Existing lease and incoming lease

Existing lease with no options (incoming lease)

If a current registered lease with no options expires before the incoming lease, ie the incoming lease has a future commencement date, the current lease is left on the Torrens Title Register until expiry and the incoming lease will be registered.

If an incoming lease:

  • is to the lessee of the current lease, or is accompanied by:
  • a Surrender of Lease form 07DL (PDF 550 KB) as regards those lessees not included in the incoming lease or
  • the consent of the current lessee
  • affects at least the same land or premises
  • commences before the expiry of the current lease and
  • is not made subject to the current lease,

an implied surrender of the current lease is assumed and an extra fee is payable.

If a current registered lease is to parties other than those shown in the incoming lease affecting the same land or premises and the terms overlap:

  • the current lease must be shown in the Encumbrances. The incoming lease will be treated as if it is a concurrent lease or
  • it must be clearly stated in the lease or in an accompanying letter that the incoming lease is a concurrent lease or
  • the current lease must be removed.

Note  A registered mortgage or charge of the lease will be removed with the lease where the lease can be removed on expiry of the term. The consent of the mortgagee is required for a surrender (including implied surrender) of a current lease.

Existing lease with option to purchase

A current registered lease with an option to purchase will only be removed:

Note  A registered mortgage or charge of the lease will be removed with the lease where the lease can be removed on expiry of the term. The consent of the mortgagee is required for a surrender (including implied surrender) of a current lease.

Existing lease with option to renew (incoming lease)

If a current registered lease contains an option to renew and expires before the incoming lease (i.e. having a future commencement date), and the incoming lease:

  • affects at least the same land or premises
  • is to the same parties and
  • is for at least the term stated in the option to renew,

the current lease will be left on the Torrens Title Register until expiry and the incoming lease will be registered.

If a current registered lease contains an option to renew and the incoming lease:

  • affects at least the same land or premises
  • is not to the same parties, and/or
  • is not for at least the term stated in the option to renew,

the incoming lease must:

  • be treated as if it is a concurrent lease or
  • the current lease must be removed.

If an expired registered lease contains an option to renew that is still current and the incoming lease:

  • affects at least the same land or premises
  • is to the same parties and
  • is for at least the term stated in the option to renew,

the expired lease will be removed from the Torrens Title Register on registration of the incoming lease.

If an expired registered lease contains an option to renew that is still current and the incoming lease:

  • affects at least the same land or premises:
  • is not to the same parties and/or
  • is not for at least the term stated in the option to renew,

the expired lease will only be removed where a statutory declaration by the lessor or the lessor's solicitor, contained in or accompanying the incoming lease, states that the time for the exercise of the option has expired and the option was not exercised, or that the option will not be exercised.

Note  A registered mortgage or charge of the lease will be removed with the lease where the lease can be removed on expiry of the term. The consent of the mortgagee is required for a surrender (including implied surrender) of a current lease.