Section 52 of the Retail Leases Act 2003 is proving to be a difficult provision to apply.
Section 52 implies into a retail premises lease a term that:
“The landlord is responsible for maintaining in a condition consistent with the condition of the premises when the retail premises lease was entered into -
(a) the structures of, and fixtures in, the retal premises lease; and
(b) plant and equipment at the retail premises; and
When is the lease “entered into”? If the tenant occupies premises for 5 years and exercises an option for a further 5 years what is the date at which the “condition of the premises” is assessed; at the commencement of the first term of 5 years or at the commencement of the second term of 5 years? In Ross-Hunt Pty Ltd v Cianjan Pty Ltd  VCAT 829 Deputy President Macnamara held that the relevant date was the date that the new term commenced following the exercise of an option. The lessson for tenants is that a thorough assessment of the state of the premises should be undertaken when the tenant first occupies the premises; regular reviews of the state of the premises should also be undertaken during the term; and the landlord should be requested to undertake repairs during the term.