Retail Leases Amendment Regulations 2010
i
Retail Leases Amendment Regulations 2010
S.R. No. 91/2010
TABLE OF PROVISIONS
Regulation Page
1 Objective 1
2 Authorising provision 1
3 Commencement 1
4 Prescribed kind of outgoings and other costs 2
5 Disclosure statement 2
6 New Schedule 1 substituted 2
SCHEDULE 1—Disclosure Statement 2
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1
STATUTORY RULES 2010
S.R. No. 91/2010
Retail Leases Act 2003
Retail Leases Amendment Regulations 2010
The Governor in Council makes the following Regulations:
Dated: 14 September 2010
Responsible Minister:
JOE HELPER
Minister for Small Business
MATTHEW McBEATH
Clerk of the Executive Council
1 Objective
The objective of these Regulations is to amend the
Retail Leases Regulations 2003—
(a) to replace the disclosure statement prescribed
under those regulations for the purposes of
sections 17(1)(a), 26(1) and 61(5) of the
Retail Leases Act 2003; and
(b) to revoke regulation 7(1) of those
regulations; and
(c) to make a minor correction to regulation 8 of
those regulations.
2 Authorising provision
These Regulations are made under section 99 of
the Retail Leases Act 2003.
3 Commencement
These Regulations come into operation on
1 January 2011.
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4 Prescribed kind of outgoings and other costs
(1) For the heading to regulation 7 of the Retail
Leases Regulations 2003 1 substitute—
"Occupancy costs".
(2) Regulation 7(1) of the Retail Leases Regulations
2003 is revoked.
5 Disclosure statement
In regulation 8 of the Retail Leases Regulations
2003, for "and 61(4)" substitute ", 61(5)
and 61(5A)".
6 New Schedule 1 substituted
For Schedule 1 to the Retail Leases Regulations
2003 substitute—
"__________________
SCHEDULE 1
DISCLOSURE STATEMENT
by the landlord under the
Retail Leases Act 2003
NOTE
This statement is to be completed by the Landlord and should be provided to
the Tenant along with the Information Brochure about retail leases published
by the Small Business Commissioner and a copy of the lease at least 7 days
before the signing of a new lease. The Information Brochure is also available
at the Office of the Small Business Commissioner.
If the Tenant has exercised or is entitled to exercise an option to renew a
retail premises lease, the Landlord is required to provide this statement to the
Tenant at least 21 days before the end of the current term.
In the situation where all of the parties to a retail premises lease enter into an
agreement to renew the lease, the Landlord is required to provide this
statement to the Tenant at least 14 days after the entering into of the
agreement.
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The layout of this statement does not need to be the same as the prescribed
disclosure statement in the Retail Leases Regulations 2003.
It is prudent for a Tenant to obtain independent legal and financial advice
before entering into a retail premises lease.
The Tenant has remedies including termination of a lease under the Retail
Leases Act 2003 if information in this statement is misleading, false or
materially incomplete.
Information contained in this statement is correct as at the date of this
statement but may change after the date of this statement and during the term
of the lease.
DISCLOSURE STATEMENT
by the landlord
Landlord:
Tenant:
Premises:
CONTENTS
Key disclosure items
Part 1 Premises
Part 2 Term of lease and options to renew lease
Part 3 Works, fit out and refurbishment
Part 4 Rent
Part 5 Outgoings
Part 6 Other costs
Part 7 Alteration works (including renovations, extensions,
redevelopment, demolition)
Part 8 Trading hours
Part 9 Retail shopping centre details
Part 10 Other disclosures
Part 11 Landlord acknowledgements and signature
Part 12 Tenant acknowledgements and signature
Part 13 Attachments
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KEY DISCLOSURE ITEMS
1 Annual base rent under the lease
(see item 10.1)
$ p.a.
Including/Excluding GST
2 Is a rent based on turnover
payable by the tenant in year 1?
(see item 12)
Yes
No
3 Total estimated outgoings and
promotion and marketing costs
for the tenant in year 1
(see Part 5 and Part 6)
$
Including/Excluding GST
4 Term of the lease
(see item 5)
years months
5 Estimated commencement date of
the lease
(see item 5.1)
/ /20
6 Estimated handover date of the
premises
(see item 7.1)
/ /20
7 Does the tenant have an option to
renew for a further period
(exercised in writing and given to
the landlord on or before the last
day stated in the option clause)?
(see item 6)
Yes
No
8 Does the lease provide the tenant
with exclusivity in relation to the
permitted use of the premises?
(see item 2.2)
Yes
No
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PART 1 PREMISES
1 Premises details
1.1 Street address of premises
[insert street address of premises and, as applicable, shop
number, name of the building/centre in which the premises is
located, street address of the building/centre]
1.2 Plan of premises (if available)
[insert description of premises by reference to a prepared plan.
Attach the plan to this disclosure statement as per item 33.1]
1.3 Lettable area of premises
Will a survey be conducted?
m2
Actual/Estimate
Yes
No
1.4 Existing structures, fixtures, plant and equipment in the premises,
provided by the landlord (excluding any works, fit out and
refurbishment described in Part 3)
[Select as appropriate]
air conditioning
cool room
floor coverage
grease tap
hot water service
lighting
mechanical exhaust
painted walls
plastered walls
shop front
sink
sprinklers
suspended ceilings
telephone
water supply
waste
electrical distribution load (3 phase)
electrical distribution load (single phase)
separate utility meter—gas
separate utility meter—water
separate utility meter—electricity
other
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1.5 Services and facilities provided by the landlord for the benefit of
the premises (for example, security services, cleaning)
2 Permitted use
2.1 Description of permitted use
[note: the tenant should investigate if the proposed use of the
premises is permitted under planning laws]
2.2 Is the permitted use described in
item 2.1 exclusive to the tenant?
Yes
No
3 Number of car parking spaces
3.1 Approximate total spaces spaces
3.2 Available spaces for customers of
the building/centre
spaces
3.3 Reserved spaces for use of the
tenant only
spaces
4 Head lease
4.1 Is the premises under a head lease
or Crown lease?
Yes
No
4.2 Has the landlord provided a copy of
the head lease or Crown lease to the
tenant?
Yes—attached as per
item 33.2
No
Not applicable
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4.3 Current term under the head lease or Crown lease and option/s to
renew
Not applicable
Details of head lease as follows:
Current term:
years
/ /20 to / /20
Options to renew:
years
/ /20 to / /20
[list any options for further terms held by the landlord under the
head lease.]
4.4 Is the head landlord's consent to the
lease required?
Yes
No
PART 2 TERM OF LEASE AND OPTION/S TO RENEW LEASE
5 Term of lease
5.1 Date lease commences
(see also date of handover at
item 7)
/ /20
Actual/Estimate
5.2 Length of term years months
5.3 Date lease expires
(based on the date indicated at
item 5.1 as the date the lease
commences)
/ /20
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6 Option/s to renew lease
6.1 Option/s details
(note: an option to renew a lease must be exercised in writing and
given to the landlord on or before the last day stated in the option
clause of the lease)
No options to renew lease
Options as follows:
Length of option Period of option Exercise date
years
Actual/Estimate
years
Actual/Estimate
/ /20 to
/ /20
/ /20 to
/ /20
/ /20 to
/ /20
/ /20 to
/ /20
[List all options to renew lease]
PART 3 WORKS, FIT OUT AND REFURBISHMENT
7 Date of handover
7.1 Date of handover
(if different to the date the lease
commences indicated at item 5.1)
/ /20
Actual/Estimate
8 Landlord's works
8.1 Description of works to be carried out by the landlord before the
date the lease commences
[exclude any works that form part of the tenant's fit out at item 9]
8.2 Estimate of expected contribution
by the tenant towards the cost of the
landlord's works
$
[see also outgoings (item 14) in relation to any maintenance and
repair outgoings]
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9 Tenant's fit out works
9.1 Fit out works to be carried out by the tenant
(excluding the landlord's works at item 8)
9.2 Is the landlord providing any contribution towards the cost of the
tenant's fit out?
Yes
[insert details of landlord's contribution]
No
9.3 Does the landlord have requirements as to the quality and
standard of shop front and fit out?
Yes
[insert details or provide fit out guide]
No
PART 4 RENT
10 Annual base rent
10.1 Starting annual base rent
(i.e. when the lease commences)
$
Including/Excluding GST
10.2 Rent free period
[describe any rent free period]
10.3 Date of rent commencement / /20
10.4 How rent payments are to be made?
[insert description of how rent is paid—e.g. by equal monthly
instalments in advance on the first day of each month, other than
the first and last payments which are calculated on a pro-rata
basis]
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11 Rent adjustment (rent review)
11.1 Rent adjustment date(s) and adjustment method
[insert a list of all rent adjustment dates and adjustment methods
—e.g. fixed increase by X%, fixed increase by $X, current market
rent, indexed to CPI]
12 Rent based on turnover
12.1 Is a rent based on turnover payable by the tenant?
(Note, the lease must specify the method by which a rent based on
turnover is to be determined)
Yes
[insert method of calculating the turnover rent]
No
12.2 If a rent based on turnover is not
required to be paid, does the
landlord require the tenant to
provide details of turnover?
Yes
No
PART 5 OUTGOINGS
13 Contribution by tenant towards landlord's outgoings
13.1 Is the tenant required to pay or
contribute towards the landlords
outgoings?
Yes
No
13.2 Describe any period during which the tenant is not required to pay
outgoings
13.3 Date on which payment of
outgoings is to commence
/ /20
13.4 Formulae for apportioning outgoings
[insert formulae on how outgoings payable by tenant is to be
apportioned]
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14 Outgoings estimates (annual) for the 12 month period
/ /20 to / /20
[State which of the following are payable by the tenant.
The landlord may be prevented by the Retail Leases Act 2003
from claiming certain costs.]
Estimate (including GST)
per annum for the
building/centre
14.1 Administration
Administration costs (excluding
management fees and wages
Audit fees
Management fees
$
$
$
14.2 Air conditioning/temperature
control
air conditioning maintenance
air conditioning operating costs
$
$
14.3 Building/centre management
Body corporate/strata levies
Building intelligence services
Customer traffic flow services
Energy management services
Gardening and landscaping
Insurance
Pest control
Ventilation
$
$
$
$
$
$
$
$
14.4 Building/centre security
Caretaking
Emergency systems
Fire levy
Fire protection
Security services
$
$
$
$
$
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14.5 Cleaning
Cleaning consumables
Cleaning costs (excluding
consumables)
$
$
14.6 Communications
Post boxes
Public telephones
$
$
14.7 Customer facilities
Car parking
Child minding
Escalators
Lifts
Uniforms
$
$
$
$
$
14.8 Customer information services
Information directories
Public address/music
Signage
$
$
$
14.9 Government rates and charges
Local government rates and
charges
Water, sewerage and drainage
rates and charges
(Note: under section 50 of the
Retail Leases Act 2003, the
landlord may not claim land tax as
an outgoing)
$
$
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14.10 Repairs
Repairs and maintenance
Sinking fund for repairs and
maintenance
(Note: under section 41 of the
Retail Leases Act 2003, the
landlord may not claim the capital
costs of the building/centre in
which the premises are located)
$
$
14.11 Utility services
Electricity
Gas
Oil
Water
$
$
$
$
14.12 Waste management
Sewerage disposal
Waste collection and disposal
$
$
14.13 List any other outgoings
$
$
$
14.14 Total outgoings for the
building/centre
$
14.15 Formula for determining tenant's share of the total outgoings for
the building/centre
14.16 Estimated tenant contribution to
outgoings
$
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PART 6 OTHER COSTS
15 Advertising and promotional costs
15.1 Is the tenant required to contribute
towards advertising and
promotional costs (including
marketing fund contributions) for
the building/centre?
Yes
No
15.2 Tenant's contribution to advertising and promotional costs per
annum
Not applicable
Yes—contribution per annum is $ Actual/Estimate
Yes—contribution per annum is % of the rent
(excluding GST) payable from time to time
Yes [insert details of tenant's contribution per annum
and how this is determined]
16 Other monetary obligations and charges
16.1 Outline any costs arising under the
lease including up-front costs or
other costs not part of the outgoings
and not referred to elsewhere in this
disclosure statement
[e.g. interest and legal costs]
PART 7 ALTERATION WORKS (INCLUDING RENOVATIONS,
EXTENSIONS, REDEVELOPMENT, DEMOLITION)
17 Alteration works
17.1 Are there any alteration works, planned or known to the landlord
at this point in time, to the premises or building/centre, including
surrounding roads, during the term or any further term or terms?
Yes
[insert details of the proposed works]
No
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18 Clauses in lease dealing with relocation and demolition works
18.1 Clause(s) in lease providing for relocation of tenant
Clause(s) of the lease
Not applicable
18.2 Clause(s) in lease providing for demolition of the premises or
building/centre
Clause(s) of the lease
Not applicable
PART 8 TRADING HOURS
19 Core trading hours relevant to the tenant
Monday
Tuesday
Wednesday
Thursday
Friday
am to pm
am to pm
am to pm
am to pm
am to pm
Saturday
Sunday
am to pm
am to pm
Public holidays am to pm
20 Tenant access to premises outside core trading hours
20.1 Is the tenant permitted to access the premises and building/centre
outside core trading hours?
Yes
[provide details including cost of access]
No
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PART 9 RETAIL SHOPPING CENTRE DETAILS
[note: this Part must only be completed if the premises are in a retail
shopping centre as defined in section 3 of the Retail Leases Act 2003]
21 Retail shopping centre details
21.1 Total number of shops shops
21.2 Gross lettable area of the centre m2
Actual/Estimate
22 Annual turnover of the shopping centre
22.1 Annual estimated turnover
(where collected)
$
Including GST/
Excluding GST
22.2 Annual estimated turnover by
specialty shops per m2
(where collected)
Food
Non food
Services
$ per m2
Including GST/
Excluding GST
$ per m2
Including GST/
Excluding GST
$ per m2
Including GST/
Excluding GST
23 Major/anchor tenants
23.1 Major/anchor tenants and lease expiry dates
[list all major and anchor tenants (e.g. department stores,
discount department stores, supermarkets) and the dates on which
leases held by those tenants expire]
24 Floor plan and tenancy mix
24.1 Floor plan showing tenancy mix,
common areas, common area
trading, kiosks and major tenants
Attached as per
item 34.1
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24.2 Does the landlord assure the tenant
that the current tenant mix will not
be altered by the introduction of a
competitor?
Yes
No
25 Customer traffic flow information
25.1 Does the landlord collect customer
traffic flow information?
Yes—attached as per
item 34.2
No
26 Casual mall licensing for common areas
26.1 Do you adhere to the Shopping
Centre Council of Australia's
Casual Mall Licensing Code of
Practice?
Yes—casual mall
licensing policy
attached as per
item 34.3
No
PART 10 OTHER DISCLOSURES
27 Other disclosures
27.1 Are there any current legal proceedings in relation to the lawful
use of the premises or building/centre?
Yes
[provide details]
No
28 Representations by landlord
28.1 Any other representations by the landlord or the landlord's agent
[landlord to insert details of any other oral or written
representations made by the landlord or the landlord's agent]
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PART 11 LANDLORD ACKNOWLEDGEMENTS AND
SIGNATURE
29 Acknowledgements by landlord
By signing this disclosure statement, the landlord confirms and
acknowledges that:
● this disclosure statement contains all representations in relation to the
proposed lease by the landlord and the landlord's agents as at the date
of this disclosure statement;
● this disclosure statement reflects all agreements that have been made
by the parties;
● the landlord has not knowingly withheld information which is likely to
have an impact on the tenant's proposed business.
Warnings to landlord when completing this disclosure statement:
● The tenant may have remedies including termination of lease if the
information in this statement is misleading, false or materially
incomplete.
30 Landlord's signature
30.1 Name of landlord
[insert name of landlord]
30.2 Signed by the landlord or the landlord's agent for and on behalf of
the landlord
x................................................................
30.3 Name of the landlord's authorised representative or landlord's
agent
[insert name of person signing with the authority of the landlord]
30.4 Date / /20
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PART 12 TENANT ACKNOWLEDGEMENTS AND SIGNATURE
31 Acknowledgements by the tenant
By signing this disclosure statement, the tenant confirms and
acknowledges that the tenant received this disclosure statement
Before entering into a lease, tenants should consider these key
questions:
● Does the planning authority allow your proposed use for the premises
under planning law?
● Is the security of your occupancy affected by:
● mortgages, charges or encumbrances granted by the landlord?
● rights and obligations under a head lease?
● Does the premises comply with building and safety regulations? Is the
premises affected by outstanding notices by any authority?
● Could your trading be affected by disturbances or changes to the
building/centre?
● Does the landlord require you to refurbish the premises regularly or at
the end of the lease?
● Can the landlord end the lease early even if you comply with the
lease?
● Are all the existing structures, fixtures and plant and equipment in
good working order?
● Are you required to make good the premises at the end of the lease?
● Is the tenancy mix of the shopping centre (if applicable) likely to
change during the term of the lease? (see item 24.2)
32 Tenant's signature
It is important that a tenant seek independent legal and financial
advice before entering into a lease.
32.1 Name of tenant
[insert name of tenant]
32.2 Signed by the tenant or for and on behalf of the tenant
x......................................................................
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32.3 Name of the tenant's authorised representative
[insert name of person signing with the authority of the tenant]
32.4 Date / /20
PART 13 ATTACHMENTS
33 List of attachments
Attached?
33.1 Plan of premises
(see item 1.2)
Yes
Not applicable
33.2 Head lease or Crown lease
(see item 4.2)
Yes
Not applicable
33.3 Additional attachments
[list of any additional attachments]
34 List of attachments—retail shopping centre
[this item must be completed only if the premises are in a retail
shopping centre as defined in section 3 of the Retail Leases Act
2003]
Attached?
34.1 Floor plan
(see item 24.1)
Yes
Not applicable
34.2 Customer traffic flow statistics
(see item 25.1)
Yes
Not applicable
34.3 Casual mall licensing policy
(see item 26.1)
Yes
Not applicable
34.4 Additional attachments relating to the retail shopping centre
[list of any additional attachments]
".
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ENDNOTES
1 Reg. 4: S.R. No. 30/2003.
Endnotes
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