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If you are a Retail Landlord or Tenant based in Queensland, amendments on 3 May 2022 have been passed into law to the Retail Shop Leases Act 1994 (Qld) (“the Act”)

Retail Shop Leases

The Act will not apply to:

  • retail shops with a floor area greater than 1,000 square metres;
  • leases of common areas in a retail shopping centre for ATMs and vending machines; and
  • leases of premises in a retail shopping centre if 25% or less of the total area of the building (or level if a multi-level building) is used by retail businesses.

A summary of the latest amendments have been itemised below:

DISCLOSURE OBLIGATIONS

  1. Now Landlords must provide a Lessor Disclosure Statement seven (7) days after a Tenant confirms they are exercising their Retail Lease Option. If the Landlord fails to provide a Disclosure Notice, the Tenant is able to terminate their option within the first six (6) months of the option period. The requirement of Disclosure by the Landlord is new to the Act.
  2. A Tenant is also required to provide a Disclosure Statement to the Landlord within seven (7) days of entering possession of its Premises. They can also elect to waive their right to a seven (7) day disclosure period prior to entering into a lease (by providing a legal advice certificate and signed waiver).
  3. Any franchisor intending to enter into a new sub-lease or franchise agreement may now request that the Landlord provide them with an updated lessor disclosure statement and, the costs of which can be passed on by the landlord to the franchisor.
  4. In the sale of a business that contains a retail lease, a seller must give to any potential buyer an assignor disclosure statement and a copy of the lease as a minimum seven (7) days prior to the signing the business sale contract. This disclosure period can be waived by the potential buyer if they provide a waiver notice.

FINANCIAL CONSIDERATIONS

  1. Until a tenant receives an annual outgoings estimate and (or) audited outgoings statement as required, they may now withhold payment of outgoings.
  2. An outgoings estimate must provide a breakdown of any administration or centre management fees charged as an outgoing.
  3. If a tenant is required to contribute to a centre promotions fund, a landlord must make available its marketing plan detailing the intended expenditure prior to the start of each relevant accounting period.
  4. A landlord is no longer able to recover the cost of any fee for obtaining mortgagee’s consent to a lease from the tenant. They are however entitled to recover legal fees from a proposed tenant in the event that the tenant has requested the preparation of lease documents for signing, but ultimately elects not to proceed with the lease.
  5. The extent and frequency of the provision of turnover information is now a matter of negotiation between the parties, rather than monthly as previously mandated.

EXCLUSIONS

  1. Government tenants are excluded from the disclosure requirements of the Act.
  2. Major lessees (tenants of 5 or more retail premises) are able to opt out of the disclosure requirements and restrictions can also be placed on the type of rent reviews.

OTHER AMENDMENTS

  1. A personal guarantor of a retail lease is released from any liability to the landlord following an assignment of the lease to a new tenant, subject to the disclosure obligations relating to the assignment have been adhered to.
  2. Refurbishment provisions in leases must include general details of the nature, extent and timing of the refurbishment necessary, otherwise such provisions may not be able to be enforced.
  3. A landlord may also now limit its compensation liability for a planned disturbance that occurs within the first twelve (12) months of a retail lease, provided sufficient details of the planned disturbance are contained in a detailed written notice issued to the tenant prior to the entry into the lease. This will be of use to any landlords entering into any leases prior to or during a planned refurbishment or redevelopment.

Tenants and landlords should seek legal advice on what these changes will mean for new or existing leases and their individual rights and obligations under the Act.

Please contact Legalease Lawyers on 0402 121 124 for any of your Lease needs.