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The maintenance and administration of leases plays a substantial role in the pursuit of businesses which require some physical presence on-site to conduct their affairs. In fact, the lease may constitute one of a business enterprise’s major assets, depending on its terms and conditions. Where a lease is lost, or is terminated for some reasons, so too the business may become unviable, difficult or impossible to continue. Commercial leases, industrial leases and retail leases are therefore or primary concern for any owner of a business who takes the continued growth of his commerce seriously.

Disputes involving leases can therefore be a huge threat to the continued operation of a business. Before any business owner, or prospective business owner, enters into a commercial lease, it would not be remiss to retain the services of a leasing solicitor to peruse the lease’s terms and conditions and advise on its scope as well as how the rights and liabilities of the lessor and the lessee are distributed. A lease may be drafted by one party and put to another, but it should never be assumed that the document is fair on all parties. As a general proposition, the lessor’s solicitors and lawyers may draft the lease in such a way that a reasonable person may think that certain terms are unfair, perhaps even unconscionable. For this reason, it is imperative that no document is signed and entered into without first seeking a thorough review of the leases provisions.

Other than the express provisions of a lease, there may be extrinsic materials that may be used where some part of the lease needs to be interpreted. Alternatively, the lease may refer to some additional document for specific purposes. Moreover, the common law implies certain terms and conditions into all contracts such as the duty of a party not to act unconscionably and to conduct itself in good faith. Thus, some oppressive aspects of a lease may in fact be unenforceable. Statute such as the Retail Leases Act will also have something to say about the rights and liabilities of parties to a retail lease. Signing a lease may bind a party to certain duties, obligations and responsibilities. It is conceivable that signing a lease may also have the effect of excluding certain liabilities on part of the other party. Failing to review and negotiate the terms of the lease before it is executed and comes into operation can have serious and long lasting effects on the business of the lessee.

Disputes relating to leases will reflect, in broad terms, disputes within the contract law practice area. This is because a lease, being an agreement, is a type of contract in and of itself. The terms and conditions of a lease will therefore be interpreted in light of the same principals which apply to contract law. Termination, repudiation, rescission of the lease will likewise follow the general contract law principals and case law. The case law however may create a nuanced approach to how commercial leasing disputes are resolved through litigation. Some issues that lasing disputes may encounter include the following:

  • General interpretation matters;
  • The extent of liabilities of a party to a commercial lease;
  • The manner and process in which notice of certain facts or intentions are communicated between parties;
  • The scope of responsibility of a party to a commercial lease;
  • The exercise of a right under the terms of a commercial lease;
  • Warranties, Indemnities and Guarantees between parties to a commercial lease;
  • Specific dispute resolution clauses;
  • The enforcement of rights under a commercial lease;
  • Disputes in relation to payments under a commercial lease;
  • The legality of purported liquidated damages clauses;
  • The legality of alleged penalty clauses;
  • The exercise of options to renew and holdover periods; and
  • Termination.

A leases litigation law firm will be able to provide detailed and focused leasing advice to either a party wishing to offer a lease to a third party, or assist in the review and negotiation of a commercial lease for a prospective lessee. Commercial leases are frequently used by businesses for office space, and retail leases are often used as the premises on which to operate a shop or some retail facility. Industrial leases may relate to the exclusive occupation and use of factories, warehouses and the like. All of these are different types of leases, although they may relate to very different businesses and they will need to be inspected with the same level of scrutiny by the leasing solicitor before advice can be offered.

To book in your first free consultation with one of our Property Lawyers contatct our Sydney Head office by telephone on (02) 9233 4048 or by email to info@navado.com.au. For a complete list of our branch locations, please peruse our "Locations" tab.

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This webpage (and any material or wording appearing on this webpage) is provided for general information purposes only and does not constitute any Legal Advice. It does not take into account your objectives, your instructions or all of the relevant facts and/or circumstances. Navado accepts no responsibility to any person who relies on the information provided on this website. We further refer you to our Disclaimer.

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