Section 52 of the Retail Leases Act 2003 (the Act) covers who must undertake certain repairs – the tenant or the landlord. These are often also outlined in the retail premises lease.
If there are provisions in the lease on repairs that are contrary to those in the Act, the Act will override them.
In general, the landlord is responsible for maintaining the following (in the same condition as the premises were in when the lease was entered into), as outlined in Section 52 of the Act:
- the structure of the premises (i.e. the walls and the roof);
- the fixtures in the premises (i.e. items belonging to the landlord, such as built-in shelving);
- the plant and equipment at the premises (i.e. the air conditioning system);
- the appliances, fittings and fixtures that the landlord has provided under the lease relating to the services such as gas, electricity and water (i.e. powerboards, water pipes and the hot water system).
The landlord is not responsible for maintaining those items if:
- the need for the repair arises out of the tenant’s misuse of that item (see section 52(3)(a));
- the tenant is entitled or required by the lease to remove the item at the end of the lease (see section 52(3)(b)).
In general, the tenant is responsible for the following:
- keeping the premises clean and in good repair, subject to ‘fair wear and tear’, over the term of the lease.
VCAT decisions – repairs and maintenance
The Victorian Civil and Administrative Tribunal (VCAT) and the Courts have handed down a number of decisions relating to the application of section 52 – a landlord’s liability for repairs. These include:
- My Club Pty Ltd v Somalex Nominees (Retail Tenancies)  VCAT 171 (31 January 2008)
- Yan & Anor v Wang & Anor VCAT 2405 (27 November 2008)
- Bretair Pty Ltd v Cave (No 2) (Retail Tenancies)  VCAT 1808 (24 October 2013)
- Versus (Aus) Pty Ltd v A.N.H. Nominees Pty Ltd  VSC 515 (1 October 2015)
- Anchong Nominees Pty Ltd v Rafei (Building and Property)  VCAT 1313 (18 August 2015)
Other decisions can be found on the Australian Legal Information Institute (AustLII) website.
VCAT Advisory Opinion – Essential Safety Measures
An Advisory Opinion on Essential Safety Measures was handed down by VCAT on 1 May 2015.
The key elements are that:
- A landlord must bear the cost of compliance with essential safety measure obligations, and cannot pass these costs on to the tenant;
- For some obligations, the landlord may agree with the tenant for the tenant to meet the requirements, but at the landlord’s expense;
- More generally, the landlord cannot pass on to the tenant as outgoings the cost of complying with certain repair and maintenance obligations under the Retail Leases Act 2003.
For more details on the VCAT Advisory Opinion on Essential Safety Measures click here.