Gavel - court decision

Lease renewal – was the lessee entitled to relief?

A lease is more than a contract. It creates an estate in land. Even when a lessee does not follow a renewal process properly or where there are other questions around a renewal right, the Court more often than not finds in favour of the lessee…

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Leases – Setoff Against Outgoings

A recent decision Drake City Limited v DJ Tasman-Jones & Anor (High Court, Auckland 20 December 2016) concerned a lease for one of the restaurants in the Victoria Park Market precinct.  There were arrears under the lease and the tenant had gone into liquidation.  The guarantors were being pursued for sums due.  These included unpaid…

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Bodies corporate, guarantees and amenities – developer’s duties

Body Corporate 401803 (the 103 Tremont apartment complex in St Lukes, Auckland) has recently been to the Court of Appeal.  At issue was the validity of guarantees given by the body corporate to third parties under leases of 3 units – the manager’s apartment, the swimming pool, tennis courts, gymnasium and other amenities.  Between June…

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Unit Titles and Leasing

Leasing unit titles is more complex than other forms of leasing. The Unit Titles Act 2010 (UTA) and the body corporate operational rules will prevail over the lease. The landlord might only have a very small say in how that plays out. This depends on their individual voting power. There is another layer of rights…

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Proxies and Powers of Attorney

In the past proxies were commonly used in the unit title setting.  Developers would provide for them in sale contracts.  Property managers would include them in leases of serviced apartments.  It gave the developers and the managers the opportunity to control decisions made by the body corporate.  These provisions are now of little use given…

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The 12 key changes in the new ADLS 6th Edition Deed of Lease

Changes to the ADLS 6th Edition Deed of Lease that help the landlord: CPI rent review – the CPI review ratchets commencement rent and could ratchet inflation based growth only. Insurance excess – the recoverable excess increased to $2,000.00 per claim where a Tenant’s act or omission causes the destruction or damage. Unit Titles Act 2010 – the Tenant must…

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Taxing lease incentives – changes on the way

The government’s measures to increase their tax take through the targeting of the property industry looks set to continue. First we had the erosion of depreciation, followed by the changes to loss attributing qualifying companies. Now the government is proposing to change the way it taxes lease inducement payments. In the current economic environment it…

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Earthquakes and leases – what to consider.

The sight of the ADLS Fifth Edition 2008(2) commercial lease can bring a feeling of both comfort and familiarity. The ADLS is widely used and understood and is often seen as the form of lease that can ‘get the deal over the line.’ It is generally regarded as a fair lease, and not significantly weighted…

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Improvements rent percentage – Can landlords recover some of their costs?

 The aftermath of the Christchurch earthquakes has given rise to a number of commercial and legal issues for landlords and lawyers. From insurance questions, to rental abatement, access and questions of untenantability, the earthquakes have left their mark on the commercial property market. One such leasing issue which is likely to become increasingly significant is…

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What is quiet enjoyment?

The right of a lessee under a commercial lease to quiet enjoyment is implied in the majority of leases.  The implied covenant is a limited guarantee that the lessee can occupy the premises without interruption or disturbance from the lessor, or persons through whom the lessor derives title or persons who claim through the lessor. …

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