ACT
See sections 131-132. The landlord may recover advertising and promotion levies only if a marketing plan with expenditure details is made available to the tenant:
- before the lease is entered into in respect of the landlord's first accounting period; and
- at least 1 month before each subsequent accounting period.
There is a similar requirement for opening promotions.
NSW
See section 52. Provisions in the lease requiring the tenant to undertake any advertising or promotion of the tenant's business are void.
NT
See section 68 - similar to NSW.
Does not apply to a provision in a lease that requires a payment to the landlord for advertising and promotion costs incurred or to be incurred by the landlord.
QLD
See section 40A-41. If the tenant is required to contribute to the promotion and advertising of the centre and the promotion amounts are not treated as part of outgoings under the lease, the landlord may only apply promotion amounts for promotion and advertising directly attributable to the centre. However, the moneys may also be applied for joint promotions and advertising with other RSCs.
The landlord must provide the tenant with an audited annual statement within 3 months after the end of the accounting period. It must be prepared by a registered auditor and contain the auditor's opinion on whether the statement presents fairly the lessor's expenditure during the accounting period for promotion amounts.
Any amount not spent must be carried forward for spending on promotion and advertising of the centre.
SA
See section 53. Similar to NSW.
TAS
See section 34. The landlord cannot charge a tenant for advertising or promotion costs incurred in the promotion of the landlord only. However, if the landlord does charge the tenant other advertising or promotion costs, then the landlord must provide an annual marketing plan, including a budget, to the tenant. The landlord may not require the tenant to undertake any advertising of the tenant's business in addition to the tenant's contribution to outgoings for advertising and promotion specified in the lease.
VIC
See section 69. Similar to NSW.
WA
No similar provision in WA to NSW section 52 provisions.
Section 12B governs contributions to marketing or promotion funds. Section 12B provisions are similar to those discussed above in relation to section 12A in "Sinking fund" .
The purpose of the fund must be specified in the lease.
The landlord may only apply the fund to the specified purpose and to taxes and imposts on the fund, and the cost of an end of accounting year audit by a registered company auditor and accountant.
The fund must be paid into one or more appropriately designated interest bearing accounts held by the landlord with a bank or financial society in WA.
Full and accurate accounts and records must be kept.
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).
A copy of the auditor's report must be distributed to a tenant within 3 months after the end of the relevant accounting period.
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.
Definitions and currency