The information provided in this guide is not intended to amount to legal advice. Professional assistance may be required to determine the most appropriate action to protect your legal rights. Please read our Terms of Use on the Land Titles Registration policy and procedure guides web page. Landgate accepts no responsibility where parties print this guide and seek to rely on information that is out of date.
1. General
The TLA provides for the registration of a lease under the operation of the TLA for any term (excluding options to renew) exceeding three years for freehold land or exceeding 12 months for Crown land.
A duplicate copy of a lease may be lodged for registration along with the original. Although not required, where a duplicate lease is produced for a subsequent dealing against the lease, the duplicate lease will be endorsed (and if necessary updated) to show all the relevant interests registered against the lease.
Where the terms and conditions of a lease contains the creation of an easement, please refer to guide EAS-01 Easements for the additional registration requirements.5
5Paragraph added 17/02/2023
1.1 Lodgement via an Electronic Lodgment Network (ELN)6
Industry professionals who are a Subscriber to an ELN and where both lessor (Relinquishing party) and lessee (Receiving party) are both represented, may lodge a lease (non-dutiable), or lease of crown land (non-dutiable) electronically.
A lease is dutiable if consideration has been paid or agreed to be paid and must be lodged in paper.
The originally signed lease agreement is required to be obtained, uploaded and attached to the lease prior to lodgement. Consent where applicable, must be uploaded and attached to the lease prior to lodgement.
Leases will continue to be accepted for lodgement in paper and do not require a Request to Accept Paper Lodgement coversheet.
6Section added 08/07/2024
2. Form
A lease may be prepared using the e-form Record Interest – Lease form for a lease of freehold land or a lease of Crown land, available via Landgate’s Land titling forms webpage.
3. Preparing the Lease Form
All panels of the Lease form must be completed. Where a deed forms part of the lease it should contain appropriate section headings and where appropriate, a table of contents. It must also be consecutively page numbered.
Note:
References to the body of the lease or schedule to the lease within the form are not permitted and will only be accepted for notes 7 and 8.
Where subsequent transactions have occurred against the lease prior to registration of the lease (e.g. Transfer, Extension), the relevant subsequent documents should also be lodged.
3.1. Description of Land
3.1.1. Whole of the land in a Title
Please see the standard document preparation guide DOC-01 Document Preparation.
3.1.2. Part of the land in a Title
Where the lease relates to a portion of a lot or location, it must have a Land Description that is defined by a sketch or an Interest Only Deposited Plan. Where the lease affects part of a building, a narrative land description may be acceptable.
A lease by the State of Western Australia as lessor that affects part of a lot must be supported by an Interest Only Deposited Plan, unless the lease is over a portion of a building.
The Description of Land panel should identify the portion of land being leased by making reference to the sketch or Interest Only Deposited Plan. For example:
- "Part of Lot 100 on Deposited Plan 61023 shown hachured on the sketch at Annexure A"; or
- "Part of Lot 100 on Deposited Plan 61023 shown and marked ‘E’ on Deposited Plan 432000".
A land description may also describe the portion being leased by making reference to the shop number or unit number. For example:
"Part of Lot 1 on Deposited Plan 156789 described as shop 33 on the site plan at Annexure A".
3.1.3. Narrative Description of Buildings
A Lease of part of a building may have a land description defined by sketch, or by words referring to permanent walls. Care should be taken that in referring to parts of a building that any areas outside the building also included in the lease (such as parking or storage areas) are not forgotten.
For example, a lease with a land description panel reading as follows, can be registered without requiring a sketch:
- "The first floor of the CSA Centre, erected upon Lot 16 on Plan 13455, being part of the land in Certificate of Title Volume 99 Folio 100".
Note: Where a shop number or unit number does not comprise the whole of the floor of a building, a sketch or Interest Only Deposited Plan will be required.
3.1.4. Sketch requirements for leases to identify part of the land in a title4
Refer to DOC-01 – 7.2 Sketches in Documents to Identify Part of the Land in a Certificate of Title
Note: While leases are exempt from having an Interest Only Deposited Plan to define a portion of land, a Deposited Plan can still be created in lieu of a sketch.
4Section amended 17/10/2023
3.2. Tenancy of the Lessee1
Where there are two or more Lessees a tenancy is to be stated. The Lessee panel should clearly state if the interest is held ‘Jointly’ or as ‘Tenants in Common’ (equally or in shares).
[1 New section added on 11/02/2019]
3.3. Term of the Lease
The term of the lease must be clearly defined, in that it must have a commencement date (which may be a past date or up to 21 years in the future) and either a finish date or a finite term stated in years, months and days.
Any options to renew the lease for a further term are also required to be shown.
Note: Where the initial term of a lease has already expired but the lease has an option to renew that has not yet expired, the lease can be accepted for registration.
3.4. Encumbrances
Only encumbrances affecting the area of land that is being leased are required to be shown.
Where a lease exists over the same area of land that is being leased, it must be removed prior to registration of the new lease. Please see LEA-03 Leases of Land - removal.
The following exceptions would apply to the above requirement:
- Where the new lease being lodged has a commencement date that is after the expiry date of an existing lease that is still current. In this case, the existing lease that is still current is to be shown as an encumbrance in the new lease.2
[2 Section updated on 23/03/2020]
- Where the new lease is a concurrent lease. Please see LEA-02 Leases of Land - Variations of and to section 3 Concurrent Leases.
3.5. Execution
The Lessor(s) and the Lessee(s) must both sign the lease form. Standard execution requirements apply, please see the policy and procedure guides on document signing (SIG-01 to SIG-13 inclusive).
Note: The execution page of the Lease form should be signed/executed by the Lessor(s) and the Lessee(s). Whilst referring to the page number containing the original signatures contained within the lease deed has become common practice, it is not recommended.
3.6. Consents
3.6.1. Ministers Consent
For transactions over Crown land, unless the Crown land is vested for purposes of another Act, consent of the Minister for Lands will be required under section 18 of the LAA (CRW-01 Crown Land - General).
3.6.2. Mortgagee Consent
The consent of any mortgagee or annuitant registered in priority to the lease is required. (See section 91 of the TLA). Consent should be included in the body of the lease or affixed to the document.
Where the consent is signed under a Power of Attorney that has been noted at Landgate, the attorney must have power to consent to creating or granting leases.
3.6.3. Western Australian Planning Commission Consent
Unless a lease of freehold land is of a whole lot or lots the consent of the Western Australian Planning Commission is required where:
- the term of the lease, including any option to renew exceeds twenty years; and
- the terms of a lease, in the aggregate, exceed twenty years including any option to renew.
Where a lease affects a building that has been constructed in accordance with a building licence, or a building licence to construct the building is in force, consent of the Western Australian Planning Commission is not required. (See section 136 of the Planning and Development Act 2005).
Leases of Crown land over part of a Lot do not require Western Australian Planning Commission consent.
4. Lease of Crown Land
Section 47 of the Land Administration Act 1997 allows for a lease for a purpose in accordance with the reserve purpose and section 48 of the LAA allows for a lease for a purpose different to the reserve purpose but compatible with a future intended purpose.
Leases created under s.47 may be mortgaged whilst a s.48 lease cannot be mortgaged.
While it is possible for a Lease of Crown land by the State of Western Australia to be registered over a managed reserve, it is preferred that where a lease is required over a managed reserve, it be created by the management body where they have the power to lease.
5. Lease over Common Property (paper lodgement)3
The strata company may lease part of the common property or sub-lease land leased. A lease for a period greater than three years may be registered on the scheme plan. The lodgement of an Interest Only Deposited Plan will be required to spatially define the portion of the common property the subject of the lease.
On registration, such a lease must:
- show the strata company as lessor;
- be accompanied by a Certificate of the Strata Company – Schedule of unit entitlements / leases / easements / restrictive covenants.
- be accompanied by the written consent of WAPC, if required under section 136 of the Planning & Development Act 2005.
A sub-lease of land leased may not be entered into by the strata company if the terms of the original lease prevent it. Registration of the sub-lease is effected in a similar manner to that shown for a lease above.
3 (Updated to include new section 01/05/2020)
6. Lease over Common Property in a Community Titles Scheme (paper lodgement)
The community corporation may lease part of the common property or sub‑lease land leased. A lease for a period greater than three years may be registered on the scheme plan. The lodgement of an Interest Only Deposited Plan will be required to spatially define the portion of the common property the subject of the lease.
On registration, such a lease must:
- show the community corporation as lessor;
- be accompanied by a Certificate of community corporation –Schedule of unit entitlements / leases / easements / restrictive covenants.
- be accompanied by the written consent of WAPC, if required under section 136 of the Planning & Development Act 2005.
A sub-lease of land leased may not be entered into by the community corporation if the terms of the original lease prevent it. Registration of the sub‑lease is effected in a similar manner to that shown for a lease above.
7. Lease of a Lot Within or Land Contiguous to Strata Titles Scheme Land (paper lodgement)
Section 92 of the Act allows a strata company to accept a lease of a lot within or land contiguous to a strata titles scheme to create additional common property (known as temporary common property). This lease is endorsed on the Record of Strata Titles Scheme in the scheme plan.
If the land to be leased is portion of a lot within the scheme or portion of contiguous land, the Registrar of Titles requires an Interest Only Deposited Plan to be lodged at Landgate depicting the part of the land subject of the lease.
The lease (or a transfer of lease or sub-lease) must be free of designated interests [see definition – STR-01], unless:
- That designated interest does not prohibit the lease; and
- The holder of the designated interest consents in writing to the lease; and
- The consent does not impose any obligation on the strata company to comply with the terms of the designated interest.
To effect this type of amendment, notice must be given to lot owners and designated interest holders in the approved form Notice to lot owners and others for amendment of scheme plan. Once the necessary consents have been obtained, the following documents must be lodged:
- The lease or sub-lease or transfer of lease or transfer of sub-lease , whichever is appropriate;
- Accompanied by a Certificate of the Strata Company – Schedule of unit entitlements / leases / easements / restrictive covenants;
- The written consent of the Western Australian Planning Commission, if required;
- Consent Statement – Designated Interest Holders for amendment of scheme plan and schedule of unit entitlements (with written consents) (or consents affixed to the Notice to lot owners and others for amendment of scheme plan);
- Lodgement of an Interest Only Deposited Plan by a surveyor, if the land to be leased is portion of a lot within the scheme or portion of contiguous land, to depict the part of the land subject of the lease; and
- If leasehold scheme, Consent of the Owner of a Leasehold Scheme, unless the owner of the leasehold scheme is the applicant.
Upon the registration of the lease the owner of a lot in the scheme acquires an undivided share in the temporary common property proportional to the unit entitlement of the owner's lot. The share of an owner of a lot in the temporary common property is subject to any interests recorded or registered against the lot.
The strata company is responsible for all payments and performance of duties due under the lease.
A strata company may surrender the lease, having made a resolution without dissent to this effect and with the agreement of the lessor. See guide LEA-03 for registration requirements.
8. Lease of a Lot Within or Land Contiguous to Community Titles Scheme Land (paper lodgement)
Section 78 of the Act allows a community corporation, by special resolution, to accept a lease of a lot within or land contiguous to the tier parcel of the community titles scheme to create additional common property (known as temporary common property). This lease is endorsed on the Record of Community Titles Scheme in the scheme plan.
To effect this type of amendment, notice must be given to lot owners and type 1 and type 2 interest holders in the approved form Notice to lot owners and others for amendment of scheme plan. Once the necessary consents have been obtained, the following documents must be lodged:
- The lease or sub-lease or transfer of lease or transfer of sub-lease , whichever is appropriate;
- Accompanied by a Certificate of the Strata Company – Schedule of unit entitlements / leases / easements / restrictive covenants;
- The written consent of the Western Australian Planning Commission, if required; Consent statement Type 1 and type 2 interest holders of land leased as temporary common property, and amendment of scheme plan to create or discharge an easement or restrictive covenant (with written consents) (or consents affixed to the Notice to lot owners and others for amendment of scheme plan) consenting to the land being burdened by the lease for the purpose of temporary common property [see definition of type 1 and type 2 interest holders at guide CTS-08]; and
- Lodgement of an Interest Only Deposited Plan by a surveyor, if the land to be leased is portion of a lot within the scheme or portion of contiguous land, to depict the part of the land subject of the lease.
Upon the registration of the lease the owner of a lot in the scheme acquires an undivided share in the temporary common property proportional to the unit entitlement of the owner’s lot. The share of an owner of a lot in the temporary common property is subject to any interests recorded or registered against the lot.
The community corporation is responsible for all payments and performance of duties due under the lease.
A community corporation may surrender the lease, having made a special resolution to this effect and with the agreement of the lessor. See guide LEA-03 for registration requirements.
9. Leasehold Strata Titles Schemes – Strata Lease (paper lodgement)
A Strata Lease is registered as a scheme document for the purposes of the Strata Titles Act 1985 and comes into effect upon registration of a leasehold strata titles scheme.
- For registration of a strata lease at registration of a new strata titles scheme - see section 3 of guide STR-02 Lodgement and Registration of New Strata Titles Schemes.
- For registration of a strata lease upon creation of a new lot(s) as a result of subdivision of a registered strata titles scheme - see sections 6 & 7 of guide STR-04 Amendment of a Strata Titles Scheme – Effecting Subdivision.
- For registration of a strata lease upon changes to conditions of the existing registered strata lease resulting from amendments to the Strata Titles (General) Regulations 2019 - see section 9 of guide STR-05 Amendment of a Strata Titles Scheme – Not Effecting Subdivision.
10. Pastoral Leases (paper lodgement)
Pastoral leases granted under the Land Administration Act 1997 cannot be converted to freehold.
All pastoral leases granted under the Land Act 1933 expired in the year 2015. Lessees of pastoral leases granted under the LAA may apply for a renewal of their lease at any time during the period twelve months before the date 10years before the expiry of the pastoral lease.
10.1. Temporary Care, Control and Management of Pastoral Lease
If the Pastoral Lands Board is of the opinion that a pastoral lease has been abandoned, or otherwise left without proper care, control and management, it may recommend to the Minister that the Board be authorised to assume temporary care, control and management of the lease.
Where a Temporary Care, Control and Management Authorisation document is registered against the lease, it takes priority over all other charges against the lease. Consent of the Pastoral Lands Board is required for any further encumbrances against the lease and the Authorisation document must be removed prior to any Transfer or Surrender of the lease.
The Authorisation document does not remain on the Crown title upon forfeiture or expiration of the lease.
11. Option to Renew a Lease
A lessee's right arising from an option or series of options to renew the lease are protected by registration. Any further instruments lodged on the lessor's title after the expiry of the initial term, but within the period of an option, must either show the lease as an encumbrance or provide evidence that the options were not exercised. Anyone searching a lease to ascertain whether it has expired should also consider the effect of section 13 of the Commercial Tenancy (Retail Shop) Agreements Act 1985.
The best evidence would be a statutory declaration by the lessee that the option was not exercised and that neither the lessee or any transferees or assignees of the lessee are in possession of the premises. A declaration in similar terms by the lessor but including details of the lack of availability of the lessee to make the declaration previously referred to, will be considered on its merits.
Registration will only protect options to renew the lease of the original premises. Options to extend the lease to additional premises are better protected by a caveat (as to the area of the extension).
12. Option to Purchase
A lease may contain a provision granting the lessee the right in certain circumstances to purchase the fee simple of the leased premises from the lessor. The registration of that lease does not necessarily protect the lessee's option and it would be recommended that a caveat be lodged, claiming an interest based on the option to purchase.