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How to sublease or assign a retail lease in South Australia

Circumstances may arise when a tenant seeks to sub-let or assign their lease over retail premises. There are strict guidelines on method of seeking consent and whether the landlord is permitted to withhold their consent.

If your tenant is seeking consent to sub-let or assign their retail lease, remember:

  • Your tenant must comply with the legislation – including seeking consent in writing;
  • Failure to respond may imply landlord consent;
  • Be mindful that the landlord must respond within a certain timeframe;
  • Check the terms of your lease whether ‘absolute discretion’ permitted;
  • Generally cannot unreasonably withhold consent
    • Consult the relevant legislation in your jurisdiction as to whether you can withhold consent and under what circumstances; and
  • If you are unsure about consenting to sub-letting or assigning a lease over your retail premises, consult independent legal advice.

Click here for Retail Lease Agreement Kit

These are the details specific to the Retail and Commercial Leases Act 1995 in South Australia.

Disclosure Details

Tenant must provide landlord with all information reasonably required about proposed shop use, financial standing and business experience of proposed tenant.

Landlord Response Time

42 days

Circumstances Landlord consent may be withheld

• Proposal to change premises use
• New tenant unlikely to meet financial obligations
• Retail skills inferior
• Non-compliance with section 45.

No Response Implies Consent?

Yes

Absolute Discretion permitted?

Yes - Lease may permit absolute discretion (section 46)

Other

Landlord required to provide written statement on grounds of which consent withheld.

Go to a summary of every state in Australia.

 

 

By Ian MacLeod

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