QLD Commercial lease dispute

[Ashchev57]

I entered into a commercial tenancy agreement in November 2017. The premises were fitted with equipment essential to my business. Within the first week the equipment broke down and was not repaired by the landlord for a period of three months. I was unable to trade during that time, I understandably got in arrears of rent, I suffered further losses when the equipment broke down again due to a roof leak during rain. The real estate has now locked me out of the premises after I failed to remedy a breach by the given time. I had until the 11th April 2018 to remedy and was locked out on the 12th April. I have suffered substantial losses and would like to know the following if possible
1 can I retrieve my belongings from the premises, including customers belongings.
2 should the landlord be liable for my losses.
3 should I have been given more time after the failure to remedy the breach than the 24 hrs I was given.
Thank you.

 

[Rob Legat - SBPL]

Without seeing the terms of the lease, it is hard to know - as the terms of the commercial lease are what governs the rights of the parties. The following information is based on the stock standard REIQ Commercial Tenancy Agreement, 4th edition.

1. There is no general right for the landlord to retain the tenant's chattels. Access should be given. There are instances of courts ordering access, but upon payment of money for the time given for access.

2. This would depend on the terms of the lease. The general agreement does not specifically cover the landlord's equipment, but includes items listed in the Schedule as part of the Lessor's Property (which forms part of the Premises). From there, clause 6 requires the tenant to keep the Premises in good repair and condition. On that basis, there's an argument that it was your responsibility to repair the equipment.

The leaking roof is a different matter. Aside from damage caused by the tenant, this should be the landlord's responsibility.

Clause 8 limits the landlord's liability to matters which are due to the landlord's deliberate acts or negligence, and provides that the tenant specifically releases them from liability otherwise.

There's also the question of whether you had sufficient insurances in place. There is no specific requirement for you to insure under the standard agreement, but it is reasonably prudent to do so and a court may make that finding.

3. You weren't given 24 hours, you were given until 11 April, 2018. Under the law: if you are given a notice of default and fail to remedy it within the required time frame, then the landlord may re-enter and take possession of the Premises - provided the default notice was sufficient in terms of its contents and the amount of notice given.

 

[Ashchev57]

Thank you for your reply, the equipment broke down the first time it was used due to dodgy wiring in the premises, the equipment ran for a total of 5 minutes before failing completely, I have insurance in place for damage to my tools and customers belongings during fire or break in, no flood cover as it is highly unlikely of that, the roof of the,premises is in a very poor state and has only had patch ups completed. Yes I was given o notice of remedy to breach which I ffailed to remedy in the allotted time frame, my main concern is that I was unable to use the equipment except for initial start up, and then suffered significant losses.

 

[Ashchev57]

I'm also unable to access the premises unless I pay the arrears of rent, which is only 4 weeks in arrears.

 

[Clancy]

You mention 'dodgy wiring'.... well legally, it is 'not' dodgy wiring unless a qualified expert says it is, and if they do say that, well that's your case for suing i think?