Need to know Pre-empting financier requirements in presale contracts

Need to know
Pre-empting financier requirements in presale contracts

For anyone who will require finance for a property development, ensuring that your off-the-plan presale contracts are in a form acceptable to financiers can mean the difference between a successful development and financial ruin. Too often we see developers either unable to raise finance or needing to incur significant additional cost and delay due to presale contracts failing to meet the requirements of financiers. Here are 5 absolutes that all developers should take note of: Sunset Date A financier will typically require all presale contracts to have a sunset date well after the…Read more
Retail Leasing Update  New South Wales

Retail Leasing Update
New South Wales

The Retail Leases Amendment (Review) Act 2017 (NSW) was assented to on 1 March 2017. With one exception, it continues a long tradition of nit-picking review, combined with a failure to address necessary reform. Endemic problems with the retail legislation are: a disclosure rigmarole that is so bureaucratic and cumbersome that it fails to provide meaningful disclosure and simply ties the landlord up in knots. The Amending Act has made these problems worse, not better; its spread. The Act requires landlords to treat muscled-up tenants like wood ducks. The Amending Act has not…Read more
Retail Leasing Update  Queensland

Retail Leasing Update
Queensland

The Retail Shop Leases Amendment Act 2016 (Qld) commenced on 25 November 2016. The amending act resulted from a consultative statutory review of the Act. The amendments are intended to: reduce red tape throughout the QLD retail sector; align the QLD legislation with other jurisdictions; and balance the bargaining positions of landlords and tenants. Excluded tenancies s5A(2)(a) now echoes other jurisdictions in excluding from the application of the Act premises with a floor area of more than 1,000 square metres. Previously, this exclusion only applied if the tenant of the 1,000 square metre…Read more
Insured, interested and noted Where is the difference?

Insured, interested and noted
Where is the difference?

It is typical of commercial and retail property leases that tenants insure their fixtures and fittings, stock and contents and public liability risk. It is also often the case that the coverage of the insurance be extended to third parties, such as the landlord. Tenants may seek to discharge this obligation by having their landlord covered either by: naming them on the policy as a “Named Insured”; protecting them under the policy as an “Interested party”; or having their interest in the proceeds of the policy “noted”. Named insured Where a landlord is…Read more
South Australian retail lease legislation review

South Australian retail lease legislation review

Another day, another retail legislation review. This time the crow-eaters are having a turn. The Moss Review of the Retail and Commercial Leases Act was published in April 2016. The industry is still in the twilight zone where the banana benders live, between enactment and proclamation of the Retail Shop Leases (Amendment Act) 2016. I am not sure who thought it was a good idea to have an indeterminate interregnum between “set” and “go”, but Ian Thorpe will tell you that you can fall off the blocks when the starter holds you too…Read more
The Swimming Pools Act – Update

The Swimming Pools Act – Update

As of 29 April 2016, amendments to the Swimming Pools Act 1992 (NSW) are of full effect. Owners of properties with swimming pools must, in accordance with section 30B of the Act, register their swimming pool on the Register of Swimming Pools. A failure to do so exposes a pool owner to maximum fine of $220. The Register is administered by the State Government and may be accessed online at http://www.swimmingpoolregister.nsw.gov.au. Registration is a simple, four step process involving the self-assessment of a swimming pool in accordance with certain checklists. In addition to…Read more
Retail legislationMission failure again

Retail legislation
Mission failure again

Sometimes the retail legislation throws in a real curve ball, just to keep you guessing. One of my personal favourites is s17 of the NSW Act (copied in s31 of the Victorian enactment). s31 (1) This section applies to a retail shop lease if: (a) the liability of the lessee to pay rent under the lease commences on the lessee entering into possession of the retail shop … The section goes on to provide that the lessee is not liable to pay rent until the lessor has complied with the lessor’s fitout obligations.…Read more
Entering into the lease The legislation causes more problems than it solves

Entering into the lease
The legislation causes more problems than it solves

I have been working with a client recently on the legislated voodoo around when a lease is “entered into”. In the normal course, a lease transaction will follow an industry-standard process. A shop will be identified by the tenant as suitable. A negotiation will ensue, and oral, in-principle agreement reached on the headline issues. Pausing here, that oral agreement will satisfy the definition of a “retail shop lease” in section 3 of the NSW Retail Leases Act. This provision defines a retail shop lease as (in summary): “any agreement under which a person…Read more
The Swimming Pools Amendment Act 2012 (NSW)

The Swimming Pools Amendment Act 2012 (NSW)

On average, six children drown each year in backyard swimming pools in New South Wales, with many more suffering permanent disability from near-drowning incidents. Research shows that an inadequate pool barrier is one of the dominant factors contributing to swimming pool-related deaths. To heighten awareness on pool safety and reduce these statistics, the NSW Government finalised significant changes to the Swimming Pools Act 1992 (NSW) in late 2012. The changes introduced by the Swimming Pools Amendment Act 2012 (NSW) include: the introduction of a mandatory state-wide pool registration scheme; mandatory council inspections every…Read more
Another retail lease review Just what we need – more money down the drain

Another retail lease review
Just what we need – more money down the drain

Concerned readers will be relieved to learn that the Federal Senate Economics References Committee has handed down its report on the need for a national approach to retail leasing arrangements. (The Report was tabled in March 2015). We need another report on retail lease legislation like we need a dose of genital herpes. Not surprisingly, the Federal Committee thought that a national approach to retail leasing would be a good idea. This was despite robust submissions by The Law Society of South Australia that a national approach was “unnecessary”. The South Australian lawyers…Read more
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