Commercial Property - Lease Disputes

Landlord (Lessor) Rights

• You are a landlord and your tenant has fallen into arrears, and you need legal advice about getting the outstanding rent (recovery of rent) and obtaining your premises back;
• You are trying to determine if the lessee has repudiated by non-payment of rent, breach of some other covenant or conduct suggesting abandonment;
• As landlord you have decided to hold the tenant to the bargain despite conduct being repudiatory and you want help with obtaining specific performance;
• You need legal help to work out whether to terminate for breach of a contractual clause or perhaps for repudiatory conduct since you are uncertain of what effect it may have on your damages claim;
• As landlord you need legal advice working out what notices, if any, you need to serve before you can terminate e.g. s 129 of Conveyancing Act 1919;
• An administrator has been appointed to your tenant, and you need advice about whether you can take possession or not;
• As lessor you need to restrain your lessee from: illegal (or unauthorised ) use of the premises, or subletting / assigning, altering the premises contrary to the agreement.

Tenant (Lessee) Rights

• You are the tenant and your landlord refuses to repair the premises and you need to know if the contract has been repudiated;
• You are the tenant and your landlord failed to register the commercial lease and you want to know if you can end the lease;
• Your landlord has terminated the lease and you need to make an application for relief against forfeiture coupled with a claim for injunctive relief to restrain the landlord from re-letting the premises.
• You need to restrain your landlord from: blocking access to the premises, breaching the covenant as to quiet enjoyment or from cutting off the services to the relevant premises.

"Accordingly, the balance of authority here as well as overseas, and the reasons on which it is based, support the proposition that the ordinary principles of contract law, including that of termination for repudiation or fundamental breach, apply to leases. However, it has been suggested that the presence of an express proviso for reentry in a lease excludes any other right of termination of the lease by the lessor. Thus, in Rosa Investments Pty. Ltd. v. Spencer Shier Pty. Ltd. [35] , it was held that at common law re-entry is necessary to forfeit a lease unless dispensed with by contract. The better view is, in my opinion, that re-entry is essential only where the parties stipulate that advantage shall not be taken of a forfeiture except by an entry upon the land: Liddy v. Kennedy [36] . If it be accepted that the principles of contract law apply to leases, it is not easy to see why the mere presence of an express power to terminate should be regarded as excluding the exercise of such common law rights as may otherwise be appropriate. It is, of course, open to the parties by their contract to regulate the exercise of the common law right to determine for repudiation or fundamental breach. But in this case the parties have not attempted to do so." - Progressive Mailing House Pty Ltd v Tabali Pty Ltd [1985] HCA 14