The Retail Leases Amendment (Review) Bill 2016 was passed at 9.55pm on 21 February 2017 without amendment and will now become law. The commencement date is yet to be proclaimed by Parliament.
We have prepared a short summary of each key amendment to provide you with a quick overview.
We wish to highlight the relevant changes in the Retail Leases Act that will affect you.
NCAT can now determine retail lease disputes involving claims for up to $750,000.00. This is a welcome amendment, providing greater access to justice as currently the jurisdictional limit is $400,000.00.
Section 16 has been removed from the Act. That is, there is no longer the requirement that a retail lease must be for a minimum term of five years.
Leases must now be lodged for registration within 3 months.
The Landlord must now provide the Tenant with a copy of the signed Lease within three months after the Lease is returned to the Landlord.
A Landlord must return a Bank Guarantee within 2 months after the Tenant completes performance of the obligations under the Lease, which secure the Bank Guarantee.
A Tenant can now claim compensation (including the cost of its fitout) if the Tenant terminates in the first 6 months for failure by the Landlord to provide a Lessor’s Disclosure Statement or if the Lessor’s Disclosure Statement is misleading or incomplete.
Lessor Disclosure Statement can be amended by agreement or by NCAT. The Lessor’s Disclosure Statement can now be amended in writing both before and after the Lease is entered into either by the parties themselves or by NCAT.
It is clarified that a Landlord cannot charge a Tenant mortgagee consent fees.
There has been a very significant amendment in the Act in relation to disclosure of outgoings.
A Tenant is not required to pay any amount to a Landlord in respect of any outgoing (including management fees) unless the liability to pay was disclosed in the Lessor’s Disclosure Statement.
If the Lessor’s Disclosure Statement provides an estimate and the estimate is less than the actual amount charged and there was no reasonable basis for the estimate, then the liability of the Tenant is limited to the amount of the estimate. For example, if a Landlord estimates land tax of $7,000 but charges the Tenant $14,000 and there was no reasonable basis for the estimate of $7,000, then the Tenant is only required to pay $7,000.
It includes management fees.
We have always held the view that the Act applied to Agreements for Lease and the Bill clarifies this.
The Act now can apply to a Permanent Retail Market which is defined as an assemblage of stalls, described as a market that are predominately used for retail businesses operating in a building or other permanent structure.
It has been clarified that the Act applies to proposed Tenants and proposed Landlords.
This may mean that if a Tenant pulls out of a deal and the signed Heads of Agreement provided that legal fees were payable because arguably there is no Retail Lease in place, this change may override such a claim.
Now the Registrar at the Office of the Small Business Commissioner rather than the Tribunal can appoint a specialist retail valuer to determine a market rent review when the parties cannot agree on the choice of valuer.
There is a minor amendment to the protection afforded by section 35 of the Act in relation to demolition such that it confirms that the Act applies whether the whole building or only part of the building is subject to demolition.
Revenue from online transactions are not to be included in turnover for the purposes of calculating percentage rent, except for transaction where goods and services are delivered or provided from or at the retail shop or where the transaction takes place whilst a customer is in the shop. A Landlord is prevented from seeking information regarding on line transactions, except for transactions where goods and services are delivered or provided from the premises or where the transaction takes place while the customer is in the store.
There will now be an on-line rental bond service.
“After many sleepless nights, following bullying tactics from our landlord, our family solicitor recommended Anthony Herro. We had reached a situation where we were unable to negotiate any further with our landlords and faced lockout. Anthony stepped in and calmly reassured us that our business (and our life) was not over. In his own unruffled style, Anthony saw to it that our business remained open and that we retained our sanity and enabled us to negotiate and maintain our dignity. We now operate a healthy business and have an extremely good relationship with our landlords (the entire property management team has changed). We have nothing but the highest regard for Anthony and would never hesitate to recommend this fine gentleman.”
Max and Annette Schaapveld
Blockbuster Videos, Stanhope Village Shopping Centre
31 October 2011