Heads of Agreement Review for Leases and Business Sales
A heads of agreement sets the terms a lease or a business sale will later be built on. We review it, and advise on what it means, before you sign.
What Is a Heads of Agreement?
A heads of agreement is a short document that sets out the main terms proposed for a lease before it is formally drafted. It may also be called heads of terms, a letter of intent, or an expression of interest. For a commercial or retail lease it typically covers the premises, the term and any options, the rent and how it will be reviewed, who pays outgoings, any incentive or fit-out contribution, and the security required from the tenant.
It is usually put together quickly, by an agent or between the parties directly, before either side has taken legal advice. The terms in it tend to carry through into the formal lease largely unchanged, because renegotiating a point once it has been agreed on paper is harder than raising it at the outset.
Is a Heads of Agreement Binding?
A heads of agreement is generally intended to record terms in principle, not to bind either party to them. Whether it actually is binding depends on what the document says, whether it fixes the essential terms of the lease, and how the parties behave afterwards, not on the heading at the top of the page. A document titled heads of agreement that settles premises, term, rent and the other essential terms, and is signed by both parties without a clear statement that it is subject to contract, can be treated as a binding agreement to lease.
For a retail shop lease in NSW, this matters beyond contract law. The Retail Leases Act 1994 (NSW) requires the landlord to give the tenant a disclosure statement before the lease is entered into. If a heads of agreement fixes the lease terms and is treated as the point the lease was entered into, it can bring that disclosure obligation forward, before the tenant has had the chance to review it alongside the lease itself.
We advise on whether the document you have been sent is binding, and on the wording needed to make sure it is not binding unless and until that is what you intend.
What We Check Before You Sign
Binding status
Whether the document is expressed to be, or risks being treated as, binding on you.
Premises and permitted use
That they match the business you intend to carry on from the site.
Term, options and rent review
Fixed increases, CPI, market review, and how any ratchet clause operates.
Outgoings and incentives
Who pays what, and how a fit-out contribution or rent-free period is secured.
Security
The bank guarantee or bond amount, and any personal or director's guarantee.
Retail disclosure timing
Whether the sequence you have been given complies with the Retail Leases Act, for retail leases.
How It Works
Send us the heads of agreement
We review it and advise you in writing on what it means and what it commits you to
You raise anything that needs to change before you sign
If you go ahead, we act for you on the lease itself once it is drafted
Heads of Agreement or Agreement for Lease?
These are different documents, and we act on both. A heads of agreement is an informal record of proposed terms, usually not intended to bind either party, made before the lease is drafted. An agreement for lease is a binding document, entered into now, committing both parties to enter into a lease later, once something else happens first, such as the landlord completing fit-out works. If what you have been sent commits you to a fixed outcome rather than recording terms for further discussion, it may be an agreement for lease rather than a heads of agreement, and needs to be reviewed as one.
Fees
Fees for reviewing a heads of agreement, and for acting on the lease that follows it, are set out on our pricing page.
Business sales
Heads of Agreement for a Business Sale
A heads of agreement is also common when a business is being bought or sold. It records the price and key terms before the sale contract is prepared.
For a business sale, the heads of agreement usually covers the price and deposit, what is included in the sale, the stock and equipment, the treatment of employees, the lease, any restraint on the seller, the handover period and the proposed completion date. It may also make the sale conditional on finance, due diligence or the landlord’s consent to the lease being assigned.
As with a lease, the key question is whether the document is binding. Many business sale heads of agreement are expressed to be non-binding except for particular clauses such as confidentiality and exclusivity, but the wording and the parties’ conduct both matter. Terms agreed at this stage also tend to carry through to the sale contract, so the time to raise GST treatment, the restraint, stock valuation and the lease is before the heads of agreement is signed.
We review heads of agreement for buyers and sellers of businesses and advise on what they commit you to. Where we then act on the sale, the terms flow directly into the contract we prepare or review. See Business Sales and Purchases.
Related leasing services at Corporate Legal.
Common Questions
What is a heads of agreement?
Is a heads of agreement legally binding?
Do I need a lawyer to review a heads of agreement?
What happens after I sign the heads of agreement?
Can the terms still be changed once the lease is being drafted?
Does a heads of agreement affect my rights under the Retail Leases Act?
What is the difference between a heads of agreement and an agreement for lease?
How much does a heads of agreement review cost?
Do you review heads of agreement for a business sale?
Reviewed Before You Sign
Send us the heads of agreement you have been given and we will advise you on it, before it becomes a lease.
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