Many of our clients ask us ‘Is my lease a retail lease?’ The answer isn’t always straightforward, so to lend some clarity, here are some key points both landlords and tenants should note.
In Victoria, retail leases are governed by the Retail Leases Act 2003 (Vic) (Act) and the accompanying Retail Leases Regulations 2013 (Vic) (Regulations).
Under the Act, the general rule is that a retail lease arises when parties enter into a lease arrangement for a premises used wholly or predominantly for the retail sale or hire of goods or services for a term greater than 1 year.
It is important to note however, that the Act also lists a number of exceptions to this general rule, including:
Any determination made by the Minster is published in the Government Gazette. To date there have been 7 determinations published but only 6 still remain effective. You can access these determinations at http://www.gazette.vic.gov.au/.
In general terms some of these Ministerial determinations exempt:
On 13 October 2014 a new determination excluding premises leased for certain community and charitable purposes, subject to a maximum annual rental, was made. This determination will apply to leases entered into after 1 January 2015, revoking a determination made in 2008 relating to local council premises leased for certain community and charitable purposes.
As highlighted, various factors can determine whether a lease attracts protection under the Act. If you are still uncertain be sure to speak to one of our property lawyers to gain some clear advice on whether your lease is in fact a retail lease.
Posted on: 20 July 2016