Western Australian Current Acts

[Index] [Table] [Search] [Search this Act] [Notes] [Noteup] [Previous] [Next] [Download] [Help]

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.]



AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback