- April 5, 2024
- Posted by: legaleseblogger
- Category: Related News
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### Overview of the Situation
Renting from a landlord, locked out due to alleged arrears from a new Heads of Agreement. Landlord unresponsive to communication. Original arrears claimed to be $20,000, increased to $40,000 after requesting a statement. Equipment locked inside worth $80,000 with a remaining loan of $30,000. Court proceedings estimated to cost $15,000-$18,000, with potential to recoup 50%-75% if successful.
### Background of the Relationship
In 2020, started a business renting premises from partner’s mother. Mother is litigious and demanding, causing strain on the relationship. Attempts to sell the business were met with unresponsiveness from the mother. Mother suddenly decides to sell the building, offering it to us at a price we cannot afford. Attempts to negotiate a lease or holdover lease were ignored. Received a two-week notice to vacate based on alleged breaches of the Heads of Agreement.
### Current Dilemma and Possible Actions
Locked out due to disputed arrears, now totaling $40,000. Options include negotiating the arrears, paying the fees and retrieving the equipment, or seeking an emergency injunction through court. Selling the equipment to cover losses is also a consideration. Seeking legal advice on the best course of action, as further litigation may be necessary.
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1. See if you can make a peace offer, in writing, which may avoid legal costs, aside from getting your solicitor to write it up. Stress to the other party how much everyone will otherwise spend on legal costs.
2. Focus on getting your equipment out. They can’t hold that ransom or against any claimed debts. Then worry about arguing arrears and lease termination. You’ll still need lawyers for that, but hopefully not anything on a long weekend.
Good luck, sounds like you’ll need it.
$40k in arrears and lawyer wants $15-$18k a day plus prep. If you can afford the lawyer you can afford to negotiate direct with the landlord to pay the arrears and get the property unlocked, even if just to remove your gear. That said, the gear is now the collateral for the landlord to get you to pay, so doubt they are going to be receptive unless they are seeing a big chunk of that debt paid.
Might be time to go speak to an insolvency practitioner about winding up your business.
You need to look at your records of your rent paid. LL also needs to provide a ledger legally upon request. She cannot just pull a figure out and wave it around like it means something. You also need to look at what provisions were legally made by the government for the COVID period (because there were a lot) and whether you and the LL fulfilled/abided by those provisions.
If you were 14 days in arrears, yes she can lock you out. Depending on the terms of your lease, she may be able to sell your equipment at a reasonable price to cover the arrears.
You need a commercial real estate lawyer and you need it now. Any old lawyer will NOT do. If the lawyer you’re using is not a specialist in this field, then you need to get a new one. Commercial law in NSW can be a quagmire because every lease can be very different and the laws backing up something not in the lease can be very… open to interpretation.
Unfortunately, I don’t see you keeping this out of court. Good luck.
This is wrong on so many levels if it’s meant to be under the retail leases Act. A tenant doesn’t pay the lessor’s legal fees.
You would have the protections afforded by the RLA.
If it’s not retail premises, then you’re dealing with mediation or the court system in the absence of a lease .
I’m tempted to say just let the business go bankrupt. Then never talk to her again
Bad advice but you could get an agent to pose as a buyer for 1.7 and 100k for the business, but the buyer obviously would need to see how the business operates its day to day and she would need to at least give access for a week to assess everything allowing you to move your stuff out.
This isn’t the place to get advice. Pay for a lawyer asap
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Follow your lawyers advice
It’s really strange…. ok so you are basically o a handshake agreement woth her. You pay an agreed rent for the premises where you operate your business.
When you signed a HOA, a lease did not eventuate? What was the proposed commencement date for the new lease in the HOA? A HOA is non-binding, but in the absence of a proper lease, I am wondering what will be given more weight in court – the handshake you guys were operating on, or the termd of the HOA?
Also, for her to lock you out, has she issued letters of demand? Has she validly served you with a notice to terminate? What are the “essential terms” of your agreement that she is breaching you on?
I think you have a case but you will definitely need proper legal advice
Cut the locks with a plan for equipment extraction I think it will be cheaper than lawyers. I think it’s probably time to declare the business insolvent.