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This is a Bill, not an Act. For current law, see the Acts databases.
PARLIAMENT OF VICTORIA
Retail Leases Amendment Bill 2019
TABLE OF PROVISIONS
Clause Page
Part 1--Preliminary 1
1 Purposes 1
2 Commencement 2
Part 2--Amendment of Building Act 1993 3
3 Occupier or registered mortgagee may carry out work 3
Part 3--Amendment of Retail Leases Act 2003 5
Division 1--Essential safety measures 5
4 Definitions 5
5 Meaning of outgoings to which a tenant contributes 5
6 Capital costs not recoverable 5
7 Landlord's liability for repairs 6
8 New Part 15 inserted 7
Division 2--Other matters 8
9 Provision of landlord's disclosure statement and proposed lease 8
10 Security deposits 9
11 Landlord's disclosure on renewal of lease 9
12 Landlord to give tenant certain information before option to
renew lease expires 9
13 New sections 28A and 28B inserted 11
14 New sections 123 to 125 inserted 13
Part 4--Repeal of this Act 15
15 Repeal of this Act 15
═════════════
Endnotes 16
1 General information 16
591043B.I-29/10/2019 i BILL LA INTRODUCTION 29/10/2019
PARLIAMENT OF VICTORIA
Introduced in the Assembly
Retail Leases Amendment Bill 2019
A Bill for an Act to amend the Building Act 1993 and the Retail
Leases Act 2003 in relation to the obligations of landlords and tenants
under retail premises leases in respect of essential safety measures and
various other matters and for other purposes.
The Parliament of Victoria enacts:
Part 1--Preliminary
1 Purposes
The purposes of this Act are--
(a) to amend the Building Act 1993 to clarify
5 the obligations of landlords and tenants
under retail premises leases in respect of
essential safety measures; and
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Retail Leases Amendment Bill 2019
Part 1--Preliminary
(b) to amend the Retail Leases Act 2003--
(i) to clarify the obligations of landlords
and tenants under retail premises leases
in respect of essential safety measures;
5 and
(ii) to require landlords to give information
to tenants under retail premises leases
in a more timely manner; and
(iii) to clarify the timeframe within which
10 landlords must return security deposits
to tenants under retail premises leases;
and
(iv) to create a new early rent review
process for tenants under retail
15 premises leases; and
(v) to establish a cooling off period for the
renewal of retail premises leases in
certain circumstances.
2 Commencement
20 (1) This Act (except Division 2 of Part 3) comes into
operation on the day after the day on which it
receives the Royal Assent.
(2) Subject to subsection (3), Division 2 of Part 3
comes into operation on a day or days to be
25 proclaimed.
(3) If a provision referred to in subsection (2) does
not come into operation before 1 October 2020, it
comes into operation on that day.
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Retail Leases Amendment Bill 2019
Part 2--Amendment of Building Act 1993
Part 2--Amendment of Building Act 1993
3 Occupier or registered mortgagee may carry out
work
(1) In section 251(2) of the Building Act 1993, for
5 "An" substitute "Subject to subsection (2A), an".
(2) After section 251(2) of the Building Act 1993
insert--
"(2A) An occupier cannot recover from the owner,
or deduct from or set off against any rent due
10 or to become due to the owner, any expenses
incurred by the carrying out, in respect of an
essential safety measure, of repairs or
maintenance work or an installation referred
to in section 41(2)(b)(ii) of the Retail Leases
15 Act 2003, if the occupier has agreed to bear
the expenses under a retail premises lease to
which that Act applies.".
(3) In section 251(6) of the Building Act 1993, for
"contrary." substitute "contrary, other than an
20 agreement about the cost of the carrying out, in
respect of an essential safety measure, of repairs
or maintenance work or an installation referred to
in section 41(2)(b)(ii) of the Retail Leases
Act 2003 under a retail premises lease to which
25 that Act applies.".
(4) After section 251(6) of the Building Act 1993
insert--
"(7) In this section--
essential safety measure has the same
30 meaning as in the Building
Regulations 2018 or any subsequent
corresponding regulations;
Note
See section 30 of the Interpretation of
35 Legislation Act 1984.
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Retail Leases Amendment Bill 2019
Part 2--Amendment of Building Act 1993
lease has the same meaning as in the Retail
Leases Act 2003;
retail premises has the same meaning as in
the Retail Leases Act 2003.".
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Retail Leases Amendment Bill 2019
Part 3--Amendment of Retail Leases Act 2003
Part 3--Amendment of Retail Leases
Act 2003
Division 1--Essential safety measures
4 Definitions
5 (1) In section 3 of the Retail Leases Act 2003 insert
the following definition--
"essential safety measure has the same meaning
as in the Building Regulations 2018 or any
subsequent corresponding regulations;
10 Note
See section 30 of the Interpretation of Legislation
Act 1984.".
(2) In section 3 of the Retail Leases Act 2003, in
paragraph (a) of the definition of outgoings, after
15 "expenses" insert "(including the cost, or part of
the cost, of repairs or maintenance work in respect
of an essential safety measure or an installation
referred to in section 41(2)(b)(ii))".
5 Meaning of outgoings to which a tenant contributes
20 At the end of section 29 of the Retail Leases
Act 2003 insert--
"Note
The term outgoings is defined in section 3 and includes the
cost, or part of the cost, of repairs or maintenance work in
25 respect of an essential safety measure or an installation
referred to in section 41(2)(b)(ii).".
6 Capital costs not recoverable
For section 41(2) of the Retail Leases Act 2003
substitute--
30 "(2) Subsection (1) does not operate to render
void a provision in a retail premises lease
that--
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Retail Leases Amendment Bill 2019
Part 3--Amendment of Retail Leases Act 2003
(a) requires the tenant to undertake capital
works at the tenant's own cost; or
(b) in respect of an essential safety
measure, requires the tenant to pay for
5 the cost, or part of the cost, of carrying
out--
(i) repairs or maintenance work; or
(ii) an installation relating to fit out of
the retail premises for which the
10 tenant has agreed to pay.".
7 Landlord's liability for repairs
After section 52(5) of the Retail Leases Act 2003
insert--
"(6) The tenant may agree with the landlord to
15 carry out, or cause to be carried out, repairs
or maintenance work in respect of an
essential safety measure on behalf of the
landlord.
(7) If the tenant carries out, or causes to be
20 carried out, any work or thing in respect of
an essential safety measure on behalf of the
landlord, that work or thing done does not
affect any obligation of the landlord as an
owner of the building to comply with any
25 requirement under the Building Act 1993 or
regulations made under that Act.
(8) This section does not limit any obligation of
a tenant under a retail premises lease to
contribute to outgoings for repairs or
30 maintenance work in respect of an essential
safety measure.".
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Retail Leases Amendment Bill 2019
Part 3--Amendment of Retail Leases Act 2003
8 New Part 15 inserted
After Part 14 of the Retail Leases Act 2003
insert--
"Part 15--Transitional
5 provisions--Retail Leases
Amendment Act 2019
122 Validation of retail premises leases in
respect of essential safety measures
(1) This section applies to a retail premises lease
10 that--
(a) was entered into before the date on
which Division 1 of Part 3 of the Retail
Leases Amendment Act 2019 comes
into operation and is in force on that
15 date; and
(b) contains a provision to the effect that
the tenant must pay the landlord, as a
contribution to outgoings, for the cost,
or part of the cost, of installation,
20 repairs or maintenance work in respect
of an essential safety measure.
(2) The retail premises lease has, in respect of
outgoings referred to in subsection (1)(b)
incurred on or after the commencement day,
25 the same force and effect as it would have
had if Division 1 of Part 3 of the Retail
Leases Amendment Act 2019 had been in
operation at the time the lease was entered
into.
30 (3) In this section--
commencement day means the day on which
section 8 of the Retail Leases
Amendment Act 2019 comes into
operation.".
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Retail Leases Amendment Bill 2019
Part 3--Amendment of Retail Leases Act 2003
Division 2--Other matters
9 Provision of landlord's disclosure statement and
proposed lease
(1) For the heading to section 17 of the Retail Leases
5 Act 2003 substitute--
"Provision of landlord's disclosure statement
and proposed lease".
(2) For section 17(1) of the Retail Leases Act 2003
substitute--
10 "(1) The landlord, at least 14 days before entering
into a retail premises lease, must give the
tenant--
(a) a disclosure statement in the prescribed
form (but the layout of the statement
15 need not be the same as the prescribed
disclosure statement); and
(b) a copy of the proposed lease in writing,
including particulars of the tenant, the
rent and the term of the proposed
20 lease.".
(3) After section 17(1A) of the Retail Leases
Act 2003 insert--
"(1B) If the proposed lease given to the tenant
contains any changes to the previous copy of
25 the lease given to the tenant, the landlord
must notify the tenant of the changes when
the proposed lease is given to them.
Penalty: In the case of a natural person,
50 penalty units;
30 In the case of a body corporate,
250 penalty units.
(1C) If the landlord gives the tenant the disclosure
statement and proposed lease less than
14 days before the lease is to be entered into,
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Retail Leases Amendment Bill 2019
Part 3--Amendment of Retail Leases Act 2003
the term of the lease is taken to commence
14 days after the disclosure statement and
proposed lease are given to the tenant.".
(4) In section 17(7) of the Retail Leases Act 2003
5 omit "substantially".
10 Security deposits
In section 24(1)(d) of the Retail Leases Act 2003,
for "as soon as practicable" substitute "within
30 days".
10 11 Landlord's disclosure on renewal of lease
For section 26(2) of the Retail Leases Act 2003
substitute--
"(2) The disclosure statement referred to in
subsection (1)--
15 (a) must set out any changes to the
previous disclosure statement given to
the tenant in respect of the lease; and
(b) must include information that is current
from a specified date that is within
20 3 months before the statement is
given.".
12 Landlord to give tenant certain information before
option to renew lease expires
(1) For the heading to section 28 of the Retail Leases
25 Act 2003 substitute--
"Landlord to give tenant certain information
before option to renew lease expires".
(2) For section 28(1) of the Retail Leases Act 2003
substitute--
30 "(1) This section applies if a retail premises lease
contains an option exercisable by the tenant
to renew the lease for a further term.
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Retail Leases Amendment Bill 2019
Part 3--Amendment of Retail Leases Act 2003
(1A) The landlord, at least 3 months before the
last date that an option to renew the lease
may be exercised, must give the tenant
written notice setting out--
5 (a) the date by which the option to renew
the lease may be exercised by the
tenant; and
(b) the rent payable for the first 12 months
under any renewed term of the lease;
10 and
(c) the availability of an early rent review
under section 28A; and
(d) the availability of a cooling off period
under section 28B; and
15 (e) any changes to the most recent
disclosure statement provided to the
tenant, other than any changes in
relation to rent.".
(3) In section 28(2) of the Retail Leases Act 2003,
20 for "If subsection (1) requires the landlord to
notify the tenant but the landlord fails to do so
within the time specified by that subsection"
substitute "If the landlord fails to give the tenant
all of the information required by subsection (1A)
25 or to give written notice within the time specified
by that subsection".
(4) In section 28(2)(a) of the Retail Leases Act 2003,
for "6 months" substitute "3 months".
(5) For section 28(2)(b) of the Retail Leases
30 Act 2003 substitute--
"(b) subject to subsections (2A) and (2B), if that
date is after the term of the lease ends, the
lease continues until that date on the same
terms and conditions as applied immediately
591043B.I-29/10/2019 10 BILL LA INTRODUCTION 29/10/2019
Retail Leases Amendment Bill 2019
Part 3--Amendment of Retail Leases Act 2003
before the lease term ends, unless the
landlord and tenant otherwise agree; and".
(6) After section 28(2) of the Retail Leases Act 2003
insert--
5 "(2A) If the tenant requests an early rent review
under section 28A and the rent determination
under that review is less than the rent
payable under the lease during a term
extended under subsection (2)(b), the rent
10 payable during the extended term is to be
equal to the rent determination.
(2B) If the tenant does not request an early rent
review under section 28A but the rent
specified in a written notice under
15 subsection (1A) is less than the rent payable
under the lease during a term extended under
subsection (2)(b), the rent payable during the
extended term is to be equal to the rent
specified in the notice.".
20 13 New sections 28A and 28B inserted
After section 28 of the Retail Leases Act 2003
insert--
"28A Early rent reviews
(1) If a retail premises lease provides for a rent
25 review to be made on the basis of the current
market rent of the premises, the tenant may
request the landlord for an early rent review
in accordance with this section.
Note
30 For reviews based on the current market rent of the
retail premises, see section 37.
(2) The tenant may request an early rent review
by giving the landlord written notice of the
request within 28 days after the landlord
35 gives notice under section 28(1A).
591043B.I-29/10/2019 11 BILL LA INTRODUCTION 29/10/2019
Retail Leases Amendment Bill 2019
Part 3--Amendment of Retail Leases Act 2003
(3) The tenant must notify the landlord in
writing as to whether the tenant exercises the
option to renew the lease on or before the
last date that the option to renew the lease
5 may be exercised.
(4) If a specialist retail valuer is appointed to
determine the current market rent but the
tenant is not notified of the rent
determination at least 14 days before the last
10 date that the option to renew the lease may
be exercised, that date is extended to 14 days
after the date on which the tenant is notified.
(5) If the tenant exercises the option to renew
the lease, but the last date that the option
15 may be exercised is extended under
subsection (4) until after the lease term ends,
the term of the lease is extended on the same
terms and conditions to that date, unless the
landlord and tenant otherwise agree.
20 (6) If the tenant does not exercise the option to
renew the lease, and the date that is 3 months
after the last date that the option to renew the
lease may be exercised is after the lease term
ends, the term of the lease is extended on the
25 same terms and conditions to that date,
unless the landlord and tenant otherwise
agree.
(7) Despite subsections (5) and (6), if the rent
determination under an early rent review is
30 less than the rent payable under the lease
during an extended term, the rent payable
during the extended term is to be equal to the
rent determination.
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Retail Leases Amendment Bill 2019
Part 3--Amendment of Retail Leases Act 2003
28B Cooling off period--option to renew lease
(1) If a tenant has exercised an option to renew a
retail premises lease and has not requested an
early rent review under section 28A, the
5 tenant may give the landlord a written notice,
in the cooling off period, that the tenant no
longer wishes to exercise that option to
renew the lease.
(2) If the tenant gives the landlord a notice under
10 subsection (1)--
(a) the term of the lease is extended by
14 days; and
(b) the lease is not, and is taken not to have
been, renewed; and
15 (c) the tenant is not able to exercise an
option to renew the lease.
(3) In this section--
cooling off period, in relation to a retail
premises lease, means the period
20 ending 14 days after the day on which
the tenant exercises an option to renew
the lease.".
14 New sections 123 to 125 inserted
After section 122 of the Retail Leases Act 2003
25 insert--
"123 Security deposits
The amendments made to this Act by
section 10 of the Retail Leases Amendment
Act 2019 apply to a retail premises lease
30 entered into and in operation immediately
before the day on which that section comes
into operation.
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Retail Leases Amendment Bill 2019
Part 3--Amendment of Retail Leases Act 2003
124 Disclosure statements on renewal of leases
The amendments made to this Act by
section 11 of the Retail Leases Amendment
Act 2019 apply to a retail premises lease
5 entered into and in operation immediately
before the day on which that section comes
into operation (unless there are less than
21 days before the end of the current term of
the lease).
10 125 Information to be given to tenants before
options to renew expire
The amendments made to this Act by
section 12 of the Retail Leases Amendment
Act 2019 apply to a retail premises lease
15 entered into and in operation immediately
before the day on which that section comes
into operation (unless there are less than
3 months before the last date that the option
to renew the lease may be exercised).".
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Retail Leases Amendment Bill 2019
Part 4--Repeal of this Act
Part 4--Repeal of this Act
15 Repeal of this Act
This Act is repealed on 1 October 2021.
Note
5 The repeal of this Act does not affect the continuing operation of
the amendments made by it (see section 15(1) of the
Interpretation of Legislation Act 1984).
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Retail Leases Amendment Bill 2019
Endnotes
Endnotes
1 General information
See www.legislation.vic.gov.au for Victorian Bills, Acts and current
authorised versions of legislation and up-to-date legislative information.
By Authority. Government Printer for the State of Victoria.
591043B.I-29/10/2019 16 BILL LA INTRODUCTION 29/10/2019
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