New South Wales Consolidated Acts

LORD HOWE ISLAND ACT 1953 - SECT 23

23 Transfers and subleases

(1)

(a) A lease under this Part may be transferred in the prescribed form and manner as to the whole or a part of the land comprised in the lease or may be sublet at any time, but the consideration for the transfer shall not exceed the fair market value of the interest of the transferor in the unimproved land the subject of the lease, the fair market value of the improvements on the land at the commencement of the lease and of any improvements subsequently effected thereon with the approval of the Board and, in the case only of a lease of land used for commercial purposes, a sum for the goodwill of the business conducted thereon, being goodwill transferred to the transferee in connection with the transfer of the lease or accruing to the transferee in consequence thereof. Such fair market values and, as the case may require, such sum for goodwill shall be as determined by the Valuer-General.

(b) Notwithstanding anything in paragraph (a), a lease shall not be transferred, by way of mortgage or discharge of mortgage, as to part only of the land comprised in the lease.

(1A) A lease may be transferred or subleased to 2 or more persons as joint tenants or tenants in common but, for the purposes of any transfer or sublease to 2 or more persons who are not all Islanders, a reference in this Part (however expressed) to a person other than an Islander applies in respect of each transferee or sublessee who is not an Islander.

(2) Application for consent to transfer, except:

(a) by way of discharge of mortgage, or

(b) to the Board by way of mortgage as security for an advance under section 12A,

or to sublet a lease under this Act shall be made in the prescribed form and manner, and such transfer or subletting shall not be effected, or if effected shall not be valid, unless the consent thereto of the Minister and, in the case of a transfer (not being a transfer by way of mortgage) or subletting to a person other than an Islander, the approval of the Governor, has been obtained.

(3) The Minister may consent to the transfer (not being a transfer referred to in paragraph (a) or (b) of subsection (2)) or subletting if the Board so recommends, or the Minister may at his or her discretion refuse consent.

(4) The Board shall have an absolute discretion to recommend the granting or refusal of any application for consent under this section, but shall not recommend the granting of consent to a transfer or subletting to any person other than an Islander unless satisfied that there is no Islander who desires and is in a position to take a transfer or sublease, as the case may be, of the lease.

(4A)

(a) Where, in the case of an application for consent to transfer a lease as to the whole of the land comprised in the lease to a person other than an Islander, the Board is prepared to recommend, in accordance with subsection (4), the granting of the application but as to part only of the land so comprised, the Board may, by notice served on the applicant, state that it is prepared so to recommend if the applicant within three months lodges with the Board an instrument of surrender of such part of the land comprised in the lease as is specified in the notice, being the part as to which the Board is not prepared so to recommend.

(b) If the applicant within three months lodges with the Board such an instrument of surrender the application may be dealt with as if the applicant had originally applied for consent to the transfer as to the land that would be comprised in the lease after the surrender takes effect.

(c) An instrument of surrender pursuant to this subsection shall not take effect until the day upon which the transfer takes effect.

(4B)

(a) Where, in accordance with this section, a lease (in this subsection referred to as "the original lease") is transferred to any person as to part only of the land comprised in the original lease, and the residue of the land comprised in the original lease is retained by the transferor:

(i) where the original lease was a lease under section 21, separate leases in or to the effect of the prescribed form shall be issued in respect of the part so transferred and the residue so retained, and the original lease shall be delivered up for cancellation,

(ii) where the original lease was a lease under section 22, the lease of the part so transferred and the residue so retained shall be each held for the balance of the term for which the original lease was held before the transfer,

(iii) the lease of the part so transferred and the residue so retained shall, as from the transfer, be each held in all respects as a separate lease, but shall, subject to subsection (8) of section 21, or subsection (7) of section 22, as the case may require, and to section 25, be subject to such conditions, reservations or provisions as applied in respect of the original lease immediately before the transfer, and

(iv) the Board may determine, demand and recover from the transferor the costs of any necessary survey in connection with the transfer.

(b) The Minister on the recommendation of the Board may, when giving consent to an application to transfer a lease as to part of the land comprised in the lease, exclude from any of the lands comprised in the original lease any areas required for providing roads of access to the part so transferred or the residue so retained or both.
Any such exclusion shall not take effect until the day on which the transfer takes effect, on which day the areas so excluded shall be deemed to have been surrendered.

(5) If any lease under this Act is mortgaged and the mortgagee enters into possession of the same under his or her mortgage, the mortgagee may hold the same for such period as the Minister on the recommendation of the Board may permit.
But the mortgagee shall not, notwithstanding the terms of his or her mortgage, so enter into possession of the mortgaged land more than once, except by permission of the Minister on the recommendation of the Board; such mortgagee shall not foreclose the mortgage except with the consent of the Minister on the recommendation of the Board. Such consent shall be applied for and may be given or refused, as in the case of a transfer.

(6) Such mortgagee shall not transfer the lease except in accordance with this section or by way of discharge of mortgage.

(7) If within such period the mortgagee does not obtain the consent of the Minister to a foreclosure, or does not transfer the lease in accordance with this section, the same shall be liable to forfeiture, and on notification by the Minister in the Gazette may be forfeited, and thereupon shall revert to the Crown.

(7A) Where the Board is the mortgagee of any lease under this Act, the provisions of subsections (2), (3), (4), (5), (6) and (7) shall not have effect in respect of the lease mortgaged, and the following provisions shall have effect:

(a) If the Board as mortgagee enters into possession of the lease under the mortgage, the Board shall not foreclose the mortgage except with the consent of the Minister.

(b) The Board as mortgagee:

(i) shall not transfer the lease except with the consent of the Minister or by way of discharge of mortgage, or sublet the lease except with that consent, and

(ii) shall not apply for consent to transfer or sublet to any person other than an Islander unless satisfied that there is no Islander residing on the Island who desires and is in a position to take a transfer or sublease, as the case may be, of the lease.

(c) Such transfer or subletting shall not be effected, or if effected shall not be valid, unless the consent thereto of the Minister and, in the case of a transfer (not being a transfer by way of mortgage) or subletting to a person other than an Islander, the approval of the Governor, has been obtained.

(d) Where the Board as mortgagee applies for consent under this subsection, the Minister may give consent, or the Minister may at his or her discretion refuse consent.

(8) A foreclosure or transfer in contravention of this section shall be void and any agreement or contract for the sale of such lease made without the permission of the Minister shall render such lease liable to forfeiture if such agreement or contract be not submitted for the approval of the Minister within three months from the date of execution thereof.

(9) The fact that the mortgagee or some person by his or her authority occupies or uses any part of the mortgaged land shall be prima facie evidence that the mortgagee has entered into possession of the land under the mortgage.

(10)

(a) If a lease under this Act devolves under a will or intestacy upon any person, such person may hold the lease for such period after the death of the testator or intestate as the Minister on the recommendation of the Board may permit.

(b) Within any such period such person may, upon application and upon the recommendation of the Board obtain a certificate from the Minister that the person is entitled to hold the lease; or such person may, subject to this section, sell and transfer the lease.

(c) If by the provisions of the will or by law, such person has power to sell the lease, the sale may be effected under such power; in any other case the sale may be effected with the consent of all persons beneficially entitled to the lease or by order of the Supreme Court in its equitable jurisdiction, which may be obtained in the manner prescribed by rules of court, or until such rules are made, by summons at chambers.

(d) If such person does not within any such period obtain the certificate of the Minister as aforesaid, nor transfer the lease as aforesaid, the same together with any moneys paid to the Crown in respect thereof shall be liable to forfeiture.

(11) Where, under the will, or upon the intestacy, of a lineal ancestor, a lease under section 21 devolves beneficially upon a person who is not an Islander, that person shall, for the purposes of subsections (2), (4), (4A) and (7A) and of section 25, be deemed to be an Islander if application is, not later than the expiration of the period of 2 years, or such longer period as the Minister may in a particular case approve, that next succeeds the death of the lessee, made for his or her registration as holder of the lease.

(12) Where, under the will, or upon the intestacy, of a lineal ancestor a lease under section 21 devolves beneficially upon an Islander who is already a lessee under that section, the Minister may, on the recommendation of the Board, by order suspend the condition of residence to which the lease is subject for such period, and subject to such conditions as to the transfer of the lease to a child or children of the beneficiary, and such other conditions, as the Minister thinks fit.

(13) Where a child to whom a condition under subsection (12) as to a transfer to the child of a lease relates is not an Islander at the time for compliance with the condition the child shall, for the purpose of compliance with the condition, be deemed to be an Islander if application is made for consent to a transfer to the child, but registration of such a transfer shall be refused if it is lodged for registration after the expiration of the period of 6 months that next succeeds the expiration of the period for which the condition of residence was suspended under subsection (12).