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TORRES STRAIT ISLANDER LAND ACT 1991 - SECT 41
Existing interests
(1) If transferable land was, immediately before becoming Torres Strait
Islander land under this division, subject to an interest or benefited by an
easement, the interest continues in force or the land continues to be
benefited by the easement.
(2) Without limiting subsection (1) , if
transferable land was, immediately before becoming Torres Strait Islander land
under this division, the subject of— (a) a 1985 Act granted lease or a new
Act granted lease under the new Land Holding Act; or
(b) a lease under the
Land Act; or
(c) a trustee (Torres Strait Islander) lease;
the trustee of the
land is, by operation of this section, substituted for the lessor as a party
to the lease.
(3) The terms of a lease mentioned in subsection (2) are not
affected by the operation of this section or any other provision of this Act
and, for the purposes of those terms, the Land Act continues to apply to a
lease under that Act, with all necessary modifications and such modifications
as are prescribed, as if the lease continued to be such a lease and the
trustee of the land were the lessor.
(4) However, subsections (5) to (5B)
apply if, under an available State land agreement— (a) an interest in
transferable land (the
"previous interest" ) ends on the grant of the land under this part; and
(b)
a new interest granted by the trustee of the land is to have effect in
substitution for the previous interest on the grant of the land.
(5) Despite
subsections (1) to (3) , the previous interest ends on the grant of the land.
(5A) However, if the previous interest was a lease under the Land Act (the
"previous lease" ) and the interest that is to have effect in substitution for
the previous lease is a lease under the Land Title Act (the
"new lease" )— (a) despite section 20 (3) and the available State land
agreement, the previous lease does not end until the new lease is registered
in the freehold land register; and
(b) the lessee of the new lease must lodge
the new lease for registration in the freehold land register immediately after
the grant of the land; and
(c) if a sublease was in force under the
previous lease immediately before the grant of the land, on the grant of the
land the sublease continues under the new lease; and
(d) subject to paragraph
(e) and subsection (5B) , the new lease must be registered in the freehold
land register subject to the same encumbrances to which the previous lease was
subject, and in the same priorities, as recorded in the appropriate register
immediately before the grant of the land; and
(e) any particulars recorded in
the appropriate register for the previous lease immediately before the grant
of the land must be recorded in the freehold land register for the land, to
the extent the particulars are relevant to the land.
(5B) If an easement that
burdened the previous lease was in existence immediately before the grant of
the land, on the grant of the land the easement— (a) continues in existence,
despite the Land Act , section 372 ; and
(b) burdens the land the subject of
the new lease; and
(c) is taken to have been registered under the Land Title
Act , part 6 , division 4 .
(6) Subsection (5) applies despite any other Act.
(7) In this section—
"interest" includes— (a) native title; and
(b) a right of a local
government to access, occupy, use or maintain a facility on the land; and
(c)
an interest in favour of the State or Commonwealth other than an interest that
is not registered.
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