Boomtown retail leases are required to accompanied by a disclosure statement. Unless the disclosure statement had errors then it id not misleading.
Unless the disclosure statement is misleading then the conduct of the landlord cannot be misleading?
I don't think I can agree with that statement. Conduct can be misleading irrespective of what may be written on a piece of paper.
And I assume that the disclosure statement sets out what is in the lease. The core issue here is what the shop owner was told was in someone else's lease. Which presumably would not be mentioned in the disclosure statement.
I don't think I can agree with that statement. Conduct can be misleading irrespective of what may be written on a piece of paper.
And I assume that the disclosure statement sets out what is in the lease. The core issue here is what the shop owner was told was in someone else's lease. Which presumably would not be mentioned in the disclosure statement.
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If you haven't already, get a solicitor. Find one which specialises in commercial contract law.
As much as the people on here have experience, if wrong advice is offered, which you follow, you might destroy your chances of a favorable outcome.
See a solicitor straight away, and good luck.
As much as the people on here have experience, if wrong advice is offered, which you follow, you might destroy your chances of a favorable outcome.
See a solicitor straight away, and good luck.
I would say that any court action is a waste of time, because the OP signed a contract which he thought was fair. ....I dont think he would win a case because down the track, he has found out that running a business is much harder than he thought. Convenience stores arent run on selling milk and icecream. If his business is suffering so much because he has to compete on those products, then it is not a viable business.
Perhaps the cost of seeing a solicitor would help him to understand that he's better off focusing on running the business, instead of blaming others for his troubles!
Perhaps the cost of seeing a solicitor would help him to understand that he's better off focusing on running the business, instead of blaming others for his troubles!
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The reasons why I think going to a solicitor at this hopelessly late stage in proceedings is a waste of space, and hence the recommendation to do so is bad advice are ;
Engaging lawyers in this endeavour (prior to entering a retail lease) is certainly not a waste of time nor money.....but the situation that the original poster finds himself in, as I said about 20 posts ago, is a complete waste of time.
Those are my reasons pennyk.....and based on all of those, Erik's "advice" was woeful. Frankly, it matters not a jot to me, he can spend what little profit is left in his business and give it all to the lawyer and then some....it's totally up to him.....but he's on a hiding to nowhere.
Many times pennyk, the blithe "seek independent legal advice under all circumstances" is not wise. This is definitely one of those times.
- I'm personally a principal party to over 20 of these types of retail Leases in shopping centres, hence I know what are contained within them.
- The disclosure statements Landlords have to provide (and Tenants must sign off prior to be issued with the Lease itself) are onerous and all encompassing.
- The Tenant is flogging a dead horse complaining about clauses in the Lease that were not challenged at either the a) expression of interest stage, b) the letter of offer stage, c) the Disclosure statement stage, or d) finally the Lease stage.
- Any decent solicitor looking at the documents a time period down the track will simply say....why didn't you engage my services prior to entering into this binding agreement.
- Weak Tenants who are both poor marketers and poor business folk with little to no cash backing behind them have tried this caper on many times before and failed miserably in the past.....not always, but in the overwhelmingly vast majority of cases.
Engaging lawyers in this endeavour (prior to entering a retail lease) is certainly not a waste of time nor money.....but the situation that the original poster finds himself in, as I said about 20 posts ago, is a complete waste of time.
Those are my reasons pennyk.....and based on all of those, Erik's "advice" was woeful. Frankly, it matters not a jot to me, he can spend what little profit is left in his business and give it all to the lawyer and then some....it's totally up to him.....but he's on a hiding to nowhere.
Many times pennyk, the blithe "seek independent legal advice under all circumstances" is not wise. This is definitely one of those times.
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Excellent response, Dazz.... I knew it was in there. we just needed to drag it out of you.
I agree with everything you said in this post.
Just a quick comment- i've skimmed this but am a bit confused. If it is exclusive use then you can stop a competitor. The problem will be "use" if it is not correctly specified.
You talk of 2 different leases but the idea of a lease is that once it is assigned to you you can demand an extension without the lanlord varying the terms (except for rent and new start/finish dates) so the landlord cannot change the use upon the exercise of the option without the tenant's permission.
Check your disclosure documents for use and whether it is exclusive.
Finally- if you think there is a problem get an interpreter and go to a good commercial lawyer for a one-two hour consultation- and bring all of your paperwork with you including estimates of how much you lost by not being able to sell the items.
You talk of 2 different leases but the idea of a lease is that once it is assigned to you you can demand an extension without the lanlord varying the terms (except for rent and new start/finish dates) so the landlord cannot change the use upon the exercise of the option without the tenant's permission.
Check your disclosure documents for use and whether it is exclusive.
Finally- if you think there is a problem get an interpreter and go to a good commercial lawyer for a one-two hour consultation- and bring all of your paperwork with you including estimates of how much you lost by not being able to sell the items.
Retail leases (like all commercial leases) have a usage clause which determines what you can sell. At no point has the convenience store had an exclusivity clause (it is detrimental to the lessor).
At best, the tenant could seek to widen their usage clause if that is what they want BUT the lessor may ask for an increase in rent in return for granting this concession.
At best, the tenant could seek to widen their usage clause if that is what they want BUT the lessor may ask for an increase in rent in return for granting this concession.