The fog is beginning to clear

There is a translation key (widget) on the mirrored blog for ease of reading for non-English speaking members of the public or professionals. The mirrored blog can be found at http://roberthaybarrister.blogspot.com.au/

 

 

Section 52 of the Retail Leases Act 2003 implies into a lease a term that the “landlord is responsible for maintaining in a condition consistent with the condition of the premises when the retail premises lease was entered into:

“(a)      the structure of, and fixtures in, the retail premises; and

(b)      plant and equipment at the retail premises; and

(c)      the appliances, fittings and fixtures provided under the lease by the landlord relating to the gas, electricity, water, drainage or other services.

The section was considered in  Computers & Parts Land Pty Ltd [2010] VCAT 2054 where it was held that a landlord was not required to maintain premises in “state of disrepair” that was “identical” to the state of disrepair when the lease was entered into; the state of repair “need not be any better than at the commencement of the lease” but had to be “the same benefit to the lessee as was agreed to be provided by the demise” (para [75]).  Section 52 was a “keep in repair” obligation as opposed to a “put in and keep in repair” obligation (paras [84] and [85]). The expression “keep in repair”:

“…could mean, in extreme circumstances, that the only course open to a landlord is to replace some aspect of rented premises, but only to the degree that it is necessary to give the tenant the same conditions as at the commencement of the tenancy.”

If parts failed they had to be replaced with replacement parts that  “in the absence of adequate second hand parts, might need to be new” (para [85]). While s 52 did not mandate compliance with any legislative standard, a landlord could not contravene “a building or related law or regulation” and if there were an “aspect of the building that was legal at the date of its construction but is no longer legal, repair of that aspect of the building would not be a betterment for the Tenant.”(para [88]).

The Tribunal rejected contentions that a landlord had to re-design an air conditioning system to remove design flaws or anomalies (para [90]) and replace the  system with one that operated better than the original system (para [96]) but accepted that there might be circumstances where a roof had to be replaced rather than repaired if it were to survive the duration of the tenancy (para [127]).

 

My clerk can be contacted via this link for bookings  http://www.greenslist.com.au/

Advertisements

, , , , , , , , , , , , , , , , , , , , , ,

  1. Leave a comment

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

Owners Corporation Law

Developments in strata body corporate law in Victoria

The Warne Account

The blog of Dan Warne, Australian tech writer.

Best Practices for Legal Education

A Vision and a Road Map

Tisher Liner FC Law Blog

Legal Updates on Business Law, Property and Litigation

THE NSW BAR -- A COMMENTARY

AN ASSOCIATION OF UNCOMMON PEOPLE

With Compliments

Geoffrey Gibson

CommBar Matters

Commentary and case law from the Commercial Bar Association's finest.

The law of land and sea

Australian law of property and environment

Amicae Curiae

Women. Law. Legal Education. Legal Practice. Career. Work/Life balance

Carrie Rome-Sievers, Barrister

Developments in insolvency and commercial law

Equity, Trusts and More

Travis Mitchell, Barrister at the Victorian Bar

Sam Ure

A Melbourne barrister practising in commercial disputes, tax and administrative law

The Property Law Blog

Robert Hay QC Property and Commercial Law Barrister

%d bloggers like this: