If you require commercial lease documents prepared (a new lease, extension, variation, assignment or surrender) or a review of a lease document performed, then you may like to read on.
A poorly drafted leasing can potentially cause significant problems and result in you incurring financial loss, which in some cases may not arise for years after the document in question is executed. As such, accuracy in drafting is crucial to ensure that the document correctly records the agreement and intentions of the parties to the lease.
If you are a tenant (also referred to as the Lessee) and inexperienced with leasing documents it may be tempting to simply rely on the advice of the landlord (also referred to as the Lessor) or the managing agent and sign the document where indicated without carefully reading it yourself or having it reviewed on your behalf by a lawyer. A word of caution – the ‘she’ll be right’ approach is seldom a good idea when it comes to leasing. If a dispute subsequently arises down the track it will likely be resolved by reference back to the leasing document/s in question. If that document is ambiguous or unfavourable to your position, then you may suffer significant financial loss as a result. In other words, you are well advised to not leave things to chance and instead, carefully consider whether you ought to obtain some practical advice about your rights and responsibilities under the lease agreement. Amongst other things, this will help you understand what some of the ‘worst case’ scenarios may be for you if things do not go to plan.
Further, there are certain tenancies which are ‘retail’ leases for the purposes of the Commercial Tenancy (Retail Shops) Agreements Act 1985. If your lease falls into this category, then certain statutory rules apply which a landlord cannot avoid. In some cases, it will not be immediately apparent that a lease is in fact a ‘retail’ lease and the landlord may proceed on the basis that it is not. This can have potentially significant consequences for a landlord in the future if the ‘wrong’ type of lease is put in place in the first instance and yes, it does happen from time to time.
Furthermore, leasing in WA has more recently been significantly impacted by the passage of the WA State government Commercial Tenancy (COVID-19 Response) Act 2020. For example, this legislation has imposed statutory rules on the manner in which landlords and tenants must act in respect of negotiations and what actions a landlord can (or can’t) take if a tenant is unable or unwilling to pay rent and other expenses under the terms of the lease. In short, the ‘old’ rules no longer apply and you will likely need to be aware of how these changes may impact upon your lease.