‘Use’ in an Alpine lease defined

'Use' of an Alpine sub-lease was defined today by Judge Kennedy in the County Court of Victoria as requiring the sub-tenant to physically occupy the premises.

In Evans & Ors v Thurau [2011] VCC 1444, two sub-tenants were required under the terms of their sub-leases to make their alpine apartments available for use by the general public when not being 'used' by them.

The sub-tenants had their apartments set up for themselves but only stayed at the apartments for part of the ski season. They did not make the apartments available to the public when they were not staying there. The Court found that the word 'use' in the context of these sub-leases required the tenants to be physically present at the apartments in the general sense of staying there (rather than actually sitting in their rooms) and that, accordingly, the sub-tenants were in breach of their sub-leases.

I have been told that a large number of Alpine ski leases contain similar requirements and that this decision could have an impact on a significant number of leases and sub-leases in the Victorian ski fields.