By Kathleen Jennings, Solicitor and Alison Wilckens,
The Department of Justice and the Attorney General are expected
to release a new lessor disclosure statement this Friday, 10
December 2010. The new disclosure statement will likely apply from
1 January 2011, and is intended to make disclosure requirements in
Queensland consistent with those in New South Wales and
What should you do now?
If you are a landlord, you will need to:
collect and update information to comply with new disclosure
update precedents and make sure your agents are using the new
lessor disclosure statement as of 1 January 2011;
provide full details to your solicitors if instructing them to
prepare a lessor disclosure statement on your behalf;
clarify your fitout guides and standards, if you have not
already done so; and
give new tenants a correct lessor disclosure statement at least
seven days before a lease is signed and the tenant is allowed into
The final form of the lessor disclosure statement has not yet
been released, but we expect the Department to release it on its
website in the near future.
The major changes
The new lessor disclosure statement requires more detailed and
specific information about the premises, lease, centre, commercial
terms and other matters. The major changes are as follows:
Monetary obligations (other than rent and outgoings) must be
disclosed, including interest and legal costs. This could be an
extensive list given the range of situations common in leases in
which tenants may be liable for the landlord's costs, or liable
to undertake obligations at their own costs, or indemnify in
respect of claims.
The total estimated outgoings and promotion costs are to be
disclosed. In addition to rent free periods, any moratorium on
outgoings (and the date on which the payment of outgoings is to
begin) must now be disclosed.
Some disclosure, which was previously only required if the
premises were part of a retail shopping centre, is required even
for individual retail premises.
The landlord must give more details of anticipated works and
the contributions of the parties, and must provide a copy of its
fitout guide (or details of requirements). The landlord also has to
disclose works it knows about (such as third party works),
including to surrounding roads.
When signing the disclosure, the landlord must now make a
series of acknowledgements in relation to the information
The landlord must disclose current legal proceedings in
relation to the lawful use of the premises or building/centre.
The landlord must disclose whether it adheres to the Casual
Mall Licensing Code of Practice, and provide its policy if
The lessor disclosure statement now contains an acknowledgement
by the tenant to draw the tenant's attention to a number of
issues that should be considered. To avoid doubt, landlords should
consider specifically addressing or excluding warranties in
relation to these matters in the body of the statement.
The consequences of failing to disclose
The Retail Shop Leases Act 1994 requires a landlord to
give the tenant a draft lease and a lessor disclosure statement in
the form required by the Act at least seven days before entry into
a retail shop lease (which could be the date the lease is signed,
or the date the landlord gives the tenant possession of the
If the landlord does not give the tenant a lessor disclosure
statement, or if the statement is defective, the tenant may be able
to terminate the lease within six months after entering into it,
and claim damages.
The Council announced planning policies to encourage more inner suburban retirement village and aged care development.
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