Update on Retail Leases Amendment Regulations 2022 – Important reminder of a Landlord’s disclosure obligations

On 27 September 2022 the Retail Leases Amendment Regulations 2022 (Vic) (Amendment) was passed by the Victorian Parliament and comes into effect on 1 December 2022.

The Amendment makes changes to the Retail Leases Regulations 2013 (Vic) (Regulations), which brings the prescribed form Landlord disclosure statements contained within the Regulations into line with the 2020 amendments made to the Retail Leases Act 2003 (Vic) (RLA).  Our previous insight on the 2020 amendments to the RLA can be accessed here.

A summary of the changes is as follows:

• The cover page note to the Landlord disclosure statements for premises not located in shopping centres and premises located in shopping centres are both updated to confirm the disclosure statement and a copy of the proposed lease must be given at least 14 days before entering into a lease, as required by Section 17(1) of the RLA. This timeframe was previously seven days up until the 2020 amendments were made to the RLA and the proposed lease was not referenced.
• Sections relevant to outgoings estimates in Landlord disclosure statements are updated to include notes referencing a Landlord’s liability for certain costs with respect to maintenance and repair under Section 52 of the RLA.
• The Landlord’s disclosure statement on renewal now requires the Landlord to provide details of any changes from the previous disclosure statement given. This reflects the requirement under Section 26(2)(a) of the RLA which was also introduced under the 2020 amendments. Interestingly, no equivalent changes were made with respect to Section 28(1A)(e) of the RLA, which also requires Landlords to give tenants details of the most recent disclosure statement provided to the tenant (other than rent) at the time the Landlord gives an option reminder notice.

While the changes to the Regulations are mostly administrative in nature, they do serve as a timely reminder of when a Landlord’s disclosure statement must be given to retail tenants. We are seeing many landlords continue to overlook the additional disclosure obligations and then having to deal with the consequences, which in some instances can be material.

The changes also provide some welcomed practical guidance as to the nature of details landlords should be giving tenants under Section 26(2)(a) of the RLA when providing a disclosure statement on renewal.

Landlords and their advisors should update their template disclosure statements from 1 December 2022 to ensure they contain these changes made by the Amendment.  A reminder that the RLA requires all disclosure statements to be given in the form prescribed by the Regulations.

Please contact us if you require any assistance or advice in relation to the Amendment or your disclosure obligations.

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Authored by:
Alexandra Walker, Partner
Lui Scipioni, Partner
Michael Mercier, Senior Associate