Mediation with Standard ADLS Agreement to Lease

[FescueFiend]

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

[Davo36]

Hmmm, not sure.

You'd really have to ask either the mediator or your solicitor.

[John the builder]

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?

[Rosco]

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

[FescueFiend]

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

[FescueFiend]

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.

[Davo36]

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.

[John the builder]

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?

[Beano]

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

[Beano]

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.

[Davo36]

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.

Well that makes it easier

[FescueFiend]

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?

My space was an addition to the existing building and happened after 2004 so an alarm was required and now the building is subject to a yearly WOF. The WOF applies to the entire building, I was present when the WOF inspection took place and the inspector checked all shops not just my space.

Thanks for everyone's input, great to hear others thoughts

[Beano]

Every issue that happens today you can pretty well guarantee has happen before .