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 (except for Victoria, which is current for 11 April 2023). However, there are changes coming 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1998 (Tas) referred to in this analysis are still to be taken to be regulations under the Act until they are rescinded.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. We will update this analysis once that has occurred.
- 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.
The changes to the Unfair Contract Terms regime are also relevant to retail leases, and landlords and tenants will need to take them into account in negotiations and dealings.
Clayton Utz has extensive expertise in acting for landlords and tenants on retail tenancy matters and on shopping centre and commercial property acquisitions, joint ventures, sales and development matters generally.
If we can assist you in any aspect of your retail business, or any other business, please refer to the Contacts page for the lawyers in your State.