Lawyers Certificates in Retail Leases and Commercial Leases

Governments across Australia have passed special laws to protect many small businesses in their lease arrangements.

In the ACT, the Leases (Commercial and Retail) Act 2001 applies to most leases for retail shop premises, and small commercial premises.

Rights under the Act

Under this Act, tenants have extra rights under their Lease beyond what is written in the document. These include:

Section 30: The right to be given a Disclosure Statement about the Lease at least 14 days before the tenant enters into the Lease. This statement contains a summary of the key terms of the lease.

Tenants can waive this notice period by giving the Landlord a ‘Section 30 Certificate’.

Section 104: If the term of the lease is less than five years, the tenant has the right to extend the term of the Lease to five years.

Tenants can waive this right by giving the Landlord a ‘Section 104 Certificate’.

Section 108: If the lease is in the retail area of a shopping centre, the landlord must assume that the tenant intends to extend their lease when it expires and give them preferential treatment when re-leasing the area.

Under section 111 of the Act, a Landlord can include a ‘certified exclusionary clause’ in the lease which excludes this right. The exclusionary clause will only take effect if the tenant also gives the landlord a ‘Section 111 Certificate’.

How are these certificates given?

These certificates can only be given by a lawyer. The lawyer must act for the tenant and cannot also act for the landlord. The lawyer must certify that they have advised their client about the rights that they are waiving. The certificate also needs to be given before the lease is entered into.

Often, landlords will require that tenants must see a lawyer and provide these certificates before they will agree to lease premises to them at all.

Whether you are a landlord or a tenant, it is important that you appreciate that the rights and obligations that come with a commercial or retail lease are not limited just to what appears in the lease. Our team of commercial and retail lease experts can help you understand your rights, and make sure your lease accurately reflects what the landlord and the tenant have agreed.