How To Start A Business With Multiple Owners

Starting a Business with Multiple Owners as Partners or Shareholders

Starting a business with more than one owner is fairly common. If you are not careful, however, it could lead to some problems down the line. 

A business is really just an idea when you get down to the fundamentals of it. While almost everyone wants to make money, businesses are usually started because somebody has an idea. More accurately, it is often because two or more people come up with something they think people will be interested in.

While the collaboration and effort is great for thinking out an idea, potential problems and so on, it could ultimately lead to disaster. Ironically, this is particularly true if the business is a successful one. The problem? Power Sharing... 

read more at  RP Emery and Associates

WA Western Australia Retail Leasing Guidelines and Agreements

Western Australia Retail Leases

If you are just starting a business you may also want to refer to THIS article, on starting a business with multiple owners.

Recent changes to the Commercial Tenancy (Retail Shops) Agreement Act 1985 in Western Australia are clearly offering more protection to tenants. The Government now regard them as the less powerful party in most retail leasing transactions. Due to this the amendments require greater responsibility and pro-active behaviour from the Landlords. 

The Commercial Tenancy (Retail Shops) Agreement Act 1985 controls retail and other commercial tenancies. The principal focus is on the need for transparent of information and fairness in the contract by:

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How To Transfer or Assign a Retail Lease To Someone Else

ASSIGNMENT OF RETAIL LEASE AGREEMENT

How to assign or transfer a retail lease.

If you are the tenant under a retail lease and come to the point where you no longer wish to use the property, what are your options? Unfortunately you are still obligated to honour your commitment under the terms of the lease, meaning you must continue to pay the rent and maintain the property while your name remains as the lessee.

One way of removing your name from that lease is to transfer the lease to another person or ‘party’. This is called an ‘assignment of retail lease’ and can be done using a simple written contract, known as an ‘assignment of retail lease agreement’. A transfer of retail lease, or, retail lease assignment is a simple contract entered between you (the lessee and assignor) and another party (the assignee), whereby they accept responsibility for all of your lease obligations beyond the date specified in the lease terms. To put it simply, it’s a way to get someone else to take your place in the lease, with the new party assuming all the responsibilities under the original lease. It is the only way to change the name of the original lessee on the rental agreement.

Subletting the rented premises may be an option. Assigning a retail lease is similar to subletting the premises with one major difference. When you sublet all or part of the premises to another person you are still obliged to honour your obligations to the property owner under the lease contract. Under an Assignment of lease agreement, the new tenant agrees to assume all those rights and obligations on your behalf and indemnifies you against any further obligation to the Landlord.

There are no rules stating when you can assign a retail lease so you can feasibly use a retail lease assignment agreement whenever you are leasing retail property. Although you will have to first get permission from the landlord (lessor) before entering into this agreement.

When Requesting the landlord’s ‘consent to assignment’ there are certain rules may vary slightly from state to state but the basics are:

• A request for the landlord’s/lessor’s consent to an assignment of the lease must be made in writing

• The lessee must provide the lessor with such information as the lessor may reasonably require concerning the financial standing and business experience of the proposed assignee.

• Before requesting the consent of the lessor to a proposed assignment of the lease, the lessee must supply the proposed assignee with a copy of any disclosure statement given to the lessee in respect of the lease, together with details of any changes that have occurred in respect of the information contained in that disclosure statement since it was given to the lessee (including any changes made since the rental term started).

• The tenant must provide the landlord with such information as the landlord reasonably requires about the financial resources and business experience of the proposed assignee.

The landlord has the right to withhold consent under certain circumstances.

• The proposed assignee proposes to use the retail premises in a way that is not permitted under the lease;

• The landlord considers that the proposed assignee does not have sufficient financial resources or business experience to meet the obligations under the lease;

• The proposed assignor has not complied with reasonable assignment provisions of the lease;

• The assignment is in connection with a lease of retail premises that will continue to be used for the carrying on of an ongoing business and the proposed assignor has not provided the proposed assignee with business records for the previous 3 years or such shorter period as the proposed assignor has carried on business at the retail premises.

Before you start any of these proceedings you will need to know the terms of the original lease, including the length of the lease, any legal regulations regarding retail assignment and the new terms. As with any business agreement, to ensure there are no misunderstandings, you are best advised to have your assignment of retail lease agreement in writing.

The agreement should refer to the terms of the original lease, as well as state what each party will or will not be responsible for under the terms of the assignment. You’ll also want to make sure each party reads the assignment, completely understands their obligations and then signs it. Assigning retail leases to other people can be a very effective tool in the right situation.

Whether you want to relocate your business, travel the world, or simply don’t want the responsibility under the lease any longer, you can use retail lease assignments to your benefit. A well-crafted Assignment of Retail Lease Agreement

will spell out the duties and responsibilities of each party and shield you from potential liability. For More Information Click Here

Create a simple Business Operations Manual

Plain English Guide To Creating A Simple 'Operations manual'

How to create simple operations manual?

An operations manual is the key to reducing the dependence on the owner of the business for performing the repetitive tasks involved in the day to day running of the business. It shows procedures and policies so that employees know what to expect and new employees can join in and know what they are to do right from day one. 

The goal of an operations manual is to instruct new people coming in the business on how various tasks associated with the business should be executed. It should also contain the policies and procedures relating to suppliers, employees and customers. The operations manual helps bring consistency in the business because the documented steps are repeated again and again and everyone gets clear visibility into what is expected. 

An operations manual which has been in use for a few years and has gone through a few revisions greatly assists in the sale of a business because the new buyer is assured that the important tasks associated with the business are clearly documented and the learning curve will be significantly quicker with the aid of this manual.

While each operations manual would be tailored to the specific needs of a business there should be a few common elements present in every manual.

1. Brief overview of company: The manual should briefly talk about how the company evolved, about the roots of the company and its history. This gives a face and a story to the company and helps employees to connect better with the company.
2. Opening and closing procedures: The opening and closing procedures should be detailed thoroughly. For instance if there is an inventory check at the time of closing or if there is a reporting time at which all employees should report, the responsibility to open the store etc.
3. Cash handling: For most small businesses leakages are a big issue and this makes the cash handling policies very critical and important. Most businesses require all transactions to be documented and it would be at your peril to do otherwise.
4. Customer service: The customer is at the heart of any business and the more detailed the procedures about interacting with the customers, the higher customer satisfaction and repeat business will be. The depth at which you want to go depends on your style of management but it is always good to include things like return policies, after sales service and handling of irate customers.
5. Sales promotions and discounts: It always helps to have the marketing strategy of the business clearly documented. This would involve detailing all the sales promotions that will be carried out in every season and the usual guidelines for marking down goods and the methods to approach target customers.
6. Supplier management: There needs to be a section on managing suppliers and vendors. Who are the approved suppliers of the business, what are the credit terms when dealing with these suppliers? How to approach a new supplier? These are some of the issues that would be addressed in this section.
7. Legal and contractual issues: There would be some contractual things that a business would be bound by and employees need to know how to work within the bounds of these issues. Sometimes a business may be dealing with patented technology or using certain trademarks. The operations manual should aim at making the employees well versed with the do’s and don’ts around such things so that no legal or contractual issues arise.

The operations manual should be easy to follow and should be a living document, which is revised frequently so it reflects the current reality of the business and is followed by the people working in the business.

Sometimes, the terms in legal contract can be confusing and complex. What are the Parties? and Consideration according to Business Law are two very insightful articles, explaining some of the basics of business practise, and definitions.

Distribution or Distributors Agreement Contract Form

DISTRIBUTION AGREEMENTS

Distributors or sales professionals are always trying to find the next market, customer or potential lead. Whether you are a manufacturer looking for a new distributor or a sales professional eager for a new challenge, you’ll likely come across the need for Distribution Agreements.

Here are some common questions that you must know the answers to if you are to do it right.

WHO NEEDS A DISTRIBUTION AGREEMENT?

WHAT NEEDS TO BE IN A DISTRIBUTION AGREEMENT?
CAN THERE BE AREA DISTRIBUTORS AGENTS?

WHAT ABOUT TRADE SECRETS?

CAN I BECOME AN EXCLUSIVE DISTRIBUTOR?
HOW MANY DISTRIBUTORS CAN I USE?

The use of a distributor for your business or going it alone as one yourself is a regular practice that unfortunately is often left to a chat and a handshake. If you are serious about your business, you will want to make sure your Distributor Agreements are drafted correctly. A good Distribution Agreement is one that all parties can rely upon so no one is left in the dark.
To Get Your Agreement Please Click Here

How to Write a Business Sale Information Memorandum

How to Write a Sale of Business Information Memorandum

The Information Memorandum is a marketing document used by the owner to promote their business to a potential buyer. The aim of the information memorandum is to make the business sound attractive to buyers, and also to convey all significant information to parties who are already interested in making a purchase.

A good Information Memorandum will predict all the questions a potential buyer might have about your business. It should contain a description of the business’s history, its past achievements and future prospects, as well as the particulars of its operation.

For more information relating to an Information Memorandum and having a Business For Sale please go HERE. It has invaluable insights, tips and tricks to help you get the best price for your business AND save yourself thousands of dollars in the process.


Feel free to refer to Creating a Simple Business Operations Model and The Basics of Book Keeping. 

Retail Tenancy, Shop Rental, Retail Leasing NSW,ACT,QLD,TAS,VIC,SA,NT,Australia

Commercial Retail Shop Tenancy leases and laws

The retail tenancy law is very clear in most Australian states:

A landlord in a retail lease must not, in connection with the lease, engage in conduct that that is misleading or deceptive to a tenant or guarantor. A party who suffers damage by reason of misleading or deceptive conduct of another party may make a claim for compensation.

Because the laws are different in each state we’ve outlined the requirements of each state on the following pages

• New South Wales
• Victoria
• Queensland
• Western Australia

Commercial Property Leases Australia - Office Leasing and Warehouse Rental

COMMERCIAL PROPERTY LEASE

Commercial lease agreements are necessary whenever you are going to rent out a property for commercial use, or when you want to have paying tenants in your commercial space. If you are just looking for a simple lease of some office space or buying a property to lease it as commercial property, be ready before you take that step. Here are some common questions you must know the answers to:

• WHAT IS A COMMERCIAL PROPERTY LEASE?

• WHAT MAKES A COMMERCIAL LEASE DIFFERENT FROM A RESIDENTIAL LEASE?

• WHAT NEEDS TO BE STATED IN THE LEASE?

READ MORE

Heads of Agreement Checklist

Heads of Agreement

Checklist

• The Heads of Agreement should be dated and validly executed by both parties
  
  
• There should be an explicit statement that the Heads of Agreement is meant to be binding
  
  
• If an essential term is absent or uncertain, the agreement will be void for uncertainty or construed as incomplete, ie. the parties should have agreed the terms that are regarded as essential, for example:
  
  - In a simple Heads of Agreement to lease a building the following matters must have been agreed and should be accurately identified - the parties, the premises, the term of the lease, the rent or other consideration payable, review dates and rights of renewal
  
  
• In the above case there was express reference in the Heads of Agreement to matters "not agreed". The Court determined that the matters marked not agreed had such substantial financial implications for both parties that they were marked not agreed as an indication of their importance and were therefore essential terms.
  
  
• There should be a provision for agreement on outstanding issues to be reached by resort to an expert or an arbitrator or by another mechanism (in the above case, the Court determined that the matters not agreed were "of a kind which could not be expected to be settled for the parties by a Court or other third party" ie. the Court was unable to fill the remaining blank spaces.
  
  
• You should ensure that all documents that are referred to as "attached" to the Heads of Agreement are attached, and that the parties have initialled all amendments and the foot of each page.
  
  
• If there is a particular form of agreement to be entered into at a later date (for example, the Auckland District Law Society Lease), then this should be attached or clearly identified in the Heads of Agreement to avoid uncertainty.
  
  
• The Heads of Agreement should be clearly drafted in plain English and accurately reflect the intention of the parties with all the essential terms and conditions incorporated.

Write an Employee Reference Letter

How to write an Employee Reference Letter

There are a few simple guidelines for writing an effective reference letter.

Firstly if you don't feel comfortable writing the reference or don't feel you can't say anything positive about the person involved then its better to tactfully decline. It is far better for the individual to find another person who can provide a positive reference for them.

References should contain the following points -  CLICK HERE

Associate Lease Agreement, Salary Sacrifice, Salary Packaging

Associate Leases: A Guide for Employers and Employees

You have probably heard of salary packaging or salary sacrifice, a flexible remuneration scheme where employees agree to forgo part of their salary (thus the term salary sacrifice) in exchange for certain non-cash benefits. An associate lease is one of the ways through which employers can provide their employees with car benefits under a salary packaging agreement. With an associate lease in place an employee can reduce their taxable income in exchange for a motor vehicle.

What is an Associate Lease?

An Associate Lease is a lease rental arrangement whereby an Associate of the employee (eg partner, spouse) owns the motor vehicle and leases it to the employer. The motor vehicle is then provided to the employee on a fully maintained basis.
Once the lease is in place, the motor vehicle is recognised as an Employer provided motor vehicle for both the purposes of the Income Tax Assessment Act and the Fringe Benefits Assessment Act.

The Benefits of Associate Leases

The Associate leases arrangement provides two key benefits :
i) Lease payments are paid as income to the associate who would generally be in a lower tax bracket than the employee.
ii) Additionally all of the running and maintenance costs are paid for and claimed as a deductable expense by the employer.
iii) Employee forgoes income in exchange for car benefits thereby reducing tax liability 

An associate lease is thus a salary sacrifice arrangement that is very similar to a novated lease agreement. However, in an associate lease, the employee's associate is the owner and thus the lessor of the vehicle provided by the employer to the employee whereas, in a novated lease, a finance company is the lessor.

However convoluted it may seem on the surface, an associate lease is simply an arrangement in which the employee through his associate leases the employer his or her existing car so that the employer can provide him or her with car fringe benefits, which he or she pays for by sacrificing part of his or her future salary.

Under an Associate Lease Agreement, the associate is liable to pay taxes on the lease payments received. However, if the associate in the agreement happens to be someone who has no or quite low income (e.g. adult child attending university), then income tax savings can still be considerable. After all, the marginal tax rate would still be lower than the rate that the employee would have to pay had the amount been on his or her assessable income. The depreciation allowance for the first year also leads to further reduction in the associate's assessable income.

For More Please Visit the RP Emery website

Tenants in common agreement allows for co ownership of property

Tenants in common

The soaring price of real estate makes getting into the property market hard. The possibility of pooling resources with friends and family to achieve this is appealing.

The question is…How?

The answer could be to become ‘tenants in common’.

Tenants in common is a type of joint ownership of property. This type of co ownership is most suited to investment type properties where each ‘tenant in common’ is able to deal with their interest individually. It is vital to all involved that the purchase is documented and regulated by a tenants in common or co-ownership agreement which can outline every aspect of the purchase.

There can be as many individuals as you like holding a share of the title to a single piece of real estate. The shares in this type of agreement do not have to be equal meaning you can have multiple ‘owners’ with varying shares in the property. These shares are generally decided at the time of purchase, but can be altered at any time, provide all parties agree to the change.

Each shareholder is able to leave their share of ownership in their will to anyone they choose and the other tenants in common have no legal claim to it. Each tenant in common has the right to deal with their share of the property separate from the others. The share of a tenant in common is known as an “undivided” share.

An initial outlay or ‘capital’ is needed and then an amont (stated in the agreement) is paid into a ‘revolving’ fund on a pre determined schedule (ie, weekly, fortnightly,monthly). This fund covers all expenses incurred by the property and if these exceed available funds then each party must put in extra money.

What if I want to sell my share?

After an amount of time set out in the agreement, a party can sell their shares. They can be sold to anyone but must be offered to the other parties in the agreement first (known as the ‘first right of refusal’). If the sale is accepted then the selling party will be responsible for the cost of valuation and all of the other costs incurred.

These are the basics of becoming ‘tenants in common’. The finer details are all covered in your ‘tenants in common’ agreement.

It is a viable and sound way to enter the property market without having to find all the money yourself. Just do it right at the beginning and you can be on the property market ladder sooner than you might think.As long as you have made a ‘Tenants in Common’ agreement and all parties have signed and agreed then there can be no arguments in the future.

Property Settlement When A De Facto Relationship Has Broken Down.

How to do Property Settlement When A De Facto Relationship Has Broken Down.

Before the right to create Financial Agreements (FAs) was extended to same-sex and de facto relationships, when such a relationship had broken down, both parties would have had to prepare themselves for some long-winded and tedious litigation through the Supreme Court.

This has now all been changed with the introduction of section 90UD of the Family Law Act 1975 which specifically entitles people in de facto relationships to agree upon what they consider to be a fair distribution of property and financial resources once the relationship has broken down. For More Please Visit www.financialagreements.com.au

Binding Financial Agreements, Prenups, Postnups and Separation

Financial agreements can now be made between same-sex couples. Discussing a binding financial agreement, as it is known under the Family Law Act, is hardly the most romantic thing to do with your partner, but for many people, it may be the most important document ever signed.

No longer an exclusive financial risk-management tool for Hollywood celebrities, increasing numbers of less famous couples are known to be opting for written agreements to protect the financial assets each partner brings to the relationship.

It's the same type of agreement that is increasingly likely to be drawn up after a relationship has ended, as a preferred way of dividing up assets outside the public eye of the courts.

The popularity of binding financial agreements (BFAs) shows women and men are taking more financial and legal precautions against a relationship breakdown. Most see it as a form of insurance -- a legally binding safety net which they hope to never need.

To Find out just how easy and affordable this safety net is please see www.financialagreements.com.au

Avoiding cheque fraud

Avoid the `risks’ involved when receiving and paying by cheque.

Although other methods of paying bills are gaining in popularity (eg , telephone banking,EFTPOS, internet banking) cheques are still being used. However, the law about "crossing" cheques was changed in 1996.

As protection against a cheque being cashed by someone other than the person the cheque is made out to . . . you should print the words `Account Payee Only ' or `Not Transferable' across the centre of the cheque. Crossing like this with 'Not Transferable', or 'Account Payee' (A/C Payee) means that the cheque can't be cashed and used by someone else.

A cheque marked as 'Account Payee' can only be paid into the bank account held by the person it is made out to. Some people write 'A/C payee only' which is also fine.

Using this method makes it clearer to the person receiving the cheque, and this will help reduce any chances of cheque fraud, as anyone using the cheque can only put it into the account named on the cheque. But because only the person named on the cheque can bank it, it is very important that the name is written correctly and exactly as the name appears on the account it is being paid into.

Not-negotiable cheques are not the same as 'Non Transferable'. A cheque marked 'Not’ or ‘Non Negotiable' can be transferred to someone other than the person it is made out to. But it still has to be paid into a bank account. Don't accept a 'Non Transferable' cheque made out to someone else. Don't accept a 'Non Transferable' or 'Account Payee' cheque if it has been transferred to you. Only accept it if it has been made out to you in the first place.

Make sure your name is written correctly, as it must be the same name as your bank account. For example: imagine you were selling your car over the weekend and the buyer didn't have enough cash, but, they offered you their wage or pay cheque instead.

If it's a 'Non Transferable' cheque your bank could decline to take it. Then you'd have to track down the buyer and get them to pay you again. (Good Luck) 

Cash cheques -- writing a cheque out to 'cash' means that anyone can cash it for the sum it is written out for. It does not have to be paid into a bank account. This can be done for someone who may not have a bank account so don't also cross the cheque with 'non transferable' or 'A/C payee'. But also be aware that if a cash cheque is lost, anyone could bank it. Treat a `cash’ cheque as if it were actual dollar notes and don’t lose it!

If you just follow a few simple rules then using cheques is still a safe form of using your money.

Written by R.P.Emery

Taken from Legal Guide

What is Fair Wear and Tear

Are you being too tough on your tenants?

The basic definition for fair wear and tear is:

‘damage that occurs during normal use or something that happens due to aging’.

As a tenant wrapped up in day-to-day life little bumps and dints, some light scratches and a smattering of smudges are usually things which cannot be avoided. A complete list of employment contracts can be found here: Residential Tenancy Agreements.

BUT, what if you are the proud owners of an investment property and your tenants are leaving their mark on your asset? Just HOW much do you let them get away with?

Deciding on what is fair is a huge challenge that property managers have to face every time a tenant leaves a property.

The problem lies in the fact that the term 'fair wear and tear' is not specifically defined in the Tenancy Act or the Tenancy Agreement, so it is open to individual interpretation. Some landlords can be very hard on tenants and while they expect the premises to be perfect, it is important to be fair to the renters.

Things like wearing carpet, slight smudges on the walls, chipped tiles, holes in fly screens, marks on curtains and carpets, insects in light fittings or dusty window and door tracks can happen in a normal day, and, they can happen to anyone. Other important factors that should be considered are the number of tenants, the time of tenancy and the age of fixtures and fittings prior to their tenancy.

It is important to think about the normal signs that appear when a property has been lived in for a period of time. Allowances must be made for this when it comes time for the property inspection and checking off on the original ‘condition report’.

So why is comparing the ‘condition report’ to the current state of the property so important?

The purpose of the final inspection is to compare the current state of the property to the initial condition report completed by the tenants at the beginning of their stay. The legislation states that the tenant must leave the property in the same condition as when they entered, and any substantial damages will then have to be paid from their rental bond after they have vacated the premises.

Just a bit of simple common sense and understanding from both sides can prevent any disputes;

As a tenant you should take care of the property and try and leave it as you entered it or you may be liable for the costs involved for repairs. You may also lose the large ‘rental bond’ which you paid at the beginning of your stay.

As a landlord then understanding that little things happen when living in a property is important and allowances MUST be made, you must take into consideration the fair wear and tear factor. Of course if there are obvious signs of avoidable damage to the property then you should not have to pay for this yourself.

With this understanding the relationship between tenant and landlord can and should be a good one.

http://www.rpemery.com.au

COMMERCIAL SUBLEASE AGREEMENT

What a commercial leaseholder needs to do to Sub-Lease a Commercial property.

Here are some very important things you will need to know before entering into a Commercial Sublease Agreement.

WHAT IS A COMMERCIAL SUBLEASE? 

WHEN CAN I USE A COMMERCIAL SUBLEASE? 

WHAT’S THE DIFFERENCE BETWEEN SUBLETTING AND ASSIGNING A LEASE? 

HOW DO I ENTER INTO A COMMERCIAL SUBLEASE? 

WHAT NEEDS TO BE STATED IN THE SUBLEASE AGREEMENT?

CAN I SUBLET PARTS OF THE PREMISES?

For the answers to these questions please visit the RP Emery website

Agency Agreements

What is an Agency Agreement?

An Agency Agreement is a legal contract between “the agent” and “the principal” whereby a fiduciary relationship is created that defines the duties and authority of the agents.

The Principal grants the Agent the right to create legal relationships with third parties and to work on behalf of the principal and under his control. Therefore the principal agrees to be bound by the agents' actions. For example; if the agent negotiates an agreement with one of the principals customers, the principal agrees to honour the agreement as if the principal had himself made the agreement.

With a sales agency the Agent’s role is to find, negotiate and close sales on behalf of the principal. It’s important to understand the agent only has the authority to negotiate and enter arrangements on the principals behalf, to the extent allowed by the terms of the agency agreement. For instance; this may mean that a principal reserves the right to approve or decline all sales negotiated by the agent, before a binding contract is entered.

In most cases the sales agent will be rewarded for his/her efforts based upon performance. This means a well structured agency agreement will provide a win win situation for both parties. The agent usually assumes all of his or her operating costs so its important to remember this when negotiating your agreement.

As a general rule an agent will not be required to hold stock of the principals products, it’s the principals responsibility to ensure he has the resources to deliver the product or service to the customer. Once the product or service is delivered the commission Agent is then entitled to payment from the principal.

Agency agreements also provide flexibility for the parties whereby the Agent may be granted an exclusive or non exclusive territory sometimes called a sole agency. This means the principal is able to ensure if need be all agents acting under his control get a fair share of the market available.

Remember, when negotiating your agency agreement both the agent and the principal will have a legal duty. In particular, the agent is placed in a position where a high-level of responsibility and trust is imposed. This is known as a “fiduciary relationship” and certain obligations are placed on the agent regardless of any contractual responsibilities. The primary responsibility of the agent is to act honestly and in the best interest of the principal.

Agency agreements can be written, verbal or implied by the conduct of the parties involved. The Law and the Tax office may look at the actions of those involved in deciding if an agency can be inferred. If the parties have acted in a way that reasonably infers the agent is representing the principal with the knowledge and approval of the Principal then an agency arrangement is presumed.

Whatever the situation, it is always better to enter any agreement in writing. A written agreement clarifies the terms, conditions and duties of the parties involved and will provides strong legal protection in the event of a misunderstanding.

 

Click Here for Agency Agreement Template

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