A lease will usually contain a clause which specifies how the obligations between the parties change if the premises and/or the building are damaged, destroyed or rendered inaccessible.

The clause will address:

• when the tenant is or is not entitled to a reduction in rent or other charges payable under the lease;

• how any reduction will be calculated;

• the obligations of the landlord (if any) to rebuild the premises/the building; and

• the circumstances in which either the landlord or the tenant are entitled to terminate the lease.

See Destruction, damage or inaccessibility of building or premises.

The lease will usually specify whether the tenant is entitled to remain in the premises after the end of the lease where no lease has been signed, and, if the tenant is entitled to remain, the terms on which the tenant remains. A clause of this nature is commonly known as a “holding over clause”.

If a lease does not contain a clause of this nature, then the tenant's tenancy will be governed by the common law and the principles of periodic tenancies. See Holding over or remaining in possession at end of lease.

The liability of each party in relation to both the premises and the remainder of the building (if any) is generally specified in the lease. Commonly, a tenant will be responsible for anything that happens in the premises and landlords will be released from liability except to the extent the landlord has been negligent.

It is vital to understand both the extent of the tenant's and the landlord's liability so that your client can obtain the appropriate insurance cover to protect it against the liability it accepts under the lease. See Releases and indemnities.

A lease commonly contains two clauses which are aimed at ensuring that the provisions specifically contained in the lease, as well as those implied by law and which have not been excluded by the lease, are the only provisions which govern the relationship of the parties.

This means that any conditions that are important to your client in relation to the lease must either be contained within the lease or, if they are contained in a separate document, the lease must specify that both it and the additional document form the entire agreement between the parties. See Whole agreement clause and no warranties by landlord.

Disputes between the parties can arise for a number of reasons, and a lease may specify how to resolve such a dispute.

The parties can only resolve a dispute without court proceedings in two situations:

• if the parties agree to do so; or

• the lease contains a dispute resolution clause.

Two key issues in relation to dispute resolution clauses are the method of dispute resolution that will be used and the type of disputes that can be resolved using the dispute resolution procedure. See Dispute resolution.

A common area is an area of a building, property or complex which is not leased to a tenant and is intended to be used by all the tenants of that building, property or complex and their invitees. Common areas include all stairways, escalators, elevators, malls, trafficways, walkways, parking areas, toilets, rest rooms, gardens and other areas within, or adjacent to, a building. Common areas are intended for use by the public, or for use in common by the tenants of premises within the building in the way they were intended to be used by the landlord, for example access or car parking.

The landlord must grant the tenant and its invitees the right to use the common areas as part of the lease. The landlord will usually reserve the right to control and alter the common areas, and also to install items in them, such as signage and potentially kiosks. See Common areas.

The lease may contain an option for the tenant to:

• enter into a new lease when the first term expires. This is known as an option lease; or

• purchase the premises. If a lease contains an option to purchase the premises a copy of the purchase contract will need to be attached to the lease.

See Options to renew lease or purchase the premises.

Notices issued under the lease must be signed and served in accordance with the procedure contained in the lease in order for the notices to be effective.

If the lease does not contain a procedure for service of notices that are issued under the lease, then state legislation will usually specify a procedure for service of notices. See Requirements for notice.

The rent payable by a tenant under a lease is commonly reviewed annually on the anniversary of the lease commencement. The rent review process for leases that are not governed by retail tenancy legislation is not regulated by any legislation. Accordingly, the rent review process in the lease must be comprehensive and complete.

If there is a dispute in relation to the manner in which the rent is to be reviewed, it may be possible to use the commercial terms agreed by the parties before the entry of the lease to assist the parties to clarify the meaning and intention of the rent review clause, however the ability to do so will depend on the wording of the lease. See Rent review for non-retail leases.

Rent review in retail leases is highly regulated. The retail tenancy legislation:

• implies rent review provisions into a retail lease and those provisions will apply regardless of the terms contained within the lease; and

• contains a number of prohibitions. It is possible that a rent review clause that is in breach of the provisions of the Act will be entirely or partially void.

This section identifies the relevant retail tenancy legislation and examines the provisions of the relevant Acts. See Rent review for retail leases.