Part 6Alterations and other interference with the shop

Part 6—Alterations and other interference with the shop 37—Lessee to be given notice of alterations and refurbishment (1) A retail shop lease is taken to provide that the lessor must not commence to carry out an alteration or refurbishment of the building or retail shopping centre of which the retail shop forms part that is likely to adversely affect the business of the lessee unless— (a) the lessor has notified the lessee in writing of the proposed alteration or refurbishment at least one month before it is commenced; or (b) the alteration or refurbishment is necessitated by an emergency and the lessor has given the lessee the maximum period of notice that is reasonably practicable in the circumstances. (2) However, this section does not apply to routine maintenance or repairs. 38—Lessee to be compensated for disruption etc (1) A retail shop lease is taken to provide that if the lessor— (a) inhibits access of the lessee to the shop in a substantial manner; or (b) takes action that would inhibit or alter, to a substantial extent, the flow of customers to the shop; or (c) unreasonably takes action that causes significant disruption of, or has a significant adverse effect on, trading of the lessee in the shop; or (d) fails to take all reasonable steps to prevent or put a stop to anything attributable to causes within the lessor's control that causes significant disruption of, or which has a significant adverse effect on, trading of the lessee in the shop; or (e) fails to rectify any breakdown of plant or equipment under the lessor's care or maintenance; or (f) in the case of a shop within a retail shopping centre—fails to clean, maintain or repair the retail shopping centre (including common areas), and the lessor does not rectify the matter as soon as reasonably practicable after being requested in writing by the lessee to do so, the lessor is liable to pay the lessee reasonable compensation for loss or damage (other than nominal damage) suffered by the lessee as a consequence. (2) In determining whether a lessor has acted unreasonably for the purposes of subsection (1)(c), due consideration is to be given to whether the lessor has acted in accordance with recognised shopping centre management practices. (3) A retail shop lease may include a provision preventing or limiting a claim for compensation under the provisions implied by this section in respect of a particular occurrence if the likelihood of the occurrence was specifically drawn to the attention of the lessee in writing before the lease was entered into. For example, a disclosure statement would be an appropriate means of specifically drawing the attention of the lessee to the likelihood of an occurrence. (4) The provisions implied by this section do not apply to any action taken by the lessor— (a) as a reasonable response to an emergency situation; or (b) in compliance with a duty imposed by or under an Act or resulting from a requirement imposed by a public or local authority acting under the authority of an Act. 39—Demolition (1) If a retail shop lease provides for termination of the lease on the grounds of proposed demolition of the building of which the retail shop forms part, the lease is taken to include provision to the following effect: (a) the lease cannot be terminated on that ground unless and until the lessor has provided the lessee with details of the proposed demolition sufficient to indicate a genuine proposal to demolish that building within a reasonably practicable time after the lease is to be terminated; (b) the lease cannot be terminated by the lessor on that ground without at least six months written notice of termination; (c) if notice of termination on that ground is given to the lessee, the lessee may terminate the lease by giving the lessor not less than seven days written notice of termination at any time within six months before the termination date notified by the lessor. (2) If the lease is for a term of 12 months or less, the period of six months in subsection (1)(b) and (c) is shortened in each case to three months. (3) If a retail shop lease is terminated on such a ground and demolition of the building is not carried out within a reasonably practicable time after the termination date notified by the lessor, the lessor is liable to pay the lessee reasonable compensation for damage suffered by the lessee as a consequence of the early termination of the lease, unless the lessor establishes that at the time notice of termination was given by the lessor there was a genuine proposal to demolish the premises within that time. 40—Damaged premises (1) A retail shop lease is taken to provide for the following if the shop or the building of which the shop forms part is damaged— (a) the lessee is not liable to pay rent, or any amount payable to the lessor in respect of outgoings or other charges, that is attributable to a period during which the shop cannot be used under the lease or is inaccessible due to that damage; (b) if the shop is still useable under the lease but its useability is diminished due to the damage, the lessee's liability for rent and any amount for outgoings attributable to a period during which useability is diminished is reduced in proportion to the reduction in useability caused by the damage; (c) if the lessor notifies the lessee in writing that the lessor considers that the damage is such as to make its repair impracticable or undesirable, the lessor or the lessee may terminate the lease by giving not less than seven days notice in writing to the other and no compensation is payable in respect of that termination; (d) if the lessor fails to repair the damage within a reasonable time after the lessee requests the lessor in writing to do so, the lessee may terminate the lease by giving not less than seven days notice in writing of termination to the lessor; (e) paragraphs (a) to (d) do not affect a right of the lessor to recover damages from the lessee in respect of damage or destruction to which those paragraphs apply. (2) However, a lessee is not relieved of the obligation to pay rent if the damage results from the wrongful act or negligence of the lessee or an employee or agent of the lessee unless the lessor is insured against loss of rent under an insurance policy and the lessee contributes to the insurance premium. (3) A retail shop lease must not contain provision the effect of which is to limit a liability of a party to the lease to pay compensation to another party in respect of damage to the shop or the building of which the shop forms part. (4) Nothing in this section prevents the parties to a lease from terminating the lease by agreement if the shop or the building of which it forms part is damaged or destroyed. 41—Employment restriction A retail shop lease must not contain a provision that limits or has the effect of limiting the lessee's right to employ persons of the lessee's own choosing, but this section does not prevent the lease containing any one or more of the following provisions: (a) a provision specifying minimum standards of behaviour for persons employed in the shop; (b) a provision requiring the lessee to comply with the requirements of an industrial award or agreement (such as a construction site agreement) affecting a retail shopping centre in which the shop is situated.