Termination of lease

ACT

See section 108. The section applies to a lease for premises in the retail area of a shopping centre if the landlord proposes to re-lease the premises and the tenant wants to renew or extend the lease.

Where the section applies, the landlord must allow the tenant to extend/renew the lease in preference to other possible tenants. The landlord must assume that the tenant intends to renew the lease unless it gives notice in writing to the contrary within 12 months before the end of the lease.

The landlord may, however, offer the premises to a third party if it would be substantially more advantageous to the landlord to do so.

The landlord is not required to give the tenant a preferential right if:

• the landlord reasonably wants to change the tenancy mix;
• the tenant has substantially or persistently breached the lease;
• the tenant has signed an exclusionary certificate under section 111;
• the lease is excluded from section 108 by regulation;
• the sublease is as long as the term of the head lease allows;
• the tenant is in holding over for 6 months or less; or
• the landlord:

• does not propose to re-lease the premises within 6 months after the end of the lease; and
• needs vacant possession during that period for the landlord's own purposes.

NSW

See sections 44-44A. The landlord is required not less than 6 months or more than 12 months before the expiry of the lease to notify the tenant if he will be offered a renewal or extension of the lease.

A notice given by the landlord is not capable of revocation for 1 month after it is made.

If the landlord fails to give the tenant a notice, the term of the lease is extended until the end of 6 months after the landlord does give such notification, if the tenant requests the 6-month extension.

During the term of the lease (or holding over), a landlord of a retail shop must not, by written or broadcast advertisement, indicate the availability of the shop for lease or invite tenders or expressions of interest for tendering (section 44A), unless:

• the landlord has made an offer to the tenant for a lease renewal or extension and that offer has not been accepted;
• the landlord has given notice that it does not intend to offer the tenant a lease renewal or extension;
• the tenant informs the landlord that it does not wish to enter into negotiations;
• the tenant vacates or agrees to vacate; or
• the tenant consents to the publication of the advertisement.

A penalty (up to 50 penalty units) applies if the landlord breaches section 44A.

NT

See section 60. Similar to section 44 of the NSW provisions where the lease contains no option for renewal.

Not less than 6 months and not more than 12 months before the expiry of a lease, the landlord must by written notice to the tenant:

• offer the tenant a renewal or extension of the lease on terms (including terms as to rent) specified in the notice; or
• inform the tenant that the landlord does not propose to offer the tenant a renewal or extension of the lease.

An offer made under section 60 cannot be revoked until after one month after it is made.

If the landlord fails to give a notice to the tenant, the term of the lease is extended until the end of 6 months after the landlord gives the notice, but only if the tenant requests that extension by notice in writing to the landlord given before the lease would otherwise have expired.

During any resultant extension of the lease, the tenant may terminate the lease by giving not less than one months' notice of termination in writing to the landlord.

This section does not apply to a lease:

• containing an option to renew or extend the lease; or
• that is the subject of an agreement for the renewal or extension of the lease.

If a retail shop lease is for a term of 12 months or less, the periods of 12 months and 6 months mentioned in parts of section 60 are shortened to 6 months and 3 months respectively.

QLD

See sections 46-46AA. If there is no option for renewal in the lease, the landlord must by written notice either offer the tenant a renewal or extension of the lease on terms stated in the notice or tell the tenant that the landlord does not intend to offer the tenant a renewal or extension.

The landlord's notice must be given:

• between 3 to 6 months before the existing lease expires - for a lease term of not more than 1 year; or
• between 6 months to 1 year before the existing lease expires - for a lease term of more than 1 year.

If the landlord fails to inform the tenant whether or not it offers a renewal, the lease term can be extended until 6 months after the landlord gives the notice, if before the lease expires, the tenant requests the extension by written notice.

Where a lease includes an option to renew, the landlord must give the tenant between 2 and 6 months' notice of the last date to exercise the option (section 46).

SA

See sections 20D-20J. Similar to NSW for short-term and excluded leases.

However Part 4A Division 3 (rather than section 20J) applies to premises in an RSC and excluding:

• a lease containing a certified exclusionary clause;
• fixed term leases of 6 months or less;
• a sublease where the term is as long as the head lease allows; and
• a lease excluded by regulation.

For leases which do not contain a right of renewal, unless the tenant notifies the landlord within 12 months before the end of the term, the landlord is to presume the tenant wants a renewal or extension of the term. The existing tenant is to have a right of preference (subject to specified exceptions) and the landlord must between 6 and 12 months before the end of the term begin negotiations with the tenant for a renewal or extension of the lease.

If the landlord fails to negotiate or give notification as required by Part 4A Division 3, the term of the lease is extended until the end of 6 months after the landlord begins the required negotiations or gives the required notice, if the tenant requests the 6-month extension.

TAS

See section 29. The lease may be terminated or renewed at any time prior to its expiry by written agreement between the parties. In the absence of agreement, the landlord is to give the tenant 3 months' prior notice:

• as to whether or not landlord wishes to renew the lease, and if so, on what terms; or
• that the tenant is to remain as a periodical tenant on the current terms of the lease; or
• that the tenant may continue to occupy on a monthly tenancy on terms to be agreed.

The tenant is to respond to the landlord within 30 days of receiving the notice unless the notice states that the lease will not be renewed. If the tenant fails to do so, the lease is not renewed.

If the landlord fails to negotiate or give notice as to the landlord's intentions, then the terms of the lease may be extended (at the tenant's election) by a period equal to that period of non-compliance (ie. by 3 months).

No mention in Code of restriction on advertising.

See section 9. Similar to NSW. Payment of key money regarding the granting, renewal, extension or assignment of a lease, is prohibited (and void).

VIC

See section 64. Similar to NSW if the lease contains no option for further term except that the lease will continue until 6 months after the notice is given. Whether or not the landlord has given the tenant a notice, the tenant can terminate the lease no earlier than on the expiry of the term.

See section 28. Where the lease contains an option to renew, the landlord is required to notify the tenant of the date after which the option is no longer exercisable. The landlord must make this notification in writing at least 3 months before the last date that the option may be exercised. In addition, the landlord's notice must include:

• the rent payable for the first 12 months of the further term;
• notice that the tenant may require an early review of rent;
• notice that a cooling-off period may be available; and
• details of any changes to the most recent disclosure statement provided to the tenant (other than any changes in relation to the rent).

If the landlord fails to give all of the information required or fails to give the notice within the time specified

• the lease is taken to provide that the date after which the option is no longer exercisable is instead 3 months after the landlord notifies the tenant as required; and
• if that date is after the term of the lease ends, the lease continues until that date on the same terms and conditions as applied previously, unless the parties agree otherwise; and
• the tenant, whether or not the landlord has then notified the tenant as required, may give written notice terminating the lease from a specified day that is on or after the date on which the term of the lease ends and before the date until which the lease would otherwise have continued, if extended under this section.

See section 28B. A tenant who exercised an option and did not request an early market rent review under section 28A, may give the landlord written notice that they no longer wish to exercise that option to renew. The cooling-off notice must be given in the period ending 14 days after exercising the option, in which case, the lease is extended by 14 days and is taken not to have been renewed.

WA

See section 13B.

Once a lease (including any extensions or renewals in the lease or conferred by section 13) has expired and the tenant has no available option terms remaining, the tenant has no further right to a new lease.

If the tenant, within 12 months before the expiry of the lease, requests in writing from the landlord a statement as to the landlord's intentions, the landlord must within 30 days of receiving the request give a written statement to the tenant of the landlord's intentions.

If the landlord intends to grant the tenant a renewal of the lease then the statement must contain the terms and conditions of the proposed new lease (other than the rent which need not be given until 3 months before the expiry date). The statement will constitute an offer to lease.

If the landlord fails to give the statement within the 30 day period after receipt of the request (ie. either notifying the tenant that the landlord will not be granting any further lease or that the landlord is prepared to do so and the terms), the term of the lease is deemed to be extended by a period equal to that period of non-compliance.

Note section 13C which is of similar effect to the NSW section 44 regarding when an option ceases to be exercisable.

Definitions and currency