Determination of lease by re-entry

Request form 11R (PDF 150 KB)

Dealing type - R

Legislation - s55 Real Property Act 1900

(A) Stamp duty - not required

NOS form - not required

Standard form of Caveat - prevents registration where the caveat is recorded against the lease or sublease being determined. Note  A caveat drawn against the lease will be removed if the caveator consents to the determination.

Does not prevent registration where the caveat is recorded against the land.

Priority Notice noted on the Register - see Priority Notice page.

A lease may be determined by the re-entry of the lessor, i.e. the 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, e.g. non-payment of rent. See Baalman And Wells, Land Titles Office Practice, Lawbook Co. 2001 [300.150].

A determination of lease by re-entry affecting a lease carried forward as a subsisting interest, i.e. 'Bk ... No. ... Lease To ...' must either:

  • be registered as a deed in the General Register of Deeds and a Request form 11R together with an Old System search showing the party entitled to deal with the lease must be lodged to record the interest.  A change in proprietorship must be registered in the General Register of Deeds.  See Baalman And Wells, Land Titles Office Practice, Lawbook Co. 2001 [390.100]. Note  The request to determine the lease cannot be registered in this instance or
  • be accompanied by:
    • an Old System search of the leasehold title and
    • a statutory declaration made by the person who undertook the Old System search of the leasehold title stating:
      • their qualification
      • that he or she has inspected all deeds since the leasehold title was created to the present time
      • the registered Book and No. and type of all instruments inspected to show the leasehold title has not expired and
      • the registered Book and No. and type of all instruments to which the leasehold estate is subject.

A notification (code ULD): 'Devolution of Lease' is entered in the Second Schedule and all further transactions affecting the lease may be lodged on a Real Property Act form and do not require further evidence of devolution.

Note  A lessee becoming bankrupt cannot be used as the basis for a determination by re-entry, see Baalman And Wells, Land Titles Office Practice, Lawbook Co. 2001 [300.250]; s301 Bankruptcy Act 1966.

For determination of a lease by:

  • disclaimer, see Baalman And Wells, Land Titles Office Practice, Lawbook Co. 2001 [300.250]
  • frustration or
  • notice.

(B) The reference to title for the land affected by the request must be stated. The lease must be determined as regards the whole of the land or premises leased.

(C) The registered number of the head lease affected by a sublease being determined must be stated. The reference to title for the land affected by the request must be stated.

(E) The full name of the lessor must be stated and be identical to the name as shown on the Torrens Title Register.

A mortgagee in possession may apply. A statutory declaration stating that the mortgagee is in exclusive possession of the land is required.

(F) A short description of the nature of the request and relevant legislation must be stated.

(G) Full details of the request must be stated.

The registered number of the lease being determined must be stated.

The date of re-entry must be stated.

The request must be accompanied by a statutory declaration stating 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)1 and
  • 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
  • if the Landlord and Tenant (Amendment) Act 1948 does apply to the lease, a statement that either:
    • an order for recovery has been made pursuant to that Act (a sealed copy of the order must be provided); 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 s129 Conveyancing Act 1919 as to service of notice etc have been complied with or that the lease is excepted by the section. See Baalman And Wells, Land Titles Office Practice, Lawbook Co. 2001 [300.150]. Refer to Legal through the Senior Examining Officer.

Note  Where a mortgage or charge of the lease is noted on the Torrens Title Register; a notice of the intention to determine the lease and hence remove the mortgage or charge is prepared by NSW LRS and sent to the mortgagee or chargee.

(H) The dealing must be executed by the lessor and be witnessed, or be executed on the lessor's behalf as follows:

  Attorney and witnessed Solicitor or Barrister Authorised Officer and witnessed Licensed Conveyancer
Lessor1 Tick Tick Tick Tick

1    Where a lessor has died a Notice of Death form 02ND or a Transmission Application form 03TA, as appropriate, must be lodged before the lease may be determined.

Where the lessor is the Owners Corporation of a Strata scheme, execution must take the form as set out in Strata Schemes Approved Form 23 (PDF 128 KB) .  Strata Schemes Approved Form 13 (PDF 23 KB) is also required.

Where the lessor is the Association of a Community, Precinct or Neighbourhood scheme, execution must take the form as set out in Community Title Schemes Approved Form 18 (PDF 20 KB).  A certificate as in Community Title Schemes Approved Form 21 (PDF 20 KB) is also required.

See execution requirements for companies, witnesses etc. pages.

(I) Not to be completed (see NOS form above).

Staff processing information 

Refer to the Senior Examining Officer for approval before acceptance.

Refer to SD31

Determination by re-entry of:

  • a Crown land tenure Perpetual Lease.
  • a Crown land tenure Term Lease.
  • a Crown land Real Property Act lease.

(Senior Examining Officer) Refer to SM99

Where the lease created an easement.

(Senior Examining Officer) Refer to Legal

  • where the lease is subject to a mortgage or charge.
  • a determination of a Book and No. lease accompanied by evidence of devolution of the lease.
  • a determinatiion of lease by disclaimer, see Baalman And Wells, Land Titles Office Practice, Lawbook Co. 2001 [300.250]. 

For a determination of lease:

Registration procedure

TRANSACTION    OFF

PRIME CODE    code of lease as shown on the Register

PRIME NUMBER    number of lease.

Note  Current sub-leases of the subject lease will be removed.

Determination of a sub-lease

TRANSACTION    OFF

PRIME CODE    code of head lease as shown on the Register

PRIME NUMBER    number of head lease

SUB CODE    code of sub-lease as shown on the Register

SUB NUMBER    number of sub-lease.

Affecting a Book and No. lease with satisfactory evidence of devolution

ADD. TRANSACTION    UNDR

PRIME CODE    code of lease as shown on the Register

PRIME NUMBER    number of lease

SUB-CODE    ULD  (Devolution Of Lease).
 

Publication Date: February 2025