Variation of Sublease

This page aims to help you complete an electronic Variation of Sublease dealing form. This form is used to register a variation in the terms of a registered sublease.

A Variation of Sublease dealing form may be used when a registered sublease is being varied:

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

NOTE: A Variation of Lease dealing form must be used to vary a lease. 

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

NOTE: A variation of sublease affecting a sublease carried forward as a subsisting interest, i.e. 'Bk ... No. ... Lease To ...'  must be lodged as Dealing with Exception.

A Variation of Sublease may be registered after expiry of the sublease provided that:

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

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

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 sublessor and the sublessee 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 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 Sublease. It will not prevent registration of a variation of sublease 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 a Sublease dealing form.

Land Title

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

Participant Details

Party Details – Party Name

Sublessee

Select all sublessees.

Sublessor

Select all sublessors.

Document

Create Document – Select Other Documents.

Select Variation of a Sublease.

Dealing on Title

Select lease.

Lease Dealing Number

Select the lease dealing number for the lease being varied.

Lessee

Select the sublessee.

Lessor

Select the sublessor.

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. The new expiry date of a sublease must be at least 1 day before the termination date of the head lease.

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 sublease. 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 conditions and provisions of the variation of sublease.

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

Attachment Type - Mortgagee’s Consent

The consent of the mortgagee of a mortgage of the sublease 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 sublease if it was initially required for the sublease and the Crown land restriction still applies.

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

Attachment Type – Caveator’s Consent

Attach a caveator’s consent if required.

Attachment Type – Approved Forms

Where the sublessor or sublessee 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 sublessor or sublessee 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