South Australian Consolidated Acts South Australian Consolidated Acts62—Provisions relating to written agreements prepared by or on behalf of
landlords
(1) This section
applies to a document—
(a) that
is intended to constitute a commercial tenancy agreement (or part of such an
agreement), or a memorandum of such an agreement; and
(b) that
has been prepared by the landlord or a legal practitioner or other person
acting on behalf of the landlord.
(2) Where a document
to which this section applies is presented to a tenant for execution—
(a) the
document must specify in a clear and concise manner—
(i)
where the tenancy is for a fixed term—the term of
the tenancy and any agreement that the parties may have made in relation to
extension or renewal of the term;
(ii)
the rent payable under the agreement or the method by
which that rent is to be calculated and, if provision is made for review or
alteration of rent during the term of the tenancy, the time and manner in
which the review or alteration may be made; and
(b) with
each document that is presented to the tenant, there must be an accompanying
written statement in the prescribed form—
(i)
setting out in a clear and concise manner the information
required by the regulations; and
(ii)
advising the tenant to read and sign the statement, and
to read the document, before the tenant executes the document.
(3) The tenant should
sign the statement before executing the document.
(4) When a tenant
executes a document to which this section applies, a photocopy of the
document, together with a photocopy of the statement provided under
subsection (2)(b), must be given immediately to the tenant.
(5) The landlord must,
upon execution of the document by the tenant, if the landlord has not already
done so, execute the document.
(6) The landlord must
comply with subsection (5) as soon as is reasonably practicable.
(7) A fully executed
copy of the document (with the statement required under subsection (2)(b)
attached) must be delivered to the tenant within 28 days after the payment of
any stamp duty chargeable on it under the Stamp Duties Act 1923 or, if
the document is to be registered under the Real Property Act 1886 or the
Registration of Deeds Act 1935 within 28 days after a copy is made
available for collection from the Lands Titles Registration Office or the
General Registry Office following registration (unless the tenant has
undertaken responsibility to stamp and, if appropriate, register the
document).
(8) A landlord who
fails to comply with a provision of this section is guilty of an offence.
Penalty: Division 9 fine.
(9) Subject to
subsection (10), non-compliance with this section does not affect the
validity of a commercial tenancy agreement.
(10) If—
(a) a
landlord—
(i)
fails to provide a written statement to a tenant under
subsection (2); or
(ii)
provides a written statement that is not true and correct
in a material respect; or
(iii)
fails to provide a copy of a document to a tenant under
subsection (4); and
(b) on
the application of the tenant, the Tribunal is satisfied that, in the
circumstances, an order under this subsection is justified,
the Tribunal may, by order, to such extent as may be appropriate and fair in
the circumstances—
(c)
avoid the commercial tenancy agreement, in whole or part;
(d) vary
the commercial tenancy agreement;
(e)
direct the landlord to refund money paid under the commercial tenancy
agreement;
(f)
require the landlord to pay compensation to the tenant;
(g) deal
with any ancillary or incidental matter.
(11) The Tribunal
should, in considering an application under subsection (10), take into
account—
(a) the
gravity of, and the circumstances surrounding, the landlord's actions;
(b) the
conduct of both the landlord and the tenant in relation to the commercial
tenancy agreement and any negotiations surrounding the making of the
agreement;
(c) the
extent of any loss suffered, or likely to be suffered, by the tenant as a
result of the landlord's actions;
(d) the
effect that making an order, or not making an order, would have on each party,
and may take into account such other matters as the Tribunal thinks fit.