New South Wales Consolidated Acts

TRUSTEE ACT 1925 - SECT 36

36 Leasing

(1) A trustee may make a lease of land in possession in any of the following cases, that is to say--

(a) where the trustee holds the land with power to manage the same, or upon trust for sale with an express power to postpone the sale, the lease may be for any term not exceeding five years,

(b) where the trustee holds the land without power to manage the same, or upon trust for sale without an express power to postpone the sale, the lease may be for any term not exceeding three years.

(2) A trustee shall not be deemed to hold land with power to manage the same within the meaning of this section by reason only of the fact that it is proper to postpone sale in order to sell to the best advantage and in the meantime to manage the land.

(3) Any lease which a trustee is authorised to make under this section or under the instrument, if any, creating the trust or power may--

(a) provide for a rent increasing at such times as may be specified in the lease,

(b) give an option of renewal, provided that the duration of the lease and any such renewal shall not in the aggregate exceed the term for which the trustee is authorised to make the lease.

(4) If the land is the subject of a settlement within the meaning of Part 4 of the Conveyancing and Law of Property Act 1898 and there is any other person authorised by the settlement or by that Act to demise the land or any part thereof, this section shall not apply unless that person in writing authorises the trustee to make the lease.

(5) Subsections (4), (5), (6), (7), (8), and (10) of section 106 of the Conveyancing Act 1919 shall apply to any lease under this section--
Provided that if the land includes premises licensed under the Liquor Act 2007 a bonus or fine may be taken in respect of the lease, and the trustee shall apportion the same over the period of the lease as if it were rent, but no person paying any such bonus or fine shall be concerned to see that any such apportionment is made.

(6) This section shall not apply to a bare trustee for persons all of whom are entitled in possession and are free of any incapacity.

(7) This section applies only if and as far as a contrary intention is not expressed in the instrument, if any, creating the trust or power, and shall have effect subject to the terms of that instrument and to the provisions therein contained.

(8) This section applies to trusts created either before or after the commencement of this Act.