77Unconscionable conduct of a landlord

77 Unconscionable conduct of a landlord S. 77(1) amended by No. 82/2005 s. 32(1)(a)(b). (1) A landlord under a retail premises lease or a proposed retail premises lease must not, in connection with the lease or proposed lease, engage in conduct that is, in all the circumstances, unconscionable. Section 78 deals with unconscionable conduct by a tenant. (2) Without limiting the matters to which the Tribunal may have regard for the purpose of determining whether a landlord has contravened subsection (1), the Tribunal may have regard to— (a) the relative strengths of the bargaining positions of the landlord and tenant; and (b) whether, as a result of conduct engaged in by the landlord, the tenant was required to comply with conditions that were not reasonably necessary for the protection of the landlord's legitimate interests; and (c) whether the tenant was able to understand any documents relating to the lease; and (d) whether any undue influence or pressure was exerted on, or any unfair tactics were used against, the tenant or a person acting on the tenant's behalf by the landlord or a person acting on the landlord's behalf in relation to the lease, for example— (i) concerning trading on Sundays or days that are public holidays where the premises are located; or S. 77(2)(d)(ii) amended by No. 82/2005 s. 32(2). (ii) to agree to a lease term of less than the minimum period provided by section 21; and (e) the amount for which, and the circumstances under which, the tenant could have acquired an identical or equivalent lease from a person other than the landlord; and (f) the extent to which the landlord's conduct towards the tenant was consistent with the landlord's conduct in similar transactions between the landlord and other similar tenants; and (g) the requirements of any applicable industry code; and (h) the requirements of any other industry code, if the tenant acted on the reasonable belief that the landlord would comply with that code; and (i) the extent to which the landlord unreasonably failed to disclose to the tenant— (i) any intended conduct of the landlord that might affect the tenant's interests; and (ii) any risks to the tenant arising from the landlord's intended conduct that are risks that the landlord should have foreseen would not be apparent to the tenant; and (j) the extent to which the landlord was willing to negotiate the terms and conditions of any lease with the tenant; and (k) the extent to which the landlord acted in good faith; and (l) the extent to which the landlord was not reasonably willing to negotiate the rent under the lease; and (m) the extent to which the landlord unreasonably used information about the turnover of the tenant's or a previous tenant's business to negotiate the rent; and (n) the extent to which the landlord required the tenant to incur unreasonable fit out costs. (3) In considering whether a landlord has contravened subsection (1), the Tribunal— (a) must not have regard to any circumstances that were not reasonably foreseeable at the time of the alleged contravention; and (b) may have regard to circumstances existing before the commencement of this section but not to conduct engaged in before that commencement.