43Meaning of current market rent

43 Meaning of current market rent

(1)  A retail lease that provides for rent to be calculated or reviewed by the current market rent, or that provides an option to renew or extend the lease at current market rent, is taken to include provisions to the following effect:

(a) the current market rent is the rent that would reasonably be expected to be paid for the retail premises, determined on an effective rent basis, having regard to the following matters:

(i) the provisions of the retail lease;

(ii) the rent that would reasonably be expected to be paid for the retail premises, in a free and open market between a willing landlord and a willing tenant in an arm’s length transaction, if they were unoccupied and offered for rent for the same or substantially similar use to which the retail premises may be put under the lease;

(iii) the gross rent, less the landlord’s outgoings payable by the tenant;

(iv) rent concessions and other benefits that are frequently or generally offered to prospective tenants of unoccupied retail premises;

(b) for paragraph (a), the current market rent is not to take into account the value of goodwill created by the tenant’s occupation or the value of the tenant’s fixtures and fittings on the retail premises.

(2)  If a landlord and a tenant do not agree on what the amount of the current market rent is to be, it is to be determined by a valuation carried out by a specialist retail valuer appointed by –

(a) an agreement between the landlord and the tenant; or

(b) if there is no agreement, the Director.

(3)  A landlord and a tenant are to pay the costs of a valuation by a specialist retail valuer in equal shares.

(4)  A landlord must, within 14 days after a request is made to the landlord by the specialist retail valuer, supply the valuer with relevant information about retail leases for retail premises located in the same building or retail shopping centre to assist the valuer to determine the current market rent.

Penalty:  In the case of –

(a) a body corporate, a fine not exceeding 50 penalty units; and