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A lease deed is an instrument to transfer the right to possession and enjoyment, though not the title, of an immovable property, from the transferor to the transferee, in consideration of a price in the form of rent or premium. The transferor is called the Lessor and the transferee is called the lessee.
A commercial lease deed is executed between two or more parties where the property in question is being leased for commercial activities, like office operation, warehousing, manufacturing, amongst others. With the ever growing and dynamic real estate market, it is important that the interests of both the Lessor and the Lessee are adequately protected for their mutual benefit.
Frequently Asked Questions
1. Can restraints be placed on the use of the property by the lessee?
Section 108(o) of the Transfer of Property Act 1882 provides that the lessee may use the leased property as a man of ordinary prudence would use them if they were his own; but the lessee must not use, or permit another to use, the property for any other purpose other than for which it was leased. The Lessee cannot use the leased property in violation of the lease deed or any activity that may cause destruction to the property.
2. Can the property be transferred by the Lessor if it is leased?
Under section 109 of the Transfer of Property Act 1882, the Lessor can transfer the leased property to another person (the “transferee”), who shall then be subject to the rights and liabilities as of the Lessor, post the transfer. The original lease continues to subsist in case of such a transfer and it is not necessary to enter into a new deed. However, in order to avoid any disputes between the Lessee and the transferee it is prudent to enter into a ‘Deed of Attornment’, wherein the Lessee and the Lessee recognize each other’s rights.
3. Does leasing the property to the Lessee allow the Lessee to further lease/sub-lease the property?
Under section 108(j) of Transfer of Property Act 1882, the lessee may sub-lease, mortgage or assign his interest in the leased property, however, the lessee by not, by reason of such transfer, cease to be the subject to any of the liabilities attaching to the lease. this right of the lessee is subject to the terms of the lease deed, which may place restraints on the lessee.
4. Can the Lessor access the property during the tenure of the lease?
Under section 108(m) of the Transfer of Property Act 1882, the Lessor or his agents may enter and access the property and inspect the condition of the property at reasonable times and by providing reasonable notice to the Lessee.
5. Does the lease deed need to be registered?
Section 17 of the Registration Act 190 provides that the registration of a lease deed of immovable property is mandatory if the lease period is for a duration exceeding 12 months. However, lease deed below a year are not required to be registered. Registration, however, is advisable as a registered lease deed has a higher evidentiary value in the courts of law.