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Do you need help with Probate?

Our expert legal team is ready to take your call

Mitchell is the Managing Principal of Sharrock Pitman Legal. He is an Accredited Specialist in Commercial Law (accredited by the Law Institute of Victoria). He also deals with areas of Employment Law, Wills & Estate Planning and Probate and can answer all your questions related to probate.

For further information, contact Mitchell on his direct line:


CALL: (03) 8561 3318

Can I end my commercial lease early?

At the commencement of leasing any commercial property, you should sign a commercial lease. The lease should detail the circumstances in which it can be terminated and such conditions for termination may differ from lease to lease.

There are various situations where you may be able to terminate a commercial lease. In the first instance, we would suggest double checking your lease to see the conditions to which you are bound.

How to terminate a commercial lease early

You can terminate your commercial lease early in the following circumstances:

1. Negotiate with your Landlord

You can negotiate an agreement with your Landlord to end the lease early.

You may be able to come to an agreement which is beneficial for both parties if they or you are able to find an appropriate replacement tenant quickly. If you do come to a mutual agreement, we would highly recommend attending our offices to draw up a formal surrender of lease document to optimise protection for you, legally and financially.

The Landlord, however, is not under any obligation to negotiate an early termination with you, as it is their right to enforce the full term of the lease.

2. Landlord breaching essential terms

If your Landlord has breached an essential term of the Lease, you may be able to terminate your Lease early on this basis. Not all breaches of the Lease result in termination rights. Accordingly, we recommend you seek legal advice if you believe that you are entitled to break your lease early based on a Landlord's breach.

3. Assigning or transferring a commercial lease

You can assign or transfer your Lease to another party who is willing to take your place as tenant. It is important to keep in mind that the Landlord must consent to any such transfer, but cannot unreasonably withhold consent to a transfer. Your Lease may also have some further conditions regarding assigning or transferring the Lease which you will need to consider when finding a party to take over the Lease.

What are the penalties for breaking a commercial lease?

If you have not negotiated an early termination with your Landlord and are unable to end the lease for breach by a Landlord or by transferring the Lease, then you may have to pay for the following:

  1. Rent for the remainder of the Lease term or until the premises is leased by a new tenant, whichever is earlier
  2. Agent fees, including advertising fees and re-letting for the new tenant, and
  3. Costs associated with reinstating the premises if you have not already done so.

If you have abandoned the premises, or have been deemed to have abandoned the premises, the Landlord will also have rights relating to the goods left stored in the premises. See our previous article: What to do with goods abandoned by a tenant in a retail or commercial premises for more information.

For more information relating to leasing a business premises, refer to Business Victoria.

How can Sharrock Pitman Legal assist?

For assistance on terminating a lease, or if you have any queries regarding commercial leases generally, please contact us and it would be our pleasure to assist. Contact our Accredited Property Law Specialist, Andre Ong, on 8561 3317 or alternatively fill in the form below.

The information contained in this article is intended to be of a general nature only and should not be relied upon as legal advice. Any legal matters should be discussed specifically with one of our lawyers.

Liability limited by a scheme approved under Professional Standards Legislation.

Written by one of our lawyers

,

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For further information contact

Andre Ong

Andre is a Principal of Sharrock Pitman Legal.

He heads our Property Law Group and is an Accredited Specialist in Property Law (accredited by the Law Institute of Victoria).  He also deals with Commercial Law. For further information, contact Andre Ong on his direct line (03) 8561 3317.

More on

Property Law

However, in this article we will set out the factors that influence how long it will take to obtain a Grant of Probate and to administer an estate in Victoria.

The basics

First things first: what is a Grant of Probate? A Grant of Probate is effectively a document issued by the Supreme Court of Victoria which formally authorises an executor to manage the estate of a deceased person in accordance with their Will. Without Probate, the asset holders (say a bank or share registry) cannot be satisfied as who has the correct authority to receive the deceased's assets and may refuse to pay out.

Sometimes, for smaller estates or if assets are mostly jointly owned with a surviving spouse, asset holders might agree to release payment without requiring a Grant of Probate. This is usually on the basis that the person who receives payment promises to repay (or Indemnify) the asset holder if it turns out they paid to the wrong person.

If there is no Will, then you cannot obtain a Grant of Probate. Instead you obtain Letters of Administration. This is effectively the same, in terms of authorising someone to administer the estate, and would usually be obtained by the person who is the closest next-of-kin to the deceased.

“A Grant of Probate is effectively a document issued by the Supreme Court of Victoria which formally authorises an executor to manage the estate of a deceased person in accordance with their Will.”

Timeframes for Probate in Victoria

In order to obtain a Grant of Probate, the Court needs to be given information about the assets and liabilities of the estate, the deceased person, the witnesses to the Will, the executors and the Will itself. An advertisement of your intention to apply for Probate must also be placed on the Supreme Court website for at least 14 days prior to any application.

Often, making enquires to obtain all the necessary information can take a number of weeks. Also, you will need the Death Certificate for the application for Grant of Probate and possibly for making proper enquires regarding the assets and liabilities. Waiting for the Death Certificate to issue can therefore add a few more weeks to the process. Overall, if you have your application for Grant of Probate lodged within 1 to 2 months from the date of death, you are making timely progress.

The Court itself does not take long to process the application (maybe another 1 to 2 weeks) and this is done 'on the papers' using the electronic Court filing system. This means you do not have to go to a court hearing. There is also a general discretion for the Court to issue a 'Requisition' asking that you provide more information before they process the application and this can delay matters.

“Overall, if you have your application for Grant of Probate lodged within 1 to 2 months from the date of death, you are making timely progress.”

So, here we are a few months after death and you finally have a Grant of Probate. It is important to remember that this is the start of the estate administration and not the end. For a very simple estate, you might only need a further month or so to cash the assets and pay them to the correct beneficiaries. However, it can often be more complex than that. Factors that determine the timeframe to administer the estate include:-

  • Some assets will take time to cash or transfer. For example, if selling a property, final settlement might be 60/90/120 days from the day of sale.
  • There is a 6 month period for challenges to be brought against the estate and executors must wait until this period expires before distributing the estate, if there is any risk that a disgruntled family member might come forward.
  • There might need to be final tax returns for the deceased or for the estate. Failing to wait for the ATO to process these could leave the executor personally liable for a tax bill.
  • You might need to advertise for creditors to come forward and wait for a period of months while this advertising timeframe expires. This protects the executor if they are unsure of all of the deceased's financial dealings and creditors.
  • It might not always be a good time to immediately cash estate assets. For example, the shares just took a nose-dive, do you still sell regardless of available price?

There is a general rule that executors have an 'executor's year' to complete the estate administration. This means that you should be aiming to have the estate finalised and distributed within 12 months from the date of death.

The information contained in this article is intended to be of a general nature only and should not be relied upon as legal advice. Any legal matters should be discussed specifically with one of our lawyers.

Liability limited by a scheme approved under Professional Standards Legislation.

Need help with Probate?

Our expert legal team is ready to take your call!

Mitchell is the Managing Principal of Sharrock Pitman Legal. He is an Accredited Specialist in Commercial Law (accredited by the Law Institute of Victoria). He also deals with areas of Employment Law, Wills & Estate Planning and Probate and can answer all your questions related to probate.

For further information, contact Mitchell on his direct line:

DIRECT LINE: 
(03) 8561 3318

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About Sharrock Pitman Legal

For fifty years Sharrock Pitman Legal has made a significant and long term contribution to meeting the legal needs of business owners and residents in the City of Monash and greater Melbourne area.