Notice of Minister’s decision about the Retail Leases Regulations 2013 (Vic)

April 12, 2013

Property / leasing

Regular readers will be aware that the Retail Leases Regulations 2003 (Vic) will sunset shortly and that the Minister for Innovation, Services and Small Business recently released a Regulatory Impact Statement and called for submissions about proposed new Regulations.

The Acting Minister Minister for Innovation, Services and Small Business published in the Victoria Government Gazette on 8 April 2013 notice of his decision to make the proposed Retail Leases Regulations 2013 (Vic), subject to a number of amendments.

The amendments are summarised in the Gazette entry as follows:

  • The prescribed percentage for the purposes of section 47(5)(b)(i) of the Act, as provided under Regulation 12 has been retained at 10%.
  • Transitional arrangements have been provided so as to enable landlords to continue to use the Disclosure Statement formerly prescribed by the Retail Leases Regulations 2003 until 22 July 2013.
  • A further item has been included in each of the Disclosure Statements in Schedules 1, 2, 3 and 4.  This new rule requires retail landlords (or a tenant in the case of Schedule 4) to disclose to the prospective retail tenant (or assignee in the case of Schedule 4) any alteration or demolition works to the premises or building/centre in which the premises is locate, including surrounding roads or land adjacent to, or in close proximity to, the retail premises, during the term of the lease (or any further terms) where such works are planned or known to the retail landlord (or tenant in the case of Schedule 4) at the time of disclosure;  and
  • other minor amendments to correct or clarify words used in Schedules 1, 2, 3 and 4.

A copy of the Gazette entry is available here: Gazette entry (8 April 2013).

I cannot see a copy of the new Regulations online yet.

Practitioners acting for landlords should note the following:

  1. landlords can continue to use the current form of disclosure statement until 22 July 2013;
  2. solicitors acting for landlords should ensure that their precedents (as well as and their clients’ and clients’ managing agents’ precedents) are updated with the new disclosure statements prior to 22 July 2013;
  3. it is prudent to make appropriate diary notes now to remind yourselves to check for the new regulations in the lead-up to 22 July 2013;  and
  4. if your clients are themselves planning to redevelop their centres or are aware of any neighbours that are planning to redevelop, they should start thinking now about the new disclosure obligations so that they can be prepared to give adequate disclosure when the new form takes effect.

Practitioners acting for tenants should be aware that the existing disclosure statement creates difficulties for assigning tenants (see an earlier post here).  An assignors’ disclosure statement has been foreshadowed in the new Regulations.  It is likely to be available to assignors under the new Regulations before 22 July 2013.  When acting for a tenant that is assigning its lease, practitioners should check to see whether the new form of disclosure statement is in force and, if it is, consider using the new form rather than the current form.

The Retail Leases Regulations 2003 (Vic) sunset on 23 April 2013.

For a useful discussion on the differences between the current Regulations and the proposed Regulations, refer to an excellent note prepared by Allens Linklaters, available here.  It should be noted that this note pre-dates the latest Gazette entry from the Acting Minister.

Thanks to Peter Lowenstern from the REIV for forwarding to me a copy of the recent Gazette entry.

About Sam Hopper

Sam is a property and insolvency barrister.

View all posts by Sam Hopper

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