Australian Capital Territory Repealed Acts Australian Capital Territory Repealed ActsThis legislation has been repealed.
(a) if only one lease is surrendered or if two or more leases which commenced on the same date are surrendered—be deemed to have commenced on the date of the commencement of the term of the surrendered lease or leases; or
(b) if two or more leases are surrendered and the dates of the commencement of the terms of those leases differ—be deemed to have commenced on such date as the Minister determines and as is acknowledged by the lessee in the lease granted in substitution for the surrendered leases.
28. (1) In this section—
(a) “building and development covenant” means a covenant in the lease whereby the lessee is required to carry out any works on the land included in the lease or on unleased land adjacent to the land included in the lease; and
(b) a reference to a covenant in a lease or a covenant contained in a lease includes a reference to a covenant to which a lease is subject.
(2) Where a lease contains a building and development covenant, the lessee may apply to the Minister for a certificate that the building and development covenant has been complied with.
(2A) Subject to section 28AA, where, on an application under subsection (2), the Minister is satisfied that the building and development covenant has been complied with, the Minister shall issue a certificate to that effect.
(2B) Subject to this section, where a lease contains a building and development covenant, the lease or an interest in the lease is not capable of being transferred or assigned, either at law or in equity—
(a) otherwise than in the case of the death of the lessee;
(b) otherwise than in pursuance of an order made by the Family Court of Australia or any other court having jurisdiction under the Family Law Act 1975 of the Commonwealth;
(c) otherwise than by virtue of the operation of any law relating to bankruptcy or insolvency; or
(d) unless the lessee has obtained—
(i) a certificate under subsection (2A); or
(ii) the consent of the Minister under this section as in force at any time before the commencement of the City Area Leases Act (No. 2) 1973.
(2C) Subject to this section, where a lease contains a building and development covenant, the lease or an interest in the lease shall not be capable of being mortgaged unless—
(a) the lessee has obtained a certificate under subsection (2A); or
(b) the mortgage is required by the lessee—
(i) to enable the lessee to repay money borrowed by the lessee for the purpose of acquiring the lease;
(ii) to secure money borrowed by the lessee for the purpose of acquiring the lease; or
(iii) to enable the lessee to comply with the building and development convenant in the lease.
(3) The Minister may, on payment of the determined fee, consent to a legal or an equitable transfer or assignment of a lease or an interest in a lease where he is satisfied that the transferee—
(a) intends to comply with the building and development covenants in the lease; and
(b) has given such security (if any) therefore as the Minister thinks fit.
(4) A lessee may appeal to the Supreme Court from the refusal of the Minister to grant a certificate under subsection (2A) or the refusal of the Minister to grant his consent under subsection (3).
(5) The Supreme Court shall hear and determine an appeal under this section.
(6) On an appeal under this section, the Supreme Court—
(a) may direct the Minister to grant a certificate under subsection (2A) or grant his consent under subsection (2C) or (3), as the case may be; or
(b) may dismiss the appeal.
28AA. (1) Subject to subsection (2), the Minister shall not issue a certificate under subsection 28 (2A) in respect of a building and development convenant to which a lease under the Unit Titles Act 1970-1975 is subject unless he is satisfied in the case of every other lease in respect of the same sub-division that is subject to a similar covenant that the covenant has been complied with.
(2) Notwithstanding subsection (1), the Minister may issue a certificate under subsection 28 (2A) in respect of a building and development convenant referred to in subsection (1) where he is satisfied that the building and development covenant has been complied with and that an occupier of the unit that is held under the lease will not, as occupier, be substantially inconvenienced by works being carried out, or that are to be carried out, in compliance with a similar covenant to which the lease of the common property or another unit contained in the same sub-division under the Unit Titles Act 1970-1975 is subject.
28A. (1) This section applies to a lease—
(a) granted before the date of commencement of this section and containing a covenant by the lessee restricting the right of the lessee to transfer or agree to transfer his interest in the land or in any portion thereof, or to hold or agree to hold the same in trust, during the period of five years after the date of the lease, and a provision permitting the determination of the lease upon breach of that covenant; or
(b) granted on or after the date of commencement of this section and containing an agreement by the parties that this section shall apply to the lease.
(2) Subject to this section, a lease to which this section applies or any interest in the lease is not, during the period of five years after the date of the lease, capable of being transferred or assigned either at law or in equity.
(3) The last preceding subsection does not apply—
(a) where the lessee or his predecessor in title has at any time made an offer in writing to the Commonwealth to surrender the lease, and to obtain the consent in writing of all registered mortgagees and encumbrancees to the surrender, in consideration of payment by the Territory of compensation in accordance with the next succeeding subsection, and the offer has not been accepted within one month after the date on which it was made; or
(b) so as to prevent a transfer or assignment of a lease or of an interest therein—
(i) by operation of law or by will;
(ii) by way of mortgage;
(iii) by a mortgagee in pursuance of a power of sale as mortgagee; or
(iv) in pursuance of an order made by the Family Court of Australia or any other court having jurisdiction under the Family Law Act 1975 of the Commonwealth .
(4) Where a lease to which this section applies is surrendered, and the surrender is accepted by the Territory on behalf of the Commonwealth, then, notwithstanding the provisions of subsection (4) of section nineteen A of this Act, the Territory is liable to pay to the lessee by way of compensation an amount determined in accordance with the next succeeding subsection to be the replacement value, as at the date on which the offer to surrender the lease was made, of the improvements on the land, less an amount representing any depreciation or obsolescence of those improvements.
(5) The amount so payable to the lessee shall be determined by agreement between the Minister and the lessee, or, in default of agreement, by arbitration under the laws in force in the Territory relating to arbitration.
(6) A certificate signed by the Minister and certifying that the lessee under a lease specified in the certificate has duly made an offer in accordance with paragraph (a) of subsection (3) of this section but that the offer has not been accepted within one month after the date on which it was made is conclusive evidence that the transfer or assignment of the lease is no longer prevented or restricted by this section.
(7) A lease to which this section applies which was granted before the date of commencement of this section shall, on and after that date, operate as if the covenant, and the provision for determination of the lease, referred to in paragraph (a) of subsection (1) of this section were not included in the lease.
28B. (1) This section applies to and in relation to—
(a) a lease of a parcel of land specified in an order made by the Minister under subsection 13 (3) (being an order that includes a direction as provided for by subsection 13 (3A)) granted to the successful bidder for the right to the lease at the auction specified in the order; and
(b) a lease of a parcel of land granted under section 17 to a person included in a class of persons specified by the Minister, for the purposes of this paragraph, by instrument in writing published in the Gazette.
(2) Except as provided by this section, a transaction entered into, without the consent of the Minister, before the expiration of the prescribed period after the date of commencement of a lease to which this section applies by virtue of which a person—
(a) takes a transfer or assignment of the lease;
(b) purchases the lease or an interest in the lease;
(c) takes an option for the purchase of the lease or an interest in the lease;
(d) otherwise acquires the lease or an interest in the lease; or
(e) acquires, whether by virtue of a sub-lease or otherwise, the right to occupy the parcel of land held under the lease or a part of that parcel, for a period, whether with or without a right of occupation for a further period or further periods, or at will,
contravenes this section and is void and of no effect.
(3) Nothing in the last preceding subsection prevents—
(a) the acquisition of a lease by way of gift;
(b) the acquisition of a lease on sale under a writ or warrant of execution issued out of a court;
(c) the vesting in the personal representative of a deceased person, in his capacity as such, of a lease or an interest in a lease;
(d) any transaction that vests a lease, or an interest in a lease, in a trustee of the estate of a deceased person, in a trustee in bankruptcy or in a new trustee under an instrument, in his capacity as trustee;
(e) a transaction that is without consideration in money or money's worth and the purpose of which is to vest a lease, or an interest in a lease, in a person beneficially entitled to the lease or interest under or by virtue of a will or intestacy;
(f) the execution of a deed of assignment under Part XI of the Bankruptcy Act 1924-1960 3 of the Commonwealth, or of a deed of arrangement under Part XII of that Act;
(g) a transaction—
(i) by way of discharge of a mortgage or sub-mortgage; or
(ii) by way of transfer or assignment of a mortgage to a guarantor who, in pursuance of the terms of his guarantee, has repaid the whole or part of the moneys due under the mortgage; or
(h) a transaction entered into in pursuance of an order made by the Family Court of Australia or any other court having jurisdiction under the Family Law Act 1975 of the Commonwealth .
(4) Consent may be given to a transaction referred to in subsection (2) of this section if it is not reasonably practicable for the lessee of the parcel of land to which the transaction relates to occupy the parcel—
(a) by reason of a change in the place at which he is carrying on business or is employed having occurred after he became the lessee of the parcel of land;
(b) for a reason related to the health of the lessee or a member of his family or otherwise related to his family; or
(c) by reason of some other event related to the lessee or his family having occurred after he became the lessee of the parcel of land.
(4A) The last preceding subsection shall not be taken—
(a) to limit the classes of transactions to and in relation to which subsection (2) of this section applies; or
(b) to limit the discretion of the Minister to give or refuse consent to any transaction to or in relation to which subsection (2) of this section applies.
(5) The consent of the Minister to a transaction may be given by the Minister personally or by a person authorized by the Minister to consent to transactions under this section.
(6) Where a person, other than the Minister, refuses to consent to a transaction referred to in subsection (2) of this section, the applicant for the consent may request the Minister to review that refusal.
(7) A request under the last preceding subsection shall—
(a) be in writing;
(b) state the grounds for the request; and
(c) be served on the administrative head.
(8) The Minister, after consideration of the grounds stated in the request, the application made for consent to the transaction and any information furnished in support of that application, and after making any further enquiries he thinks fit, may consent or refuse to consent to the transaction.
(9) The decision of the Minister under the last preceding subsection is final.
(10) For the purposes of this section, “the prescribed period”, in relation to a lease of a parcel of land, means—
(a) in the case of a transaction of a kind referred to in paragraph (e) of subsection (2) of this section—the period specified in relation to the parcel in the order made by the Minister under section thirteen of this Act in which the parcel was specified;
(b) in the case of a transaction in respect of a lease of the kind referred to in paragraph (1) (b)—the period (if any) specified by the Minister in the instrument specifying a class of persons for the purposes of that paragraph; or
(c) in any other case—a period of 5 years.