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What happens when a tenant vacates the premises and leaves goods behind? Often commercial tenants leave items behind after vacating premises. This is distinct from the reinstatement of premises, which is a separate issue. Sometimes items left behind can include: • Items of fitout such as partitioning, shelving and counters. • Air conditioning units, alarms, camera and video monitors. • Left over stock such as clothing, bric a brac and point of sale material. • Light boxes, signs and antennae. Sometimes if the tenant has left in a hurry or been evicted, there can be the
contents of a fully fitted restaurant or motor vehicles and other valuable items of equipment. These items then become a problem as the premises may be unsuitable to relet whilst these items remain on site. The former tenant may not also be in a position to collect them for whatever reason or there is a significant cost in doing so. This is not an uncommon problem however there various ways to resolve the matter.
What do the respective commercial leases list in relation to this matter? The 2016 R.E.I.V. lease clause 10.2 states: “If the tenant does not comply with clause 10.1(a) the landlord or the managing agent may dispose of the tenant’s fixtures and fittings and goods in the manner permitted by the Australian Consumer Law and Fair Trading Act 2012 for the disposal of uncollected goods.” The Australian Consumer Law and Fair Trading Act 2012 deals not only with commercial leased premises but also with goods held in general such as those left for repair. It covers residential tenants, secondhand dealers and the like. Sections 58 - 62 deal with low value goods under $200 which can be disposed of after giving the tenant 28 days’ notice. Medium value goods up to $5,000 also require that 28 days’ notice be given to the tenant but the items need to be sold privately or by auction. High value goods over $5,000 also require that 28 days’ notice be given to the tenant and private sale or auction of the goods must occur but additional conditions apply. In some instances, the fitout or items of equipment are listed by priority creditors in the form of a Purchase Money Security Interest (PMSI) on the national Purchase Property Securities Register (PPSR). These items cannot be disposed of until the creditor is contacted and arrangements made for collection. Not every item is subject to a PMSI. Drink fridges, coffee machines and the like can be left on site however the supplier’s details are often listed and they will make arrangements to collect their goods when notified. It is important to dispose of these goods promptly to avoid prolonged vacancy and issues with misrepresentation to prospective new tenants. An example of how abandoned goods are treated are dealt with in the following case at VCAT, Chantelle Enterprises Aust. Pty Ltd v Sangster Greenwood (Building and Property) 2019 VCAT 961 2 July 2019. The case had been the subject of a previous hearing BP 1066/2108 involving the determination of whether the premises (were) abandoned, whether CONTINUED ON PAGE 28
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