Div 3Special provisions applying to commercial tenancies

Division 3—Special provisions applying to commercial tenancies 57—Limitation on amounts payable with respect to entering into, extending or renewing a commercial tenancy agreement (1) Subject to this Act, a landlord shall not require or receive from a tenant or prospective tenant any monetary consideration for or in relation to entering into, extending or renewing a commercial tenancy agreement other than rent, any amount payable on account of operating expenses and a security bond. (2) Subsection (1) does not apply to— (a) an amount received as consideration for the landlord carrying out, in accordance with an agreement with the tenant, work on the premises before the tenant goes into occupancy of the premises; or (b) an amount required or received as consideration for a right or option to enter into a commercial tenancy agreement if, upon a commercial tenancy agreement being entered into, the amount is refunded or applied towards the rent payable under that agreement; or (c) an amount that is payable to a legal practitioner, land broker or licensed agent for attendances on the tenant or for the preparation of documents that are relevant to the tenancy; or (d) any payment of a prescribed class. 58—Rent in advance (1) A person shall not before the tenant becomes entitled to go into occupancy of premises under a commercial tenancy agreement require, as rent under the agreement, an amount exceeding— (a) the amount payable under the agreement for one months occupancy of the premises; or (b) one-twelfth of the amount payable under the agreement for one year's occupancy of the premises, whichever is the lesser. (2) A person shall not require any payment of rent (other than the first payment) under a commercial tenancy agreement earlier than seven days before the commencement of the period of occupancy in respect of which the rent is payable. (3) An agreement that imposes obligations as to the time of payment of rent that are inconsistent with this section is, to the extent of the inconsistency, void. 59—Regulation of security bonds (1) Subject to subsection (2), a person shall not in relation to a commercial tenancy agreement— (a) require more than one security bond; or (b) require the payment of, or receive, under a security bond, an amount exceeding— (i) the rent payable for one month's occupancy of the premises to which the agreement relates; or (ii) one-twelfth of the rent for one year's occupancy of the premises to which the agreement relates, whichever is the lesser. (2) Subsection (1) does not apply to a security bond under which a tenant agrees to pay to a landlord an amount as security for the payment of government charges that are payable by the tenant under a commercial tenancy agreement. 60—All amounts paid under security bonds to be receipted and paid to Tribunal A person who receives money paid under a security bond— (a) shall forthwith give or cause to be given to the person paying the money a receipt specifying the date on which the bond was entered into, the name of the person by whom the money was paid, the amount paid and the premises in respect of which it is paid; and (b) shall— (i) if the person receiving the money is a legal practitioner, a licensed agent or a licensed land broker acting on behalf of a landlord—pay the money to the Tribunal within twenty-eight days of its receipt; (ii) in any other case—pay the money to the Tribunal within seven days of its receipt. Penalty: Division 8 fine. 61—Payment of security bonds by Tribunal to landlord or tenant (1) The Tribunal may, on application by a landlord or tenant for an order under this section, order that an amount paid under a security bond— (a) be paid in full to the tenant; or (b) be paid— (i) in part to the landlord to satisfy a liability of the tenant under the commercial tenancy agreement; and (ii) as to the remainder—to the tenant; or (c) be paid in full to the landlord to satisfy, or towards satisfaction of, a liability of the tenant under the commercial tenancy agreement. (2) Where both landlord and tenant agree that the amount paid under the security bond should be paid out in a stipulated manner and have expressed their agreement in the prescribed form, an order shall be made for payment in accordance with the agreement. (3) Where notice of an application under this section has been given by the applicant to the other party to the agreement and that other party does not within ten days of receiving the notice lodge with the Tribunal a notice of his intention to dispute the application, an order for payment, in the terms sought in the application, shall be made. (4) A tenant may not apply for an order under this section unless— (a) the tenancy has come to an end; and (b) the tenant has vacated the premises. 61A—Commercial tenancy agreements may be in registrable form (1) Where the tenant to a proposed commercial tenancy agreement requests that a lease embodying the terms of the agreement in registrable form be prepared, the landlord must, subject to subsection (2)— (a) prepare a lease in accordance with the request; and (b) on tender by the tenant of the appropriate amount for any fees or expenses for which the tenant is legally liable, have the lease registered. (2) Subsection (1) does not apply— (a) if the term of the tenancy is to be for a period of one year or less; or (b) if the commercial tenancy agreement will not confer an exclusive right of occupation; or (c) if the landlord does not have a registered interest in the premises subject to the agreement; or (d) in any other case of a prescribed kind. (3) A provision in a commercial tenancy agreement that purports to prevent registration of a commercial tenancy agreement in the Lands Titles Registration Office or in the General Registry Office is void. 61B—Costs associated with the preparation of a written agreement (1) Subject to subsection (2), where a landlord requires that a written commercial tenancy agreement, or a memorandum of such an agreement, be prepared by the landlord, or a legal practitioner or other person who may lawfully act for a fee on behalf of the landlord, the costs of the preparation of the document, and of any attendances to which subsection (3) applies, must be borne by the landlord. (2) Where— (a) the tenant requests that a lease embodying the terms of the commercial tenancy agreement in registrable form be prepared; and (b) the landlord requires that the lease be prepared by the landlord, or a legal practitioner or other person who may lawfully act for a fee on behalf of the landlord, the costs of the preparation of the document, and of any attendances to which subsection (3) applies, must be shared equally between the landlord and the tenant. (3) This subsection applies to attendances on the tenant by the landlord, or a legal practitioner or other person acting on behalf of the landlord, in respect of— (a) the preparation or execution of any document that is intended to constitute the commercial tenancy agreement, or a memorandum of such an agreement, or of any lease; or (b) any other prescribed matter, other than attendances that are attributable to unreasonable and unjustifiable action on the part of the tenant. 62—Provisions relating to written agreements prepared by or on behalf of landlords (1) This section applies to a document— (a) that is intended to constitute a commercial tenancy agreement (or part of such an agreement), or a memorandum of such an agreement; and (b) that has been prepared by the landlord or a legal practitioner or other person acting on behalf of the landlord. (2) Where a document to which this section applies is presented to a tenant for execution— (a) the document must specify in a clear and concise manner— (i) where the tenancy is for a fixed term—the term of the tenancy and any agreement that the parties may have made in relation to extension or renewal of the term; (ii) the rent payable under the agreement or the method by which that rent is to be calculated and, if provision is made for review or alteration of rent during the term of the tenancy, the time and manner in which the review or alteration may be made; and (b) with each document that is presented to the tenant, there must be an accompanying written statement in the prescribed form— (i) setting out in a clear and concise manner the information required by the regulations; and (ii) advising the tenant to read and sign the statement, and to read the document, before the tenant executes the document. (3) The tenant should sign the statement before executing the document. (4) When a tenant executes a document to which this section applies, a photocopy of the document, together with a photocopy of the statement provided under subsection (2)(b), must be given immediately to the tenant. (5) The landlord must, upon execution of the document by the tenant, if the landlord has not already done so, execute the document. (6) The landlord must comply with subsection (5) as soon as is reasonably practicable. (7) A fully executed copy of the document (with the statement required under subsection (2)(b) attached) must be delivered to the tenant within 28 days after the payment of any stamp duty chargeable on it under the Stamp Duties Act 1923 or, if the document is to be registered under the Real Property Act 1886 or the Registration of Deeds Act 1935 within 28 days after a copy is made available for collection from the Lands Titles Registration Office or the General Registry Office following registration (unless the tenant has undertaken responsibility to stamp and, if appropriate, register the document). (8) A landlord who fails to comply with a provision of this section is guilty of an offence. (9) Subject to subsection (10), non-compliance with this section does not affect the validity of a commercial tenancy agreement. (10) If— (a) a landlord— (i) fails to provide a written statement to a tenant under subsection (2); or (ii) provides a written statement that is not true and correct in a material respect; or (iii) fails to provide a copy of a document to a tenant under subsection (4); and (b) on the application of the tenant, the Tribunal is satisfied that, in the circumstances, an order under this subsection is justified, the Tribunal may, by order, to such extent as may be appropriate and fair in the circumstances— (c) avoid the commercial tenancy agreement, in whole or part; (d) vary the commercial tenancy agreement; (e) direct the landlord to refund money paid under the commercial tenancy agreement; (f) require the landlord to pay compensation to the tenant; (g) deal with any ancillary or incidental matter. (11) The Tribunal should, in considering an application under subsection (10), take into account— (a) the gravity of, and the circumstances surrounding, the landlord's actions; (b) the conduct of both the landlord and the tenant in relation to the commercial tenancy agreement and any negotiations surrounding the making of the agreement; (c) the extent of any loss suffered, or likely to be suffered, by the tenant as a result of the landlord's actions; (d) the effect that making an order, or not making an order, would have on each party, and may take into account such other matters as the Tribunal thinks fit. 62A—Landlord to provide a statement of operating expenses (1) Where a tenant is or is to be required to pay any amount in respect of operating expenses, the landlord must give to the tenant a written statement setting out— (a) the nature of those expenses; and (b) estimates of the amount of the tenant's liability in respect of each separate category of those expenses over each accounting period. (2) The estimates referred to in subsection (1) must be given— (a) in relation to a commercial tenancy agreement entered into before the commencement of this section—within one month of the commencement of the first accounting period and thereafter at least one month before the commencement of each successive accounting period; or (b) in relation to a commercial tenancy agreement entered into on or after the commencement of this section—before it is entered into and thereafter at least one month before the commencement of each successive accounting period. (3) A landlord must, within three months of the expiration of an accounting period, give the tenant a written statement, certified by the landlord or his or her agent to be correct, setting out, under each separate category of operating expenses, the amount actually incurred by the landlord, and the amount payable by the tenant, for that period. (4) Notwithstanding the provisions of a commercial tenancy agreement, a landlord is not at any particular time entitled to payment from the tenant on account of operating expenses in a particular accounting period of an amount in excess of— (a) an amount calculated in accordance with the following formula: