Property & Commercial Leasing
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Most property and leasing disputes relate to interpretation of and non performance of contracts and leases. Property disputes may include:

- Failure to complete contracts
- Disputes between owners of properties including tenants in
- common or joint tenants or joint venturers about valuations,
- or selling, developing or holding property.
- Disputes about interpretation of contracts

Commercial leases are primarily governed by The Lease, The Property Law Act and The Transfer of Land Act. The Retail Leases Act 2003 governs most Retail Premises Leases. Retail Premises primarily include premises which are used wholly or predominantly for the sale or hire of goods by retail or the retail provision of services. However premises where occupancy costs exceed $1 million or where the tenant is a listed corporation or the premises are prescribed are not included. The minister has made the following determination regarding retail premises defining those premises that are NOT retail premises:

“Premises that are located entirely within a building which, under the terms of the lease relating to the premises, or part of the premises, are used, or are to be used, wholly or predominantly for the retail provision of services, other than premises located entirely on any one or more of the first three storeys in a building, excluding any basement levels.”

Accordingly, an accountancy firm which only occupies the 5th level of an office building will not be covered by the Retail Leases Act.

See the attached OSBC Revised Guidelines on Retail Premises. http://www.sbc.vic.gov.au/downloads/retail%20premises%20guidelines%20_revised.pdf 

The most common lease disputes relate to:

- Non Payment of rent and outgoings,
- Repairs and maintenance and loss suffered as a result of
- damaged premises
- Interpretation of Outgoings
- Rent reviews
- Exercise of lease options
- Assignments of leases
- Conduct of shopping Centres
- Disclosure Statements and misrepresentation.
- Notices of Default and Termination of Leases
- Make good at the end of a lease.

However underlying these symptoms are business and financial drivers. Mediation is good at uncovering these underlying causes so that positive solutions can be developed. For Retail Lease Premises all disputes except for the recovery of rent and claims for injunctive relief must first go through a mediation conducted through the Office of the Small Business Commissioner (OSBC). See the link to the OSBC http://www.sbc.vic.gov.au/ Attached is a Dispute Application Referral Form Mediation at the OSBC has a very high rate of success.

The advantages of mediating Retail Premises Leases are:
- It is quick – usually a mediation can be organized within
- weeks or a few months
- It is cheap – Each party only has to pay $195.
- Legal representation is not necessary (However it is wise to
- seek some legal guidance or advice and legal representation
- in more complicated matters.)
- It is business oriented and helps improve business
- relationships.

The Law Institute of Victoria through its Property Law Dispute Resolution Committee offers a cheap Dispute Resolution alternative for minor Property Law matters. It applies where lawyers representing the parties send in writing to the Law Institute an agreed statement of facts with questions to be answered. Written advice is received. Neither the parties or their lawyers attend in person.

Michael has mediated 100s of Retail Lease disputes as a member of the Office of the Small Business Commissioner’s Mediation panel. (Also see the comments made in the above categories.)

 

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