Questuion 1
Nacer Bouhani owned a large block of land in Coomera, just north of the Gold Coast. Nacer obtained Council approval to sub-divide his block into two lots. He built a one-storey house on each lot. In order to defray the building costs of the new houses, Nacer sold one of the lots to Chloe Hosking (Lot B), and retained the other lot for himself (Lot A). As part of the sale, Nacer and Chloe entered into the following Deed of Covenant:
This covenant is made for the benefit of land retained by the covenantee. The covenantor undertakes to:
Maintain the house on Lot B as a one-storey house.
Re-paint the house on Lot B every five years.
Re-paint the house on Lot B using Taubwoman’s Cream Exterior House Paint.
Maintain cordial relations with the owners from time to time of Lot A.
The necessary formalities were completed, including registration, and Nacer and Chloe lived harmoniously as neighbours for ten years. In March 2010 Chloe obtained a job in Tasmania and decided to sell Lot B. Lauren purchased Lot B from Chloe, and was informed by Chloe of the obligations set out in the original Deed of Covenant. Lauren is non-committal about those obligations, and subsequently becomes the registered proprietor of Lot B. Nacer sold Lot A to Mark in January 2014, informing him that Lauren was due to repaint her house in a couple of months’ time. In December 2014 Lauren had still not repainted the house. Mark raised this with Lauren, who told him to “get lost”. As well, Mark has become aware that Lauren has engaged builders to renovate her house, following approval of a development application to raise her house and build in underneath. The application documents disclose that the exterior of the renovated house will be painted green and orange.
Mark seeks your advice on any action he may be able to take against Lauren.
QUESTION 2
Luke is a collector of fine ceramics, having studied fine arts at university.
Having amassed a substantial personal ceramic collection, Luke decided he would open a gallery in inner Brisbane, exhibiting and selling fine ceramic pieces.
Katrin met Luke at an art fair in 2010, where they discovered a mutual appreciation of fine art. Katrin is a successful businesswoman, developing commercial properties and then leasing or selling them. When Katrin discovered that Luke was looking to rent some premises to establish a ceramics gallery business, she suggested a shop that she owned, part of a small complex of two other shop premises.
Luke and Katrin agreed to enter into a lease over the premises for a period of seven years, with a monthly rent of $6,000. As a gesture of goodwill, and consistent with their developing friendship, Katrin agreed to meet half the cost of the shop fit-out (costing Katrin approximately $6,000). Luke executed the lease on 2 January 2012 and took possession. Luke returned the executed lease to Katrin for registration, although for reasons unknown registration was never completed.
In February 2016 Katrin leased the premises adjoining Luke’s gallery to a new tenant, Fitness Central, a company operating a personal fitness studio. Noise from the fitness studio – loud music with a thumping bass played during regular daily exercise classes (up to two one-hour classes per day) – is causing a nuisance to Luke’s business, with customers distracted by the noise, and conversation often being difficult. Katrin has refused to intervene to require Fitness Central to reduce the noise level. She tells Luke that he is being overly sensitive, and that some noise from adjacent premises is to be expected. Given Katrin’s intransigence on
this issue, Luke is ready to provide one month’s notice of termination and find alternative premises.
Advise Luke.
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