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Conveyancing & Property

commercial leasing

Leasing Your Commercial Property? What You Need to Know About Commercial Leasing in QLD

By | Commercial, Conveyancing & Property

The relationship between a landlord and a tenant in a commercial setting is an obviously crucial one which in Queensland is governed both by legislation as well as contract law.

Commercial leases generally divide into either retail or non-retail leases. Places where goods and services are sold to consumers, such as shops, comprise retail leases while non-retail leases include warehouses, distributors and manufacturers which operate a business but don’t sell directly to consumers. Sometimes these lines can be blurred and so seeking expert legal advice if you’re unsure of the status of your lease is a wise course of action.

Commercial and retail leases have similarities but also some key legal differences. In Queensland, as in other states, retail leases are governed by the Retail Shop Leases Act 1994 (“the Act”). In contrast, non-retail commercial leases are governed by state-specific property and conveyancing Acts which, unlike retail leases, can be contracted out of. The reason for this is that it is generally assumed a retail tenant has unequal bargaining power when compared with a landlord (often a large shopping centre owner), while the law is less inclined to involve itself in the contractual arrangements between commercial land owners and tenants.

In essence, however, all commercial leases will include terms covering:

  • payment of rent;
  • rent increases; and
  • maintenance and repairs of the premises.

The remainder of this article will primarily focus on the basics of retail leases.

Retail leases

In Queensland, the Act covers retail leases unless the business is a service station; operates from a premises with a floor area of more than 1000 sq m and is leased by a listed corporation or a listed corporation’s subsidiaries; is a temporary business such as a trade stall; is a premises within a theme park or amusement park.

In order for a retail lease to be agreed in Queensland, both landlord and tenant must provide disclosure statements. The landlord’s statement must provide summary information about the terms of the proposed lease and be given to the tenant at least seven days before the commercial lease agreement is finalised. Failure to do so allows the tenant the opportunity to terminate the lease.

The landlord must also give the tenant a copy of the proposed lease in writing at least seven days before entering into the lease, and a certified copy of the signed lease within 30 days of the lease being signed. Failure to do so may result in a fine.

Tenants must also provide a disclosure statement to the landlord that includes information about their business history and experience, as well as any details of representations made by the landlord. Prospective tenants should note that providing misleading or false information on this statement can result in the payment of compensation to the landlord if they suffer loss due to the misrepresentations of the statement.

Additionally, tenants who operate fewer than five retail businesses must secure a legal advice and a financial advice report before signing a lease. This will require the tenant consulting a leasing lawyer such as Arbon Legal Group to receive advice on the lease’s terms and conditions. These reports must be provided by the tenant to the landlord before the lease commences.

Rent reviews, options and renewals

A commercial lease needs to specify how the amount of rent paid by the tenant is varied during the term of the lease. For example, rent might be adjusted up by a fixed amount or according to the Consumer Price Index. Rent may also be renegotiated at the end of a lease term and in the case of a retail lease, this may require the services of a Specialist Retail Valuer to determine the market rent of the premises. This process can be costly but the valuer’s rental figure is generally binding on the parties.

An option to renew a commercial lease is usually a specific clause within the lease document which entitles the tenant to renew the lease for a further term. If there is no option or all options under the lease have been exercised, a new lease is required.

If the lease is for less than a year, the landlord must advise the tenant at least three months before the end of the lease whether the landlord intends to allow the tenant to renew and on what terms. If the lease is for over a year, the landlord must advise the tenant within six months of the end of the lease as to whether or not they intend to renew the lease. The landlord is free to set any rental amount they wish in these circumstances. Unlike other states, Queensland does not have any minimum term for a lease to be considered a retail lease.

Disputes

Where a dispute about a retail lease arises between a landlord and a tenant, the matter will go to the Queensland Civil and Administrative Tribunal (QCAT) who will first ask the parties to attend a mediation on the dispute. If mediation is unsuccessful, QCAT will conduct a hearing on the dispute.

In some circumstances a landlord can be made to pay a tenant reasonable compensation for loss or damage. This can occur if:

  • a landlord significantly restricts access to the tenant’s shop;
  • or significantly restricts or alters customer access or flow into the shop
  • or causes a substantial disruption to the tenant’s business;
  • or does not quickly rectify or repair building defects or breakdowns in plants or equipment;
  • or neglects cleaning, maintenance or repainting of the building;
  • or causes the tenant to leave the shop before the end of the lease so the landlord can refurbish or extend the building;
  • or makes an untrue statement or misrepresentation which causes the tenant to enter into the lease;
  • or fails to make the shop available for trading on the date specified in the lease.

If you’re a retail tenant who believes any of these circumstances apply to your situation, consult Arbon Legal Group for immediate advice and guidance on how to proceed. We have widespread experience in commercial law matters, including leases, whether you’re a landlord or a tenant. Contact us for a consultation today on (07) 5562 0444.

Buying a House

7 Things to Consider Before Buying a House on the Gold Coast

By | Conveyancing & Property

Buying a house on the Gold Coast isn’t just about paying what’s on the property’s price tag.

1. Who’s Buying it?

If you’re reading this, it’s probable that you are considering buying a house or property. But how? Will you buy it in your personal name? Under a company? Maybe through a trust? Before you decide, it’s important to know the benefits and consequences of each.

  PositivesNegatives
You

  • May be entitled to certain concessions, such as the first home buyer grant, stamp duty concession, reduced rate mortgages etc.

  • Full access to any negative gearing benefits, eligibility for a full CGT discount (for Australian residents) and possible land tax savings.

  • Simple

  • Exposure risks for bankruptcy or claims made against you.

  • If the property is for an investment and is positively geared, that income must be declared, which will be on top of your ordinary wage or salary.

You & Partner

  • access to the home and tax benefits.

  • You can both service the loan to purchase something more expensive (compared to buying on your own).

  • Simple



  • If you break up, may be forced to sell the property, or otherwise service it by yourself.

  • consider whether to own it jointly or as tenants in common.

  • Joint Tenant: if you die, your half will automatically pass to your partner.

  • Tenant in common: if you die, your half will pass in accordance with your will.

HINT: If you ever separate, best to hold the property as tenants in common.
Company

  • Increased asset protection.

  • positively gearing: the income tax payable is capped at 30%.

  • forego any home concessions or future capital gains exemptions.

  • not eligible for the 50% CGT discount available to individuals.

  • in QLD, if the value of the land surpasses $350,000, the company will be liable to pay land tax.

Trusts:
unit trusts (or “fixed trusts”)
discretionary trusts (or “family trusts”).


  • Increased asset protection from insolvency or claims.

  • Unit trust: potential to access negative gearing benefits (depending on the loan structure).

  • 50% CGT discount.

  • discretionary trust: can alter who receives the income of the trust.



  • Advice, set up and administration can be costly.

  • Negative gearing benefits / land tax exemptions are difficult to access.

2. Is it on the Water?

Firstly, congratulations – sounds like a beautiful home. With beautiful homes comes responsibilities, including:

  • an obligation to disclose the operation of Local Law 17 and how it affects the property;
  • maintenance of a certain type of structure (such as a revetment wall, platoon, jetty etc.) and obtain regular reports its condition.

The seller should include a special condition in the contract that discloses the operation of the local law.

However, Buyer beware – since June 2017, you cannot terminate a contract for the seller’s failure to comply with this requirement.

3. Is it New?

Or in other words – is GST payable?

A property is “new” if it has not previously been sold as residential property or is the construction of a new building (including replacement of a demolished building on the same land).

Examples include:

  • new apartments,
  • newly subdivided land lots; and
  • house and land packages sold under a single contract.

The Seller

The seller must give the buyer a notice at least 14 days prior to settlement which indicates whether GST withholding applies, how much, when it is to be paid and the seller’s ABN.

If GST withholding does not apply, the seller must give the buyer a notice that there are no withholding obligations. A seller can expect to incur a substantial financial penalty for failing to give a buyer the notice as stated above. However, since 2018, it has been the buyer’s responsibility to pay the GST directly to the ATO.

The Buyer

If GST withholding does apply, the amount of the GST will be 1/11th of the contract price or 7% of the contract price (if the margin scheme applies).

If the buyer does not withhold the GST amount at settlement, they may be required to pay the GST component of the sale. This may be a significant cost, so be sure to check with your conveyancer if you think the property is “new”.

4. Is it More than $750,000?

If you are paying more than $750,000 for a house, residency becomes relevant.

Your solicitor must obtain a Foreign Resident Capital Gains Withholding Clearance Certificate before settlement. If this certificate is not provided, and the seller is foreign, you will be required to withhold 12.5% of the purchase price to the ATO.

The foreign seller will only receive their entitled amount through a tax return.

5. Do I Need Any Special Conditions?

If you are buying a house or property, you want to ensure that you have your i’s dotted and your t’s crossed. Whatever your situation, there is a special condition that can help protect you if worst turns to worse. Here are a few examples:

  1. New contract is subject to sale of buyer’s current property being sold and going unconditional
  2. Subject to early release of deposit to seller prior to settlement
  3. Subject to pet being approval by the body corporate
  4. Subject to the sale of your current property
  5. Subject to buyer’s due diligence (i.e. body corporate search, flood search, town planning etc.)
  6. Subject to seller receiving a better offer (sunset clause)
  7. Agreement to sign the contract by way of electronic means & transmission
  8. Subject to inspections of property such as building and pest inspections
  9. Subject to payment of agent’s commission being released early
  10. Notice that the property is subject to local law 17 (maintenance of works in waterway areas)
  11. Subjection to seller allowing early possession of property
  12. Subject to approval of a current non-approved structure on the property
  13. Subject to the body corporate allowing a home business to be operated from the residence
  14. Subject to the buyer’s right to access property prior to settlement to start renovations
  15. Subject to the seller buying a new property
  16. If the buyer is a foreign person, subject to approval from the Foreign Investment Review Board (“FIRB”)

6. Is there a Pool?

If you are buying a house with a pool or spa, a pool safety certificate must be obtained from a licensed pool safety inspector prior to settlement.

It is the seller’s obligation to provide a pool safety certificate:

  • upon signing the Contract;
  • upon the building and pest date (if applicable);
  • if there is no building and pest date, 2 business days prior to settlement.

If there is no pool safety certificate, the seller must issue a Notice of no pool safety certificate either before entering into the contract of sale or before settlement.

If the property sells without the seller providing a certificate, you will have 90 days from the settlement date to obtain a pool safety certificate and you will be liable for any costs associated with achieving compliance.

Certificates are valid for:

  • two (2) years in private non-shared households, or
  • one (1) year if it is a pool within a body corporate.

Failing to register and certify your pool can result in an on-the-spot fine of $235.60 or a maximum penalty of up to $2,356 if a complaint is made.

7. Is there a Tenant?

Is the property currently subject to a tenancy agreement? And if so, which type?

  1. Periodic (weekly, fortnightly, monthly); or
  2. fixed term lease agreements (where the tenant has a specified time to lease the property with a start and an end date).

You must ensure that the seller gives appropriate notice to their tenants before settlement.

For fixed term agreements: Unless agreement between the parties, a tenant cannot be made to leave the property during a fixed term agreement without an order from QCAT.

For periodic agreements: If the agreement is periodic i.e. weekly, fortnightly or month to month, the seller can evict the tenants if they give them four weeks’ notice. The settlement date must accommodate for this period of time. Note: sellers often don’t give notice to their tenants until the Contract is unconditional.

More Questions?

This advice is general in nature and we recommend you seek the advice of an accountant and financial planner for a better assessment of your ideal structure. We like to take care of our conveyancing clients by giving them thorough, detailed and informed advice and competitive rates.

If you are buying a house in Queensland, we can help make this exciting decision a smooth transition. For over 20 years, Arbon Legal Group have been providing comprehensive legal help to the people of the Gold Coast community. If you require further information or legal assistance in relation to buying or selling your property, please contact us today for a 15-minute, no obligation advice over the phone on 07 5562 0444 or email admin@arbonlegal.com.au.