Retail Leases Comparative Analysis

For a retail landlord or retail tenant, retail tenancy legislation can be a minefield, a trap for young players and a downright headache. The fact that each State has its own Act (each inconsistent with the other, and each inescapable), makes life hard for everyone.

We have tried to make our job and yours easier by preparing a user-friendly analysis of retail tenancy legislation.

The analysis allows you to compare provisions of the legislation in one jurisdiction against legislation in other jurisdictions.

This update is current for all jurisdictions as at 1 January 2024.

Further changes are expected in the year ahead:

• In Queensland, the new Property Law Act 2023 (the New PLA), was assented to on 2 November 2023 and will commence on a date to be proclaimed. The New PLA supersedes the Property Law Act 1974 and is a significant overhaul aimed at updating the property laws in Queensland. The intention of the New PLA is to simplify property laws in Queensland, aligning the laws with those in a number of other Australian States. References to the Property Law Act in the Retail Shop Leases Act will be amended to refer to the New PLA. Some key changes to the New PLA which landlords and tenants should be aware of include standard lease terms which will be implied in all commercial leases including retail leases (unless excluded), and changes to limitation periods from 12 years to 6 years for an action brought under a deed.
• In Tasmania, the Retail Leases Act 2022 (Tas), drafted to modernise Tasmania’s regulation of retail leases and being the first substantive review since 1998, was assented to on 14 December 2022. Section 88 of the new Act is already in force, so that the current Fair Trading (Code of Practice for Retail Tenancies) Regulations 1998 (Tas) referred to in this analysis are still to be taken to be regulations under the Act until they are rescinded. The rest of the new Act, including provisions relating to disclosure requirements and the calculation and adjustment of rent, is due to commence on proclamation.
• In Western Australia, the statutory review of the Commercial Tenancy (Retail Shops) Agreements Act 1985 which commenced in 2022 and is required to be carried out every 5 years, is still underway. The WA Government has not yet provided a further update on the status of the review since the formal closure of the public consultation and feedback stage on 31 August 2022. We expect to hear further throughout the course of 2024.

In some cases, State and Territory responses to COVID-19 may still have some historical relevance to retail leases, although any relevance would need to be considered on a case-by-case basis. Issues relating to COVID-19 rent relief claims are not included here.

The changes to the Unfair Contract Terms regime are also relevant to retail leases, and landlords and tenants will need to take them into account in negotiations and dealings.

Clayton Utz has extensive expertise in acting for landlords and tenants on retail tenancy matters and on shopping centre and commercial property acquisitions, joint ventures, sales and development matters generally.

If we can assist you in any aspect of your retail business, or any other business, please refer to the Contacts page for the lawyers in your State.