Structural Repairs Under Retail Leases: Section 52 Explained (VIC)

If you’re leasing a retail shop in Victoria, it’s normal to wonder: who fixes the roof if it leaks? What if the air-conditioning fails, or a structural wall cracks?

Section 52 of the Retail Leases Act 2003 (Vic) sets out the landlord’s core obligations to keep key “base building” elements in good repair. Understanding what Section 52 covers - and what it doesn’t - can save you time, money and stress when something goes wrong.

In this guide, we’ll break down how Section 52 works in practice, what counts as “structural,” how costs are usually handled, and the key clauses to watch when you negotiate a retail lease in Victoria. We’ll also share a clear process to follow if a structural issue pops up mid‑lease.

What Does Section 52 Require In Victoria?

Section 52 requires a landlord to maintain certain parts of a retail premises in a condition consistent with the condition of the premises when the lease started. In simple terms: the landlord must keep key base building elements in good repair, so the premises remains fit for you to run your retail business.

Broadly, this covers the structure of the building and building systems that form part of the premises. Importantly, Section 52 doesn’t usually make the landlord responsible for items that are your responsibility under the lease (like your fit‑out or your own fixtures), nor does it require the landlord to deliver upgrades that put the premises in a better condition than when you first moved in (unless the lease says so).

Here’s what that means day to day:

• The landlord deals with base building defects that impact your ability to trade safely and normally.
• You deal with maintaining your fit‑out, trading equipment and anything else the lease puts on you as a tenant.
• Neither party is required to make the premises “better than new,” unless they’ve agreed to that in the lease.

Because every lease is a little different, it’s important to read Section 52 alongside the maintenance, repair and make‑good clauses in your document. Before you sign, getting a focused Commercial Lease Review can help you pick up risks and negotiate clearer outcomes.

What Counts As “Structural” And What’s Excluded?

The Act doesn’t give a neat one‑sentence definition of “structural,” but in practice it usually covers the backbone of the building and key base building services. Think of the parts you didn’t install, can’t readily move, and that keep the building safe and functioning.

Common examples of “structural” items

• Foundations, slabs, load‑bearing walls, columns and beams
• Roof, gutters and downpipes (base building)
• Structural components of external doors, windows and glazing (not tenant‑installed shopfronts, unless the lease says otherwise)
• Base building services that form part of the premises (for example, central HVAC plant, common risers, core electrical mains feeding the premises, fire systems that serve the whole building)
• Common areas and shared services in the landlord’s control that are necessary for access and normal trading

Items typically excluded from the landlord’s structural duty

• Your fit‑out, shelving, point‑of‑sale, appliances and non‑structural fixtures
• Damage you or your contractors cause (for example, during fit‑out works)
• Tenant‑specific additions (like tenant‑installed air‑conditioning units) unless the lease clearly shifts responsibility to the landlord
• Upgrades or cosmetic improvements beyond maintaining the original condition at lease commencement

The line between “structural” and “non‑structural” can be grey. For instance, HVAC can be split between base building plant (landlord’s remit) and in‑tenancy components (often the tenant’s remit). The cleanest way to avoid disputes is to spell out responsibilities in your lease schedule. If you’re a landlord drafting new terms or renewing, consider a custom Retail Lease with a clear maintenance matrix.

Who Pays For Repairs, Replacements And Essential Safety Measures?

When an item falls under Section 52, the landlord generally bears the cost of keeping it in good repair (again, consistent with the condition at lease commencement). That can include repairing defects and, where necessary, replacing a failing base building component to return it to that standard.

There are three key nuances to keep in mind:

1) Replacement v repair

If the most practical way to fix a structural problem is to replace a failed component (for example, part of a roof or a core air‑conditioning unit), the landlord’s obligation can extend to replacement. However, the obligation is to “maintain,” not necessarily to upgrade beyond the original standard unless the lease requires it or law demands it.

2) Tenant‑caused damage

If a tenant or its contractors cause damage, the cost typically falls on the tenant, even if the damaged item is structural. Many leases expressly state this, alongside indemnities and insurance requirements. This is also where your security - like a bank guarantee - can be relevant. If you’re negotiating security terms, it’s worth understanding how bank guarantees and personal guarantees work in practice.

3) Essential Safety Measures (ESMs)

In Victoria, the landlord is responsible for ensuring essential safety measures (like fire systems) are maintained to legal standards. Whether costs can be recovered from a tenant depends on the lease. Modern leases often allow certain ESM costs to be passed through as outgoings if the drafting permits. The safest approach is to make ESM responsibilities and cost recovery explicit in the lease schedule so everyone knows where they stand.

If trading is materially affected while structural repairs or ESM works occur - for example, part of your premises becomes unusable or access is blocked - your lease should address rent relief. Some parties resolve the issue with a tailored Rent Abatement Agreement, especially where works are extensive or staged over time.

How To Handle A Structural Repair Issue During Your Lease

When something structural goes wrong, small steps taken quickly can prevent a small problem becoming a big dispute. Here’s a practical, low‑stress process you can follow.

1) Gather evidence and isolate the risk

• Take clear photos and short videos showing what’s happening and where.
• Note dates, times and any impact on trading (for example, wet stock, closed areas, safety concerns).
• If there’s a safety risk, take common‑sense steps to protect staff and customers, and follow any incident procedures in your lease or shopping centre rules.

2) Check your lease and the scope of Section 52

• Confirm whether the issue is likely structural or part of your fit‑out obligations.
• Look for notice requirements and timeframes; if the lease refers to business days, it can help to be clear on what counts as a business day for timing.

3) Notify the landlord in writing (and promptly)

• Send a concise email or letter with photos, a description of the issue, any safety concerns and your requested next steps.
• Ask for acknowledgement and a timeframe for inspection and works.
• If trading is impacted, flag this early so you can discuss temporary solutions, like working hours for trades, staging, or partial rent relief.

4) Allow access for investigation and works

• Most leases require you to grant reasonable access so the landlord can inspect and fix structural issues.
• Coordinate dates and ensure the method of access is safe for your staff and customers.

5) Keep a paper trail and agree practical outcomes

• Confirm agreed actions and timelines by email. If alternative trading arrangements or rent adjustments are agreed, summarise them in writing (or formalise them with a short agreement).
• If the matter drags or becomes contentious, you’ll have a reliable record of your notices, impact on trading, and the landlord’s response.

6) Escalate sensibly if required

• If you can’t resolve the issue informally, check the dispute resolution pathway in your lease (often negotiation, then mediation).
• At that point, getting tailored advice is smart - it can help you quantify losses, assess options and push for a practical resolution without derailing your trading.

If a structural issue coincides with a proposed assignment or exit, remember that dealing with repairs and make‑good is often part of the handover. It’s common to address these through a Deed of Assignment of Lease, which can allocate responsibility and timing for any outstanding landlord or tenant works.

Negotiating Your Lease: Clauses To Watch

The best time to avoid a Section 52 dispute is before you sign. A little extra clarity in your lease can make day‑to‑day issues much easier to manage.

Maintenance and repair schedule

• Include a simple table that divides responsibilities: structural, base building services, tenant’s fit‑out, and any grey areas like HVAC and glazing.
• Expressly address who pays for ESM maintenance and compliance tasks.

Condition reports and photos

• Attach a condition report with photos at lease commencement. Section 52 ties back to the condition when the lease starts, so a visual baseline helps everyone.

Access and notice

• Set clear notice periods and hours for landlord access to do works, and require reasonable efforts to minimise disruption.

Rent abatement during works

• Agree when rent (and outgoings) abate if the premises (or part of it) is unusable due to structural repairs or base building works, and document the calculation method.
• For significant upgrades or remedial works, a short‑form Rent Abatement Agreement can sit alongside the lease to deal with practicalities and timeframes.

Insurance and indemnities

• Make sure your public liability and property insurance align with the risk allocation in the lease, including tenant‑caused damage to base building elements.
• Check how security is held and drawn - including any bank guarantee - so you know what happens if a damage claim is made.

Make‑good and end of lease

• Confirm exactly what you must remove or reinstate at the end, and how structural defects (if any) will be handled relative to your obligations.

Tailored drafting and review

• For landlords: a clear, modern retail lease set up for your building reduces day‑to‑day friction and protects asset value. For tenants: an early lease review helps you negotiate a fair split of responsibilities up front and avoid surprises later.

Key Takeaways

• In Victoria, Section 52 requires landlords to maintain structural elements and base building services of retail premises in a condition consistent with the lease start - it’s about keeping things in good repair, not delivering upgrades.
• “Structural” generally includes foundations, load‑bearing walls, roof and shared building systems; your fit‑out, fixtures and tenant‑installed equipment are typically excluded unless the lease says otherwise.
• Costs usually sit with the landlord for Section 52 items, except where damage is tenant‑caused or where the lease allows recovery (for example, some essential safety measures); clarity in the lease schedule is critical.
• If a structural issue arises, act quickly: document the problem, give written notice, allow access, agree timeframes and, where needed, formalise rent relief with a short agreement.
• Before you sign, negotiate maintenance schedules, condition reports, access, rent abatement, and security terms - backed by a focused Commercial Lease Review or bespoke Retail Lease drafting to suit your premises.
• If you’re assigning or exiting, manage repairs, make‑good and handover responsibilities cleanly in a Deed of Assignment of Lease, and be clear about any bank guarantee drawdown rights.

If you’d like a consultation about Section 52 obligations or to review your retail lease in Victoria, you can reach us at 1800 730 617 or team@sprintlaw.com.au for a free, no‑obligations chat.