NSW Commercial Lease - Time Limit to Filing a Case?

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Bluesky

Member
19 October 2016
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0
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Is there any time limit for filing a case with court re losses and damages caused by landlord (commercial lease). We don't want to sue them now as I am afraid they will withhold the lease assignment in future when we sell our business.
 

Victoria S

Well-Known Member
9 April 2014
518
58
2,289
Generally speaking the limitation period for standard breach of contract claims is 6 years, however s71 of the Retail Leases Act (which applies only to retail leases, not commercial leases) provides for a 3 year statutory limitation period starting form the time the liability or obligation the subject of the claim arose.

However under common law, a landlord must not unreasonably withhold his or her consent to an assignment of the lease. Therefore if there is no reasonable grounds to refusing to consent to an assignment, it is illegal. Recognised situations however where a Landlord may reasonably withhold consent are as follows:
  • When the character and personality of proposed assignee is questionable, such as when references were inadequate or not satisfactory
  • Financial position of the proposed assignee is questionable
  • Assignee’s intended permitted use is a use previously not permitted under the lease or a use which can be shown to be illegal or immoral or is likely to devalue the premises.
  • Assignee fails to provide landlord with comprehensive and well documented application for example - omitting financial statements, references or failing to provide guarantors.
  • Assignee fails to meet specific criteria set out in the assignment provision in lease