I have recently been told that the Sheriff views a warrant for possession as capable of being exercised only once, after which the warrant goes stale.

This is probably correct in principal because any continuing trespass is broken by the Sheriff giving possession to the land owner, and a new cause of action accrues against the trespasser when he or she breaks back into the property.

However, this creates a problem for a land owner who has a warrant for possession executed against a trespasser who then breaks back in.  It means the land owner would need to make a fresh application to court for a new order and a new warrant, with all the associated costs, delay and frustration.

Consequently, land owners seeking to have a warrant executed against a trespasser should be vigilant in securing the property after the warrant has been executed.

The Governor in Council has today appointed VCAT Deputy President Michael Francis MacNamara as a Judge of the County Court of Victoria.

Deputy President Macnamara has been a long standing Deputy President at the Tribunal and has been responsible for the retail tenancies list for many years.

Congratulations to his Honour on his appointment.

It remains possible that his Honour will continue to sit as one of the Vice Presidents of  VCAT.  VCAT has a number of Vice Presidents, who are required to be County Court judges.

Hello all, and welcome back to the new legal year.

During January, The Age published an interesting comment by an economic analyst about the impact of the shift towards online shopping on rent for retail shops, particularly in light of the recent announcement by Myer that it does not intend to renew a number of its leases.  The author, Michael Pascoe, suggests that this can only have a downward effect on retail shop rents.

He suggests that a number of the current long-term vacancies are caused either by:

1. landlords who are unwilling to respond to changes in the market;  or
2. inflexible lenders who will require repayment of part of their loan in the event that the rent is reduced (the value of a commercial rental property is usually calculated as a multiple of its rent).

He also suggests that some of the larger landlords are cutting deals on rent to protect tenants and that this may have a flow-on effect on second- and third-tier properties.

A copy of the article is available here.

It builds on press on shopping centre rents in August and September last year (see previous posts here and here).

This is relevant to practitioners for both landlords and tenants in a number of ways:

1. it increases the uncertainty of a rental determination if a lease provides for a review to market.  Recent changes to the market will not yet be reflected in many determined or agreed market rents as reviews typically take place every five years.  Consequently, opinions may vary significantly between valuers as to the impact of recent changes to the market.  Practitioners for both landlords and tenants should advise their clients of this uncertainty and consider making submissions to a determining valuer in the event that the rent cannot be agreed;
2. a threat by a tenant to ‘walk’ or refuse to renew a lease may have a greater impact (both in the context of a dispute and of an insolvency);  and
3. the lack of replacement tenants (or replacements at comparable rent) may have an impact on whether landlords commence actions for possession and rental arrears now or delay until circumstances improve.

Further to yesterday’s post, Australian listed companies and their subsidiaries are excluded from the Act (see s 4(2)(c) of the RLA).

This is consistent with the purpose of the RLA to be a form of consumer protection for small businesses.

Section 4(2)(d) of the RLA states that leases of the following premises are not retail premises for the purposes of that Act (emphasis added):

(d) premises the tenant of which is— 

(i) a body corporate whose securities are listed on a stock exchange, outside Australia and the external territories, that is a member of the World Federation of Exchanges; or 

(ii) a subsidiary (as defined in section 9 of the Corporations Act) of such a body corporate; 

Again, this is designed to limit the operation of the RLA to small businesses.

However, it appears that New Zealand is not a member of the World Federation of Exchanges (see here – however, some sites on the web suggest the contrary, eg here).  This means that a premises the tenant of which is a New Zealand listed company or its subsidiary may attract the protection of the Act, which is not consistent with the intention of the RLA to protect small businesses only.  The latest Ministerial determination appears to be directed towards regularising this anomaly.

Thanks to Jamie Bedelis for his assistance with the contents of this post.

‘Use’ of an Alpine sub-lease was defined today by Judge Kennedy in the County Court of Victoria as requiring the sub-tenant to physically occupy the premises.

In Evans & Ors v Thurau [2011] VCC 1444, two sub-tenants were required under the terms of their sub-leases to make their alpine apartments available for use by the general public when not being ‘used’ by them.

The sub-tenants had their apartments set up for themselves but only stayed at the apartments for part of the ski season.  They did not make the apartments available to the public when they were not staying there.  The Court found that the word ‘use’ in the context of these sub-leases required the tenants to be physically present at the apartments in the general sense of staying there (rather than actually sitting in their rooms) and that, accordingly, the sub-tenants were in breach of their sub-leases.

I have been told that a large number of Alpine ski leases contain similar requirements and that this decision could have an impact on a significant number of leases and sub-leases in the Victorian ski fields.