South Australia Commercial Landlord Required Disclosures
Review the mandatory disclosure statement and the SA Leasing Guide that commercial landlords must provide before lease execution.
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South Australia Commercial Landlord Required Disclosures
The Retail and Commercial Leases Act 1995 (SA) places substantial disclosure obligations on commercial landlords. These requirements are designed to ensure that prospective tenants—often small business owners—receive clear, transparent financial information before committing to a long-term lease.
1. The Mandatory Disclosure Statement
Before a retail shop lease is executed, the landlord must provide the prospective tenant with a disclosure statement in the prescribed form. This statement must be provided at least 5 business days before the lease is signed.
The disclosure statement must include comprehensive details such as:
- The proposed rent and how it will be reviewed during the lease term.
- A breakdown of all outgoings the tenant will be required to pay (e.g., council rates, strata levies, insurance, but NOT land tax).
- Details of any fit-out or "make good" requirements.
- Details about the building's structural condition (if known).
- Any current or pending legal proceedings affecting the premises.
- Whether the tenant will be required to join a marketing fund or merchants' association (in a shopping centre context).
- Demolition or renovation plans the landlord is aware of.
Consequences of Failure to Disclose
If the landlord fails to provide the disclosure statement, or if the statement contains a material misrepresentation, the tenant may be entitled to:
- Terminate the lease within a certain period after discovering the non-disclosure.
- Claim compensation for any loss suffered due to the landlord's failure to disclose.
2. The SA Retail and Commercial Leasing Guide
In addition to the disclosure statement, the landlord must provide the prospective tenant with a copy of the Retail and Commercial Leasing Guide published by the Small Business Commissioner.
This guide is a plain-language explanation of the rights and responsibilities of both parties under the Act, covering topics like rent reviews, outgoings, maintenance, and dispute resolution. The purpose is to ensure the tenant fully understands the legal framework before signing.
3. Renewal and Extension Disclosures
For retail shop leases, especially those in shopping centres:
- If the tenant has a preferential right of renewal, the landlord must begin renewal negotiations between 6 and 12 months before the lease expires.
- If a retail lease does not have a right of renewal, the landlord must provide written notice and reasons between 6 and 12 months before the lease expiry.
These long-lead-time disclosure obligations are designed to give tenants sufficient time to plan for the future of their business, whether that means negotiating a new lease, finding alternative premises, or winding down operations.
4. Outgoings Estimates and Audited Accounts
Each year, the landlord must provide the tenant with:
- An estimate of outgoings for the upcoming year.
- An audited statement of actual outgoings for the previous year, allowing the tenant to verify whether they were charged correctly and to receive a refund if they overpaid.
Common Misconceptions in
Don't fall for these common myths. Know what the law actually says.
"The disclosure statement is optional for small retail leases."
The disclosure statement is mandatory for all qualifying retail shop leases under the RCLA 1995, regardless of size. Failure to provide it at least 5 business days before the lease is signed can give the tenant the right to terminate the lease or claim compensation.
"I only need to disclose outgoings at the start of the lease."
Disclosure of outgoings is an ongoing annual obligation. Landlords must provide an outgoings estimate at the start of each financial year and an audited statement of actual outgoings at the end of each year. This is not a one-time disclosure at lease commencement.
"I don t need to tell the tenant about a pending demolition or major renovation until I am ready."
The disclosure statement must include any demolition or renovation plans the landlord is aware of. Concealing known plans that would affect the tenant s use and enjoyment of the premises can give the tenant grounds to terminate or seek compensation.
Best Practices for SA Commercial Landlords
- Use the Prescribed Forms: The Small Business Commissioner provides standard disclosure statement templates. Using these ensures you don't accidentally omit required information.
- Provide Documents Early: Don't wait until the last minute. Provide the disclosure statement and the Leasing Guide at least 7-10 business days before the proposed signing date.
- Keep Records of Delivery: Obtain a signed acknowledgment from the tenant confirming they received the disclosure statement and the Leasing Guide. This is your evidence of compliance.
Frequently Asked Questions:
The prescribed disclosure statement must include: (1) Proposed rent and full details of every rent review mechanism; (2) A complete itemised breakdown of outgoings the tenant will pay; (3) Any fit-out allowance or incentives being provided by the landlord; (4) Make good requirements at lease end; (5) Details of any structural issues or defects the landlord is aware of; (6) Any current or pending legal proceedings affecting the premises; (7) Whether the tenant is required to join a merchants association or contribute to a marketing fund (in shopping centre contexts); (8) Any demolition or renovation plans. Use the Small Business Commissioner s prescribed form to ensure no item is inadvertently omitted.
If the landlord fails to provide the disclosure statement, provides it late (less than 5 business days before signing), or includes material misrepresentations, the tenant may have the right to: terminate the lease within a prescribed period of discovering the non-disclosure; and claim compensation for any loss suffered as a direct result of the landlord s failure to disclose. The tenant must act promptly — SACAT or court proceedings are required to enforce these rights.
The SA Retail and Commercial Leasing Guide is a plain-language guide published by the Small Business Commissioner, explaining the rights and responsibilities of both parties under the RCLA 1995. It covers rent reviews, outgoings, maintenance, security bonds, assignment, dispute resolution, and the role of the SBC. It must be provided to the tenant alongside the disclosure statement before the lease is signed. The current version is available from the Small Business Commissioner website (sasbc.sa.gov.au).
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