Leases (Commercial and Retail) Act 2001

This Act is the Leases (Commercial and Retail) Act 2001.

A note included in this Act is explanatory and is not part of this Act.

Note See the Legislation Act, s 127 (1), (4) and (5) for the legal status of notes.

Part 2 Interpretation

The dictionary at the end of this Act is part of this Act.

Note 1 The dictionary at the end of this Act defines certain terms used in this Act, and includes references (signpost definitions) to other terms defined elsewhere in this Act or in other legislation.

For example, the signpost definition ‘certificate of occupancy—see the Building Act 2004, dictionary.’ means that the term ‘certificate of occupancy’ is defined in that dictionary and the definition applies to this Act.

Note 2 A definition in the dictionary (including a signpost definition) applies to the entire Act unless the definition, or another provision of the Act, provides otherwise or the contrary intention otherwise appears (see Legislation Act, s 155 and s 156 (1)).

If something is required to be done under this Act within a stated time before or after someone enters into a lease, the lease is taken to have been entered into when the earliest of the following happens:

the execution of the lease by the parties to it;

the entering into possession of the premises by the tenant under the lease.

A new lease is taken to be a renewal of another lease (the existing lease) for this Act if the new lease is between the same parties as the existing lease and relates to the same premises and the premises are to be put to the same or similar use.

This section does not apply to a renewal mentioned in section 16 (Application of Act to pre-existing leases on registration of units plans).

Premises under a lease or proposed lease are commercial premises if—

the permitted use of the premises under the lease or proposed lease is for commercial business; or

if there is nothing in the lease about the use the premises are to be put to—a commercial business may be carried on on the premises under the territory lease for land that includes the premises.

Premises under a lease or proposed lease are retail premises if—

the permitted use of the premises under the lease or proposed lease is for retail business; or

if there is nothing in the lease about the use the premises are to be put to—a retail business may be carried on on the premises under the lease granted under the territory lease for land that includes the premises.

In this section:

commercial business means a business not involving—

the sale or hire of goods by retail; or

the supply of services by retail.

retail business means a business involving—

the sale or hire of goods by retail; or

the supply of services by retail.

A shopping centre is a group of premises where—

at least 5 of the premises are—

retail premises; or

small commercial premises; or

premises prescribed by regulation for section 12 (1) (k); or

a mixture of the premises mentioned in subparagraphs (i) to (iii); and

the premises—

have, or would have if leased, the same lessor or same head lessor; or

are units in a single unit plan under the Unit Titles Act 2001 and are managed by a single person; and

the premises are—

in a single building; or

in buildings that adjoin, or are separated only by areas owned by the lessor of the premises; and

the group of premises is promoted as, or generally regarded as making up, a shopping centre, shopping mall, shopping court or shopping arcade.

In addition, a shopping centre is a group of premises prescribed by regulation for this subsection.

A lease for premises is a change of use lease if—

this Act did not apply to the lease when the lease was entered into; and

the permitted use of the premises changes during the lease term by agreement between the parties; and

this Act would have applied to the lease if the lease had had the changed use when it was entered into.

A continuous occupation lease is a lease for premises for a term of less than 6 months if—

the tenant was in occupation of the premises with the owner’s consent when the lease was entered into; and

the tenant has been in continuous occupation of the premises with the owner’s consent for at least 6 months.

However, a proposed lease is not a continuous occupation lease.

An excluded area is an area of a shopping centre—

without retail premises, small commercial premises and premises prescribed by regulation for section 12 (1) (k); and

that is geographically distinct (even if it is in the same building) from the areas in the shopping centre containing premises mentioned in paragraph (a).

However, an excluded area does not include a common area within the shopping centre adjacent to premises mentioned in subsection (1) (a).

Part 3 Application

This Act applies to a lease for premises, in the ACT, of the following kinds:

retail premises other than large excluded premises;

premises located in the retail area of a shopping centre other than large excluded premises;

small commercial premises;

premises under a lease to an association incorporated under the Associations Incorporation Act 1991, or an entity eligible to be incorporated under that Act, other than premises used for residential purposes;

premises under a lease to an unincorporated charitable entity, other than premises used for residential purposes;

premises under a lease that are used to provide a combination of business accommodation and secretarial services;

premises under a lease that are used as an education and care service or childcare centre;

premises under a lease that are used as a sports centre (other than premises covered by another paragraph);

premises under a lease that are used as an art gallery;

premises under a lease that are used as a gardening supply centre;

premises prescribed by regulation for this subsection.

Note Large excluded premises is defined at the end of the section, and small commercial premises is defined in the dictionary.

However, this Act does not apply to a lease if—

the lease is for premises prescribed by regulation for this paragraph; or

the lease is prescribed by regulation for this paragraph; or

the lease is for less than 6 months, unless the lease is a continuous occupation lease.

Also, section 139 (Changing core trading hours) applies in relation to each lease for premises in the retail area of a shopping centre.

For this section, it does not matter whether the lease was entered into outside the ACT or purports to be governed by the law of a jurisdiction other than the ACT.

For this section, a lease includes—

an agreement, whether in writing or not, that provides for the occupation of premises exclusively or otherwise, whether for a fixed term, periodically or at will; and

a sublease or licence.

However, a lease does not include—

an agreement relating to the common area of a shopping centre that would be included only because it provides for someone to use a part of the area; or

a territory lease; or

a land sublease; or

a lease of vacant land; or

a right to occupy land to build on the land.

For this section:

childcare centre includes a childcare centre within the meaning of the Children and Young People Act 2008, section 733.

education and care service—

means an education and care service within the meaning of the Education and Care Services National Law (ACT), section 5; but

does not include a family day care service within the meaning of the Education and Care Services National Law (ACT), section 5.

Note The Education and Care Services National Law (ACT) Act 2011, s 6 applies the Education and Care Services National Law set out in the Education and Care Services National Law Act 2010 (Vic), schedule as if it were an ACT law called the Education and Care Services National Law (ACT).

land sublease—see the Planning Act 2023, dictionary.

large excluded premises means premises with a lettable area larger than 1000m2 that are leased to a listed public company or a subsidiary of a listed public company.

If it is necessary to work out the lettable area of premises for this Act, the premises must be measured in a way, and by someone, agreed between the parties.

However, if the parties cannot agree how the premises are to be measured, the Magistrates Court may, on application by a party, decide the way in which the premises are to be measured or appoint someone to measure the premises.

Unless the Magistrates Court decides otherwise—

the lessor must pay for the first measurement of premises; and

the lessor and tenant must pay equal shares for any further measurement.