If you’re a business owner, you’re most likely going to be renting from a landlord. It’s critical to the survival of your business that you know your rights in relation to leasing, so that if something goes wrong and you need to protect your rights as lessee, you’ll be well informed as to the appropriate causes of action that are available to you.

The law that relates to leasing in Australia varies depending on what date the lease was entered into and whether or not the lease is “retail”.

When is the lease considered a “retail” lease?

Under section 4 of the Retail Leases Act 2003,premises that are to be used wholly or predominantly for the sale or hire of retail goods or services, with some exceptions, are considered to be retail premises and will result in the application of the Retail Leases Act. So if the selling of goods or services makes up the main part of your business’ income, your lease will most probably be governed by the Retail Leases Act 2003.

All “retail” leases that are entered into on, or after, 1 May 2013, are governed by the provisions of the Retail Leases Act 2003.   When you enter into a lease, you will normally be taking over an older lease and renewing its term. This lease may have previously been governed by prior Victorian retail legislation, which is why it’s important to speak with a commercial leasing lawyer to work out which piece of legislation applies to your particular lease.

If, however, the lease was entered into after 1 May 2013, and is for a period of less than 12 months, it will not be governed by the application of the Retail Leases Act 2003. However, if you continue to occupy the premises for more than 12 months, the Retail Leases Act 2003 will prevail and the lease will convert into a “retail” lease.

What other legislation governs “retail” leases?

Some leases are still governed by the Retail Tenancies Reform Act 1998 and the Retail Tenancies Act 1986(these Acts were also amended by the Retail Leases (Amendment) Act 2005).

Typically, most retail leases in Victoria, would be governed by the Retail Leases Act 2003 and its later amendments (see Retail Leases (Amendment) Act 2005 (Vic) and Retail Leases Amendment Act 2012 (Vic).

Conclusion

Are you renting under a “retail” lease and not aware of you rights? Are you unsure of which legislation applies to your lease? If you’re having any issues with your landlord (or tenant for that matter), contact LegalVision on 1300 544 755 and get in touch with one of our experienced commercial leasing lawyers.

Lachlan McKnight

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