Robert Hay KC Blog

Landords

  • AirBnB guests occupied apartment under a lease

    VCAT recently held that a tenant had not breached a lease by permitting users of AirBnB to stay in the tenant’s apartment. The landlord argued that the tenant had breached the lease by subletting the apartment in breach of the lease. The landlord sought possession of the apartment. The cornerstone of a lease is that

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  • Valuers must furnish detailed reasons for rental determinations under Retail Leases Act

    Valuers determining the “current market rent” rent under leases concerning retail premises must ensure that the valuation: contains “detailed reasons” for the determination; and “specify the matters to which the valuer had regard in making the determination”. See: s.37(6)(b) and (c) of the Retail Leases Act 2003. Both requirements must be met; a determination that

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  • Unfair term provisions provide tenants with a new weapon

    Tenants with less than 20 employees will soon have a new weapon in disputes with landlords as a result of amendments to the Australian Consumer Law: they will be able to challenge a term in a lease that is  “unfair”. The legislation effecting the changes, the Treasury Legislation Amendment (Small Business and Unfair Contract Terms)

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  • Hopeless proceeding can result in a cost order under Retail Leases Act 2003 (Vic)

    The weakness of a party’s case in a retail tenancy dispute can be taken into account in determining whether or not it has “conducted” a “proceeding in a vexatious way” that would entitle the other party to a cost order under s.92(2) of the Retail Leases Act 2003 (Vic). Part 10 of the Act contains

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  • Landlords likely to consider gross leases

    Today I commented on an advisory opinion given by the President of VCAT, Justice Garde, in which His Honour decided that: (a)    a landlord could not recover from a tenant the costs of complying with essential safety measure requirements imposed on the landlord under the Building Act 1993 and its regulations; (b)  a landlord

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  • Landlord cannot recover essential safety measure costs or the costs of complying with s.52 of Retail Leases Act 2003 (Vic)

    Landlords cannot require tenants under retail premises leases to undertake and pay for the work that a landlord must perform  to comply with the essential safety measure requirements contained in the Building Act 1993 (BA) and its regulations. Nor can a landlord require a tenant to pay as an outgoing the costs that the landlord

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  • Tenants should dispute rent nominated by landlord within time period specified in the lease

    Tenants should dispute the rent specified by a landlord at a rent review date within the time specified by the lease. Dire consequences can follow if the time periods are ignored . The rent review process for setting the market rent commonly provides for: the landlord to propose the new rent and, if the tenant

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  • “Claw back” of lease incentives thrown into doubt

    Landlords often offer incentives to a tenant to encourage the tenant to enter a lease. Common incentives are rent free periods and contributions to the fit out. The logic behind the inducement is that landlord will benefit because the tenant will occupy the premises for the term of the lease. Landlords sometimes require a “claw

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  • Mortgagee lender does not have duty of care to ensure that a loan is appropriate for borrower

      There is a translation key(widget)  on this blog for ease of reading for non-English speaking members of the public or professionals. http://roberthaybarrister.blogspot.com.au/   Defaulting mortgagor borrowers defending court proceedings by the mortgagee lender often allege that the lender owed them a duty to investigate their income and assets and liabilities to determine whether the

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  • Parties can agree to higher standard than that imposed by s.52 of Retail Leases Act

      There is a translation key(widget)  on this blog for ease of reading for non-English speaking members of the public or professionals. http://roberthaybarrister.blogspot.com.au/   Section 52 of the Retail Leases Act 2003 implies into a “retail premises” lease an obligation on landlords to maintain “in a condition consistent with the condition of the premises when

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