ATHRetail Leases are covered by the Retail Leases Act 1994 (‘The Act’). The Act sets out a number of requirements that Landlords must follow when a Retail Lease is prepared, to ensure that the Lease is enforceable against a Tenant. They include:-

  1. A Landlord must not advertise a retail shop for lease unless he has a copy of the proposed Lease in his possession.  Maximum penalty for Landlords = $5,500.00.
  2. A Landlord must make a copy of the proposed Lease as well as a copy of a Retail Tenancy Guide available to prospective Tenants as soon as negotiations are entered into. Maximum penalty for Landlords = $5,500.00.
  3. A copy of a Lessor’s Disclosure Statement (LDS) must be provided to a Tenant at least 7 days before the Lease is entered into.   If a Tenant does not receive a LDS within this time frame, or if the LDS is incomplete or contains information that is materially false or misleading, the Tenant may terminate the Lease at any time within 6 months after  the Lease was entered into (unless a permitted exception applies). Landlords should further note that any requirement for a Tenant to contribute towards the Landlord’s cost of any finishes, fittings etc. is not enforceable if it is not disclosed in the LDS.
  4. If a Landlord requires a particular standard of fit-out to be carried out by a Tenant, the relevant information relating to the standard required must be contained in a Tenancy Fit-Out Statement and provided to a Tenant at the same time as the Lessor’s Disclosure Statement, or included in the Lease itself.

A Tenant is not obligated to carry any of the Landlord’s fit-out requirements if they are not contained in a Tenancy Fit-Out Statement.

It is not good enough to simply have all of the Lease terms and conditions contained in the Lease itself.

To ensure that a Retail Lease is enforceable against a Tenant, a Landlord must ensure that all procedures prescribed by The Act are followed and that all required documents are provided.

For assistance in ensuring that your Retail Lease is enforceable, please contact the experienced team at Everingham Solomons because Helping You is Our Business.

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