Western Australian Consolidated Acts Western Australian Consolidated Acts (1) Subject to this
section, where under a retail shop lease —
(a) the
term of the lease (in this section called the current term ) is less than
5 years; and
(b) the
current term plus any term (in this section called the option term ) that may
be obtained by the tenant by way of an option to renew the lease totals less
than 5 years,
the lease shall be
taken to give the tenant an option to renew the lease for a term commencing
immediately after the expiry of the current term and the option term, if any,
and ending on a day specified by the tenant that is not later than
5 years after the day of commencement of the current term.
(2)
Subsection (1) does not apply to a retail shop lease in respect of
premises —
(a) if
the tenant occupied the premises as a retail shop for a period, including any
time prior to the commencement of this Act, ending immediately before the
commencement of the current term and that period plus the current term and the
option term, if any, totals 5 years or longer; or
(b) if
the landlord holds the premises under a lease (in this section and
section 13A called the head lease ) and renewal of the retail shop lease
or, in the case of a retail shop lease containing an option to renew, renewal
for a term longer than the option term, would be inconsistent with the head
lease.
(3) The option that a
lease is, by reason of subsection (1), taken to give a
tenant —
(a) is
exercisable, by notice in writing in the prescribed form given to the
landlord, not less than 90 days before the expiry of the current term, or
the option term, as the case may require or during such other period before
the expiry of the current term, or the option term, as the case may require as
the Tribunal, having regard to the term of the lease or such other
circumstances as it considers relevant, approves in a particular case; but
(b) is
not exercisable while there exists any unremedied default under the lease on
the part of the tenant notice of which has been given by the landlord, in
writing, to the tenant.
(3a) Notwithstanding
subsection (3), where a party to a retail shop lease has referred to the
Tribunal a question as to whether there is an unremedied default under the
lease by the tenant (being a default of which written notice has been given by
the landlord to the tenant), the Tribunal, after considering all the
circumstances of the case, may determine, by written notice to each party,
that the tenant is not required to exercise the option referred to in
subsection (3) before the expiry of the current term or the option term,
as the case may be, if the question referred to the Tribunal has not been
decided by the time of such expiry; and where the Tribunal makes that
determination and the question is not decided by the time of such expiry, the
current term or the option term, as the case requires, is deemed to be
extended —
(a) if
the question is decided in favour of the landlord, to the time when the
question is decided; or
(b) if
the question is decided in favour of the tenant, to a period ending
7 days after the tenant receives notification of the decision,
and where
paragraph (b) applies, the tenant may exercise the option referred to in
subsection (3) during the period designated in that paragraph.
(3b) Where the current
term or the option term of a lease has been extended under
subsection (3a)(b) and the tenant exercises the option referred to in
subsection (3) during the period of the extension, the lease is deemed to
have been renewed for a term commencing immediately after the time when the
current term or the option term, as the case may be, would have expired if it
had not been so extended.
(4)
Where —
(a) the
landlord under a retail shop lease holds the premises concerned under a head
lease;
(b) it
would be inconsistent with the head lease for the retail shop lease to
continue until the day provided for by subsection (1); and
(c) that
inconsistency is not, by reason of section 13A(1), removed,
the day that may be
specified under subsection (1) as the day until which the retail shop
lease is to be renewed shall be not later than the last day until which the
retail shop lease can lawfully continue.
(5) The terms and
conditions upon which a lease is renewable under an option that a lease is, by
reason of subsection (1), taken to give a tenant are the same as those
upon which the lease is held at the time notice is given of the exercise of
that option, except that —
(a) the
tenant does not have any further option under subsection (1) to renew the
lease; and
(b)
where the lease does not provide for a review of rental, the lease shall be
taken to provide that the rental payable during the term for which the lease
is renewed shall be determined having regard to the market rent of the
premises ascertained as provided in section 11(2).
(6) The landlord under
a retail shop lease to which subsection (1) applies is not entitled to
determine the lease before the expiry of the term that may be obtained by the
tenant under that subsection, except —
(a) by
reason of default by the tenant or failure of the tenant to remedy any such
default in accordance with the lease;
(b) by
reason that —
(i)
it would be inconsistent with a head lease under which
the premises are held by the landlord for the retail shop lease to continue;
and
(ii)
that inconsistency is not, by reason of
section 13A(1), removed;
(c)
under and in accordance with a provision that is included in the lease with
the approval in writing of the Tribunal given under subsection (7) or
(7a); or
(d)
where the Tribunal has granted an application by the tenant under
subsection (7b).
(7) The Tribunal may,
upon application made to it by the landlord notice of which has been given to
the tenant, approve of the inclusion in a retail shop lease of a provision
under which the landlord may determine the lease at a time that is before the
expiry of the term that may be obtained by the tenant under
subsection (1) otherwise than for a reason mentioned in
subsection (6)(a) or (b) if it is satisfied that special circumstances
exist by reason of which such approval ought to be given.
(7a) A landlord in
relation to a retail shopping centre may make an application under
subsection (7) as to any number of retail shop leases in respect of that
centre where he is of the opinion that the same special circumstances exist in
relation to each lease the subject of his application, and the Tribunal may
exercise its powers under that subsection accordingly.
(7b) The Tribunal may,
on application in writing by a tenant or prospective tenant, order that an
option of renewal does not arise under subsection (1), if it is satisfied
that —
(a) the
application was made by the tenant or prospective tenant of his own free will;
and
(b) the
circumstances of the case warrant the granting of the application.
(8) Where the tenant
under a retail shop lease assigns the lease, the term to which the assignee
becomes entitled is the balance of the term of the assigning tenant,
determined as provided by the lease including, where applicable, the option
arising under subsection (1), as at the date of the assignment.
(9) Notwithstanding
any other written law, the right of a tenant under subsection (1) is not
affected by any assignment or other disposition of the reversion of the
premises to which the lease relates.
(10) For the purposes
of this section and notwithstanding section 68 of the Transfer of Land
Act 1893 , an option in a retail shop lease for the tenant to renew the
lease is exercisable against any person with a reversionary interest in the
premises the subject of the lease whether or not the lease is registered or
protected by caveat.
[Section 13 amended by No. 49 of 1985
s.4; No. 48 of 1990 s.10; No. 55 of 2004 s. 124.]