Western Australian Current Acts

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COMMERCIAL TENANCY (RETAIL SHOPS) AGREEMENTS ACT 1985 - SECT 9

9 .         Key-money or goodwill, provision for in lease is void in some cases

        (1)         Subject to subsection (2), a provision in a retail shop lease to the effect that the landlord or a person claiming through him is entitled to, or may require from the tenant —

            (a)         key-money; or

            (b)         any consideration in respect of the goodwill of the business,

                is void.

        (1a)         Without limiting subsection (1), where a retail shop lease provides to the effect that the landlord or a person claiming through him is entitled to or may require from the tenant money or any other benefit in consideration of —

            (a)         a rent under the lease which is lower than the rent which would otherwise be payable; or

            (b)         a future reduction in rent payable under the lease,

                that money or other benefit is to be taken to be key-money for the purposes of subsection (1) unless the landlord or person claiming through him proves otherwise.

        (2)         Subsection (1) or (1a) shall not be construed so as to make void a provision in a retail shop lease for the landlord to receive or recover from the tenant —

            (a)         any sum that the tenant has agreed to pay to the landlord in respect of the goodwill of a business carried on by the landlord in the retail shop concerned immediately before the lease was entered into; or

            (b)         expenses reasonably incurred by the landlord in investigating a proposed assignee of the tenant or sub-lessee of the premises; or

            (c)         fair and reasonable expenses of the landlord in respect of the negotiation, preparation or execution of, or obtaining the necessary consents to, an assignment of the lease or a sub-lease of the premises.

        (3)         Any amount paid or the value of any benefit conferred by a person under a provision of a lease that is void by reason of subsection (1) or (1a) may be recovered by that person from the person to whom the amount was paid or on whom the benefit was conferred upon an application to the Tribunal for an order that the money sought be paid or in a court of competent jurisdiction as a debt due.

        [Section 9 amended: No. 48 of 1990 s. 6; No. 55 of 2004 s. 119; No. 23 of 2014 s. 4.]



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