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It is a stark reminder that registration of Entenpreship case lease where the term is longer than 5 years is the most prudent means of ensuring the lease remains valid on a transfer of a property. The Primewest decision should alert sellers and landlords to attend to registration of any leases for terms longer than 5 years.
It can be expected that buyers and their financiers will require this to have been undertaken to ensure the benefit and burden of leases are passed as part of any purchase.
Correspondingly, the decision serves as a reminder to tenants to secure certainty of tenure on a transfer of Entenpreship case by registering their lease.
In Primewest, the seller sold commercial retail premises to Ryom and Kedo the Buyers which included two tenancies, one leased to Rick Hart and the other to Avanti, for terms longer than 5 years. The Rick Hart lease was registered, but had since been assigned to Harvey Norman without the assignment being registered.
The Avanti lease was unregistered.
The Buyers were concerned that both leases would be destroyed on transfer to them of the property having regard to section 68 of the TLA and the decision in Lighting by Design.
The Buyers requested that consistent with its obligations under the sale contract, Primewest provide evidence of registration of the transfer of the Rick Hart lease to Harvey Norman, and a deed of affirmation and assignment executed by the Avanti tenants. Primewest denied the Buyers were entitled to documents requested.
The Buyers terminated the sale contract and Primewest sued for specific performance. The Court at first instance held that the Buyers lawfully terminated the sale contract.
Primewest appealed on a number of grounds, including: As to the separate grounds of appeal, the Court held: The court found that these requirements were not unreasonable in the circumstances; and the Buyers were entitled to request the deed of affirmation and assignment in relation to the Avanti lease, and this document was not beyond the scope of the documents the Buyers were entitled to request under the sale contract.
The Court pointed to various provisions of the sale contract, holding that the implication arising from its terms as a whole were that the effective transfer of the benefit and burden of the leases was a vital component of the transaction.
Implications for commercial parties Following the decisions in Primewest and Lighting by Design, it is reasonable to expect that buyers of property in WA will require leases for terms longer than 5 years to be registered.
Sellers are at risk of buyers seeking to terminate sales contracts on the same basis as in Primewest if leases for terms longer than 5 years are unregistered at the time of contract, or at least well in advance of settlement.
Failure to effect registration exposes the seller to the usual resale risks, including a reduction in asset value, continued holding costs, increased reselling costs and delays in returning debt to financiers. A financier to a landlord may also be concerned to ensure that the landlord registers any unregistered leases of more than 5 years so that similar issues do not arise for the financier if it is required to appoint receivers or exercise a mortgagee power of sale over the property in the future.
Buyers are also at risk of tenants seeking to rely upon Lighting by Design and Primewest to terminate unregistered leases of more than 5 years after the property is transferred. Buyers and their financiers should therefore ensure as part of any property acquisition:Entrepreneurship in Sultanate of Oman: A Case Approach: /IJABIM In Startup Rising: The Entrepreneurial Revolution Remaking the Middle East, Schroeder reminds one that the collective GDP of the Arab world is larger than.
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In most of these countries, the problem is not lack of entrepreneurship, but rather a negative.