Tenant leasing: Your landlord can always change … Coles blind sides Woolworths

Often when I am advising commercial and retail tenants on their leases when we are discussing negotiating the lease terms with the landlord and there is a particular issue which needs negotiating or amending in the lease, the tenant will instruct me not to push the issue saying ‘don’t worry about that one, the landlords a good guy we don’t need to worry about that’. At that point I remind the tenant that their landlord can always change…. At anytime…. and generally, without any notice until the new landlord has purchased the property.

The next instalment in the ongoing saga between Coles and Woolworths is an interesting example of how this can happen…even to Woolworths and was reported in the SMH on March 23 by Adele Ferguson and Chris Vedelago.

In short, Coles bought the real estate at Grosvenor Street Neutral Bay where one of Woolworths high volume high sales store is located. The lease to Woolworths expires in 2014 with a 10 year option to renew. Woolworths were not aware of the sale until it had occurred. In Woolworth’s defence, Coles set up an elaborate purchasing structure which means that it would not have been immediately apparent that Coles was behind the structure of the new landlord. What this now means for both of the Supermarket giants is yet to be reported. However, at the very least Coles as landlord will have the right to inspect Woolworths sales data as part of the normal rent review processes in a retail lease like this.

An extreme case perhaps. But is it is a timely reminder to all tenants that your landlord can change at any time. The important thing is to make sure your lease reflects your commercial agreement and you understand and are comfortable with the terms…whoever your landlord is. That nice guy that you have a good relationship may not be your landlord when the lease expires and the issue of make good has to be finalised.

National business names register

ASIC Keys

In May 2012 business names which were previously held in state based registers were migrated over to the National Names Register which is administered by ASIC. ASIC does not have a shop front for dealing with the registration and transfer of business names and the register is administered on-line.

All business name holders are now required to have an ASIC Key for a business name registered on the National Names Register. The ASIC Key is different to the ASIC Key you may already have if you are the director of an ASIC Company. The ASIC Key is issued by ASIC to the holder of a business name when business names are registered or renewed. The ASIC Key is required if you want to deal with your business name in any way, for example when you want to sell your business.

However, as most business names in NSW are registered for a 3 year period if you have not had to renew your business name since the National Names Register commenced in May 2012 you will not have received your ASIC Key for the business name. This can cause issues if you wish to sell your business and transfer the business name to the purchaser as you need your ASIC Key to apply for the ‘consent to transfer number’ which you need to provide to the purchaser of your business to enable them to register themselves as the new holder of the business name. You can request the ASIC Key for your business name online. Click hereand then click on the link to find out more about ASIC Keys and how to apply for one.

Changes to the Transfer of Business Names

When you are selling your business and the purchaser is buying your business name you apply to ASIC for a consent to transfer number. Before 27 January 2013 once you applied for that number your business name was stored on a temporary register for 28 days until the transfer was completed. The process has now changed and since 27 January 2013 details of the previous and new business name holder are immediately displayed on the national business names register for a period of 28 days. After that the register updates to show the new business name holder.