Part VI of the Land Registration Act deals with leases granted by a registered proprietor — typically a sublease of a State lease. It sets the registration threshold and fills in terms the parties may not have written.
Section 49(1) and (2) — the three-year line
(1) Where a proprietor intends to lease land for a life or lives, or for a term of years exceeding three years, he shall execute a lease in the approved form, and the lease shall be registered.
(2) Where a lease is for a term of three years or less and is executed in the approved form, the lease may be registered.
So over three years: registration is mandatory. Three years or less: optional.
The three-year line matches section 33(1)(f), under which a tenancy from year to year or for a term not exceeding three years binds a registered proprietor whether or not it is registered. Short tenancies are protected without registration; long ones must be on the Register to be secure.
Section 33(1)(f) protects the tenancy, but registration puts it on the folio where a buyer or lender will see it, and removes any argument about its terms. For anything of commercial value, register.
Section 49(3) — the mortgagee must consent
Where land is subject to a mortgage or charge, no lease executed after registration of the mortgage or charge is valid or binding against the mortgagee or the proprietor of the charge unless he consents to the lease before it is registered.
This catches tenants regularly. If the landlord’s mortgage was registered before your lease, and the mortgagee did not consent before your lease was registered, your lease does not bind the mortgagee. If the lender later exercises its power of sale, the purchaser can take free of your lease.
Before signing any lease of value: search the title, identify any registered mortgage, and obtain the mortgagee’s written consent before registration.
A lease may be lodged for registration in triplicate (s 49(4)).
Section 50 — powers implied in favour of the lessor
Two powers are implied by force of the Act:
- (a) Inspection and notice to repair. The lessor may, by himself or his agents, at all reasonable times enter and view the state of repair, and may serve on the lessee — or leave at his last or usual place of abode in the country, or on the demised property — a written notice of any defect, requiring repair within a reasonable time specified in the notice.
- (b) Re-entry. The lessor may re-enter and take possession where:
- rent or part of it is in arrear for six calendar months; or
- default in a covenant, express or implied, continues for six calendar months; or
- the repairs required by the notice are not completed within the time specified.
Note the contrast with mortgages. A mortgagee can move on one month’s default plus one month’s notice. A lessor must wait six calendar months of arrears or continuing breach before the implied power of re-entry arises. Tenants have considerably more room than borrowers.
These are implied powers. A written lease may provide differently, so read the document.
Section 51 — covenants implied against the lessee
Subject to section 51(2), the Act implies covenants that the lessee will:
- pay the rent reserved at the times specified, and pay all rates and taxes payable in respect of the land;
- keep and yield up the property in repair, in the terms the section sets out.
Section 65’s approach applies here too in spirit: Schedule 4 short forms carry full covenants, so a brief phrase in a lease may import a long obligation. Check the Schedule when reading a registered lease.
The Land Act overlay
Under Part XVII of the Land Act 1996, a “leasehold estate” includes a lease or sublease whose term or remaining term exceeds 5 years, or one of five years or less with an option to renew that would take it past five years. A disposition of such an estate is a controlled dealing, and is void without the Minister’s approval.
So a sublease of more than five years needs both Ministerial approval under the Land Act and registration under this Act.
Note also that the Land Registration Act does not apply at all to a lease of a government-owned building under section 99 of the Land Act — there is no registration and no certificate of title for those.
Checklist for a tenant taking a registered lease
- Search the title. Confirm the lessor is the registered proprietor and identify every encumbrance.
- Find any registered mortgage, and obtain the mortgagee’s written consent before registration — section 49(3).
- Check the head lease. A sublease cannot exceed what the State lease permits, and the purpose clause binds you too.
- Obtain Ministerial approval if the term or remaining term exceeds five years.
- Register — mandatory over three years.
- Read Schedule 4 for the full effect of any short-form covenants.
- Note the six-month re-entry trigger, and any different contractual term.
Sources
- Land Registration Act (Chapter 191) — ss 33, 49–51, 65; Schedule 4; Part VI
- Land Act 1996 — ss 99, 127–129
- Landlord and Tenant (Miscellaneous Provisions) Act (Chapter 189)
- Summary Ejectment Act (Chapter 202)
Before relying on anything here, read the current text of the Land Act 1996 and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.