Retail Leases Comparative Analysis

For a retail landlord or retail tenant, retail tenancy legislation can be a minefield, a trap for young players and a downright headache. The fact that each State has its own Act (each inconsistent with the other, and each inescapable), makes property managers long for a career move.

We have tried to make our job and yours easier by preparing a user-friendly analysis of retail tenancy legislation.

The analysis allows you to compare provisions of the legislation in one jurisdiction against legislation in other jurisdictions.

This update is current for all jurisdictions as at 1 January 2023, other than Victoria, which was updated on 15 April 2023 following the commencement of the Retail Leases Regulations 2023 (Vic).

Further changes are expected in the year ahead:

• In Tasmania, the new Retail Leases Act 2022 (Tas), drafted to modernise Tasmania’s regulation of retail leases and being the first substantive review since 1998, was assented to on 14 December 2022. Section 88 of the new Act is already in force, so that the current Fair Trading (Code of Practice for Retail Tenancies) Regulations 1998 (Tas) referred to in this analysis are still to be taken to be regulations under the Act until they are rescinded. The rest of the new Act, including provisions relating to disclosure requirements and the calculation and adjustment of rent, is due to commence on proclamation.
• The Western Australian Commercial Tenancy (Retail Shops) Agreements Act 1985 is currently the subject of a statutory review which commenced last year and is carried out every 5 years. The purpose of the statutory review is to seek feedback on the operation and effectiveness of the WA Act. The 2022 statutory review is currently at the public consultation and feedback stage, which formally closed on 31 August 2022. We expect to hear further throughout the course of 2023.

In some cases, State and Territory responses to COVID-19 may still have some historical relevance to retail leases, although any relevance would need to be considered on a case-by-case basis. Issues relating to COVID-19 rent relief claims are not included here.