Unfortunately, it is common for disputes to arise between landlords and tenants. In such circumstances, resolving the dispute between the parties is essential, for example, through negotiations. Leases often mandate that the parties attempt alternative dispute resolution (ADR) processes before seeking other options. However, ADR may only sometimes result in a resolution. Therefore, you may choose to commence court proceedings. This article will summarise the key considerations you should make when going to court for a lease dispute.
This guide will help you to understand your options when you purchase a business with leased premises.
Evidence
You will need evidence to substantiate your position if you are making a claim or defending one. As such, gathering evidence is one of the first steps in going to court for a commercial lease dispute. Although, the relevance of particular evidence will depend upon the nature of your dispute. For example, if you claim that you have requested the landlord to rectify damage to your premises to no avail, you should gather those communications.
In general, the evidence that will be relevant to your lease dispute can include:
- bank or account statements, invoices or payment receipts of rent, outgoings or otherwise;
- correspondence and communications, such as emails, with the other party or third parties concerning the lease dispute;
- a signed copy of the lease and other related documents such as car parking licences or other forms of licence;
- photographs or video of any damage to the property or conduct related to a breach of the lease; and
- any other internal notes from verbal communications.
It is also essential to formulate a timeline of events. This chronology should set out the key events which led to the dispute and can be helpful in determining where you might be missing evidence.
Lease and Related Contracts
If you are going to court due to a lease dispute, it is pivotal to ensure that you first review the lease and related contracts. First and foremost, it is necessary to ensure that:
- you have the right to commence legal proceedings in court concerning your lease dispute; or
- the other party has the right to bring legal proceedings in court in relation to your lease dispute.
Making this determination will depend on whether each party follows the lease terms about dispute resolution. For instance, this might include adhering to requirements to negotiate or send breach notices. You should also be aware that most courts require parties to attend mediation, to attempt to resolve the dispute before the court proceeding continues.
Continue reading this article below the formKnow the Laws
It is crucial to consider the laws that apply to your lease. This will help determine the claim that is being made, and your legal position. For example, if your lease is a retail lease, state-based legislation will apply and govern your lease. On the other hand, if your lease is a commercial lease, then previous decisions made by judges will be essential to determine your legal position.
Further, the court process itself follows several:
- rules;
- regulations; and
- deadlines.
To ensure the best chance of succeeding in bringing or defending your case, you (or your legal representation) must be well aware of the relevant legislation.
Legal Advice
Navigating a lease dispute in court is a complex process. Therefore, you must obtain legal advice. Further, you should seek legal advice if you are in a position where you:
- would like to commence the court process to resolve your lease dispute (as a landlord or tenant); or
- have been served with a notice that proceedings have been initiated against you (as a landlord or a tenant).
Seeking out legal advice is an excellent way to ensure you:
- have the right to bring the claim;
- gather the relevant evidence;
- understand the lease, as it is relevant to your dispute;
- understand the application of any relevant legislation;
- understand the costs you will incur during the court process; and
- ensure you engage in the appropriate communications with the other party (i.e., you do not say anything or provide any form of information that could be detrimental to your case).
Key Takeaways
As a landlord or tenant, it is common to engage in a dispute regarding your lease. Your lease may require you to engage in ADR. However, this will only sometimes result in a resolution. In this case, you may find yourself engaged in court proceedings with another party. Before going to court for a lease dispute, you should ensure:
- you gather the relevant evidence;
- review the lease and related contracts;
- consider the laws that apply to your lease; and
- obtain legal advice.
If you are facing a lease dispute in court, our experienced leasing lawyers can assist as part of our LegalVision membership. You will have unlimited access to lawyers to answer your questions and draft and review your documents for a low monthly fee. Call us today on 1300 544 755 or visit our membership page.
Frequently Asked Questions
Most courts will require parties to attend mediation to resolve the dispute before the court proceeding continues.
You will need evidence to substantiate your position if you are making a claim or defending one. As such, gathering evidence is one of the first steps in going to court for a lease dispute. Although, the relevance of particular evidence will depend upon the nature of your dispute.
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