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 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
MATTER PLAN
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“ Commentaries ”
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“ Pastoral Lands Board Allocation of operating expenses for non-standard trading hours ”
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“ Papers, articles and case law ”
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“ 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. ”
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“ 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 ”
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“ 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 ”
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“ 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: ”
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“ 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 ... ”
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“ 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 ... ”
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“ 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 ... ”
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“ 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 ... ”
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“ Surrender of lease Surrender by agreement ”
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“ 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. ”
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“ 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 ... ”
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“ 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. ... ”
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“ Surrender of lease Surrender by agreement ”
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“ 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 ... ”
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“ 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, ... ”
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“ 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 ... ”
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“ 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 ... ”
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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 he is entitled to hold the original lease. The lessor is entitled to retain the certificate of title to ... ”
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“ 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. ”
-
-
-
-
“ 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 ... ”
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“ Surrender of lease Surrender by agreement ”
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-
-
-
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“ 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. ... ”
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“ Surrender of lease Surrender by agreement ”
-
-
-
“ 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 ... ”
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“ 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 ... ”
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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 he is entitled to hold the original lease. The lessor is entitled to retain the certificate of title to ... ”
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