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The Importance of Obtaining the Landlord’s Consent

It is a standard provision in most commercial and retail leases that a tenant obtain the landlord’s prior written consent before undertaking any alternation or fit-out works.  It is also often a condition that if that consent is requested, the landlord cannot unreasonably withhold its consent.

However, the recent case of Omar Property Pty Ltd and Ors v Amcor Flexibles (Port Melbourne) Pty Ltd ( No 4) [2020] VSC 216 illustrated the importance of seeking the landlord’s prior consent.

The Court found that, even if a lease provides that a landlord’s consent must not be unreasonably withheld, generally this does not apply to retrospective consent.  That is, if a tenant fails to obtain the prior consent of the landlord, a tenant cannot then attempt to rely on the reasonableness qualification in relation to obtaining the landlord’s consent if that consent is to be provided retrospectively.

This highlights the importance of following the provisions of your lease strictly and obtaining appropriate legal advice when considering performing fit-out or alterations to a leased premises.

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