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Deborah Awyzio
Deborah Awyzio, Solicitor
Category: Australia Law
Satisfied Customers: 863
Experience:  Bachelor of Laws (QUT), BIT (QUT), Family Law Accredited Specialist, over 12 years experience
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Dear Sir/ Madam, I lease a child care centre

Customer Question

Dear Sir/ Madam, I lease a child care centre property and building in NSW. I own the business. When I signed the new lease 3 years ago ( the lease was not assigned from the former tenant), a low, timber deck which surrounds two large trees in the back playground was present. The deck was constructed by the former tenant, as I understand, to eliminate the tripping hazard caused by the large protruding root system of the trees ( ficus benjamima). The deck sits on the ground and is only about 20-30 cm high. I think it was probbly constructed of treated pine though I cannot be sure. The landlord now requires me to raise the entire deck 75mm off the ground so it can be inspected for termites. The landlord states that the deck was constructed by her former tenant and was done without her permission, therefore I am responsible for the deck. I have been maintaining the deck by replacing broken boards as needed. In previous correspondence with the landlord I have accepted responsibility for the deck as part of the business. However, lifting the deck is probably impossible if not extremely expensive. Removing it would result in the tree roots again being a tripping hazard for the children. I have just spent $2500 on trimming the trees as the landlord has required. As the landlord now requires major changes to the deck, can you advise if I am responsible for making and paying for those alterations. Alternatively if the deck is removed then the tripping hazard posed would not pass DoCS regulations, removing the trees completely is another big expensie for me. Thank you Jennifer XXXXXX mob: XXXX XX XXXX

Submitted: 2 years ago.
Category: Australia Law
Expert:  Leon replied 2 years ago.
Good Afternoon

Thank you for your question. To Introduce myself I am a sydney based Solicitor and will do my best to provide you with relevant information to assist you.

Please be patient as I am travelling overseas at the moment and with time differences and access my responses may be delayed.

You say you signed a new lease. This means that the old lease with the previous tenant expires and you are governed by what you signed. There does not have to be an assignment in this case.

You only have an assignment of lease if you are taking over the existing lease from the former tenant.

What does the Lease say about the deck and the responsibility of the parties? If the lease says nothing then it is a fixture and a structure and it is the landlords responsibility.

You need to look at whether the lease says it is your responsibility.

When you signed the lease did you have a Solicitor give you advise?

If so do you recall them mentioning the deck?

Customer: replied 2 years ago.

Thanks for your response. I know the lease quite well and it does not mention the deck at all. I did get solicitor advice at the time. The landlord is disclaiming ownership to all fixtures as I have raised them as needing repair or replacement due to fair wear and tear (19 years old). The old lease was not assigned.

Expert:  Leon replied 2 years ago.
Good Afternoon

He cannot disclaim ownership.

If you read the lease under Landlords responsibilities it sets out anything of a structural nature is his responsibility.

Even the trees are his responsibility and you should not have paid for them to be cut back.

The lease you have is a new lease not the old one and you have too rely on what you signed.

The leases are very clear on landlord responsibilities.

If you have the lease with you, you should look at that section and also the tenants responsibilities and show the landlord and deny any liability.

Does this make sense?

Customer: replied 2 years ago.

Yes okay thanks. I'm 99% certain the lease says all structural issues plus replacement due to fair wear and tear are her responsibility. However every time something needs doing, she says its my responsibility. termites have now been identified in the roof and she is claiming I have been negligent and wants me to pay for repair, termite barrier and other work. I'm not questioning your knowledge but if I go down this path with her, do you think it will hold up in court? Its unlikely she will take that path as she doesn't have the money to begin a court case, but I want to be certain I am on firm ground. Can I contact you again after I have read the lease more thoroughly, under this payment.

Expert:  Leon replied 2 years ago.
Good Afternoon

You cannot be held liable for fair wear and tear of structural items it is his responsibility.

You need to look at the detail in the lease. If it is silent it is not your responsibility. Ignore what he says.

Yes you can I will not be on for the next day or so Leave tonight for london and have to leave hotel soon.

Let me know how you go and when I log on will get back to you.

Customer: replied 2 years ago.

thanks, Im going away myself now for a couple of days so will read lease and the points you mention by end of this week and will touch basis again then. Best regards and thankyou.

Expert:  Leon replied 2 years ago.
Good Afternoon

Look forward to hearing from you and have a good break.

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