A lot of lease trouble starts with a date nobody diarised. An option that lapsed, a rent review nobody flagged, a make-good bill that turns up after the tenant has gone. Here is what the Retail Leases Act 2003 (Vic) says about the dates, what it leaves to the lease, and the calendar we would keep on each file.
First, check whether the Act applies
The Retail Leases Act sets its notice rules for retail premises only. Under s 4(1), retail premises are premises used "wholly or predominantly" for "the sale or hire of goods by retail or the retail provision of services", or for a business the Minister has specified. Offices and industrial units generally fall outside that, unless they are used for retail. The Act also excludes premises whose tenant is a listed corporation, or a subsidiary of one (s 4(2)(c)), and premises with occupancy costs above the prescribed amount (s 4(2)(a)).
For retail leases the Act sets some minimums. For everything else, the lease is the whole rulebook. The option clause, the review clause and the outgoings clause matter more than anything else in the file, so read those three first.
The dates the Act does set
These apply to retail premises leases. Section numbers are from the authorised version, in force from 1 July 2024.
| Date | What the Act says | Section |
|---|---|---|
| Option exercise date | The lease must state the last day the option can be exercised, how to exercise it, and the renewal terms. | s 27(1) |
| Landlord's option notice | In writing, at least 3 months before the last day to exercise the option. It must give that date and the rent for the first 12 months of the renewed term. | s 28(1A) |
| If the landlord is late | The option date moves to 3 months after the landlord gives the notice. | s 28(2)(a) |
| Early rent review request | Within 28 days after the option notice, where the review is on current market rent. | s 28A(1) and (2) |
| Renewal notice, lease with no option | At least 6 and no more than 12 months before the term ends, the landlord offers a renewal or says it won't. | s 64(2) |
| Outgoings statement | Within 3 months after the end of each accounting period. | s 47(3)(b) |
| Outgoings adjustment | Within 1 month after the statement, or 4 months after the period ends, whichever is earlier. | s 48(3) |
The Act says nothing about make-good. Its standard and timing come from the lease. For rent reviews, the lease must state when they happen and the basis for them (s 35(1) and (2)).
A calendar for each file
Put these dates in the file as entries, not in anyone's head. Count back from the last day the option can be exercised, or from the end of the term if there is no option.
12 months out. On a retail lease with no option, the landlord's window for the renewal notice opens (s 64(2)). On a lease with an option, write down the last exercise date and the date the landlord's notice is due, 3 months before it. List every rent review date from the lease.
6 months out. On a no-option retail lease, this is the last day for the landlord's renewal notice. If the landlord misses it, the lease carries on on the same terms until a later date set in a fresh notice. That date must be at least 6 months after the notice (s 64(4)). The tenant can also give notice to end the lease, from a day not earlier than the term's expiry (s 64(5)). Get a make-good scope and a quote now, while there is still time to act on it.
90 days out. On an option lease, the landlord's notice should be in hand. If it isn't, the option date moves out to 3 months after the notice is given (s 28(2)(a)). Tell the landlord now, because a late notice gives the tenant longer.
30 days out. If the tenant asked for an early rent review, it must say in writing whether it exercises the option on or before the last day (s 28A(3)). If it has exercised the option and has not asked for an early review, it can still give notice in the cooling-off period that it no longer wishes to exercise. The term is then extended by 14 days and the lease is not renewed (s 28B(1) and (2)). Check that the exercise went in writing, the way the lease says it must (s 27(1)(b)).
Every accounting period, check that the outgoings statement arrived within 3 months of the period's end (s 47(3)(b)). The tenant's adjustment is then due within a month of the statement (s 48(3)).
For office and industrial leases, the same calendar applies, but the dates are whatever the lease says. There is no statutory fallback. So reading the option clause is the first job on the file.
If a tenant is struggling to make these dates, the next steps are in our piece on what to do when a tenant enters administration.
Command is a private system that sets itself up around one business. It watches dates like these and the news that touches your clients, and tells you early. Give us one past deal and we'll show you the day you could have known. → First look
This is general information, not legal or financial advice. Check your own lease and get advice for your situation.
Sources
- Retail Leases Act 2003 (Vic), Authorised Version No. 027, in force from 1 July 2024: ss 4, 27, 28, 28A, 28B, 35, 47, 48 and 64. Read from the authorised PDF: content.legislation.vic.gov.au (authorised PDF), with the Act page at legislation.vic.gov.au.