Disputes and litigation in retail leases are unfortunately a common occurrence.  You should always consider seeing a leasing lawyer and check out these basic steps of how the process works.

Try to resolve it yourself

Both parties have a mutual underlying interest in keeping the matter outside of litigation and often, maintaining a good relationship.  Both parties want to be profitable and for their business to be successful.

Read the lease

This might sound basic – but remember the lease is really what you have agreed to and is the foundation of your relationship.  When a problem arises go back and check what the lease says.

Consider mediation

Mediation is a great alternative to taking legal action.  It is a process whereby a trained mediator assists you and the landlord in coming to a resolution.  A mediator is not like a judge – they will not make a decision, they are just there to facilitate the process.  You don’t have to agree to anything in mediation, but if you do you will sign an agreement and it will become binding.

Taking it to a Tribunal

If the situation is still not resolved you should probably see a leasing lawyer and take the matter to the relevant tribunal.  Depending on which state you live in you may be required to go into pre-trial conciliation or mediation.  In many states you will first be required to go to a directions hearing at the tribunal.

What is a Directions hearing?

Directions hearings allow for orders for the proceedings to move forward.  This might involve things like:

  • A decision as to whether or not it is within the court’s scope to hear the matter;
  • A decision about whether the dispute is based on questions of fact or questions of law.

A directions hearing is presided over by a tribunal member who usually has a legal background and the member may:

  • Dismiss the case
  • Direct the case to a particular tribunal member
  • Direct the case to a full tribunal (usually three tribunal members hearing it)
  • Direct the parties to get witness statements
  • Direct the parties to specify to the tribunal the precise type of order they want
  • Set a hearing date

What happens if my lease dispute goes to a tribunal?

A tribunal hearing may have up to three members (like judges) who will hear and preside over the case.  The members will also decide on a verdict together.  At least one of these members will be legally qualified and the others might be representatives of landlords or tenants organisations.

Both parties will present evidence, both written and oral, to the tribunal.  The tribunal is not there to investigate the matter, so you need to present a clear case.  You usually give written submissions and accompanying evidence to the members – you will then be questioned on this evidence. If you have witness statements, those witnesses will need to be present for their evidence to be given weight. All evidence given to the tribunal is taken on oath and is also recorded.

The tribunal can make a range of orders in relation to the lease dispute, including:

  • Orders to pay compensation
  • Orders to change or correct the lease
  • Orders for landlord’s to recovery the premises
  • Orders for a party to stop doing something

Should I get legal representation?

Parties are allowed to represent themselves and some people do have success at the tribunal despite not having formal legal representation.  However, at the very least you should consult with a leasing lawyer before taking the matter to a tribunal – otherwise it could all be a costly waste of time.

Costs

Usually parties will pay their own costs, unless the tribunal finds that you acted vexatiously in bringing the claim or refused to take part in mediation, in which case you may have to pay the other party’s costs.

Lachlan McKnight

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