It’s sometimes tough for business owners to know whether the Retail Leases Act applies to their shopfront. Tenants have greater protections under retail leasing legislation and so correctly identifying whether a retail lease applies is important to ensure the landlord complies. Factors such as location or lease term might exclude certain properties. We break down below the retail legislation in each state, when it applies as well as the exceptions to help you understand which laws apply to your business.

New South Wales

Legislation When Does it Apply? Exceptions
Retail Leases Act 1994 (NSW)
  • Applies to all retail shop leases entered into after 1 August 1994.
  • ‘Retail shop’ refers to sites used wholly or predominantly for the carrying on of a business listed in Schedule 1 of the Act. This can include bookshops, barbers and general stores.
  • A retail shop also includes any business located in a shopping centre.
  • Leases for a term of 6 months or less without any option to renew.
  • Leases for a term of 25 years or more, including an option to renew.
  • Shops with a floor space exceeding 1000 square metres.
  • Shops run by a landlord on a tenant’s behalf.
  • Shops where a principal business is leasing space to a secondary space (e.g. where a cinema leases part of its space to a stall selling t-shirts and the same party controls both businesses).
  • Sites in office towers that are part of a retail shopping centre.

Queensland

Legislation When Does it Apply? Exceptions
Retail Shop Leases Act 1994 (QLD)
  • Applies to all retail shop leases.
  • A retail shop means a premises that is:
    • located in a shopping centre; or
    • used wholly or predominantly to carry on a specific retail business.
  • Where the business operates as a service station franchise and the Competition and Consumer (Industry Codes—Oilcode) Regulation 2006 (Cth) applies.
  • If a tenant entered into the lease after 3 April 2006 and the term is less than six months (including any option to renew).
  • The definition of retail shop excludes the following:
    • sites smaller than 1000 metres squared;
    • sites greater than 1000 metres squared;
    • ad hoc or temporary sites (e.g. a stall at a cultural festival);
    • sites where the tenant acts as the landlord (e.g. the tenant is a member of a body corporate and acting as the landlord); and
    • sites within the South Bank area.

Victoria

Legislation When Does it Apply? Exceptions
The Retail Leases Act 2003
  • Applies to any lease of a retail premises entered into after the 1 May 2003.
  • A retail premises has the primary purpose of providing retail goods and services.
  • Sites where rent and outgoings exceed a million dollars annually.
  • Sites operated by a tenant on behalf of their landlord.
  • Sites leased by a company listed on a major stock exchange.
  • Sites leased for a term less than one year;
  • Where the lease requires the tenant to carry out substantial works on the property or incur significant costs to improve the property; and the tenant can’t remove the works (or improvements) when they leave; and
  • Sites located within the Melbourne markets.

South Australia

Legislation When Does it Apply? Exceptions
Retail and Commercial Leases Act 1995
  • Applies to all retail shop leases entered into after 30 June 1995.
  • A retail shop means a shop that:
    • sells goods to the public; or
    • provides services to the public.
  • A lease under the South Australian Act includes subleases, licences and informal agreements (both express and implied).
  • Sites where the annual rent is more than $400,000.
  • Sites where the lease is one month or less.
  • Sites where the tenants are banks, publicly listed companies (or their subsidiaries), insurance companies or the government.
  • Sites where the tenant and landlord are the same.

Tasmania

Legislation When Does it Apply? Exceptions
Fair Trading (Code of Practice for Retail Tenancies) Regulations 1998

Applies to leases that meet the following three requirements:

· Site concerned is a retail premises

· Site is less than 1000 metres squared

· Agreement entered into on/after 1 September 1988.

For the purposes of the Code, ‘retail premises’ means any business located in a shopping centre or any business whose premises used wholly or dominantly for a purpose described in Appendix C of the Code. Appendix C contains items such as ‘flower shop’ and ‘delicatessen shop’.

The Tasmanian Code defines ‘lease’ broadly, so short-term and informal agreements, including occupancy agreements also fall within the reach of the legislation.

Sites of more than 1000 metres squared

· Sites run by a tenant on behalf of a landlord

· In situations where the tenant and the landlord are the same person – for example, if the owner of a cinema leases part of the space to run a stall selling T-shirts

Western Australia

Legislation When Does it Apply? Exceptions
Commercial Tenancy (Retail Shops) Agreements Act 1985 (‘RSA’)

Applies to any lease of a retail premises entered into after the 1st of May 2003.

For the purposes of the act a ‘retail premises’ is a premises with the primary purpose of providing retail goods and services.

Sites with an area of more than 1000 metres squared

· Sites leased by a publicly listed corporation, or a body corporate with securities listed on a stock exchange outside Australia

· Leases that pertain exclusively to the operation of an ATM or vending machine

Australian Capital Territory

Legislation When Does it Apply? Exceptions
Business Tenancies (Fair Dealings) Act 2003

Applies to all retail shop leases entered into after 1 January 2013.

The RSA also applies to leases entered into before the 1 January 2013, but not in its entirety. S123a, which deals with fit-out and s14c, which deals with refurbishment, are considered void in relation to these leases.

For the purposes of the Act, ‘retail shop’ means any business in a retail shopping centre or any business that is wholly or predominantly a retail business.

· Premises with floor space of more than 1000 square metres

· Premises leased by a publicly listed corporation or a subsidiary of such a corporation

Northern Territory

Legislation When Does it Apply? Exceptions
Business Tenancies (Fair Dealings) Act 2003 (‘BTA’)

Applies to all retail shop leases entered into after the 1 of July 2004.

A broad view of lease is taken and licences, occupancy agreements and other forms of non-exclusive occupation are all covered as are implied agreements and oral agreements.

For the purposes of the legislation, ‘retail shop’ means any business carried on in a shopping centre or any premises used wholly or primarily for the provision of services or the sale of goods by retail.

  • Sites with floorspace of more than 1000 metres squared
  • Sites operated by a tenant on behalf of a landlord

Shops where a principal business is leasing space to a secondary business – for instance, where a cinema leases part of its space to a stall selling t-shirts

  • and the two businesses are controlled by the same interested parties
  • Sites tenanted by publicly listed corporations
  • Leases with a term of 6 months or less and without any right to extension via the exercise of an option
  • Leases with a term exceeding 25 years, including any options for renewal

A lease held over by a tenant after the expiry of the initial term – although certain sections of the BTA do apply to such leases.

Key Takeaways

It’s important to know whether the retail leasing legislation in your state applies to your business so that you can accurately identify your duties and obligations, as well as those of your landlord.

The legislation varies on a state-by-state basis, as shown in the table above, but generally speaking for business to be covered by retail leases legislation, they must:

  • Be located within a shopping centre or primarily devoted to the provision of retail goods or services
  • Have a lease term of more than 1 month and in some jurisdictions more than 6 months
  • Be operated by a tenant who is not a publicly listed company and is not carrying on business activities on behalf of a landlord