – see historic views for details – 3.6.1980 at 2.06pm”(###) ###-####1 Lease in Renewal of Lease 58138 Term 21 years from and including 1st November 2000 (Right of Renewal) CT 273155 issued. 21.2.2006 at 9.00am” So according to the land registers we have a lease in renewal as from the 1937 lease but not according to the Court of Appeal. Our lease holds a right to relief if we do not get a renewal lease, clause 19 First Schedule PBLA 1969 “Nothing in the foregoing provisions shall exclude or restrict the right of the lessee to obtain relief against any forfeiture or determination of the lease or of his right to a renewal thereof in the same cases and on the same conditions as if the lease had been granted otherwise than in the execution of statutory powers in that behalf” and the land registration system guarantees public confidence in the land titles system along with compensation where that does not occur. So do we have a 2000 lease in renewal of the 1979 lease as stated on the land registers and on the registered lease or have we lost that right through a Court judgment which, by the way, did not seek to vary or change the registered lease or land registers, nor has the lessor ever sought to do so?
Expert:  Chris The Lawyer replied 1 year ago.

The effect of the 2000 lease is that you have renewed the relationship of lessor and lessee, and that there is therefore continuity of the ownership. But it's not the same lease, but a new version. Your rights are governed by the new lease, and you haven't lost any rights, although the terms are different.

Customer: replied 1 year ago.
In 2002, Council’s sworn affidavit states the leases (harbour board) were renewed in 2000 as from 1 November, under the PBLA 1969, section 7(e) being perpetually renewable; there was no controversy over these leases being anything other than PBLA 1969 section 7(e) leases, between the Court, the lessor or the lessees.
In 2013, before the High Court, Council argued the leases were non-renewable, under the PBLA 1969, section 7(c). This was after the 2000 / 2007 rent review / arbitration had been carried out under the PBLA 1969 First Schedule and one year prior to the 2014 rent review / arbitration was carried out under the same Act. Prior to agreeing to the renewal, in 2000 just before the 1979 lease expired, we were provided with Council’s registered valuer’s rental valuation based on our lease being under the PBLA 1969 and being a renewal with the attached appropriate land register as proof. In 2015, before the Court of Appeal, a new argument was tried and succeeded, Council argued the leases were not under the PBLA 1969 so effectively council has held three different positions but always administered the leases as renewal leases under the PBLA 1969.
We were provided with a renewal lease as per section 117 Land Transfer Act 1952 and although all leases are new leases, section 115, not all new leases are in renewal of the previous lease so that only leases in renewal of the previous lease can have the section 117 notation attached to the memorial of the new lease and the land registers as ours do.
All three leases stated they were under the PBLA 1908/1969 and all relied on the provisions of the First Schedule of that Act. The first two leases also relied on the Harbours Act 1923/1950 but this Act was never relevant to our property or others surrounding us as it was for leases near waterways or shorter-term leases, sec 154, 155 & 173 Harbours Act 1950 (corresponding sections in 1923 Act). This is the only thing not in our present lease otherwise it is substantially to the same effect (actually I cannot think of anything different other than it is a new format for both previous harbour board & borough leases combined – sea erosion was part of borough leases so that is why it was removed from ours). So we are not sure what you mean about the terms being different as we have not authorised any changes to the previous lease which provided relief for not being given a right of renewal (on same terms as stated by the lease). What changes are you referring to?
I will be away for most of today but will check in at some time, possibly tonight, but happy to take this up again tomorrow otherwise.
Expert:  Chris The Lawyer replied 1 year ago.

I think the only real change is the right to review rent every seven years, although I have not read the individual leases to crosscheck the different clauses. What I need to understand, is what your issue is with the lease that you have now. It seems on the face of it to be a conventional lease of this sort. What are the problems you see with the lease you currently have?

Customer: replied 1 year ago.
Firstly, the problem is whether or not we have a current lease under the PBLA 1969 and in renewal of the previous lease; this will establish what our legal rights and responsibilities are at law for rent reviews, renewals, right to the same lease terms on renewal, the ability to gain a mortgage, etc and the value of our lease if or when we sell our property; that is the present and future problem because without the PBLA 1969 incorporated into the current lease, it has no effective terms and we have been wrongly conned into an agreement that is not what it was represented to be as these leases appear to have changed at the hands of the Council three times already so there is no certainty as to what they will be later today or tomorrow.
The Court of Appeal states we do not have a PBLA 1969 lease in renewal of the previous lease but the land registers & registered lease state otherwise and are effective back to the 1937 lease. So there is a legal conflict and uncertainty of our present and future property rights. Once that is sorted, we can then look at changes from the 1937 to 1979 lease that occurred but until we know where we stand with the present lease, everything else is conjectural.
Expert:  Chris The Lawyer replied 1 year ago.

In fact the 2000 lease is what sets out the current terms. This is a current lease, and from what the court said, you have perpetual rights of renewal. You must look at the lease and its terms as the lease you must deal with. You dont need to get concerned about which act applies because the court has ruled that the 2002 Local Government Act applies

Customer: replied 1 year ago.
In fact in 2000 we entered into a contract to grant a renewal lease on the same terms as the previous lease; the 1979 lease stated: “Any such notice by the lessee of his desire to have a renewed lease shall be deemed to constitute a contract between the Board and the lessee for the granting and acceptance of a renewed lease ….The term of any such renewed lease shall run from the date of the expiration of the term hereby granted and the rent so valued shall accrue as from such date … notwithstanding the fact that the renewed lease may not be executed until after that date.” Nothing was to stand in the way of the lessee securing this renewal and if anything did then the lessee was entitled to compensation.
Even the Court of Appeal acknowledges the previous lease was under the PBLA 1969; furthermore, in 2000 when we entered into this contract, the Local Government Act 2002 was not even an enactment, it did not become an enactment until 2002 and the relevant part of this entactment, section 303, did not take effect until 1 July 2003, three years after we had already entered into our contract. Where does the Local Government Act 2002, or for that matter any other enactment, provide authority to retrospectively interfere with an existing contract (lease)?
Expert:  Chris The Lawyer replied 1 year ago.

The court decision says you signed the 200 lease in 2006. So when you signed this it was after the 2002 Local Government Act came into force. But I struggle to see why you dont want the 2000 lease. It appears to have the features you need. I may not understand what you need however

Customer: replied 1 year ago.
Are you saying that the PBLA 1969, First Schedule, clause 16, also contained within the 1979 lease, which is an operative clause as per section 41(4) Land Transfer Act 1952, for the renewal lease as recognised under section 117 LTA 1952, meaning it takes legal effect on expiry of the 1979 lease and not when it is signed, and; that we did not enter into a contract for a renewal lease of the previous lease as contained within PBLA 1969, First Schedule, clause 15, also contained within the 1979 lease along with the right to relief if that renewal is not provided on substantially the same terms clause 19 PBLA First Schedule, are all void? If not, then these clauses within the 1979 lease must have legal authority and must be the reason for the registered lease and land registers under the LTA 1952 recognising that the present lease is in renewal of the 1979 lease and runs from 1 November 2000. The LTA 1952 is based on the Torrens system and among other things, no-one should have to go behind the curtain to discover a Court decision that removes the relevance of the PBLA 1969 from the lease so that the lessee cannot rely on this enactment as necessary; the registers and registered instruments must be capable of being reliable and trustworthy. So are these clauses within the lease, the LTA 1952 and the PBLA 1969 void with regard to our lease and can a lawfully entered contract in 2000 be made void or retrospectively interfered with without regard for those established property rights?
Expert:  Chris The Lawyer replied 1 year ago.

What is on the title is generally paramount. However it is quite possible for rights of ownership to be affected by a statute. If rights are conferred on the owner of the property by a statute, then if that statute is amended, this affects the rights of the property owner. Although property rights are important, ultimately Parliament can pass legislation which can override the rights of the property owner. While this may give rise to a claim for compensation, it does happen from time to time. For example, land can be taken under the Public Works Act, and the act provides for compensation. The important thing for you in your situation is the document which is currently registered on the title as the lease. You voluntarily signed that lease (I realise that you felt that you may have been under some pressure to do so), and so that lease constitutes the contract between you and the Council. The court also held that the provisions of the Public Bodies Leasing Act 1969 are incorporated by implication. But it also says that you have a new lease and not a renewal of the former lease. Nonetheless, you do have rights of renewal. I am still not sure that I quite understand why the 2000 lease is something which you find unacceptable.

Customer: replied 1 year ago.
We understand what you are saying generally but are you saying the Local Government Act 2002 has made void our lease or has some other enactment that has never been mentioned? If not then when the registered lease and land registers state our lease is n renewal then is that right or not?
Expert:  Chris The Lawyer replied 1 year ago.

My reading of the Court of Appeal decision is that you have a valid lease from the year 2000, which has rights of renewal. If it says on the title that the lease is a renewal, it is correct in one sense, in that the lessor and lessee remain the same, and you remained in occupation. But strictly speaking that is not correct, because the lease that you have is a new one. But because it has rights of renewal, it doesn’t really matter in my view, if it was a renewal of the previous lease or not. The important thing is that you have a 21 year lease with rights of renewal.

Customer: replied 1 year ago.
You seem to have confused occupation of the land with the estate held in the land by the lessee. Strictly speaking section 117 requires the law to see the lease as proof of the continuing estate in the land held by the lessee and this is so important that the Registrar could not legally state on the memorial of the new lease that it was in renewal unless it was in renewal of the previous lease!
Of course it matters if a contract changes when it was not meant to change and to make void a major part of the lease (PBLA 1969) is not a lease in renewal on substantially the same terms and conditions so that the relief clause within the 1979 lease for this becomes important.
Are you saying that section 117 doesn’t mean what it says?
Expert:  Chris The Lawyer replied 1 year ago.

The Court of Appeal said specifically that the purpose of section 117 is to ensure that the leasehold interest of an existing lessee, who has either renewed their lease or has received a further lease in substitution (which is your situation) remain subject to existing encumbrances such as mortgages. They say the purpose of this is to avoid the cost of re-documenting any such mortgages or other documents, which you would need to do otherwise. So this section has a specific purpose. If there had been a situation where the was a new lease, with a gap after the old lease, then the interests of the mortgagees and other holders of encumbrances need to be considered as otherwise these may be extinguished. That is the purpose of section 117.

Customer: replied 1 year ago.
Our lease states very clearly it is in renewal of the previous lease, the word substitution was crossed out. Having said that, the Registrar cannot add a section 117 LTA 1952 notation to our registered lease or the land registers unless the Registrar is satisfied it is actually in renewal of the previous lease and on being satisfied, having been requested, the Registrar has no other option but to add that notation, irrespective of why the lessor wants it added.
What are your comments on this?
Expert:  Chris The Lawyer replied 1 year ago.

I am sure you are familar with section 117 but just so we are clear,

"

117 Bringing down encumbrances on registration of new lease

(1)Where upon the registration of a lease—

(a)the Registrar is satisfied that—

(i)it is in renewal of or in substitution for a lease previously registered; and

(ii)the lessee is the person registered as the proprietor of the prior lease at the time of the registration of the new lease or at the time of the expiry or surrender of the prior lease, whichever is the earlier, or the personal representative of that person; and

(b) the lessee or the registered proprietor of any encumbrance or lien or interest to which the prior lease was subject at the time of its expiry or surrender or the personal representative of the registered proprietor so requests,—

the Registrar shall state in the memorial of the new lease that it is in renewal of the prior lease or in substitution for the prior lease, as the case may be.

Expert:  Chris The Lawyer replied 1 year ago.

I dont think it matters whether this was in substitution or renewal-the section enables the Registrar to bring down the encumbrance

Customer: replied 1 year ago.
Under section 1177, the lessee has requested that the Registrar states in the memorial of the lease that it is in renewal of the previous lease and the Registrar is satisfied it is in renewal of the previous lease, and the Registrar shall state it is in renewal of the previous lease. We understand about the encumbrances and interests etc but are you really saying the Registrar was wrong to state it is in renewal of the previous lease?
Customer: replied 1 year ago.
Oops should be section 117!
Expert:  Chris The Lawyer replied 1 year ago.

Possibly he used the wrong term, as this may be confusing with the same parties involved and a lease which looked similar, but that doesnt make this incorrect, and the act of endorsing the encumbrances is still valid in my view, as if he had used substitued, which appears to be the real situation, this would be correct

Customer: replied 1 year ago.
This is all conjecture as the Registrar had to be satisfied it was a renewal irrespective of the interest etc; his experience would allow him to know whether or not he should use the word substitute or renewal, particularly where substitute is purposely crossed out on the lease. The Registrar was provided with the lease from the lodging firm (lessor’s solicitors) who purposely underlined the s117 notation; there can be no mistake what was intended in lodging this renewal lease by the lessor's solicitors. The Registrar could also refer to the previous registered lease, and both the 1979 and 2000 leases rely on clauses from the First Schedule of the PBLA 1969, being leases under section 7(e) of the enactment and being perpetually renewable; he would have been able to read the particular clauses of the lease or the reference to the First Schedule in the 2000 lease regarding the right of the lessee to a renewal on the same or substantially the same terms etc; that the renewal lease is effective from the expiry of the previous lease and; that there is a relief clause if such a renewal does not occur. What did he not understand and where is the proof for this belief?
Expert:  Chris The Lawyer replied 1 year ago.

Are you saying that the endorsement of the encumbrances is therefore not correct on your present title? I assume this is the mortgage (if you have one)

Customer: replied 1 year ago.
We understand about the interests etc so no issue between us but there is an issue regarding the Registrar’s actions in applying the notation on the registered lease and land registers if the lease is NOT in renewal of the previous lease because he would have not no legal authority to do so. Do you disagree and if so why?
Expert:  Chris The Lawyer replied 1 year ago.

But the section is not limited to renewal sitauations, and this part of the section "renewal of or in substitution for a lease previously registered" makes this clear. Once he is satisfied it is for either alternative then he can bring down the encumbrances. Getting the situation mistaken as renwed when it is substitution doesnt matter, because than can be corrected

Customer: replied 1 year ago.
But you haven’t shown that he is wrong or mistaken only that you think he is wrong or mistaken where is that proof?
Expert:  Chris The Lawyer replied 1 year ago.

The registrar is wrong where he says renewal, in the light of the Court of Appeal saying this is a new lease, which must therefore mean he should have used the term substitution

Customer: replied 1 year ago.
Thank you this was what we were seeking from you at the beginning where there is a conflict between the Court and the land registers and registered lease. So irrespective of whether or not the Court of Appeal has erred in fact or law, and even though neither the Court nor the lessor have sought to have any corrections made to the land registers and registered lease, that decision takes precedent over the Torrens system, and anyone buying our property rights, will have to dig deeper to discover the Court of Appeal decision as they will be unable to rely upon the land registers and registered lease which are clearly indicating the lease is a PBLA 1969 lease in renewal of the previous lease, is that correct?
Expert:  Chris The Lawyer replied 1 year ago.

Any prospective purchaser will be able to rely on the terms of the 2000 lease. This contains the rights of renewal and review of the rental. There is no particular advantage to them in indicating whether this is a lease under the Public Body Leasing Act or whether it is issued under subsequent legislation. In fact of course the Court of Appeal does say that the power of the Council to enter into the lease in 2006 was under the powers of general competence under section 12 of the Local Government Act. The court specifically says that the council was not acting under the 1969 act. I cannot see how this would make any difference to a prospective purchaser however. The lease itself contains the terms with rights of renewal, and it doesn’t matter if the reference to the act has now been superseded, because it is the wording of the lease which is the contract binding the parties. If it says it is subject to the old legislation, that does not affect the validity of the lease, because as a matter of interpretation of the contract, any court would then look to the Court of Appeal decision which held that the subsequent legislation in fact applies. Looking at this in the bigger picture, if you want to sell the property, it is the 2000 lease which the purchaser's lawyer will want to review. It won’t matter which statute applies to the lease. The Court of Appeal ruling does however clarify the position.

Customer: replied 1 year ago.
We are simple folk who believe what we read and what we knowingly agree to. We trust others to do the same. This Court of Appeal decision does not clarify anything; if it had intended to do so and was applicable to all, it would have made an order under section 85 LTA 1952 for the sake of clarification because they know land registers are conclusive evidence of ownership before any Court and can be relied upon by any person, business, etc; section 75 LTA 1952 is an example.
The Court refused to acknowledge the contract between the parties was made in 2000 to grant the renewal lease, in accordance with the 1979 lease clauses, intending to ensure the renewal lease (as it is referred to within the lease document repeatedly), is legally effective from its operational clause of 1 November 2000 and not when it is signed, section 41(4) LTA 1952.
Accepting this would mean the Court would be unable to rely on the LGA 2002 being the legislation relied upon by the lessor as it did not exist (this enactment was never a part of the High Court hearing so how it became part of a rehearing in the Court of Appeal for a 2000 year contract, is a mystery).
Even if we ignore the parties agreed to the contract to grant a renewal lease in 2000, (we should not but for the sake of this discussion we will), the fact remains that the lease itself is effective from 1 November 2000 albeit signed in 2006 but not dated or effective from 2006 so again the LGA 2002 did not exist at the time this lease became effective between the parties as intended and recorded in writing within the registered lease. The Court of Appeal refers to section 41(1) but totally avoids section 41(4) LTA 1952, being the operational clause – not surprising because they totally ignored the references to right of renewal for lessees within the leases!
Even if they believed the leases were not renewable and not in renewal of previous leases, they should not have ignored the lease in its entirety stating it provides a right of renewal to the lessee and has done to as from the 1937 lease with relief where this renewal does not occur. The fact is the leases were renewed in accordance with the contract between the parties and at that time, the clauses relating to renewal became effective, no matter what sort of lease it supposedly was; that is the evidence.
Even if you believe the Registrar was wrong, you then would have to believe the lease clauses do not mean what they say regarding renewal and right of renewal for the lessee and that Council, their registered valuers and solicitors are all wrong too as are all the lessees who bought properties based on renewal leases!
So if you ask us to believe the Court of Appeal is right when they have not taken into account such a basic matter as the timing of the contract in 2000 between the parties as recognised by the registered lease and land registers, and then think they can retrospectively apply the LGA 2002 as the authoritative legislation for Council to provide this 2000 lease, we cannot as it is neither common sense nor law. The Court doesn’t even know why the PBLA 1969 is included in the lease!
Are you able to consider the law relating to land transactions and the clauses within the leases and the First Schedule PBLA 1969 or is this for you, coloured by the Court of Appeal decision so that the law itself cannot be effective without the Court decision?
Expert:  Chris The Lawyer replied 1 year ago.

The lease may be backdated to 2000, but it was signed in 2006. This is not unusual for leases, particularly those under negotiation. So the law and the power to sign the lease are at 2006. You are stuck with what the Court of Appeal says on this, because you have not appealed to the Supreme Court (and nor should you). I just dont understand why you dont accept the 2000 lease as the current lease, and why this is a problem however

Customer: replied 1 year ago.
The lease was offered and accepted in 2000; it was not signed due to arbitration for the rent which is part of the renewal process but this does not affect the lease coming into effect as of 1 November 2000, not 2006 as you claim. There was no negotiation as we had accepted in 2000 a renewal lease on the same terms and were in a contract for that with the lease taking effect 1 November 2000 – I have stated this previously. Why are you ignoring section 41(4) and the clauses within the lease relating to this operational clause?
Customer: replied 1 year ago.
section 41(4) LTA 1952
Expert:  Chris The Lawyer replied 1 year ago.

The lease did come into effect backdated to 2000, although not signed until 2006. The law which is governs the lease is when it was signed, not when it was backdated to. Section 41(4) does not change this, because the lease states when it starts, and therefore the section doesn't apply because there is an operative provision. This often happens with leases which are being negotiated like yours.

Customer: replied 1 year ago.
Our leases contain the operative provision so the present lease was in effect as from 1 November 2000, not on registration (as per section 41(4) LTA 1952) and not backdated as it was already in effect as from 1 November 2000. We were required to observe all the obligations of the lease as from this time onwards including accepting the rent to be determined. The 1979 lease clause ensured we entered into the 2000 renewal contract in 2000 for the same conditions. We did not occupy this land without a lease for just over five years, we were under the lease terms and conditions for those five plus years and that is why we cannot get confused between ‘occupation by the lessee’ and the ‘interest or estate held in the land by the lessee’. Had we not signed until 2015 as is the case with some lessees, we would have gone through the rent review process under the PBLA 1969 as we and they have done because the lease was and is in effect. Otherwise we did not enter into a contract in 2000; are you saying we did not enter into a contract in 2000?
Expert:  Chris The Lawyer replied 1 year ago.

You entered the contract when you signed this, in 2006, and it then applied to the time back to the operative date in 2000. The status of your occupation can be backdated then as well. But you didn't enter the contract until 2006.

Customer: replied 1 year ago.
Well this is interesting, please explain then each of the following lease clauses found in our 1979 lease:
“Any such notice by the lessee of his desire to have a renewed lease shall be deemed to constitute a contract between the Board and the lessee for the granting and acceptance of a renewed lease at the rent so valued and for the term of twenty-one years and upon the same conditions and covenants (as near as circumstances may then allow) as are herein expressed and/or implied.” This notice by the lessee (us) was given in 2000 so why do you say this clause is invalid?
“The term of any such renewed lease shall run from the date of the expiration of the term hereby granted and the rent as so valued shall accrue as from the date in lieu of the rent hereby reserved notwithstanding the fact that the renewed lease may not be executed until after that date” This was a future condition and not a back-dated condition for the renewal but why do you say otherwise?
“Nothing in the provisions hereof shall exclude or restrict the right of the lessee to obtain relief against any forfeiture or determination of the lease or of his right to a renewed lease thereof in the same cases and on the same conditions as it the lease had been granted otherwise than in execution of statutory powers in that behalf.” So how do you interpret this clause?
Will check in sometime tomorrow; thanks.
Expert:  Chris The Lawyer replied 1 year ago.

After the notice was given, and unil the lease was signed, you had contractual rights to a renewed lease. However you actually ended up signing a new lease, but it had the same effect as if you had signed a renewed lease. There is a difference between the contractual right to a lease, and the having the lease. The contractual right gives you an enforceable right to get a new lease, which is why when the previous lease had expired, you could still remain in the property, because you had the ability to sue the council under the contract until the new or renewed lease was given.

Customer: replied 1 year ago.
We did not sign a new lease, we signed the lease authorised by Council and LINZ, this lease was attached to Council’s agenda in 2000 and as we were provided and offered that same lease in 2000 and agreed to it in 2000, to state we had a new lease, you would have to prove two things:
(1) That we had rejected the offer of a new lease; we did not and impossible to prove we did.
(2) That we sought negotiation for new terms; we did not and impossible to prove we did.
We entered arbitration because of our acceptance of the renewal lease terms in 2000; no-one arbitrates a new rental without knowing what the terms are; not even Council would be stupid enough to do that.
Now that we have agreement that there is a contract for the granting of a renewal lease in 2000 on substantially the same terms, surely this changes your attitude?
Expert:  Chris The Lawyer replied 1 year ago.

You signed a lease in 2006 which the Court of Appeal says was a new lease. In 2000, when the council resolved to offer the lease, this remained an offer and was not accepted until you signed it in 2006. In contract law the contract does not start until the offer has been accepted, which occurred when you signed. Until then you were operating under the contractual rights established in the prior lease, which gave you the right to seek a renewal. As it happened, this became a new lease rather than a renewal

Customer: replied 1 year ago.
Explain where we rejected the renewal lease to be granted on those same terms with the incorporation of the PBLA 1969 and sought to negotiate new terms to those offered in 2000? This is so interesting!
Expert:  Chris The Lawyer replied 1 year ago.

You did so when you signed the lease in 2006. This has been held to be a new lease, and if it wasn't the same as the offer in 2000, then signing it impiedly rejected the earlier offer. When you sign a contract, all previous offers and rejections become irrelevant, because the contract which is signed is the bargain you accepted.

Customer: replied 1 year ago.
how is the 2006 lease different to the 2000 lease offered?
Expert:  Chris The Lawyer replied 1 year ago.

I haven't seen either document, in detail, but the Court of Appeal says in Para 8 that you agreed to enter a new form of lease, rather than the alternative of a lease based on the historical terms.

Expert:  Chris The Lawyer replied 1 year ago.

But I assume the lease you signed in 2006 was the one referred to as the 2000 lease. The only difference is that it was effective back to expiry of the previous lease, which it would have been anyway

Customer: replied 1 year ago.
There is no legal requirement to continue to use the same old lease; a renewal lease does not have to use archaic language or terms relied on in a previous lease but must be substantially to the same effect as the previous lease.
The 2000 lease offered to us by council in renewal, was the same lease offered to numerous other lessees at the same time; some lessees signed prior to us while still others have yet to sign.
The lessor’s own registered valuers passed the 2000 lease off as the renewal as did the lessor’s own solicitors who then informed the Registrar for lands that it was a renewal lease, who then ensured the renewal estate was properly noted on the lessees’ land registers as well as their registered leases, remaining there without challenge or correction since. Council even had their chief executive swear for the High Court and Court of Appeal that this lease was in renewal of the expiring 1979 lease.
For the sake of clarity, this 2000 lease was the only lease offered by the lessor to all the lessees; it was offered as a renewal substantially to the same effect in accordance with the 1979 lease clause which you referred to earlier: “After the notice was given, and unil the lease was signed, you had contractual rights to a renewed lease.”
Either the 2000 lease is the renewal lease substantially to the same effect as legally required to be offered, or, the lessor has passed this lease off as a renewal when it was not! Which is it?
Expert:  Chris The Lawyer replied 1 year ago.

In legal terms, does it matter? You have a lease on perpetually renewable terms. Why is it important if this is a renewed lease or a new lease. They are effectively the same, and I just think the difference is not important.

Customer: replied 1 year ago.
But what is the answer, is it the renewal lease as was legally required to be offered or not?
Expert:  Chris The Lawyer replied 1 year ago.

The council was required to offer a lease in renewal. It doesn't matter if it was a new lease or a renewal. As long as they made the offer this complied with their contractual requirement. I cannot see why it matters.

Customer: replied 1 year ago.
Well your answer has confused us, please clarify what you mean, how can it not matter if the legal & contractual obligation was to offer a renewal to substantially the same effect and that obligation was ignored by providing a totally new lease which cannot fulfil that obligation?
Expert:  Chris The Lawyer replied 1 year ago.

The contractual obligation under the old lease was to offer a renewed lease. If you got a lease which is described as a new lease, but is in most respects the same as a renewed lease, then they have fulfilled their part of the contract. Contracts dont need to be performed precisely as long as the parties reach agreement, and because you signed the document in 2006, all these issues merged and any rights are discharged. By this I mean that there were a bundle of contractual rights arising from the old lease, and these were then resolved when you signed the new lease. You have a lease, whether renwed or a new one, and this completes the contract of the old lease to renew that old lease.

Customer: replied 1 year ago.
Why are you saying an offer from the lessor, their registered valuers & solicitors and clearly identified as a renewed lease (and sworn to be before the High Court & Court of Appeal s7(e) PBLA 1969) to all lessees (not just us) is an offer “described as a new lease” when it was then registered as a lease in renewal and the land registers state the same and have never been challenged? That does not make sense.
Expert:  Chris The Lawyer replied 1 year ago.

But you got a new lease (which the Court says). Why is this different from a renewed lease? What difference does it make to your title? Thats what I dont understand. In my view it makes no difference whether the current lease is new or renewed

Customer: replied 1 year ago.
Please answer this simply, under the lease clause requiring the lessor offers a renewal lease, did the lessor offer a renewal lease (forget about anything else including a new lease)?
Expert:  Chris The Lawyer replied 1 year ago.

I haven't see the evidence but in para 8 of the Court of Appeal decision, it refers to you choosing to sign the 2000 lease rather than an alternative offer based on historical terms. I assume that means the offer was for a renewal lease, but note you rejected that option.

Customer: replied 1 year ago.
keeping this very simple, was the lessor required to offer a renewal lease as per the lease clause to lessees in expiry of their previous lease, yes or not?
Expert:  Chris The Lawyer replied 1 year ago.

is that clause quoted in the decision? If not I would need to see it.

Customer: replied 1 year ago.
The 1979 lease clause as quoted directly states:
“Any such notice by the lessee of his desire to have a renewed lease shall be deemed to constitute a contract between the Board and the lessee for the granting and acceptance of a renewed lease at a rent so valued and for the term of twenty-one years and upon the same conditions and covenants (as near as circumstances may then allow) as are herein expressed and/or implied”.
The equivalent First Schedule PBLA 1969, clause 15 states: “ Any notice by the lessee under clause 5 or clause 12 of his desire to accept a renewal lease shall be deemed to constitute a contract between the lessor and lessee for the granting and acceptance of a renewal lease at the rent accepted by the lessee or determined by arbitration, as the case may be [where the rent is to be reviewed at periodic intervals, insert for the first [number] years of the term thereof], and for the term and subject to the covenants and provisions referred to in clause 1 of these presents.”
So again a yes or no answer please, was the lessor required to offer a renewal lease as per the lease clause to lessees on expiry of their previous lease, yes or no?
Expert:  Chris The Lawyer replied 1 year ago.

If you gave notice in terms of that clause, then there is a binding contract to offer "a renewed lease". So yes, although that is not what you appear to have accepted in 2006

Customer: replied 1 year ago.
Thank you Chris and we realise you are relying upon the Court of Appeal as being correct; we do not need to get into the rights and wrongs of facts stated by the Court and disputed by us; we accept your answer is based on what we have told you and with that in mind, your answer above is enough for us. Likely I will follow up on this matter later but busy for the next few days.
Expert:  Chris The Lawyer replied 1 year ago.

The issue will be, is the lease you signed, sufficient to satisfy the clause requiring them to offer a renewed lease? I think it may be.

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