Sale of office we lease for Business
- Thread starter Pushka
- Start date
I am bringing this thread back from the archives to add an update. Many here suggested that I was in error waiting for repairs to be done that were mentioned on the lease memorandum as being necessary to fix. And that as a commercial tenant I had to suck it. Well, for those people, I have since obtained legal advice about other matters, but which has confirmed that by law, and for the period of time that the landlord did not attend to the fitout on the lease agreement, we were not required to pay rent. Commercial tenants are protected.
....hmmmm....hiring a lawyer to give you advice, with a slant towards pumping up your rights and diminishing your responsibilities does not make the matter just so. Their advice to you has no bearing on the other party. The other party to the Contract would probably wish to dispute - vigorously I imagine.
Almost without exception, every Lease I have read makes the payment of rent an essential part of the Lease, and in almost every Lease it is specifically prohibited for the Tenant to reduce or make any deduction whatsoever from the rent payable for any reason. If it doesn't say that, then you have had a huge win, and your Landlord is fast asleep.....IMO.
You didn't mention what happened to the repair of the floor - which was the point of the thread ??
Can't comment further, as you are the only one on the forum privy to the exact Lease wording in it's entirety. It's a simple case of whatever you say.
Almost without exception, every Lease I have read makes the payment of rent an essential part of the Lease, and in almost every Lease it is specifically prohibited for the Tenant to reduce or make any deduction whatsoever from the rent payable for any reason. If it doesn't say that, then you have had a huge win, and your Landlord is fast asleep.....IMO.
You didn't mention what happened to the repair of the floor - which was the point of the thread ??
Can't comment further, as you are the only one on the forum privy to the exact Lease wording in it's entirety. It's a simple case of whatever you say.
Teach em a lesson i say. Its obvious how certain posters here would comment.
At least negotiate something from your possible point of leverage if it is indeed leverage and not a lawyer puff piece. Hassles such as this on a business can be overwhelming to some. Similar to a resi situation you rent a place, send your kids to school nearby, get work nearby, find your groove...then bam! get told to **** off in no uncertain terms before your lease is up. Hows that fair.
For a business it would be more so i would imagine. Location can be everything for business. Shifting a biz is miles harder than moving a home
Pushka, did the property sell?
Back again to answer some questions. Maybe SA is different, but this is the relevant law:
Retail and Commercial Leases Act 1995—1.2.2010
Part 5—Rent and outgoings
21—Payment of rent when lessor's fitout not completed
(1) This section applies to a retail shop lease if—
(a) the liability of the lessee to pay rent under the lease commences on the lessee entering into possession of the retail shop (whether or not the lessee is required to enter into possession by a specified date); and
(b) the lessor has fitout obligations under the lease. THEY DID - the required fitouts were recorded in our lease agreement
The lessor has fitout obligations under the lease if the lessor is required to provide finishes, fixtures, fittings, equipment or services before the lessee enters into possession of the shop.
(2) A retail shop lease to which this section applies is taken to provide that—
(a) the lessee is not liable to pay rent, or any other amount payable under the lease by the lessee (such as an amount payable in respect of outgoings), in respect of any period before the lessor has substantially complied with the lessor's fitout obligations;
Believe it or not Dazz, SA Legislation actually takes precedence over the requirement in the lease to pay rent. Sad but true hey?
The floor - was eventually fixed when the REA for the sale of the Property told the owner about it when both were onsite. Which was about a month after it was reported on the day we moved in.
The property was sold about 6 months after the ad for sale. I dont know the sale price.
The new owner started building works (pulled down a wall and decommissioned our airconditioner for over a week) without the required 1 month notice. Hmm, a non event actually as we are almost moved out. But the other tenants are ropable.
Oh, I said we had obtained legal advice, not that I had paid for it.
Retail and Commercial Leases Act 1995—1.2.2010
Part 5—Rent and outgoings
21—Payment of rent when lessor's fitout not completed
(1) This section applies to a retail shop lease if—
(a) the liability of the lessee to pay rent under the lease commences on the lessee entering into possession of the retail shop (whether or not the lessee is required to enter into possession by a specified date); and
(b) the lessor has fitout obligations under the lease. THEY DID - the required fitouts were recorded in our lease agreement
The lessor has fitout obligations under the lease if the lessor is required to provide finishes, fixtures, fittings, equipment or services before the lessee enters into possession of the shop.
(2) A retail shop lease to which this section applies is taken to provide that—
(a) the lessee is not liable to pay rent, or any other amount payable under the lease by the lessee (such as an amount payable in respect of outgoings), in respect of any period before the lessor has substantially complied with the lessor's fitout obligations;
Believe it or not Dazz, SA Legislation actually takes precedence over the requirement in the lease to pay rent. Sad but true hey?
The floor - was eventually fixed when the REA for the sale of the Property told the owner about it when both were onsite. Which was about a month after it was reported on the day we moved in.
The property was sold about 6 months after the ad for sale. I dont know the sale price.
The new owner started building works (pulled down a wall and decommissioned our airconditioner for over a week) without the required 1 month notice. Hmm, a non event actually as we are almost moved out. But the other tenants are ropable.
Oh, I said we had obtained legal advice, not that I had paid for it.
Pushka, interesting, herein QLD, we also have an Act, which covers just retail leases, and it puts a different slant of some items which can, or cannot be in the lease. In the part of the SA Act that you quoted, it stated "before the lessor has substantially complied with the lessor's fitout obligations" .... no doubt the term "substantially" is the one that would be the possible source of "debate". The other matter that I think is worth raising, is the "duty of care". In relation to the floor damage, if some one could have hurt themselves, its my understanding that you have a duty of care, to do what you can, to avoid that happening. That does not mean you have to do the repair, however you have to do "something" .... ie, rope/fence tha area off, put up a sign etc. Without some action on your part, you do have some exposure to a possible claim. Aint life grand. Hope all has ended up well for you.
