ACT
See sections 93-96. Before asking for the landlord's consent to assign or sublet a lease, the tenant must give a prospective assignee or subtenant a copy of the DS and details of any material change that has happened in the information contained in the DS since the DS was given to the tenant. If the tenant does not have access to a copy of the DS, the tenant may ask the landlord to give the tenant a copy and the landlord must not (without reasonable excuse) fail to comply with that request within 14 days.
Where the tenant has provided the DS to the proposed assignee or subtenant, the tenant may (in writing) ask the landlord to agree to the assignment, sublease or mortgage of the lease.
Within 14 days after receiving a request to assign, sublet or mortgage, the landlord may in writing ask the tenant to provide the landlord with further information.
If the tenant's request is for consent to an assignment or sublease, the landlord may only request any or all of the following:
- information about the financial standing of the prospective assignee or subtenant or the prospective guarantor;
- a certificate of occupancy for the premises;
- information about the business skills of the prospective assignee or subtenant;
- information about the proposed use of the premises by the prospective assignee or subtenant and references relating to their ability to operate the proposed business.
If the tenant's request is for consent to a mortgage of the lease, the landlord may only request any or all of the following:
- information about the identity and financial standing of the proposed mortgagee;
- details of the loan or other obligation to be secured by the mortgage (including the amount of the loan, the purpose to which it is to be put, the term, the repayment schedule and the powers that may be exercised by the mortgagee).
See section 99. Where the tenant makes a request for an assignment, sublease or mortgage of a lease, the landlord must consent or refuse to consent within:
- 28 days after receiving the request; or
- 21 days after receiving any further information requested,
failing which consent will be deemed to have been given.
See section 100. The landlord may refuse to consent to an assignment of a lease or granting of a sublease requested by a tenant only if it is reasonable to do so in all the circumstances. Refusal will be taken to be reasonable if the landlord has reasonable grounds for believing that:
- the prospective assignee or subtenant intends to use the premises for a purpose not allowed under the lease or does not have the financial resources or adequate skills to run the business or they or their business will not be compatible with other tenants in the building; or
- the tenant cannot produce a current certificate of occupancy or is in breach of the lease.
See section 102. Within 6 months after giving or refusing consent, the landlord may recover from the tenant the reasonable costs of legal or other expenses incurred in making a decision about whether to consent to an assignment, sublease or mortgage.
NSW
See sections 39, 41 and 41A.Section 39 provides that the landlord is only entitled to withhold consent to the assignment of a lease:
- if the assignee proposes to change the use of the shop, the assignee has financial resources or retailing skills inferior to the assignor;
- the tenant does not comply with the procedure for obtaining consent under section 41;
- the circumstances set out in section 80E (which relates to a retail shop lease of airside premises at Sydney (Kingsford-Smith) Airport); or
- in the case of a retail shop lease that has been awarded by way of public tender, the assignee fails to meet any criteria of the tender.
In addition, the landlord must deal expeditiously with a request for consent. Consent is deemed to have taken place if the tenant complies with its obligations under this section and the landlord has not given notice either consenting or withholding consent within 28 days.
Section 41A. A person who assigns a retail shop lease has no liability to the landlord in respect of amounts payable after the lease is assigned, provided the tenant:
- gives the assignee an updated landlord DS;
- gives the assignee an assignor's DS in the prescribed form; and
- gives the landlord a copy of the assignor's DS and a disclosure confirmation. Provides that an assignor, guarantor or covenantor that assigns a lease of an outgoing business is released on assignment if the assignor gives a DS to the landlord and the assignee, provided the DS does not contain information that is materially false or misleading or is incomplete.
NT
See section 53. The landlord is only entitled to withhold its consent following a written request for assignment if:
- a proposed assignee proposes to change the use to which the shop is put;
- the proposed assignee does not have the financial resources or retailing skills that will enable it to fulfil all the obligations under the lease; or
- the tenant has not met its obligations under the Act to provide information about the proposed assignee or a copy of an "assignor's disclosure statement".
See section 55. A lease is taken to include provisions obliging landlords to deal expeditiously with requests for consent and deeming the landlord to have given its consent if the tenant has met its obligations under the Act and the landlord has failed within 42 days after the request to provide its consent or withhold its consent.
See section 58. An assignor, guarantor or covenantor that assigns a lease of an outgoing business is released on assignment if the assignor gives a DS to the landlord and the assignee, provided the DS does not contain information that is materially false or misleading or is materially incomplete.
QLD
See sections 22AA-22E.
Assignor must give a DS and a copy of the lease to the assignee at least 7 days before the earlier of:
- if the assignment is related to an agreement for the sale of the assignor's business carried on in the leased shop - the day the assignee enters that agreement; or
- the day the landlord is asked to consent to the assignment.
The assignee may waive the 7 day period by providing a waiver notice (see section 22B) - although the DS and lease must still be provided before the business sale agreement is entered into or the landlord's consent is requested (as set out above).
The assignee must give the assignor a DS before the landlord is asked to consent to the assignment.
When the landlord's consent is requested, the assignor must give the landlord a copy of the DS it issued to the assignee.
At least 7 days before the assignment is entered into, the landlord must give the assignee a DS and a copy of the lease. The assignee may waive the 7 day period by providing a waiver notice (see section 22C) although the DS and lease must still be provided before the assignment is entered into.
The assignee must give a DS to the landlord before the assignment is entered into. A financial and legal advice report must also be provided by the assignee (who is not a major lessee).
If sections 22A-D are not complied with, a RTD is said to exist between the relevant parties.
Section 50 deals with RTDs on assignment.
Section 50A releases the assignor and guarantor of assignor from liability under the lease for which it would otherwise be liable if there is any default by the assignee, if the assignor has complied with their obligations to give DSs in section 22B and each DS is complete and does not contain information that is false or misleading in a material particular.
SA
See section 43. The landlord is only entitled to withhold consent to assignment if:
- the assignee proposes to change use;
- the assignee is unlikely to be able to meet its financial obligations as tenant under the lease;
- the assignee's retailing skills are inferior to the assignors; or
- the tenant has not complied with procedural requirements (section 45).
Similar to NSW regarding the landlord dealing expeditiously with a request, and consent is deemed after 42 days (section 45).
The landlord must not seek or accept the payment of a premium in connection with the granting of consent to the assignment (section 44). However, the landlord may require payment of a reasonable sum for legal and other expenses incurred in connection with the consent.
Note: section 45A sets out procedural requirements a tenant can follow to restrict liability post assignment.
TAS
See section 28. The landlord is only entitled to reject the assignment if the proposed assignee intends to change the use of the premises, or the proposed assignee does not have the financial standing or the necessary skills to conduct the business, or the proposed assignee does not enter into a written agreement with the landlord in accordance with the terms of the lease or as otherwise reasonably required by the landlord.
The landlord must advise the tenant of information it requires to make a decision within 14 days of receiving a request to an assignment and is deemed to have consented after 21 days of receiving all required information.
If, on assignment, the landlord changes the terms of the lease with the agreement of the original tenant and its guarantors, then the original tenant and its guarantors remain liable for pre-existing guarantees. However, they are released from liability if the terms of a lease, other than the rent, are changed after an assignment without their agreement.
VIC
See section 60-62. The landlord is only entitled to withhold consent to an assignment of the lease if 1 or more of the following applies:
- the proposed assignee proposes to use the premises in a way that is not permitted under the lease;
- the landlord considers that the proposed assignee does not have sufficient financial resources or business experience to meet the obligations under the lease;
- the proposed assignor has not complied with the reasonable assignment provisions of the lease;
- the assignment is in connection with a lease of retail premises that will continue to be used for the carrying on of an ongoing business and the proposed assignor has not provided the proposed assignee with business records for the previous 3 years or such shorter period as the proposed assignor has carried on business at the retail premises.
The landlord must deal expeditiously with the request for consent and is taken to have consented to the assignment if the tenant has complied with its obligations under this section and the landlord has not within 28 days after the request was made, given written notice to the tenant consenting or withholding consent.
If assignment is for premises that will continue to be used to carry on an ongoing business and the tenant gives the landlord and the proposed assignee a copy of a DS in accordance with the section and such DS does not contain any information that is false, misleading or materially incomplete, then the tenant and any guarantor is not liable to perform any obligations under the lease or to pay to the landlord any money in respect of amounts payable by the proposed assignee.
WA
See section 10. The tenant under a retail shop lease has the statutory right to assign the lease, subject only to a right of the landlord to withhold consent on "reasonable grounds". The Act does not set out any grounds and the general law applies.
Consent is deemed given by the landlord if the landlord has not given notice either consenting or withholding consent within 28 days after receiving the request to assign.
Assignors and the assignor's guarantors under a retail shop lease are released only in regard to future obligations on the assignment.
Any provision in a retail shop lease enabling the landlord to:
- withhold consent unless the assignor (or the assignor's guarantor) agrees to pay any money that is payable by the assignee under the lease; or
- recover from the assignor (or the assignor's guarantor) any money payable by the assignee under the lease,
is void.
Note above that no DS is required by the Act to be given on an assignment.
Note above concerning key money that recovery is permissible from a tenant of:
- the landlord's reasonable expenses incurred in investigating the assignee; and
- the landlord's fair and reasonable costs of the assignment document preparation.