Question: What should I do if I think my landlord has drafted unfair terms and conditions into my retail lease?
Answer:You should immediately consult with a leasing lawyer to review the terms of the lease agreement BEFORE you sign and agree to potentially detrimental terms. Signing a commercial lease isn’t a straightforward task, it’s a negotiation. In many cases, the initial lease will be heavily weighted in favour of the landlord. Read it, evaluate it and then suggest amendments to the lease if you aren’t happy with any of the clauses.
Unfair terms are legally unenforceable so it is in landlords’ and tenants’ best interests that terms should be fair for all parties involved. An evaluation of actual fairness can only be determined by a court, but in the interests of avoiding dispute litigation over retail leases, both landlords and tenants should familiarise themselves with the basic ‘good faith’ requirement in contract law, which is a general principle of fair and open dealing during negotiation. Something might be contrary to the good faith requirement if it causes a significant imbalance in the parties’ rights and obligations arising under the contract and if the terms are obscure and lack transparency.
Landlords should abide by the general principles of fairness and transparency by making sure the terms of the lease are clear, legible and do not intend to disadvantage the lessee. As a tenant, avoid the inclusion of any unfair terms that are prejudiced against you by making sure you have read over the lease agreement carefully with the help of a lawyer.
