ACT
See section 5. The Lease is entered into on the earlier of:
- execution of the lease by the parties; or
- the tenant entering into possession of the premises.
NSW
See section 8. A retail shop lease is entered into when a person enters into possession as the tenant or a person begins to pay rent as the tenant (whichever happens first). In the 2021 NSWSC decision of Ausko Cooperation v Junapa Pty Ltd, the court reiterated that section 8 is a temporal question, namely, when a retail shop lease is deemed to have commenced, rather than whether a retail shop lease actually exists. However, if the landlord and tenant execute the lease before the tenant enters into possession or begins paying rent then the lease is entered into as soon as both parties have signed the lease.
NT
See section 10. A retail shop lease is entered into when:
- both parties sign the lease instrument;
- the tenant enters into possession; or
- the tenant commences to pay rent,
whichever occurs first.
QLD
See section 11. The lease is entered into on the earlier of the date on which the lease is signed by all of the parties, or the date on which the tenant enters into possession or the date the tenant first pays rent under the lease (other than as a deposit to secure the premises for the lease).
SA
See section 6. Similar to NSW.
TAS
See section 17. Rent and outgoings are to commence from the date of handing over possession with all finishes provided by the landlord in accordance with the lease, unless otherwise agreed.
VIC
See section 7. A retail premises lease is entered into when either:
- under the lease, the tenant enters into possession of the premises with the consent of the landlord; or
- the tenant begins to pay rent; or
- the lease has been signed by all parties,
whichever occurs first.
WA
See section 3(4). A retail shop lease is entered into when:
- under the retail shop lease the tenant enters into possession; or
- the tenant commences paying rent; or
- if the retail shop lease is in writing, both parties sign the lease,
whichever occurs first.
As noted above the definition of "lease" in the Act is very wide.
This is relevant, for example, for ascertaining whether a DS has been duly given under section 6 before the lease was entered into (even if the commencement date is some time in the future).
Definitions and currency