The information below is general only and you should obtain professional advice specific to your circumstances before you undertake any course of action.
An option clause is a term in a commercial lease that allows a tenant to renew the lease at the end of the original lease period, if they meet certain conditions.
Landlords are not obliged to offer a renewal option in the original lease. However, options are often in the interests of both parties if they are interested in a long term commercial relationship. Once the option is included in the lease, then provided the tenant complies with its obligations under the lease, the landlord cannot refuse to renew the lease for the option term.
It is important you understand the steps you need to take if you want to exercise the option to renew your lease.
How option renewal periods work
Most commercial leases require the tenant to notify the landlord if they wish to exercise an option to renew the lease. For example, if your original commercial lease has a fixed term from 1 July 2022 to 30 June 2025 (3 years), then a 3-year option would cover 1 July 2025 to 30 June 2028.
If you wish to exercise your option to renew correctly, ensure you have notified your landlord:
- clearly in writing and in accordance with the lease agreement; and
- within the timeframe specified in your lease (which is referred to as the ‘option exercise window’).
Once you have completed the above steps, your landlord should acknowledge receipt of your decision in writing and start preparing the new lease agreement. They can do this through a new lease with the same terms or by a deed of renewal of lease.
To ensure that the terms of the new lease agreement have not changed to your disadvantage, we recommend you seek legal advice.
Retail Leases
If the lease is subject to the Retail Leases Act 2003 (Vic), then despite what your lease says, the onus is on the landlord to remind the tenant of the latest date by which the tenant can exercise its option to renew the lease. If the landlord fails to provide this notice, the lease may be automatically extended until the requisite notice is provided.
The importance of diarising the option renewal period
There will almost always be a time limit on when a tenant can exercise an option to renew which is usually expressed in the commercial lease as a specific date or time period. The usual trend is to allow the tenant to exercise the option to renew from three to nine months before the end of the lease term.
Subject to our comments regarding the Retail Lease Act, it is important for the tenant not to miss the opportunity to exercise the renewal option as otherwise the landlord is under no obligation to renew the lease.
Courts generally construe option renewal periods strictly
Recent court cases show courts will interpret the timeframe to exercise the option to renew the lease strictly.
Provide correct notice – refer to lease agreement and comply with formalities to exercise option
As mentioned above, it is critical to understand the deadline for exercising the option to renew.
Failure to exercise the option in the manner required by the lease agreement or the landlord’s notice under the Retail Leases Act – can mean the tenant will have forfeited its right to exercise the option.
For a tenant to validly exercise its option to renew, they must make sure the notice is:
- in the correct form;
- addressed to the landlord;
- given and correctly executed by the tenant as named in the lease agreement;
- served on the landlord within the required timeframe and in accordance with the terms of the lease or Retail Leases Act (if applicable).
Although providing the correct notice and complying with formalities to exercise an option may seem straightforward, it can become complex. This is why we recommend you seek legal advice from an experienced lawyer.
Conclusion
Exercising an option to renew a commercial lease may seem simple and straightforward. However, this is not always the case! Tenants need to ensure they clearly understand and comply with formalities when exercising its option to renew. Failure to do so can result in a tenant forfeiting its right to exercise the option.
Tenants also need to ensure that the new lease they sign reflects the current lease.
To ensure you understand your rights and responsibilities regarding exercising an option to renew, we recommend you speak to one of our experienced lawyers.
If you or someone you know wants more information or needs help or advice, please contact us on 03 5985 3211 or email [email protected].