South Australian Current Acts

RETAIL AND COMMERCIAL LEASES ACT 1995 - SECT 40

40—Damaged premises

        (1)         A retail shop lease is taken to provide for the following if the shop or the building of which the shop forms part is damaged—

            (a)         the lessee is not liable to pay rent, or any amount payable to the lessor in respect of outgoings or other charges, that is attributable to a period during which the shop cannot be used under the lease or is inaccessible due to that damage;

            (b)         if the shop is still useable under the lease but its useability is diminished due to the damage, the lessee's liability for rent and any amount for outgoings attributable to a period during which useability is diminished is reduced in proportion to the reduction in useability caused by the damage;

            (c)         if the lessor notifies the lessee in writing that the lessor considers that the damage is such as to make its repair impracticable or undesirable, the lessor or the lessee may terminate the lease by giving not less than seven days notice in writing to the other and no compensation is payable in respect of that termination;

            (d)         if the lessor fails to repair the damage within a reasonable time after the lessee requests the lessor in writing to do so, the lessee may terminate the lease by giving not less than seven days notice in writing of termination to the lessor;

            (e)         paragraphs (a) to (d) do not affect a right of the lessor to recover damages from the lessee in respect of damage or destruction to which those paragraphs apply.

        (2)         However, a lessee is not relieved of the obligation to pay rent if the damage results from the wrongful act or negligence of the lessee or an employee or agent of the lessee unless the lessor is insured against loss of rent under an insurance policy and the lessee contributes to the insurance premium.

        (3)         A retail shop lease must not contain provision the effect of which is to limit a liability of a party to the lease to pay compensation to another party in respect of damage to the shop or the building of which the shop forms part.

        (4)         Nothing in this section prevents the parties to a lease from terminating the lease by agreement if the shop or the building of which it forms part is damaged or destroyed.