How Are State Leases Recorded on the Register?

Nearly all registered land in Papua New Guinea is held under a State lease, and Part IV of the Land Registration Act adapts the whole registration system to them.

Section 35(1) and (2) — the Register of State Leases

The structure mirrors section 9: the Registrar’s retained duplicates form a running series, and each State lease is itself a folio. Mortgages, registered leases, easements and caveats affecting a State lease are entered on that folio.

Under section 76 of the Land Act 1996, the Minister executes three copies of a State lease and forwards the original and a duplicate to the Registrar of Titles for registration — which is how a lease enters this Register in the first place.

Section 36 — the Act applies as if

Except where a contrary intention appears, the Act applies to the Register of State Leases and to State leases as if (a) the Register of State Leases were the Register, and (b) a State lease were a certificate of title.

So everything in this series about the Register applies to State leases: indefeasibility under section 33, priority by order of production under section 24, memorials under section 25, caveats, mortgages and transmissions.

Section 36(2) adds that a State lease, on registration, may be dealt with for the same purposes and in the same manner — subject to the Land Act — as if it had been granted by a registered proprietor. And section 36(3) provides that a State lease may be dealt with in any manner applicable to any other form of lease.

Section 35(3) — transfers must be by separate instrument

Notwithstanding sections 35 and 36, and in accordance with section 42, a transfer of a State lease shall be made by separate instrument and not by endorsement.

So you cannot transfer a State lease by writing on the back of it. A transfer in the approved form, stating the true consideration, lodged as a single original document, is required.

Section 35(4) — the Registrar’s own compliance check

This is the same test as section 129(1) of the Land Act 1996, under which the Minister’s approval of a controlled dealing shall be withheld unless rent is paid and the improvement conditions performed, or special grounds of an urgent or exceptional character are shown.

The practical consequence for a conveyancer: establish compliance before contracting, not at lodgement. If the conditions cannot be met, seek relaxation under section 118(2) of the Land Act and prior special-grounds approval under section 129(1)(b).

Section 37 — recording a variation or alteration

Where the purpose of a State lease is varied, or its covenants or conditions are altered, under the Land Act, the lessor and lessee may execute an instrument in the prescribed form notifying the Registrar, and the Registrar shall enter the terms of the variation or alteration.

Dealing with a State lease — checklist

1. Search the Register of State Leases — term, purpose, proprietor, encumbrances.
2. Confirm rent is paid to date, remembering the gazetted arrears list under section 83(7) and (8) of the Land Act is prima facie evidence that rent is due.
3. Confirm the improvement conditions have been performed, with evidence.
4. Obtain Ministerial approval of the controlled dealing before contracting.
5. Use a separate transfer instrument, not an endorsement.
6. Lodge with the duplicate — section 24(2) lets a later dealing lodged with the title overtake an earlier one lodged without it.
7. Lodge within 28 days of execution for the Land Act endorsement, on pain of a fine up to K5,000.
8. Notify any variation of purpose or conditions under section 37.