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Section 28(2) of the Landlord and Tenant Act 1958 has been repealed. Section 28(2) provided that:
“If any tenant holding lands by virtue of any lease or agreement ….. at his own cost and expense erects any building either detached or otherwise or erects or puts in any building fence engine machinery or fixtures for any purpose whatever (which are not erected or put in in pursuance of some obligation in that behalf) then, unless there is a provision to the contrary in the lease or agreement constituting the tenancy, all such buildings fences engines machinery or fixtures shall be the property of the tenant and shall be removable by him during his tenancy or during such further period of possession by him as he holds the premises ….”
Section 28(2) has been held to operate according to the plain meaning of its terms (Vopak Terminals Australia Pty Ltd v Commissioner of State Revenue (2004) 12 VR 351 at 369-370) : while the tenant remained in possession the affixed chattels continued to be the tenant’s property and be removable by the tenant during the tenancy or during such further period of possession by the tenant holding the premises and not afterwards.
Given its comprehensive judicial consideration it is unclear why Parliament decided to tamper with the section. What was s.28(2) now appears as s.154A of the Property Law Act 1958 as follows:
“(1) A tenant who at his or her own cost or expense has installed fixtures on, or renovated, altered or added to, a rented premises owns those fixtures, renovations, alterations or additions and may remove them before the relevant agreement terminates or during any extended period of possession of the premises, but not afterwards.
(2) A tenant who removes any fixtures, renovations, alterations or additions under subsection (1) must-
(a) restore the premises to the condition they were in immediately before the installation, renovation, alteration or addition, fair wear and tear excepted; or
(b) pay the landlord an amount equal to the reasonable cost of restoring the premises to that condition.
(3) This section does not apply to the extent that-
(a) the lease otherwise provides; or
(b) the landlord and the tenant otherwise agree.”
The new provision is confusing: what is the “relevant agreement” (sub-clause (1)); is it the lease or can it be some other agreement; in sub-clause 3(a) the term “lease” is used?
In sub-clause (2) it is not clear whether the tenant’s restoration obligations:
(a) apply only to the area of the premises where “fixtures, renovations, alterations or additions” were removed; or
(b) extend to the whole of the premises.
My clerk can be contacted via this link for bookings http://www.greenslist.com.au/