An interesting issue came across my desk. A tenant had exercised an option to renew its lease but, for various reasons, a deed of renewal was never executed.  The tenant then purported to assign the lease.  The question arose as to whether a lease in those circumstances is capable of assignment. It seems to be […]

The last statement of the law in Victoria suggests that an assignment without seeking the landlord’s consent is a breach not capable of remedy (see IGA Distribution Pty Ltd v King & Taylor Pty Ltd [2002] VSC 440 at [143] per Nettle J, as he was then, citing Scala House and District Property Co Ltd v Forbes [1974] QB […]

Deputy President Macnamara at VCAT recently held that a permitted purpose in a lease provided as “hotel” was synonymous with “pub”, and that the term “hotel” in modern parlance does not necessarily mean the tenant must provide accommodation. This is useful for people settling leases of pubs and hotels. However, it does not address the […]

Some people hold the view that a statement that accords with s. 52 of the Estate Agents Act 1980 (Vic) will be sufficient to satisfy s. 60(1)(d) of the RLA (section 60(1) is extracted in my earlier post today). However: the RLA does not define a “business record”; a s. 52 statement is a form […]

Under the Retail Leases Act 2003 (Vic) a landlord is only entitled to withhold consent to an assignment in the circumstances set out in s. 60(1), which says: (1) A landlord is only entitled to withhold consent to the assignment of a retail premises lease if one or more of the following applies— (a)   the […]

There is a well known cross-referencing error in s. 62 of the RLA.  It refers to s. 61(4), when it should refer to s. 61(5A).  The error resulted from an amendment to the statute in 2005, but continues to be a source of confusion for many solicitors. That this is a cross-referencing error and should […]

Until the decision of Deputy President Macnamara in Café Dansk Pty Ltd v Shiel & Ors [2009] VCAT 36, it was widely believed that landlords were responsible for conducting repair and maintenance at leased premises but that those costs could be passed on to tenants as outgoings under the terms of the lease. The belief […]

I am asked occasionally whether by both landlords and tenants whether they should call a WorkSafe inspector to serve a notice on the other party who is refusing to complete certain works on the property.  In summary, I think it is a very bad idea. Section 26 of the Occupational Health and Safety Act 2004 (Vic) (OHS […]

If a lease is silent, the common law does not imply against either a landlord or a tenant an obligation to perform capital works on leased property. This has been the source of a significant dispute, as the tenant usually carries the immediate commercial risk if the building is run down, yet the landlord gains […]

A colleague has just referred me to an interesting decision by Judge Ginnane in the County Court on whether a lease for premises in which an eBay business is conducted is a retail premises lease under the Retail Leases Act 2003 (Vic). The Court concluded for various reasons that it could not be satisfied that […]