Commercial Property Blog

This blog explains how an oral contract for the sale of property may be enforced and discusses a recent decision of the NSW Supreme Court on this issue.

Arguably, the most fundamental term within a leasing agreement relates to rent, with this being the frequent subject of lengthy negotiations, and oftentimes disputes, when things go sour.  One issue continuously encountered within the realm of property law is the failure of a tenant to pay rent to their landlord, and the tenant subsequently falling into rental arrears.  

With the Australian federal election now done and dusted, we can all take a step back and breathe a sigh of relief.  With this said, and with Saturday's result still fresh in our minds, Coleman Greig has published this piece in order to outline the impact that the Coalition's victory is likely to have on Australia's property and rental markets.

A 'demolition clause' is a lease term which gives a Landlord the authority to terminate a lease in order to take on repairs, renovations or the complete reconstruction of a leased premises.  Demolition clauses are sometimes seen as controversial, and can be the catalyst for disputes relating to the termination of leases.

The Supreme Court of NSW recently handed down a decision in the case of Kegran Pty Ltd v Warrik Pty Ltd, which highlights a number of important steps for tenants to take in order to validly exercise their option to renew a lease and avoid unnecessary proceedings.  

The new Western Sydney Airport at Badgerys Creek is set to have a profound impact on both residential and commercial property within the Western Sydney Growth Corridor.  Thanks to new developments surrounding the new Aerotropolis, as well as a range of other investment commitments, the Federal Government is expecting significant economic and employment growth within the region in the years to come.  

Regardless of whether you are a franchisee purchasing a franchise from a franchisor, or you are a franchisor buying a business back, it is crucial to review the lease that has been put in place in order to ensure that you are aware of the tenant obligations that you are also acquiring.

When thinking about terminating a lease, it is important for parties to both exercise caution and avoid terminating without first obtaining relevant legal advice.  Seeking professional legal advice prior to making a decision to terminate will provide parties with assurance that the opposing party's failure to comply with the lease obligation does actually give them the right to terminate.

Whilst it was just last year that the property industry was forced to get its collective head around the conveyancing portion of the Property Exchange Australia (PEXA) system, it has since 10 December 2018 been possible to register leases via PEXA - an update that has required many to take an even closer look at the growing benefits of the electronic conveyancing platform.

Whilst, at first glance, section 68 of the Retail Leases Act 1994 may suggest that mediation is a compulsory step prior to the commencement or continuation of any court proceedings concerning a retail tenancy dispute, the court has determined that it will not necessarily block proceedings.

The Electronic Transactions Regulations restrict the electronic witnessing of documents, meaning that unfortunately, going completely paperless must wait - and in turn, so must real estate agents, landlords and tenants looking to finalise their property deeds in a timely manner.  The State Government has already recognised that this legislation is becoming obsolete, and as a result, the Conveyancing Legislation Amendment Bill 2018 (NSW) was recently introduced in State Parliament.

Here in Australia, it typically takes over a month to settle a real estate transaction, however this time would likely decrease if the process became completely paperless with a move over to blockchain technology.

The First Home Owner Grant has always been a topic of heated debate, whether it be in parliament, the media or at the family dinner table, although it is important to remember that there is a difference between this and the First Home Buyers Assistance Scheme.

Generally speaking, downsizers are homeowners looking to reap major profits from the sale of their properties, with the overarching goal being to spend that extra cash on the purchase of a smaller property with modern luxury fittings, as well as convenient access to both local attractions and high quality amenities.

When going through the negotiation process associated with signing a new lease term, it is of crucial importance that parties to the lease take adequate steps to effectively safeguard their position.

The NSW Government has proposed the Fair Trading Amendment (Short-term Rental Accommodation) Bill 2018 (Airbnb Reform Package). The introduction of the reform package aims to clarify whether an owner's corporation can impose a by-law preventing short-term letting of a residential property.

The NSW Government recently announced that new laws giving further protection to off-the-plan property buyers would be introduced to state parliament later in the year.

Various issues can be overlooked in the rush to have a document signed and finalised, and because of a landlord's pressure to have a standard document for a complex or centre. Such omissions may have an adverse impact on the retailer tenant.

In light of the recent warnings from the Banking Royal Commission, it is important to understand how tightened lending and a surge of low housing prices can affect you, your property and any future investments.

The new Budget affects a wide range of property areas, although one particular area of interest is the affect that it is set to take on 'land banking' and housing affordability.

Commencing on 6 July 2018 the NSW Government will introduce a new Low Rise Medium Density Housing Code ('The Code') which is more than likely to affect your area.

In response to the growing and widespread need for affordable Australian real estate, there has been a recent surge in digital platforms offering 'co-ownership’ solutions.

The ‘Strata Defects Regime’ commenced on 1 January 2018. The regime now makes mandatory an interim and final inspection, as well as an interim and final report is to be conducted by an independent building inspector appointed by the developer - and a 2% building bond is payable by the developer in relation to any potential defects.

Whilst some people tend to believe that a foreign person leasing a property for the purposes of commercial or industrial business will not require FIRB approval - this is not the case in circumstances where the land being leased is vacant/not yet developed.

In efforts to facilitate a more efficient process when it comes to purchasing property, the NSW government has implemented an e-conveyancing system to assist purchasers and sellers.  

The terms ‘technology’ & ‘millennial’ often go hand in hand when describing the technological savvy generation - but how about ‘millennial’, ‘gaming technology’ and ‘commercial real estate’?

When a tenant decides to exercise an option, the lease usually contains a mechanism for how their rent is to be determined, and once this is determined, would be payable from the start of the option lease…But what happens in situations where the rent review provisions are deemed void under the Retail Leases Act?

When entering into a leasing contract, rent is an essential term - and must be paid on time by the tenant as part of the tenancy agreement. But what happens when your tenant stops paying rent?

In recent years, short-term leasing your home while on holidays has been viewed as a popular way to generate income, but what does your Strata Committee have to say about it?

The more I look at 'permitted use' descriptions (ie. how the tenant will use the premises during the term of the lease), the more I feel that you can’t have a bet each way.  

As the months have passed by, the Grenfrell Tower tragedy has left us all asking the question of what to do about properties with exterior cladding.

Last year the Unfair Contract Regime (Unfair Regime) was introduced to apply to standard form Contracts. The Unfair Regime has far reaching effects - probably more than some of you realise.

During the negotiation stage of any contract, statements which aim to encourage a party to enter into a contract may be made. However, if one party makes a false statement in hopes of inducing the other to enter into the contract, legal action may be brought against them.

Several changes to the Retail Leases Act 1994 came into effect on 1 July, 2017. It’s important to understand what has changed and how it affects both landlords and tenants - there are 11 vital changes to be aware of.

Commercial leasing can be complex and there are an array of aspects which both landlords and tenants need to be aware of. These are six things you need to know.

On 9 May 2017, Treasurer Scott Morrison presented the 2017-2018 Federal Budget to Parliament. In this article I will guide you through the three key changes in relation to the property landscape.

Understanding the difference between a lease and a licence in property is important when considering what type of arrangement is best for you and your business.

If you own a house or an apartment, short-term letting platforms can be straight forward however, if you’re a tenant who wishes to short-term let the premises that you’re occupying, the waters become muddier.

There are occasionally instances where a landlord and their tenant may disagree on the meaning of a term after the lease has commenced.

Businesses are incorporating sustainability practices into their business models at a rapid pace and the leasing world has taken note with the introduction of ‘green leasing’.

An option to purchase is an agreement where the tenant has the right to purchase the property at the completion of the lease. There has been an increasing number of ‘rent-to-buy’ or ‘option to purchase’ clauses in residential leases.

Reforms to the Land Acquisition (Just Terms Compensation) Act 1991 ‘Just Terms Act’ came into force on 1 March, 2017. Here are the key changes that you need to be aware of.

The process of entering into a Lease Agreement can be time consuming and complex. This process can be affected by a number of factors which can result in the parties not constructing a formal written agreement.

Buying a commercial property is a big investment that comes with a series of benefits. If you’ve been thinking about whether or not to make the leap, here a couple of pros and cons to consider before locking anything in.

The Strata Schemes Development Regulation 2016 will commence on 30 November, 2016.

According to PricewaterhouseCoopers (PwC), Parramatta is looking to double its economic growth in just five years. In a report commissioned by the City of Parramatta, PwC estimates that the ‘second-CBD’ will see its economy grow by almost $7 billion!

On 12 November 2016, legal protection for unfair contract terms will expand to include small business contracts. The question is however, how these new changes will affect leasing.

Kameleon Homes is a building company that has recently been in the news for all the wrong reasons, leaving both disgruntled homeowners and contractors in the lurch after jobs have been uncompleted after payment and debts left unsettled.

In my third and final blog of this series, I’ll uncover the benefits of preventative maintenance, dispute resolution strategies and strata management solutions that are available to Owners Corporations.

When an owner and occupier of a commercial building sells that building but stays on as tenant, it is called a sale and leaseback. Many major companies have opted to use sale and leaseback, and it is certainly on the rise in commercial property. 

In Part 2 of my strata schemes series, it’s time to delve deeper into the specific responsibilities of the Owners Corporation and the Executive Committee, as well as explaining the various types of levies that may apply to members of the Owners Corporation.

Part one of our three-part series on strata schemes. This blog provides an overview of what a strata scheme is, and its general composition.

The recent case of Tan v Russel [2016] VSC 93 has highlighted the consequences when a purchaser fails to recognise the distinction between an ‘Agent’ and a ‘Real Estate Agent’ when exercising their cooling off rights.

It doesn’t matter if you’re the landlord of an industrial, retail or residential property – your objective is the same - to find a good property and an equally well-suited tenant. Here are the top five mistakes that landlords make in achieving these goals.

Offices leases are essentially commercial leases and it’s important that landlords and tenants alike are on top of their respective rights and responsibilities however, there are some differences. Here are three points to consider.

There have been many discussions and concerns voiced around the impact of overseas investors on the Australian residential property market in recent times. What impact, if any, is there for commercial real estate?

There have been many discussions and concerns voiced around the impact of overseas investors on the Australian residential property market in recent times. What impact, if any, is there for commercial real estate?

Landlords, consider yourself warned! American tenants have (humorously) highlighted the perils of using electronic lease agreements, reminding landlords everywhere of the importance of reviewing the lease carefully before signing.

There are substantial differences between retail and commercial leases that both landlords and tenants ought to be aware of. Here are some key differences that you should consider before entering any lease.

Minister Brad Hazzard and Parramatta MP, Geoff Lee, have announced that Telopea will receive a fresh start and 'rebirth' with plans to invest $2.5 billion dollars on refurbishing the small suburb in the next 10 years.

Ralph Martin, Crowe Horwath, has said that the International Accounting Standards Board issued an update that removes 'operating' leases. The change is expected to take effect 1 January, 2019.

You probably go to your local doctor once a year to make sure everything is in working order, right? Well, it also makes good sense to do the same with your business – taking stock and doing a ‘check up’ in the New Year.

If you're consider taking out a commercial or retail lease, here are five things to consider before committing.

On 17 November 2015 the NSW Government passed the Conveyancing Amendment (Sunset Clauses) Act 2015 to provide further protection for off the plan buyers. You might find yourself buying off the plan one day, and you should know how these changes might affect you.

Last month, a commercial property sold for an astonishing $8.2 million in Kingsgrove. The agent responsible for selling the property noted that this significant price was gained due to the building’s proximity to the train station, M5 off ramp and general closeness to the city. It also helped that one of the local shopping centres has been earmarked for redevelopment which would bring more commercial tenants to the area.

The trend of foreign investors buying into the Australian market continues to grow, with a report by commercial property giants, CBRE, confirming that 56% of all commercial property purchasers were made by foreign investors. This is the highest proportion of overseas investors in the last decade, and an increase of 8.5% from the same period last year.

Global real estate agency DTZ has released figures which show that Sydney is the tenth most popular commercial real estate investment city in the world. During the last financial year, Sydney attracted $11.2 billion worth of real estate investment, which is up by 16% on the previous financial year.

I wrote a few weeks ago about the diligence needed by prospective purchasers of commercial property. However a unanimous decision by the High Court indicates that commercial investors will have to be just as careful, particularly when drafting their contract to protect their own interests.

Are you a prospective commercial tenant and business-owner in an increasingly competitive and rapidly changing industry? You’re not alone - many commercial tenants are veering towards more flexibility within their leases.

Owning your own business means living the dream right? Purchasing into a franchise or small business can appear, at first glance, as a relatively simple and risk-free way of taking control of your career. However, the rush felt by prospective business-owners often leads to overlooking a critical aspect prior to starting up - due diligence, and at the end of the day, the buck stops with you.

If you’re drafting a lease, it goes without saying that you want to be clear and unambiguous about the terms – this includes what needs to happen regarding fixtures. The case of Whitehorse Properties Pty Ltd v BP Australia Pty Ltd demonstrates what happens when actions regarding fixtures are left open to interpretation.

The best laid plans of mice and men can go astray. Before agreeing to act as guarantor for a tenant, make sure you know what you may personally be liable for if things don’t go according to plan. The decision from the New South Wales Supreme Court in Padstow Corporation Pty Ltd v Fleming (No 3) [2013] NSWSC 24 illustrates the position you could find yourself in if a tenant breaches their lease.

If you’re operating a business within a licensed venue, don't assume that you’re covered under the Liquor Act - otherwise you might find yourself out in the cold with a business to run and nowhere to run it.

Did you realise that you can be locked into a commercial Lease without even signing the papers? If you’re shaking your head, you need to take a look at the case of Priolo Corporation Pty Ltd v Vantage Systems Pty Ltd.

This case illustrates how inherently important time management is in the rent review process and the need for a time-conscious lawyer to work on your rental review.

This case illustrates that when it comes to your lease, you should always have written correspondence from your landlord, rather than having to rely on comments made in passing.