Recent changes to the Land Act look to streamline some of the processes associated with transferring a lease and will mean some leaseholders will be exempt from requiring a Transfer Approval.
So, what exactly has changed?
Until recently, when transferring a leasehold interest (“Lease”) under the provisions of the Land Act 1994 Qld (the “Act”), the holder of the Lease (“Leaseholder”) was obliged to apply to the chief executive of the Department of Natural Resources, Mines and Energy for approval to the transfer of a lease (the “Transfer Approval”) prior to lodging the Form 1 Transfer with the Titles Office Registry.
New section 322AA of the Act (which commenced on 2 December 2019) allows the chief executive to exempt certain persons from the Transfer Approval requirement, including the Leaseholders of certain types of Leases.
The chief executive has provided notice that a Leaseholder who has a Lease that satisfies certain criteria will be exempt from the Transfer Approval requirement.
Who is exempt?
To be exempt the Lease (the “Exempt Leases”) must be one of the following:
Category 11 Leases cover leases, licences and permits to occupy whose use is primarily for primary production. Primary production covers aquaculture, viticulture and agriculture (including growing cane, coffee, tea, tobacco, fruit, vegetables, flowers and other horticultural crops, and farming of cattle, pigs and poultry).
Category 12 Lease cover leases, licences and permits to occupy whose use is primarily residential.
Category 13 Lease cover leases, licences and permits to occupy used for business, tourism, commercial and industrial purposes that do not meet the requirements of another category. The category also covers tenures held by government leasing entities when the use of the land is essential for the conduct of their core business (e.g. operating hospitals, police stations, schools, offices and depots).
Even though a Lease may fall within one of these categories, the Lease will not be exempt if:
All Exempt Leases will now include an administrative advice noting the exemption recorded on them. The administrative advice will be recorded as an “EXEMPT CON”.
So, what does this mean for Leaseholders of Exempt Leases?
Generally, contracts for the transfer of Leases are subject to:
Specifically, the REIQ Contract for Commercial Land and Buildings (Eight Edition) provides that if any consent is required by statute for the transfer of a Lease, that the contract is subject to such consent being given and that if the consent is refused or not granted by the Settlement Date, then either party may terminate the Contract.
Exempt Leases will no longer fall within this category with the following outcomes for Leaseholders of Exempt Leases:
How will this help?
This ultimately means a significant streamlining of processes associated with the transfer of Exempt Leases resulting in:
If this affects you, or if you aren’t sure, get in touch with us now on 07 3220 1144 or email me at [email protected] to discuss your circumstances.
The information in this blog is intended only to provide a general overview and has not been prepared with a view to any particular situation or set of circumstances. It is not intended to be comprehensive nor does it constitute legal advice. While we attempt to ensure the information is current and accurate we do not guarantee its currency and accuracy. You should seek legal or other professional advice before acting or relying on any of the information in this blog as it may not be appropriate for your individual circumstances.