VIC Lease of sheds, would love some input

Let's assume the following situation:

• 2 lease agreements;
  1 for a property as a private tenancy agreement with a private entity (a person),
  second for shed(s) with commercial entity (company).
• Both are part of the same property, but the agreements define boundaries for each lease and there is no overlap (each lease is a stand alone, including land, access, facilities etc).
• In reality, the private person and the company owner are from the same family.
• Both agreements are the RTA template (this will be part of the question later).

The property is naturally under the RTA, no surprise there.
The sheds, however, are NOT.
As stated here: Factsheet 01: Residential Tenancies Act

Who/what the Act does not cover

• premises used mostly for the purpose of trade, profession, business or agriculture

​

My question is, the agreement for the sheds are basically just a normal agreement between me and a company, even though it's written on the RTA template, but none of the RTA rules and limitations apply.
If the company owner gave me a notice (not an RTA proper one - it's just an email, so there's no signature) he will be leaving in a month, and I agree - when times come, all this BS about force removal and possession orders does not exist?

I understand that the RTA protects people from being dumped to the street and become homeless, but when it comes to storage shed, no one becomes homeless.
Should the company decides to overstay their welcome, they are engaging in transgressing and risk civil prosecution.

Sounds about right?

 

A lease for the shed should comply with the Real Property Act not a Residential Tenancies template.

That aside, the agreement in place is not invalid & would require that you comply with the conditions in that lease.

 

Yeah, it was my mistake.
I actually realise that only yesterday.
Said that, the fact something is written on one template, doesn't make it comply to that template, right?
You can have an agreement on a piece of tissue paper and it'll still be covered by the laws that it's under.

 

True but it doesn't invalidate the entire document either only the inconsistencies.

 

Yeah, that make sense.
That's not a problem, cause the document includes the basics of start and end date and price for the lease.
My issue was mainly the terms of terminate the lease, that are not so tenant-centric as they are for residential tenancy.

Thanx for the help mate.

 

Doesn't the template have those in the contract?

It really sounds like you signed yourself up for whatever the template has on it, which is probably the majority of residential tenancy rules.

 

I'll try to explain better; when we went into the agreement, I thought the house and sheds are the same in terms of the act their under (to be honest, didn't thing much of it - just went with usual residential tenancy. Didn't want to go into commercial tenancy for the sheds).

However, my research due to how things are travelling with the tenant, it hit me that sheds are not the same as residential property.
They do not have the same protections.

That's good for me, cause the tenants are doing everything they can to use and abuse the RTA.
Not much I can do with the house, as we all know. I let it run it natural course and hope they understand that playing nasty game will make both of us uncomfortable and will have consequences for both sides.

However, for the sheds, I don't have to deal with this ****. The sheds are different ball game. They are not under the RTA and as such, nevermind what paper or template was used, it's under the RPA act (as Scott mentioned).
And since those leases are completely separate to each other, including the entity who's on the contract - I can play hard ball as well. Give them a bit of taste of their own medicine.

 

Nope, its because it's not under the RTA that it matters a very great deal what paper or template was used. Basically 99% of the normal contract law applies .

Honestly this is real legal basics. I thought you were a prolific DIY legal researcher, according to your other posts...?

 

As if this gonna be the first time that a contract was drafted the "wrong" way.
I'd love to see you showing a source that shows a different law will be imposed on an agreement just because it has a title and some sections.

If that's the case, what's the big deal with James Davis?
The girls signed a contract where they waived all their rights. It was the right template.
However, it seems that law kinda saying the fact a "template" was used doesn't mean the law is out of the window.

The RTA protects Residential Tenancy. A shed is NOT a Residential Tenancy. It doesn't matter what kind of wording was used to secure a lease for it.

Thanx for your HUGE contribution.
I'm not sure why would someone who deals with tenants advocation would chime in on an issue that doesn't involved tenants, but I guess you have to.

Any other advice you'd like share?

 

Yeah - did you actually read and understand what I said?

Or just decided to shoot first?

 

I always do.

No, I decided to shoot when you added the nice part that says "I thought you were a prolific DIY legal researcher, according to your other posts".

It hard to see if one is giving genuine helpful advice or just taking the **** when they find it necessary to humiliate someone.
To be totally honest - your advice is confusing. You're saying it makes great deal what paper or template was used, and then go to say that 99% of normal contract rules applies.

I came here to get an advice. I'm not an expert and I sure not gonna take it court without professional legal advice.
As I'm not there yet, and I believe the other side knows they don't want to challenge the position they are in - I prefer to try and finish this without needing to drag it to court.
From the advice I got here and my reading, it's not a very complex issue - there was contract, the other side notice they'll terminate it, I accepted it. Simple. Done.

I'm just making sure that the funny business that tenants can do under RTA (such as provide notice of intention to vacate, but on the day just stay put leaving the LL the only option to go to xCAT).
In normal contract laws, one side is not overly protected over the other. So for me the sheds are different ball game then the house.

 

In "normal contract laws", whatever is written in the contract is what applies. Did you understand that?

You seem to be imagining some other legislative regime that would override what you put in your contract. There isn't one.

That's what the RTA would do if it was actually a residential tenancy. Since it's not, the default applies. Your problem seems to be that you've unintentionally signed yourself back onto RTA style provisions.

No humiliation intended. You're surprisingly sensitive considering you've thrown much worse my way in other threads. And at the same time tried to suggest you know more about the law than I did.

All I'm saying is that if you're so knowledgeable about the law, why is this basic contract law stuff confusing for you?

 

Residential land, as far as I know.
But it has the farmland on it as well.
It's embarrassing, but I don't know how to check...

 

That's the gist of it.
Can a law be applied to something it's not intended to just because of a paper that was used to secure it?
If the RTA specifically exclude this type of engagement / property?

Never said I'm more knowledgeable then you. Clearly I'm not.
I just said that you're often use your knowledge to paint a picture that is biased towards what you personally believe in.

I've got a close barrister friend and we had this discussion. He was telling me that the dry laws he's dealing with change a lot based on which side pays his fees.

 

Using a commercial contract for a retail premises/usage fails on many levels. Lack of a disclosure statement provides a right to the tenant to void to contract, recoverable outgoings differ, requirement to lodge the bond etc can bring you unstuck.

 

I'm not sure I follow...

1. I haven't used a commercial contract at all.
   The other way around, I used a private tenancy contract for facility that is used for commercial use.
2. The facility is not part of the private residence, it's physically separate (no overlapping land, separate access, separate electricity meter).
   It is not intended or legally permitted for living, nor it used for it. It acts as a commercial storage shed for the company leasing from me (the owner is the tenant that lives in the house, but it could be anyone for that matter - there's no relationship between the house and the sheds).

One thing I've noticed you mention: "recoverable outgoings" - there's not much anyway as there's a separate electric meter and I pay for the rest of the ongoings.

 

Yeah, I know.
But since I'm not ABN, I do not include GST. Not an issue, cause I don't charge GST and they don't get GST refund.
Also I didn't include any ongoings cause all the rates and stuff are paid by me for the property anyway.

There was a (messy) commercial contract with them when I bought the place, cause it was owned by a family company.
When I moved in, we null and void everything and started fresh. My solicitor made a mistake and the sheds are written on the RTA template, but given it's not protected by the RTA the terms we have in the contract are the basic "start date, end date, how much and when to pay".
Given that the contract is not giving either me or him any additional terms, I'm using his own notice that he will leave the sheds on Jul 31th as a notice of termination of the contract.

He asked for it. I agreed. Everyone is happy. After this date, ready of now - the sheds are mine and he lost his privileges to access this part of the land.