Variation of Lease

This page aims to help you complete an electronic Variation of Lease dealing form.

A Variation of Lease dealing form may be used when a registered lease is being varied:

1. to increase or reduce the rent payable under the lease or
2. to increase or reduce the period for which the lease is to have effect or
3. to otherwise vary, omit or add to the provisions of the lease in accordance with section 55A Real Property Act 1900.

NOTE: A Variation of Sublease dealing form must be used to vary a sublease. 

The land or premises affected by the lease, or the parties to the lease, cannot be varied by this dealing.

A variation of lease affecting a lease carried forward as a subsisting interest, i.e. 'Bk ... No. ... Lease To ...'  cannot be lodged using the electronic form. Additional information on this type of variation can be found here.

A Variation of Lease may be registered after expiry of the lease provided that:

• the lease is still recorded on the Register and
• the lease expired less than 12 months ago. A variation of a lease that expired more than 12 months ago will not be accepted and
• the variation extends the term of the lease so that it is current at the time of registration.

A variation of a current lease may decrease the term providing the lease is still current at the time of lodgment.

A mortgagee in possession who has granted a lease may vary that lease.

NOTE: The term cannot be varied to exceed 5 years, including any options, where the mortgage is not exempt from section 106 Conveyancing Act 1919. Where the term exceeds 5 years a statutory declaration is required stating the lease does not contravene section 106 Conveyancing Act 1919.

NOTE: Both the lessor and the lessee 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).

NOTE: Both the lessor and the lessee must be representated in the workspace for this dealing form.

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 55A Real Property Act 1900.

Stamp Duty – not required if the variation is dated on or after 1 January 2008. Required if the variation is dated before 1 January 2008 regardless of the terms or provisions varied.

Notice of Sale – not required.

Standard Form of Caveat – a caveat noted on the Register will prevent recording of the Variation of Lease. It will not prevent registration of a variation of lease by a mortgagee in possession.

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 Variation of Lease dealing form.

Land Title

Enter the land title reference(s) affected by the lease.

Participant Details

Party Details – Party Name

Lessee

Select all lessees.

Lessor

Select all lessors.

Document

Create Document – Select Other Documents.

Select Variation of Lease.

Dealing on Title

Select lease.

Lease Dealing Number

Select the dealing number for the lease being varied.

Lessee 

Select the lessee. 

Lessor

Select the lessor.

Rent Amount (optional)

Consideration type – Select With Monetary Consideration

Enter the amount in the Amount field and the details of the consideration in the Consideration Details field.

New Expiry Date (optional)

Enter the new expiry date.

Date of Rent Change (optional)

Enter the date of the rent change.

Option to Renew

Enter the option to renew period. If there is a current option of renewal in the lease then the parties must state whether the option has been preserved, relinquished or modified as appropriate.

Provisions of the Lease (optional)

Enter the provisions of the lease. If this field is entered, the attachment type – conditions and provisions must be attached to the variation of lease.

Attachments

Attachment Type - Conditions and Provisions

Attach the condition and provisions of the lease if required. 

NOTE:  A Sub-lessee consent can be uploaded together with the Conditions and Provisions. There is no need to upload these attachments separately. The consent of a sub-lessee of the lease being varied is required where their interest is adversely affected.

Attachment Type - Mortgagee’s Consent

The consent of the mortgagee of a mortgage of the lease being varied is required where:

• the term of the lease is reduced and/or
• the interest of the mortgagee is adversely affected by the variation.

Attachment Type - Minister’s Consent

Minister's consent is required for a variation of the lease if it was initially required for the lease and the Crown land restriction still applies.

If the variation of lease changes the term or option to renew, attention must be given to the requirements for plans, council approval, time limitations, etc. as regards the lease. See further information on the Lease page.

Attachment Type – Approved Forms

Where the lessor or lessee is the owners corporation of a strata scheme, The following certificates are required:

• strata schemes Approved Form 13 and
• strata schemes Approved Form 10 where the initial period is not shown as expired on the common property title.
• Execution of the certificates must take the form as set out in strata schemes Approved Form 23.

Where the variation affects a leasehold strata scheme, the lessor of the leasehold strata scheme (as defined in Strata Schemes Development Act 2015) must provide their consent.
 
Where the lessor or lessee 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