Can a landlord back charge a missed rent increase?
A landlord who forgot to apply CPI or fixed increases for a few years may later ask for the difference all at once. Often it can, but the answer depends on how the lease's review works and how long ago the increases fell due.
The general position
The rent is what the lease says it is. If the lease provides that the rent increases on set dates by a fixed percentage or by CPI, the higher rent is generally payable from each review date, whether or not the landlord sent an invoice for it. A landlord that keeps invoicing the old rent has not usually changed what the lease requires, so the shortfall can generally be claimed later.
VCAT has rejected waiver and estoppel arguments against back charging. It has held that a landlord who accepted the lower rent as each payment fell due did not, by doing so, waive its right to the increases for those months, and that paying the increases late was not, on its own, a detriment that could support an estoppel. VCAT reached a similar result in an earlier case.
Automatic increases and reviews that need a step
How the review clause works matters most.
- Automatic increases. Many fixed percentage and CPI clauses say the rent is increased on each review date by the formula. No notice is needed, so each rent payment after the review date fell short when it was paid.
- Reviews that need a notice. Some clauses say the landlord must give notice of the new rent, or that the increase applies from the date of a notice. Whether a late notice can reach back to the review date depends on the wording, and on whether the lease says time is of the essence.
- Market reviews. A market review needs a process: proposals, negotiation and, if necessary, a valuer. Many clauses say the new rent applies from the review date even if it is settled later, with an adjustment once it is known. Others do not. Read the clause before assuming either way.
Under a retail lease, the Retail Leases Act 2003 (Vic) says a rent review is to be conducted as early as practicable within the time the lease provides, and if the landlord has not started it within 90 days after that time, the tenant may start it (s 35(5)). The section lets the tenant act; it does not itself say that a landlord who starts late loses the review. For how reviews work generally, see rent reviews.
Arguments tenants raise
- Waiver. The landlord gave up the increases by accepting the old rent. As above, VCAT has not accepted that accepting the lower rent is enough. Many leases also say that accepting rent, or delaying in enforcing a right, is not a waiver.
- Estoppel. Generally, the tenant must show that the landlord induced it to assume the increases would not be charged, that it relied on that assumption, and that it would suffer detriment if the landlord were allowed to go back on it. Simply having kept money the lease required it to pay is unlikely to be enough. A tenant that changed its position in reliance on the landlord’s conduct is in a stronger position, but each case turns on its facts.
- An agreement. If the landlord agreed to forgo the increases or to hold the rent, that agreement may bind it. A clear written agreement is far stronger than the landlord’s silence. Check whether the lease requires variations to be in writing.
Time limits for claiming old rent
Under the Limitation of Actions Act 1958 (Vic), no action may be brought to recover arrears of rent after six years from the date the arrears became due (s 19). Since 11 October 2023, “action” includes a proceeding in VCAT, and the change applies to claims that arose before that date (ss 3(1) and 39B).
For an automatic increase, each shortfall generally became due on the rent day it should have been paid, so shortfalls more than six years old may be out of time even if later ones are not. Where the lease requires a notice or a process before the new rent is payable, when the arrears became due may depend on the lease. Get advice on the dates before paying or suing. See time limits for lease claims.
Steps for tenants
- Ask for the landlord’s calculation in writing: each review date, the index figures used and the rent for each period.
- Check it against the lease: the CPI figures, the review dates, and whether each increase applies to the already increased rent.
- Check whether the review needed a notice, and whether any shortfalls are more than six years old.
- Keep paying the current rent while you deal with the claim. Stopping rent creates a new problem. See withholding rent and set-off.
- Negotiate. Landlords often agree to instalments, especially where the amount is large and the tenant is otherwise reliable. Put any arrangement in writing.
- Think ahead. An unpaid demand can become a notified default that affects an option to renew, or a sale of the business. See options to renew.
Steps for landlords
- Recalculate each increase from the lease, using the correct index figures and dates.
- Send a clear written statement of the shortfall with the calculation, and start invoicing the correct rent.
- Consider offering instalments. It often resolves the matter faster than a claim.
- Check the six-year limit before including the oldest periods.
- Before issuing a breach notice or calling on security for back rent, take advice on the notice and the lease. See rent arrears and breach notices.
Preventing the problem. Diarise every review date when the lease is signed. In new leases, state clearly whether increases are automatic, and whether a late review still takes effect from the review date.
How we help
- Checking a back-rent claim or calculation against the lease and the time limits.
- Negotiating a payment arrangement and documenting it.
- For landlords: recovering missed increases, and review clauses that avoid the dispute.
- Disputes at the Small Business Commission and VCAT. Start with a free 15-minute phone call.
Common questions
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Often, yes. If the lease provides for the increases, they are generally payable even if the landlord did not invoice them at the time, subject to the six-year time limit and the wording of the review clause.
Generally six years from the date the arrears became due. Since 11 October 2023, that limit also applies to VCAT proceedings.
Not by itself. VCAT has held that accepting the lower rent as it fell due did not waive the landlord’s right to the increases for those months.
Generally only if the landlord agrees. Many landlords will agree to a reasonable arrangement. Make sure it is in writing and says what happens if an instalment is missed.
Law referred to
- Limitation of Actions Act 1958 (Vic) ss 3(1) (definition of action), 19 and 39B.
- Retail Leases Act 2003 (Vic) s 35(5).
- Q St Kilda Tenancy Pty Ltd v Bortnik [2023] VCAT 1384.
- Cooltime Solutions Pty Ltd v Viva Energy Australia Pty Ltd [2020] VCAT 83.
- Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387.
Last reviewed: October 2026, by a Victorian solicitor with a current practising certificate. This page is general information about Victorian law as at October 2026. It is not legal advice about your lease.
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