42Timing and basis of rent reviews

42 Timing and basis of rent reviews

(1)  If a retail lease provides for a review of the rent payable under the lease, or under an option to renew or extend the lease, the lease must state –

(a) when the review is to take place; and

(b) the basis on which, or formulae with respect to which, the review is to be made.

(2)  A retail lease must not provide for a review of the rent to be made more frequently than once in each 12-month period after the first anniversary of the commencement of the lease.

(3)  For the avoidance of doubt, subsection (2) does not apply to –

(a) the first year of a retail lease; or

(b) a change to the rent by a specified amount or a specified percentage that is set out in the retail lease.

(4)  A retail lease may provide for a review of the rent to be made using different bases or formulae during the term of the retail lease, but each review must be made using only one basis or formula.

(5)  If a lease does not state the date on which a proposed review of the rent is due or the basis on which, or formulae in respect of which, the review of the rent is to be made, an adjustment to the rent is not to be made.

(6)  A provision of a retail lease is void to the extent that it –

(a) prohibits a reduction of the rent, unless the reduction of rent is in accordance with section 41(4) ; or

(b) reserves or has the effect of reserving to one party to the retail lease a discretion to decide which of two or more bases or formulae for calculating a change to the rent is to apply on a particular occasion; or

(c) provides a basis or formula for calculating a change to the rent but reserves or has the effect of reserving to one party a discretion to decide whether or not the rent is to be changed in accordance with that basis or formula on a particular occasion; or

(d) provides for the rent to change on a particular occasion in accordance with whichever of two or more bases or formulae for calculating the change would result in the higher or highest rent.