Commercial Lease

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GUEST OBSERVER
Owners or tenants of Victorian warehouse space should review their lease details after a recent decision by the Supreme Court of Victoria was subsequently upheld by the Court of Appeal.
If a tenant supplies goods or services which are then used in something else that is sold to the public, the lease may be governed by the Retail Leases Act 2003.
A recent case saw a warehouse tenant that provided cold storage and logistics services to other businesses in a dispute with the landlord over the nature of the lease and whether it was classed as ‘retail’.
In this case, CB Cold Storage Pty Ltd v IMCC Group Pty Ltd, a warehouse tenant provided cold storage and logistics services to other businesses from the leased premises. 
The permitted use of the premises under the lease was ‘Cold and cool storage warehouse and transport facility’.  
The Victorian Civil and Administrative Tribunal held that the lease was not retail as the tenant’s business did not provide goods or services to the ‘ultimate consumer,’ a person who uses goods or services to satisfy personal needs.
The tenant disagreed with this interpretation and appealed to the Supreme Court of Victoria.
The court found, on 7 February 2017, that the ‘ultimate consumer’ test was valid, but the ultimate consumer could be a person or company that uses those goods or services to produce something else for a business purpose.
For example, if a warehouse is used to supply car parts for an automobile manufacturer, then that warehouse tenant is supplying something to be used in the production of a car, and therefore the lease likely to be covered by the Retail Leases Act.
However, the tenancy would not be covered by the Act if the warehouse was used to supply car parts to a shop who then on sold them to the public, as the shop they were supplying was not using them, merely reselling.
There are some exceptions to this, such as if a tenant is a listed company or its subsidiary. 
If the lease does not permit the use of the premises for retail purposes, a breach of lease may be present, but that does not affect the retail nature of the lease.
The landlord appealed the February decision to the Court of Appeal, which dismissed it on 5 July 2017, noting the following features combined led to the finding that the ultimate consumer test had been satisfied and that the lease was a retail lease:
<ul>
<li>Services were used by the Tenant's customers who paid a fee</li>
<li>Any person could purchase the services if the fee was paid</li>
<li>The Tenant's business was open during normal business hours</li>
<li>The Tenant's customers did not pass on the services to anyone else</li>
</ul>
What does this mean?
<ul>
<li>Tenants may not be charged land tax. They may also be able to recover tax from the landlord retrospectively.</li>
<li>Generally, the term of the lease must be for at least five years.</li>
<li>A rent review clause may not include a “ratchet” which stops the rent falling due to market conditions. Any extra rent paid due to a ratchet clause may be recoverable from the landlord.</li>
<li>The landlord is obligated to provide a detailed “Disclosure Statement” to the tenant. Non-provision or inaccurate information may result in the tenant having the right to withhold rent or to terminate the lease. </li>
</ul>
Tim Kelly is a partner at Rigby Cooke Lawyers and has more than 35 years of legal experience. He can be contacted <a href="https://www.rigbycooke.com.au" target="_blank">here</a>.
 
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Could your warehouse lease now be a retail lease?

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SPONSORED POST
Signing your business up for a property lease is a lot different than renting a home to live in.
Here’s nine things you should keep in mind when taking out a commercial lease.
1. Is the rent appropriate?
Exactly what space are you renting? Does it include common areas such as hallways, rest rooms, and elevators? How does the landlord measure the space –some measurement practices include the thickness of the walls. Also keep in mind that commercial lease agreements usually provide for an annual percentage-based rent increase.
2. Set cost parameters from the start
Negotiate with the landlord for a cap on the percentage increase to avoid unmanageable costs later on with the rent going up when you least need it. Check to see if there is a use clause. Many lease agreements will incorporate a use clause to define the activity the tenant can engage in on the premises.
3. Who’s responsible for what?
Who will maintain and repair the premises, including the heating and air conditioning systems? Responsibilities for the building and any equipment are often shared between landlord and tenant. The agreement should spell this out clearly.
4. Set your own timeframe
Most landlords prefer long-term lease agreements. If it’s a new business, it might pay to ask the landlord for a short-term lease with an option to renew. This may raise the rent you pay, but it could be a better alternative than agreeing to a lengthy term.
5. Can you make changes to the property?
A lease should address what improvements or modifications can be made to the property, which party will pay for the improvements, and whether the tenant is responsible for returning the unit to its original condition at the end of the tenancy. It should also spell out who will own the improvements when the lease expires.
6. Remember the little things
If the business needs it, make sure that the lease agreement does not prohibit putting up signs that are visible from the street. Agree on who is responsible for rates, taxes, insurance and other outgoings; for example, contents insurance or council and water rates. It’s also important to check if the lease agreement allows subletting. This is important because the lessee is still responsible for paying the rent if the business fails or relocates. An assignment or sublet clause in place allows the business to find someone else to cover the rent.
7. Know your rights
Does the lease have a Right of Assignment clause? If you have to sell the business, a Right of Assignment clause gives you the option of transferring the lease to a new tenant. Is there an option to renew the lease or expand the space you are renting? How would the lease be terminated? Is there a notice requirement? Are there penalties for early termination?
8. Seek financial advice
Before you sign, you should check the deductibility of rent and your tax liabilities with your financial adviser. If the agreement requires the business to purchase leased goods or equipment, it could invalidate your right to claim rent as a tax deduction. A financial adviser is essential here.
Check rent deductibility and tax liabilities with a financial adviser before you sign a lease.
9. Are there additional clauses?
If you are leasing premises in a shopping centre, it’s worth asking whether you have to comply with the centre’s fit out rules (shopping centres can often be more restrictive), whether you are required to contribute financially to the centre’s marketing and promotional activities and whether your business would be affected by any ownership plans to redevelop or expand the centre.
So there you have it: A solid checklist to get started.
For more information, <a href="https://bs.serving-sys.com/BurstingPipe/adServer.bs?cn=tf&amp;c=20&amp;mc=click&amp;pli=18755997&amp;PluID=0&amp;ord=%5Btimestamp%5D" target="_blank">click here</a>.
ABOUT REALCOMMERCIAL.COM.AU: realcommercial.com.au is the leading website in Australia for commercial property, attracting an average of 1.7 million visitors a month (Source: Nielsen Online Market Intelligence, Total Traffic, average calculation May-July 2015, includes app traffic from Omniture Site Catalyst as Nielsen doesn’t report on app). It is owned and operated by realestate.com.au Pty Ltd, a subsidiary of ASX-listed REA Group Limited ACN 068 349 066 (ASX:REA).
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9 things to remember when taking out a commercial lease 

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The Colonel is coming to St Kilda in time for summer.
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KFC will offer its famous “11 herbs and spices” fried chicken from the prime corner of Carlisle Street and Acland Street after signing a five-year lease over 90 sqm. 
Fitzroys agent James Spencer negotiated the lease, which includes with a five-year option, for <a href="https://www.realcommercial.com.au/property-retail-vic-st+kilda-502467738" target="_blank">70A Acland Street</a> at $80,000 per annum net.
KFC is currently undertaking its fit-out at the base of the apartment complex. Spencer acted on behalf of a local developer.
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“KFC wanted to capitalise on being in a prime location opposite Luna Park and McDonald’s, the new Palais Theatre, close to St Kilda beach and at the top of the popular retail and nightlife precinct of Acland Street,” Spencer said. 
“The recent conversion of Acland Street into Melbourne’s newest pedestrian mall made this property a sought-after prospect. 
"It has enhanced the vibrancy of the strip, which remains a popular tourist destination for interstate and overseas travellers, as well as Melburnians, and brought an added buzz to its thriving food and beverage and nightlife offering.” 
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KFC headed for St Kilda's cosmopolitan Acland Street

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Creative agency Space Between has agreed to lease the two upper floors of the privately-owned classic style building in Fitzroy.
Space Between is jointly owned by former AFL and West Coast premiership player Tyson Stenglein and Dave Clarke.
Their business has agreed to lease the vacant two upper floors of 188-196 Gertrude Street in total of 432 sqm under a five year plus five year, plus five year option lease.
The deal negotiated by Gray Johnson agent Rory White will see the business pay a starting annual rental of $140,000 with fixed four percent annual increases.
The owner of the building will renovate and refresh the vacant office space to a high standard in conjunction with their tenant before they move in in January.
Website development business Love &amp; Money took a $132,500 per annum lease in the building last year, again through Gray Johnson, which at the time was considered to be a record rate for retail/commercial space in the street.
Rory White says that the 1880 period building retains many of its original features including timber floors, vaulted timber lined ceilings and exposed trusses.
“Over recent times Gertrude Street has become a hotspot for creative and high-tech businesses as well as being a key lifestyle precinct with numerous cafes, highly regarded restaurants like Ladro, Madam Cheong and Cutler &amp; Co as well as the Builders Arms Hotel being established in the street," White said.
"In particular it is a well-located building that provides the type of environment and location that is being increasingly sought by the new industries of today."
 
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Former AFL footballers' creative agency take Fitzroy lease

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The uptick in commercial leasing activity has continued this week with Ray White Commercial offices completing the highest volume of deals during this COVID-19 period.
The ongoing elevated level of enquiries translating into new leases being signed is an encouraging sign for the local economy. Industrial remains the asset class in greatest demand however we continue to see confidence levels improve with a growing number of retail and office transactions complete.
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As we move through the staged reductions of lockdown, many restrictions have been lifted allowing property inspections at a safe social distance. Subsequently, technology has been instrumental in keeping the real estate industry active, many deals completed over the past few weeks have involved virtual inspections and during this time of limited contact, assets which have professional photography and a quality online presence have yielded impressive and rapid results.
The top three leasing deals of the week demonstrate the importance of embracing technology as a key instrument in the industry. 
A 130 sqm office at <a href="https://www.commercialrealestate.com.au/property/14-85-mt-derrimut-road-derrimut-vic-3026-9944622" target="_blank">Mt Derrimut Road, Deer Park</a> in Victoria was leased earlier this month by an immigration lawyer. Ray White Commercial Ferntree Gully agent Paul Waterhouse explains, "Leased in one week after using professional photography including aerial, floor plan and 3D walk through." 
An industrial property at <a href="https://www.raywhite.com/qld/stapylton/2289653/?lang=en" target="_blank">Maiella Street, Stayplton</a> in Queensland was leased last week through Ray White Commercial Springwood agent Adrian Hamilton. The 225 sqm property has now been leased to a metal fabrication workshop. Hamilton says, "During the COVID-19 lockdown we have continued to see strong demand for this size property in the area. The property was leased within two weeks of being on the market." 
A 203 sqm retail property at <a href="https://www.realcommercial.com.au/leased/property-194-herries-street-toowoomba-city-qld-4350-503105086" target="_blank">Herries Street, Toowoomba</a> in Queensland was leased to a flooring retailer by Ray White Commercial Toowoomba agent, Mark Wynhoven. "It is encouraging to see retailers having confidence in the Toowoomba market despite the COVID-19 restrictions, the high exposure of this property [is] one of its greatest advantages," he says. 
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Commercial leasing activity continues to uptick: Ray White

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Media, marketing and creative agencies are flocking to North Sydney to take advantage of the newly developed commercial office space.
Colliers International has leased seven suites at 150 Pacific Highway in North Sydney, ranging from 60-100 sqm each.
Companies Pictura Creative, Mobius, Intergrid and FINAO are just some of the tenants that leased the space with rents ranging from $650 to $680 sqm gross per sqm per annum.
“All seven suites were leased within a six-month period highlighting the demand in North Sydney for creative, modern and bright office space,” said Jay Horrell, Executive, Office Leasing at Colliers International.
“In line with the growing importance of staff retention and wellbeing, we are seeing a greater number of tenants seeking creative workspace offering a more appealing environment for staff”
150 Pacific Highway is a brand-new building with onsite end of trip facilities and each suite has floor to ceiling windows, polished concrete flooring and a three metre plus ceiling height.
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Seven suites leased at 150 Pacific Highway

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Fast-growing Braybrook business Baby Bistro has moved into a Williamstown commercial kitchen previously leased to Vili’s Pies and Cakes.
Baby Bistro delivers home-style, organic baby food to families around Melbourne.
The business was founded in the home kitchen of Braybrook mother Sevi Stolica, who was soon hiring a commercial kitchen by the hour to keep up with demand.
Baby Bistro needed to move from hiring a kitchen to a longer term lease and used small business tenancy advocate Amanda Anderson from The Tenant Company to source its new property.
“The brief from Baby Bistro was very specific and finding existing food grade buildings within Melbourne’s west, that had gas connected, was a challenge,” Ms Anderson said.
She adds that Vili’s had previously leased the property for more than 20 years and the kitchen met all of the strict requirements of a food manufacturing building.
The Chelmsford Street building is 500sqm and has been leased for three years with options.
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Braybrook's Baby Bistro into Williamstown kitchen

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National tyre chain Beaurepaires has leased a warehouse/showroom at Oakleigh East in Melbourne’s south-east through Ray White Commercial Oakleigh.
The company has taken up a long term tenancy at <a href="https://www.raywhite.com/vic/oakleigh/1319140/" target="_blank">1356 Dandenong Road, Oakleigh</a>, in a deal negotiated by Ray White Commercial Oakleigh’s Ryan Amler on behalf of a private landlord.
Mr Amler said there was substantial interest in the site from a range of prospective tenants including large national franchise groups.
“This approximately 440 sqm showroom/warehouse offers a highly visible location on Dandenong Rd and it’s close to the Chadstone Shopping Centre,” he said.
“The property comprises a showroom, office and a rear storage area. There’s secure private parking for two cars in the rear yard as well as on-site parking at the front of the building.
“It was ideal for the new Beaurepaires franchise opening in Oakleigh.”
Beaurepaires have taken up a 5+5+5 year lease at a gross rental of $70,000 per annum, reflecting a rate of approximately $159 per sqm.
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Tyre group secures Oakleigh warehouse/showroom

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Bupa Australia has taken a rental lease at Newspaper House, the seven level retail and office building at 247 Collins Street Melbourne.
The iconic Newspaper House was purchased in June <a href="/expert-insights/investing/42933-newspaper-house-collins-street-sold-to-subdividing-singaporean-investor" target="_blank">for around $23 million</a>. 
The lease includes 275sqm of space leased at more than $800,000 per annum on an eight year term through an off-market deal brokered by Savills Australia and Vantage Property Investments.
Savills’ Victorian Retail Director, Michael Di Carlo said the lease was brokered off-market prior to the new landlord having completed settlement.
Bupa will relocate from The Block Arcade at 292 Collins Street. 
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Bupa leases in iconic Newspaper House

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Elite Surface Technologies has agreed terms on a new office and warehouse lease at Dandenong South in Melbourne’s south-eastern suburbs in a deal brokered by Savills Australia.
The 305 Frankston /Dandenong Road property comprises a 3327 square metre office and warehouse including 2779 square metres of warehouse space on a 8445 square metre site.
According to Savills associate director, Daniel Kelly, who brokered the deal with Chris Telley the property was let on a four year term at $250,000 per annum net.
Mr Kelly said the tenant had simply outgrown its existing facility and required a new fit-out catering to its laboratory department.
The company also required substantial hardstand and yard space.
"The property was a good fit for Elite’s requirements allowing it to operate within a facility which both catered to its expansion and facilitated further growth as well as adding a laboratory to the fit-out,’’ Mr Kelly said.
The lessor was a private Melbourne investor.
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