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Both Commonwealth and state law prohibits misleading and deceptive conduct. Additionally, there are a range of remedies available for a tenant who has suffered due to misleading and deceptive conduct. This liability against a landlord will arise whether or not the landlord intended to mislead or deceive the tenant with their conduct. Therefore, you need to have an understanding of what kind of conduct these laws prohibit to avoid responsibility. Further, by ensuring that you do not engage in such conduct, you can avoid the significant costs that you would incur if a claim was made against you. This article will explain what you need to know about misleading and deceptive conduct in the context of leasing. 

Prohibition on Misleading and Deceptive Conduct in Leasing & Remedies Available

Section 18 of the Australian Consumer Law prohibits misleading and deceptive conduct. This prohibition extends to all leases, in all states. However, some states, namely New South Wales and Western Australia, specifically address misleading and deceptive conduct in leases within their respective retail legislation. 

The prohibitions in New South Wales and Western Australia are explained in more detail below: 

1. New South Wales

The Retail Leases Act specifically provides that a retail shop must not, in connection with the lease, engage in conduct that is: 

  • misleading or deceptive to another party to the lease; or
  • likely to mislead or deceive another party to the lease. 

Further, the legislation provides that any party or former party of a retail shop lease who suffers loss or damage because of misleading or deceptive conduct may recover the amount of loss or damage by lodging a claim under the Act.

If the conduct occurred after 1 January 2006, the relief under the Retail Leases Act 1994 is in addition to any other relief available under the law (for example, under the Australian Consumer Law).

2.  Western Australia

The Commercial Tenancy (Retail Shops) Agreements Act, similar to NSW, specifically prohibits misleading and deceptive conduct. The definition of misleading and deceptive conduct is conduct that is: 

  • misleading or deceptive conduct to another party to the lease; or
  • likely to mislead or deceive another party to the lease.

The Western Australia provisions will not apply to conduct that occurred before 2013 (when the provisions were introduced). Further, you must lodge a misleading and deceptive claim within six years of the conduct occurring. 

Lease Disclosure Statements

Additionally, most states have laws concerning misleading and deceptive or false information provided in lease disclosure statements. Indeed, all information provided to the tenant within the lease disclosure statement must be accurate. Remedies are in place for tenants who receive incorrect information or misleading and deceptive conduct within their lease disclosure statement. This includes monetary damages.

Common Misleading and Deceptive Conduct in Leasing

The range of conduct that can be considered misleading and deceptive in the leasing context is broad and is not limited to specific conduct. However, representations are often caught out as conduct that has misled or deceived or is likely to have misled or deceived a tenant. We cover what representations mean and provide some specific examples below. 

Representations

Representations can be statements about a present or future fact. In the leasing context, some statements that will likely be considered representations include, for example, that: 

  • a tenant will be the sole retailer for a specified category of goods in a shopping centre; or 
  • 80% of the shopping centre has been leased. 

Importantly, the above two examples, or any similar representations, will not be misleading or deceptive or likely to mislead or deceive if they are factual and accurate. Alternatively, where the statement is about a future fact, and you had reasonable grounds to believe such a fact will occur, it may not be misleading and deceptive. Essentially, this means that if you are making a statement to a potential tenant, or a tenant, you can do so as long as it is factual and accurate.

The misleading and deceptive statement does not need to come from the landlord. It may also come from an authorised representative of the landlord. 

Key Takeaways 

The law prohibits misleading and deceptive conduct. This prohibition extends to all leases, in all states. If you are facing a claim for misleading and deceptive conduct in your lease, or you have been subject to misleading and deceptive conduct, you should seek legal advice. Contact LegalVision’s dispute resolution lawyers on 1300 544 755 or fill out the form on this page.

Frequently Asked Questions

What is misleading and deceptive conduct in leasing?

It covers conduct that is misleading or deceptive conduct to another party to the lease or that is likely to mislead or deceive another party to the lease.

What are representations?

Representations can be statements about a present or future fact. For example, in leasing a representation may be ‘that 80% of the shopping centre has been leased’.

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