NSW Retail Lease expiry dispute

[helga123]

I have leased the same premises for 13 years. The current lease expired 18.11.18. In August 2018 we tried to negotiate a rent reduction as the business is struggling. The owners refused so we did not take up the option to renew the lease. We advised that we will be closing the business and would like to stay to end of March to allow enough time to liquidate the business stock and assets and also continue to trade over Christmas period.


The agents response was this "We have been in contact with the owners concerning your email below.
They are unfortunately still not in a position to reduce the rent.
They have approved your request to lease the property on a month to month basis and acknowledge that you will be vacating at the end of March. We will forward you written instructions shortly concerning your responsibilities during this time. If there is anything I can assist you with please let me know."

We assumed we were on a month to month basis with either party able to terminate with 30 days notice. The agent has been advertising the property since August.

The business is not going well enough to justify staying till end of March 2019. So I gave notice 2 days ago that we wish to vacate 31st January, 2019.

The Agents response was this "Your notice to vacate the property on 31/3/19 was accepted by the Owner on 17/8/18. Both parties have agreed to the extension of the expired Lease and procedures have
been implemented in anticipation of the vacate date of 31/3/19.
Due to this the owner is unfortunately unable to allow you to vacate the lease sooner.
If you have any questions please let me know."

What are our rights and responsibilities? The word extension was never used before. We understood it to be a Month to Month lease as was quoted in the agents email. We really cannot afford to pay the extra 2 months rent.
Thanks.

 

[Scruff]

It appears that you gave notice back in August when negotiations failed. If that's the case, then notice was given under the original terms before the month by month extension started in November (when the original lease ended). I therefore don't believe that the extension or it's terms have any bearing on the notice already given. I also don't think that a landlord is under any obligation to accept a new notice, or to agree to alter the termination date of an existing notice. So since it looks like they are having trouble finding a new tenant, it would be a bad business decision for them to agree to bring the date forward.

So while I sympathise with your situation, I think you are bound by the original notice.

Please note however, that my opinion is based on experience with residential matters. I therefore recommend that you wait for a response from a member with expertise in commercial tenancies who can confirm if the above is correct or not.

 

[Rob Legat - SBPL]

I don’t practise in NSW, but I disagree. As much as your stated intention to leave at the end of March is a notice, it is not a contract. A notice is unilateral. You’re entitled to leave a monthly tenancy so long as you give the requisite notice. As long as you don’t go under that, you’re fine. You can give more (as you did), and the landlord can accept that or give you notice to leave - with the same minimum requirements.

I think you’re within your rights to revoke the original notice, and then issue a new notice for the minimum required period. The landlord is in no worse of a position than if you had said nothing and just given notice now.

 

[Scruff]

@Rob Legat - SBPL - I stand corrected, thanks Rob. I assumed that you couldn't revoke one notice for the purpose of issuing another one with a different date, but it seems the legislation doesn't touch on that scenario at all.

For the OP, I think the relevant argument would be s44(4) of the NSW Retail Leases Act.
NSW Legislation

 

[helga123]

Thank you for taking the time to write replies. Much appreciated