Lawyers - Business and Personal - South of Adelaide

REGULATIONS UNDER THE RETAIL AND COMMERCIAL LEASES ACT 1995

Retail and Commercial Leases Regulations 1995

being

No. 134 of 1995: Gaz. 29 June 1995, p. 3101¹

as varied by

No. 213 of 1996: Gaz. 12 September 1996, p. 1147²

No. 198 of 1997: Gaz. 4 September 1997, p. 630³

No. 245 of 1997: Gaz. 18 December 1997, p. 1711⁴

No. 250 of 1999: Gaz. 2 December 1999, p. 3085⁵

No. 5 of 2002: Gaz. 15 January 2002, p. 205⁶

¹Came into operation 30 June 1995: reg. 2.

²Came into operation 16 September 1996: reg. 2.

³Came into operation 6 October 1997: reg. 2.

⁴Came into operation 18 December 1997: reg. 2.

⁵Came into operation 2 December 1999: reg. 2.

⁶Came into operation 4 February 2002: reg. 2.

NOTE:

×Asterisks indicate repeal or deletion of text.

×Entries appearing in bold type indicate the amendments incorporated since the last consolidation.

×For the legislative history of the regulations see Appendix.

SUMMARY OF PROVISIONS

1.Citation

2.Commencement

3.Preliminary

4.Exclusions from application of Act

5.Disclosure statement

6.Minimum 5 year term

7.Warranty of fitness for purpose

7A.Certified exclusionary clause

7B.Exclusions from Part 4A Division 3 of Act

8.Land tax—Exclusion

9.Notice of request—Current market rent

9A.Assignor's disclosure statement

10.Trading hours—Prescribed procedure

11.Advisory Committee

12.Abandoned goods

13.Issues associated with Landlord and Tenant Act

SCHEDULE 1

Disclosure statement—regulation 5

SCHEDULE 2

Model certificate for exclusionary clause—regulation 7A

SCHEDULE 3

SCHEDULE 4

Regulation 9

SCHEDULE 4A

Assignor's disclosure statement—regulation 9A

SCHEDULE 5

APPENDIX

LEGISLATIVE HISTORY

Citation

1. These regulations may be cited as the Retail and Commercial Leases Regulations 1995.

Commencement

2. These regulations will come into operation on the day on which the Retail Shop Leases Act 1995 comes into operation.

Preliminary

3. (1) In these regulations—

"the Act" means the Retail and Commercial Leases Act 1995.

(2) A model form prescribed by these regulations is provided in order to assist in the operation of the Act and is not binding in a particular case.

Exclusions from application of Act

4. (1) Pursuant to section 4(3) of the Act, the following are excluded from the application of the Act:

(a)the agreement dated 29 November 1988 between the Treasurer of South Australia and the Port Dock Railway Museum (South Australia) Incorporated appointing Port Dock Railway Museum (South Australia) Incorporated as the operator of Port Dock Railway Museum;

(b)any retail shop lease to which the Aboriginal Lands Trust is a party as lessor;

(c)any retail shop lease to which Distribution Lessor Corporation, Generation Lessor Corporation or ETSA Transmission Corporation is a party as lessor.

(2) Pursuant to section 4(3) of the Act, any retail shop lease between—

(a)the occupier of a hotel owned or partially owned by—

(i)The South Australian Brewing Company Limited; or

(ii)S.A. Brewing Holdings Limited; or

(iii)S.A.B. Properties Limited; or

(iv)a wholly owned subsidiary company of any of those companies,

as lessee; and

(b)the owners of the hotel, as lessor,

is excluded from the application of sections 12, 13, 19, 20, 31, 32 and 33 of the Act.

(3) Pursuant to section 4(3) of the Act, any retail shop lease where the premises to which the lease relates comprise licensed premises within the meaning of the Liquor Licensing Act 1997 is excluded from the application of sections 18, 43, 44, 45, 45A and 46 of the Act.

(4) Pursuant to section 4(3) of the Act, any retail shop lease where the hours during which the premises to which the lease relates are open for business are fixed by or under the Liquor Licensing Act 1997 is excluded from the application of section 61 of the Act.

Disclosure statement

5. For the purposes of section 12(3a) of the Act, a disclosure statement must be presented in the form set out in Schedule 1.

Minimum 5 year term

6. * * * * * * * * * *

(2) Pursuant to section 20B(3)(f) of the Act, that section does not apply in the following additional cases:

(a)if the lessor is a body corporate and the lessee (or lessees) have a controlling interest in the body corporate; or

(b)if the lessor and the lessee are both bodies corporate and the same person (or persons) have a controlling interest in both bodies corporate; or

(c)if the lessee is the lessor's spouse, parent, grandparent, step-parent, child, grandchild, step-child, brother or sister, or the spouse of the lessor's child, grandchild, step-child, brother or sister.

Warranty of fitness for purpose

7. (1) For the purposes of section 18(2) of the Act, the warranty referred to in section 18(1) of the Act is excluded if the lessor specifically draws to the attention of the lessee, at the time that a disclosure statement is given to the lessee under section 12 of the Act, a notice in the form of schedule 3.

(2) The notice referred to in subregulation (1)—

(a)must be inserted in the disclosure statement immediately after that part of the statement that relates to other agreements or representations that may have been made in relation to the retail shop lease (ie., if the form in the schedule of the Act is used for the disclosure statement, at the end of that form); and

(b)must be printed in bold type.

Certified exclusionary clause

7A. For the purposes of section 20K(3) of the Act, the form set out in Schedule 2 is prescribed as a model form that a lawyer may use when providing a certificate for a certified exclusionary clause.

Exclusions from Part 4A Division 3 of Act

7B. Pursuant to section 20C(2)(d) of the Act, a lease is excluded from the ambit of Part 4A Division 3 of the Act if it is a lease of the whole or any part of premises known at the commencement of these regulations by the following descriptions:

(a)heritage levels 1, 3, 4, 5, 7, 8 and 9 of Shell House, 170 North Terrace, Adelaide;

(b)heritage levels 1, 3, 4, 5 and 7 of Goldsbrough House, 172 North Terrace, Adelaide;

(c)levels 7 to 12 (inclusive) of Terrace Towers, 178 North Terrace, Adelaide;

(d)Elizabeth House, Elizabeth City Centre, Elizabeth;

(e)Sidney Chambers, Elizabeth City Centre, Elizabeth;

(f)Raleigh Chambers, Elizabeth City Centre, Elizabeth;

(g)Windsor Building, Elizabeth City Centre, Elizabeth;

(h)levels 2 to 10 (inclusive) of Citi Centre Building, 145 Rundle Mall, Adelaide;

(i)first floor of North Adelaide Village, corner Archer and O'Connell Streets, North Adelaide;

(j)first floor of Southern Cross Arcade, 52-62 King William Street, Adelaide;

(k)levels 1 to 10 (inclusive) of AON House, 63 Pirie Street, Adelaide;

(l)levels 1 to 14 (inclusive) of Wyatt House, 115 Grenfell Street, Adelaide.

Land tax—Exclusion

8. For the purposes of subsection (3) of section 30 of the Act, 15 November 1990 is fixed for the purposes of that section.

Notice of request—Current market rent

9. For the purposes of subsection (1)(b) of section 36 of the Act, the form set out in schedule 4 is prescribed as a model form that a lessee may use when making a request under that section.

Assignor's disclosure statement

9A. For the purposes of section 45A of the Act, an assignor's disclosure statement must be presented in the form set out in Schedule 4A.

Trading hours—Prescribed procedure

10. For the purposes of subsection (1)(c) of section 61 of the Act, a ballot under that subsection must be conducted as follows:

(a)the proposed core trading hours must be incorporated into a resolution to be put at a meeting of the persons who are entitled to vote on the matter (see section 61(2) of the Act);

(b)the lessor and each lessee of a retail shop affected by the proposal must receive at least seven days notice of the meeting;

(c)the notice must be in writing and must—

(i)state the time and place at which the meeting will be held; and

(ii)set out the text of the resolution that is to be put to the meeting;

(d)a person who is entitled to vote at the meeting may, by written instrument, appoint another person to act as his or her proxy at the meeting;

(e)the person or persons who are proposing the resolution must make up, and provide at the meeting, ballot papers for the purposes of the ballot;

(f)the ballot papers must set out the text of the resolution and clearly indicate a place where a person who is voting may vote for, or against, the resolution;

(g)the persons present at the relevant meeting must appoint one of their number to preside at the meeting and to conduct the ballot;

(h)the person presiding at the meeting—

(i)may require that the ballot papers be altered or replaced before the ballot is conducted if he or she is dissatisfied with the form or content of the ballot papers, or otherwise considers that it is appropriate to take action under this provision; and

(ii)may decide any other question relevant to the conduct of the ballot;

(i)each person who casts a vote in the ballot is entitled to scrutinise the counting of votes.

Note:1.The core trading hours must not exceed 65 hours a week.

2.Core trading hours must be approved by a majority of at least 75% of the votes cast at the ballot.

3.Voting must be by secret ballot.

4.In the ballot, the lessor is entitled to one vote and the lessee of each retail shop affected by the proposal is entitled to one vote in respect of that shop.

Advisory Committee

11. (1) For the purposes of section 73(2) of the Act, the Retail Shop Leases Advisory Committee will be constituted by the Minister after consultation with—

(a)the Building Owners and Managers Association of Australia Ltd (South Australia); and

(b)the Retail Traders Association of SA Inc; and

(c)the Small Retailers Association of South Australia; and

(d)the Newsagents Association of South Australia Ltd; and

(e)Australian Small Business Association Ltd; and

(f)Westfield Shopping Centre Management Co. (SA) Pty Ltd; and

(g)the Commissioner.

(2) The Committee must meet at least twice a year.

Abandoned goods

12. For the purposes of section 76(3) of the Act, the notice set out in schedule 5 is prescribed.

Issues associated with Landlord and Tenant Act

13. (1) For the purposes of section 81(2)(a) of the Act, the following modifications to the Landlord and Tenant Act 1936 (the "former legislation") are prescribed:

(a)a reference to the Commercial Tribunal (including through the use of the definition "the Tribunal") is to be construed as a reference to the Civil (Consumer and Business) Division of the Magistrates Court;

(b)section 56 of the former legislation will be taken to have been replaced by the following provision:

Substantial monetary claims

56. (1) An action involving a claim arising under or in respect of a commercial tenancy agreement to which this Part applies or a related guarantee should be commenced before the Magistrates Court.

(2) An action before the Magistrates Court that involves a monetary claim for $10 000 or less will be taken to be a minor statutory proceeding under the Magistrates Court Act 1991.

(3) If an action before the Magistrates Court involves a monetary claim for an amount exceeding $30 000, the Magistrates Court must on the application of a party to the proceeding refer the proceeding to the District Court.

(4) If a proceeding is referred to the District Court, the Court has, in addition to the powers that it has apart from this section, the powers that the Magistrates Court has under this Part.

(5) In this section—

"Magistrates Court" means the Civil (Consumer and Business) Division of the Magistrates Court.;

(c)sections 59, 60, 61 and 65 of the former legislation will be taken to have been repealed;

(d)the following sections will be taken to be inserted after section 72 of the former legislation:

Unlawful threats

72A. A landlord or an agent of a landlord must not make threats to the effect that the landlord will not renew or extend the term of tenancy if the tenant exercises a right under this Act.

Penalty:Division 5 fine.

Vexatious acts

72B. A party to a commercial tenancy agreement must not, in connection with the exercise of a right or power under this Act or the agreement, engage in conduct that is, in all the circumstances, vexatious.

Penalty:Division 6 fine.

(2) Pursuant to section 81(3) of the Act, the following provisions of the Act apply to a retail shop lease entered into before the commencement of the Act:

(a)section 12 (Lessee to be given disclosure statement);

(b)section 13 (Lessee not required to pay undisclosed contributions);

(c)section 19 (Security bond);

(d)section 20 (Repayment of security);

(da)section 31(2) (Estimates and explanations of outgoings to be provided by lessor);

(e)section 52 (Statistical information to be made available to lessee);

(f)section 61 (Trading hours);

(g)Division 1 Part 9 (Mediation).

(3) Subregulations (1) and (2) do not affect any determination of core trading hours under the former legislation before the commencement of the Act and such a determination will have effect for the purposes of section 61 of the Act.

SCHEDULE 1

Disclosure statement—regulation 5

DISCLOSURE STATEMENT UNDER SECTION 12 OF RETAIL AND COMMERCIAL LEASES ACT 1995

INFORMATION FOR LESSEES

Please read the following information carefully.

What is a lease?

A lease is a very important document. It is a legally binding contract between the lessor (landlord) and the lessee (tenant). It set out the rights and obligations of the lessor and the lessee.

A document that binds the lessee to enter into a lease or to take a shop on lease for a renewed term should be treated as if it were the lease.

What should I look for in a lease?

The main features to consider are—

×the term of the lease;

×whether there is an option to renew or extend the lease (and the method of exercising any such option);

×the rent and the basis for rent reviews;

×the amounts that the lessee will have to pay in addition to rent eg fit out costs, maintenance and repair costs and shared operating expenses;

×the consequences of breaching a term of the lease.

Make sure you read the whole document and understand the obligations it will place on you, especially the extra charges in addition to rent that you will have to pay.

What information is the lessor required to give me?

The lessor must give you a copy of the proposed lease and this disclosure statement. The disclosure statement must contain the matters set out in section 12 of the Retail and Commercial Leases Act 1995.

What should I do before signing a lease or other binding document?

Do not sign until you understand exactly what your obligations under the lease will be.

Before signing a lease or other binding document, you should obtain independent legal and financial advice.

×You should discuss the lease (or any agreement for a lease) and the disclosure statement with your own lawyer or leasing adviser.

×You should seek advice about the financial commitments under the lease from your own accountant or recognised financial or business adviser.

×You should also seek advice from an association representing the interests of lessees.

Before signing a lease or other binding document, oral representations made by the lessor or the lessor's agent on which you have relied should be reduced to writing and signed by or on behalf of the lessor.

Before signing a lease or other binding document, the lessee should sign an acknowledgment of receipt of the disclosure statement.

ACKNOWLEDGMENT OF RECEIPT OF DISCLOSURE STATEMENT

I received a disclosure statement under section 12 of the Retail and Commercial Leases Act 1995

on.......................................................................................................................................................................................... [date]

from..................................................................................................................................................................... [name of lessor]

relating to ....................................................................................................................................................................................

......................................................................................................................................................... [address/description of shop]

Date:..............................................................................................................................................................................................

Lessee:

............................................................................................................................................................................................ [name]

........................................................................................................................................................................................................

......................................................................................................................................................................................... [address]

..................................................................................................................................................................................... [signature]

DISCLOSURE STATEMENT

Shop details

1.Shop to be leased:

[address and shop number]

2.Lettable area of shop:..................................................................................................................................... square metres

3.The shop may be used only for the following purposes:

4.[tick one box]

¨The shop is in a retail shopping centre within the meaning of the Retail and Commercial Leases Act 1995. See Appendix B for details.

¨The shop is not in a retail shopping centre within the meaning of the Retail and Commercial Leases Act 1995.

Lessor details

5.[tick one box and fill in details if required]

¨The lessor is the owner of the shop.

¨The lessor leases the shop. The following rights and obligations of the lessor under the lessor's lease are relevant to the proposed lease:

Term of lease and renewal or extension

NOTE: Part 4A of the Retail and Commercial Leases Act 1995 contains provisions that govern the term and renewal of certain leases. In some circumstances, Division 3 of Part 4A provides a preferential right of renewal of a lease of a shop in a shopping centre entered into on or after 6 October 1997.

6.Term of lease:..................................................................... to.................................................................................................

7.[tick one box and fill in details if required]

¨There is no right to renew or extend the term of the lease.

¨The lessee has a right to renew or extend the term of the lease as follows:

Lessee's access to shop

8.The lessee will have access to the shop during the following hours that fall outside trading hours:

9.The shop will be available for occupation by the lessee on:

Legal consequences of breach of lease

10.The legal consequences of breach of a term of the lease are set out in the following clauses of the lease:

The consequences of early termination of the lease by the lessee are as follows:

The consequences of other breaches are as follows:

[give brief descriptions]

Monetary obligations of lessee

11.The lessee's obligations to pay rent, capital expenditure, outgoings and other monetary amounts are set out in Appendix A.

Date:..............................................................................................................................................................................................

Lessor:...........................................................................................................................................................................................

APPENDIX A: MONETARY OBLIGATIONS OF LESSEE

PART 1—RENT

1.The base rent payable for the shop under the lease is:

[if a formula is used to calculate rent, insert the formula]

2.The base rent may be changed on the following basis: