Western Australia Commercial Eviction Process

Terminating a commercial tenancy in Western Australia is a complex legal procedure that varies depending on whether the lease falls under the Commercial Tenancy (Retail Shops) Agreements Act 1985 or general commercial law. Landlords must follow the correct process to avoid claims for wrongful termination and damages.

Retail Shop Leases

Breach of Lease

If a retail tenant breaches the lease (e.g., non-payment of rent, failure to trade, unauthorised alterations), the landlord must:

1. Issue a breach notice specifying the nature of the breach and requiring the tenant to remedy it within a reasonable period.
2. If the breach is not remedied, the landlord may seek to terminate the lease by issuing a notice of termination.
3. The landlord can then apply to the State Administrative Tribunal (SAT) or the courts for possession.

Protections for Retail Tenants

The Retail Shops Act provides enhanced protections:

• Landlords cannot terminate a retail lease for a breach unless they have first given the tenant reasonable opportunity to remedy it.
• Unconscionable conduct in relation to the termination is prohibited.
• The Small Business Commissioner can mediate disputes before court action is required.

End of Lease

If a landlord does not wish to renew a retail lease:

• They must notify the tenant of the option expiry date between 6 and 12 months before it falls due.
• If the tenant has an option to renew and exercises it validly, the landlord must honour it.

Non-Retail Commercial Leases

For leases outside the Retail Shops Act, the eviction process is governed by the lease terms and common law.

Forfeiture (Re-entry)

The most common method for terminating a defaulting commercial tenancy is forfeiture (also called "re-entry"). The lease must contain a forfeiture clause that specifies the events that give rise to the landlord's right to re-enter.

Typical forfeiture triggers include:

• Non-payment of rent for a specified period.
• Insolvency or bankruptcy of the tenant.
• Failure to maintain required insurance.
• Unauthorised assignment or subletting.

Notice Requirements

Before exercising forfeiture, the landlord must generally serve a notice under section 81 of the Property Law Act 1969 (WA), giving the tenant:

• Details of the breach.
• A requirement to remedy the breach (if it is capable of remedy).
• A requirement to pay compensation for the breach.
• A reasonable time to comply.

If the tenant fails to comply, the landlord may proceed with re-entry—typically by changing the locks and securing the premises. However, this must be done peacefully and without force.

Relief Against Forfeiture

Even after a landlord has exercised forfeiture, the tenant can apply to the court for relief against forfeiture. The court can reinstate the lease if the tenant remedies the breach and compensates the landlord.

Self-Help Evictions

For retail shop leases, self-help evictions are subject to the protections of the Act and must follow the proper notice and tribunal processes.

For non-retail commercial leases, peaceful re-entry via lock changes is generally permissible if the lease contains a valid forfeiture clause and proper notice has been served. However, the risk of the tenant seeking relief against forfeiture means that court proceedings may still follow.

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