Dealing with problems

Date

Where do I start?

It is important to remember that signing a lease is the start of a relationship with your landlord. Both you and your landlord share a common interest – to trade successfully and profitably.

You can both build on this common interest and create a spirit of cooperation. Many day-to-day problems can be overcome if you read your lease and talk to your landlord or centre manager about your concerns. This often works, and saves time and money.

What if there is still a problem?

Unfortunately it does not always work, so each State/Territory has a special procedure to help to resolve retail tenancy disputes.

Dispute resolution services are intended to save you the expense of going to court and to help you resolve a dispute reasonably quickly. The systems vary slightly among States and Territories but work along the same general principles. In some situations, you cannot go to court unless you have tried alternative ways of resolving the problem. In other situations, while mediation or dispute resolution is encouraged, it does not stop you from going to court at any time.

You will need to check your State/Territory resource lists for contact details for where to find out more about your local procedures.

Your State/Territory dispute resolution system may include mediation so here is a little more information about how it works.

What is mediation?

It is a private discussion between you and your landlord where a trained mediator manages the process. It is not open to the public and the proceedings are confidential.

Mediation is an informal process. The mediator will welcome you and invite the parties to outline their problem. If you or your landlord wishes to put forward a proposal to resolve the dispute, you may be able to do so at any time during the mediation, or even before it gets to mediation.

The mediator is not a judge. The mediator’s role is to help you and your landlord better understand the situation and consider if you want to come to an agreement at this stage. You can ask for a break to think about matters raised in the mediation.

If you reach an agreement during a mediated session, you both may have to sign a mediation agreement or a form of contract. The agreement or contract you sign as a result of the mediation will be binding.

You usually start the mediation process by lodging a special form. In some States or Territories you may have to pay a fee. Sometimes there is a preliminary conference. Your local retail tenancy office, small or retail business association, or fair trading office staff will help you and tell you about the procedures and fees. You may want to get professional advice before the mediation. You may also want to take a representative with you. Your local retail tenancy office, small or retail business association, or fair trading office staff will tell you if this is allowed.

How do I get ready for mediation?

Here is a helpful checklist.

  • Read your lease again!
  • Consider your rights under your retail lease legislation – your local retail tenancy office, small or retail business association, or fair trading office can help.
  • Consider asking for expert help.
  • Write down carefully the exact nature of your dispute. The sorts of things that may be important are:
    • the date your lease was signed
    • the date you moved into the retail shop
    • the length of the term of your lease
    • whether your lease contains an option to take a lease for a further term
    • the nature of the business you run in the retail shop.
  • Put together copies of your lease, disclosure statement and any other documents relating to the dispute such as letters, notices, extracts from your diary and accounts.
  • Consider possible solutions to resolve the dispute.

What happens if mediation does not work?

Your State/Territory advisers can tell you what happens next. Depending on where you live, you might be able to take it to a tribunal (if your State/Territory has one) or to court, depending on the size and issues under dispute.

Most of the tribunals were created as specialist bodies that deal only with retail lease disputes. They were designed to give a cheaper and quicker result than traditional courts.

The tribunal is much more formal than mediation – its directions and orders are binding.

Can I go straight to court?

The special procedures to resolve retail tenancy disputes are designed to keep most retail tenancy disputes out of court but that does not always mean it is not an option. Check your retail lease legislation, ask your local retail tenancy office, fair trading office, small or retail business association, or get expert advice on what is available in your State or Territory.

CASE STUDY

Responsibility to repair and maintain versus replace

An air-conditioning unit that is part of the landlord’s fittings provided within Victoria’s shop has broken down. Under the lease Victoria has an obligation to ‘maintain and repair’ the unit. Victoria has called in a contractor to look at the unit, but the contractor has told her that the unit has reached the end of its life and can’t be fixed. Victoria calls the landlord and the landlord says that Victoria needs to replace the unit.

Under a lease it is important to clearly distinguish between obligations to ‘repair and maintain’ versus obligations to ‘replace’. As the air-conditioning unit is owned by the landlord – it makes sense that the landlord should be the one to replace the unit when the time comes. Alternatively, if the tenant is required to replace the unit, the tenant should then take ownership of the unit and be able to take it with them when the lease ends or sell it to the landlord or a third party (assuming that the landlord’s unit has broken down due to fair wear and tear and not because the tenant has damaged the unit).

If a lease is left silent on a particular matter and the parties disagree, it will ultimately be left to a third party(for example, a Court) to decide.