RISK WATCH
Commercial Leasing Risk Management Resources for SA Insured Practitioners GRANT FEARY, DEPUTY DIRECTOR, LAW CLAIMS
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s lawyers, we know that details are important. We know that clarity of expression and precision in execution can make a world of difference. We also know that managing a file well involves managing clients well and taking care of the details. In the commercial leasing area, claims against practitioners are consistently high, both in number and in value. And it can all come down to small details like, for example, who is responsible for reminding the client about renewal; does your current client letter make it their responsibility, not yours - or is it silent on the point? Simple issues such as not being clear as to whose responsibility it is to renew have led to substantial claims against practitioners in recent years. To assist practitioners in this regard, the Society has recently launched a further document package for practitioners insured with the SA Professional Indemnity Insurance Scheme relating to Commercial Leasing Transactions. This new package is in addition to the Wills & Estates, Family Law (Financial Agreements), Sale and Purchase of Businesses and Cyber Security document packages already available. The new document package has again been licensed from Lexon in Queensland and reviewed and adapted for South Australian law and practice by senior South Australian practitioners very experienced in the relevant areas. The Commercial Leasing pack contains the following documents: Leasing • Checklist – Leasing – Acting for the Landlord • Checklist – Leasing – Acting for the Tenant • First Letter – Acting for Landlord – Non-retail Lease • First Letter – Acting for Tenant – Nonretail Lease • Final Letter – Acting for Landlord – Non-retail Lease • Final Letter – Acting for Tenant – Nonretail Lease Lease Assignment • Letter to Client – Assignment of Lease Letter (including retail leases)
• Letter to Landlord – Assignment of Lease Letter (including retail leases) • Letter to Tenant – Assignment of Lease Letter (including retail leases) Lease Disputes • Letter to Tenant – Breach of Lease and Disputes Letter (including Retail Leases) • Letter to Landlord – Breach of Lease and Disputes Letter (including Retail Leases) • Form – Section 10 Notice • Letter – Instruction to Bailiff for Distraint and Re-Entry and Termination • Form – Warrant to Distrain • Form – Inventory • Form – Notice of Re-Entry and Termination • Letter of Demand – Tenant • Letter of Demand – Guarantor • Checklist – Leasing – Dispute – Acting for Landlord • Checklist – Leasing – Litigation – Settlement Lease Renewal • Letter to Client – Tenant – Renewal of Lease Letter (Including Retail Shop Lease) – COVID-19 USE ONLY • Letter to Client – Landlord – Renewal of Lease Letter (Including Retail Shop Lease) – COVID-19 USE ONLY Leasing—COVID-19 Additional Documents • Practice Note - COVID-19 Pandemic Leasing Considerations and File Note – Landlord • Practice Note - COVID-19 Pandemic Leasing Considerations and File Note – Tenant • Letter to Client - COVID-19 Pandemic Leasing Letter to Client – Sign off letter when negotiating and documenting relief under lease Leasing Checklists • Checklist – Leasing – Acting for the Landlord • Checklist – Leasing – Acting for the Tenant • Checklist – Leasing – Commercial and Industrial Leases • Checklist – Leasing – Retail Shop Leases
• Checklist – Leasing – Dispute – Acting for Landlord • Checklist – Leasing – Litigation – Settlement These documents contain comprehensive guidance as to relevant issues to consider and, although no system is foolproof, should ensure that nothing is missed and clients are kept informed throughout the course of Commercial Leasing transactions. Each client letter can be adapted to suit your style and includes prompts to insert information. The documents contain references to further resources and other relevant materials in the packages. These are more than templates; they have been crafted to address the practice risks in this area. Access to the Commercial Leasing document packages is available only to practitioners insured with the SA PII Scheme (i.e. through Law Claims) at https://www.lawsocietysa.asn.au/ Public/Publications/Commercial_Law_ Package/Leasing/leasing_landing.aspx (requires login) Greater attention to risk management by practitioners acting in these higher risk areas will reduce claims—both in terms of the number of such claims and, importantly, the size of those claims—so that the overall cost of the professional indemnity insurance can be kept in check. If you have any queries or suggestions about these document packages or about Risk Management generally, please contact Grant Feary, Deputy Director, Law Claims (gfeary@lawclaims.com. au) or Mercedes Eyers-White, PII Risk Management Co-ordinator (meyerswhite@lawclaims.com.au). March 2021 THE BULLETIN
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