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Options to Renew – notification by Landlord

Stephen Maule

The Retail Leases Act 2003 requires a landlord to notify the tenant of any right to renew the lease.  Failure to give the tenant such notice results in the lease provisions continuing until six months after such notice is received by the tenant.

In the recent case of Xiao v. Perpetual Trustee Company Ltd and Anor (2008) the Supreme Court of Victoria decided that the Act required the landlord to make “the prescribed information available to the tenant through physical supply of the written document containing the relevant information such that it is actually provided to and received by the tenant”. 

It was not sufficient for the landlord to post the notice to the tenant who subsequently satisfied the Court that he did not receive the notice.

It is recommended that landlords ensure that one or all of the following methods is adopted to be able to prove that the tenant has been notified:

  • personally serving written notice on the tenant;
  • if sent to the tenant, then obtaining written confirmation from the tenant that the tenant has received the notification; and
  • verbally confirming receipt by the tenant and making a diary note of the conversation.
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