Australian Capital Territory Numbered Acts Australian Capital Territory Numbered Actsinsert
88A Application of land sublease provisions
(1) Section 88B to section 88J do not apply to—
(a) a sublease of land granted before the commencement of this section; or
(b) if a units plan subdivides a parcel of land under a declared land sublease—a lease granted or arising under the Unit Titles Act 2001
.
Note Land sublease does not include a building lease (see Planning and Development Act 2007
, s 308 and this Act, s 88B).
(2) Nothing in this Act, by itself, creates an obligation on the sublessor under a land sublease to grant the sublessee a further or new sublease.
Note The Unit Titles Act 2001
, s 167AA provides for the grant of further leases of units and common property if a declared land sublease is subdivided by a units plan.
88B Land subleases—registration
The registrar-general must not register a sublease of land unless the sublease has been approved, in writing, by the planning and land authority under the Planning and Development Act 2007
, section 308 (Power of Crown lessee to sublet part of land).
Note This section does not apply to a building sublease (see Planning and Development Act 2007
, dict, def land sublease ).
88C Land subleases—mortgages
(1) A mortgage of land under a land sublease is not valid or binding against the sublessor, or the sublessor's mortgagee (if any), unless the sublessor and the sublessor's mortgagee consent, in writing, to the mortgage.
Note This section does not apply to a building sublease (see Planning and Development Act 2007
, dict, def land sublease ).
(2) In this section:
"mortgage" includes an encumbrance.
"mortgagee" includes an encumbrancee.
88D Land subleases—transfers
(1) The registrar-general must not register a memorandum of transfer of a land sublease unless—
(a) the sublessor consents, in writing, to the transfer; and
(b) the registrar-general tells the planning and land authority, in writing, about the transfer.
Note This section does not apply to a building sublease (see Planning and Development Act 2007
, dict, def land sublease ).
(2) For subsection (1) (a)—
(a) the sublessee must request the sublessor's consent in writing; and
(b) within 10 working days after receiving the request, or any longer period agreed by the sublessee and sublessor, the sublessor may, in writing, ask the sublessee to give the sublessor information about the following:
(i) the proposed transferee's financial standing, including details of any approved finance of the proposed transferee;
(ii) the proposed use of the land under the sublease by the proposed transferee;
(iii) the proposed transferee's ability to comply with the conditions of the sublease; and
(c) if the sublessor has mortgaged the land under the Crown lease and the consent of the sublessor's mortgagee is required under the mortgage to the transfer of a sublease of the land—
(i) the sublessor must—
(A) tell the sublessor's mortgagee that the request by the sublessee has been made and of the terms of the request; and
(B) if asked by the mortgagee—ask the sublessee for the information mentioned in paragraph (b) and give the information to the mortgagee; and
(ii) the sublessor's mortgagee must consent or refuse consent (including reasons for the refusal), in writing, to the sublessor and the sublessee within 10 working days after—
(A) being told about the sublessee's request; or
(B) if the mortgagee asks for information under paragraph (c) (i) (B)—receiving the information; and
(iii) the sublessor must consent or refuse consent (including reasons for the refusal), in writing, to the sublessee; and
(d) if paragraph (c) does not apply—the sublessor must consent or refuse consent (including reasons for the refusal), in writing, within 10 working days after—
(i) receiving the sublessee's request; or
(ii) if the sublessor asks for information under paragraph (b)—receiving the information; and
(e) the sublessee is responsible for the reasonable costs of the sublessor, and the sublessee's mortgagee, in making a decision about whether to consent to the transfer of the sublease (not including any costs incurred in relation to an order under subsection (3) (c) (ii)).
Note If no time is provided for doing a thing under this subsection, the thing must be done as soon as possible (see Legislation Act
, s 151B).
(3) For subsection (2) (c) and (d)—
(a) a person to whom a request for consent is made (the request receiver ) is taken to have consented to the proposed transfer if the request receiver does not consent or refuse consent within the relevant period mentioned in subsection (2) (c) (ii) and (d); and
(b) a request receiver may only refuse consent if the request receiver has reasonable grounds for believing—
(i) the proposed transferee is not financially sound; or
(ii) the proposed transferee intends to use the land under the sublease for a purpose not allowed under the sublease; or
(iii) the proposed transferee cannot otherwise comply with the conditions of the sublease; or
(iv) the proposed transferee, or the use of the land under the sublease, will not be compatible with other sublessees under the Crown lease; or
(v) the sublessee is in breach of the sublease; and
(c) if a request receiver refuses consent—
(i) the sublessee may apply to the Magistrates Court for an order that the request receiver has refused consent otherwise than in accordance with this section; and
(ii) if the Magistrates Court is satisfied the request receiver has refused consent otherwise than in accordance with this section, the Court must order—
(A) that the request receiver is taken to have consented to the request; and
(B) the person in possession of the Crown lease for the land to which the sublease relates to present the lease to the registrar-general to allow registration of the transfer of the sublease.
(4) In this section:
"mortgage" includes an encumbrance.
"mortgagee" includes an encumbrancee.
88E Land subleases—no further subleases
A sublease of land under a land sublease is not valid or binding.
Note This section does not apply to a building sublease (see Planning and Development Act 2007
, dict, def land sublease ).
88F Land subleases—surrender
A sublessee may surrender a land sublease—
(a) with the written consent of the sublessor; or
Note If a land sublease is subject to a registered mortgage or encumbrance, the mortgagee or encumbrancee must also consent to the surrender (see s 86 (7) and s 89).
(b) if consent to the transfer of a land sublease is refused under section 88D.
Note This section does not apply to a building sublease (see Planning and Development Act 2007
, dict, def land sublease ).
88G Withdrawal of land under land sublease
(1) This section applies if—
(a) before the end of the term of a sublease, the sublessor withdraws all or part of the subleased land from the lease under a provision of the sublease; and
(b) the sublessee has fully complied with the provisions (if any) of the sublease relating to the construction of improvements on the land under the sublease.
Note This section does not apply to a building sublease (see Planning and Development Act 2007
, dict, def land sublease ).
(2) Section 88H and section 88I apply in relation to the withdrawn land as if the sublease was surrendered on the day of the withdrawal.
(3) In this section:
"improvement", in relation to land—see section 88H (6).
88H Surrender etc of land sublease—payment for improvements
(1) This section applies if—
(a) a land sublease is surrendered or ends; and
(b) there are improvements in relation to the land under the sublease—
(i) that did not exist at the commencement of the sublease; and
(ii) the cost of which the sublessee was responsible for; and
(c) the sublessee—
(i) is not granted a further sublease of the land under the old sublease; or
(ii) is granted a new sublease of only part of the land under the old sublease.
Note This section does not apply to a building sublease (see Planning and Development Act 2007
, dict, def land sublease ).
(2) The sublessor is liable to pay the sublessee—
(a) if no further sublease of the land under the old sublease is granted—the value of the improvements as worked out under the Planning and Development Act 2007
, section 295 as if the sublessor were the planning and land authority and the sublease were a Crown lease; or
(b) if a new sublease of only part of the land under the old sublease is granted—the value of the improvements on the part of the land not leased under the new sublease as worked out under the Planning and Development Act 2007
, section 295 as if the sublessor were the planning and land authority and the sublease were a Crown lease.
(3) Subsection (4) applies if—
(a) a sublease ends; and
(b) the sublessee has not given the sublessor at least 6 month's written notice before the sublease ended, or any shorter period agreed by the sublessee and sublessor, that the sublessee did not intend to apply for a further sublease.
(4) The sublessor may deduct the amount of any expenditure reasonably incurred by the sublessor in subleasing the land, or part of the land, under the old sublease to someone else from the amount payable by the sublessor to the sublessee under this section.
(5) The sublessor must give the sublessee a notice stating the amount worked out for subsection (2) and subsection (4) (if any) and how the amount is worked out.
(6) In this section:
"improvement", in relation to land, means a building or structure on or under the land.
88I ACAT review of value of improvements on land under land sublease etc
(1) This section applies if—
(a) a sublessor is liable to pay an amount under section 88H; and
(b) the sublessor gives the sublessee a notice under section 88H (5).
(2) The sublessee may apply to the ACAT for review of the amount (the original amount ).
(3) On application, the ACAT must—
(a) make a decision substituting an amount for the original amount; or
(b) confirm the original amount.
88J Recovery of land under land sublease if sublessee in unlawful possession
(1) This section applies if a person who has been a sublessee under a land sublease remains in possession of the land after—
(a) the term of the sublease has ended; or
(b) the sublease has been surrendered or ended.
(2) The sublessor, by written notice to the person (the unlawful occupier ), may demand that the unlawful occupier give possession of the land to the sublessor within a reasonable period stated in the demand.
(3) If a demand is not complied with—
(a) the sublessor may apply to the Magistrates Court for an order that possession of the land be given to the sublessor; and
(b) the court may issue a warrant authorising a police officer, within 20 working days after the day the warrant is issued, to enter the land with the assistance and by the force that is reasonable, and give possession of the land to the sublessor.