Each state or territory in Australia has specific laws relating to retail leases. The retail leasing laws in every state or territory in Australia require that landlords provide a disclosure statement before you sign a retail lease. But what happens if you haven’t received a disclosure statement? 

A disclosure statement includes a summary of:

  • the key commercial terms of the lease;
  • financial obligations such as paying rent, outgoings and any other costs; and
  • positive obligations to make good the premises, complete fit-out works, take out insurance and provide security such as a bank guarantee or personal guarantee.

This article sets out the different requirements for each state and territory in relation to providing a disclosure statement.

Summary

Disclosure Statement Must be provided in every state and territory
Time frame Some jurisdictions have a specific time frame such as seven days (NSW, NT, QLD, TAS, VIC and WA) or an exception to this time frame (ACT, NT and QLD)
Right to terminate Most retail tenants have the right to terminate within a certain time if the disclosure statement is false or misleading (ACT, NSW, NT, QLD, TAS, VIC and WA) or if the landlord does not provide it at all (ACT, NSW, NT, QLD, VIC, WA) as well as the right to compensation (ACT, NSW, QLD, SA and WA)
Exceptions Be wary that there may be exception to the right to terminate if the landlord has acted honestly and reasonably and you are in as good a position as if the failure had not occurred (NSW, SA, TAS, VIC and WA)

Australian Capital Territory

When Does a Disclosure Statement Need to Be Provided?

The landlord must provide a disclosure statement 14 days before you enter into a new lease. If you are renewing the lease, the landlord must provide a disclosure statement 14 days after you request it. However, this request cannot be made earlier than 3 months before you decide to renew the lease.

Are There Any Exceptions to the Time Limits?

Yes. The time limit does not apply or can be varied if you provide the landlord with a certificate from a lawyer. The certificate must state that you are aware of the time limits and have chosen to waive or vary them.

What if the Disclosure Statement is False or Misleading?

If you enter into the lease or suffer any type of damage because of the false or misleading representation, the landlord will be liable to pay you reasonable compensation.

You will also be able to terminate the lease within three months if the landlord provides a disclosure statement that is false or misleading or fails to include significant information. If you decide to terminate the lease, you must provide the landlord with 14 days written notice.

What Rights Do I Have if I Didn’t Receive a Disclosure Statement?

You may terminate the lease within 3 months if the landlord fails to provide a disclosure statement. If you decide to terminate the lease, you must provide the landlord with 14 days written notice.

New South Wales

When Does a Disclosure Statement Need to Be Provided?

The landlord must provide the disclosure statement at least seven days before you enter into a new lease.

Are There Any Exceptions to the Time Limits?

No, there is no exception to the seven day time frame.

What if the Disclosure Statement is False or Misleading?

If the disclosure statement is incomplete or contains information that is significantly false or misleading, you can terminate the lease any time within the first six months.

You are also entitled to be paid compensation by the landlord for your reasonable costs in entering into the lease. An example would be the cost of your fit-out works.

However, you cannot terminate if:

  • the landlord acted honestly and reasonably;
  • the landlord should be excused for the failure; and
  • you are in as good a position as if the failure had not occurred.

What Rights Do I Have if I Didn’t Receive a Disclosure Statement?

You may terminate the lease any time within the first six months if the landlord does not provide a disclosure statement.

Note that you are not required to provide contributions or outgoings that are not included in the disclosure statement.

Northern Territory

When Does a Disclosure Statement Need to Be Provided?

The landlord must provide the disclosure statement at least seven days before you enter into the new lease.

Are There Any Exceptions to the Time Limits?

Yes, this time limit does not apply if your lawyer explains the effect of waiving the time limit to you and certifies this explanation in writing.

What if the Disclosure Statement is False or Misleading?

If the disclosure statement is incomplete or contains information that is significantly false or misleading, you may terminate the lease at any time within the first six months.

You cannot terminate if:

  • the landlord acted honestly and reasonably;
  • the landlord should be excused; and
  • you are in as good a position as if the failure had not occurred.

What Rights Do I Have if I Didn’t Receive a Disclosure Statement?

You may terminate the lease at any time within the first six months if the landlord does not provide a disclosure statement.

Queensland

When Does a Disclosure Statement Need to Be Provided?

The landlord must provide the disclosure statement at least seven days before you enter into a new lease.

Are There Any Exceptions to the Time Limits?

Yes, the landlord may provide the disclosure statement after seven days (but before the lease is entered into) if you give the landlord a waiver notice. This notice will outline that you agree to waive the landlord’s obligation to provide the disclosure statement in time.

What if the Disclosure Statement is False or Misleading?

If the disclosure statement is defective because it is incomplete or contains information that is significantly false or misleading, you may terminate the lease within the first six months with written notice.

Note that the landlord can no longer use the defence of acting honestly or reasonably in Queensland and that any defective disclosure statement will allow you to terminate the lease.

The landlord is also liable to pay you reasonable compensation for your loss or damage suffered because of the defective disclosure statement.

What Rights Do I Have if I Didn’t Receive a Disclosure Statement?

You may terminate the lease within the first six months with written notice if the landlord does not provide a disclosure statement.

South Australia

When Does a Disclosure Statement Need to Be Provided?

The landlord must provide the disclosure statement before you enter into the lease but the law does not specify an exact time frame.

Are There Any Exceptions to the Time Limits?

No, the law does not provide for any exception to this time frame.

What if the Disclosure Statement is False or Misleading?

If the disclosure statement contains information that is significantly false or misleading, the Magistrates Court may make orders to:

  • terminate or vary the lease;
  • require the landlord to refund your money; or
  • pay compensation.

Note that the Magistrates Court cannot make an order if the landlord:

  • acted honestly and reasonably;
  • should be excused; and
  • you have not been substantially prejudiced.

What Rights Do I Have if I Didn’t Receive a Disclosure Statement?

The Magistrates Court can make the same orders as above if the landlord does not provide the disclosure statement.

Tasmania

When Does a Disclosure Statement Need to Be Provided?

The landlord must provide the disclosure statement at least seven days before you either:

  • sign the lease;
  • sign an agreement to lease;
  • occupy the premises; or
  • pay rent.

Are There Any Exceptions to the Time Limits?

There are no exceptions to this time frame.

What if the Disclosure Statement is False or Misleading?

After the landlord provides you with the disclosure statement, they must notify you of any significant changes to it before you sign the lease or take possession of the premises (whichever is earlier).

If the landlord fails to do so, or the notification is false or misleading, you have the right to terminate the lease at any time within the first three months.

You cannot terminate if:

  • the landlord acted honestly and reasonably;
  • the landlord should be excused; and
  • you are in as good a position as if the failure had not occurred.

What Rights Do I Have if I Didn’t Receive a Disclosure Statement?

You are not required to pay for any fixtures, fittings, equipment or services that the landlord provided which are not set out in the disclosure statement.

However, it is not clear whether you have the right to terminate or seek compensation.

Victoria

When Does a Disclosure Statement Need to Be Provided?

The landlord must provide the disclosure statement at least seven days before you enter into the new lease.

Are There Any Exceptions to the Time Limits?

There is no exception to this time frame.

What if the Disclosure Statement is False or Misleading?

If the disclosure statement is false or misleading, you may give the landlord written notice to terminate the lease up to 28 days after receiving the disclosure statement.

The lease will then come to an end within 14 days unless the landlord objects to the notice on the basis that:

  • the landlord acted honestly and reasonably;
  • the landlord should be excused; and
  • you are in as good a position as if the failure had not occurred.

What Rights Do I Have if I Didn’t Receive a Disclosure Statement?

You may give the landlord written notice that you have not received a disclosure statement no earlier than seven days and no later than 90 days after entering into the lease. Once you provide this notice, you may withhold rent until the landlord provides the disclosure statement. You may give the landlord written notice of termination within seven days of receiving the disclosure statement.

Western Australia

When Does a Disclosure Statement Need to Be Provided?

The landlord must provide the disclosure statement at least seven days before you enter into the new lease.

Are There Any Exceptions to the Time Limits?

There is no exception to this time frame.

What if the Disclosure Statement is False or Misleading?

You may give written notice to terminate the lease within six months of entering into the lease where the disclosure statement is:

  • incomplete; or
  • contains false or misleading information

You may also apply for compensation.

If you give notice to terminate, the lease will come to an end within 14 days unless the landlord objects to the notice on the basis that:

  • the landlord acted honestly and reasonably;
  • the landlord should be excused; and
  • you are in as good a position as if the failure had not occurred.

What Rights Do I Have if I Didn’t Receive a Disclosure Statement?

You may give written notice to terminate the lease within six months of entering into the lease where the landlord has not provided the disclosure statement.

You may also apply for compensation.

 

Key Takeaways

Although the retail leasing laws in each state and territory are similar, there are important differences to consider, including the:

  • time limit;
  • right to terminate; and
  • exception to the right to terminate if the landlord has acted honestly and reasonably.

If you are a retail tenant and your landlord has provided you with a disclosure statement that is either incomplete, false or misleading or hasn’t provided one at all, you can get in touch with LegalVision’s leasing lawyers on 1300 544 755 or fill out the form on this page.

Rachel Amiri
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