ACT
See section 70. No reference to sinking fund but the tenant can only be liable for "recoverable outgoings".
Recoverable outgoings means outgoings recoverable under section 70.
NSW
See sections 25-25B. Sinking funds are allowable, subject to contributions being limited to 5% of landlord's outgoings for a year and there being no contributions allowed where the fund is in credit by more than $250,000. There is a penalty imposed of up to 50 penalty units if the landlord accepts contributions in breach of the Act.
Any credit balance of a sinking fund must be placed into an interest bearing account. The landlord cannot use the sinking fund or any interest paid on the sinking fund for any purpose other than major items of repair and maintenance.
A landlord is liable to contribute any deficiency to a sinking fund for major items of repair or maintenance that arise from any failure by the landlord or a predecessor in title to apply amounts in the fund only for the purpose for which the fund was established.
The landlord must (within 3 months after the end of each accounting period) provide an expenditure statement and auditor's report.
NT
See sections 35-36 - similar to NSW.
The limitations of section 35 are deemed to be included in a lease where the lease provides for the establishment of a sinking fund. Maximum penalty: 50 penalty units.
See section 37. If the building or retail shopping centre in which the retail shop is located is destroyed or demolished or the retail shopping centre ceases to operate, the landlord must repay to each tenant liable to contribute to the sinking fund an amount equal to that proportion that the lettable area of the tenant's shop bears to the total lettable area of all the shops in respect of which contributions are required to be made to the fund.
See section 43(3). A provision in a retail shop lease is void to the extent that it requires the tenant to make a contribution to a sinking fund to provide for capital works.
QLD
See sections 7(3), 38 and 40. The landlord cannot recover from the tenant as outgoings, the landlord's contribution to a depreciation or sinking fund.
However, the tenant can be required to make separate contributions ("maintenance amounts") to a sinking fund, provided:
- contributions from all tenants to the sinking fund do not exceed 5% of the landlord's outgoings for a year; and
- no contributions are allowed where the fund is in credit of more than $100,000.
The landlord must pay maintenance amounts from the tenant into an interest bearing account, and may only apply amounts standing to the credit of the sinking fund and interest earned on it for major items of maintenance and repair.
The landlord must pay any deficiency attributable to a failure by the landlord or predecessor in title to apply the fund for the specified purposes only.
The landlord must comply with section 38A (see "Estimates of Outgoings"), including providing annual estimates and audited statements.
SA
See section 29. Similar to NSW.
However, section 29 does not limit contributions to 5% of the landlord's estimated outgoings. No reference to no contributions where fund over $250,000.
TAS
See section 18(5). The landlord may establish a sinking fund (defined in section 1) for major items of repair and maintenance, but the funds recovered from tenants must be paid into a separate account and only utilised for those purposes specified in the lease.
Under section 18(2)(b), the landlord cannot recover from the tenant any contribution by the landlord to a sinking fund.
VIC
See section 43. The landlord cannot recover from the tenant as outgoings, any contribution to a sinking fund to provide for capital works.
WA
See section 12A which applies to any retail shop lease. Note section 12(2) prohibition on capital costs recovery would also apply to sinking funds in an RSC.
The purpose of the sinking fund must be specified in the lease (section 12A(2)).
The landlord may only apply the sinking fund to the specified purpose and to taxes and imposts on the fund, the cost of an end of accounting year audit by a registered company auditor and accountant (section 12A(3)(b)).
The fund must be paid into 1 or more appropriately designated interest bearing accounts held by the landlord with a bank in WA (section 12A(3)(a)).
Full and accurate accounts and records must be kept (section 12A(3)(c)(i)).
At the end of each accounting year the accounts must be audited by an auditor who is a registered company auditor within the meaning of the Corporations Act 2001 (Cth) (section 12A(3)(c)(iii)).
A copy of the auditor's report must be distributed to the tenant within 3 months after the end of the relevant accounting period (section 12A(3)(c)(iv)).
If a tenant, within 3 years after the tenant receives the copy of the report referred to above, notifies the landlord that there is a deficiency in the fund due to any non-compliance of the foregoing obligations by the landlord (or by any predecessor of the landlord) then the landlord is liable for the deficiency (section 12A(5)).
Section 12A sets no limit on the level of contribution that may be recovered from a tenant (ie. whether by way or a percentage of the landlord's estimated operating expenses or by freezing payments if the accumulated fund exceeds a stipulated dollar figure).
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