ACT
No provision for early review.
NSW
See sections 32-32B. A tenant is entitled to have CMR determined during the period that is 6 months before and 3 months before the last day on which the option may be exercised under the lease.
If a tenant elects to have the CMR determined, the period within which the tenant must exercise the option is varied, so that the last day in which the option may be exercised is 21 days after the determination of rent is made and notified to the tenant. If the determination of rent is not notified within 21 days before the end of the term, the tenant may exercise the option within 21 days after the determination is notified and the term of the lease is extended by the appropriate period to enable the tenant to exercise the option.
A party to a lease may apply to the Registrar of NCAT (within 21 days) for the appointment of two SRVs to conduct a review of a determination of the CMR. The determination is to be made no later than 1 month after notification.
The party who applied for the appointment of the SRV is to bear the costs if the CMR is jointly determined by the SRVs to be the same as or within 10% of the amount specified in the determination.
Otherwise, the parties are to pay the costs of the review in equal shares.
Section 32B sets out the process of the Registrar appointing an SRV.
NT
See section 30 - similar to section 32 of the NSW Act. No referral to SRV.
A tenant is entitled to request a determination of the current market rent at any time within the period that begins 6 months before, and ends 3 months before, the last day on which the option may be exercised under the lease (this period is reduced to 3 months and 30 days respectively, if the term is 12 months or less), but may not make the request if the landlord and the tenant have already agreed as to the actual amount of that rent.
If the tenant makes the request:
- the amount of the current market rent is to be determined (as at the time of the request) in accordance with the provisions of a lease mentioned in section 29; and
- the period within which the tenant must exercise the option is varied so that the last day on which the option may be exercised is 21 days after the determination of rent is made and notified to the tenant in writing or the last day of the term of the lease, whichever is the earlier.
If the tenant extends the lease, the parties must pay for the determination in equal shares, otherwise the tenant must pay the costs.
QLD
See section 27A. Where rent on the exercise of an option is to be CMR, the tenant may request the CMR be determined 3 to 6 months (for a lease greater than 1 year) or 1 to 3 months (for a lease for 1 year or less) prior to the last day on which an option may be exercised. If a tenant makes the foregoing request, the period within which the tenant must exercise the option is varied, so that the option must be exercised by the earlier of the last day of the term or 21 days after the rent is determined.
This section does not apply if the tenant is a major lessee (has more than 5 retail shops in Australia), which has given the required notice before entering into the lease, and the lease provides for the timing and basis of each review of the rent.
SA
See section 36. Similar to NSW except the CMR is to be determined 2 to 6 months prior to last day on which the option may be exercised.
Note: If the term of the lease is 12 months or less, the above periods are shortened to 3 months and 30 days.
TAS
See section 20. No provisions for early review. If an option is to be exercised at CMR, the tenant, no less than 4 months or more than 6 months before the expiry of the period to exercise the option, may request the landlord to state the proposed rent to apply from the commencement of the new term.
The landlord is to then give notice of the amount of the proposed rent not less than 3 months before the expiry of the period to exercise the option. Within 30 days after receiving the landlord's notice, the tenant must notify the landlord that the tenant:
- exercises the option at the rent proposed; or
- does not agree with the rent proposed but wishes to negotiate an amount;
- requires the rent to be determined in accordance with the market review procedure under section 21.
VIC
See section 28A.
Tenants have the right to require an early determination of market rent at the commencement of any option term.
Within 28 days of receiving notice of the tenant's right to exercise an option from the landlord (which must be given at least 3 months before the last date the option may be exercised), the tenant will be able to request an early determination of market rent.
Then, if a specialist retail valuer is appointed to determine market rent, the date for the tenant to exercise its option will, if necessary, be delayed to 14 days after the tenant is advised of the outcome of the valuer's determination.
Additional provisions allow for the extension of the term, if necessary, to allow for determination of the rent and consideration of this by the tenant prior to exercising its option.
WA
Section 11 applies on every market review specified under the retail shop lease.
There is no specific separate provision in relation to when the market review is to commence where an option to renew is being exercised.
In particular there is no ability for the tenant to have the CMR determined early.