Yardy Legal Pty Ltd

WHAT ADVICE DO YOU HAVE WHEN SIGNING A LEASE? Q. I bought my bar a few years ago and lease the premises. We've got a few multi-year options on it, and I've done the sums and I am happy to stay here, but I don't have much to do with the landlord, so how am I to go about making sure about the extra term on the lease? A. If you're running a licensed premise, your lease is probably the biggest item of value you have. What you need to do first is to carefully look at your lease, as you may not have done this for a couple of years (other than to look at the rent increases!). Leases with options generally have a section which details the procedure, and you have to be aware of it. You have to be careful, as the law requires a number of things to occur before exercising an option is valid. Don't rely on your landlord being a 'good bloke', as a failure to exercise the option properly means they can take over the premises, with you on the street, without paying a dollar for your business! Generally, lease options are exercised by writing to the landlord (you should also send a copy to the agent if there is one). The letter should state that you want to take up the option within the period specified in the lease, which is often six to three months before the end of the lease. Sounds simple. However, there are a number of pitfalls for the inexperienced: (i) Don't just mention it to the Landlord in passing, you must write to them. The letter must be absolutely clear and unequivocal that you wish to take up the option (ie. I hereby elect to exercise the option for a further lease period of X years as set out in clause XX of the lease dated 11/1/00). (ii) Don't place any conditions on it, as it will be invalid, and serve it by registered mail and/or get an acknowledgement that the landlord has recieved it. Be careful with emails and faxing as they can be unreliable, or as in a recent matter, the fax was sent upside down so all the landlord got was a blank page on his fax! (iii) Serve it within the proper time. Late or early service invalidates the service. (iv) Make sure that whoever is the lease holder exercises the option. If you have multiple companies, or it is held in your partner's name, the proper person/entity needs to sign off on the letter. (v) Make sure that you are not in breach of the lease when you try to exercise the option. You will have real problems getting your option if you haven't paid your rent or have breached the lease in a major way. If you want to stay, get your house in order. Although many of the State Governments have enacted specialist retail tenancy laws (with mediation and other remedies) that may affect your tenancy, the courts have dealt with options very formally, so read your lease carefully or prepare to move out! - HOW LONG HAVE YOU BEEN INVOLVED WITH THE LEGAL SYSTEM? Kenneth Yardy's life has been entirely coloured by his passion for the law. Initially serving in the NSW Police force between 1984 and 1995, he attained the rank of Detective Senior Constable. Moving on to a role as national security Manager for a major media organisation, Kenneth continued his promotion of justice. In 1997 Kenneth was awarded his Bachelor of Laws from the University of New South Wales and has subsequently completed his Masters of Legal Studies through the University of Canberra. In his initial years of practice Kenneth worked on Licensed Premises and Major Events and has subsequently moved into the specialised area of the Liquor, Gaming and Hospitality Industry. Ken's involvement with the legal system spans three decades and this breadth of experience is invaluable in dealing with client matters every day. Continually furthering his education, Kenneth's skills are constantly being challenged and refreshed. WHY WOULD I WANT TO TRADEMARK MY BUSINESS NAME AND LOGO? Question: My partner and i are refurbishing a bar. We will spend a small fortune setting up the place, as well as thinking up a great name for it. Advertising and PR will be expensive, but we want everyone to know to know the name - we'd even like to franchise the idea! Who owns a name? What can we do? Our Answer: You need to protect a name as much as you can. Your name identifies your reputation and brand and is the important asset that allows you to stand out from the crowd. Good names and brands sell. Reputation is everything. If you have a name and you don't protect it, you may have to change it and others may be able to gain leverage from your hard work. There is a long list of businesses which have failed to protect their names, and subsequently lost their reputations. When you think up a name, make sure it is distinctive. Invented words are often the best, as this reduces the chance that someone else will have the name. It's easier to establish a reputaion with and trade mark a name that is original. Think of Viagra; a much better name than Sildenafil Citrate, its real name! First of all, you need to find out that your name is available before getting the signwriters in. To make sure the name isn't already being used by someone else, you should always do the following searches: 1. Newspapers, trade magazines, directories and the internet. 2. State Fair Trading Offices (buisness names) 3. Australian Security Commission (company names) 4. IP Australia (trade marks) Be aware that many names, though spelled differently, can sound the same, so make sure that you do phonetic searches as well. Don't try to make your trade name too close to other trade names, otherwise you can be hit with a Trade Practices Act suit or a claim for 'passing off'. Both of these will involve lawyers and lots of money. There is a hierarchy for the protection of names in Australia. In each state, a business is required to register its name with the relevant Office of Fair Trading. However, don't be misled into thinking that this gives you ownership, exclusive use or protection of the name. It is for consumer protection only, not a property right. The best way to protect a name and brand is find a distinctive, original and non-descriptive name and have it marked by an application to the Trade Marks Office at IP Australia. Trade Marks can be names, logos, signs, colours, smells, and even sounds. You can register multiple variants of your name and logo if they fit the criteria for being able to distinguish your premises or product from others in the marketplace. A Trade Mark is a positive right that allows you to stop others using the name or the logo in the area of goods or services you are in. You can sell it, franchise it, or licence it. A good trade mark can make you alot of money. Just ask Coca-Cola or McDonalds! For further information contact Yardy Legal on 9318-2288 WHAT MAKES YARDY LEGAL DIFFERENT FROM OTHER FIRMS? Yardy Legal is a small, friendly law firm, which means our clients receive specialised attention which many larger companies are unable to offer. As a boutique law firm, we can personalise the service that our clients receive. This helps to build strong, beneficial relationships over time and also improves the efficiency of our work. Dealing primarily with small to medium sized businesses in the Liquor, Gaming and Hospitality Industry- we know the importance of friendly, reliable service for all our clients. HOW WILL THE NEW SMOKING LAWS AFFECT MY BUSINESS? The new smoking laws for licenced premises mean that a lot of licensees and owners need to look at their venues to see if they can deal with and comply with the radical changes (and opportunities) they represent. As health laws are in control of the State Governments, each State will vary.