A new Bill for the recovery of ESMs in shopping centres

OK – so this is one with a bit of a history to it.

Since about 2015, it became clear that s 251 of the Building Act 1991 (Vic) prevented landlords from recovering from their tenants the cost of essential safety measures and other costs of complying with that Act (see https://samhopperbarrister.com/2015/05/01/landlords-ability-to-recover-outgoings-curtailed/).

Amendments were made to the RLA 2003 and the Building Act last year that allow landlords to recover essential safety measures from tenants of retail premises leases (see https://samhopperbarrister.com/2020/06/19/retail-leases-amendment-bill-2019-passed-though-the-lower-house-and-tabled-before-the-upper-house/).

This left landlords in shopping centres in the awkward position of being able to recover ESMs from retail tenants, but not from non-retail tenants.

To address this, the Building Amendment (Registration and Other Matters) Bill 2021 (Vic) was introduced into Victorian Parliament yesterday. The Member of Parliament introducing the Bill described its purposes as:

This bill will enable retail landlords to recover costs associated with the maintenance of essential safety measures from tenants under a retail lease located within a retail shopping centre that does not fall under the definition of a retail premises lease in the Retail Leases Act 2003.

A copy of the Explanatory Memorandum is available here:

A copy of the Bill is available here:

It appears that landlords of leases that are not in shopping centres and are not under the RLA 2003 still face difficulties in recovering ESMs from their tenants.

Thanks to Sean Huggins from Gadens for alerting me to this.