Retail Leases Act 2022

Retail Leases Act 2022

This Act may be cited as the Retail Leases Act 2022.

Except as provided in subsection (2), the provisions of this Act commence on a day or days to be proclaimed.

This section and section 88 commence on the day on which this Act receives the Royal Assent if the Royal Assent is received on or before 31 December 2022.

The objects of this Act are to facilitate –

the certainty and fairness of retail premises leasing arrangements between landlords and tenants; and the mechanisms available to resolve disputes concerning retail leases; and the certainty and fairness of certain other aspects of retail leases.

This Act binds the Crown in right of Tasmania and, so far as the legislative power of Parliament permits, in all its other capacities.

The common law in relation to retail leases remains in force to the extent to which it is not inconsistent with this Act.

A person is entitled to exercise any rights that the person may have at common law in relation to retail leases, except to the extent to which this Act provides otherwise.

In this Act, unless the contrary intention appears –

accounting period, in relation to a retail lease, means the period specified in the lease as the accounting period for the purposes of the lease;

assignment, in relation to a retail lease – includes a sublease of the whole or a part of the retail premises referred to in the retail lease; and is taken to be a continuation of the retail lease and not the entering into of a new retail lease;

auditor means – a person who is – a registered company within the meaning of the Corporations Act; and a member of the Chartered Accountants Australia and New Zealand or the Australian Society of Certified Practising Accountants; or a person who is specified, in a determination made for the purposes of this definition, as an auditor for the purposes of this Act;

authorised person means – the Director; and a person who is specified, in a determination made for the purposes of this definition, as an authorised person for the purposes of this Act; and an authorized officer within the meaning of the Consumer Affairs Act 1988;

base rent– see section 48;

code of practice means a code of practice for retail leases determined in accordance with section 18;

current market rent– see section 43;

determination, in relation to a matter, means a determination of the Director made under section 16 in respect of the matter;

Director means the Director of Consumer Affairs and Fair Trading appointed under the Consumer Affairs Act 1988;

excluded premises means premises, or a class of premises, that are prescribed as being excluded from the definition of retail premises;

function includes a power, an authority and a duty;

key-money means money that a tenant is to pay, or a benefit that a tenant is to give, that is – by way of a premium, or something similar in nature to a premium, in that there is no real consideration or no true consideration given for the payment or benefit; and in consideration of – a lease being granted or an agreement being made to grant a lease; or the variation of a lease; or the renewal of a lease or the granting of an option for the renewal of a lease; or consent being given to the assignment of a lease or to the sub-leasing of the premises to which a lease relates;

landlord, in relation to a retail lease, means the person who grants or proposes to grant the right to occupy retail premises under the retail lease, and includes – a sublandlord; and a landlord’s or sublandlord’s heirs, executors, administrators and assigns; and a prospective landlord or a former landlord;

landlord’s disclosure statement– see section 23;

lettable area means the area of retail premises, measured in square metres and set out in a retail lease, that is the area for which a tenant pays rent under the retail lease;

mediator means a person appointed as a mediator in accordance with section 74;

option means an option contained in a retail lease for a further lease on substantially the same terms and conditions as the lease;

party, in relation to a retail lease, means the landlord, or the tenant, under the lease;

regulations means regulations made under this Act;

renewal, in relation to a retail lease – see section 60;

retail lease or lease means an agreement under which a person grants or agrees to grant to another person, for valuable consideration, a right of occupation of premises for the use of the premises as retail premises – whether or not the right of occupation is an exclusive right to occupy the retail premises; and whether the agreement is express or implied;

retail leases guide means a retail leases guide determined in accordance with section 21;

retail premises means premises, other than excluded premises, that are used, or proposed to be used – wholly or predominantly for the carrying on of any one or more of the businesses, or class of businesses, prescribed for the purposes of this definition (whether or not that business, or class of businesses, is carried on in a retail shopping centre); or for the carrying on of any business in a retail shopping centre;

retail shopping centre means a cluster of 5 or more premises that has all of the following attributes:at least 5 of the premises are retail premises; the premises are all owned by the same person or have (or if leased would have) the same landlord; the premises are located – in a single building; or in 2 or more buildings that are – adjoining; or separated only by common areas or other areas owned by the owner of the premises; or separated only by a road or walkway; the cluster of premises is promoted as, or generally regarded as constituting, a shopping centre, shopping mall, shopping court, shopping plaza or shopping arcade;

sinking fund means a fund into which a tenant is required to make regular payments to cover the costs associated with the capital or structural maintenance of, or repairs to, any area, building, plant or equipment associated with the retail premises;

specialist retail valuer means a person who is specified, in a determination made for the purposes of this definition, as a specialist retail valuer for the purposes of this Act;

special rent– see section 47;

tenant means the person who has the right to occupy retail premises under a retail lease, and includes – a sublessee; and a prospective lessee or a former lessee;

turnover rent– see section 46;

valuer means – a person who – is a member of the Australian Property Institute; and has expertise in determining the market value of rentals of the kind referred to in section 43 or 44; and has at least 5 years' experience in retail premises valuations in Tasmania; or a person who is specified, in a determination made for the purposes of this definition, as a valuer for the purposes of this Act.

For the purposes of this Act, a retail lease is taken to have been entered into or assigned when –

under the lease or assignment, the tenant enters into possession of the retail premises with the consent of the landlord; or under the lease or assignment, the tenant begins to pay rent for the retail premises; or the lease or assignment has been signed by all of the parties to the lease –

whichever occurs first.

Subject to section 9, this Act does not apply to – a lease of retail premises with a lettable area of more than 1 000 square metres; or a lease of premises if the premises are not retail premises at the time at which the retail lease is entered into or is renewed; or a retail lease for a term of less than 6 months, where there is no right for the tenant to extend the lease (whether by means of an option to extend or to renew the lease or otherwise); or subject to subsections (2) and (3), a retail lease entered into, or renewed, before the commencement of this section.

The Fair Trading (Code of Practice for Retail Tenancies) Regulations 1998, as in force immediately before this section commences – subject to subsection (3), continue to apply to a lease, within the meaning of those regulations, referred to in subsection (1)(d) and to which those regulations applied immediately before the commencement of this section; and are taken to remain in force in respect of a lease referred to in paragraph (a) if those regulations are rescinded while this section applies to such a lease.

Despite subsection (1), the regulations may prescribe that any one or more of the provisions of this Act apply in respect of a lease, or class of leases, specified in subsection (1)(d).

Subject to section 8, this Act applies to a retail lease that is – entered into on or after the commencement of this section; or a lease in a prescribed class of leases.

Despite section 8(1)(c), this Act applies to a retail lease, on and from the day on which the tenant has continuously been in possession of the retail premises for 6 months, if – the term of the retail lease is less than 6 months; and the tenant is continuously in possession of the retail premises for 6 months or more under the lease because of the retail lease being renewed one or more times or being continued (or both).

Despite section 8(1)(d), this Act applies to retail premises if the premises are occupied – before the commencement of this section; and in anticipation of the signing of a retail lease on or after the commencement of this section.

Subject to this Part, this Act applies to a lease that provides for the occupation of retail premises that are located in Tasmania regardless of –

where the retail lease is entered into; and whether the retail lease purports to be governed by a law other than a law of Tasmania.

If, under this Act, a duty is imposed, or an entitlement is conferred, on a landlord or on a tenant under a retail lease, the duty or the entitlement is taken to be included in the retail lease.