Victorian Current Acts

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Rent reviews based on current market rent

    (1)     A retail premises lease that provides for a rent review to be made on the basis of the current market rent of the premises is taken to provide as set out in subsections (2) to (6).

    (2)     The current market rent is taken to be the rent obtainable at the time of the review in a free and open market between a willing landlord and willing tenant in an arm's length transaction having regard to these matters—

        (a)     the provisions of the lease;

        (b)     the rent that would reasonably be expected to be paid for the premises if they were unoccupied and offered for lease for the same, or a substantially similar, use to which the premises may be put under the lease;

        (c)     the landlord's outgoings to the extent to which the tenant is liable to contribute to those outgoings;

        (d)     rent concessions and other benefits offered to prospective tenants of unoccupied retail premises—

but the current market rent is not to take into account the value of goodwill created by the tenant's occupation or the value of the tenant's fixtures and fittings.

    (3)     If the landlord and tenant do not agree on what the amount of that rent is to be, it is to be determined by a valuation carried out by a specialist retail valuer appointed by—

        (a)     agreement between the landlord and tenant; or

S. 37(3)(b) amended by No. 16/2017 s. 38.

        (b)     if there is no agreement, the Small Business Commission—

and the landlord and tenant are to pay the costs of the valuation in equal shares.

    (4)     The landlord must, within 14 days after a request by the specialist retail valuer, supply the valuer with relevant information about leases for retail premises located in the same building or retail shopping centre to assist the valuer to determine the current market rent.

Penalty:     50 penalty units.

    (5)     In determining the amount of the rent, the specialist retail valuer must take into account the matters set out in subsection (2).

    (6)     The valuation must—

        (a)     be in writing; and

        (b)     contain detailed reasons for the specialist retail valuer's determination; and

        (c)     specify the matters to which the valuer had regard in making the determination.

S. 37(7) substituted by No. 82/2005 s. 20.

    (7)     The specialist retail valuer—

S. 37(7)(a) amended by No. 16/2017 s. 38.

        (a)     must carry out the valuation within 45 days after accepting the appointment, or within such longer period as may be agreed between the landlord and tenant, or if there is no agreement, as determined in writing by the Small Business Commission; and

        (b)     may seek to enforce under Part 10 (Dispute Resolution) an obligation of the landlord under subsection (4).

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