Leases
A guide to negotiating and drafting retail, commercial and rural leases including assignment, termination, transfer and other related transactions. The commentary covers the Retail and Commercial Leases Act requirements and key practical issues in leasing such as bank or personal guarantees, interruption, outgoings, repairs, renewals, registration and subleases.
Precedents include commercial and retail leases in plain English, agreements to lease, disclosure statements, licences, a library of additional clauses and notices, appropriate letters and all that is required for the quick and accurate production of leases and advice to landlords or tenants. Our comprehensive Retainer Instructions ensures nothing is missed and the client is properly advised.
Recent updates can be viewed on Obiter - our News & Updates site.
Some of the most popular precedents in this publication include:
- Advice to parties reviewing a lease
- LEASE - Retail - Annexures A and B
- LEASE - Commercial industrial - Annexures A and B
- Deed of assignment of lease
- Reply to lessor's solicitor returning executed lease
- Notice to Owners Corporation
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“ Commentaries ”
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“ In the legal profession the term ‘costs’ refers to the fees and other expenses a solicitor charges a client for their professional services and other payments that arise out of the provision of legal services, including disbursements such as court fees. Costs are one of the most heavily regulated ... ”
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“ Nature of disclosure1 Timing of disclosure2 ”
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“ Costs disclosure is not required in relation to certain clients, described in the legislation as ‘sophisticated clients’ or ‘government or commercial clients’ as defined by the relevant legislation to include clients such as lawyers, law firms, public companies, liquidators and government entities. ... ”
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“ Cost agreements are not always required although clearly as between the practitioner and their client there will be disclosure but without the need for formal compliance with the regulation. The limits are: ”
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“ In NSW & VIC there is a standard costs disclosure for fees under $3,000 which is included in the precedents. If the total legal costs in a matter (excluding GST and disbursements) are not likely to exceed $3,000 (the higher threshold), a law practice may, instead of making a disclosure under ... ”
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“ Knowing that clients are disinclined to read, sign and return cost agreements, the letter sending them usually provides that unless heard to the contrary the practice will assume agreement. There will almost always be a later opportunity to have the agreement signed. Of course, many practitioners ... ”
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“ Costs are remuneration for professional work when acting in the capacity of a barrister or solicitor. Payments to a practitioner for work which is not professional work, are not costs. Disbursements are payments made, or liabilities incurred in the course of practice and which the practitioner is ... ”
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“ Firms are required to provide an estimate of the total of costs, excluding GST and disbursements, and information on the impact of any significant change to these costs. A law practice must take all reasonable steps to satisfy itself that the client has understood and consented to the proposed ... ”
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“ What is a disbursement Disbursements are payments made, or liabilities incurred in the course of practice, and which the practitioner is bound to pay whether put in funds by the client or not; or payments which, by established custom and practice of the profession, the practitioner is bound to pay. ... ”
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“ A lawyer may request money on account of fees be paid into a trust account before the commencement of work. This is particularly so in criminal and other court matters where the inclination to pay may wane with an unwanted outcome. The funds may cover legal fees as well as disbursements and the ... ”
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“ The costs agreement will set out the billing cycle. Commonly a regular monthly billing cycle is adopted covering work undertaken during the previous month. ”
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“ A lump sum invoice is one which sets out a recital describing the legal service provided and a total amount. An itemised invoice is one which sets out in detail each of the legal services provided, the date they were provided, and the cost for each service. An itemised invoice allows for an invoice ... ”
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“ A law practice cannot charge for the time spent in preparing an invoice. A law practice cannot charge for the time spent in preparing an itemised invoice for a client who has already received a lump sum invoice. ”
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“ All bills should be accompanied by a written statement setting out the avenues that are open to the client in the event of a dispute and any time limits that apply to the taking of such action. Under the uniform law in NSW and VIC each bill or covering letter must be signed by a principal of the ... ”
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“ In 1991 the Australian Competition and Consumer Commission released guidelines to assist businesses in the withdrawal on one and two cent pieces. In the purchase of goods or services for cash, businesses were advised to round the final payment: ”
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“ – When to charge and how to charge Goods and Services Tax (GST) is a broad-based tax of 10% applied to most goods and services, including legal services. Businesses are required to register for GST if their turnover exceeds the $75,000 threshold. If turnover is less than $75,000 than registration ... ”
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“ Reducing fees can create good will but needs to be handled with care as some take offence to the implication that they cannot afford to pay for the work they have retained. It is also a hard won reality that comes from experience that people are inclined not to value any advice given for free. ”
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“ Credit terms are quite common and need to be clearly documented and administered. ”
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“ Notification of rights is a requirement in all states and is found in all example invoice precedents. If the client has not been advised of their rights in a costs agreement, then practitioners must advise the client of their rights at the time of issuing the invoice. ”
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“ Monthly accounting for work in progress is recommended in order to achieve target lockup days. If debtors are not followed up promptly cash flow reduces making it imperative to adopt a debtor’s policy for effective debtor control. All overdue accounts must be followed up promptly and repeatedly. ”
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“ When a retainer is terminated before completion, a practitioner may claim costs for the work done to the date of termination on a quantum meruit basis if: The client terminates the entire retainer; ”
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“ When there are costs owing to the practitioner from the client, the lawyer may retain possession of the client’s documents which are legitimately in the practitioner’s possession. However, the Australian Solicitors’ Rules specify that when a practitioner claims to exercise a lien for unpaid legal ... ”
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“ If a practitioner has an equitable charge over the client’s property incorporated into the costs agreement, ordinarily the practitioner could exercise that power in seeking payment of costs. However, general charges such as a charge over ‘all my estate, rights, title and interest in and to any real ... ”
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“ Sound financial management is absolutely critical to the success of the law practice. There is a high correlation between practices with poor financial management and increased probability of experiencing professional negligence claims. The link is clear. Principals, who do not manage their ... ”
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“ Methods of payment include: Credit card; ”
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“ All By Lawyers cost agreements include the following authority to transfer money to pay their invoices: Trust money ”
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“ Lawcover recommends that practitioners use the costs assessment scheme to recover costs. Instituting proceedings against a disgruntled client who refuses to pay an outstanding bill exposes practitioners to the risk of a cross-claim in negligence being filed. The advantage of the cost assessment ... ”
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“ The following outline of costs assessment was written for NSW but the procedure is similar in the other states. This publication will be expanded to cover cost assessment in the other states in due course. In the interim refer to the relevant State Supreme Court. NSW Procedure ”
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“ A client may be entitled to complain to the Legal Services Commissioner about a costs dispute. If the complaint is made after the law practice or client has already applied for assessment of such costs, the assessment will ordinarily be stayed until the complaint has been determined. Similarly, if ... ”
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“ Energy efficiency information and programs for businesses – sa.gov.au Magistrates Court ”
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“ Papers and Articles – Conveyancing and Property ”
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“ The owner of real estate may allow someone possession of that real estate, giving that person the right to use and enjoy the property to the exclusion of the entire world, including the owner. Such a right is recognised as a proprietary right and thus protected by the law. Ownership of the property ... ”
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“ Residential leases A residential lease is governed by the Residential Tenancies Act. It may be in writing, verbal or implied. At the time a lease is entered into, the lessor must give the lessee the prescribed Information Brochure, which summarises the mutual obligations and rights. For more ... ”
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“ Taking good instructions The use of precedent Retainer Instructions ensures that all important issues are considered, instructions which cannot be contradicted later are recorded, costs discussed and the scope of the retainer clearly defined. ”
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“ Providing a potential lessee with draft lease, a copy of the prescribed Commissioner’s information brochure and a disclosure statement are requirements of the Retail and Commercial Leases Act 1995: s 11 and s 12. Copy of lease and information brochure ”
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“ As equity is prepared to enforce an agreement to lease, it is often said that such an agreement is as enforceable as a lease. This concept has merged with modern legal concepts to establish the principle that, where it would be unconscionable for either party to resile from the agreement, that ... ”
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“ The Retail and Commercial Leases Act applies to premises that are a retail shop or a retail shop and adjacent dwelling. A retail shop lease is taken to have been entered into upon the earliest of: execution of the lease, ”
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“ Defining premises Incorrectly defining or describing the premises may give the lessee a right to damages. ”
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“ Overview The Residential Tenancies Act and its associated regulations apply to most residential tenancy agreements. The Residential Tenancies Regulations 2010 revoked the 1995 general regulations and water rates regulations and prescribed the form of several notices required to be used at ... ”
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“ A lease is fundamentally a contract and the normal rules of privity of contract apply. But a lease also relates to real estate, and property law has by common practice affected more than just the parties to the contract. Rights arising from property law may therefore result in the lease affecting ... ”
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“ Surrender by agreement The parties may agree, or be deemed to have agreed, to terminate the lease by the lessee surrendering, and the lessor accepting the surrender. ”
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“ Options to renew generally require the lessee not to be in default of any covenant as a condition of exercising the right. B S Stillwell & Co P/L v Budget Rent–A-Car System P/L [1990] VicRp 52 ”
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“ The lessee is entitled to a lease that is identical to the expired lease and a renewal does not present the lessor with an opportunity to review the lease. The only justified changes are those necessary to reflect the effluxion of time and any change in the parties. The lessor retypes, prints out, ... ”
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“ Written leases are customarily prepared in duplicate so both the lessor and lessee hold a ‘copy’. The lease forms the basis of the lessee’s right to possess the property and to prove that right they are entitled to hold the original lease. The lessor is entitled to retain the certificate of title ... ”
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“ Stamp duty was abolished on leases first executed on or after 1 January 2004. Also exempt are leases whose term commences on 1 January 2002 and whose average annual rental or current market rent does not exceed $50,000 per annum. However some documents are still required to be stamped, although ... ”
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“ Leases in South Australia are not required to be registered. However, unless registered the lease or agreement to lease is not valid as against any subsequent purchaser, reversioner, mortgagee or encumbrancer of the freehold: s 119 of the Real Property Act. The exception is where the lessee holds ... ”
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“ Normally the lessor arranges for preparation of the lease. In the past, these costs were passed on to the lessee. However, legislative reform has evened the balance. Section 14 of the Retail and Commercial Leases Act limits the lessee’s liability for preparation costs. Preparation costs for a ... ”
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“ Disputes Retail ”
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“ A lease is a proprietary interest in land. Like any other proprietary interest it may be used to secure a loan. The lease may provide that the lessee obtain the lessor’s consent before giving a mortgage over the lease. Failure to do this constitutes a breach of lease. On this topic generally see: ”
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“ Unless the mortgagee has consented in writing before the lease of mortgaged land is registered, it is not valid and binding against the mortgagee: s 118 of the Real Property Act. Unless the proposed lessee ensures the freehold mortgagee’s consent to the lease, the lessee is vulnerable to losing ... ”
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“ The owner of real estate may allow someone possession of that real estate, giving that person the right to use and enjoy the property to the exclusion of the entire world, including the owner. Such a right is recognised as a proprietary right and thus protected by the law. Ownership of the property ... ”
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“ Residential leases A residential lease is governed by the Residential Tenancies Act. It may be in writing, verbal or implied. At the time a lease is entered into, the lessor must give the lessee the prescribed Information Brochure, which summarises the mutual obligations and rights. For more ... ”
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“ Taking good instructions The use of precedent Retainer Instructions ensures that all important issues are considered, instructions which cannot be contradicted later are recorded, costs discussed and the scope of the retainer clearly defined. ”
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