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NSW Commercial Lease - Where Do We Stand?

Discussion in 'Commercial Law Forum' started by Mistborn91, 8 November 2015.

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  1. Mistborn91

    Mistborn91 Member

    8 November 2015
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    A business I work for is about to sign a commercial lease for a small warehouse. There is one special condition within the lease that we have never come across and are unsure about our rights as potential tenants.

    The condition states that we are to "pay for the maintenance, repair, testing of all fire equipment installed in the premises from time to time together with all fees and charges payable to local or other authorities for on on account of fire protection services."

    To the best of my knowledge we have never had this included on a commercial lease before (i.e. the landlord has arranged and paid for this). We are also unsure whether there is any act or other piece of legislation that mentions who is to pay for this kind of maintenance (I'm guessing it's like air conditioning, where the landlord is responsible for maintenance cost).

    Any help would be great.
  2. James D. Ford - Solicitor

    James D. Ford - Solicitor Well-Known Member

    19 June 2014
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    Hi Mistborn91


    I am not aware of any legislation that would place the cost of maintaining the air-conditioning on the landlord...

    My understanding, is the party responsible to pay the costs of the air-conditioning maintenance is determined by the agreed terms of the commercial lease.

    An exception might apply, for the capital costs, if any, involved in the repair of the air-conditioning... if the property, is a Retail Shop Lease (at least in Victoria, I haven't checked for NSW)... where no matter what the Lease says, the Retail Shop Lease legislation overrides the situation.

    Please advise what legislation you are referring to that requires the LL to pay for air-conditioning in a commercial lease?

    Fire Protection Services

    Of interest on this point, is a recent VCAT decision

    Judge says landlords can't pass on building safety costs to tenants

    Extracted from the article...
    ...."potential for the opinion to apply to general commercial as well as retail tenants."

    "The legal opinion was advisory only and has not been tested in court but carries weight because it was delivered by VCAT's president."

    It would be worth obtaining a copy of the VCAT decision, to more fully understand the legal reasoning used in reaching the decision.

    Without conducting legal research into the matter - it is unclear whether this VCAT decision will influence the position in NSW.. or even what the current position is in NSW... and whether it could operate to override the lease terms to the contrary.

    Kind regards

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