Allens

Real Estate

Client Update: Harmonised landlord disclosure statement introduced

20 December 2010

In brief: The new national harmonised landlord disclosure statement has now been introduced in Queensland, Victoria and New South Wales. Special Counsel Christine Adamson (view CV), Lawyer Sara Ironside and Law Graduate Joshua Hill report. 

Introduction

The introduction of a harmonised disclosure statement, created by the National Retail Tenancy Working Group under the direction of the Federal Small Business Ministerial Council, was delayed until 1 January 2011, to allow parties to come to terms with the new form. However, it has now been introduced in Queensland, Victoria and New South Wales.

The new disclosure requirements come into force on 1 January 2011.

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Background

Retail leasing legislation in Queensland, Victoria and NSW requires landlords to provide prospective tenants of a retail shop with a disclosure statement at least seven days before a prospective tenant enters into a retail shop lease. Currently, these disclosure requirements differ from state to state.

These states have implemented changes to their retail leasing legislation by introducing the Retail Shop Leases and Another Regulation Amendment Regulation (No 1) 2010 (Qld), the Retail Leases Amendment Regulations 2010 (Vic) and the Retail Leases Amendment Regulation 2010 (NSW) respectively.

The Queensland Regulation was made on 26 August 2010 and amends section 3 of the Retail Shop Leases Regulation 2006 (Qld). The Victorian Regulation was gazetted on 14 September 2010 and amends Schedule 1 of the Retail Leases Regulations 2003 (Vic), and the NSW Regulation is still to be gazetted but was published on 10 December 2010, and amends Schedule 2, Part 1 of the Retail Leases Act 1994 (NSW).

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Aim of the harmonised disclosure statement

The aim of the harmonised disclosure statement is to assist prospective tenants to make more informed decisions, by requiring landlords to better inform them of their rights and obligations under a prospective retail shop lease.

The new disclosure requirements require landlords to provide more detailed information about key issues affecting tenants' rights and obligations. However, they also benefit landlords and agents that manage retail shopping centres in different states, by providing uniformity in the information required for the disclosure statements. The forms themselves are practically identical, except for minor legislative differences between the states (for example, land tax is not included in either the Queensland or Victorian forms, as the retail legislation for those states prevent landlords from passing these costs on to retail tenants) and minor variations in the guidance notes for various items.

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How does it affect you?

From 1 January 2011, landlords must ensure that any tenant who receives a disclosure statement on or after that date receives one in the new form. This means that landlords who issue a disclosure statement on, for example, 27 December 2010 should prepare it in the new format if the tenant will receive it on or after 1 January 2011. There may need to be a blackout period to ensure that the correct disclosure statement is used, depending on when it is likely to be received by a tenant.

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What do you need to do?

Landlords should be aware that new disclosure obligations commence on 1 January 2011.

The new disclosure statements for Queensland and Victoria, and a draft disclosure statement for NSW, can be accessed on the following websites:

  • Queensland – Department of Justice and Attorney-General: http://www.justice.qld.gov.au/justice-services/courts-and-tribunals – Access the forms from this page by clicking on 'Forms and publications'.
  • Victoria – Office of the Victorian Small Business Commissioner: http://www.sbc.vic.gov.au/images/stories/VSBC_Retail_Leases_Amendment_Regulations_2010.doc
  • New South Wales – NSW Fair Trading: http://www.fairtrading.nsw.gov.au/About_us/Forms.html – Access the forms from this page by clicking on 'Retail tenancy forms'. Please note that the new form is not yet on the website but no doubt it will be in the near future.

For further information, please contact:

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