Five-Year Waiver Certificate Advice
In Victoria, a retail lease shorter than 5 years usually needs a waiver certificate from the Victorian Small Business Commission (VSBC), or the term may be extended to 5 years. We advise you on whether a shorter term suits you and check the lease before you apply to the VSBC.
- Fixed fee, confirmed before we start.
- Advice on the shorter term and the lease, online.
- For Victorian retail leases.
The 5 year minimum term
Section 21 of the Retail Leases Act 2003 (Vic) says a retail premises lease must run for at least 5 years, counting any further terms under options.
So a 3 year lease with a 2 year option meets the rule. A 2 year lease with no option does not.
If the landlord and tenant want a shorter term, the tenant needs a five year waiver certificate. Some leases sit outside the rule, such as a renewal of an existing lease. We tell you whether yours needs one.
Who issues the certificate
The Victorian Small Business Commission issues the certificate, not a lawyer. The tenant applies through the VSBC’s online application, and the certificate is free. In it, the VSBC certifies that it has explained the effect of the 5 year rule and of waiving it.
The tenant then gives the landlord a copy. That is what stops the 5 year rule applying.
When to apply
The VSBC must consider a request made before the lease is entered into, or within 90 days after. It may consider a request made later, but you shouldn’t rely on that.
Most landlords offering a short lease ask for the certificate before they sign. Applying early avoids holding up the deal.
What happens without one
If the lease is shorter than 5 years and the tenant hasn’t given the landlord a copy of a certificate, the Act treats the term as extended so that it reaches 5 years.
For a landlord, that means the tenant may be able to stay in the premises longer than the landlord planned. For a tenant, it means the term on the page may not be the term that applies. Either way, it is easier to sort out before signing.
What we do
The certificate itself comes from the VSBC. What we do is advise you before you apply. We read the term and any options in the lease or offer, then explain, in plain English:
- how the 5 year rule works
- what you give up by waiving it, such as the right to stay for the full 5 years
- what happens at the end of the shorter term, and whether an option would suit you better
If you decide to go ahead, you apply to the VSBC yourself.
A waiver deals only with the term. If you want the rest of the lease checked before you sign, we can review the lease at the same time.
Questions
Something else? Enquire online or email us.
Who issues the five year waiver certificate?
The Victorian Small Business Commission. The tenant applies online and the VSBC issues the certificate free of charge. A certificate from a lawyer has no effect in Victoria.
Can I apply after I've signed the lease?
Yes. The VSBC must consider a request made before the lease is entered into and up to 90 days after. Landlords usually want the certificate before signing, so it's simpler to apply early.
Asked to take a lease under 5 years?
Send us the lease or the offer and we'll advise you on the term before you apply.
- Fixed fees.
- Online, Australia-wide.
- Landlords and tenants.