Residential Lease

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GUEST OBSERVER
In the recent case of Harold R Finger &amp; Co Pty Ltd v Karellas Investments Pty Ltd [2016] NSWCA 123, the NSW Court of Appeal agreed with the orders of the Primary Judge, but for significantly different reasons. The Court found that the letter alleging to be a Lease agreement was not a binding contractual lease document. Following this, it held that the Karellas Investments (Lessee) had not repudiated the contract and that Harold R Finger &amp; Co Pty Ltd (Landlord) had no right of termination.
Fact Summary
This case related to the leasing of a supermarket premises in Newtown. In December 2009, the Lessee sent a letter to the Landlord for a “binding offer to enter into an Agreement for Lease”. The Landlord accepted the letter of offer in January 2010. Some of the provisions of the letter contained clauses which subjected the agreement to the provision of further formal documentation and terms to be added which had not yet been agreed on.
Following a low turnover forecast, the Lessee’s solicitors wrote to the Landlord on June 9 2010 seeking to adjust the lease terms “to see if the proposed lease terms could accommodate” the Lessee’s concerns.
After a series of letters, the Landlord alleged that the Lessee had repudiated the contract and accepted this repudiation. The Landlord then sought to terminate the contract for repudiation.
Was the Letter a valid Agreement for Lease? The Landlord argued that the letter’s statement that it was a “binding offer to enter into an Agreement for Lease” was that both parties were bound to the lease. The Lessee denied that the letter of offer constituted a binding agreement but was simply an agreement to negotiate.
The Court found that the letter established an agreement, but questioned its actual effect. The Primary Judge held that there was an enforceable contract under which both parties agreed to be bound by rent and other terms. Though Ward JA on appeal found there was an agreement, this agreement did not bring into existence an enforceable contractual lease.
The letter clearly stipulated that the agreement would be subject to further documentation and negotiation of important terms not yet included in the letter. These clauses were construed by the Court to indicate that the agreement would not be complete without such additional terms. The letter also provided the Lessee with a right to withdraw from the agreement if the formal documents required were not executed in 12 months. The Court highlighted that the existence of such a withdrawal provision further indicated that a final agreement may not actually be reached within 12 months. Therefore, the letter could not be reasonably constructed as a final and enforceable lease document. It was an agreement to negotiate in good faith.
Could Terms in the Letter be Re-Negotiated?
As there was no provision which stated that the terms in the letter were set-in-stone, they were open to re-negotiation. The only terms the Landlord could rely on were that the Lessee would negotiate in good faith during the 12 month negotiation period. The Landlord could not rely on any terms that were being negotiated with the Lessee until such terms had been finalised.
Did the Lessee Repudiate the Agreement? The Lessee contended that the June 9 letter did not constitute a repudiation of the agreement. The Primary Judge held that the June 9 letter was an indication of the Lessee’s willingness to negotiate only in circumstances where their demands would be met.
On appeal, the Court held that the Primary Judge’s interpretation of the June 9 letter was incorrect. Ward JA noted that the June 9 letter was in fact an invitation to negotiate. Whilst the letter may have indicated the Lessee’s potential refusal of terms presently negotiated, it was not an ultimatum. Therefore there was no repudiation. As a consequence, the Landlord did not have a valid right to terminate the contract.
Was the Termination Valid?
Whilst no right of termination arose, the Court still considered whether the contract was validly terminated by the Landlord. In a letter on June 11 2010, the Landlord’s solicitors wrote to the Lessee:
Your client’s withdrawal from the lease will result in our client incurring substantial losses. Our client will endeavour to mitigate those losses. However, we are instructed to put your client on notice that our client will hold it liable for all losses incurred by our client as a result of your client's actions. The Landlord alleged that this letter constituted a termination of the agreement. The Court held that the letter did not reasonably make clear that the agreement was at an end and hence the agreement was not validly terminated.
Inconsistency of Clauses
Whilst the inconsistency of clauses within the letter of offer was not a vital issue in this case, it is worth noting. The letter of offer gave the Lessee the right to amend their offer. However, in a separate clause, it stipulated that the signing of the agreement would create binding heads of agreement. Due to this inconsistency the right to amend the letter of offer was only extended up to the point the letter was signed by the Landlord.
Lessons
This case holds four key take-away messages:
Firstly, if a document purports to be an agreement to lease but relies on subsequent negotiations and/or documentation, it may not constitute a valid Lease Agreement.
Secondly, parties to an agreement should be very cautious in assuming a right to terminate a contract. The consequences of wrongful termination may amount to a repudiation and make the alleging party liable to damages.
Thirdly, if a party is intending to exercise a right to terminate, it should use clear language and should not proceed on an assumption. Failing to do so may constitute serving an invalid termination.
Finally, parties should be cautious when drafting terms and ensure clauses are not inconsistent with one another.
Gary Newton is partner, Tress Cox Lawyers and can be contacted <a href="https://www.tresscox.com.au/" target="_blank">here</a>.
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A Lease Agreement may not be binding

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The South Yarra apartment Luke and Ebony renovated on the hit TV show The Block has found a tenant.
The co-creator and executive producer Julian Cress made the property available to rent for $1,650 a week, short of the $1,950 a week which was hoped after the show aired.
Renovated in the building previously known as the seedy Hotel Saville, the three bedroom plus study apartment only missed out on winning the series by $15,000.
Nigel Johnston of hockingstuart had the listing of <a href="https://www.domain.com.au/1-1a-affleck-street-south-yarra-vic-3141-10356999" target="_blank">1/1A Affleck Street</a> which has been removed from various websites.
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The Block secures South Yarra rental

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Residential property leases in Perth are up 3.3 percent from April to May and 7.4 percent when compared to May last year according to REIWA.
REIWA President Hayden Groves said the North-East sub-region was the stand out performer in May, lifting 16.6 percent on April, followed by the North-West sub-region which saw an 11.5 per cent increase.
“When compared to May 2015, the South-West sub-region saw the most notable lift in listings – up 21.8 percent on last year, followed by the North-East sub-region up 13.5 percent," he said.
 
“It’s pleasing to see that although rental listings remain above long term averages, there is still plenty of movement in the market with leasing figures on the rise across the metropolitan area.
"The spike in leasing activity during the month was felt across all but two of the sub-regions. Data shows that the Central sub-region and the South-East sub-region were the only sub-markets to experience a decline over the month, but when compared to May 2015 leasing activity was up 2.5 and 6.9 percent respectively."
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Perth tenant activity increases in May: REIWA

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For five years the BradfieldCleary agency in Sydney's east have been keeping tables on a selection of its rental re-lettings. 
 The latest shows properties re-let over the winter season. 
The overall the properties leased for an average of 3.91 percent above the previous rent. 
This is a particularly strong performance for rent returns in winter, a time when there is generally less demand than in the spring and summer, agent Bob Guth suggests.
The figures from previous winters; July 2012 (2.66 percent), July 2013 (0.80 percent), June 2015 (3.55 percent) were not as strong as this year. 
<a href="/images/2016/08/25/TABLE%20AVERAGE.JPG" target="_blank">Click to enlarge</a>
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"This may well be a reflection on the increase in values residential property has experienced over the last several years but may also come due to a slightly strengthening economy. 
"Needless to say some of the more significant increases may be as a result of some minor upgrades (paint, carpet, lighting, blinds etc) and the small falls in return because of wear and tear and general presentation."
<a href="/images/2016/08/25/TABLE.JPG" target="_blank">Click to enlarge</a>
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"Nonetheless it is clear that rents continue to rise above the CPI, confirming investment in residential property must surely be better than ‘money in the bank’," Bob Guth said.
 
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Sydney eastern suburbs rental rise above the CPI over winter

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Long term residential leases have been a rarity in the Sydney rental market, but one landlord at Bondi Beach seeks tenants who won't face being turfed out - or want to leave - after just six months.
The seasonal turnover in Bondi tenants is most likely higher than most locations, but <a href="https://www.thedriftbondi.com.au/residential/#the-drift" target="_blank">The Drift</a>, (above) a new 16-apartment block just a stones throw from the beach, has been pitched at occupants who want to settle in for 24 months or longer.
"I'd be happy to offer 36 months or 48 months," the building managing agent Byron Rose said, saying it was a small step in Sydney embracing the lengthy-stay European rental model.
The one and two bedroom lettings will go to market with an open day next weekend.
The 12 one bedders with study nooks are offered with a guide of $800 and the four units with two bedrooms, and also with study, expecting to lease around $850 a week.
It is owned by an eastern suburbs family syndicate who have redeveloped the corner complex after 25 years ownership.
"The family see ownership as inter-generational, and would like to have longterm tenants too" Byron Rose, the Rose and Jones leasing manager.
He said the idea came from demanding young professionals who want residential surety while they save for their own home.
“They want to live in Sydney’s hippest suburbs, but face a choice of just older, run-down buildings that aren't inviting. 
"They want to rent something they are proud of in a location they are likely priced out when it comes to buying."
Located on the corner of Hall and Gould streets, the apartments were designed by Silvester Fuller to fuse functionality and aesthetics.
They all include open plan living, a separate study hub and private timber-lined balconies with plantings. 
The one-bedroom apartments have around 57 square metre internal space.
Besties Cherie Allen and Chris Perkins got a recent look and love that The Drift encourages long term tenancy. It will be their first time away from home and they've heard horror high turnover rental stories. 
"Once I'm in, I'm not leaving," Allen said, admiring the craftmanship inside and the views outside.
There are wide window ledges which you can sit in, soak up the sun and watch world below, Perkins noted.
They don't want to do the rental inspections over and over again because the landlord wants to sell.
They've seen other places in Bondi backstreets that are old and run down - and you have to pay a lot for them. 
Statewide there are around 750,000 properties rented officially, with around 250,000 of these tenants seeking bond refunds annually from the Rental Bond Board showing the very high turnover.
For many decades protected tenants existed in NSW, safe from eviction. Their number sat at 200,000 in the early 1960s - about 70 per cent of all privately rented accommodation.
That dropped to fewer than 800 by the mid-1990s, and as recent as last year there was a Homebush tenant claiming such status under the 1948 act as a child of the original lease owner. 
No one is suggesting a return of the highly regulated days of protected tenants - where rents could only be raised by the Fair Rent Court - which stemmed as a result of wartime measures. 
But with more elderly in the rental market, the market place pressure will see landlords giving thought to offering longer tenure.
This article was first published in the Saturday Daily Telegraph.
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Long term rental tenancy coming to Bondi

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Leaseback property deals, often targeted towards self-managed superannuation funds (SMSFs), are under the securities regulator’s review. 
 
The deals typically involve buying a residential investment property — house or apartment — with guaranteed tenancies that promise returns of around six percent, well above bank deposit rates or inflation numbers, according to a report in the Australian Financial Review.
 
The new owners lease back the properties to the developer who then acts as a landlord or engages a third party to rent and manage the property. Usually, these contracts are around three to five years and promise generous returns for the length of the contract.
 
Demand for the deals is growing among retirees looking for a regular, above-inflation income from the rent as well as the prospect of capital growth, the AFR reported.
 
The Australian Securities and Investments Commission stepped in to investigate because it wants property investors to fully understand their financial risks and responsibilities.
 
ASIC deputy chairman Peter Kell was cited in the report as saying that the watchdog is monitoring promoters of the schemes as part of a broader nationwide review of property spruiking and real estate deals on offer to SMSF investors.
 
"If these deals are done through self managed super, then it falls into the category of advice," Kell says.
 
Typically it involves the buyer of a property entering a leasing agreement with the seller. Yields are usually around three to four times the inflation rate of 2 per cent, or double returns on most fixed-rate deposit accounts.
 
The term is often three years but there is usually an option to extend the lease by six months for a maximum of two to three times.
 
But promises of such guaranteed rental returns are sometimes used by developers to lure investors to a weak market or masking an overpriced offer, warns a post on hotspotting.com.au.
 
“Developers offer them when they're struggling to sell apartments at the prices they want,” the post says. 
 
Recent prosecutions of spruikers are reassuring the regulator it has the legal power to close down unfair property-linked investment deals, despite it not being directly responsible for real estate.
 
"Get any deal reviewed by a lawyer and financial adviser before committing," said Anthea Digiaris, an associate with legal firm Slater and Gordon Lawyers, about the need for doing your own due diligence, the report said.
 
But Daren McDonald, a partner with management and property consultancy ShineWing, told the AFR that lease backs are common in commercial and retail sectors and can also work well for a short-term investor who enjoys the higher yield before moving into the property.
 
But Ben Kingsley, chair of industry lobby group Property Investment Professionals of Australia, echoes the advice from Hotspotting and warns investors to be careful.
 
"Times are tough for many developers because deals are not coming through. Rental deals are regularly offered by selling agents whose interest is to get a deal done for the developer, not look after the buyers' interests," says Kingsley.
 
The onus is on the developer to find the tenant.
 
"If they can't find a tenant, then the extra costs caused by no rental income will come from their margins. That means any rental guarantee will be included in the price the buyer pays."
 
Those considering a deal should answer these questions before completing a deal:
 
•Has the value of the property been inflated to cover the high yield?
 
•Do banks and other lenders impose tougher conditions around lease-back deals, such as stricter terms on interest rates, ability to repay, loan to value ratios?
 
•Who pays for property servicing contracts, body corporate fees, insurance, rates and maintenance during the lease?
 
•What happens at the end of the lease? Can the lease be extended? Who is responsible for restoring the property to its original condition?
 
•What happens if there is a contract breach by a tenant or the developer? Is there a structure to resolve disputes?
 
•Is there demand for this type of property?
 
•What rent can you achieve at the end of the developer's lease?
 
•Will the value of the property decline if the original lease no longer exists?
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Property lease-back deals under ASIC scanner

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Western Australia led the rest of the country in rental listings in the past 12 months as listings rose nine per cent during the period, pressuring rental growth in some markets, according to latest data from CoreLogic.
“Western Australia council areas feature heavily on the list of regions that have seen the greatest increase in rental advertisements over the year, many of which are located in Perth,” according to CoreLogic’s head of research Cameron Kusher.
He said that sluggish investor activity in WA may indicate that as the economy has weakened and people have migrated away from WA, home owners may be looking to rent out their home rather than selling into weak market conditions.  
A number of NSW regions too figure on the list and this is probably more reflective of the ramping-up of housing supply purchased by investors, he said.
“Rental advertisement counts suggest that the population growth is increasingly being housed via investment housing (rental accommodation) which aligns with the lift in investor housing finance commitments over recent years.”
Over the 12 months to January 2017, houses advertised for rent rose 8.7 per cent to 362,708, while for units the figure was up 9.3 per cent to 287,233 properties.
“The rental market is currently seeing historic low rates of rental growth and with the amount of rental accommodation ramping up it is easy to see why,” said Kusher.
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<img src="https://www.urban.com.au/images/2017/03/19/March17Rentals.png" alt="">
Of the regions with at least 1,000 rental ads during the period, only 17 council areas experienced a decline in ads over the year, with Canberra and Hobart among them. 
Despite the housing construction boom in Sydney at the moment, Kogarah, Warringah and Manly have recorded fewer properties advertised this year compared to last year, signalling tighter rental conditions, said Kusher.
He said that with a record number of homes still under construction, mainly units, rental ads would continue to rise and will hurt rental price growth in many suburbs with choices increasing for renters.
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