Western Australian Current Acts Western Australian Current Acts (1) Subject to this
section, where under a retail shop lease —
(a) the
term of the lease (in this section called the current term ) is more than 6
months but less than 5 years; and
(b) the
current term plus any term (in this section called the option term ) that may
be obtained by the tenant by way of an option to renew the lease totals more
than 6 months but less than 5 years,
the lease shall be
taken to give the tenant an option to renew the lease for a term commencing
immediately after the expiry of the current term and the option term, if any,
and ending on a day specified by the tenant that is not later than 5 years
after the day of commencement of the current term.
(2A) For the purposes
of subsection (1), a lease for a term of more than 6 months includes a tenancy
where the tenant has been continuously in possession of the retail shop for
more than 6 months as a result of either or both of the following —
(a) the
lease being renewed (one or more times);
(b) the
lease being continued.
(2) Subsection (1)
does not apply to a retail shop lease in respect of premises —
(a) if
the tenant occupied the premises as a retail shop for a period, including any
time prior to the commencement of this Act, ending immediately before the
commencement of the current term and that period plus the current term and the
option term, if any, totals 5 years or longer; or
(b) if
the landlord holds the premises under a lease (in this section and section 13A
called the head lease ) and renewal of the retail shop lease or, in the case
of a retail shop lease containing an option to renew, renewal for a term
longer than the option term, would be inconsistent with the head lease.
(3) The option that a
lease is, by reason of subsection (1), taken to give a tenant —
(a) is
exercisable, by notice in writing in the prescribed form given to the
landlord, not less than 30 days before the expiry of the current term, or the
option term, as the case may require or during such other period before the
expiry of the current term, or the option term, as the case may require as the
Tribunal, having regard to the term of the lease or such other circumstances
as it considers relevant, approves in a particular case; but
(b) is
not exercisable while there exists any unremedied default under the lease on
the part of the tenant notice of which has been given by the landlord, in
writing, to the tenant.
(3a) Notwithstanding
subsection (3), where a party to a retail shop lease has referred to the
Tribunal a question as to whether there is an unremedied default under the
lease by the tenant (being a default of which written notice has been given by
the landlord to the tenant), the Tribunal, after considering all the
circumstances of the case, may determine, by written notice to each party,
that the tenant is not required to exercise the option referred to in
subsection (3) before the expiry of the current term or the option term, as
the case may be, if the question referred to the Tribunal has not been decided
by the time of such expiry; and where the Tribunal makes that determination
and the question is not decided by the time of such expiry, the current term
or the option term, as the case requires, is deemed to be extended —
(a) if
the question is decided in favour of the landlord, to the time when the
question is decided; or
(b) if
the question is decided in favour of the tenant, to a period ending 7 days
after the tenant receives notification of the decision,
and where paragraph
(b) applies, the tenant may exercise the option referred to in subsection (3)
during the period designated in that paragraph.
(3b) Where the current
term or the option term of a lease has been extended under subsection (3a)(b)
and the tenant exercises the option referred to in subsection (3) during the
period of the extension, the lease is deemed to have been renewed for a term
commencing immediately after the time when the current term or the option
term, as the case may be, would have expired if it had not been so extended.
(4) Where —
(a) the
landlord under a retail shop lease holds the premises concerned under a head
lease; and
(b) it
would be inconsistent with the head lease for the retail shop lease to
continue until the day provided for by subsection (1); and
(c) that
inconsistency is not, by reason of section 13A(1), removed,
the day that may be
specified under subsection (1) as the day until which the retail shop lease is
to be renewed shall be not later than the last day until which the retail shop
lease can lawfully continue.
(5) The terms and
conditions upon which a lease is renewable under an option that a lease is, by
reason of subsection (1), taken to give a tenant are the same as those upon
which the lease is held at the time notice is given of the exercise of that
option, except that —
(a) the
tenant does not have any further option under subsection (1) to renew the
lease; and
(b)
where the lease does not provide for a review of rental, the lease shall be
taken to provide that the rental payable during the term for which the lease
is renewed shall be determined having regard to the market rent of the
premises ascertained as provided in section 11(2).
(6) The landlord under
a retail shop lease is not entitled to determine the lease —
(aa) if
the lease is a lease referred to in subsection (1), before the day on which
the term that may be obtained by the tenant under that subsection expires; or
(ab) if
the lease is a lease the current term of which, or the current term plus the
option term, is 5 years or longer, before the day that is 5 years after the
day on which the current term commenced,
except —
(a) by
reason of default by the tenant or failure of the tenant to remedy any such
default in accordance with the lease; or
(b) by
reason that —
(i)
it would be inconsistent with a head lease under which
the premises are held by the landlord for the retail shop lease to continue;
and
(ii)
that inconsistency is not, by reason of section 13A(1),
removed;
or
(c)
under and in accordance with a provision that is included in the lease with
the approval in writing of the Tribunal given under subsection (7) or (7a); or
(da)
under and in accordance with a provision of the lease that is the same, or
substantially the same, as a provision prescribed for the purposes of this
section; or
(d)
where the Tribunal has granted an application by the tenant under subsection
(7b), in relation to a lease referred to in paragraph (aa).
(7) The Tribunal may,
upon application made to it by the landlord notice of which has been given to
the tenant, approve of the inclusion in a retail shop lease of a provision
under which the landlord may determine the lease (other than under subsection
(6)(a), (b) or (da)) before the day set out in subsection (6)(aa) or (ab), as
is relevant, if it is satisfied that special circumstances exist by reason of
which such approval ought to be given.
(7a) A landlord in
relation to a retail shopping centre may make an application under subsection
(7) as to any number of retail shop leases in respect of that centre where he
is of the opinion that the same special circumstances exist in relation to
each lease the subject of his application, and the Tribunal may exercise its
powers under that subsection accordingly.
(7b) The Tribunal may,
on application in writing by a tenant or prospective tenant, order that an
option of renewal does not arise under subsection (1), if it is satisfied that
—
(a) the
application was made by the tenant or prospective tenant of his own free will;
and
(b) the
circumstances of the case warrant the granting of the application.
(8) Where the tenant
under a retail shop lease assigns the lease, the term to which the assignee
becomes entitled is the balance of the term of the assigning tenant,
determined as provided by the lease including, where applicable, the option
arising under subsection (1), as at the date of the assignment.
(9) Notwithstanding
any other written law, the right of a tenant under subsection (1) is not
affected by any assignment or other disposition of the reversion of the
premises to which the lease relates.
(10) For the purposes
of this section and notwithstanding section 68 of the
Transfer of Land Act 1893 , an option in a retail shop lease for the tenant to
renew the lease is exercisable against any person with a reversionary interest
in the premises the subject of the lease whether or not the lease is
registered or protected by caveat.
[Section 13 amended: No. 49 of 1985 s. 4; No. 48
of 1990 s. 10; No. 55 of 2004 s. 124; No. 59 of 2011 s. 11.]