Commercial Leases: Goodbye to Claw-back Provisions?

Clawbacks

LANDLORDS WHO PROVIDE lease incentives to tenants (including fitout contributions, rent free periods and rent abatement periods) often attempt to secure themselves by requiring tenants to repay the incentives.

They usually request this in the event the lease is terminated due to the tenant’s default. [Read more…]

Is This Really The End of Paper Titles?

Title-Certificate

IN 2008, THE AUSTRALIAN COUNCIL OF AUSTRALIAN GOVERNMENTS (COAG) prioritised the implementation of a national electronic Conveyancing (e-Conveyancing) system. The system will render all property transfers paperless and introduce a uniform national scheme.

Property Exchange Australia Ltd (PEXA) was created in 2010 to provide online infrastructure. PEXA owns the rights to all previous e-Conveyancing software and will create a single point of access across all jurisdictions. [Read more…]

When is a Bank Guarantee NOT Guaranteed?

Dollar

YOUR TENANT’S OBLIGATION to pay rent, care for the premises and abide by the provisions of the lease is usually secured by your right (as the landlord) to terminate the lease and recover possession.

In reality, this does little to remedy the financial loss suffered by a landlord, as a result of a breach by the tenant. [Read more…]

FIRB Approval for Commercial Property

FIRB-approval

YOU SHOULD BE CAUTIOUS when entering into negotiations with foreign purchasers for the sale of property, due to the restrictions imposed by the Foreign Investment Review Board (“FIRB”).

Vendors should ensure that the contract of sale protects them when approval is required by the FIRB. Because, if the purchaser fails to gain approval, the FIRB can reverse the transaction. [Read more…]

More About Consent for Lease Assignments

Lease-Assignment-2

IN PART1, we considered assignment in the context of where the lease prohibits assignment absolutely or where the tenant cannot assign without the landlord’s consent (to be withheld in its absolute discretion).

This article considers assignment when the landlord cannot unreasonably withhold its consent. [Read more…]

Landlord’s Consent for a Lease Assignment

Lease-Assignment-1

AS A COMMERCIAL PROPERTY landlord you have certain rights.

However, your ability to refuse consent to a lease assignment will depend on several factors.

[Read more…]

With Property … How to Stay Cool When Things Get Hot

Keeping-Cool

A RECENT CASE in the Queensland Civil Administrative Tribunal (QCAT) has brought the laws governing cooling-off periods into sharp focus. And the ability of vendors to retain termination fees where contracts are terminated was challenged.

While the laws relating to cooling off periods differ in each state, this article will discuss the general principles of cooling off periods … and what you need to be aware of when seeking to exercise your rights. [Read more…]

The Previous “BEWARE” … Has Now Become LAW!

High Court Ruling

THE LANDMARK DECISION of Willmott has recently been upheld by the High Court. The decision confirms that a liquidator has the ability to disclaim a lease, meaning that the tenant will no longer hold a leasehold interest in the land.

In our article published in September last year, a case summary was provided of the Victorian Supreme Court of Appeal decision. This article will focus on the reasons provided by the High Court. [Read more…]

Getting All The Adjustments Correct at Settlement

Settlement

IN THE CONVEYANCING stage, before settlement, the vendor and purchaser adjust the purchase price to deal with the following matters:

  • Periodic payments of all statutory outgoings (such items as council rates, water rates and land tax); plus …
  • Rent and outgoings payable by a tenant under a lease. [Read more…]

Tenants — Beware When You Fall Behind With Your Rent!

payment-overdue

WHILE THIS MAY have be written from a Tenant’s perspective … the message is equally valuable for Landlords, owning Commercial investment property.

Many landlords, tenants (and legal practitioners for that matter!) do not appreciate the significance of a default clause in a commercial lease that deals with the non-payment of rent. [Read more…]

BEWARE … If You’re a Commercial Tenant

Plantation

A LANDMARK DECISION by the Court of Appeal of the Victorian Supreme Court means that a landlord’s liquidator can now disclaim a tenant’s lease — meaning that you, the Commercial tenant, no longer hold a leasehold interest in the land.

Case: In the Matter of Willmott Forests Ltd (in liquidation) [2012] VSCA 202 (‘Willmott’)

The Facts of the Case

The facts can be summarised as follows: [Read more…]