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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

A carefully drafted lease is the key to mitigating risks and give clarity on what steps should be followed, especially if goods are abandoned or uncollected. Property Lawyer Sabina Mehra explains.

As a consequence of COVID-19 impacting businesses and hence leases, much debate and uncertainty has surrounded the ongoing obligations of landlords and tenants alike of a commercial or retail premises. Whilst the Victorian State government has set out emergency COVID-19 related legislative provisions and has recently updated the rent relief scheme (Commercial Tenancy Retail Scheme) to alleviate financial hardship between the parties, some issues involving obligations of both the landlords and tenants alike lack clarity.

One such issue concerns what a landlord is required to do in the event a tenant fails to collect or take delivery of its goods from the leased premises (commercial or retail)?

Determining if the goods are abandoned

If the tenant has not collected or taken delivery or given directions as to the delivery of those goods, they can be considered as abandoned or uncollected goods. If the tenant cannot be located or communicated with, a landlord can consider the tenant’s uncollected goods to be abandoned. The goods must be differentiated from any fixtures or fittings affixed permanently to the premises.

Ideally, the lease should relevantly address and contain clauses for the tenant to ‘make good’ and remove goods when the lease is terminated, however un-affixed personal property owned and uncollected by the tenant often creates huge issues for the landlord and requires adequate steps be undertaken so as to avoid the risk of the landlord committing trespass.

If the lease is silent on the above, the parties can rely on the Australian Consumer and Fair Trading Act 2012 (Act) where the conduct of the landlord may be determined within the confines of the Act.

Steps to undertake when goods are uncollected

Firstly, care should be taken to confirm that the goods are indeed abandoned and that the landlord has not denied or stopped delivery of those goods to the tenant. Failure to pay rent is not a reason to deny the tenant access to the goods. Communication is the key in determining whether the tenant has relinquished ownership of the uncollected goods. While difficult at times, and as best as the landlord can, it must be established that the tenant has no desire to re-claim abandoned goods.

1. The landlord should serve a written notice to the tenant of the intention to dispose of the abandoned goods after 28 days if the tenant has not taken delivery or provided directions. The notice must be clear and contain accurate information of the parties and the goods. The notice should be prepared in the correct format and be properly served upon the tenant so as to avoid any issues as to service.

2. Once 28 days has lapsed, the goods may be disposed of in accordance with Division 2 of the Act based on the value of the uncollected goods. These are outlined in the table below:

3. Once the notice for disposal period has lapsed, the landlord may dispose of the uncollected goods by public auction or by private sale (for low value goods).

Can the landlord retain proceeds from the sale of the abandoned goods?

A landlord is entitled to the payment of a relevant charge towards the disposal from the proceeds of the sale, but is unable to claim loss of rent from these proceeds. Any proceeds from the sale of the goods must be deposited as unclaimed money pursuant to the Unclaimed Money Act 2008 (Vic) with the State Revenue Office. A relevant charge claimed towards the disposal by the landlord may be challenged by making an application at VCAT.

How can Sharrock Pitman Legal assist?

As Accredited Property Law specialists, we provide sound, commercial and concise legal advice onall lease-related issues for both landlords and tenants alike and if specific advice is sought in relation to the matters contained in this article, or any other  property related matters, feel free to contact us on 1300 205 506 or by email at sp@sharrockpitmanb.com.au.

We look forward to being of service.

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 a member of our Legal Team

,

.

Sabina Mehra

For further information contact

Sabina Mehra

Sabina is a senior property lawyer in our Property team and has experience in dealing with a wide range of complex property and commercial law matters.

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Property Law

A carefully drafted lease is the key to mitigating risks and give clarity on what steps should be followed, especially if goods are abandoned or uncollected. Property Lawyer Sabina Mehra explains.

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.