COMMERCIAL TENANCY (RETAIL SHOPS) AGREEMENTS ACT 1985 - SECT 11
COMMERCIAL TENANCY (RETAIL SHOPS) AGREEMENTS ACT 1985 - SECT 11
11 . Rent review, provisions for in lease and conduct of etc.
(1) A provision in a
retail shop lease for review of the amount of rent payable under the lease
during the currency of the lease is void unless the lease specifies, in
respect of each occasion on which the review is to be made, a single basis on
which the review is to be made.
(2) If a retail shop
lease provides for the review during the currency of the retail shop lease of
the amount of rent payable under the retail shop lease having regard to the
market rent of the retail shop concerned —
(a) that
market rent shall, for that purpose, be taken to be the rent obtainable at the
time of that review in a free and open market as if, all the relevant factors,
matters or variables used in proper land valuation practice having been taken
into account, that retail shop were vacant and to let on similar terms as are
contained in the current retail shop lease, and is not to take into account
the value of —
(i)
the goodwill of the business carried on in the retail
shop; or
(ii)
any stock, fixtures or fittings in the retail shop that
are not the property of the landlord; or
(iii)
any structural improvement, or alteration, of the retail
shop carried out, or paid for, by the current tenant;
and
(b)
unless specific provision is made in the retail shop lease for the time at
which a review may be initiated, a party to the retail shop lease may not more
than 3 months before the date on which that review is to be carried out and
not more than 6 months after that date, initiate the review by notice in
writing served on the other party to the retail shop lease; and
(c) a
provision in the retail shop lease purporting to preclude the increase or
reduction of that market rent or to limit the extent to which that market rent
may be increased or reduced is void.
(2a) A provision in a
retail shop lease purporting to preclude the tenant from voluntarily
disclosing the rent under the lease is void.
(3) A retail shop
lease that provides for review of the amount of rent payable during the
currency of the lease shall be taken to provide that where the parties do not
agree on the rent payable as a result of the review, the question shall be
resolved, subject to subsection (5), by any of the following —
(a) a
person licensed under the Land Valuers Licensing Act 1978 agreed to by each
of the parties;
(ba) a
person licensed under that Act and nominated, at the request of each of the
parties, by the Small Business Commissioner;
(b) 2
persons licensed under that Act, one of whom is appointed by the landlord and
one of whom is appointed by the tenant.
(3a) If the parties to
a retail shop lease referred to in subsection (3) do not agree on the rent
payable as a result of the review concerned, the rent payable immediately
before that review shall not be increased or reduced before the question is
resolved or determined under this section, but nothing in this subsection
prevents any increase or reduction in rent which takes place after that
resolution or determination from being due and payable with effect from the
date of that review.
(3B) A landlord under
a retail shop lease must, to assist in determining the rent payable as a
result of the review, within 14 days after being given a written request to do
so by a person who acts under subsection (3), give that person such relevant
information as is requested, including any of the following information, about
leases for retail shops in the same building or retail shopping centre —
(a)
current rental for each lease;
(b) rent
free periods or any other form of incentive;
(c)
recent or proposed variations of any lease;
(d)
outgoings for each lease;
(e) any
other information prescribed for the purposes of this paragraph.
(3C) If a landlord
fails to comply with a request made under subsection (3B) without reasonable
excuse —
(a) the
person who made the request must, within 7 days after the landlord has failed
to comply with the request, give to the tenant written notice of the
landlord’s failure; and
(b) the
tenant may apply in writing to the Tribunal for an order that the landlord
comply with a request made under subsection (3B) to supply the information
requested.
(4) A person who acts
under subsection (3) shall, at the request of and on payment of the required
fee by a party to the lease, provide reasons for his decision in writing to
that party.
(5) Notwithstanding
subsection (3), a party to a retail shop lease may refer to the Tribunal for
determination a question as to the rent payable as a result of the review by
the parties where —
(a) the
persons acting under subsection (3)(b) fail to reach an agreement on the rent
to be paid; or
(b) a
person has not acted under subsection (3) and the leave of the Tribunal has
been obtained,
but otherwise such a
question shall not be referred to the Tribunal.
[(6), (7) deleted]
(8) In determining a
question under subsection (5) the Tribunal, after considering all the
circumstances of the case, may determine that any increase or reduction in
rent payable as a result of the determination of the Tribunal under that
subsection is payable over such period as the Tribunal thinks fit.
[Section 11 amended: No. 48 of 1990 s. 8; No. 66
of 1998 s. 7; No. 55 of 2004 s. 120; No. 20 of 2011 s. 31; No. 59 of 2011
s. 8.]