Question: How can an owner give disclosure
under the Retail Shop Leases Act? Is disclosure by email
Answer: Disclosure can be given by hand
delivery, post, fax, and, in certain circumstances, email. An owner
must comply with additional requirements for disclosure by email to
What are an owner's obligations regarding
The Retail Shop Leases Act (Act) requires an
owner to give a tenant a disclosure statement and a draft lease
(disclosure documents) at least 7 days before the
tenant enters into a retail shop lease. A tenant 'enters
into' a lease when it takes possession or is bound by the lease
(whichever is earlier).
The Act also requires an owner to give an assignee the
disclosure documents at least 7 days before entering an assignment
of a retail shop lease. An assignment of a lease is 'entered
into' when an owner consents to the assignment.
Consequences attach for a failure to give the tenant or assignee
the disclosure documents.
How can an owner give the tenant disclosure documents?
For tenants that are individuals, disclosure may be given:
by hand delivery – to the tenant
personally; or leaving the disclosure documents at the last known
residential or business address of the tenant; or
by post – posting the disclosure
documents to the last known residential or business address of the
by fax – faxing the disclosure
documents to the tenant's fax number, provided the tenant
has supplied a fax number to the owner for that purpose.
For tenants that are companies, disclosure may be given:
by hand delivery – to the
company's director; or leaving the disclosure documents at
the head, registered or principal office of the company; or
by post – posting the disclosure
documents to the head, registered or principal office of the
company or most recent address lodged with ASIC of the liquidator
or administrator, if one is appointed; or
by fax – faxing the disclosure documents to the
tenant's fax number, provided the tenant has supplied a fax
number to the owner for that purpose.
What about giving disclosure by email?
The Electronic Transactions Act allows an owner to give
disclosure documents via email if:
the owner uses a reliable electronic form of the disclosure
documents and ensures that the integrity of the disclosure
documents are maintained; and
the electronic form of the disclosure documents are readily
the tenant has consented to the disclosure documents being
Points 1 and 2 can be achieved by using programs such Adobe to
create PDF documents. Point 3 is a little more difficult as case
law suggests that consent should be obtained before the disclosure
documents are emailed. We recommend that you include an appropriate
condition in your standard offer to lease which states that the
tenant consents to disclosure being given by email.
If an electronic signature is used a method must be adopted that
identifies both the person signing and their approval of the
information to be communicated. The method must also be reliable
and the tenant must consent to using this method.
When will disclosure documents be deemed to have been
An owner has effectively given the disclosure documents
by hand delivery – the documents are
handed over to a tenant or left at the appropriate address;
by post – the documents are
delivered in the ordinary course of the post (no set time but a
minimum of 2 business days after posting should be allowed, longer
for tenants outside Queensland);
by facsimile – the documents are
received by a tenant's fax machine; or
by email – when the email enters the
designated information system of a tenant.
Some Practical Tips
In the event of a dispute, the onus is on you to provide
evidence that the disclosure documents were effectively given to a
tenant. Here's our top 5 recommendations:
Make a contemporaneous file note of the time and date that the
documents are personally delivered and (if applicable) the name of
the person who received them;
Take a copy of documents that are posted (including any cover
letter) and keep a record the date they were posted. If timelines
are tight, consider sending by registered post and requesting a
delivery confirmation from Australia Post;
Set up your fax machine to print out delivery confirmation
reports and check the report shows "ok";
Set up your email so that you receive 'delivered'
and 'read' receipts.
Keep a paper trail (or a virtual paper trail if you operate a
paperless office). Make sure you keep your file notes, delivery
confirmation reports and receipts on your correspondence file so
that you can readily produce evidence of when the disclosure
documents were delivered.
For more information on this topic, please contact Shanna
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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