Newsletter - Winter Edition - July'03
There have been more changes made in legislation relating to Leases for shops or other retail premises. In general, the Act started on the 1st May, 2003 although some parts come into existence from the 1st July, 2003.
Some of the important provisions include the following -
1. The Lease that the Landlord proposes to use must be handed to the prospective tenant at the beginning of negotiations.
2. The final Lease and Disclosure Statement must be handed to the tenant at least 7 days before the tenant takes occupation of the premises.
3. The term of the Lease (including option periods) must be at least 5 years.
4. Key money can now be demanded in certain circumstances. One example is the request for a longer Lease as is usual in liquor establishments.
5. Security deposits must be lodged by the Landlord in an interest bearing deposit on behalf of the tenant. Details must be given to the tenant.
6. A new Commission has been set up and it must receive details of the Leases within 14 days of the date of the Lease.
7. The exercise of an option for a Lease must be from 6-12 months prior to the commencement of the new Lease (previously 3-6 months).
8. Land Tax is payable by the Landlord.
9. Some Management fees, where they relate directly to the collection of the rental, can be charged to the tenant.
10 Urgent repairs can be ordered by the tenant who may then arrange for the Landlord to pay same.
11. The Franchisees are responsible for the changes, even if the Lease is with a Franchisor.
The above represents a selection of the changes. It is important that both Landlords and tenants are aware of their rights and their obligations under these new provisions.
Schools and their teaching staff owe a duty of care to students. They must provide safe and suitable school premises and equipment and adequate supervision of students who are under their care. The question of adequate supervision is determined on the facts of each case. The age of the student who is injured is always a factor to be taken into account. In several recent cases the Courts have stated that they will readily attach a duty of care to schools and teachers. However, it is possible that injuries will be judged as being the result of simple accidents. That is, unavoidable mishaps that can invariably occur at school.
PROTECTION FOR VOLUNTEERS/GOOD SAMARITANS
Volunteers who provide services in the community are protected from civil liability where their act causes an injury to others. The volunteer must be acting in good faith in religious educational, charitable situations.
Good Samaritans act to provide assistance, advice or care to others in an emergency or accidents. They do not expect to receive remuneration. The person being assisted is injured or at risk of death or injury. A Good Samaritan is protected from liability for anything that is done/not done in good faith to provide the assistance, advice or care at the scene of the emergency or the accident.
Employers have legal consequences with regard to SARS. For example, employers have obliged employees who have travelled to China or through other affected areas to isolate themselves upon their return to Australia. This is appropriate behaviour.
Wise employers should ensure that employees who may have been exposed to the virus should be isolated from the balance of the workforce until it is certain that the employee poses no further risk. The employer should not wait until the onset of symptoms before making the decision. The employer has a legal liability to ensure the health and safety of its workforce even in situations where the employees are not at their work place.
Employers can rely upon the advice of appropriate qualified medical specialist. The employer may oblige an employee to undergo a medical check. If that check provides a clean bill of health then the employer may be presumed to have taken reasonable steps to protect other staff. The failure to carry out these steps could mean that the employer will be unable to defend a negligence claim or an action under occupation health and safety regulations.
REAL ESTATE AGENTS AT AUCTIONS
Recent changes have been made to legislation which could be proclaimed at any time. That legislation forbids the Vendor or his representative from making a bid at an auction. Auctioneers may only accept bids from bona fide bidders. However, Auctioneers can make a Vendor bid if this is authorised in the conditions of sale of the auction contract and the Auctioneer declares that he is making the Vendor bid.
Breaches of the new Act can mean large fines or jail sentences. Purchasers have 2 years to claim compensation if they can prove that they have suffered a loss arising from abridge. It is inconceivable at this time to estimate when this situation might occur.
The Agent's Authority must include a price estimate or a range with a 10% differential and when marketing the property the Agent must not indicate a price estimate that is lower than the estimate in the authority.
I would like all readers of this Newsletter to note that while I believe the content to be accurate and correct, this does not mean that, on its own, it can be relied upon as legal advice. If you have a problem which involves any of the issues contained in this newsletter then please contact me to discuss that problem.