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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

It is quite common for both the Landlord and the Tenant to enter into a Lease with the best of intentions, where both parties mutually can benefit. The Landlord can obtain a steady stream of income from the rent and the Tenant can utilise the premises, in accordance with the agreed permitted use under the Lease.

However, what can a Landlord do if the Tenant simply stops paying rent, stops paying the outgoings, or breaches other fundamental terms of the Lease (such as an unauthorised assignment or subletting)?

Issuing a Section 146 Default Notice

If the Tenant is in breach under the Lease, then a Landlord cannot simply re-take possession of the premises. Instead, a Landlord will be required to serve what is known as a “Section 146 Default Notice” (“Default Notice”) on the Tenant.

This Default Notice usually specifies the following:

  • which conditions of the Lease the Tenant has breached,
  • when the breach occurred (e.g. when did the Tenant complete unauthorised assignment of the Lease without Landlord consent, or when did the tenant fail to pay the rent),
  • if the breach is quantitative (such as the failure to pay rent and outgoings), specifying the amount that was not paid, and
  • how the breach can be remedied by the Tenant.

Importantly, the Tenant must be provided with at least fourteen days to remedy these breaches, and this must be specified under the Default Notice. If you do not provide for this period of time, the Default Notice will most likely be rendered ineffective, if challenged by the Tenant.

Landlords should ensure that the Default Notice is accurately drafted, as errors or miscalculations in the Default Notice may render it ineffective. Once the Default Notice has been drafted, a Landlord must ensure that it has been properly served on the Tenant. This is so they have a clear record of service, if the matter results in a VCAT dispute in the future. Landlords should consult with their lawyer about completing this process.

What happens if the Tenant fails to remedy all breaches within the specified period under the default notice?

If the Tenant has failed to comply with the notice and the time period has lapsed for compliance, it may then be possible for the Landlord to physically take re-possession of the property. Once again, Landlords should consult with their lawyer about completing this process. Usually, this will require the Landlord or their agent to physically affix a notice in a visible place at the premises, confirming the re-possession.

What happens if the Tenant disputes the Default Notice?

If the Tenant disputes aspects of the Default Notice, then it is possible for them to seek urgent relief at VCAT. Given the short time period permitted for compliance under the Default Notice, VCAT may be inclined to hear the matter relatively quickly. Landlords should be prepared for this, particularly if they have combative Tenants.

Impact of COVID-19 on the issuing of s146 Default Notices

Importantly, Landlords should note that whilst the COVID-19 Omnibus (Emergency Measures) (Commercial Leases and Licences) Regulations 2020 (Vic) are in operation until at least 28 March 2021. Therefore, Landlords may not be able to issue default notices until this time for non-payment of rent and outgoings. This will depend on whether the Tenant is eligible for protection under the Regulations. Landlords should consult with their lawyer about their Tenant’s potential eligibility for relief.

How can Sharrock Pitman Legal help?

At Sharrock Pitman Legal, our Accredited Property Law Specialist and Accredited Commercial Litigation Specialist teams can ensure that your rights as a Landlord or Tenant are protected. If you require advice or assistance, please do not hesitate to contact us on 1300 205 506 or alternatively fill in the contact 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

,

.

Benjamin Drinkwater

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 Supreme 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 published on the Supreme Court website for at least 14 days prior to any application being lodged.

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 usually does not take long to process the application (maybe another 1 to 2 weeks) and this is completed using the electronic Supreme Court filing system. This means you do not have to go to a Court hearing. The timeframe for processing applications for Letters of Administration is even less, given that there is no Will document for the Court to consider. There is also a general discretion for the Court to raise a 'Requisition' asking for more information before they review the application - this can sometimes 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 or Letters of Administration. 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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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.