transfer of lease qld pexa

Key considerations for Queensland’s eConveyancing mandate – commencing February 2023

Earlier this year, we discussed Queensland’s move towards mandatory electronic conveyancing ( eConveyancing ). The Land Title Regulation 2022 (Qld) ( Regulation ) has now been issued, providing further detail on the initial scope of the eConveyancing mandate for Queensland commencing on 20 February 2023.

This article summarises the documents that must be lodged through an Electronic Lodgment Network Operator ( ELNO ) (such as PEXA or Sympli), the exceptions that apply, and our observations on the impact of this on Queensland’s property industry.

‘Required instruments’

The Regulation prescribes the following documents as ‘required instruments’, which must be lodged through an ELNO from 20 February 2023:

• mortgages (and releases of mortgage);
• caveats (and requests to withdraw caveats);
• priority notices (and extensions or withdrawals of priority notices); and
• applications to be registered as a personal representative for a registered owner who has died.

The mandate only applies to freehold lot interests. Secondary interests in land (e.g. a lease) and any interests in water allocations are not included, so dealings with leases or water allocations (including any transfer or mortgage) are not captured by the Regulation and will not be required to be lodged through an ELNO.

There are a number of exceptions to the mandatory lodgment via an ELNO:

• ELNO limitations – if the ELNO does not have functionality to prepare, lodge or deposit the required document, or cannot be used on the day (and for the whole day) for reasons beyond an ELNO subscriber’s control;
• Registry limitations – if the land registry system does not have functionality to accept or process the document lodged using an ELNO;
• Combined transactions – if the document is to be lodged with another document that cannot be lodged using an ELNO (e.g. a plan, or any other dealing involving a lease or water allocation or a self-represented individual);
• Self-represented individuals – if a party to the document is an individual who is not an ELNO subscriber or represented by a lawyer or law firm; and
• Pre-commencement documents – if a document has been executed by a party in hard copy form before 20 February 2023.

There are also exemptions relating to documents replacing rejected or withdrawn dealings, as well as documents giving effect to a transaction that is not an ‘ELN lodgment’ or ‘ELN transfer’ under the Duties Act 2001 (Qld) .

Titles Queensland guidance

The Titles Queensland website has been updated to include helpful guidance on the operation and impact of the Regulations, available here .

Observations

While the Regulations are simple in their scope and exemptions, there are a number of issues that may arise in practice, which should be considered.

Exempt transactions

During the course of a transaction, it may not be immediately apparent if an exemption category, such as an ELNO limitation or Registry limitation, will apply. All parties will need to ask appropriate questions and consider the documents before assuming the mandate will apply, and be familiar with ELNO and land registry limitations. Examples of transactions which are likely to be exempt are:

• transfers by a mortgagee exercising power of sale or when evidence of a charitable trust is required;
• a freehold if required to be lodged with a transfer and the seller (transferor) is a self-represented individual;
• transfers involving unusual ownership arrangements (for example, the same trustee of separate trusts in unequal proportions); and
• consent caveats.

Self-represented exemption

The self-represented exemption applies only to individuals, not companies. A company which acts for itself in property transactions (for example, property developers who handle their own acquisitions or sales) will need to either become subscribers to an ELNO or engage a lawyer.

The exemption does not apply if an individual is represented by a lawyer or law firm, regardless of whether that lawyer or law firm is an ELNO subscriber. All lawyers involved in property transactions will need to ensure they are a subscriber to an ELNO before 20 February 2023.

How to claim an exemption

The mechanism to claim an exemption has not been released. We are hopeful that Queensland will follow other jurisdictions, such as New South Wales, where a simple form is required with no further substantiation.

It is important that the property industry (including developers, financiers, agents and lawyers) are ready for the commencement of the mandate on 20 February 2023, and we recommend preparing for this as soon as possible to minimise disruption to transactions and potential ramifications.

Our Finance and Real Estate teams have assisted developers and financiers in Queensland to prepare for this change, and are available to support you with this transition. With the deadline quickly approaching, we can support you in understanding the full impact of this change on your business or transactions, as well as provide training and development to help you practically prepare. For assistance or for further information, please contact the team below.

This publication covers legal and technical issues in a general way. It is not designed to express opinions on specific cases. It is intended for information purposes only and should not be regarded as legal advice. Further advice should be obtained before taking action on any issue dealt with in this publication.

About the authors

Kristan Conlon

Kirby Jukes

Michelle Guy

Emile McPhee

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• Real estate 5 Minute Fix 21: unfair contract terms; build to rent, PEXA, rent abatement withdrawal, developer regulation

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Commonwealth

(cth) unfair contract terms regime expanded to small businesses.

Amendments to the Competition and Consumer Act 2010 (Cth) are set to expand existing consumer protections with respect to unfair contract terms to apply to small businesses having either up to 100 employees or having an annual turnover under $10 million from 10 November 2023.

This expansion should be carefully considered by any organisation that uses standard form contracts for the supply of goods and services, or for sale or grant of an interest in land.

If a standard form contract used by a business covered under this regime is determined to be unfair, a court may:

• void, vary or refuse to enforce the offending clause or the whole contract;
• prevent the same or substantially similar terms from being included in any future standard form small business contract; and/or
• restrain the same or substantially similar term to be applied or relied upon across all the existing contracts.

(Cth) Updates to Security of Critical Infrastructure legislation

The Security of Critical Infrastructure Act 2018 (SOCI Act) has been updated to add obligations for 11 critical infrastructure sectors. Affected assets include those in the communications (including telecommunications, broadcasting and domain names), food and grocery, data storage or processing, higher education and research, financial services and markets (including critical banking, superannuation, insurance and financial market and infrastructure assets), water and sewerage, space technology, health care and medical, energy (including critical electricity, gas, energy market operator and liquid fuel assets), defence and transport (including critical port, freight infrastructure, freight services, public transport and aviation assets) industries.

The new requirements apply to those who own, operate or have a direct interest in critical infrastructure assets.

Obligations may include requirements to register assets on the Critical Asset Register, reporting cybersecurity incidents to the Australian Signals Directorate ( ASD ) within 12 hours, allowing ASD involvement in incidents and complying with directions in relation to management of cyber security incidents. Further obligations may arise as these are "switched on" via Ministerial Rules.

For further information, our interactive PDF will help you quickly grasp if you could have obligations under the new Act.

(Cth): ATO consultation explores emerging build to rent models

The Australian Taxation Office ( ATO ) is currently engaging in targeted consultation with members of the Property and Construction Stakeholder Relationship Forum, GST Stewardship Group and State Government representatives to explore emerging models of build-to-rent ( BTR ) developments in Australia. The aim of the consultation is for the ATO to understand opportunities to support the industry with its tax obligations.

BTR has attracted growing attention and interest from both industry and government, with incentives and concessions for BTR developments increasing. Consultation will conclude in March 2023.

All documents under Corporations Act 2001 (Cth) may be signed electronically under the Treasury Laws Amendment (Modernising Business Communications and Other Measures) Bill 2022

The Treasury Laws Amendment (Modernising Business Communications and Other Measures) Bill 2022 amends the Corporations Act 2001 to allow all documents under the Act to be signed electronically, allow documents to be sent either in hard copy or electronically and provides that companies will not be required to issue documents to a member where contact details are known to be incorrect.

This Bill also amends the Australian Prudential Regulation Authority Act 1998, Australian Securities and Investments Commission Act 2001, Competition and Consumer Act 2010, National Consumer Credit Protection Act 2009 and Tax Agent Services Act 2009 to enable certain regulatory bodies to hold virtual hearings and examinations, and the Corporations Act 2001, Excise Act 1901 and Small Superannuation Accounts Act 1995 to enable electronic payment methodologies.

Australian Capital Territory

(act): proposal for increased regulation of developers.

In December 2022, the ACT Government released the Developer Regulation Discussion Paper in response to growing community concerns regarding the conduct of developers and an increasing number of building defects. The paper is designed to summarise the issues and potential options for improving the accountability of developers and providing consumers with greater information.

The four key areas being considered in the reform are:

• accountability and transparency
• ethical behaviours and work practices;
• project capability - financial and operational; and
• building quality and safety.

In each of these key areas there are potential options being considered prior to the introduction of formal regulation by the ACT Government. The seven potential options discussed in the paper are:

• a licensing scheme;
• a registration scheme;
• a disclosure scheme;
• improving the quality of documentation provided by developers;
• project trust accounts or bond schemes;
• bringing developers into the regulatory chain of accountability for building work; and / or
• amendments to the existing Building Regulatory System including a review of the statutory warranties and extension of statutory warranties to developers.

Depending on the option(s) adopted, the proposal has highlighted that any formal regulation is likely to affect a large portion of the ACT community including landowners and lessees, developers, financial institutions, estate agents, contractors (including builders and subcontracted trades) and professional teams (including but not limited to planning and economic consultants, architects, quantity surveyors, engineers, project managers, solicitors and accountants). Other affected parties may also include objectors, occupiers and public sector and government agencies (including planners).

Consultation with key stakeholders and industry focus areas concluded on 27 February 2023.

(ACT): Changes to mandatory terms of Unit Titles certificates

The Unit Titles (Management) Certificate Determination 2023 (ACT) commenced on 28 January 2023.

The determination prescribes the information which must be included in a unit title certificate and a unit title update certificate under sections 119(1)(a) and 119(1)(b) of the Unit Titles (Management) Act 2011 (ACT).

The new prescribed information is:

• the name and contact details of each member of the corporation's executive committee;
• the name and contact details of the corporation's manager;
• specified information in relation to each insurance policy held by the corporation;
• specified information in relation to the general and sinking fund;
• whether the corporation has established a special purpose fund, and if so specified information regarding that fund;
• whether the developer control period has expired;
• whether the corporation has borrowed money and the details of those borrowings;
• whether the corporation has installed sustainability infrastructure and if so, who owns it;
• a summary of any current contracts for services contractors;
• whether the corporation has applied to the ACT Planning and Land Authority for an extension of the Crown Lease;
• the place where the corporation's records can be inspected, including the name and contact details of the relevant person to arrange inspection. The determination also clarifies what records may be inspected; and
• copies of the minutes of meetings of the owners corporation and the executive committee, over the period of time specified in the determination.

The determination revokes and replaces the previous Unit Titles (Management) Certificate Determination 2021 (ACT).

(ACT): Consultation closes on new ACT Territory Plan and District Planning Strategies

Community engagement on the draft new Territory Plan (and draft district strategies) closed on 3 March 2023. The draft plan and district strategies will now undergo revision prior to official publication / further consultation.

Further information and a copy of the draft plan, design guides, technical specifications and district specifications can be found here.

New South Wales

(nsw) nsw government shared equity home buyer helper scheme launched.

On 24 January 2023, the NSW Government launched the Shared Equity Home Buyer Helper scheme, which aims to support eligible buyers such as single parents, singles aged 55 or over and first home buyers that are also key workers such as nurses, midwives, paramedics, teachers, early childhood educators and police officers. Caps on individual and household income apply, as well as thresholds for the price of property purchased, being $950,000 in Sydney and major regional centres.

Participants will need to occupy any property purchased under the scheme as their principal place of residence. There are caps on individual and household income and the price of property purchased.

The scheme allows for the government to contribute up to 40% for a new home and 30% for an established home in exchange for the equivalent interest in the property.

(NSW): Court recommends PEXA platform should be reviewed for lodgement of caveats

In Brose v Slade [2022] NSWSC 1785, the plaintiff sought to extend two caveats that had been lodged under section 74K of the Real Property Act 1900 (NSW). The plaintiffs had been required to lodge the caveats through PEXA.

When lodging the caveat in PEXA, the plaintiffs found that the only options for selection offered by PEXA were that the interest held was an "Estate in Fee Simple" and the claim category of "Beneficial Interest in Trust". The caveats had been lodged on that basis, however this was inaccurate, as the interest in the land held by the plaintiffs was an equitable interest in the land in the nature of a constructive trust. The defendants argued for the dismissal of the application.

The court granted the extension of one of the caveats upon consideration of the balance of convenience, and leave was granted for the plaintiffs to file a new caveat for the second matter. The court also referred the matter to the Minister for Customer Service and Digital Government, the Registrar General and PEXA for consideration.

(NSW) Incentive deed clause to repay tenant incentive upon early termination of lease found to be a penalty and not enforceable

In Alamdo Holdings Pty Ltd v Croc’s Franchising Pty Ltd (No 2) [2023] NSWSC 60, the court considered whether a landlord was able to terminate the lease and re-enter the Premises (a "prescribed action" under the Retail and Other Commercial Leases (COVID-19) Regulation 2020 (NSW)) where a tenant refused to provide adequate financial information repeatedly sought by the Landlord with regard to the tenant's request for a rent reduction in accordance with the Regulation, and did not pay any rent during this time. The Landlord was entitled to terminate the lease as it had satisfied the pre-conditions of clause 5 prior to exercising its right to terminate.

The parties had also signed an incentive deed under which the Landlord had paid the Tenant $250,000 towards the fitout of the Premises. As a term of the incentive deed, in the event that the lease terminated before the end of the Term, the Tenant was to repay a portion of the incentive to the Landlord, calculated as the lease incentive ($250,000) multiplied by the days remaining in the term, which was then divided by the total number of days in the term.

This clause was found to be a penalty and not enforceable against the tenant, as it put the landlord into a better position than it would have been had the lease run its course and went further than necessary to protect the landlord's interests.

(NSW): Surcharge purchaser duty and surcharge land tax exemptions removed for certain nations

Current NSW surcharge provisions with respect to purchaser duty and land tax have been determined to be inconsistent with international tax treaties entered by the Federal Government with NZ, Finland, Germany and South Africa.

Individuals who are citizens of those nations purchasing residential land or property (in their own capacity) are exempt from surcharge purchaser duty and surcharge land tax, effective immediately.

Those who paid surcharge purchaser duty or surcharge land tax on or after 1 July 2021 may be eligible for a refund.

The liability for non-individuals (corporations, trusts and partnerships) for surcharges that have arisen due to the entity's affiliation with these nations may also be affected.

Revenue NSW representatives are proactively contacting customers with respect to transactions considered eligible for the refund.

(NSW): Landlord's withdrawal of rental abatement during COVID-19 pandemic amounts to unconscionable conduct under retail leasing legislation

In Shams v 357 Thornleigh Place [2022] NSWCATD 177, the NSW Civil and Administrative Tribunal found that a landlord of a retail lease in a shopping centre had engaged in unconscionable conduct in contravention of section 62B(1) of the Retail Leases Act 1994 (NSW) ( RLA ) by:

• purporting to withdraw a rent rebate previously offered prior to the COVID-19 pandemic by the Landlord's leasing manager;
• refusing to engage in good faith negotiations with respect to rent abatement due to the impact of construction works, shop closures in the shopping centre and the COVID-19 Pandemic; and
• purporting to terminate the lease and re-entering the premises without following due procedure as set out in the Lease and the Conveyancing Act 1919 (NSW).

NCAT noted that a finding that a landlord has acted unconscionably under section 62B(3) is not limited to the consideration of the matters set out in section 62B(3)(a) to (k).

(Qld): PEXA mandate takes effect in Queensland

Until recently the use of eConveyancing platforms ( Platform ) (such as PEXA) has been voluntary in Queensland, but from 20 February 2023, it has become mandatory for certain property transactions to be conducted electronically.

Here, we take a quick look at what the mandate means and some practical considerations coming from the mandate.

When does the mandate apply?

Unless an exemption applies, a "required instrument" will need to be prepared, lodged and deposited using a Platform. A "required instrument" includes most forms of transfers, mortgages and releases but instruments may be exempt from the mandate for various reasons, including where:

• the Platform or Titles Registry does not have the functionality to accept the instrument;
• the instrument is being prepared or lodged with another instrument that cannot be accepted by the Platform or Titles Registry; and
• where the transaction involves certain transfer duty exemptions or lodgement fees exemptions.

Practical considerations

Some practical issues that may arise include:

• Self-represented parties – self-represented individuals are exempt from the mandate, but all other self-represented entities are subject to the mandate. In-house legal teams who handle their own property transactions will either need to ensure they have subscribed to a Platform or will need to engage a representative on their behalf who is already a subscriber;
• Government and Council entities – for our government clients, generally most transactions involving the State (or a Department) will be exempt from the mandate. However, Councils and the Federal Government are generally subject to the mandate like any other entity; and
• Verifications of Identity and Client Authorisations – clients should expect to see an increase in the requirements for identity and authority verification procedures.

We expect the electronic lodgement mandate to be expanded in coming years and we will keep you up to date with any developments.

(Qld): Property Law Bill introduced to Parliament

Queensland has moved one step closer to revamping its property law regime. The Property Law Bill 2022 was introduced to Parliament on 23 February 2023. If passed, the Bill will replace the nearly 50-year-old Property Law Act 1974 (Qld) with a new property law regime intended to modernise property law in Queensland.

The Bill will repeal outdated clauses and incorporate contemporary language and provisions to closely align with commercial practices.

If passed some of the more significant amendments include:

• A Seller disclosure regime: this would expand this requirement from only off-the-plan contracts to most sales of property in Queensland. This amendment reflects practices in other states as well as expectations from property buyers in an increasingly competitive market and will place the onus on the Seller to provide further information and certificates about the property; and
• Releases of certain Tenants on Lease Assignment : the Bill provides that a tenant and any guarantor of the tenant’s obligations will be released from liability under any lease following an assignment by the tenant, and a subsequent assignment to a third tenant. The release relates to any breach by the subsequent (ie. third) tenant. This will provide protections to tenants where they are removed from lease dealings and landlords will need to be increasingly satisfied with any assignee's strength of covenant including by potentially seeking increased security.

(Qld): Changes will pave the way termination of Body Corporate schemes

The Queensland Government has announced proposed changes to the relevant body corporate legislation to make it easier for a Body Corporate to terminate a scheme in certain circumstances.

Currently schemes may only be terminated if the body corporate by resolution without dissent decides to terminate the scheme, ie. all owners must consent and there cannot be a single owner objecting to the termination.

The changes proposed following the October 2022 Housing Summit seek to amend this requirement so that only 75% of lot owners need to support the proposal where it is more financially viable for the scheme to be terminated than maintained/ remediated.

This reform is aimed at streamlining the requirements to sell or redevelop community titles schemes past their useful building life and will assist in unlocking land for further redevelopment.

Other changes proposed including updated rules for smoking within common property and strong steps to ensure that Body Corporates don't ban pets within schemes. Draft legislation has yet to be released.

Western Australia

(wa): landgate releases consultation paper on proposal to introduce electronic execution of documents.

Landgate, Western Australia's statutory land information authority, has this year released a consultation paper on the electronic execution of various documents which are currently required to be "wet" signed, which has resulted in Western Australia falling behind other Australian jurisdictions in allowing electronic execution of documents concerning land.

Landgate is currently taking submissions on a number of questions, including:

• whether the requirements for leases, easements, restrictive covenants, applications, memorials and notifications be reviewed so as to allow electronic creation;
• what form of electronic or digital signature is appropriate for digital execution;
• whether electronic signatures should have witnessing or attestation requirements; and
• whether a verification of identity ( VOI ) regime could replace the need for witnessing for all Western Australian land registry documents.

Landgate has also proposed a number of amendments to the Electronic Transactions Regulations 2012 (WA), the Property Law Act 1969 (WA) and the Transfer of Land Act 1893 (WA) to allow:

• electronic execution of deeds;
• electronic execution of powers of attorney; and
• electronic execution of statutory declarations produced in support of Western Australian land registry documents.

Feedback submissions are open until 17 May 2023 and can be made by email to [email protected] .

(WA) The Land and Public Works Legislation Bill 2022 has now passed the Legislative Assembly, paving the way to further important changes

The Land and Public Works Legislation Bill 2022 was passed by the Legislative Assembly on 23 February 2023. The Bill proposes key changes to the Land and Administration Act 1997 (WA) ( LAA ), and the Public Works Act 1902 (WA).

Notably, in relation to the LAA, the Bill proposes a number of key changes to modernise the LAA and further unlock the economic potential of Crown land assets in Western Australia, some of which are summarised below:

• the grant of diversification leases, a new form of non-exclusive land tenure over Crown land, which will provide opportunities for holders of pastoral leases over Crown land, together with native title parties, mining companies and others to use the land for a more diversified range of clean energy related uses (which will co-exist with the existing pastoral or mining uses) ;
• changes to allow pastoral lessees to extend the term of pastoral leases, together which changes to the manner in which pastoral lease rent is to be determined. Due to what is described as "historical reasons" in the Explanatory Memorandum for the Bill, those with shorter pastoral leases are currently under the LAA, unable to extend the lease to the maximum 50-year term permitted under the LAA. Sections 105A and 105B of the LAA propose to enable shorter pastoral leases to be extended, which is intended to create certainty for pastoral lessees and assist in generating long-term sustainable outcomes, and incentivise investment in the land to avoid degradation;
• a new consultation process with management bodies of managed reserves. Specifically, where a managed reserve (including a Class A reserve), is to be amended, cancelled or its purpose or classification changed, the Minister must first consult with the relevant management body and allow the management body to make submissions, prior to any proposed action taking place; and
• additional rights granted to the Minister in relation to surrender of leases, including the right for the Minister to direct the Registrar of Titles to remove expired registered leases (and encumbrances in respect of these leases) from certificates of title of Crown Land, in accordance with the LAA.

The next Legislative Assembly sitting date will occur on 14 March 2023 . The full proposed amendments to the LAA can be accessed here.

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Transferring a lease or licence

The transfer process for leases has been amended to introduce an exemption from needing approval for a transfer for certain leaseholders. The exemption applies from 2 December 2019.

In some cases, you may need to obtain our approval before you transfer your lease or licence, so it is important you check if you are exempt before you apply.

This guide details what you need to consider when transferring a lease or licence and how to obtain our approval for the transfer, if it’s required.

In this guide:

• Exemptions from needing our approval for a transfer
• Lease transfers for exempt leases or licence transfer
• Transferring a lease or licence when approval to transfer is required
• Information for mortgagees and receivers
• Extending a rolling term lease

Print entire guide

• Next ( https://www.qld.gov.au/environment/land/state/leases/transferring/exemptions )

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What to lodge for transfer duty

• When transfer duty applies
• Who pays transfer duty

Concessions

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When you transfer property in Queensland, you need to lodge certain documents for stamping. Generally, you can’t register a transfer of land if it hasn’t been stamped.

Forms and statutory declarations

Depending on your circumstances, you may need to lodge one or more of the following. Read the guides attached to each form for more information:

• Dutiable transaction statement (Form D2.2)
• Claim for home or first home transfer duty concession (Form D2.1)
• Claim for first home vacant land concession (Form D2.7)
• Family business concession (Form D2.5)
• Transfer duty statement (Form D2.3)
• Identity details annexure .

Include a Form D2.2 with all transfer duty lodgements, unless you are claiming a home, first home or first home vacant land concession or a family business concession (forms D2.1, D2.5 or D2.7).

Only complete an identity details annexure if the transaction involves the transfer of real property (e.g. homes, apartments, business premises and vacant land) and the transferee or the transferor is non-Australian. Each non-Australian transferee and transferor must complete an identity details annexure.

You might also need to complete a statutory declaration. The guide attached to Form D2.2 explains what transactions need to include one of these:

• Cancellation of agreement
• Change of corporate trustee
• Change of trustee (no change in rights)
• Change of trustee (change in rights)
• Transfer duty exemption—Native title claim
• Transfer of interest in property to spouse
• Correction of clerical errors in a previous dutiable transaction
• Transfer of interest in property from former marital partner .

We keep these forms on file after the assessment is completed. We recommend you make copies before sending them to us.

Temporary changes to signing and witnessing requirements

Titles Queensland has  temporary provisions (PDF, 113KB) to help with the witnessing of documents during coronavirus. The Commissioner of State Revenue will accept forms D2.1 and D2.7 witnessed under these same provisions.

Statutory declarations must be witnessed as set out in the Oaths Act 1867 (subject to any regulation under that Act).

Documents for common transactions

Transfers of land.

• Form 1 Transfer and Form 24 from  Titles Queensland (for help completing these forms, read part 1 (transfer) of the Land title practice manual and the guide to Form 24)
• Form D2.2 (unless you are providing a Form D2.1, D2.5 or D2.7)
• Identity details annexure for each non-Australian transferor and transferee
• The original agreement (if any)
• Evidence of any debt assumed by the purchaser (e.g. a letter from the bank detailing the balance owing on the mortgage)—this does not generally apply if the purchaser is seeking finance to buy the property
• A covering letter outlining the documents you have lodged, your name and return address

Additional information is needed for transfers of land between related or associated parties and transfers of freeholding leases.

Transfers of land (related or associated parties)

If you are transferring land between related or associated parties, include evidence of value in the form of a market appraisal or valuation that is less than 3 months old. If the property is residential, the evidence of value must include a comparison of 3 recent sales.

Read the public ruling on valuations for residential property (DA505.1) for more information.

Transfers of land (freeholding lease)

If you are transferring a freeholding lease, include the amount of the freeholding costs to convert the property from crown property to freehold property.

Transfers of lease

If the lease is being transferred with business assets , include the transfer of lease document with the business contract.

If the lease is not being transferred with business assets, you must lodge:

• the transfer of lease document and any agreement
• a dutiable transaction statement (Form D2.2)  outlining the consideration paid for the transfer of the lease
• outlining the documents you have lodged, your name and return address
• stating the reason for the transfer and describing how any business assets were dealt with.

Surrenders of lease

You need to lodge:

• the surrender of lease document and any agreement
• a  dutiable transaction statement (Form D2.2)  noting if an exemption is being claimed
• stating if a premium, fine or other consideration has been paid for the surrender of the lease.

Release of mortgage

A release of mortgage only needs to be lodged for stamping if it was made before 1 July 2008. In this situation, lodge:

• a Form D5.5 (or a Form G if before 1 March 2002)
• the release of mortgage
• the original mortgage
• a covering letter outlining the documents you have lodged, your name and return address.

Other common transactions

Learn about lodging documents for:

• transfers of business assets
• acquiring or changing an interest in a partnership
• acquiring shares in a corporate trustee
• creating a trust
• acquiring or surrendering an interest in a trust
• additional foreign acquirer duty .

You may be eligible for a concession , depending how you use the land. Read about these concessions, including how to apply:

• home concession
• first home concession
• first home vacant land concession
• family business concession.

To claim an exemption , you need to complete a dutiable transaction statement (Form D2.2) and note which exemption you’re claiming. See the guide attached to the form for more information.

You should also complete an identity details annexure for each non-Australian transferor and transferee, when transferring real property (e.g. homes, apartments, business premises and vacant land).

Learn about these common exempt transactions:

• Family Law Act
• Property Law Act
• matrimonial instrument—divorce order, decree of nullity or decree nisi
• transferring an interest in your home to your spouse
• distributing the property of a deceased person’s estate
• change of trustee .

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Australia: PEXA introduces the ability to register leases

Whilst it was just last year that the property industry was forced to get its collective head around the conveyancing portion of the Property Exchange Australia (PEXA) system, it has since 10 December 2018 been possible to register leases via PEXA - an update that has required many to take an even closer look at the growing benefits of the electronic conveyancing platform.

On hearing the news, my initial reaction was one of wariness - although having reviewed the actual requirements for registering a lease, it seems that this recent change does have the genuine potential to reduce the time that it takes to register leases here in Australia.  It is also clear that the procedure for registering leases via PEXA is easy to use and will, hopefully, facilitate a faster move towards electronic signing of leases .

What is the new process?

Users are now able to register a lease on PEXA if it falls within the following categories:

• It is a standalone document;
• It is in combination with other documents (i.e. Transfers or Mortgage Discharges); and
• It is in a series with other leases (i.e. consecutive leases).  

Once a Workspace has been created in PEXA, the user will be either automatically invited, or tasked with extending an invite to the other party (dependant on whether they represent the landlord or tenant ).  

PEXA's ability to register leases negates the need for the LRS 07L form that many have become accustomed to, as the new system automatically generates a cover page based on a series of questions asked of the landlord .  Whilst this PEXA cover page does look different, it encompasses all of the relevant details, including lessor, lessee and lease specifics .

At present, there is no resource available to draft the Conditions and Provisions on PEXA (although this may be something to look out for in future releases). With this said, the process simply requires users to upload their document to the Workspace.  From there, it is possible to attach Plans, Ministers Consent and Caveator's Consent documents, Tenancy Guides and Disclosure Statements (for retail leases ).

Practitioners sign off on behalf of their client (once they are given authority via a PEXA authorisation form) and the responsible party lodges the lease to the Land Registry .

The PEXA system allows practitioners the ability to invite the Mortgagee on Title into the Workspace, and for mortgagee consent to be given electronically.  It is currently uncertain, and time will tell, whether banks will insist on obtaining hard copies of such documents - however, if not required, it would provide the opportunity to speed up the finalisation of the leasing process .  In my experience, finalising the registration of a lease can often be delayed by the mortgagee consent process.  

Is there a downside to this new system?

Practitioners will be required to obtain a PEXA Client Authorisation and will need to complete a verification of identity.  Whilst this may add an extra step to the leasing procedure, I expect that most practitioners will be happy to accept more robust methods through which to identify clients. This change will also provide uniformity across firms with regard to client verification - especially due to the fact that in some practices, verification of identity is mandatory.

Current limitations

Whilst the system is currently only designed for leases , PEXA has suggested that Surrender and Variation of Leases will be released in the first half of 2019 - meaning that we are still waiting for subleases and assignments to be made available via the online platform.

There is no mention of when the registering of leases via PEXA will become mandatory, however practitioners should familiarise themselves with the electronic process sooner rather than later in order to ensure that they are effectively utilising all available services.

What you cannot escape from? 

One point that must be noted is that users will still be requisitioned if there is an issue with a submission, and that the lease may be made subject to manual review at the Land Registry if it does not meet all requirements - so you cannot expect to make shortcuts with page numberings or plans.  It appears that these requisitions will be issued via the notifications and chat section of the PEXA portal.  However, if you are requisitioned, you will receive a dealing number for the documents, visible in your PEXA workspace.  This is useful, as the number will allow you the ability to directly follow the progress of the relevant matter with the Land Registry .

The lodgement fee associated with registering a lease will no longer be applicable on the PEXA platform; and has been replaced with a PEXA fee .  The price difference between a lodgement and PEXA fee is not significant, with the latter costing $42.24 for a single title lease.  

Although some practitioners may wish to bury their heads in the sand and look to avoid change, I feel that this reform is another step in suitably pushing the leasing industry into a more efficient place one which undeniably provides a myriad of benefits not only to practitioners but also to their clients.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Part Tenancy Transfer | QLD

NSW Land Registry Services

Registrar general's guidelines.

• Deposited plans
• Strata schemes
• Community schemes
• Water dealings
• Land dealings
• ELNO guidance notes
• Complete a Caveat
• Complete a Discharge of Mortgage
• Complete a National Mortgage
• Complete a Notice of Death
• Complete a Notice of Sale
• Complete a Transfer
• Complete a Transfer of interest
• Complete a Withdrawal of Caveat
• Complete a Priority Notice
• Complete an Extension of Priority Notice
• Complete a Withdrawal of Priority Notice
• Complete a Transmission Application
• Complete a Lease
• e-Conveyancing FAQs
• Priority Notice
• RGs website change logs

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  to be lodged as a Dealing with Exception :

An electronic Lease dealing form cannot be used (and accordingly a paper lease form 07L must be lodged as a  Dealing with Exception ) 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 lodged as a  Dealing with Exception ).

Subscriber requirements

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

• verify their Client’s identity
• establish their Client’s right to deal with the land
• have a properly completed and executed Client Authorisation form, and 
• 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. 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
• ​individual.

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 folio of the Register 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 section 23F and section 23G  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's name will be populated into this field. If the lessor is a corporation, its ACN must be included.  Lessee Details The lessee's 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 dealing number of the registered memorandum. 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.​ 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  www.legislation.nsw.gov.au

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