Part 3Before the lease is entered into

Part 3—Before the lease is entered into 11—Copy of lease to be provided to prospective lessee (1) A person who, as a lessor, or acting on behalf of a lessor— (a) offers to enter into a retail shop lease; or (b) invites an offer to enter into a retail shop lease; or (c) indicates by advertisement by any means that a retail shop is for lease, must, as soon as the person enters into negotiations with a prospective lessee (and before a retail shop lease is entered into), provide the prospective lessee with a written copy of the proposed retail shop lease (but not necessarily including the particulars of the lessee, the rent or the term of the lease). (2) At the time a copy of the proposed retail shop lease is provided to the prospective lessee under subsection (1), the lessor, or a person acting on behalf of a lessor, must also provide the prospective lessee with a copy of the information brochure (if any) about retail shop leases published by the Commission. Maximum penalty: $800. Expiation fee: $120. (3) This section does not apply to or in respect of the renewal of a retail shop lease. 12—Lessee to be given disclosure statement (1) A lessor, or the lessor's agent, must, before a retail shop lease is entered into, give the lessee a disclosure statement for the lease signed by or on behalf of the lessor in accordance with the requirements set out in subsection (4). (1a) A disclosure statement for a retail shop lease is not required to be given in respect of a renewal of a retail shop lease. (2) A disclosure statement is a written document stating or containing— (a) the address of the shop; and (b) the lettable area of the shop; and (c) the permitted uses of the shop; and (d) the term of the lease; and (e) the hours during which the lessee will have access to the shop outside trading hours; and (f) the date on which the shop will be available for occupation; and (g) the amount of the base rent payable under the lease and the basis on which the base rent may be changed; and (h) any other rent payable under the lease and the basis of its calculation; and (i) each category of outgoings the lessee is to be liable to pay or reimburse (in whole or part), and an estimate of the lessee's annual liability for outgoings of each category; and (j) whether the amount the lessee is required to pay towards outgoing includes a margin of profit for the lessor and, if so, the percentage profit or the basis on which the profit is to be calculated; and (k) the nature of any other monetary obligations imposed on the lessee under the lease and, if possible, an estimate of the annual cost of complying with those obligations; and (l) whether any right to renew or extend the term of the lease is given by the lease and, if so, the nature of the right; and (m) the legal consequences of breach of a term of the lease (including the consequences of early termination of the lease by the lessee); and (n) a warning that oral representations made by the lessor or the lessor's agent on which the lessee has relied should be reduced to writing and signed by or on behalf of the lessor before the lessee enters into the lease; and (o) a warning that the lessee should obtain independent legal and financial advice before entering into the lease. (3) If the shop is situated in a retail shopping centre, the disclosure statement must also state— (a) the address of the retail shopping centre; and (b) the number of shops in the retail shopping centre and their total lettable area; and (c) the number of parking bays available for the use of customers of the shop and the number of parking bays available for use by the lessee and the lessee's employees; and (d) the nature of the facilities and services provided by the lessor; and (e) whether changes to the retail shopping centre are proposed and, if so, the nature of the changes; and (f) the core trading hours; and (g) the current tenant mix and any proposed changes to the current tenant mix; and (h) whether the lessor is prepared to give the lessee an assurance that the current tenant mix will not be altered to the lessee's disadvantage by the introduction of a competitor; and (i) whether there is a tenant association and, if so, the nature of the association, the voting rights of members, and the contributions payable by members; and (j) whether contributions are or may be required towards the costs of advertising and promoting the shopping centre and, if so, the estimated annual contribution to be required from the lessee. (3a) A disclosure statement must comply with requirements of the regulations about the form in which it is to be presented. (4) A disclosure statement provided under subsection (1) must be served on the lessee— (a) by personal service on the lessee or the lessee's agent; or (b) by leaving it for the lessee at— (i) the lessee's usual or last known place of residence or business; or (ii) in the case of a lessee that is a company, the company's registered office, with someone apparently over the age of 16 years; or (c) by serving it by post on the lessee or the lessee's agent at the lessee's or agent's address provided by the lessee or agent for the purpose; or (d) by transmitting it by fax or email to a fax number or email address provided by the lessee or lessee's agent for the purpose (in which case the disclosure statement will be taken to have been served at the time of transmission); or (e) in any other manner prescribed by the regulations. (4a) Service by post is effected by addressing, prepaying and posting the disclosure statement, and service will be taken to have occurred when the disclosure statement would be delivered in the ordinary course of post. (4b) A lessee or lessee's agent must, within 14 days of being served with the disclosure statement, return a signed acknowledgement of receipt of the disclosure statement to the lessor or the lessor's agent. (5) If a disclosure statement is not given as required by subsection (1), or contains information that at the time it is given is materially false or misleading, the Magistrates Court may, on application by the lessee, make one or more of the following orders as may be appropriate in the circumstances of the case— (a) an order avoiding the lease in whole or part; (b) an order varying the lease; (c) an order requiring the lessor to repay money paid by the lessee; (d) an order requiring the lessor to pay compensation to the lessee; (e) an order dealing with incidental or ancillary matters. (6) However, an order cannot be made under subsection (5) on the ground that a disclosure statement is incomplete or contains information that is materially false or misleading if— (a) the lessor has acted honestly and reasonably and ought reasonably to be excused; and (b) the lessee has not been substantially prejudiced. 13—Certain obligations to be void (1) An obligation to make or reimburse capital expenditure may only be imposed by or under a retail shop lease or a collateral agreement in the following cases: (a) a lessee may be required to pay or reimburse the cost of making good damage to the premises arising when the lessee is in possession or entitled to possession of the premises; and (b) a lessee may be required to fit or refit the shop, or to provide fixtures, plant or equipment, if the disclosure statement discloses the obligation and contains sufficient details to enable the lessee to obtain an estimate of the likely cost of complying with the obligation; and (c) a lessee may be required to contribute to a sinking fund to cover major items of repair or maintenance if reasonable details of the lessee's obligation are disclosed in the disclosure statement. An obligation that may be imposed under this subsection is called a permissible obligation. (2) A provision of a retail shop lease or a collateral agreement under which a lessee is required or may be required to make or reimburse capital expenditure is void unless the obligation imposed by or under the provision is a permissible obligation. (3) A provision of a retail shop lease or a collateral agreement under which the lessee is required to compensate the lessor for depreciation of the premises attributable to ordinary wear and tear is void; but this subsection is not intended to prevent such depreciation being taken into account in the calculation, or assessment, of base rent. 14—Lease preparation costs (1) If the lessee is liable to pay an amount to the lessor for legal or other expenses incurred by the lessor in connection with the preparation and registration of a retail shop lease (preparatory costs), the lessee cannot be required to make the payment until provided with a copy of any account given to the lessor for the expenses. Preparatory costs include— (a) fees charged by a mortgagee for producing a certificate of title for the land over which a retail shop lease is to be registered or for consenting to the lease; (b) the costs of attendances on the lessee by the lessor, or a lawyer or registered conveyancer acting for the lessor. (2) The lessee's liability for preparatory costs cannot exceed— (a) the actual amount of the government fees for registration of the lease; and (b) one-half of the other preparatory costs. (3) However, this section does not limit the recovery of preparatory costs incurred by the lessor from a person who enters into and then withdraws from negotiations with the lessor. 15—Premium prohibited (1) A lessor must not seek or accept the payment of a premium in connection with the granting of a retail shop lease and a provision of a retail shop lease is void to the extent that it requires the payment of a premium in connection with the granting of the lease. (2) If a lessor or a person acting on behalf of a lessor contravenes this section— (a) the person is guilty of an offence and liable to a penalty not exceeding $15 000; and (b) the lessee is entitled to recover from the lessor as a debt any payment made or the value of any benefit conferred by the lessee and accepted by or on behalf of the lessor in contravention of this section (whether or not the person is convicted of an offence under paragraph (a)). (3) This section does not prevent a lessor— (a) from receiving payment for a right or option to enter into a retail shop lease if, when a retail shop lease is entered into, the payment is refunded or applied towards rent payable under the lease; or (b) from receiving from the lessee payment under a contract with the lessee for carrying out work on the premises before the lessee goes into occupation; or (c) from requiring payment of preparatory costs as permitted by this Act; or (d) from receiving payment of rent in advance; or (e) from securing performance of the lessee's obligations under the lease by requiring a security bond or a guarantee from the lessee or another person (eg a guarantee by the directors of a lessee company guaranteeing performance of the company's obligations under the lease); or (f) from seeking and accepting payment for goodwill of a business that has been conducted by the lessor; or (g) from seeking and accepting payment for plant, equipment, fixtures or fittings that are sold by the lessor to the lessee in connection with the granting of the lease; or (h) from seeking and accepting payment for the grant of a franchise in connection with the granting of the lease; or (i) from seeking and accepting payment of an amount of a prescribed class. 16—Lease documentation (a) if the lease is not to be registered—the lessor must provide the lessee with an executed copy of the lease within 1 month after the lease is returned to the lessor or the lessor's lawyer or agent following its execution by the lessee; (b) if the lease is to be registered—the lessor must lodge the lease for registration within 1 month after the lease is returned to the lessor or the lessor's lawyer or agent following its execution by the lessee, and the lessor must provide the lessee with— (i) an executed copy of the lease; and (ii) confirmation that the lease has been registered, within 1 month of the date of its registration. 18—Warranty of fitness for purpose (1) If the lessor under a retail shop lease had, before entering into the lease, notice from the lessee that the premises were required for carrying on a particular business, the lease is taken to include a warranty that the premises will, for the duration of the lease, be structurally suitable for the purpose. (2) However, the warranty is excluded if the lessor gives notice of the exclusion, in the manner and form required by regulation, before execution of the retail shop lease by the lessee. (2a) An exclusion pursuant to subsection (2) will also be taken to apply to— (a) a renewal or extension of the retail shop lease; and (b) any new retail shop lease between the same parties for the same premises (whether on the same or different terms). (3) An assignee or sub-lessee may sue on the warranty if the assignment or sublease is taken for the purpose of carrying on a business of the same kind. (4) In proceedings for breach of the warranty, it is a defence for the lessor to prove— (a) the premises were structurally suitable for the purpose when the retail shop lease was entered into; and (b) any change in the structural suitability of the premises is not attributable to the lessor.