NSW Is termination date confirmed by email legally binding?

[Joe168]

Dear all, my warehouse's commercial lease was expired and on monthly basis. It was 2 years lease and 1 year option, and my business has been there for last 6 year. I am looking to expend the business, so told the landlord realty commercial agent that I would like to end the lease in January. Neither myself has found the new warehouse or the landlord have found the tenant. The agent emailed me to confirm that i would like to terminate the lease on 30th April 2020, and I have replied that by replied the email. Since then, I have been very cooperated to allow the inspections and agent visiting. However, I received their notice to ask me to vacant the warehouse by 5th March, the termination is almost a month before the agreed day. They argue that the termination notice period is based on the contract agreement, and they ignored our agreement on the email. In addition, they threatened to lockdown the warehouse and my inventory inside the warehouse if I failed to vacant the property by the given date. I would like to know whether they can do that, and does the email confirmation have legally binding? How can I prevent the lockdown? I have snapped the agent's advertisement of the warehouse in a image, which clearly stated the property will be available from 30th April 2020. Can anyone please advise me on my case? Thanks in advance.

 

[Rob Legat - SBPL]

Unless there is some vagary in NSW leasing laws that I don't know about, they're in the wrong. The original lease contract period has nothing to do with things once you are in holding over. Then, generally, you can give notice of termination ending on any day, as long as the minimum notice period is met (often expressed to be one month, or one month plus the balance of the current month). So if you want to nominate 30 April, then that's what it is. However, the landlord can give you notice to terminate under the same conditions (i.e. minimum notice).

So, the questions will be:
- What's the minimum notice required?
- Did the landlord give you that minimum notice period in asking you to leave by 5 March?

Email is largely inconsequential now, especially if you're used to communicating by email. So is the agent's advertisement - that could simply be them wanting to take some time to spruce up the place.

 

[Joe168]

Hi Rob, thanks for your reply. The original contract said the minimum notice is one month once the lease agreement is expired and leasing is on the monthly basis. Unfortunately, the landlord's agent and I are always communicating in email, they gave the termination date of 30th April in mid February , and I response their email with acceptance in few days. I understand the original minimum notice period as stated at that time, and thought the timing from the email confirmation is good for both, so they can find new tenant to move in after 30th April, and I shall move to elsewhere. I am currently negotiating my lease in other place, but the change of their mind really push my limit and right. It leave no time for my relocation. How can I tell them to stop the ignorance of our email agreement? And do I have right to occupy the warehouse till 30th of April? Can I call police if I have been blocked to access my goods? Thank you

 

[Rob Legat - SBPL]

So who nominated the date of 30 April? Your original post indicates you may have given notice first, but your second post says it was the agent. Which of the following occurred? (or, if something different, what was it?):
- You gave notice that you were terminating the lease, and stated 30 April as the final date in the notice.
- You said you wanted to get out of the lease, but didn't give formal notice of a particular date (maybe asking for a suggestion). 30 April was considered but nothing was put into a formal notice. The agent then gave notice of 5 March.
- The agent gave you formal notice the lease would be terminated on 30 April. They then changed their mind and said 5 March in a subsequent notice.

 

[Joe168]

The whole case is in the following order,
1. On 11th Feb, I emailed the landlord's agent that I would like move out sometime in April but didn't specify the date.
2. On 12th Feb, the agent emailed me to confirm the termination date to be on 30th April (the agent choose a date for me).
3. On the same day, I confirmed the date by replying the agent's email.
4. The agent advertised the lease and state the available date of warehouse is from 30th April .
5. On 4th March, the agent emailed and informed me that she found a new tenant and request me to vacant the warehouse on 5th April, and said it is based on the minimum one month notice as per original commercial lease agreement. The agent also said she left the termination notice letter in front on my warehouse.
6. Then, I replied that it does not align to what we agreed on the termination date in the email and I advised her that I didn't receive her termination notice letter from previous day. Secondly, I attached the copy of email for her reference. I informed the agent that I won't be able to vacant the warehouse within a month.
7. The agent replied again in email and threaten to reclaim the warehouse and lockdown the entry if I fail to follow her instruction which is to vacant the premises on 5th Apr. She totally ignores our emai conversations on the termination date earlier, and said the landlord can reclaim the warehouse based on the original contract.

Hope I make my story clear this time. Please let me know for any clarification. Thanks for your advice.

 

[Rob Legat - SBPL]

Yes, thanks. The termination date should be 30 April. Not only was that the date agreed between the parties, it was the date that the landlord's agent proposed. This fits in broadly under the concept of 'promissory estoppel'. This is a legal doctrine where, very basically, if someone makes a promise in respect of a contractual situation which the other party has relied on then the party who makes the promise can't then renege.

Given the threat to lock you out, I think it would be in your best interests to engage a property lawyer in your area to send a stern letter off to the agent. If you don't know anyone locally, I suggest you do a search via www.lawtap.com.

 

[Joe168]

Brilliant! Rob, I appreciate your advice and time, you words do release my worries alot. Thank you very much I will look for the property lawyer in western sydney area, also will suggest her to seek legal advice before her unlawful action. To make the thread complete, I will post the outcome at the end of matter, hope my experience can help other honest business owner in the similar situation.