Leases
A guide to negotiating and drafting retail, commercial and rural leases including assignment, termination, transfer and other related transactions. The commentary covers the Commercial Tenancy (Retail Shops) Agreements 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 at Obiter - News & Updates, via the link above.
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
-
-
“ Commentaries ”
-
-
-
-
-
-
“ 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 ... ”
-
-
“ Nature of disclosure1 Timing of disclosure2 ”
-
“ 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. ... ”
-
“ 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: ”
-
-
“ 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 ... ”
-
-
-
-
-
-
“ 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 ... ”
-
-
-
“ 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 ... ”
-
“ 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 ... ”
-
“ 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. ... ”
-
-
-
“ 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 ... ”
-
“ The costs agreement will set out the billing cycle. Commonly a regular monthly billing cycle is adopted covering work undertaken during the previous month. ”
-
“ 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 ... ”
-
“ 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. ”
-
“ 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 ... ”
-
-
-
-
“ 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: ”
-
“ – 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 ... ”
-
“ 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. ”
-
“ Credit terms are quite common and need to be clearly documented and administered. ”
-
“ 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. ”
-
“ 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. ”
-
-
-
-
-
“ 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; ”
-
“ 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 ... ”
-
“ 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 ... ”
-
-
-
“ 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 ... ”
-
“ Methods of payment include: Credit card; ”
-
“ All By Lawyers cost agreements include the following authority to transfer money to pay their invoices: Trust money ”
-
-
-
“ 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 ... ”
-
-
-
-
“ 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 ”
-
“ 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 ... ”
-
-
-
-
-
“ Pastoral Lands Board Allocation of operating expenses for non-standard trading hours ”
-
“ Papers, articles and case law ”
-
-
-
“ A lease is fundamentally a contract and the ordinary principles of contract law apply. As a lease also relates to real estate, property law principles apply as well. ”
-
-
-
“ 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. ”
-
-
-
-
-
-
-
-
-
-
-
-
“ Seven days before entering into a lease section 6 of the Commercial Tenancy (Retail Shops) Agreements Act 1985 requires a landlord to provide to a tenant: A disclosure statement ”
-
-
-
-
-
“ Prospective lessors and lessees may agree to enter a lease agreement at some time in the future, when particular conditions have been met. Such an agreement may be enforced in equity particularly if partly performed. Laserbem P/L v Gainsville Investments P/L [2004] VSC 62 ”
-
-
-
-
-
“ Lessor's rights under the lease As the lessor generally prepares the lease, it usually creates rights in favour of the lessor by requiring the lessee to covenant to do, or not do, certain things and empowering the lessor to enforce those covenants. A lessee will normally covenant: ”
-
-
-
-
-
-
-
-
-
-
-
-
“ Overview The Residential Tenancies Act 1987 and its associated regulations apply to most residential tenancy agreements. From 1 July 2013 all written tenancy agreements must be done using the Residential tenancy agreement. The Residential Tenancies Regulations 1989 prescribe the form of several ... ”
-
-
-
“ A lease is fundamentally a contract and the normal rules of privity of contract apply. But as a lease also relates to real estate, rights arising from property law may therefore result in the lease affecting more than just the parties to the original contract. Those property rights may be ... ”
-
-
“ A third party may be introduced to the lease by way of a sublease of the lessee’s interest in the land. A sublease is used when the new arrangement is intended to be for a shorter period than the term of the lease. Thus all subleases must terminate at least one day before the headlease. The form of ... ”
-
-
-
-
-
-
“ An assignment or transfer of lease is used where it is intended to transfer the whole of the lessee’s interest in the property to the new lessee. The assignor, being the current lessee, passes its interest in the property to the assignee, the new lessee. The assignor does not intend to reclaim an ... ”
-
-
-
-
-
-
-
-
-
-
-
“ Surrender of lease Surrender by agreement ”
-
-
-
-
-
-
-
-
-
-
-
“ Exercising an option to renew must be done clearly and unequivocally and manifest the intention to enter into a further lease in accordance with the terms of the option. ”
-
-
-
-
-
-
-
“ Disputes commonly arise in shopping centres in relation to relocation, exclusivity, fit-out requirements, turnover rental, promotion funds and signage. For other shops, shared parking and repairs and maintenance are often the cause of argument. Old air conditioning units that constantly malfunction ... ”
-
“ The lessee’s ‘right to quiet enjoyment’ of the leased premises is the right to possession of the premises, free of interruption from the lessor or any other person. It is the lessee’s principal right under the lease and is created by the lessor covenanting with the lessee to pass quiet enjoyment. ... ”
-
“ Surrender of lease Surrender by agreement ”
-
-
-
“ The lease or agreement to lease is not valid as against any existing mortgagee or other secured party unless prior consent to the registration has been given: s 91 Transfer of Land Act 1893. Unless the proposed lessee ensures the freehold mortgagee’s consent to the lease, the lessee is vulnerable ... ”
-
-
-
-
“ Payment of duty The Stamp Act 1921 was replaced by the Duties Act 2008, which introduced a new duties regime. Stamp duty had already been abolished on leases first executed on or after 1 January 2004. Under the Duties Act if no consideration (i.e. a premium) is paid for the grant, transfer, ... ”
-
“ Normally the lessor arranges for preparation of the lease, preparation costs are borne by the landlord: s 14B Section 9(2)(b)-(c) of the Commercial Tenancy (Retail Shops) Agreements Act 1985 limits the lessee’s liability for preparation costs to the fair and reasonable expenses of the landlord in ... ”
-
“ Leases in Western Australia are not required to be registered, but those which exceed 3 years may be registered. Leases of less than 3 years duration cannot be registered. A lease or agreement to lease is not valid as against any existing mortgagee or other secured party unless prior consent to the ... ”
-
-
“ 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 he is entitled to hold the original lease. The lessor is entitled to retain the certificate of title to ... ”
-
-
-
-
-
-
-
-
-
“ A lease is fundamentally a contract and the ordinary principles of contract law apply. As a lease also relates to real estate, property law principles apply as well. ”
-
-
-
“ 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. ”
-
-
-
-
-
-
-
-