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Leases (SA) - Step-by-Step Guide

Author: By Lawyers For Lawyers

The law is explained as it applies generally and as it applies in particular to retail leases. All lease precedents, retail, commercial, industrial, residential, rural, are provided as are agreements to lease, disclosure statements, licenses and a library of additional clauses and notices, all letters and all that is required for the quick production of a lease following receipt of instructions. For ease of understanding the first lease clause is a summary of the lease, all matters of money are dealt with in one place and changes to the standard clauses, which are even handed to both the lessor and lessee, are to be made in a part set aside for that purpose. Sublease, assignment, transfer, variation and surrender are provided as are various statutory declarations.

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Disclosure statements

Disclosure statements for retail leases

Disclosure statements s 12 and draft leases s 11 are requirements of the Retail and Commercial Leases Act. A copy of the lease and the prescribed retail tenancy guide must be made available as soon as negotiations commence. And before the lease is entered into the lessee must be given a disclosure statement in the form prescribed in Schedule 1 of the Retail and Commercial Leases Regulations.

If no disclosure statement is given the lessee may apply under s 12 of the Act to a Magistrates Court for an order to avoid the lease in whole or in part, vary the lease, require the lessor to repay money paid by the lessee or to pay the lessee compensation.

The lessee should sign an acknowledgement of receipt of the lessor's disclosure statement before signing the lease.

On renewal, a disclosure statement update should be done which, together with the original, constitutes the new disclosure.

Disclosing lease and fit out costs for retail leases

If the disclosure statement discloses in sufficient detail the obligation to fit out, refit or provide fixtures, plant or equipment for the lessee to obtain an estimate of likely costs, and the lessee agrees to this by signing the disclosure statement, those costs become his financial responsibility: s 14. In that case, the lessee will own the fittings even though they may be affixed to the premises.

If the lease provides for the lessee to pay the lessor an amount towards preparation, stamping and registration of the lease – the ‘ preparatory costs’ - the lessee is not liable to pay until the lessor has provided him with a copy of the account, but only to the extent of:

  • registration fees; and
  • half the other preparatory costs, such as fees charged by a mortgagee for consenting to the lease and costs of attendances on the lessee by the lessor or lessor's lawyer.

© Copyright By Lawyers For Lawyers, 2012, Sydney. All rights reserved.Last Updated: 12/10/2012

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