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  1. #1

    Default Mediation with Standard ADLS Agreement to Lease

    Hi All,

    I have standard ADLS Agreement to Lease (has not been brought forward to Deed to Lease) and am currently in a dispute with my landlord over a outgoing cost.

    We have both agreed on and appointed a mediator to help resolve this issue.

    My question is:- Is the mediators decision binding? Section 5.1 of ADSL agreement to lease is not clear on this. Is there anything i can reference regarding this?


    Cheers

  2. #2
    Join Date
    Sep 2007
    Location
    Auckland
    Posts
    8,107

    Default

    Hmmm, not sure.

    You'd really have to ask either the mediator or your solicitor.
    Squadly dinky do!

  3. #3

    Default

    FF
    you misundestand the mediation process

    a mediator doe not "make a decision" he facilitates a settlement between the parties

    you make the decision by agreeing to the settlement. No agreement means no settlement and then the next step is??

    maybe;

    Arbitration;is different this is where you give power (by agreement) to the person to make a judgement that is a contractural obligation.
    small claims ; under 15000 refer\ee attemots settlement but can make an award

    courts; district up to 200k then HC are the next step and they make binding judgements that you can enforce.

    whatever the forum you need to be sure of the legal position what is the dispute and is it clear to you? Is it big enough sum to justify expert and legal support?

  4. #4
    Join Date
    May 2007
    Location
    Hamilton
    Posts
    3,506

    Default

    How big is the cost?

    If a standard outgoing, then should be pretty obvious from the agreement to lease. If you don't mind us asking, what kind of cost?

    If not, then I would be very careful of the time and effort you waste with any dispute. If small, then sit down with landlord and agree to something. If under $5,000 you are going to waste this in extra costs and time, really really quickly. If $5k to $10k, I would still say you would waste this money very quickly and be better to settle in some way.

    I presume you have checked with your lawyer who should be responsible for the cost and you are 100% sure you are not liable?

    Ross
    More Profit from Property? TEACH ME MORE
    Ross Barnett - Coombe Smith Property Accountants
    Proud to give the best property advice for over 13 years.

  5. #5

    Default

    Quote Originally Posted by John the builder View Post
    FF
    you misundestand the mediation process

    a mediator doe not "make a decision" he facilitates a settlement between the parties

    you make the decision by agreeing to the settlement. No agreement means no settlement and then the next step is??

    maybe;

    Arbitration;is different this is where you give power (by agreement) to the person to make a judgement that is a contractural obligation.
    small claims ; under 15000 refer\ee attemots settlement but can make an award

    courts; district up to 200k then HC are the next step and they make binding judgements that you can enforce.

    whatever the forum you need to be sure of the legal position what is the dispute and is it clear to you? Is it big enough sum to justify expert and legal support?
    Thanks for that John, yes from looking into it further I realise that I did misunderstand the mediation process. Certainly not a big enough sum to justify engaging further legal support, will see how we go.

    Cheers

  6. #6

    Default

    Quote Originally Posted by Rosco View Post
    How big is the cost?

    If a standard outgoing, then should be pretty obvious from the agreement to lease. If you don't mind us asking, what kind of cost?

    If not, then I would be very careful of the time and effort you waste with any dispute. If small, then sit down with landlord and agree to something. If under $5,000 you are going to waste this in extra costs and time, really really quickly. If $5k to $10k, I would still say you would waste this money very quickly and be better to settle in some way.

    I presume you have checked with your lawyer who should be responsible for the cost and you are 100% sure you are not liable?

    Ross
    Cost is small - around 1k

    Outgoing is listed in the Outgoing schedule. Building is split between 3 tenants so my proportion of the outgoing is 33.33%. My part of the building was an addition and required Fire Alarm/Detection equipment installed as part of the consent requirements. There is a monthly fee for this and I am being charged 100% of this cost. My legal advice was that the fire alarm etc benefits the entire building (other 2 shops do not have them) so the cost should be proportioned out as per the schedule. Landlord insists this is separately assessed as per 3.3 of the agreement to lease.

    This is what I was hoping the mediation would do but unfortunately the landlord is not prepared to budge.......

    I have asked my lawyer to confirm her advice which she has done.

  7. #7
    Join Date
    Sep 2007
    Location
    Auckland
    Posts
    8,107

    Default

    Hmmm, these things are always a bit tricky, but the lease usually has a clause along the lines of: % in clause xxx or a percentage that the landlord deems to be fair.

    So you might struggle with this one.
    Squadly dinky do!

  8. #8

    Default

    the costs should be apportioned to those who benifit. In this case the alarm is for your benefit as needed by your consent.

    m\on this basis you should pay the outgoings.


    my question is why did you need a n alarm and this didnt trigger alarm for the whole building? Alarms dont usually apply to spaces?

  9. #9
    Join Date
    Mar 2015
    Location
    Brisbane Wellington Auckland
    Posts
    713

    Default

    Quote Originally Posted by John the builder View Post
    the costs should be apportioned to those who benifit. In this case the alarm is for your benefit as needed by your consent.

    m\on this basis you should pay the outgoings.


    my question is why did you need a n alarm and this didnt trigger alarm for the whole building? Alarms dont usually apply to spaces?
    I agree with john the builder
    I was in a similar situation (as a landlord)
    Tenants alteration caused the need for fire alarm
    Tenant agreed to 100pc of the alarm cost plus the BWOF which was now needed
    I also think you should pay 100pc

  10. #10
    Join Date
    Mar 2015
    Location
    Brisbane Wellington Auckland
    Posts
    713

    Default

    Quote Originally Posted by Davo36 View Post
    Hmmm, these things are always a bit tricky, but the lease usually has a clause along the lines of: % in clause xxx or a percentage that the landlord deems to be fair.

    So you might struggle with this one.
    I think it is fair the person who triggers the need to pay all the cost
    Ps the tenant who agreed with me is himself a landlord with with about $60m of property and also leases about 20 properties too.
    Last edited by Beano; 26-12-2018 at 09:06 PM.


 

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