VIC Do I Have Binding Commercial Lease with Landlord?

[angek]

Hi guys,

I purchased a business (in Victoria) as a going concern in November 2015. The existing commercial lease is a standard lease of real estate (Law Institute of Victoria Nov 2012 Revision) governed by the Retail Leases Act 2003.

The landlord provided a written statement that he was prepared to have the remainder of the lease transferred to me. The outgoing tenant had asked the landlord to provide a current disclosure statement in accordance with section 61(5) of the Act along with a copy of the original lease.

I received the original lease and the original disclosure statement but not a current disclosure statement. 9 months later, I still do not have a current disclosure statement nor an executed deed of transfer. To complicate matters further, within 2 months of taking over, major long-term disruptive works began (Level Crossing Removal Project) and are not scheduled to be completed until the end of the year.

Given that the landlord had consented and a deed has not been executed, do I actually have a binding lease? What other options do I have?

Any general help would be greatly appreciated.

 

[Victoria S]

Hi Angek,

I'm not overly familiar with the VIC Retail Leases Act, however it would appear that you would be deemed to have a valid lease with the landlord having regard to sections 16(5A) & (6)

(5A) If the assignment is in connection with the lease of retail premises that will continue to be used for the carrying on of an ongoing business, the tenant must give the landlord and the proposed assignee a disclosure statement in the form prescribed by the regulations (but the layout of the statement need not be the same as the prescribed disclosure statement).

(6) The landlord must deal expeditiously with a request for consent and is taken to have consented to the assignment if—

(a) the tenant has complied with this section; and

(b) the landlord has not, within 28 days after the request was made, given written notice to the tenant consenting or withholding consent.