1. How do I know whether my lease is regulated under the Retail Leases Act?
2. What is the ‘term’ of a Lease?
3. When must a Lease be registered?
4. Is GST payable under a Lease?
5. Can a lessor enter upon the premises during the Lease term?
6. What happens if there is a dispute?
1. How do I know whether my lease is regulated under the Retail Leases Act?
The Retail Leases Act regulates leased premises to businesses listed in Schedule 1 of the Retail Leases Act 1994 (NSW). This Schedule may be viewed at
2. What is the ‘term’ of a Lease?
The ‘term’ of a lease is the period the lessee is given the right to occupy the premises (subject to the further provisions of the lease).
At the expiration of the term, subject to agreement with the lessor, a lessee may remain in possession of the premises on a ‘holding over basis’ (usually on a month by month term).
If the Lease is regulated by the Retail Leases Act 1994 (NSW), section 16 of the Act dictates the term (inclusive of any option to renew the term) of a lease must not be less than five (5) years unless a certificate pursuant to Section 16(3) is provided by the lessee’s solicitor/conveyancer. The certificate must state that the lessee or prospective lessee:-
- requested the certificate, and
- the lessee or prospective lessee has had explained the effect of Section 16 of the Act and that the giving of the certificate will result in this section not applying to the lease.
3. When must a Lease be registered?
A lease must be registered when the term (inclusive of any option to renew the lease) exceeds three (3) years. It is recommended that registration be affected as soon as practicable after the execution of the lease. This is usually arranged by the lessor or lessor’s solicitor.
If the lease term (together with any option if applicable) is less than three (3) years, the lease document may still become registered on the title or alternatively, the lessee may elect to lodge a caveat over the title to the premises to register the equitable interest of the lessee under the lease.
4. Is GST payable under a Lease?
If the lease dictates that Goods and Services Tax (GST) is payable in connection with rent and/or outgoings, then the lessee must make payment of any GST to the lessor in accordance with the terms of the lease.
Other monies payable under a lease (for example enforcement legal expenses, repair works, etc) may also attract GST.
5. Can a lessor enter upon the premises during the Lease term?
Yes, if the lease says so, however it is common practice for the lessor to give notice in certain circumstances provided such circumstances are not for an emergency.
6. What happens if there is a dispute?
If the lease is regulated under the Retail Leases Act, and you are unable to resolve your dispute, you may have the dispute heard by the Administrative Decisions Tribunal (ADT): Retail Leases Division. Depending on the nature of the dispute, you may elect to be represented at the Tribunal by an independent legal practitioner.
If the lease is a standard commercial lease, you may elect to seek independent legal advice in order for the dispute to be addressed on your behalf. Failing an amicable resolution, and depending on the nature of the dispute, court proceedings may be initiated.
