A lease agreement is a contract between a lessee (or tenant) and a lessor (or landlord).
Under a lease, the lessee is entitled to exclusive possession of the property being leased. Exclusive possession allows the lessee to exclude strangers and the lessor from the property.
Leases are generally for a fixed term or period of time. However, some leases may be ongoing, or periodic. In these cases, the lease is automatically renewed for example of a monthly basis with no set end date.
In Queensland, leases are generally written agreements and are registered with the land titles office.
A lease does not need to be in writing to be enforceable as a lease. The conduct of a lessor and a lessee may be enough for a valid lease to arise. This is sometimes referred to as a tenancy at will.
Before signing a formal lease agreement, the parties may enter and sign other documents that could be titled Intention to Lease, Agreement to Lease or other types of documents. By signing these documents, parties may not know that they are entering valid binding leases that are enforceable against them, even though they may have considered that they had to sign a formal lease document to be bound.
Aitken Whyte Lawyers strongly recommend you contact our solicitors before signing any document to do with a lease. It might be that it is in your interests either as lessor or lessee to have a binding agreement before a formal lease can be written and signed to create a formal agreement. But in other circumstances it might not at all make sense to do that or be in your commercial interests to sign a binding agreement at that time.
In either case, you should call us to make sure that your intentions are covered by the document, that the terms you want are incorporated in the lease or Agreement to Lease and whether you want it to be binding or subject to the negotiation and signing of formal lease documents.
In the historic case of Walsh v Lonsdale (1882) 21 Ch D 9, the Court held that although the agreement between the landlord and the tenant did not comply with the statutory provisions at the time, an enforceable lease still arose due to the conduct, or part performance, of the landlord and tenant.
The case of Walsh v Lonsdale is still relevant today, and is recognised by section 6(d) of the Property Law Act 1974 (Qld). That is to say, the Property Law Act does not exclude the law in relation to part performance.
There are different types of leases. Relevantly, some of the most common leases in Queensland are retail shop leases and commercial leases.
The Retail Shop Leases Act 1994 (Qld) defines when a lease is a “retail shop lease”. Broadly, a retail shop lease is a lease of a retail business, or a lease in a retail shopping centre, but there are many exceptions. It is important to know before entering into a lease, whether or not the Retail Shop Leases Act applies.
Some provisions of the Retail Shop Leases Act that you ought to be aware of if entering a retail shop lease are:
If you are considering entering into a lease, be it a commercial lease, a retail shop lease, or otherwise, please contact our office to discuss how we can assist.
In many cases we can help for a fixed fee, to provide you certainty.
It is essential you have experienced solicitors when dealing with a commercial lease or retail shop lease or a dispute about one. If you are considering signing an Agreement to Lease or any documents related to the lease of a premises, our commercial law team will make sure your rights are protected.
Aitken Whyte Lawyers Brisbane are focused on results. Our solicitors can assist you with all commercial leasing matters. Call today to discuss your needs.
Aitken Whyte Lawyers
Level 4, 303 Adelaide Street, Brisbane
Ph: +617 3229 4459
Fax: +617 3211 9311