Does a disclosure statement overwrites the lease? (VIC)

Hi all

Does a disclosure statement overwrites the terms and conditions of a lease?

For example, say a disclosure statement prepared and signed before a lease commenced and terms of the lease last for 10 years. Agent omitted to include an outgoing in the estimate say ESM and insurances but in the lease document, it clearly outlines the responsibility of tenant in relation to this.

Given it was not in the disclosure statement, can the landlord still recover the these outgoings from the tenant?

What options are available to the landlord?

 

The lease is what has been agreed, agents probably aren't as across a lease as a solicitor familiar with it would be.

The tenant wouldn't see a disclosure statement.

 

Can you elaborate on this - i would have thought that the tenant will receive a copy of this as this is what they would have signed too?

The below is from the VSBC

Disclosure statement containing estimates of outgoings
The landlord must give the tenant a disclosure statement no later than 14 days before the lease is entered into. If a statement is not provided, the tenant is not liable to pay rent, if they have provided the landlord with written notice that they have not received the disclosure statement. This must be done during the seven days before, or during the 90 days after entering into the lease.

Estimate of outgoings (section 46 of the Act)
The landlord must give the tenant a written estimate of the outgoings for which the tenant is expected to pay under the lease. This must be done before the lease is entered into, and at least one month before the start of each of the landlord’s accounting periods during the term of the lease (i.e. each year). The tenant is not required to pay for outgoings if an estimate has not been given.

 

what sort of lease?

 

Retail lease in Victoria

 

I assumed that it was a vendor disclosure statement not a lessor's disclosure statement.

The LDS needs to be reviewed by the tenant's solicitor (or waived). It's a precursor to the lease but doesn't have the reliability of the lease it's part of the offer.

 

check out the Retail Leases Act Vic

 

sounds to me that if there is ambiguity or inconsistency between the disclosure statement and the lease, the lease triumphs?

 

already did. the act just says that if a disclosure statement is not provided to the tenant, they are not liable to pay the outgoings. it does not say anything about if an item of outgoing is omitted, the tenant does not have to pay. In addition, the disclosure statement only provides the estimate for the financial year it was entered into and not subsequent years.

 

You might find it allows a tenant to terminate within a certain time, but if they don’t they might be locked into the lease.