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Leon
Leon, Solicitor
Category: Australia Law
Satisfied Customers: 43512
Experience:  BEc Dip Ed, Dip Law (SAB) MTax (UNSW)
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When i bought the business, the retal lease was transferred

Customer Question

When i bought the business, the retal lease was transferred to me and the rental term period was extended to give me 5 years.There was no new disclosure statement in my name .I was provided a copy of disclosure statement in between previous landlord and the tenant.
The landlord is previous business owners wife.They gave me 6 out 8 parks and are subletting the other two car parks.However,I am not allowed to sublet as per the lease document.
There is a clause in the lease which says ' tenant must repainr or refinish all painted or finished surfaces in a workmanlike manner with as good quality materials as previously at least once every 5 years during the term and any further term viewed as one continuous period".
The premises is being as allied health practice.
The landlord does not perform any structural repairs and the building has not been painted for more than 15 years.The landlord has sent me a notice to repaint the building however no structural repairs have been carried out.
What are my obligations and do I paint the interior or exterior or both to a new condition or to the condition i took over without any structural repairs?
What are my rights to get structurel repairs and possible compensation fro not allowing access for car parks?
The car parks are rented to another solicitor.
Thank you
Submitted: 1 year ago.
Category: Australia Law
Expert:  Leon replied 1 year ago.
Good Afternoon
My name is ***** ***** I am a NSW Solicitor. Thank you for your question, and will do my best to assist you with your question.
You have to meet your obligations
If you have requested work be done by the landlord and they have refused then you can argue they are in breach.
Do the repairs cause any problem with you running your business or are they a danger?
Customer: replied 1 year ago.
to repaint the building all the cracks have to filled in and rot in the windows have to be fixed and then paint applied.That is Costing $60000.00 as per estimate from painter.
The clause is not clear for interior and exterior .no one is able to answer-the solicitor i consulted or VSBC
However to bring it to condition at the time of lease take over will cost 2500.00.
Why should i repaint to new condition and not condition at the take over of the lease?
The Building is heritage listed.would require council permission and heritage society permission for painting.I don't think it should be my responsibility?The disclosure statement was not given.I was not provided any estimation of repainting at the time of lease takeover.Or else i would have never agreed?Do i still have to do it? can you please provide with a link of any decisions made by VCAT on such matter before.Retail lease ACT is not clear on this.
Can't use a car park as the water piles up there and the pot holes can be a potential hazard?Have not been provided with all car parks as mentioned in the lease.
The water leaks through the front door into the premises when it rains.How do I proceed further?
Expert:  Leon replied 1 year ago.
Good Afternoon
If the cracks are part of the structural repairs you need to make a request in writing to have them repaired
Do not rely on phone calls they are very hard to prove.
Put the request in writing and refer to the section in the lease you rely on.
You will need to get a builder to come and have a look and give you a report on the cause of the cracks. But this should not be done in haste as it will cost.
You take photos of the issues and send the request to the landlord and advise they are structural and have to be repaired before you can paint.
You received a copy when you bought and this is all that is required.
You do not have to be give costings at the time.
You were given is the lease and the disclosure statement that was given to the original tenant.
You also took possession and under the act you are stuck as a tenant.
You need to set out all the issues in writing.
You cannot just complain about them and not follow through.
So anything that is his responsibility you have to set out in wiring to him and advise that you cannot comely until his work is done.
I hope this makes sense?
Customer: replied 1 year ago.
The disclosure statement has not been given to me since the lease take over in my name.Does it have any implications on Landlord?
The disclosure statement to previous tenant says"This is subject to the amount required to be expended by the Tenant in order to comply with the terms of the lease"
it does not give the exact amount in the total outgoings.
Customer: replied 1 year ago.
How does it affect the landlord?
The disclosure statement was not given.I was not provided any estimation of repainting at the time of lease takeover.Or else i would have never agreed?Do i still have to legally do it?
Can you please provide with a link of any decisions made by VCAT on painting clauses before?
Expert:  Leon replied 1 year ago.
Good Afternoon
You said in your initial question "There was no new disclosure statement in my name .I was provided a copy of disclosure statement in between previous landlord and the tenant"
Was this given to you?
Customer: replied 1 year ago.
yes ,there was a disclosure statement for previous tenant for tenancy agreement between previous tenant and landlord provided.
However, as per the ACT it should be provided to the new tenant in their name and also one provided every accounting period.Is that true?
The statement (previous tenant for tenancy agreement between previous tenant and landlord ) I was provided under Repairs and Maintenance mentions "This is subject to the amount required to be expended by the Tenant in order to comply with the terms of the lease"
Since I was not provided with any estimations of cost of painting and expectation of the level of painting, Would I be liable for painting ?
Expert:  Leon replied 1 year ago.
Good Afternoon
The lease was their lease assigned to you I would assume and you accepted it and took possession.
Under section 7 because you have taken possession and paying rent you are bound by the lease and it is too late to argue the disclosure statement.
http://www.austlii.edu.au/au/legis/vic/consol_act/rla2003135/s7.html
The disclosure statement only deals with what the landlord pays and you are liable to reimburse them for.
Any repairs that they have to do is their responsibility.
Again the painting that you are required to do is not in the Disclosure statement.
You cannot rely on not being given it to break the lease or avoid painting.
You have to paint the premises and I assume you signed ana assignment of lease.
The cracks may not be your responsibility if they are structural. If they are structural they are the landlords cost and responsibility.
You do not have to repair them before painting.
You are liable for everything that the lease says the tenant is liable for.
If you were exercising an option or a new lease he has to give you a new disclosure statement
http://www.austlii.edu.au/au/legis/vic/consol_act/rla2003135/s26.html
Section 41 od the act says you cannot be liable for capital costs. This applies to the cracks
http://www.austlii.edu.au/au/legis/vic/consol_act/rla2003135/s41.html
For the outgoings you have to be provided every year an new statement. This only applies to rates, water rates etc not paining.
http://www.austlii.edu.au/au/legis/vic/consol_act/rla2003135/s47.html
So you cannot avoid the painting it is part of the lease and you have to comply.
But you do not have to fix the cracks.
The repairs are only the painting and reinstating the place to what it was when the original lease was entered into. Nothing more.
This includes a fresh coat of paint if it is under the lease.
The painting is not an outgoing and does not have to be disclosed and never is.
I know you would like me to tell you something else but I cannot.
But you do not have to fix the cracks.
I hope this is clearer?
Customer: replied 1 year ago.
Thanks for your reply and advice.Regarding the carpark issue ,where 6 out of 8 car parks are given to me and 2 being sublet.However, the lease assigns all the premises to me. There is no sublet clause for me as a tenant.However, the landlord is doing double dipping and subletting 2 car parks to another party. What are the implications for the landlord and compensation which can be sought by me?What are the implications for landlord for not repairing the car parks which are not being able to be used?
P.S> all the rates of the property are paid by me under outgoingsI was informed by the solicitor I saw that i can find VCAT decision on a case painting issue during the term on www.austlii.edu.au. However, I have been unsuccessful to find it.Can you please help?
Expert:  Leon replied 1 year ago.
Good Evening
If that is the case you can seek to have the rent reduced as you do not have use of everything.
The landlord is in breach.
Also an issue for you is why have you not reported this earlier, this will be a question the court will need to know the answer too. Silence can be a sign of acquiescence by you changing the lease.
If you have complained this is in your favour.
Again the non repairing is his issue but you should have made complaints and have evidence of it. If you have said nothing, he cannot be blamed for failing to repair as he can deny knowledge.
Here is the link at austlii
http://www.austlii.edu.au/au/vic/
Click on Victorian Civil and Administrative Tribunal 1998- (AustLII) and then search
All the best
If there is nothing further thank you for using my services.
If I have missed anything, or you have any further questions please let me know
If there is anything else in the future please do not hesitate to ask.
Please do not forget to leave positive feedback.
Regards
Leon
Expert:  Leon replied 1 year ago.
Good Afternoon,
I'm just following up our discussion earlier this week and seeing whether there is anything else I can assist you with.
If I have missed anything, or you have any further questions please let me know.
If there is anything else in the future please do not hesitate to ask.
Please do not forget to leave positive feedback.
I look forward to hearing from you.
Regards
Leon

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