Apr

Queensland Law Society Propose Retail Shop Lease Changes

Greater certainty is wanted in relation to retail shop leasing. Changes are sought by Lawyers in relation to certain aspects of the Retail Shop Leases Act 1984 so that both tenants and landlords can operate with greater certainty. The following matters are being suggested as areas in need of improvement :

1. When an office tower forms part of a retail shopping centre there is doubt about when this has the effect of deeming all tenancies to be a retail shop leases. Retail shop lease tenants enjoy legislative benefits and protection that other commercial tenants do not.

2. Unlike residential conveyancing there is no mechanism by which disclosure periods can be shortened. This means that settlements of business sales must sometimes be delayed in order to allow disclosure periods to expire.

3. It is very difficult to comply with the disclosure of outgoings when there is an agreement for lease and no set commencement date.

4. Certain minimum lease standards are unclear including

a. the release of outgoing tenants and guarantors upon an assignment of the lease

b. relocation and demolition requirements

We will keep you informed of developments.

RIBA Business Lawyers

Strength Through Knowledge

Franchising, Leasing, Acquisitions

Head office: 34 Duporth Avenue, Maroochydore, Sunshine Coast, Queensland.

Maroochydore: 07 54791488

Brisbane: 31032115

Mar

Tenant Breach may not mean termination!

In our last article we described how it is necessary for a Queensland landlord to issue a form 124 notice before taking any steps to retake possession of premises from a tenant who holds those premises under a Queensland Commercial Lease.

A commercial tenant will always have the right to apply to the courts for something called “relief against forfeiture”. The relief may be given even if the tenant is in default of the lease and even though the lease specifically provides that the landlord has the right to terminate.

Courts have a wide and unfettered discretionary power to take into account all of the circumstances before deciding if the Court will allow a landlord to retake possession from a tenant. Therefore a landlord may not have the ability to terminate a lease even if the tenant is in default.

A tenant cannot claim relief against forfeiture before the landlord has commenced proceedings for possession or has taken possession.

If the tenant anticipates that the landlord is making preparation to take possession then the tenant may apply for an injunction. The tenant may do this once the section 124 notice is served.

So how does the court decide if it will grant this “relief against forfeiture”? Read more

Mar

How to remove a defaulting tenant.

If your Tenant has failed to pay rent or is in breach of some other essential term of the Lease, you may decide that terminating the Lease and searching for a new Tenant is the best way for you to limit your losses. It may be, for instance, that the tenant is impecunious.

Before you will be able to “change the locks” and re-enter your property, Section 124(1) of the Property Law Act provides that you must first serve on your Tenant a notice which states the breach complained of and what the Tenant has to do to remedy the breach.

It is in your best interests that any breach notice is issued correctly the first time. You must ensure that the breach notice is factually accurate and complies with the technical requirements imposed by law.

Providing a defective notice can be costly.

Firstly, a defective notice may give the Tenant the ability to have the notice set aside. This would force you to re-issue the notice thus delaying your efforts to terminate the Lease. This may allow the Tenant to continue to occupy the Premises while in breach until such time as the notice is re-issued correctly. Read more

Nov

Do Contracts Need to be in Writing?

Many people wrongly believe that if an agreement is not put in writing they are not required to honour the agreement. This is incorrect (except for some exceptions, one of which is noted below). A verbal agreement may be enforced by either party to the agreement regardless of whether that agreement is in writing. So be careful what you agree! The difficulty you may have guessed is, proving what was agreed. Indeed we see many agreements, even written agreements that are very unclear. There is sometimes so little detail or, so little care taken, that it is difficult to know what the parties are intending. Read more

Sep

When is Land Tax Payable?

Land Tax Thresholds Change regularly.

You should contact Riba Business Lawyers to ensure that the rates have not changed since the date of this Post.

For Individual who are resident in Queensland.

Taxable value	Rate of tax
$0–$599,999	$0
$600,000–$999,999	$500 plus 1 cent for each $ more than $600,000
$1,000,000–$2,999,999	$4,500 plus 1.65 cents for each $ more than $1,000,000
$3,000,000–$4,999,999	$37,500 plus 1.25 cents for each $ more than $3,000,000
$5,000,000 and over	$62,500 plus 1.75 cents for each $ more than $5,000,000

For Trust and Companies

Taxable value	Rate of tax
$0–$349,999	$0
$350,000–$2,249,999	$1,450 plus 1.7 cents for each $ more than $350,000
$2,250,000–$4,999,999	$33,750 plus 1.5 cents for each $ more than $2,250,000
$5,000,000 and over	$75,000 plus 2.0 cents for each $ more than $5,000,000

Land Tax valuations do not normally include the value of the building. For advice please contact us.