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Help With Your Commercial Matters
The experienced and professional commercial lawyers at HFM Legal will provide you with practical and cost effective advice and creative solutions for all your commercial arrangements.
Our lawyers will explain clearly all aspects of the commercial agreement or transaction so that you are fully informed and have a proper understanding of the steps required to complete the commercial matter.
Our commercial lawyers regularly assist clients in:
- preparing and reviewing lease agreements, sub leases, extensions, variations and assignments of lease, disclosure statements, notices of election, notices to exercise an option and the tenant guides;
- negotiating and drafting the terms of lease agreements;
- providing advice in relation to the terms of lease agreements;
- enforcing the terms and conditions of lease agreements; and
- representing clients in lease disputes.
- Loan agreements and securities
- Terms and conditions of conducting business
- Business structuring and business sale agreements
- Commercial drafting
Should my lawyer prepare a commercial lease?
Your lease is likely to represent one of the most important aspects of your business. The quality of the lease is intrinsically related to the value of your property and/or business.
It is important to seek quality legal advice from a lawyer experienced in commercial matters before entering into a lease and that you understand your rights, liabilities and obligations.
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Commercial Lease FAQ
In theory, everything is negotiable when it comes to commercial leases. Rent, term of the lease, options to renew, payment of operating expenses, rent free periods, insurance obligations, redevelopment and relocation and fit outs can be negotiated and many special provisions can also be included such as ongoing maintenance and repair costs and rights to use common areas and car parking facilities.
A lease is a contractual arrangement between a tenant (lessee) and a landowner (lessor) in respect of the use of a property.
A commercial lease is an agreement for the leasing of commercial property with a specific business purpose such as office areas, warehouses or industrial sites. Compared to other forms of leases, commercial leases tend to offer less legal protection as the law assumes businesses and business people are more knowledgeable than consumers and lay people and can make informed decisions that are in their best interests.
A retail shops lease is a type of commercial lease used for leasing retail shop businesses. Retail shop leases attract additional legislative protections for consumers in accordance with the Commercial Tenancy (Retail Shops) Agreements Act 1985 (WA).
In Western Australia this can be negotiated. In years gone past it was common for the lessee to bear all the costs of the preparation of the lease including its own costs and the costs of the landlord. For reasons likely to be related to the downturn in the Western Australian property market it is not uncommon for parties to now pay their own costs when it comes to the preparation of a commercial lease.
Section 14B of the Commercial Tenancy (Retail Shops) Agreements Act 1985 (WA) provides that the tenant will not be required to pay for certain legal fees and other expenses of the landlord. These fees includes the Landlord’s legal costs in respect of the preparation, negotiation and execution of the lease, a renewal or an extension of the lease, obtaining any consents that may be required and in the Landlord’s compliance with the Act.
There can be very serious legal consequences if you try to break a lease early and if you are intending to terminate a lease early, whether you are the landlord or tenant, you should first obtain legal advice from a lawyer with some experience in commercial matters.
As a starting point you should review the lease carefully to see whether there is an early termination clause. Other options may include negotiating an early termination with the other party, assigning the lease or sub letting part of the property.
A surrender of lease is a legal document signed by all parties to a lease once they have reached an agreement to end a lease before the end date. It should set out the key agreements between the parties and ensure that neither party has any further legal responsibilities or obligations under the lease.
Clear T&Cs are much easier to enforce should you wish to take a consumer to court (for example for failure to pay) as opposed to an oral agreement or an agreement based on a convoluted chain of emails.
The experienced lawyers at HFM Legal will not only consider the basic terms that are of primary importance to your business such as the price of your service, terms of payment and any default provisions, but will also consider terms to limit your liability, protect your intellectual property rights and the passing of title and risk.
An assignment of lease is a legal document used to transfer the rights of an existing lessee to another party. They are commonly signed upon the sale of a business whereby the purchaser of the business takes on the lease of the property in place of the seller.
It depends on the nature of the breach and the actual provisions of the lease itself. If the breach goes to the heart of the lease, such as failing to pay rent, the landlord may terminate the lease and sue the tenant for damages. If the breach is less serious, for example, the tenant has erected signage on the property that has not been approved, the lease will remain on foot and the landlord may sue the tenant for damages only.
If a tenant ends a commercial lease early it is likely the landlord may sue the tenant for damages including for payment of all rent that should have been paid to the actual end date of the lease. Tenants would be wise to obtain advice from a lawyer experienced in commercial matters before ending a lease early in order to mitigate the losses.
When lending money to family or friends it is essential to have a signed and dated written loan agreement.
Without some evidence of the agreement in writing, disputes may arise as to whether the money was paid as a repayable loan or gift.
Giving a person money can be either a loan or a gift. A loan has to be repaid; a gift does not.
A loan agreement should clearly state:
- the amount of the loan;
- the interest rate, fees and charges
- whether the loan is secured (where the borrower has to put up an asset, such as their house, as security)
- how long the borrower has to repay the loan; and
- the amount of the repayments.
A loan can be secured by either a mortgage or caveat if the borrower has real estate or by notice on the Personal Property Securities Register (PPSR). The PPSR is a national online register that can provide information to help protect consumers when they are buying personal property such as cars, boats or artworks (not including land or buildings).
Terms and Conditions (T&Cs) are essentially the legal basis on which a supplier is willing to do business with its consumers.
T&C’s are vital for any business and should be one of the first legal documents prepared when you commence operating your business.
Well drafted T&Cs should be prepared in plain English and include:
- the consumer’s obligations to your business (for example your terms of payment);
- what happens where a consumer has breached the T&Cs;
- what your obligations are to a consumer so that there are not any misconceived expectations on their part;
- payment terms and interest; and
- potentially dispute resolution channels.