Division 7 of Part X of the Land Act 1996 is a single section, and it is the most unusual provision in the whole Part. If you rent a house or an office in a government building, this is the law that governs you — and it is not the law you would expect.
Section 99(1) to (4) — the grant
(1) The Minister may, by written agreement, grant a lease of Government land on which there is a building the property of the State.
(3) A lease may be granted for business or residence purposes, or for both.
(4) A lease may be granted on a weekly, fortnightly, monthly or quarterly tenancy.
Note what is different straight away. Other State leases are granted after advertisement, a Land Board hearing, gazettal and a Lease Acceptance Form. This one is granted by written agreement — a contract — and it can be a short periodic tenancy rather than a term of years.
Section 99(2) and (6) — what is switched off
Section 99(2) disapplies sections 49, 68 to 76 inclusive, 82, 83 and 122. In practical terms that removes:
- section 49 — reservation from lease;
- sections 68 to 76 — the whole advertisement, Land Board, gazettal, Letter of Grant and Lease Acceptance machinery described in applying for a State lease;
- section 82 — the prescribed reservations and covenants, including the implied reservation of minerals and petroleum;
- section 83 — rent provisions; and
- section 122.
This Act, other than section 99 and section 145, does not apply to a lease granted under section 99. Instead, the law that would apply to a lease of land held for an estate in fee simple applies as if the land leased were held by the State for an estate in fee simple.
So the Land Act’s forfeiture, surrender, approval-of-dealings, subdivision and consolidation Parts simply do not govern this lease. Ordinary landlord-and-tenant law does.
Section 99(7) — no registration
The Land Registration Act (Chapter 191) does not apply to leases granted under this section.
This is the consequence that catches people out. There is:
- no certificate of title for the lease;
- no entry on the register, so nothing for a searcher to find;
- no indefeasibility — the protection registration normally gives a proprietor is unavailable; and
- no registered mortgage of the lease, and no caveat to protect an interest under it.
Your rights come from the written agreement and from the general law. That makes the terms of the agreement, and your ability to produce it, decisive.
How a section 99 lease compares
| Ordinary State lease | Section 99 lease | |
|---|---|---|
| How granted | Advertisement, Land Board, gazettal, Acceptance Form | Written agreement |
| Term | Up to 99 years | By agreement; may be weekly, fortnightly, monthly or quarterly |
| Registered? | Yes — certificate of title | No (s 99(7)) |
| Indefeasible? | Yes | No |
| Forfeiture | Part XV, with show-cause procedure | Ordinary law of landlord and tenant |
| Transfer | Approval of dealing under Part XVII | As the agreement provides |
| Minerals reserved? | Yes — s 82(3) | Section 82 does not apply |
Section 99(5) — the terms govern
A section 99 lease shall contain such reservations, covenants, conditions and provisions as are prescribed, together with such additional ones as the Minister determines, and shall take effect according to its tenor.
“According to its tenor” means: the document says what it says. There is no statutory overlay softening a harsh clause, no Land Act notice-to-show-cause procedure before you can be put out, and no Land Board to appeal to.
If you hold or want one
- Get the written agreement, and keep the original. It is the only evidence of your rights. There is no register to fall back on.
- Read the termination clause first. A monthly tenancy can usually be ended on short notice.
- Do not assume you can transfer or sublet. Check what the agreement permits.
- Do not treat it as security. It cannot be mortgaged on the register, so it is generally not acceptable to a lender.
- Do not spend heavily on improvements without a clause dealing with what happens to them at the end — the Land Act’s payment-for-improvements provisions in Part XIII do not apply.
- For recovery of possession, the general law applies, including the Summary Ejectment Act (Chapter 202) and the Landlord and Tenant (Miscellaneous Provisions) Act (Chapter 189).
The State is a large landlord of houses and offices it already owns and needs to let quickly and flexibly — to public servants, contractors and businesses. Running each of those tenancies through advertisement, the Land Board and the Torrens register would be unworkable. Section 99 takes them out of that system entirely.
Sources
- Land Act 1996 — ss 49, 68–76, 82, 83, 99, 122, 145
- Land Registration Act (Chapter 191)
- Summary Ejectment Act (Chapter 202)
- Landlord and Tenant (Miscellaneous Provisions) Act (Chapter 189)
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.