• A commercial lease is a legally binding agreement between a landlord and a business tenant for the rental of property.
  • Compared to a residential lease, commercial leases are more complicated as the lease terms can vary significantly from lease to lease and may also vary according to whether the lease is a for commercial premises or retail premises.
  • Before signing a commercial lease, both parties need to understand the terms and ensure they can meet all the terms and conditions.

Leasing Commercial Premises

A commercial lease is a document that sets out the rights and obligations of the owner of a commercial property (known as the landlord or lessor) and a third party that has agreed to occupy the property (known as the tenant or lessee). When entering into a lease negotiation, you should understand your obligations and obtain legal advice before signing anything. Commercial premises contain additional obligations compared to residential leases for private tenants. These include zoning, permits and building requirements. Moreover, consumer laws that apply to residential leases do not cover commercial leases.

Retail Premises Legislation

All states and territories have specific retail leases legislation (the Acts). The Acts specify which premises are considered to be retail premises and vary from state to state. If a business is located in a retail shopping centre and/ or wholly, or predominantly carries on a retail business, it is likely that lease will be governed by the provisions of the relevant retail leases Act for that state or territory. Generally speaking, the Acts aim to ensure retail leasing arrangements are fair and that there are built in mechanisms to resolve disputes between landlords and tenants.

Negotiating a Lease

Commercial lease terms are usually negotiable between parties. When negotiating a lease, the rights and obligations of both parties should be on the table for negotiation. The types of rights and obligations set out in a commercial and/ or retail lease can include signage, fit out of premises, using common areas, the rules of the building, use of public facilities and so on. As a tenant, pay attention to your specific circumstances before you make a commitment to a lease. An inexperienced tenant will sometimes accept the first lease they receive, to their detriment. This is poor negotiation practice – there is no requirement or obligation on a prospective tenant to accept the first lease. A better practice would be to have a lawyer review your lease and advise on any unfair provisions and negotiate amendments with the Landlord or the Landlord’s lawyer.

Fixtures and Fit-Out

A condition report of the premises should be obtained before entering into a lease. This report will provide information on the fixtures, fittings and services installed at the premises. The various retail leases legislation require that a disclosure statement be provided by the landlord.

Costs

In addition to ongoing rent costs, there are a number of costs to be borne by the tenant, including:

  • Security bonds;
  • Insurance costs;
  • Legal costs (lease preparation in some cases and costs on default);
  • Refurbishments;
  • Repairs and maintenance; and
  • Make good at the end of the lease.

It is important to obtain advice on these matters before agreeing to a lease. For example, lease preparation costs cannot be passed on under most of the various Retail Leases legislation from state to state. However, there is no such restriction with respect to commercial leases.

Assignment of Lease

A lease may allow tenants to assign the lease or sublet the whole, or part, of the premises to another tenant. This can be exercised in cases where a business decides to sell or can no longer operate the business. In most cases, assignment will be subject to a landlord’s consent and/ or the various retail leases legislation if it is a retail lease.

Key Considerations

  • A potential tenant should make inquiries and conduct research relevant to the business, the lease and the property before making any commitments to buy, lease, take on an assignment or incur any other obligations.
  • What is the duration of the commercial lease? Is there an option period (or periods)? A financier may be unwilling to lend for a term that substantially exceeds that available under a lease.
  • Generally, a lessee will not be responsible for the payment of any outgoings. For retail leases the landlord must detail the outgoings the tenant has to pay in the disclosure statement prior to entry into the lease.

Key Terms in Lease Negotiations

Term of Lease

The length of the term of the lease will affect the goodwill of your business. The term of the lease will be security of tenure for the desired time. It should be a period where business operations will not be interfered by the landlord.

Preliminary Documentation

A lease is just one document required in a suite of documents in leasing a premises. Preliminary documentation can comprise a heads of agreement, an agreement to lease, a lease incentive or contribution deed (if the landlord will be contributing to your fitout costs) and the lease itself.

If it is a retail lease, under the various Acts, a landlord is required to give a tenant various disclosure documents before the lease documents are entered into. Note specific requirements vary from state to state in this regard.

Dispute Resolution

In entering a commercial lease, disputes may arise between tenant and landlords. The lease will usually be the first document referred to in resolving any disputes. In resolving disputes, options will include informal negotiation, mediation, litigation (court) and various state based tribunals in certain circumstances.

Frequently Asked Questions about Commercial Leases

Q: What is an anchor tenant?
A: An anchor tenant generates significant foot traffic for other premises in the building (such as a supermarket or department store). A lease provision can be incorporated to terminate a lease if an anchor tenant departs.

Q: What can a landlord do about a tenant in default?
A: A landlord with a right to evict a tenant can request formal eviction if rent has not been paid. Written notice must be given of non-payment before any consequences can be faced by the tenant. Note that the landlord must comply with the lease and any other state based legislation in this regard.

Q: Is a redevelopment clause valid?
A: A redevelopment clause entitles the landlord to terminate a lease, before the end of the lease, in order to carry out major works. Whilst it is valid, a tenant should be compensated for redevelopment. Note that leases may include both redevelopment and demolition clauses.

How can LegalVision help me?

You should obtain professional legal advice before entering any lease agreement. LegalVision assists businesses and individuals with tailored online legal advice for a fixed-fee, including all aspects of leasing. Call LegalVision today on 1300 544 755.

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