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 2025.
There are also additional changes proposed including:
- In Queensland, the new Property Law Act 2023 (the New PLA), was assented to on 2 November 2023 and will commence on 1 August 2025. Whilst it does not materially amend the Queensland Retail Shop Leases Act, 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1998 (Tas) referred to in this analysis are still to be taken to be regulations under the Act until they are rescinded.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, which is still outstanding.
- In Western Australia, following extensive consultation with stakeholders, the statutory review of the Commercial Tenancy (Retail Shops) Agreements Act 1985 report was officially tabled in Parliament on 15 October 2024. The report contains a number of recommendations for reform, with the Government set to begin drafting amendments to the legislation in 2025.
- In South Australia, the Statutes Amendment (Small Business Commission and Retail and Commercial Leases) Act 2024 (SA) (Statutes Amendment) was assented to on 3 December 2024 and will commence on proclamation. The Statutes Amendment proposes to (among other things) amend and restructure "Part 9 – Dispute Resolution" of the Retail and Commercial Leases Act 1995 (SA) (RCLA). Under the new Division, the Commission will be able to instigate a "designated alternative dispute resolution process" and proceed with the process even if a party refuses to attend a meeting. The Statutes Amendment also:
- exempts from the RCLA leases to tenants incorporated outside Australia or their subsidiaries;
- extends the section 18(2) warranty exclusion of fitness for purpose to renewals and extensions of leases; and
- amends the application of landlords' rights regarding abandoned goods under section 76.
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 retail or other developments or business arrangements, please refer to the Contacts page for the lawyers in your State.