Robert Hay KC Blog

Tenants

  • 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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  • “Profits method” of rental valuation does not breach s.37 of Retail Leases Act 2003

    The question of whether the “profits method” of determining rentals for hotel premises contravenes s.37(2) of the Retail Leases Act 2003 (Vic) has finally been determined by the Supreme Court of Victoria. Under the “profits method” the valuer estimates the income and expenses of the business with the difference between the two estimates being the…

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  • Lessor’s purpose for demolishing leased building is irrelevant

    Leases commonly permit a landlord to terminate a lease if the landlord intends to demolish the building located on the leased premises. Section 56 of the Retail Leases Act 2003 (Vic) implies terms into a retail premises lease that provides for the termination of lease on the grounds that the building is to be demolished.…

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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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  • Landlord’s consideration of proposed assignment must be “reasonable”

      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 60 of the Retail Leases Act 2003 prescribes when a landlord can withhold consent to a proposed assignment of a retail premises lease. The most significant provision is sub-section 60(1)(b)…

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  • Section 243 of Australian Consumer Law gives tenants a powerful weapon

    There is a translation key (widget) on the mirrored blog for ease of reading for non-English speaking members of the public or professionals. The mirrored blog can be found at http://roberthaybarrister.blogspot.com.au/   Landlords need to be very careful about what they say when negotiating leases because s.243  of the Australian Consumer Law provides a wronged tenant with…

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  • Can a landlord pass to the tenant the costs of complying with the Building Act?

    I recently presented a short paper at the Law Institute of Victoria’s Property Law Conference on the topical question of :   “Whether a landlord can recover from a tenant the costs of complying with the Building Act”   The paper is attached for your download ease.   Property Law Conferencer ( August 2012)(3)

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  • Is a purchaser of land bound by covenants in a lease?

    There is a translation key (widget) on the mirrored blog for ease of reading for non-English speaking members of the public or professionals. The mirrored blog can be found at http://roberthaybarrister.blogspot.com.au/   When premises are sold the question often arises as to whether a tenant can enforce  covenants contained in the lease against the new owner? At common…

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  • Section 52 – when is the lease “entered into”?

    There is a translation key (widget) on the mirrored blog for ease of reading for non-English speaking members of the public or professionals. The mirrored blog can be found at http://roberthaybarrister.blogspot.com.au/   Section 52 of the Retail Leases Act 2003  is proving to be a difficult provision to apply. Section 52 implies into a retail premises lease a…

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