Commercial Leasing FAQ’s

We’ve put together a list of commercial leasing FAQ’s to answer your questions.

Does a commercial lease agreement need to be registered?Commercial Leases are usually registered on title by the equivalent of the land titles office in each state depending upon the term of the lease. The law does vary from state to state so we include easy to follow state specific registration instructions with each leasing kit.
Can I edit the commercial lease agreement form to suit my own circumstances? Of course the form provides a complete foundation for your own lease, however because it comes to you as a fully editable MS Word template you are free to edit the document by adding special requirements or deleting sections as you see fit. If you are unsure or have special requirements our in house lawyers will be happy to assist.
Why does it matter if my lease is a retail or commercial? The Retail Leases Act in each state and territory sets out certain criteria that define a lease as commercial or retail. If your lease is a retail lease then the tenants receive additional rights and protections. Conversely landlords must meet certain obligations and if violated, may give the tenant the right to walk away from the lease or even seek compensation.

Links to our State Based Commercial Lease Agreement Kits

How do I know if my premises are a retail premises and not commercial? The Retail Leases Act in your state or territory contains a very specific definition, however, as a general rule, if the premises are predominantly used for;
- the carrying on of a retail business or
- the business sells or hires retail goods or services or
- the business is located within a retail shopping centre,
then it will most likely come under the retail leases legislation.
My tenant wants to move in next week and sign the lease afterwards. Is there any reason we shouldn’t do this? Some states allow binding leases of less than 3 years to be made verbally under certain circumstances. This poses a particular danger to the landlord because allowing the tenant to move in early may support claims that a verbal lease was in place, which the landlord may find difficult to disprove.
Can I include option to renew in the lease document?Yes you can include options to extend the lease as you see fit. To take up an option, the lessee must notify the lessor in writing in accordance with the formal requirements set out in clause 9.

What is the difference between a lease and a licence?

A licence is generally not as formal as a lease and a licensee does not enjoy the same rights as a lessee. A lease grants the tenant a leasehold interest in the land a licence does not.

Generally, a lease is created whenever one person gives another:-

- the right of exclusive possession;
- for a certain period being a certain term or if not certain, capable of being calculated;
- with the intention to give the tenant an interest in the land rather than a personal privilege.

There are certain factors to consider when determining whether a licence has been created. The most important consideration is whether the right to possession is non-exclusive.
Non-exclusive possession of the premises points to a licence, whereas exclusive possession of a premises, or part of a premises, will usually be considered a lease.