Retail and Commercial Leases Regulations 2010 (SA)

South Australia Retail and Commercial Leases Regulations 2010 under the Retail and Commercial Leases Act 1995

Contents 1 Short title 3 Interpretation 4 Exclusions from application of Act 5 Disclosure statement 6 Warranty of fitness for purpose—exclusion 7 Minimum 5 year term—exclusion 8 Renewal of shopping centre lease—exclusion 8A Prescribed fee 9 Land tax not to be recovered from lessee—exclusion 10 Assignor's disclosure statement 11 Trading hours—procedure for secret ballot 12 Retail Shop Leases Advisory Committee 13 Abandoned goods notice 14 Modification of Landlord and Tenant Act Schedule 1—Form of disclosure statements Schedule 2—Transitional provision Part 2—Transitional provision 2 Transitional provision Legislative history

1—Short title These regulations may be cited as the Retail and Commercial Leases Regulations 2010. 3—Interpretation In these regulations— Act means the Retail and Commercial Leases Act 1995; domestic partner means a person who is a domestic partner within the meaning of the Family Relationships Act 1975, whether declared as such under that Act or not; spouse—a person is the spouse of another if they are legally married. 4—Exclusions from application of Act (1) Pursuant to section 4(2)(g)(ii) of the Act, in respect of a lessor who is a municipal or district council or other authority with the powers and functions of local government, a lessee who is a party to a lease under which the amount of rent payable under the lease does not exceed $50 000 per annum (exclusive of GST) and who— (a) is registered under the Australian Charities and Not-for-profits Commission Act 2012 of the Commonwealth; or (b) is an entity that is not carried on for the purposes of profit or gain to its individual members and that is, by the terms of its constitution, prohibited from making any distribution, whether in money, property or otherwise, to its members; or (c) uses the premises the subject of the lease for the provision of health, welfare, community, cultural, sporting or recreational services on a non‑commercial basis, is prescribed for the purposes of section 4(2)(g) of the Act. (2) Pursuant to section 4(5) of the Act, a retail shop lease is excluded from the application of the Act if— (a) it is a lease of the whole or a part of the National Railway Museum, Lipson Street (South), Port Adelaide; or (b) the Aboriginal Lands Trust is the lessor; or (c) Distribution Lessor Corporation, Generation Lessor Corporation or Transmission Lessor Corporation is the lessor; or (d) the lessor is a body corporate and the lessee or lessees have a controlling interest in the body corporate; or (e) the lessor and the lessee are both bodies corporate and the same person or persons have a controlling interest in both bodies corporate. 5—Disclosure statement For the purposes of section 12(3a) of the Act, a disclosure statement must be presented in the form of Form 1 set out in Schedule 1. 6—Warranty of fitness for purpose—exclusion For the purposes of section 18(2) of the Act, a notice of exclusion of warranty must— (a) be given in writing; and (b) be specifically drawn to the attention of the lessee at the time that the disclosure statement is given to the lessee. 7—Minimum 5 year term—exclusion Pursuant to section 20B(3)(f) of the Act, a retail shop lease is excluded from the ambit of Part 4A Division 2 of the Act if— (a) the lessee is the lessor's spouse, domestic partner, parent, grandparent, step‑parent, child, grandchild, step‑child, brother or sister, or the spouse or domestic partner of the lessor's child, grandchild, step‑child, brother or sister; or (b) the lessor is— (i) an incorporated association within the meaning of the Associations Incorporation Act 1985; or (ii) a body established on a non‑profit basis for a purpose of a kind referred to in section 18(1) of that Act, and the right of occupation granted under the lease is for less than an average of 15 hours in each week over the term of the lease. 8—Renewal of shopping centre lease—exclusion Pursuant to section 20C(2)(d) of the Act, a retail shop lease is excluded from the ambit of Part 4A Division 3 of the Act if it is a lease of the whole or a part of premises known at the commencement of these regulations by the following descriptions: (a) heritage levels 1, 3, 4, 5, 7, 8 and 9 of Shell House, 170 North Terrace, Adelaide; (b) heritage levels 1, 3, 4, 5 and 7 of Goldsbrough House, 172 North Terrace, Adelaide; (c) levels 7 to 12 (inclusive) of Terrace Towers, 178 North Terrace, Adelaide; (d) Elizabeth House, Elizabeth City Centre, Elizabeth; (e) Sidney Chambers, Elizabeth City Centre, Elizabeth; (f) Raleigh Chambers, Elizabeth City Centre, Elizabeth; (g) Windsor Building, Elizabeth City Centre, Elizabeth; (h) levels 2 to 10 (inclusive) of Citi Centre Building, 145 Rundle Mall, Adelaide; (i) levels 1 to 10 (inclusive) of AON House, 63 Pirie Street, Adelaide; (j) levels 1 to 14 (inclusive) of Wyatt House, 115 Grenfell Street, Adelaide. 8A—Prescribed fee For the purposes of section 20K(4) of the Act, the prescribed fee payable to the Commissioner for a certificate under section 20K(3) of the Act is $200. 9—Land tax not to be recovered from lessee—exclusion For the purposes of section 30(3) of the Act, 15 November 1990 is fixed (and, consequently, section 30 of the Act does not apply to a retail shop lease entered into before that date). 10—Assignor's disclosure statement For the purposes of section 45A of the Act, an assignor's disclosure statement must be in the form of Form 2 set out in Schedule 1. 11—Trading hours—procedure for secret ballot For the purposes of section 61(1)(c) of the Act, a secret ballot for the approval of core trading hours must be conducted as follows: (a) the proposed core trading hours must be incorporated into a resolution to be put at a meeting of the persons who are entitled to vote on the matter (see section 61(2) of the Act); (b) the lessor and each lessee of a retail shop affected by the proposal must receive at least 10 days notice of the meeting; (c) the notice must— (i) be in writing; and (ii) state the time and place at which the meeting will be held; and (iii) set out the text of the resolution that is to be put to the meeting; (d) a person who is entitled to vote at the meeting may, by written instrument, appoint another person to act as his or her proxy at the meeting; (e) the person or persons who are proposing the resolution must make up, and provide at the meeting, ballot papers for the purposes of the ballot; (f) the ballot papers must set out the text of the resolution and clearly indicate a place where a person who is voting may vote for, or against, the resolution; (g) the persons present at the relevant meeting must appoint 1 of their number to preside at the meeting and to conduct the ballot; (h) the person presiding at the meeting— (i) may require that the ballot papers be altered or replaced before the ballot is conducted if he or she is dissatisfied with the form or content of the ballot papers, or otherwise considers that it is appropriate to take action under this provision; and (ii) may decide any other question relevant to the conduct of the ballot; (i) each person who casts a vote in the ballot is entitled to scrutinise the counting of votes. 12—Retail Shop Leases Advisory Committee (1) For the purposes of section 73(2) of the Act, the Retail Shop Leases Advisory Committee will be comprised of persons nominated at the invitation of the Commissioner by each of the following bodies: (a) Property Council of Australia Limited; (b) Australian Retailers Association; (d) Shopping Centre Council of Australia Limited; (e) AHA SA Hotels; (f) Australian Lottery and Newsagents Association; (g) Lease1.com.au Pty Ltd; (h) the Law Society of South Australia; (i) the Pharmacy Guild of Australia; (j) the Real Estate Institute of South Australia Incorporated; (k) Savills Australia; (l) Scentre Shopping Centre Management (SA) Pty Ltd; (m) South Australian Independent Retailers Incorporated; (n) South Australian Employers' Chamber of Commerce and Industry Incorporated. (2) The Committee will meet at least once each year. 13—Abandoned goods notice For the purposes of section 76(3) of the Act, a notice of the storage of goods must be in a form that includes— (a) a general description of the goods; and (b) details sufficient to identify the retail shop at which the goods were left; and (c) the date of termination of the lease; and (d) a statement that the goods will be sold if not reclaimed by the payment of reasonable costs as required under section 76 of the Act within the 60 day period referred to in that section; and (e) a statement of how the goods may be reclaimed. 14—Modification of Landlord and Tenant Act (1) For the purposes of section 81(2)(a) of the Act, the following modifications to Part 4 of the Landlord and Tenant Act 1936 (the former legislation) are prescribed: (a) a reference to the Commercial Tribunal (including through the use of the definition the Tribunal) is to be construed as a reference to the Civil (Consumer and Business) Division of the Magistrates Court; (b) section 56 of the former legislation will be taken to have been replaced by the following provision: 56—Substantial monetary claims (1) An action involving a claim arising under or in respect of a commercial tenancy agreement to which this Part applies or a related guarantee should be commenced before the Magistrates Court. (2) An action before the Magistrates Court that involves a monetary claim for $12 000 or less will be taken to be a minor statutory proceeding under the Magistrates Court Act 1991. (3) If an action before the Magistrates Court involves a monetary claim for an amount exceeding $100 000, the Magistrates Court must on the application of a party to the proceeding refer the proceeding to the District Court. (4) If a proceeding is referred to the District Court, the Court has, in addition to the powers that it has apart from this section, the powers that the Magistrates Court has under this Part. (5) In this section— Magistrates Court means the Civil (Consumer and Business) Division of the Magistrates Court.; (c) sections 59, 60, 61 and 65 of the former legislation will be taken to have been repealed; (d) the following sections will be taken to have been inserted after section 72 of the former legislation: 72A—Unlawful threats A landlord or an agent of a landlord must not make threats to the effect that the landlord will not renew or extend the term of tenancy if the tenant exercises a right under this Act. Penalty: Division 5 fine. 72B—Vexatious acts A party to a commercial tenancy agreement must not, in connection with the exercise of a right or power under this Act or the agreement, engage in conduct that is, in all the circumstances, vexatious. Penalty: Division 6 fine. (2) Pursuant to section 81(3) of the Act, the following provisions of the Act apply to a retail shop lease entered into before the commencement of the Act: (a) section 12 (Lessee to be given disclosure statement); (b) section 13 (Certain obligations to be void); (c) section 19 (Security bond); (d) section 20 (Repayment of security); (e) section 31(2) (Estimates and explanations of outgoings to be provided by lessor); (f) section 52 (Statistical information to be made available to lessee); (g) section 61 (Trading hours); (h) Part 9 Division 1 (Mediation). (3) Subregulations (1) and (2) do not affect any determination of core trading hours under the former legislation before the commencement of the Act and such a determination will have effect for the purposes of section 61 of the Act.