A lease of premises that comprises property capable of occupation. The method of describing the leased premises will depend on the length of the total term of the lease. The total term is the combination of the original term plus any option of renewal. There are two periods to consider:
- total term of 25 years or less, and
- total term of more than 25 years.
The premises must be fully defined and include a full postal address or other suitable manner of identification. Vague descriptions such as 'including backyard' are not acceptable.
Total term of 25 years or less
This is where the total combined period of the original term of the lease together with any option of renewal is 25 years or less.
Whole of premises
A plan of the premises is not required. The description in the body of the lease should adequately define the premises by reference to the identity of the premises and the full street address of the premises. For example:
- '.. being the whole of the Basement of the building known as the Strata Towers and situated at 345 Schemes Road, Strataville', or
- '.. being the refreshments kiosk known as The Hut situated at the rear of the building complex situated at 567 Strata Cove, Strataville'.
Part of premises
A plan annexed to the lease will be required to define the boundary of the leased area. The description in the body of the lease and the plan should comply with the same requirements as those for leases where the term is for more than 25 years.
Leases that exclude or except premises
Any lease that includes a description in terms of 'Lot.........DP..................... excluding the premises being .............' is unacceptable as the intention of the lease is to affect the 'open space' surrounding the building etc. These leases constitute a lease of land not premises. Consequently the normal practice for a lease of land of part of a parcel will operate, viz:
- Where the term of the lease (including any option of renewal) is greater than five years, the lease will constitute a subdivision and a new deposited plan defining the site and bearing a completed subdivision certificate will apply
- Where 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 in those instances where the sketch plan complies with NSW LRS Compiled Plan Guidelines. If this is not possible a full plan of survey defining the lease site will be required.
Note The only excepetion to this practice is where a new lease of land may exclude an existing lease of substation premises.
Total term for more than 25 years
This is where the total combined period of the original term of the lease together with any option of renewal is more than 25 years.
A plan will be required to adequately define the boundary of the leased area.
The description in the body of the lease should adequately define the premises by reference to:
- the identity and full street address of the premises
- the unique way in which it is designated in the plan and
- the plan used to define the boundary of the premises being leased.
- '.. being the part of the Ground Floor of the building known as the Strata Towers, situated at 345 Schemes Road, Strataville, hatched and designated A in the plan annexed to .... '.
- '.. being the boat house known as The Hut situated at the rear of the building complex situated at 567 Strata Cove, Strataville, defined by bold outline in the plan annexed to ....'.
- '.. being Workshop No.5 of the building known as Greenvale Industrial Units, situated at 12 Factory Road, Greenvale, together with the loading dock and car spaces numbered 4, 5 & 6 as shown in the plan annexed to ....'.
The plan can be either:
- a plan annexed to a registered dealing, or
- a plan annexed to the subject lease.
Any plan annexed to a dealing to define a lease of premises must comply with the requirements set out in Plans annexed to dealings page.
Successive five year term leases
Any lease of part of a current parcel of land will constitute a subdivision in terms of the Environmental Planning and Assessment Act 1979 if the term of the lease (including any option of renewal) exceeds a period of five years. However, multiple leases for the same site, each with a successive term of five years are acceptable and may be lodged together in NSW LRS. The specified term of each lease must be stated as commencing at a date no earlier than the day after the expiry of the previous lease in the series. The leases are limited to a series of five as Section 120A(3) Conveyancing Act 1919 states that a lease is void if it takes effect more than 21 years from the date of the instrument creating it. Further, as each lease in the series expires, it is possible to register new leases continuing the sequence providing each date of commencement is within 21 years of the date of commencement of the earliest current lease.
Premises that include 'open space'
Some premises also include some open space as an integral part of the lease. These include 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 child-care centre. Reference to the open air part of the site must be included in the description in the 'Property Leased Panel' in the lease.
The site must be accurately described by description e.g. 'Car Space No. 1', 'Basement Loading Dock', 'Adjoining Area', etc and be physically discernible on the ground.
All leases of open space premises must have boundaries defined by walls, fences 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 claim should be directed to the NSW LRS plan and Title Advisor.
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 (the use of toilets, stairways etc). The rights will not be referred to in the 'Property Leased Panel' and will not be included in the memorial on the certificate of title when the lease is registered.
Easements created by inclusion in a lease
Section 47(2) & (3) Real Property Act 1900 provides for the grant or reservation of an easement by a lease. Unless the easement affects the whole of the land or premises the site of the easement must be defined in a plan annexed to the lease. The usual requirements for a compiled easement plan will apply.