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I signed a lease on a retail premises in Sydney CBD. The previous

Customer Question
tenant had erected a sign...
I signed a lease on a retail premises in Sydney CBD. The previous tenant had erected a sign on the front of the building above the entrance to my tenancy. This sign was not stipulated in the lease and I did nothing about changing it for several months. The building changed ownership and the new owners have given the sign to another tenant in the building with a tenancy on Level 4 who have an entrance adjacent to my tenancy.
Do I have any implied rights to the sign as it was an improvement made by the previous tenant within my lot? The current "owners" of the sign did not submit a DA in order to change it that I can find in the SCC system. Should they have? What can be done about my getting the sign back if anything?
Submitted: 2 years ago.Category: Australia Law
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6/22/2015
Solicitor: James D. Ford, Solicitor replied 2 years ago
James D. Ford
James D. Ford, Solicitor
Category: Australia Law
Satisfied Customers: 1,601
Experience: Consulting Principal at Nexus Law Group
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Hi, please leave this query with me for a short time.. and I will revert back to you with my findings. Kind regards, James
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Solicitor: James D. Ford, Solicitor replied 2 years ago
Firstly, If the improvement was made by the previous tenant, did the LL consent in writing to the sign? The sign most likely does not require Council approval, assuming the size of the signage complies with the guidelines... Building identification and business identification sign types that are exempt from development approval (Source: adapted from NSW Planning Advertising and Signage Exempt Development Code Information Sheet). Next, did you purchase the business from the prior tenant? or just step in and sign a new lease, when they moved out? was there any sale of business agreement? If there is anyway to claim ownership of the sign.. or approval to place the sign that was granted in writing by the LL to the previous tenant.. then there might be some grounds... but it will be difficult, as you have indicated the sign is not included in the lease. And I assume you have no other claim to use/ownership of the sign.. please advise if this is not the case. You primary right to compensation may be for representations about the sign.. or the lack of any mention that the sign was not included... RETAIL LEASES ACT 1994 - SECT 10Right to compensation for pre-lease misrepresentations10 Right to compensation for pre-lease misrepresentations (1) A party to a retail shop lease is liable to pay another party to the lease ( "the injured party" ) reasonable compensation for damage suffered by the injured party that is attributable to the injured party’s entering into the lease as a result of a false or misleading statement or representation made by the party, or any person acting under the party’s authority, with knowledge that it was false or misleading.(2) The giving of a lessor’s disclosure statement to a prospective lessee under a retail shop lease is considered to be the making of a representation by the lessor to the lessee as to the information in the disclosure statement.(2A) The making of a representation by a prospective lessee in a lessee’s disclosure statement given to a prospective lessor under a retail shop lease that the prospective lessee has sought independent advice, or as to statements or representations relied on by the prospective lessee in entering the lease, is considered to be the making of a representation by a lessee to the lessor.The next possibility is to claim compensation pursuant to the Retail Leases Act 1994 NSW. This extends... to also cover misleading and deceptive conduct...RETAIL LEASES ACT 1994 - SECT 62DMisleading or deceptive conduct in connection with retail leases62D Misleading or deceptive conduct in connection with retail leasesA party to a retail shop lease must not, in connection with the lease, engage in conduct that it is misleading or deceptive to another party to the lease or that it is likely to mislead or deceive another party to the lease. By not advising you that the sign was not included in the Lease, the LL may have breached s62D, giving rise to a right to claim compensation pursuant to s62E. RETAIL LEASES ACT 1994 - SECT 62ERight to compensation62E Right to compensationA party or former party to a retail shop lease who suffers loss or damage by reason of misleading or deceptive conduct of another party may recover the amount of the loss or damage by lodging a claim against the other party under section 71. The other basis for a compensation claim under the Retail Leases Act 1994 (NSW) is for unconscionable conduct. RETAIL LEASES ACT 1994 - SECT 62BUnconscionable conduct in retail shop lease transactions62B Unconscionable conduct in retail shop lease transactions (1) A lessor must not, in connection with a retail shop lease, engage in conduct that is, in all the circumstances, unconscionable.... In my view, depending upon the actual facts.. you might be able to utilise one of the two above claims to obtain compensation for your losses, due to the loss of the sign. Kind regards, James
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Customer reply replied 2 years ago

If the improvement was made by the previous tenant, did the LL consent in writing to the sign?
- Not certain but assume so.

Next, did you purchase the business from the prior tenant? or just step in and sign a new lease, when they moved out? was there any sale of business agreement?
- We were a new tenant only. The previous business was a ski shop and we are a small bar.

And I assume you have no other claim to use/ownership of the sign.. please advise if this is not the case.
- There is nothing in writing which I can use to demonstrate a claim to the sign.

Solicitor: James D. Ford, Solicitor replied 2 years ago
I recommend contacting the previous tenant to enquire about written consent/approval (and request a copy, if one exists).If there is nothing, then as I have indicated.. my view without reviewing the lease in detail.. is that your main legal rights concerning the sign, are most likely against the LL for pre-lease misrepresentations, misleading or deceptive conduct, and/or unconscionable conduct.Were you told anything about the sign before you entered the lease? In my opinion, if the sign had the name of the previous tenant on it, it would normally be a safe assumption that the tenant had the express / implied consent of the LL to use this sign, and that you would inherit this right, as the new tenant. If this was not the case, then the LL needed to advise you accordingly...Kind regards, James
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