South Australian Current Acts South Australian Current Acts12—Lessee to be given disclosure statement
(1) A lessor, or the
lessor's agent, must, before a retail shop lease is entered into, give the
lessee a disclosure statement for the lease signed by or on behalf of the
lessor in accordance with the requirements set out in subsection (4).
Maximum penalty: $8 000.
(1a) A
disclosure statement for a retail shop lease is not required to be given in
respect of a renewal of a retail shop lease.
(2) A
disclosure statement is a written document stating or containing—
(a) the
address of the shop; and
(b) the
lettable area of the shop; and
(c) the
permitted uses of the shop; and
(d) the
term of the lease; and
(e) the
hours during which the lessee will have access to the shop outside trading
hours; and
(f) the
date on which the shop will be available for occupation; and
(g) the
amount of the base rent payable under the lease and the basis on which the
base rent may be changed; and
(h) any
other rent payable under the lease and the basis of its calculation; and
(i)
each category of outgoings the lessee is to be liable to
pay or reimburse (in whole or part), and an estimate of the lessee's annual
liability for outgoings of each category; and
(j)
whether the amount the lessee is required to pay towards outgoing includes a
margin of profit for the lessor and, if so, the percentage profit or the basis
on which the profit is to be calculated; and
(k) the
nature of any other monetary obligations imposed on the lessee under the lease
and, if possible, an estimate of the annual cost of complying with those
obligations; and
(l)
whether any right to renew or extend the term of the lease is given by the
lease and, if so, the nature of the right; and
(m) the
legal consequences of breach of a term of the lease (including the
consequences of early termination of the lease by the lessee); and
(n) a
warning that oral representations made by the lessor or the lessor's agent on
which the lessee has relied should be reduced to writing and signed by or on
behalf of the lessor before the lessee enters into the lease; and
(o) a
warning that the lessee should obtain independent legal and financial advice
before entering into the lease.
(3) If the shop is
situated in a retail shopping centre, the disclosure statement must also
state—
(a) the
address of the retail shopping centre; and
(b) the
number of shops in the retail shopping centre and their total lettable area;
and
(c) the
number of parking bays available for the use of customers of the shop and the
number of parking bays available for use by the lessee and the lessee's
employees; and
(d) the
nature of the facilities and services provided by the lessor; and
(e)
whether changes to the retail shopping centre are proposed and, if so, the
nature of the changes; and
(f) the
core trading hours; and
(g) the
current tenant mix and any proposed changes to the current tenant mix; and
(h)
whether the lessor is prepared to give the lessee an assurance that the
current tenant mix will not be altered to the lessee's disadvantage by the
introduction of a competitor; and
(i)
whether there is a tenant association and, if so, the
nature of the association, the voting rights of members, and the contributions
payable by members; and
(j)
whether contributions are or may be required towards the costs of advertising
and promoting the shopping centre and, if so, the estimated annual
contribution to be required from the lessee.
(3a) A
disclosure statement must comply with requirements of the regulations about
the form in which it is to be presented.
(4) A
disclosure statement provided under subsection (1) must be served on the
lessee—
(a) by
personal service on the lessee or the lessee's agent; or
(b) by
leaving it for the lessee at—
(i)
the lessee's usual or last known place of residence or
business; or
(ii)
in the case of a lessee that is a company, the company's
registered office,
with someone apparently over the age of 16 years; or
(c) by
serving it by post on the lessee or the lessee's agent at the lessee's or
agent's address provided by the lessee or agent for the purpose; or
(d) by
transmitting it by fax or email to a fax number or email address provided by
the lessee or lessee's agent for the purpose (in which case the
disclosure statement will be taken to have been served at the time of
transmission); or
(e) in
any other manner prescribed by the regulations.
(4a) Service by post
is effected by addressing, prepaying and posting the disclosure statement, and
service will be taken to have occurred when the disclosure statement would be
delivered in the ordinary course of post.
(4b) A lessee or
lessee's agent must, within 14 days of being served with the
disclosure statement, return a signed acknowledgement of receipt of the
disclosure statement to the lessor or the lessor's agent.
(5) If a disclosure
statement is not given as required by subsection (1), or contains
information that at the time it is given is materially false or misleading,
the Magistrates Court may, on application by the lessee, make one or more of
the following orders as may be appropriate in the circumstances of the
case—
(a) an
order avoiding the lease in whole or part;
(b) an
order varying the lease;
(c) an
order requiring the lessor to repay money paid by the lessee;
(d) an
order requiring the lessor to pay compensation to the lessee;
(e) an
order dealing with incidental or ancillary matters.
(6) However, an order
cannot be made under subsection (5) on the ground that a
disclosure statement is incomplete or contains information that is materially
false or misleading if—
(a) the
lessor has acted honestly and reasonably and ought reasonably to be excused;
and
(b) the
lessee has not been substantially prejudiced.