Retail Leases Amendment Regulation 2010 (NSW)
2010 No 677
New South Wales
Retail Leases Amendment Regulation
2010
under the
Retail Leases Act 1994
Her Excellency the Governor, with the advice of the Executive Council, has made the following Regulation under the Retail Leases Act 1994.
FRANK TERENZINI, MP Minister for Small Business
Explanatory note
The object of this Regulation is to amend the Retail Leases Act 1994 to prescribe matters to be included in the disclosure statement required to be provided by lessors under leases of retail shops. The matters to be disclosed are in line with the national uniform disclosure statement endorsed by the Small Business Ministerial Council.
This Regulation is made under the Retail Leases Act 1994, including sections 11 and 85 (the general regulation-making power) and clause 20 of Schedule 3.
| Published LW 10 December 2010 | Page 1 |
| 2010 No 677 | |
| Clause 1 | Retail Leases Amendment Regulation 2010 |
Retail Leases Amendment Regulation 2010
under the
Retail Leases Act 1994
1 Name of Regulation
This Regulation is the Retail Leases Amendment Regulation 2010.
2 Commencement
This Regulation commences on 1 January 2011 and is required to be published on the NSW legislation website.
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| Schedule 1 | Amendment of Retail Leases Act 1994 No 46 |
Schedule 2 Lessor and lessee disclosure statements
Omit Part 1. Insert instead:
Part 1
Lessor’s disclosure statement
Lessor
Lessee
Premises
Key disclosure items
Note. If the terms “landlord” and “tenant” are substituted for “lessor” and “lessee” in this form, they have the same meanings as “lessor” and “lessee” have, respectively, in the Retail Leases Act 1994.
1 Annual base rent under the lease $ p.a.
(see item 10.1) Including/Excluding
GST
2 Is rent based on turnover payable by the lessee in FYes year 1? F No (see item 12) 3 Total estimated outgoings and promotion and $ marketing costs for the lessee in year 1 Including/Excluding (see Part 5 and Part 6) GST
4 Term of the lease years months (see item 5) 5 Estimated commencement date of the lease / /20 (see item 5.1) 6 Estimated handover date of the premises / /20 (see item 7.1)
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7 Does the lessee have an option to renew for a FYes further period (exercised in writing and given to the lessor on or before the last day stated in the F No option clause)?
(see item 6)8 Does the lease provide the lessee with FYes exclusivity in relation to the permitted use of the premises? F No (see item 2.2) Part 1 Premises
1 Premises details
1.1 Street address of premises
[insert street address of premises and, as applicable, shop number,
name of the building/centre in which the premises are located, street
address of the building/centre]1.2 Plan of premises (if available)
[insert description of premises by reference to a prepared plan. Attach
the plan to this disclosure statement as per item 33.1]1.3 Lettable area of premises m2
Actual/Estimate
Will a survey be conducted? F Yes F No 1.4
Existing structures, fixtures, plant and equipment in the premises, provided by the lessor (excluding any works, fit out and refurbishment described in Part 3)
[Select as appropriate] F air conditioning
F cool room
F floor coverings
F grease trap
F hot water service
F lighting
F mechanical exhaust
F painted walls
F electrical distribution load (3 phase)
F electrical distribution load (single phase)
F separate utility meter—gas
F separate utility meter—water
F separate utility meter—electricity
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F plastered walls
F shop front
F sink
F sprinklers
F suspended ceilings
F telephone
F water supply
F wasteF other
1.5 Services and facilities provided by the lessor for the benefit of the
premises (for example, security services, cleaning)2 Permitted use
2.1 Description of permitted use
[note: the lessee should investigate if the proposed use of the premises
is permitted under planning laws]2.2 Is the permitted use described in item 2.1 exclusive to the lessee?
F Yes F No 3 Number of car parking spaces
3.1 Approximate total spaces spaces 3.2 Available spaces for customers of the spaces building/centre 3.3 Reserved spaces for use of the lessee only spaces 4 Head lease
4.1 Is the premises under a head lease or Crown lease?
F Yes F No 4.2 Has the lessor provided a copy of the head lease or Crown lease to the
lessee?F Yes—attached as per item 33.2
F No
F Not applicable4.3 Current term under the head lease or Crown lease and option/s to renew F Not applicable
F Details of head lease as follows:
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Current term:
years
/ /20 to / /20
Options to renew:
years
/ /20 to / /20
[list any options for further terms held by the lessor under the head
lease]
4.4 Is the head lessor’s consent to the lease required?
F Yes F No Part 2 Term of lease and option/s to renew lease
5 Term of lease
5.1 Date lease commences / /20
(see also date of handover at item 7) Actual/Estimate
5.2 Length of term years months 5.3 Date lease expires / /20 (based on the date indicated at item 5.1 as the date the lease
commences)
6 Option/s to renew lease
6.1 Option/s details F No options to renew lease
F Options as follows:
Length of option Period of option Exercise date
years / /20 to / /20 to / /20 / /20 Actual/Estimate
years / /20 to / /20 to / /20 / /20 Actual/Estimate
[List all options to renew lease]
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Part 3 Works, fitout and refurbishment
7 Date of handover
7.1 Date of handover / /20
(if different to the date the lease commences Actual/Estimate indicated at item 5.1) 8 Lessor’s works
8.1 Description of works to be carried out by the lessor before the date the
lease commences
[exclude any works that form part of the lessee’s fit out at item 9]8.2 Estimate of expected contribution by the lessee towards the cost of the
lessor’s works $ [see also outgoings (item 14) in relation to any maintenance and repair
outgoings]9 Lessee’s fit out works
9.1 Fit out works to be carried out by the lessee
(excluding the lessor’s works at item 8)9.2 Is the lessor providing any contribution towards the cost of the lessee’s
fit out?F Yes [insert details of lessor’s contribution] F No 9.3 Does the lessor have requirements as to the quality and standard of shop
front and fit out?F Yes [insert details or provide fit out guide] F No Part 4 Rent
10 Annual base rent
10.1 Starting annual base rent: $ (i.e. when the lease commences) Including/Excluding GST 10.2 Rent free period
[describe any rent free period]
10.3 Date of rent commencement: / /20
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10.4 How rent payments are to be made?
[insert description of how rent is paid—eg by equal monthly instalments
in advance on the first day of each month, other than the first and last
payments which are calculated on a pro-rata basis]11 Rent adjustment (rent review)
11.1 Rent adjustment date(s) and adjustment method
[insert a list of all rent adjustment dates and adjustment methods—eg
fixed increase by X%, fixed increase by $X, current market rent, indexed
to CPI]12 Rent based on turnover
12.1 Is a rent based on turnover payable by the lessee?
(Note, the lease must specify the method by which a rent based on
turnover is to be determined)F Yes [insert method of calculating the turnover rent] F No 12.2 If a rent based on turnover is not required to be paid, does the lessor
require the lessee to provide details of turnover?
F Yes F No Part 5 Outgoings
13 Contribution by lessee towards lessor’s outgoings
13.1 Is the lessee required to pay or contribute towards the lessor’soutgoings?
F Yes F No 13.2 Describe any period during which the lessee is not required to pay
outgoings13.3 Date on which payment of outgoings is to commence:
/ /20
13.4 Formulae for apportioning outgoings
[insert formulae on how outgoings payable by lessee are to be
apportioned]
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14 Outgoings estimates (annual) for the 12 month period
/ /20 to / /20 [State which of the following are payable by the lessee. The lessor may be
prevented by the Retail Leases Act 1994 from claiming certain costs.]
Estimate (including GST) per annum for the building/centre14.1 Administration
Administration (excluding management fees and wages): $
Audit fees: $Management fees: $
14.2 Air conditioning/temperature control
Air conditioning maintenance: $
Air conditioning operating costs: $14.3 Building/centre management
Body corporate/strata levies: $
Building intelligence services: $
Customer traffic flow services: $
Energy management services: $
Gardening and landscaping: $
Insurance: $
Pest control: $
Ventilation: $14.4 Building/centre security
Caretaking: $
Emergency systems: $
Fire levy: $
Fire protection: $
Security services: $14.5 Cleaning
Cleaning consumables: $
Cleaning costs (excluding consumables): $
14.6 Communications
Post boxes: $
Public telephones: $
14.7 Customer facilities
Car parking: $
Child minding: $
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Escalators: $
Lifts: $Uniforms: $
14.8 Customer information services
Information directories: $
Public address/music: $
Signage: $14.9 Government rates and charges
Local government rates and charges: $
Water sewerage and drainage rates and charges: $
Land tax: $14.10 Repairs
Repairs and maintenance: $
Sinking fund for repairs and maintenance: $
Note. Under section 23 of the Retail Leases Act 1994, the lessor may not recover the capital costs of the building/centre from the lessee.
14.11 Utility services
Electricity: $
Gas: $
Oil: $
Water: $14.12 Waste management Sewage disposal: $ Waste collection and disposal: $
14.13 List any other outgoings: $
14.14 Total outgoings for the building/centre: $
14.15 Formula for determining lessee’s share of the total outgoings for
the building/centre: $14.16 Estimated lessee contribution to outgoings: $
Part 6 Other costs
15 Advertising and promotional costs
15.1
Is the lessee required to contribute towards advertising and promotional costs (including marketing fund contributions) for the building/centre?
F Yes F No 15.2 Lessee’s contribution to advertising and promotional costs per annum: F Not applicable
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F Yes—contribution per annum is $ Actual/Estimate F Yes—contribution per annum is % of the rent (excluding GST) payable from time to time
F Yes [insert details of lessee’s contribution per annum and how this
is determined]
16 Other monetary obligations and charges
16.1 Outline any costs arising under the lease including up-front costs or other costs not part of the outgoings and not referred to elsewhere in this disclosure statement: [eg interest and legal costs] Part 7 Alteration works (including renovations, extensions, redevelopment, demolition)
17 Alteration works
17.1
Are there any alteration works, planned or known to the lessor at this point in time, to the premises or building/centre, including surrounding roads, during the term or any further term or terms?
F Yes [insert details of the proposed works] F No 18 Clauses in lease dealing with relocation and demolition works
18.1 Clause(s) in lease providing for relocation of lessee:
F Clause(s) of the lease F Not applicable 18.2 Clause(s) in lease providing for demolition of the premises or
building/centre
F Clause(s) of the lease F Not applicable Part 8 Trading hours
19 Core trading hours relevant to lessee
Monday: am to pm Tuesday: am to pm Wednesday: am to pm Thursday: am to pm
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Friday: am to pm Saturday: am to pm Sunday: am to pm Public holidays: am to pm 20 Lessee access to premises outside core trading hours
20.1 Is the lessee permitted to access the premises and building/centre outside core trading hours?F Yes
[provide details including cost of access]
F No
Part 9 Retail shopping centre details
Note. This Part must only be completed if the premises are in a retail shopping centre as defined in section 3 of the Retail Leases Act 1994.
21 Retail shopping centre details
21.1 Total number of shops: shops 21.2 Gross lettable area of the centre m2
Actual/Estimate
22 Annual turnover of the shopping centre
22.1 Annual estimated turnover (where collected): $ Including GST/ Excluding GST
22.2 Annual estimated turnover for specialty shops, per m2 (where collected)
Food $ per m2 Including GST/ Excluding GST
Non food $ per m2 Including GST/ Excluding GST
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Services $ per m2 Including GST/ Excluding GST
23 Major/anchor lessees
23.1 Major/anchor lessees and lease expiry dates:
[list all major and anchor lessees (eg department stores, discount
department stores, supermarkets) and the dates on which leases held by
those lessees expire]24 Floor plan and tenancy mix
24.1 Floor plan showing tenancy mix, common areas, common area trading,
kiosks and major lessees:F Attached as per item 34.1 24.2 Does the lessor assure the lessee that the current tenant mix will not be
altered by the introduction of a competitor?
F Yes F No 25 Customer traffic flow information
25.1 Does the lessor collect customer traffic flow information? F Yes—attached as per item 34.2
F No26 Casual mall licensing for common areas
26.1 Do you adhere to the Shopping Centre Council of Australia’s Casual
Mall Licensing Code of Practice?F Yes—attached as per item 34.3
F NoPart 10 Other disclosures
27 Other disclosures
27.1 Are there any current legal proceedings in relation to the lawful use of
the premises or building/centre?F Yes [provide details] F No
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28 Representations by lessor
28.1 Any other representations by the lessor or the lessor’s agent:
[lessor to insert details of any other oral or written representations
made by the lessor or the lessor’s agent]Part 11 Lessor acknowledgements and signature
29 Acknowledgements by lessor
By signing this disclosure statement, the lessor confirms and acknowledges that:
•
this disclosure statement contains all representations in relation to the proposed lease by the lessor and the lessor’s agents as at the date of this disclosure statement,
• this disclosure statement reflects all agreements that have been made by
the parties,• the lessor has not knowingly withheld information which is likely to
have an impact on the lessee’s proposed business.Warnings to lessor when completing this disclosure statement:
•
The lessee may have remedies including termination of lease if the information in this statement is misleading, false or materially incomplete.
30 Lessor’s signature
30.1 Name of lessor
[insert name of lessor]30.2 Signed by the lessor or the lessor’s agent for and on behalf of the lessor
.......................................................................30.3
Name of the lessor’s authorised representative or lessor’s agent [insert name of person signing with the authority of the lessor]
30.4 Date
Part 12 Lessee acknowledgements and signature
31 Acknowledgements by the lessee
By signing this disclosure statement, the lessee confirms and acknowledges
that the lessee received this disclosure statement.Before entering into a lease, lessees should consider these key questions:
• Does the planning authority allow your proposed use for the premises
under planning law?• Is the security of your occupancy affected by:
• mortgages, charges or encumbrances granted by the lessor? • rights and obligations under a head lease?
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• Do the premises comply with building and safety regulations? Are the
premises affected by outstanding notices by any authority?• Could your trading be affected by disturbances or changes to the
building/centre?• Does the lessor require you to refurbish the premises regularly or at the
end of the lease?• Can the lessor end the lease early even if you comply with the lease? • Are all the existing structures, fixtures and plant and equipment in good
working order?• Are you required to make good the premises at the end of the lease? • Is the tenancy mix of the shopping centre (if applicable) likely to change
during the term of the lease? (see item 24.2)32 Lessee’s signature
It is important that a lessee seek independent legal and financial advice
before entering into a lease.
[Section 11A of the Retail Leases Act 1994 requires a lessee’s disclosure
statement to be provided to the lessor within 7 days (or any agreed further
period) of the lessee receiving the lessor’s disclosure statement. The lessee may
be liable to a penalty for an offence under that Act if the lessee’s disclosurestatement is not provided.]
32.1 Name of lessee
[insert name of lessee]32.2 Signed by the lessee or for and on behalf of the lessee
............................................................32.3 Name of the lessee’s authorised representative
[insert name of person signing with the authority of the lessee]32.4
Date / /20 Part 13 Attachments
33 List of attachments
33.1 Plan of premises (see item 1.2) F Yes
F Not applicable33.2 Head lease or Crown lease (see item 4.2) F Yes
F Not applicable33.3 Additional attachments
[list of any additional attachments]
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34 List of attachments—retail shopping centre
34.1 Floor plan (see item 24.1) F Yes
F Not applicable34.2 Customer traffic flow statistics (see item 25.1) F Yes
F Not applicable34.3 Casual mall licensing policy (see item 26.1) F Yes
F Not applicable34.4 Additional attachments relating to the retail shopping centre
[list of any additional attachments]
0
0
0