What is the 5 year waiver certificate?
The scheme of the statutory minimum term of 5 years is set out in section 21 of the Retail Leases Act 2003.  Section 21(1) provides for a term of at least 5 years, counting the initial term and any further term or terms provided by any options for renewal. 

Section 21(5) provides that tenants who wish to waive this right can request the Commissioner to certify in writing that he, or a person acting on his behalf, has explained to the tenant the effect of waiving this right, and the effect that the certificate will have on the term of the lease.  The waiver will not be effective unless the tenant gives the landlord written notice that it has waived this right.  The section provides that the Commissioner must issue the certificate within 21 days of the tenant’s request.  

Further, section 84(1)(e) provides that it is a function of the Commissioner to confirm whether a certificate has been given in accordance with section 21(5).

Why get a waiver certificate?
The most common reason for a waiver relates to a tenant starting a new business where the tenant is unsure about the long term suitability of the premises. Tenants may question whether their business will succeed, or may be sure that they will outgrow the premises in a short period of time. In these cases, tenants may seek a term of less than 5 years (for example, a 2 year lease).

How do I apply?
Tenants can request a 5 year waiver certificate by clicking here. You can then choose whether to submit the form online, or download it and submit it by post (Level 2, 121 Exhibition Street, Melbourne 3000) or fax (03 9651 9943).

What happens next?
It is important that a telephone number is provided so that an oral explanation, to facilitate the requirements of section 21(5)(a), can be carried out.  Once received, an officer will telephone the tenant and explain the effect of waiving the right.  This explanation refers to the statutory minimum term of 5 years and points out, amongst other things, that having a lease of less than 5 years may not allow the tenant to fully depreciate the costs of their fitout to the premises, and that there may be a lost opportunity for the tenant to build goodwill and a greater value in the business.  Further, the officer will explain that if tenants change their mind about waiving their rights (even after a certificate is issued), the tenants are under no obligation to provide written notification to the landlord that they have waived their rights, and as such the statutory right continues on foot.

Once the explanation is given, and after the Commissioner has satisfied himself that the explanation has been given correctly, the Commissioner will issue the certificate.

It is important to note that the role of the Commissioner is only to explain to tenants the effect of section 21, not to veto the lease.

Requesting a certificate  
Please click here to complete the waiver application form. You can then either submit it online, of if you would prefer, fax or post it to the VSBC.

You will be contacted by the VSBC to discuss your request.