Seeking legal advice for an acreage property with commercial lease

Hello everyone .

Looking to seek some legal advice on a lease. It’s a 10 acre block (acreage) with a house on it. Landlord and tenant signed a commercial lease at the beginning of the period, with the permitted use ‘Rural Living’.

Unfortunately the tenant is 19 days in arrears and isn’t very responsive. The landlord is wanting to begin the process to issue a notice to vacate.

Is it acceptable for ‘rural living’ to be a permitted use for a commercial lease? What would happen if the dispute goes to VCAT? The tenant is living in the house on the acreage.

based in VIC

 

I guess the landlord needs to go see a lawyer? I'm not sure what else there is to say on here that is productive - we don't have all the facts.

 

Depends on how the other 9.9ac is being used and the obligations to maintain the property. Is the dwelling incidental to the use?

 

If the parties all agreed it wasa commercial lease it may be hard to argue its residential now.

 

What do you think that would mean if the case goes to VCAT? Would the landlord be asked why a commercial lease was signed insead of a residential tenancy authority? Will the laws surrounding the RTA still be applicable even if its under a commercial lease? And main thing is that is Rural Living an accepted 'permitted use' for the property under the commercial lease

 

Hello everyone,

Just a follow up to the previous post made.

Situation:
- 10 acre block with a house is leased to tenants
- tenants are using house to live in, land to keep their horses
- commercial lease was signed, with permitted use being 'Rural Living'
- during the handover of keys to tenant, there was difficulty receiving the first monthly payment, and after some constant deliberation they finally paid the first months rent (however did not pay the bond)
- Discussions were made that they would pay the bond over time however it has not occured


Now:
- 3 months in and the tenant is currently 28 days in arrears.
- they have constantly given dates which they will have the rental paid, however, when the date has come they have both not paid rent and have not responded. Then again the same process of giving a date and failing to communicate and pay the amount due. This has happened around 4 times
- some communications have been through messages, some communications though email


Questions:
- If this goes to VCAT, what would be the most likely outcome?
- Would there be problems as to why a commercial lease was signed and not a Residential Tenancy Agreement?
- Should the situation be taken to VCAT?

Any advise would be appreciated, as I will be acting as the PM representing

 

The starting point is to read the Residential Tenancies Act 1997 (Vic). Make sure the version you read was be version in force immediately prior to the lease being signed.

If the lease was signed after 29 March 2021, at a minimum you should turn your mind to the definition of residential rental agreement and sections 26 to 29B.

 

So even if a commercial lease was signed, which was just December of last year, the lease would be considered under the Residential Rental Agreement?

 

You are leasing a property with it to be used as a residence? If that is the case it might be a residential lease that falls under the residential tenancies act

 

If that is the case, and the tenant is 28 days in arrears, should a Notice to Vacate be issued in the correct Consumer affairs format? Even if it is a commercial lease? Just want to know how to property let me tenant know that they need to vacate if arrears arent paid and best way to handle situation from this point forward

 

You should read the RTA

s 3
"residential rental agreement" means an agreement, whether or not in writing and whether express or implied, under which a person lets premises as a residence (but does not include an SDA residency agreement) and includes a fixed term residential rental agreement and a periodic residential rental agreement;

s26
(1) If a residential rental agreement for a fixed term not exceeding 5 years is in writing, it must be in the prescribed standard form for a fixed term residential rental agreement of no more than 5 years. S. 26(1A) inserted by No. 40/2018 s. 6(2), amended by No. 45/2018 s. 11(3)(a).

...
(3) A failure to comply with this section does not make the residential rental agreement illegal, invalid or unenforceable.

etc

 

Got it, so it would likely be taken as a situation of a residential rental agreement and the laws surrounding would be tied to the residential rental agreement

 

Then should next point of action to be to issue a Notice to Vacate in the format under the Consumer Affairs website?

 

As you have signed a commercial lease (on whose advice - solicitor or stock & station agent), you should get advice from your solicitor as to whether the residential tenancies Act applies or if the use as residential is incidental to the farm use (caretaker/manager).

 

Weren't you the one I said you needed to get legal advice? This sounds familiar. Did you do that?