Relief against forfeiture protects a tenant against the loss or determination of an estate or interest in property, or a proprietary right, either in consequence of a failure to perform a covenant or condition or in consequence of the determination of the contract for some other reason. This article summaries the key principles and provides tips for tenants applying for relief, and landlords opposing an application.
Read MoreThe full article (5214 words) considers:
Re-entry by proceedings
Making an ‘unequivocal claim’ for possession
Fundamental breach and repudiation
When is a breach fundamental?
Repudiation
Loss of bargain damages
Waiver
Notice requirements
Defective Notices
Time limits for remedying a notice
Service of a notice
What if the tenant has a counterclaim?
The nature of set-off
Equitable set-off
Effect of ouster clauses
Whether acting for a landlord or tenant, the eviction of commercial tenants is vastly different to the rules governing the eviction of residential tenants. This is because the Courts and VCAT consider commercial tenancies to be long-term binding contracts between commercial parties.
While residential tenancy rules in Victoria allow landlords to evict tenants for little reason or no reason at all (in 120 days), the law treats commercial tenancies very differently. There are more protections in place for commercial tenants to ensure they can build a business from a premises and potentially sell any goodwill attached to a particular location.
Termination of commercial tenancies involves knowledge of the principles of contract law, termination and waiver, notices, the Property Law Act (section 146), equitable set-off, exercise of options, and other common law concepts such as taking possession and conversion of goods.
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