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LAND ADMINISTRATION ACT 1997 - SECT 35

LAND ADMINISTRATION ACT 1997 - SECT 35

35 .         Breach of condition or covenant applying to Crown or freehold land, Minister’s powers in case of

        (1)         If in the opinion of the Minister there has been a breach of any condition or covenant subject to which —

            (a)         an interest in Crown land is held, the Minister must, if the Minister intends to cause the forfeiture of that interest under this section, give to the holder of that interest; or

            (b)         the freehold in any land transferred in fee simple under section 75(1) is held, the Minister must, if the Minister intends to cause the forfeiture of that freehold under this section, give to the holder of that freehold,

                (the respondent ) notice of the nature of that breach and of that intention.

        (2)         A respondent may, within the period of 30 days after the respondent is given notice under subsection (1) or such longer period as the Minister in special circumstances allows, lodge an appeal against the proposed forfeiture with the Minister under Part 3.

        (3)         If no appeal is lodged within the period referred to in subsection (2) or an appeal is lodged within that period but subsequently lapses, is withdrawn or is dismissed, the Minister may by order cause the relevant interest or freehold to be forfeited.

        (4)         On the registration of an order made under subsection (3) in respect of an interest in Crown land, the interest is forfeited to the State.

        (4A)         On the registration of an order made under subsection (3) in respect of the freehold in land (other than land to which subsection (4B) applies) —

            (a)         the freehold is forfeited to the State; and

            (b)         at the election of the Minister —

                  (i)         the freehold in the land is held by the Minister, in the name of the State; or

                  (ii)         the land becomes Crown land.

        (4B)         On the registration of an order made under subsection (3) in respect of the freehold in land that is subdivided by a leasehold scheme —

            (a)         the freehold is forfeited to the State; and

            (b)         the land remains subdivided; and

            (c)         the freehold reversion in the land is held by the Minister, in the name of the State, until the termination of the leasehold scheme, when, at the election of the Minister —

                  (i)         the freehold in the land is held by the Minister, in the name of the State; or

                  (ii)         the land becomes Crown land.

        (4C)         On the registration of an order made under subsection (3) —

            (a)         any moneys paid to the Minister in respect of the relevant interest or freehold cannot be recovered by the respondent; and

            (b)         any improvements made by the respondent on the land to which the relevant interest or freehold relates become the property of the Crown.

        (5)         Despite the forfeiture of an interest or freehold under this section —

            (a)         the Minister may —

                  (i)         by order exempt from that forfeiture any existing sublease, other interest or caveat relating to the land the subject of the interest or freehold, and a sublease, other interest or caveat so exempted continues to have effect; and

                  (ii)         cause any improvements made by the former holder of the interest or freehold to be valued by agreement with the former holder or, failing any such agreement, by arbitration under the Commercial Arbitration Act 2012 to enable the value of improvements, less any moneys owing to the Minister by that holder, to be paid to that former holder if the Minister thinks fit;

                and

            (b)         the respondent remains liable to pay any moneys payable to the Minister in respect of the interest or freehold before the date of that forfeiture.

        (6)         A sublease or other interest which —

            (a)         continues to have effect under an exemption granted under subsection (5)(a)(i); and

            (b)         is not already registered,

                must be registered against the parcel of land concerned as soon as practicable after the granting of that exemption.

        (7)         Despite the terms of the exemption under subsection (5)(a)(i) under which a sublease or other interest continues to have effect, the Minister may, with the consent of the sublessee or interest holder, by order vary the terms of the sublease or other interest.

        (8)         The Minister may —

            (a)         charge the respondent interest at the same rate as the rate prescribed under section 8(1)(a) of the Civil Judgments Enforcement Act 2004 at the date of the forfeiture under subsection (4), (4A)(a) or (4B)(a) of the relevant interest or freehold, compounded in respect of each completed period of 6 months during which any of the moneys concerned remain unpaid, on any moneys payable to the Minister in respect of that interest or freehold before the date of that forfeiture but remaining unpaid; and

            (b)         recover from the respondent as a debt due to the Minister by action in a court of competent jurisdiction the amount of any unpaid interest charged under this subsection.

        (9)         The acceptance or demand by the Minister of an amount less than the total amount of any unpaid moneys referred to in subsection (8)(a) does not constitute a waiver of the Minister’s right —

            (a)         to receive payment of the balance of those unpaid moneys; or

            (b)         to enforce the observance of any condition or covenant subject to which the relevant interest or freehold was held before it was forfeited under this section.

        (10)         If the land the subject of an interest or freehold forfeited under this section is not required for any public purpose, that land may, unless it is subdivided by a leasehold scheme or any sublease, other interest or caveat continues to have effect under an exemption granted under subsection (5)(a)(i), be dealt with under this Act in the same way that any other alienated land or unallocated Crown land, as the case requires, may be dealt with.

        (10A)         If the freehold reversion in land forfeited under this section is held by the Minister, as referred to in subsection (4B)(c), then nothing in this Act, or any other law, affects the capacity of the Minister under the Strata Titles Act 1985 to be, and to exercise all rights and functions as —

            (a)         the owner of a leasehold scheme; and

            (b)         if the Minister, as owner of a leasehold scheme, re-enters a lot in a leasehold scheme under the Strata Titles Act 1985the owner of a lot in a leasehold scheme.

        (11)         If there are any improvements on land referred to in subsection (10), the Minister may ascertain the value of those improvements and add that value to the price payable for an interest in, or the freehold in, that land.

        (12)         An order —

            (a)         made under subsection (3) in respect of an interest in Crown land; and

            (b)         registered,

                is equivalent to a re-entry and recovery of possession by or on behalf of the Crown within the meaning of any provision for re-entry expressed in, or implied by, the relevant lease or other instrument.

        [Section 35 amended: No. 8 of 2009 s. 83(2); No. 23 of 2012 s. 45; No. 30 of 2018 s. 147; No. 4 of 2023 s. 18.]