South Australian Consolidated Acts

LANDLORD AND TENANT ACT 1936 - SECT 66A

66A—Provision for five-year terms

        (1)         Subject to this section, where—

            (a)         the right of occupancy conferred by a commercial tenancy agreement is for a term of less than five years (not being a right that arises if the tenant holds over after the expiration of the term); and

            (b)         the agreement makes no provision for extension or renewal of the tenancy so that its aggregate term will equal or exceed five years,

this section applies to the agreement.

        (2)         This section does not apply to a commercial tenancy agreement—

            (a)         if the term of the tenancy is two months or less and the tenant has before entering into the agreement sought and received independent advice from a legal practitioner and the legal practitioner has signed a certificate in the prescribed form as to the giving of that advice; or

            (b)         if the tenant is the landlord's spouse, parent, grandparent, step-parent, child, grandchild, step-child, brother or sister, or the spouse of the landlord's child, grandchild, step-child, brother or sister; or

            (c)         —

                  (i)         if the landlord is a body corporate and the tenant or tenants have a controlling interest in the body corporate; or

                  (ii)         if the landlord and the tenant are both bodies corporate and the same person or persons have a controlling interest in both bodies corporate.

        (3)         The tenant under a commercial tenancy agreement to which this section applies may apply in writing to the landlord for extension of the term of the tenancy so that the tenancy will expire—

            (a)         on the fifth anniversary of the date of the commencement of the tenancy; or

            (b)         on some specified earlier date.

        (4)         An application under subsection (3) should be made—

            (a)         within 21 days after a notice served on the tenant by the landlord under subsection (5) takes effect; or

            (b)         if no such notice has been served—not later than three months before the expiration of the term of the tenancy conferred by the commercial tenancy agreement,

unless the Commercial Tribunal is satisfied that the failure to make the application within time was occasioned by mistake, absence from the State, or other reasonable cause.

        (5)         The landlord under a commercial tenancy agreement to which this section applies may serve on the tenant—

            (a)         if the tenancy is for a term of six months or less—on or before the commencement of the tenancy;

            (b)         in any other case—not earlier than six months, and not later than three months, before the expiration of the term of the tenancy,

a notice in the prescribed form requiring the tenant to decide whether or not the tenant will make an application under this section.

        (6)         A notice under subsection (5) takes effect—

            (a)         if served before the commencement of the tenancy—on the commencement of the tenancy;

            (b)         in any other case—at the time of service of the notice on the tenant.

        (7)         If—

            (a)         a tenant applies to the landlord under subsection (3); and

            (b)         at the expiration of one month from the date of the application the landlord and the tenant have not agreed to an extension of the tenancy on mutually agreed terms,

either may apply to the Commercial Tribunal.

        (8)         On an application under subsection (7), the Tribunal may extend the tenancy for such term (being a term that expires on or before the fifth anniversary of the date on which the tenancy first took effect) and on such terms and conditions as it considers just.

        (9)         The Tribunal should, in considering an application under subsection (7), take into account—

            (a)         the relative bargaining positions of the landlord and tenant at the time the commercial tenancy agreement was entered into;

            (b)         any proposals of the landlord for a new tenancy between the landlord and the tenant;

            (c)         any plans of the landlord for the future use or development of the premises;

            (d)         any prospect the tenant may have of obtaining other comparable premises;

            (e)         any breaches by the tenant of the commercial tenancy agreement,

and may take into account such other matters as the Tribunal thinks fit.

        (10)         Where an application is made to the Commercial Tribunal under this section, the tenancy to which the application relates continues upon the same terms and conditions (subject to any modifications stipulated by the Tribunal) until the application is determined.