Quirk in s.64 nothing to get excited about

A quirk in s.64 of the Retail Leases Act 2003 has caused some excitement. recently. Section 64 applies where a retail premises lease does not have an option to renew the lease for a further term. At least 6 months and no more than 12 months before the lease term ends the landlord must give written notice to the tenant either offering the tenant a renewal of the lease or informing the tenant that the landlord does not propose to offer the tenant a renewal (“initial notice”)(s.64(2)) . If the landlord fails to give the initial notice the landlord must give the tenant a notice containing the same information as the initial notice (“the second notice”) and the lease continues until the day specified in the second notice which must be at least 6 months after the second notice is given or the tenant gives the landlord a notice under s.64(5) (“the tenant’s notice”) (s.64(4)). If the landlord fails to give the inital notice the tenant may, irrespective of whether the landlord has given the later notice, give the tenant’s notice terminating the lease “from a day that is not earlier than the day on which the term of the lease expires” (s.64(5)). The section does not specify the latest date by which the tenant can terminate the lease. The question arises whether the tenant’s notice can nominate a day many years in the future for the termination of the lease. In my view, the answer is no: if the tenant gives a tenant’s notice after the landlord has given the second notice the tenant’s notice  can terminate the lease from a date earlier than that specified in the second notice, but cannot extend the date referred to in the second notice; in my view the purpose of the tenant’s notice is to enable the tenant to terminate the lease from a day earlier that that specified by the landlord. If the landlord does not serve the second notice and the tenat serves a tenant’s notice the date specified in the tenant’s notice will be the date the lease expires; however, if the landlord then serves the second notice the date specified for termination of the lease will be the relevant date provided it is at least 6 months after the second notice is given.

  1. Leave a comment

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )


Connecting to %s

Owners Corporations Law

Developments in strata body corporate law in Victoria

The Warne Account

The blog of Dan Warne, Australian tech writer.

Best Practices for Legal Education

A Vision and a Road Map

Tisher Liner FC Law Blog

Legal Updates on Business Law, Property and Litigation



With Compliments

Geoffrey Gibson

CommBar Matters

Commentary and case law from the Commercial Bar Association's finest.

The law of land and sea

Australian law of property and environment

Amicae Curiae

Women. Law. Legal Education. Legal Practice. Career. Work/Life balance

Carrie Rome-Sievers, Barrister

Developments in insolvency and commercial law

Equity, Trusts and More

Travis Mitchell, Barrister at the Victorian Bar

Sam Ure

A Melbourne barrister practising in commercial disputes, tax and administrative law

The Property Law Blog

Robert Hay QC Property and Commercial Law Barrister

%d bloggers like this: