Problems regaining possession at the end of a commercial lease

In a commercial leasing context (stay tuned for the residential tenancies version of this article), once a landlord hands over possession of a property to a tenant, by way of a verbal agreement, written lease or otherwise, it is often difficult for the landlord to physically retake or reclaim possession of that property.

At the end of the lease or where a landlord believes the lease has been terminated, they will usually attempt to retake possession of the premises by locking the tenant out and refusing to allow them to re-enter. This approach well and truly puts the ball in the tenant’s Court as it forces the tenant to seek Court orders if it wishes to obtain what is known as “relief against forfeiture” which may allow the tenant to reclaim possession of the premises.

If the landlord is unable to obtain possession of the premises through their own means the next port of call is usually a phone call to the police. The police may attempt to broker a deal however, they are often unwilling or unable to help where they deem the situation to be a civil dispute.

Remedies under the Property Law Act

From this point matters get tricky (and possibly expensive). The least time consuming way is for a landlord to seek a warrant for possession using a summary application under the Property Law Act 1974 (Qld) (‘PLA’). This an expedited process in the Magistrates Court which is only available if the tenancy has expired or has been ended by a proper notice to quit. The summary powers available in the PLA do not apply to leases which have been terminated due to the failure of the tenant to comply with its obligations under the lease. Once a warrant for possession is granted by the Court it is provided to the police who act on the warrant to eject the tenant.

The more time consuming and expensive method is for a landlord to issue proceedings against the tenant in the appropriate Court seeking orders for possession of the property and any associated losses. Such proceedings can be defended by the lessee in the usual way and for that reason are often time consuming. If such orders are granted by the Court they must then be enforced by through a further application requesting the bailiff of the Court enforce the orders.

Preventative measures

The takeaway message here is to be very careful regarding the terms on which you allow anyone to have exclusive possession of your property, ensure an appropriate deposit or bond is paid and once the lease has ended seek legal advice to ensure you finalise matters in the most efficient way possible.

About this article

Please note that this article was written for information only, is not legal advice nor should it be taken as such. The author is Daniel Bycroft, a solicitor in the Dispute Resolution and Litigation Team at Bell Legal Group. Daniel is highly skilled in practice and procedure regarding leasing and tenancy disputes.

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