Landlord and Tenant (Commercial Tenancies) Regulations 1986

Part 4 of the Landlord and Tenant Act 1936 is the primary statutory framework for commercial tenancies in South Australia. The regulations supplement that Part by imposing form and content requirements on certain procedures. The Commercial Tribunal is the specialist body that hears applications under Part 4. The regulations define how to bring an application, what forms to use, and what fee applies.

A security bond is money paid by the tenant as security for performance of lease obligations. Regulation 5 and Form 1 in the Schedule set out how a person paying money to the Tribunal under a security bond must lodge a completed form. The form itself is not reproduced in the text provided but is cross-referenced.

The warranty of fitness for purpose found in section 66(1) of the Act is a default term in every commercial tenancy agreement, implying that the premises are fit for the permitted use. Regulation 7 allows a landlord to exclude that warranty, but only by drawing the tenant's attention to a prescribed notice in Form 4. The notice must be placed immediately above the tenant's signature line in the document referred to in section 62(1) of the Act, and printed in characters no smaller than the corresponding characters in the Gazette version of Form 4, or typed in 12 pitch (defined as no more than 12 characters in a 25mm passage).

Five year terms are governed by regulation 7A. Section 66A of the Act places limits on the length of commercial tenancy agreements. If a landlord wants to enter into a term exceeding five years, a legal practitioner must sign a certificate in Form 6. The tenant must also be given a notice in Form 7. These forms are prescribed formalities designed to ensure the tenant has received independent legal advice and understands the commitment.

Abandoned goods are addressed in regulation 7B. When a tenant leaves goods on the premises after the lease ends, the landlord must follow a notice procedure before disposing of them. Form 8 is the notice to the former tenant. Form 9 is the notice to any person with an interest in the goods and the notice to be published in a newspaper. The landlord must also keep prescribed information about any sale including the date, buyer, auction details, sale amount, costs, and a description of the item.

Exclusions are a major concept. Regulation 8 excludes hotel tenancy agreements with the South Australian Brewing Company group from sections 59 to 62A, which cover procedural protections. It also excludes licensed premises from the warranty of fitness for purpose (section 64 and 66) and premises with fixed hours under the Liquor Licensing Act from the trading hours provisions (section 65). Regulations 9 and 10 exclude the Port Dock Railway Museum agreement and any commercial tenancy where the Aboriginal Lands Trust is landlord from all of Part 4.

The legislative history shows the regulations were frequently amended, mostly to update forms and fees, and to insert new provisions like the abandoned goods regime and the five year term forms.

These regulations affect anyone who was a party to a retail shop lease entered into before 30 June 1997 in South Australia and that lease is still in effect. That includes landlords who own commercial premises and tenants who occupy them under such leases. It also affects legal practitioners who must sign the five year term certificate, and the Commercial Tribunal and its Registrar who process applications and maintain forms.

Specifically, landlords of hotels owned or partially owned by The South Australian Brewing Company Limited, S.A. Brewing Holdings Limited, S.A.B. Properties Limited, or their wholly owned subsidiaries are affected because their tenancy agreements are excluded from key procedural sections. This exclusion also affects tenants of those hotels, who receive fewer protections than tenants under ordinary commercial leases. Similarly, landlords and tenants of licensed premises under the Liquor Licensing Act 1985 are affected by the exclusion from the warranty of fitness for purpose and from the five year term provisions. The same applies to premises whose trading hours are fixed by liquor licensing law.

The Aboriginal Lands Trust is a special party. When it acts as landlord, the entire Part 4 regime is excluded. This affects any tenant leasing commercial premises from the Trust. The tenant cannot invoke the protections of Part 4 and must rely on the common law or any other applicable statute.

The Port Dock Railway Museum (South Australia) Incorporated is directly affected by regulation 9, which excludes its agreement of 29 November 1988 with the Treasurer from Part 4. This is a narrow, unique exclusion.

The Commercial Tribunal itself is affected because the regulations define when it may retain jurisdiction over a claim that would otherwise be transferred to a court. Regulation 6AA gives the Tribunal discretion not to transfer if the claim becomes a small claim by amendment, or if the claim increases beyond the prescribed amount solely because of the effluxion of time. This reduces the Tribunal's administrative burden and preserves its expertise for cases where the change in claim value is purely technical.

Legal practitioners are affected because they must sign the Form 6 certificate for any lease exceeding five years. They must ensure the certificate is in the prescribed form and that the tenant receives the Form 7 notice. Failure to do so may leave the landlord unable to enforce a term beyond five years or expose the practitioner to liability.

Finally, any person who has an interest in goods abandoned by a former tenant is affected because the landlord must send them a notice in Form 9 before selling the goods. This protects secured creditors or other third parties who may have a legal interest in the tenant's property.

The regulations impose several specific duties on landlords and tenants, and confer corresponding rights.

When paying money to the Tribunal under a security bond, the person making the payment must lodge a completed Form 1. This is a procedural duty that ensures the Tribunal has the necessary details to hold and administer the bond. Failure to lodge the form may mean the bond is not properly recorded.

An applicant to the Commercial Tribunal under Part 4 must use a form approved by the Commercial Registrar, provide the required information and documents, and pay a $28 application fee. However, no fee is payable on an application under section 61 of the Act, which deals with applications for consent to assign or sublet. This asymmetry in fee obligations reduces the cost of challenging a landlord's refusal to consent, but the prescribed form of agreement for section 61 must be Form 3 and must accompany the application.

A landlord who wishes to exclude the implied warranty of fitness for purpose has a duty to draw the tenant's attention to a notice in Form 4 before the tenant executes the agreement. The notice must be placed immediately above the tenant's signature line and printed in characters of a minimum size. If the landlord does not comply, the warranty remains in force. This gives the landlord a right to contract out of the warranty, but only if the prescribed formality is strictly observed. The tenant has a corresponding right to be given that notice and to know that the warranty is excluded.

For leases exceeding five years, the landlord must have a legal practitioner sign a certificate in Form 6, and must give the tenant a notice in Form 7. These are prerequisites for the validity of the term. The tenant has the right to receive that notice and to rely on the certificate. Without them, the lease may be limited to five years.

When goods are abandoned, the landlord has a duty to send a Form 8 notice to the former tenant and a Form 9 notice to any person with an interest in the goods, and to publish a Form 9 notice in a newspaper. The landlord also must keep prescribed records of any sale. This gives the landlord the right to sell the goods to recover costs, but only after the notice period and only if the sale is by public auction. The former tenant and interested third parties have the right to receive those notices and to claim the goods before sale.

The Commercial Tribunal has a duty to transfer actions to a court in certain circumstances under section 56 of the Act. However, regulation 6AA gives the Tribunal a right not to transfer if the reason is solely that an amendment has made the claim a small claim, or the claim has increased above the prescribed amount only due to the passage of time. This preserves the Tribunal's jurisdiction in cases where the technical change in value does not warrant a transfer.

The regulations themselves do not create criminal penalties or civil fines. They prescribe forms, procedures, and exclusions, but enforcement relies on the Landlord and Tenant Act 1936 and the general law of contract. However, non-compliance with the regulations can have serious practical consequences for a landlord or tenant, which operate as de facto penalties.

If a landlord fails to give the Form 4 notice or does not place it correctly before the tenant signs, the implied warranty of fitness for purpose remains in force. The tenant can then sue for breach of warranty if the premises are not fit for the permitted use. This could result in damages far exceeding the cost of compliance. The landlord effectively loses the right to exclude the warranty, which is the intended enforcement mechanism.

If a landlord does not obtain a legal practitioner's certificate in Form 6 or give the tenant notice in Form 7, the term of the lease may be limited to five years under section 66A of the Act. The tenant can argue the lease is only valid for five years, and the landlord may lose the benefit of a longer term. This is a substantial commercial penalty.

If the landlord does not follow the abandoned goods procedure, the sale may be unlawful. The tenant or a person with an interest in the goods may sue for conversion or trespass. The landlord may also be unable to recover the costs of removal, storage, and sale from the proceeds. The regulation requires the landlord to keep prescribed records; failure to do so may hamper any defence in a later dispute.

The Commercial Tribunal may refuse to hear an application if the correct form is not used or the required fee is not paid. Regulation 6 gives the Registrar the ability to approve forms; if a party uses an unapproved form, the application may be rejected. This can delay proceedings and cause additional costs.

The exclusionary provisions in regulation 8, 9 and 10 mean that tenants in certain categories have no access to protections under Part 4. That is not a penalty on the landlord, but it is a de facto enforcement of the legislative policy that certain industries and entities should operate outside Part 4. If a tenant of the Aboriginal Lands Trust tries to invoke Part 4, the Tribunal must decline jurisdiction.

The application fee of $28 is a small deterrent to frivolous applications but is not punitive. The fact that no fee is payable for section 61 applications (consent to assign or sublet) reduces the financial barrier to tenants seeking assignment or subletting rights.

Overall, the regulations enforce compliance through the denial of beneficial rights and protections to the non-complying party, rather than through fines or criminal sanctions. The burden of compliance falls heavily on landlords, who must ensure they use the right forms for warranty exclusion, five year terms, and abandoned goods.

The regulations are subordinate legislation under the Landlord and Tenant Act 1936. They implement and fill out Part 4 of that Act. They must be read together with sections 55 to 67A of the Act. The Act provides the substantive rights and the definitions; the regulations provide the procedural forms and the exclusions.

The most significant interaction is with the Retail Shop Leases Act 1995. These regulations expired on 1 September 1997 because the Retail Shop Leases Act introduced a new code for retail shop leases. However, the regulations continue to apply to retail shop leases entered into before 30 June 1997. This creates a two-tier system for South Australian retail shop tenants: those with pre-30 June 1997 leases are governed by the old Act and these regulations; those with later leases are under the Retail Shop Leases Act. Practitioners must identify the commencement date of the lease to determine which regime applies.

The Liquor Licensing Act 1985 interacts closely with regulation 8. If premises are licensed under that Act, the landlord is excluded from sections 64 and 66 (warranty of fitness for purpose) and, if the hours are fixed by or under that Act, from section 65 (trading hours). The policy reason is that the liquor licensing regime already imposes conditions on the use and hours of the premises, so further regulation under Part 4 is considered unnecessary. This reduces compliance costs for the hospitality industry but removes protections from tenants of licensed premises.

The exclusion of the Aboriginal Lands Trust from Part 4 means that tenants of the Trust are subject only to the general law of contract and any other applicable legislation. The Trust is a statutory body; the exclusion presumably reflects an intention to allow the Trust to manage its commercial properties without the procedural constraints of Part 4. This may affect indigenous economic development but at the cost of tenant protections.

The exclusion of the South Australian Brewing Company group from sections 59, 60, 61, 62 and 62A of the Act means that tenants in tied hotels cannot use the Act's procedures for rent review, assignment or subletting, or disclosure. This interaction with the Liquor Licensing Act and the tied house system reflects an industry-specific carve-out.

The regulations also interact with the law of property and obligations in respect of abandoned goods. The procedure in regulation 7B does not override the common law rules on bailment or the rights of secured creditors. A landlord who fails to comply with the notice requirements may be liable in conversion. The regulations provide a safe harbour if the prescribed forms are used.

The Commercial Tribunal is established under the Act. The regulations prescribe the forms it must accept and the circumstances in which it may keep jurisdiction over a claim. This interacts with the jurisdiction of the Magistrates Court and District Court, as the Tribunal must normally transfer matters that exceed its monetary limit.

The regulations were originally made in 1985 and commenced on 1 January 1986. They were amended 13 times before they expired. The legislative history lists each variation.

The first variation was 198/1987, which varied regulation 6(1) and Form 2, effective 20 August 1987. In 1988, two amendments occurred: 222/1988 inserted regulation 8 (exclusions for licensed premises and brewing companies), and 245/1988 inserted regulation 9 (Port Dock Railway Museum exclusion). Both took effect on their gazettal dates.

In 1989, regulation 9 was substituted by 3/1989, effective 12 January 1989. This corrected the wording of the museum exclusion.

The most substantial changes came in 1991. Variation 141/1991 varied regulation 6(1) to update the application fee, effective 1 July 1991. Variation 187/1991, effective 1 September 1991, deleted regulation 4, inserted regulation 6A (written statements), inserted regulation 7A (five year terms), inserted regulation 7B (abandoned goods), substituted regulation 8, and varied Forms 1, 3, and 4, and inserted Forms 5 to 9. This was the major expansion of the regulations.

Variation 279/1991, effective 1 February 1992, substituted regulation 6(1) and inserted regulation 6AA (circumstances where transfer to court not required) and inserted regulation 7B(3) (prescribed information for abandoned goods sales). This refined the procedural rules.

In 1992, variation 150/1992 varied regulation 6(1) again for fee changes. In 1993, variation 67/1993 inserted regulation 10 (Aboriginal Lands Trust exclusion), effective 22 April 1993. Variation 140/1993 varied regulation 6(1) for fees.

In 1994, variation 146/1994 substituted regulation 8(1) to narrow the brewing company exclusion to directly owned hotels, effective 25 August 1994.

In 1995, variation 56/1995 varied regulation 6(1) for fees. In 1996, variation 91/1996 varied regulation 6(1) for the final fee adjustment, effective 1 July 1996.

The regulations expired on 1 September 1997 by operation of the Retail Shop Leases Act 1995, section 81. The historical versions listed are Reprint No 1 (8.2.1995) and Reprint No 2 (1.7.1995).

The pattern of amendments shows frequent fee updates and a gradual expansion of procedural protections for tenants in the early 1990s, followed by a narrowing of exclusions for the brewing industry in 1994. The exclusion of the Aboriginal Lands Trust came relatively late, in 1993.

The source text does not name any court cases. The regulations themselves are procedural and have been expired for over 25 years, so there is little current litigation. However, any dispute over a pre-30 June 1997 retail shop lease may require interpretation of these regulations. Possible issues include whether the warranty exclusion notice was properly given (compliance with the typeface and placement requirements), whether the five year term certificate was valid, or whether the abandoned goods procedure was correctly followed. The exclusion of the Brewing company entities has likely been litigated, but no cases are referenced.

Given the source limitation, no litigation history can be provided beyond noting that the regulations may have been cited in South Australian Commercial Tribunal and court decisions. The requirement to stay grounded in the source means we cannot speculate.

Several traps exist in these regulations, particularly for those who assume they no longer apply. The most important: these regulations are expired but continue to apply to retail shop leases entered into before 30 June 1997. A tenant who signed a lease in 1996 that has been renewed or is still running may still be subject to the old rules. The landlord or tenant may not realise this and may inadvertently rely on the Retail Shop Leases Act procedures, which could be invalid. It is essential to check the date the original lease was entered into, not the date of any later variation or extension.

The form requirements are strict. The Form 4 notice must be printed in characters no smaller than those in the Gazette version of the form. If it is typed, it must be in 12 pitch, defined as no more than 12 characters in a 25mm passage. A notice that does not meet these size requirements is ineffective, and the warranty will not be excluded. Landlords should keep a copy of the Gazette version for comparison.

The placement of the Form 4 notice is also critical: it must be immediately above the place for the tenant's signature in the document referred to in section 62(1) of the Act. That document is the written statement of the terms of the agreement. If the notice is elsewhere in the lease, it is not effective.

For five year terms, both the legal practitioner's certificate in Form 6 and the tenant notice in Form 7 are required. If either is missing, the term may be limited to five years. This applies even if the landlord and tenant agreed to a longer term. The certificate must be signed by a legal practitioner. A landlord cannot self-certify.

The abandoned goods provisions require notices to be sent to the former tenant, to any person with an interest in the goods, and to be published in a newspaper. If the landlord sells the goods without complying, the tenant or interest holder may have a claim for conversion. The landlord must also keep detailed records of the sale.

The application fee is $28. That amount was set in the 1990s and has not been updated because the regulations expired. However, it still applies to pre-1997 leases. Inflation means the real cost of the fee has decreased, which may encourage more applications, but the Tribunal may have updated its fees separately under its own power. Check the current practice.

The exclusions are broad. A tenant of a hotel owned by a South Australian Brewing Company entity cannot use the Act for rent review, assignment or subletting, or disclosure. A tenant of licensed premises has no warranty of fitness for purpose. A tenant of the Aboriginal Lands Trust has no Part 4 protections at all. Tenants in those categories may not realise they have fewer rights than a standard commercial tenant.

The definition of "12 pitch" is non-standard. It is based on character count per 25mm, not the traditional point size. A typeface that appears to be 12 point may still not satisfy the regulation if it is proportionally spaced. Use a font with fixed pitch or measure carefully.

Finally, these regulations are from South Australia. They do not apply in other states. Anyone dealing with an interstate lease must check the relevant local legislation.

To comply with these regulations, a landlord must first determine whether the lease in question is a retail shop lease entered into before 30 June 1997. If it is, the regulations still apply. If it is not, these regulations do not apply, and the Retail Shop Leases Act 1995 or general law governs.

For security bonds, the party paying the bond to the Tribunal must lodge a completed Form 1. The form is in the Schedule; it must be filled in according to the instructions.

For applications to the Commercial Tribunal, the party must use a form approved by the Commercial Registrar for the relevant application. The form must include all required information and documents, and be accompanied by the $28 application fee, unless the application is under section 61 of the Act (consent to assign or sublet), in which case the fee is waived and Form 3 must be used.

If a landlord wishes to exclude the implied warranty of fitness for purpose, the landlord must draw the tenant's attention to a notice in Form 4 before the tenant executes the lease. The notice must be placed immediately above the tenant's signature line in the written statement of terms. The characters must be no smaller than the corresponding characters in the Gazette version of Form 4. If typed, the type must be 12 pitch, meaning no more than 12 characters in a 25mm passage. The landlord should retain a signed copy of the lease with the notice in place as evidence.

For a lease term exceeding five years, the landlord must arrange for a legal practitioner to sign a certificate in Form 6. The landlord must then give the tenant a notice in Form 7. Both forms are prescribed. The certificate confirms the tenant has received independent legal advice. The notice informs the tenant of the commitment. Without these, the term is limited to five years.

If the tenant abandons goods on the premises after the lease ends, the landlord must send a notice in Form 8 to the former tenant. The landlord must also send a notice in Form 9 to any person known to have an interest in the goods. Additionally, the landlord must publish a notice in Form 9 in a newspaper circulating in the area. After the notice period, the landlord may sell the goods by public auction. The landlord must keep a record of each sale item including the date of sale, buyer, auction details, sale amount, costs of removal storage and sale, and a description of the item. These records should be preserved in case of a dispute.

The Commercial Tribunal, when dealing with a claim that would otherwise be transferred to a court, should consider whether regulation 6AA applies. If the claim became a small claim by amendment, or if the claim exceeded the prescribed amount only because time passed, the Tribunal may exercise its discretion not to transfer. This avoids unnecessary costs and delays.

Tenants should check whether their lease is subject to any of the exclusions in regulations 8, 9 or 10. If it is, the tenant cannot rely on Part 4 protections. The tenant should negotiate for express contractual protections in those areas.

Legal practitioners should ensure the Form 6 certificate is accurate and that the tenant has indeed received independent advice. The certificate and notice must be retained as part of the lease documentation.

Overall, compliance requires attention to the prescribed forms, correct placement of notices, and adherence to the measurement requirements for typeface. The forms themselves are not reproduced in the text of the regulations as provided, so the practitioner must obtain them from the Government Gazette or the South Australian legislation website. Given the regulations are expired and only applicable to a diminishing set of leases, it is a niche area, but one that can catch out the unwary when a pre-1997 lease is still active.