Originally published in the November/December 2014 issue of National Newsagent. Written by Michael Cuda, ANF Leasing Specialist.
As a lease negotiator/advisor, I come across all manner of situations involving newsagents who are encountering problems with their landlords. In many cases these problems are actually simple misunderstandings on the part of newsagents, who are actually not that familiar with the terms and conditions of their lease.
However, there are some cases (and these situations are quite rare) where landlords simply are not abiding by the lease or relevant retail lease legislation.
In Australia, we are very fortunate to have specific retail lease legislation in place across all states and territories. This legislation details how lessees (retailers) and lessors (landlords) are to deal with each other in respect to all key aspects of lease negotiations.
The names of the various retail leases acts differ across the country:
- New South Wales – Retail Leases Act 1994.
- Queensland – Retail Shop Leases Act 1994.
- Victoria – Retail Leases Act 2003.
- Tasmania – Fair Trading (Code of Practice for Retail Tenancies) Regulations 1998.
- South Australia – Retail and Commercial Leases Act 1995.
- Western Australia – Commercial Tenancy (Retail Shops) Agreements Act 1985.
- Northern Territory – Business Tenancies (Fair Dealings) Act 2003.
- Australian Capital Territory – Leases (Commercial and Retail) Act 2001.
While there are differences between each of the Acts, they generally mirror each other insofar as their intent is to establish a level playing field to deal with landlords. They address issues such as rent reviews, minimum lease terms, lease options, outgoings, turnover rent, relocation, demolition plus many other matters.
If you lease your premises, it is really important that you are familiar with your own lease and the relevant legislation that applies to your state/territory. It is very easy to access your specific lease legislation, simply search the internet with any of the names above and you will be able to download the most current version of your Act. In all cases the legislation is written in plain English and quite easy to interpret. If you are currently involved in a dispute with your landlord or simply wish to clarify a particular matter, you might find that reading your Act will solve the problem.
There are cases where some of the content of a particular retail lease might contradict the relevant lease legislation, in most cases (but not all) the relevant retail lease legislation will override the lease. There are exceptions to this rule depending upon specific circumstances, so if you have a situation such as this, it is important to consult a good solicitor.
It is not widely known, but retail lease legislation that exists in Australia is quite unique, in fact North America and most other developed western nations in Europe do not have anywhere near the amount of protections have access to.
Given that this body of law protects retailers, it is important that you are aware of its existence and if possible, to become familiar with the contents—make it your friend.
For leasing advice contact Michael Cuda.