Lease

This information aims to help you complete an electronic Lease dealing form. This form can also be used to create a sublease.

An electronic Lease dealing form can be lodged where it affects the whole of the land, part of the land and premises by all the registered proprietors.

Requirements:

From 6 February 2021, only the lessor is required to be represented in the workspace for this dealing form.
An electronic Lease dealing form is a single party instrument that is prepared and signed by the lessor’s Subscriber. It must be accompanied by a copy of the terms of the lease that is signed by or on behalf of the lessor and lessee i.e. the paper Lease 07L form is not required to be attached. The lease can incorporate terms and conditions that are set out in a Memorandum filed with NSW LRS. It can include a plan if the lease affects part of land. A lease of part of the land or premises affecting multiple land titles in different ownerships must be lodged as a separate lease for each land title in different ownership.

Legislation:

A lease for a term exceeding 3 years must be registered in order to pass a legal interest to the lessee: see section 53 Real Property Act 1900 which requires a lease to be registered in the Approved Form. A lease for a term of 3 years or less, including an option to renew, may be registered. 

Where a retail shop lease is for a term of more than 3 years, including any options to renew, or the parties agree that the lease is to be registered, the lessor must lodge the executed lease for registration within 3 months after the lease is returned to the lessor or the lessor’s representative: see section 16 Retail Leases Act 1994.

Types of leases not currently available for electronic lodgment:

An electronic Lease dealing form cannot be used (and accordingly a paper lease form 07L must be used) in the following instances:

A Lease 

  • by a life tenant
  • by a mortgagee or chargee in possession
  • by The State of New South Wales
  • by a Crown Land Manager
  • by National Parks and Wildlife, i.e. Kosciuszko leases
  • by the Land Administration Ministerial Corporation
  • of the whole of the land where an easement is being created or reserved during the term of the lease
  • of premises within a retirement village for a term exceeding 25 years
  • of a public reserve
  • over 20 land titles
  • requiring marking by Revenue NSW
  • by less than all of the registered proprietors
  • including a carry-over term
  • for the life of the lessee or for the life of another person 
  • with an uncertain term or a term measured in other than days/years, including where the lease commences on the happening of a certain event
  • where a leasehold title is to be created
  • that is a concurrent lease.

Implied surrender of lease:

A current lease noted on the Register may be surrendered by an incoming lease, i.e. an implied surrender, if the incoming lease:

  • is to all of the current lessees, or is accompanied by the consent of the current lessee
  • affects at least the same land or premises
  • commences before the expiry of the current lease and
  • is not made subject to the current lease.

An extra fee is payable for the implied surrender.

Registered proprietor holding as executor or administrator or trustee:

The lease must not include any reference to the lessor or lessee being a trustee, executor or administrator for another party.
For a lease by a registered proprietor holding the estate as executor or administrator, the term must not exceed three years, including any options to renew: see section 153 Conveyancing Act 1919.
For a lease by a registered proprietor holding an estate as a trustee, the term must not exceed 5 years, including any options to renew, except if it is allowed within the trust instrument: see section 36 Trustee Act 1925.

Easement by inclusion in a lease:

An easement may be created by grant or reservation by the parties to a lease if the parties are the registered proprietors of both the dominant and servient tenements: see section 47 Real Property Act. The terms and site of the easement may be contained in an annexure to the lease and may be referenced in an attached plan.

Currently, only a lease over part of the land where an easement is being created or reserved during the term of the lease can be lodged electronically. Where a lease is over the whole land and an easement is being created or reserved, the electronic Lease dealing form cannot be used (and accordingly a paper lease form 07L must be used).

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 53 Real Property Act 1900.

Stamp Duty – not required.

CoRD Holder Consent – required for recording a Lease: see CoRD Holder Consent requirements. A CoRD holder consent is not required for a sublease.

Notice of Sale – not required.

Standard Form of Caveat – a caveat noted on the Register will prevent the recording of a Lease, except where it is a lease by a mortgagee or chargee 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 Lease dealing form.

Party type

Select one of the following to specify the party type of the lessor:

  • organisation or
  • ‚Äčindividual.

Land Titles Reference

Enter the title reference(s) affected by the Lease.

Land Extent

Select whole of the land or part of the land.

Description

If part of the land is selected, enter the details. The details must include the following:

  • premises which is not the whole of the land - the description of property leased must refer to part Certificate of Title followed by the premises description (see premises below), e.g. Part 1/123456 being Unit 1, 11 Smith Street, Sydney.
  • part of the land for 5 years or less, including any options to renew, must fully describe the affected part by reference to a registered plan, a plan attached to the lease, or to another registered dealing. See information on Lease Plans.
  • part of the land for more than 5 years, including any options to renew, other than a lease lodged by the Commonwealth of Australia, must describe the affected part by reference to a registered plan of subdivision that has been approved by the local council. See s23F and s23G Conveyancing Act 1919. See information on Lease Plans.
  • premises must be fully defined by either:
  • - a unique description such as a shop name or number together with a full postal address (where the shop does not have a shop name or number and it is the only shop within the lot(s) affected by the lease, a letter stating that information must accompany the lease), or
  • - a plan annexed to the lease.
  • premises for a term exceeding 25 years must be accompanied by a plan defining the premises. The plan does not require local council's approval.
  • car spaces intended to be included in the leased premises must be clearly numbered. Where car spaces are not clearly identified, e.g. 'together with 1 car space' rather than 'car space No. 1', a requisition will be raised. Reference to car spaces elsewhere in the lease will be regarded as rights and will not be included in the lease notification. Where the car spaces are also shown in an annexed plan, dimensions of the car spaces must be included in the plan.
  • easements - where an easement is being created or reserved during the term of the lease, enter details of the easement or refer to the easement being created. The details may be set out in an attachment.

An extra fee is payable where the land description is reliant on a plan annexed. See the Attachments section below for information about attaching a plan.

Interest in Land

If a sublease is being created, select the registered number of the head lease for a sublease. The head lease must be registered with NSW LRS prior to the lodgment of this sublease.

Lessor Details

Select one of the following options:

  • Proprietor on title – select this option if the lease affects the current registered proprietor(s). The lessor name must be identical to the name of the registered proprietor as shown on the Register.
  • Incoming proprietor – select this option if the lease affects the incoming proprietor.
  • To deal with an interest – select this option for a sublease.

The lessor name will be populated into this field. If the lessor is a corporation, its ACN must be included. 

Lessee Details

The lessee name will be populated into this field. If the lessee is a corporation, its ACN must be included.

Tenancy Type

If there is only one lessee, select sole proprietor.

If there is more than one lessee, select one of the following:

Joint tenants or Tenants in common and enter the share of each lessee.

For more information about tenancy types, see What is tenancy? page.

Lease Details

Term - Enter the term of the lease by entering the year(s), month(s) and day(s).

Commencing Date – Enter the commencing date. 

Terminating Date – Enter the terminating date.

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

The term must align with the commencing and terminating dates entered.

Rent Details

Information about the rent must be specified. Four fields are available to be used, to give flexibility to complete the lease, but only two fields are mandatory (Terms of Payment and Rent Description). The fields Amount and Payment Frequency are optional and can be ignored if those details are covered in the body of the lease.

Amount – This is an optional field. Enter the rent amount payable. Only numbers can be included. If an amount is specified, payment frequency must also be specified.

Payment Frequency – This is an optional field. Select the frequency of payment, being daily, weekly, fortnightly, monthly, quarterly and yearly. If the frequency is specified, the amount must also be specified.

Terms of Payment – This is a mandatory field. Enter the terms of the payment or refer to the clause or provision in the lease that deals with payment of rent. For example, you may enter ‘See clause 5 of the attached Conditions and Provisions’. Otherwise enter N/A if not applicable.

Rent Description – This is a mandatory field. Enter any additional rent information, such as a description of the rent payable or the frequency of payment. For example, you may enter ‘Amount is inclusive of GST’. Otherwise enter N/A if not applicable.

Option to Renew

Select Yes or No. 

Option to Renew Period

If applicable, enter the renewal period by entering the year(s), month(s) and day(s).

Option to Purchase

Select Yes or No. 

Registered Memorandum

Enter the registered memorandum reference.

Attachments

Attachment Type - Conditions and Provisions

The terms of the lease signed by or on behalf of the lessor and lessee must be attached to the dealing under ‘Conditions and Provisions’. Plans, consents and other documentation intended to be filed with the lease can either be uploaded together with the lease or uploaded as separate attachments. To attach them separately, see other attachment types below.

Attachment Type – Mortgagee’s Consent/Minister’s Consent/Caveator’s Consent (optional)

The consent of a mortgagee, minister or caveator may be required. Where it is required, the relevant consent of the mortgagee, minister or caveator must be attached.

Minister's consent may be required for certain Crown land tenures.

Attachment Type – Plan (optional)

Attach a plan where the description of the part of the land (and/or any easements created) or the premises to be leased is reliant on a plan annexed.

Attachment Type – Statutory Declaration (optional)

Attach a statutory declaration if required.

Attachment Type - Supporting Evidence (optional)

Other documentation intended to be filed with the lease may be attached as supporting evidence. For example, the details of an easement may be contained in an attachment.

Lessor’s Acknowledgement

The following statements will appear on the electronic Lease render:

THE SUBSCRIBER VERIFIES THAT THE ATTACHED LEASE HAS BEEN SIGNED BY OR ON BEHALF OF A PERSON PURPORTING TO BE THE LESSEE.

THE LESSOR DECLARES, TO THE BEST KNOWLEDGE OF THE SUBSCRIBER, THAT REGISTRATION OF THE LEASE IS NOT PRECLUDED BY ANY OPTION OF RENEWAL/PURCHASE IN A REGISTERED LEASE.‚Äč

NOTE: The statement relating to options can be ignored if there are no options recorded on the Register.

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.

The evidence that the Subscriber is required to retain to support a Lease dealing form may include:

  • A true copy of the duly executed version of the document(s) uploaded as an attachment and
  • If the Conditions and Provisions has been signed by an attorney on behalf of the lessor or lessee, a true copy of the registered power of attorney.

Other forms of evidence may be acceptable and 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 http://www.legislation.nsw.gov.au