A security deposit is a sum of money a landlord holds as security for the tenant occupying the property under a lease. If you default on the lease or damage the premises, the landlord can use the deposit to satisfy the necessary payments or make good the damage. In Australia, different legislation in each state and territory governs retail leases. This article discusses how landlords should handle your retail lease security deposit in Australian states and territories.
When Can Your Landlord Use the Security Deposit?
When you and your landlord enter into a lease, you both agree to meet your rental obligations. A default clause in the lease allows a landlord to terminate the agreement if you breach the lease or default on payments. The landlord may also use your deposit to pay rental arrears or make good any damage you cause. They can do so without notice.
Furthermore, you should know how to leave the premises and when your landlord can use your security deposit. Often, disputes arise at the end of a lease where tenants may not have complied with their obligation to maintain the condition of the premises.
Security Deposit Requirements
Victoria
The landlord can set any amount as the value of the security deposit. However, it is more common that the value is equivalent to a period of rent. The legislation does not regulate this, so the parties may negotiate the security deposit.
The landlord or landlord’s agent needs to hold a security deposit in an interest-bearing account. Any interest accrued on the security deposit becomes part of the deposit. This means the landlord must return the interest and security deposit to you, provided you have complied with your obligations. If you have not complied, the landlord may use the interest as part of the security deposit.
Your landlord should return the security deposit to you within 30 days after the lease ends. Additionally, they must not unreasonably refuse to accept a bank guarantee instead of a security deposit.
New South Wales
The landlord must deposit the security deposit with the New South Wales Government’s Retail Bond Scheme within 20 business days of receiving it. The Scheme holds the money in trust and invests it. After the lease, the landlord must return the deposit to you with interest. However, this is only the case if you have met all your lease obligations.
When negotiating the lease, the landlord may ask for security in the form of a cash bond, third-party guarantee or bank guarantee.
Queensland
The Queensland Retail Leases Act has no provisions regarding security deposits. Non-refundable security deposits are unlawful as they are considered ‘key money’. Key money is a benefit a tenant provides with no real consideration for the benefit.
Tasmania
A security deposit must not be more than the equivalent of three months’ rent. The landlord must hold it in an interest-bearing account on trust for you. The interest must also be accounted to you.
Additionally, the landlord may retain the interest and treat it as part of the security deposit. This means the landlord must return the interest, along with the deposit, on completion of the lease. Alternatively, they may use it as part of the deposit if you breach your obligations under the lease.
Your landlord must not unreasonably refuse to accept a bank guarantee instead of a security deposit. Where the landlord refuses to refund all or part of the security bond, the landlord must, in writing, advise the tenant of the terms and grounds on which the bond is held from the tenant.
South Australia
The landlord can take only one security bond, which must not be more than three months’ rent under the lease. The security bond must be paid to the Small Business Commissioner within 28 days of receipt by a registered agent or within seven days in any other case.
A factsheet that sets out the three ways to end a commercial lease in Australia: surrendering your lease, assigning it or subletting it.
Australian Capital Territory
A security deposit must not be more than three months’ rent. The landlord must hold it in an interest-bearing account on trust for you. The interest must also be accounted to you. The landlord may keep and deal with the interest as part of the security deposit.
The landlord must return the security deposit within 30 days of the end of the lease or upon you vacating the premises, whichever comes later. They may keep any deductions of amounts owed to them.
Your landlord must not reasonably refuse to accept a bank guarantee instead of a security deposit.
Northern Territory
The landlord must hold the security deposit in an interest-bearing account on trust for you. The interest must also be accounted to you. They may keep the interest and deal with it as part of the security deposit.
Furthermore, your landlord must return the security deposit to you within 30 days of the end of the lease or upon you vacating the premises, whichever comes later. They may keep any deductions of amounts owed to them.
The landlord must not reasonably refuse to accept a bank guarantee instead of a security deposit.
Western Australia
The Western Australia Retail Leases Act has no provisions regarding security deposits.
Continue reading this article below the formKey Takeaways
Security deposits are a common form of security in retail leases. The landlord can rely on your retail lease security deposit in the event you breach the lease or default on payments. It is important landlords comply with the retail lease legislation in their state or territory. These Acts cover:
- the maximum amount a landlord can collect as a security deposit;
- where the landlord should hold the deposit; and
- when the landlord should return the deposit.
As a tenant, you should understand your obligations under the retail lease. If you have questions, our experienced leasing lawyers can assist as part of our LegalVision membership. For a low monthly fee, you will have unlimited access to lawyers to answer your questions and draft and review your documents. Call us today on 1300 544 755 or visit our membership page.
We appreciate your feedback – your submission has been successfully received.
