Determination of Lease by Re-entry 

This page aims to help you complete an electronic Determination of Lease by Re-entry dealing form. This form removes a lease notification where the subject lease has been determined by the re-entry of the lessor or the mortgagee in possession. A lessor may peaceably and lawfully recover possession of the leased land or premises if the lessee breaks any of the covenants specified in the lease, for example the non-payment of rent.

NOTE: A lessee becoming bankrupt cannot be used as the basis for a determination by re-entry – see section 301 Bankruptcy Act 1966.

NOTE: Where a mortgage or charge of the lease is noted on the Register, a notice of the intention to determine the lease (and accordingly remove the mortgage or charge of lease) is prepared by NSW LRS and sent to the mortgagee or chargee. The mortgagee or chargee then has 1 month from the date of the notice to seek a Court Order to prevent the Registrar General from registering the determination of the lease. 

NOTE: A determination of lease by re-entry affecting a lease carried forward as a subsisting interest, i.e. 'Bk ... No. ... Lease To ...' must be lodged as a Dealing with Exception.

NOTE: The applicant must be represented in the workspace for this dealing form. 

Subscriber requirements

Before lodging this document electronically via an Electronic Lodgment Network, a Subscriber must:

1. verify their Client’s identity 
2. establish their Client’s right to deal with the land 
3. have a properly completed and executed Client Authorisation form and 
4. retain evidence that supports the dealing (see Supporting Evidence below).

The Subscriber must also certify that they have taken reasonable steps to ensure that the instrument is correct and compliant with relevant law and any Prescribed Requirement.
 
For more information on these requirements see:

Residual Documents

Guide to complete

Legislation – section 55 Real Property Act 1900.

Stamp Duty – not required.

Notice of Sale – not required.

Standard Form of Caveat – a caveat will prevent the recording of a Determination of Lease by Re-entry where the caveat is recorded against the lease being determined. A caveat drawn against the lease will be removed if the caveator consents to the determination. A caveat recorded against the land will not prevent registration.

Priority Notice Noted on the Register - see Priority Notice page for more information.

The following headings refer to the data fields which must be completed in order to lodge an electronic Determination of Lease by Re-entry dealing form.

Land Title

Enter the land title reference(s). 

Participant Details

Party Details – Party Name

Select the lessor or the mortgagee in possession.

Document

Create Document – Select Other Documents.

Select Determination of Lease by Re-entry.

Dealing on Title

Select lease.

Lease Number

Select the registered number of the lease.

Lessor

Select the lessor.

Applicant 

Select the lessor or the mortgagee in possession.

Date of Re-entry

Enter the date of re-entry.

Attachment

Attachment Type – Statutory Declaration

The statutory declaration must state that:

• the lessor or lessor's agent had, on a specified date, peaceably and lawfully re-entered and recovered possession of the land or premises, or served a summons for possession of the premises
• a specific covenant has been broken by the lessee (details of the covenant must be provided) 
• the requisite time had elapsed between the breach and the date of re-entry and
• if the Landlord and Tenant (Amendment) Act 1948 : 
  • does not apply to the lease, a statement that the Act does not apply to the lease or
  • does apply to the lease, a statement that either:
    • an order for recovery has been made pursuant to that Act (a true copy of the Order must be attached) or
    • the restrictions on ejectment contained in that Act do not apply.

Where the breach of covenant is not based on payment of rent, the statutory declaration must state that the requirements of section 129 Conveyancing Act 1919 as to service of notice etc. have been complied with or that the lease falls within an exemption in that section. 

Where a mortgagee in possession is making the application, the statutory declaration must reference the registered number of the mortgage and state that the mortgagee is in exclusive possession of the land as well as address the bullet points above.

NOTE: If there are other documents in support of the application, the circumstances relating to these documents should be set out in the statutory declaration and the documents attached to the statutory declaration, e.g.:

• if applicable, a summons for possession or an order for recovery of possession or
• where the lessor is an owners corporation, a special resolution is required (section 33 Strata Schemes Development Act 2015). For community, precinct or neighbourhood scheme, a unanimous resolution is required (section 17 Community Land Development Act 1989).

General statutory declaration requirements can be found here. 

Attachment Type – Copy of Order of Court

Where an order for recovery has been made pursuant to the Landlord and Tenant (Amendment) Act 1948, a true copy of the Order must be attached.

Attachment Type – Approved Forms

Where the lessor is the owners corporation of a strata scheme, the a certificate in the form of strata schemes Approved Form 13 is required. Execution of the certificate must take the form as set out in strata schemes Approved Form 23.

Where the lessor is the association of a community, precinct or neighbourhood scheme, a certificate in the form of Approved Form 21 is required. Execution of the certificate must take the form as set out in community title schemes Approved Form 18.
 

Supporting evidence

In addition to evidence supporting the steps taken by the Subscriber to verify the identity of their Client and establish their Client’s right to deal, the Subscriber may be required to retain other evidence to support the dealing.

It is a matter for the Subscriber to be satisfied that they have met the requirements for the dealing. Please refer to the ARNECC Guidance Note 5 for assistance on retaining evidence to support conveyancing transactions in accordance with the NSW Participation Rules.

All NSW legislation can be accessed at www.legislation.nsw.gov.au