On 11 October 2021, the Real Property Amendment (Certificates of Title) Act 2021 commenced, which abolished the Certificates of Title (CTs) and the control of the right to deal (CoRD) framework. All existing CTs have been cancelled and CTs will no longer be issued. Existing CTs will not need to be produced, and CoRD holder consent will not be required, for a dealing or plan to be registered. All existing Guidelines subject to this change are currently being reviewed and will be updated to reflect these changes. For further information regarding the abolition of CTs, please see https://www.registrargeneral.nsw.gov.au/property-and-conveyancing/eConveyancing/abolition-of-certificates-of-title

Lease of premises

A lease of premises is a lease of the whole or part of a building.
Generally, a plan will not be needed for a lease of premises. Premises must be defined by means of a unique description being the shop name/suite number etc together with a full street address. Vague words such as 'including rear shed' are not acceptable.
The description in both the ‘Property Leased’ panel of the lease dealing form and in the body of the lease should comprehensively identify the premises in a manner such as:

  • '.. being the whole of the basement of the building known as the Strata Towers and situated at 345 Schemes Road, Strataville' or
  • '.. being Shop 1 at 567 Strata Cove, Strataville' or
  • '.. being the refreshments kiosk known as “The Hut” situated at 567 Strata Cove, Strataville'

Plan requirements

A plan will be required where the lease is for:

  • part of premises; or
  • a term of more than 25 years (not including any option to renew) – see clause 9 Real Property Regulation 2019.

For requirements see ‘Plans annexed to dealings’
The Guidelines provide further information about specific types of lease premises and their plan requirements, being:

  • lease of units, apartments or villas in retirement villages 
  • lease of electrical substations which would generally require a right to maintain and support the electrical substation
  • lease of a windfarm comprising  an electricity generation plant which may consist of a series of ‘windmill’ towers supporting turbines driven by large revolving 'propeller' blades powered by the wind to generate electricity
  • lease for a solar farm which comprises of a collection of solar photovoltaic (PV) electricity generation plants comprising a series of solar panels with associated supporting structures (either fixed or tracking), inverters, switchyards, substations, batteries, monitoring equipment, gates and grids, fences, etc.
  • lease of premises for signage including a physical sign located on the ground or a building.

Leases that exclude or except premises

A lease of the whole of a parcel excluding premises is treated as a lease of land, not a lease of premises. Any lease with a description such as: 'Lot.........DP..................... excluding the premises being .............'  deals with the land (or 'open space') surrounding the premises, rather than the premises. These leases would constitute a lease of land. Accordingly, the following plan requirements would apply:

  • if the term of the lease (including any option of renewal) exceeds 5 years, the lease will constitute a subdivision of land. A new deposited plan defining the site and bearing a completed Subdivision Certificate will be required - see section 23F of the Conveyancing Act 1919 and section 6.2 Environmental Planning and Assessment Act 1979.

  • if the term of the lease (including any option of renewal) is five years or less, a compiled sketch plan of the site will be accepted if the sketch plan complies with NSW LRS requirements set out in the ‘Plans annexed to dealings’. Where this is not possible, a full deposited plan of survey defining the lease site will be required.

NOTE:  An exception applies where a new lease of land excludes an existing lease of substation premises.

Premises that include 'open space'

Some premises also include open space as an integral part of the lease. These include for example, a car parking space(s) attached to a lease of a shop, a loading dock with a lease of a factory or a playground attached to a childcare centre. Reference to the open air part of the site must be included in the description in the ‘Property Leased Panel’ on the Lease dealing form.
The site must be accurately described by description e.g. ‘ABC kids daycare centre together with adjoining outdoor play area shown hatched in the plan annexed’, ‘Joe’s Hairdresser shop together with adjoining car park designated (A) in the plan annexed' etc. and be physically discernible on the ground.

All leases of open space premises must have boundaries defined by fixed or permanent structures such as walls, fences, concrete driveways etc. as shown in a plan annexed to the lease. The boundaries of the site, as shown on the plan, must be determined by means of prolongations from the face of the structure together with perpendicular (90°) offsets to each corner of the site. In large parcels or in situations where the site is close to a parcel boundary it will also be necessary to connect the site to a corner of the parcel. If these requirements cannot be met a full plan of survey will be required. It should be noted that the land surrounding a building or structure comprises curtilage, not premises.

Open space areas that are separate from the building, or which have boundaries that are not fenced or physically discernible (nurseries, garden beds etc.) constitute a lease of land. However the Registrar General may give an exemption in some circumstances. Any such request should be directed to the NSW LRS Plan and Title Advisor at plan-info@nswlrs.com.au.

Rights to use car parking spaces etc. can also be created by means of a separate clause or provision in a lease, and as such will be treated as an ancillary right similar to rights in common which apply to other leases (such as the use of toilets, stairways etc.). The rights will not be referred to in the 'Property Leased Panel' of the Lease dealing form and will not be recorded on the Register or included in the notification on the Folio when the lease is registered.

Publish date: October 2023