Leasing and Property Newsletter – February – 2018
In this edition our team report on the following topics:
- Carroll & O’Dea has become one of the first legal firms to implement electronic execution of lease documents;
- A recent decision by the Victorian Supreme Court demonstrates that care is required before agreeing to “fair wear and tear”;
- The retail legislation in all states requires prompt disclosure by landlords when dealing with application to assign leases.
The Carroll & O’Dea Leasing and Property Team
Electronic execution of all lease documentation
Going completely paperless means we must now consider the execution of documents by way of an electronic process. Signing documents electronically raises questions about whether the electronically executed document is legally binding and the authenticity of the signature. This article intends to cover the concept of electronic signing of leases in Victoria – a practise that we at Carroll & O’Dea have recently adopted.
Fair wear and tear
In a recent Victorian Supreme Court decision looked at the repair and maintenance obligations in a Lease of a petrol station. A number of things went against the Landlord in this case, including the exception for fair wear and tear and the requirement that the lessee make repairs as necessary. The main problem for the landlord was that the current lease was a renewal, and the damage complained of occurred prior to the renewal. The repair obligation related to the condition of equipment at the date of commencement of the lease. The case shows that common expressions used in repair and maintenance clauses can have meanings that were not anticipated. Also, it serves as a lesson to take great care when adopting clauses in a renewal of lease.
Lessor disclosure at the time of the assignment of a lease
Assignments of lease demand particular responsibilities on both the lessor and lessee. Bound by their lease, legislation and the common law, the parties to the assignment must perform specific tasks within a determined time frame. With particular regard to the lessor’s disclosure statement the question of responsibility is a tricky one.