Division 3 Leases of lots
33 Provisions generally applicable to leases
(1) The provisions of the Conveyancing Act 1919 relating to leases of land apply to and in respect of a lease of a lot or of common property except in so far as those provisions are inconsistent with the provisions of this Part or the regulations.
(2) The lessor under a leasehold strata scheme may be the lessee of any lot subject to that scheme notwithstanding any law relating to the merger of leasehold and reversionary estates in land.
34 Restrictions on dealings by lessee
(2) Except as expressly provided by Division 2, any provision in the lease of a lot or common property which purports to require the consent of the lessor under the scheme to any dealing with the lease is void.
35 Powers of lessor where no current lease
(1) If a proprietor is entitled to immediate possession of a lot because of the determination of a lease, the proprietor is, for the purposes of this Act (but subject to such exceptions as may be prescribed), to be deemed to be the lessee of the lot.
(2) Nothing in subsection (1) confers or imposes on the proprietor any right or obligation created by any lease, sublease, mortgage charge or covenant charge to which any former lessee was subject.
36 Further leases of lots and common property
(1) Except as provided by subsection (3) and section 122 of the Conveyancing Act 1919, the lessor under a leasehold strata scheme may grant further leases of the lots the subject of the scheme (which may consist of or include leases to the lessor) at any time before the scheme is terminated.
(2) If a lease is granted under subsection (1) so as to commence when the lease of the common property expires, the lessor under the scheme shall also grant a further lease of the common property to the body corporate.
(3) Where the lessees of lots the sum of whose unit entitlements is not less than four-fifths of the aggregate unit entitlement and the body corporate have, at least 6 months before the expiration of the terms of those leases, given written notice in accordance with subsection (4) to the lessor under the leasehold strata scheme concerned of their intention to exercise their rights to renew their leases, the lessor shall, at least 3 months before those terms expire, grant and deliver:
(a) further leases of those lots to those lessees, and
(b) a further lease of the common property to the body corporate.
(4) A lessee of a lot or a body corporate gives notice in accordance with this subsection to the lessor under the leasehold strata scheme concerned of an intention to exercise a right to renew a lease only if:
(a) the right to a further lease, being a lease containing specified provisions, has been granted to the lessee or body corporate by the lessor in writing signed by the lessor, and
(b) the notice is accompanied by a lease for execution by the lessor in the form approved for registration under the Real Property Act 1900 and containing those provisions.
(5) Except where any such lease is granted so as to commence during the term of another lease of a lot or the common property and is expressed to expire at the same time as the other lease, the terms of all leases granted under this section with respect to a parcel shall be expressed:
(a) to commence at the expiration of the terms of the leases they are intended to replace, and
(b) to expire at the same time.
(6) If a lease granted under this section confers on the lessee a right of renewal, the renewal term shall be the same as that to which each other lessee under the leasehold strata scheme is entitled.
(7) The lessor under the scheme may execute a further lease of the common property as agent for the body corporate, unless the lease is granted pursuant to subsection (3).
(8) Notwithstanding subsection (3), the lessor under the scheme may refuse to grant:
(a) a further lease of a lot to a lessee, if:
(i) the lessee has committed a breach of a provision of the lease of that lot and that breach has not been remedied, or
(ii) the lessee has not complied with a requirement imposed by the lessor in accordance with a provision of the lease for the renovation of improvements comprised within that lot, or
(b) a further lease of the common property to the body corporate, if:
(i) the body corporate has committed a breach of a provision of the lease of the common property and that breach has not been remedied, or
(ii) the body corporate has not complied with a provision of the lease for the renovation of any improvements comprising common property.
(9) If a lessor refuses under subsection (8) (b) to grant a further lease of the common property the subject of a leasehold strata scheme, the lessor shall also refuse to grant further leases of lots the subject of the same scheme.
(10) A right to a further lease of a lot or of common property may not be exercised otherwise than in accordance with this section.
37 Expiry of leases of lots
(1) When all leases of the lots and common property (if any) that are the subject of a leasehold strata scheme expire or are otherwise determined without being wholly or partly replaced by further leases of the lots or common property registered under the Real Property Act 1900, then except as otherwise provided by this section:
(a) the scheme is terminated,
(b) the body corporate constituted for the purposes of the scheme is dissolved,
(c) if the leases so provide or it is so provided in any other agreement, the former lessor under the scheme is liable to pay to each person who, immediately before the termination of the scheme, was the lessee of a lot (in this section referred to as the former lessee) such amount by way of compensation, determined in accordance with the formula set out in Schedule 2 or as otherwise agreed by the former lessor and former lessee, in respect of the value of the improvements comprised within the former parcel as is attributable to the lot leased by the former lessee,
(d) all rights which were vested in the body corporate immediately before its dissolution (being rights which, but for the dissolution of the body corporate, would have survived the expiry of the term of the leases) are vested in the former lessees,
(e) the former lessees become jointly and severally liable for all of the liabilities of the body corporate subsisting immediately before its dissolution, and
(f) any legal proceedings begun by or against the body corporate may be completed by or against the former lessees.
(2) As soon as practicable after the termination of a leasehold strata scheme, the Registrar-General shall, on the application of the lessor under the scheme:
(a) cancel the folios of the Register for the leases of the lots and common property comprised in the scheme,
(b) cancel the strata plan relating to the scheme, and
(c) record on the folio of the Register relating to the parcel that was the subject of the scheme the fact that the scheme has terminated.
(3) Where, in relation to a lot comprised in a leasehold strata scheme that is about to be terminated by virtue of subsection (1) or to a former lot that was comprised in a leasehold strata scheme that has already been so terminated, a dispute arises as to the amount to be paid in respect of the value of improvements under subsection (1) (c) to the lessee or former lessee of that lot, that dispute shall be resolved:
(a) if the lease of that lot so provides or so provided or the parties to the dispute otherwise agree, by reference to arbitration under the Commercial Arbitration Act 2010, or
(b) in any other case, by an order of the Supreme Court.
(4) An application for an order under subsection (3) (b) may be made by any party to the dispute concerned.
(5) Notice of the application shall be served, in accordance with rules of court, on such persons as the Supreme Court may direct.
(6) As far as practicable, all applications which relate to the same leasehold strata scheme shall be heard together.
(7) At any time before the expiry of the terms of leases of the lots and the common property (if any) comprised in a leasehold strata scheme, the lessee of any of those lots, the body corporate or any creditor of the body corporate may apply to the Supreme Court for an order under subsection (10).
(8) Notice of an application under subsection (7) shall be served, in accordance with rules of court, on every person referred to in that subsection other than the applicant and on such other persons (including creditors of the body corporate) as the Supreme Court directs.
(9) The person making an application under subsection (7) and any person referred to in subsection (8) (whether served with a copy of the notice of the application or not) is entitled to appear and be heard at the hearing of the application.
(10) At the hearing of an application under subsection (7), the Supreme Court may make an order to the effect that, notwithstanding the expiry of the leases of the lots and common property (if any) the subject of the leasehold strata scheme concerned, the body corporate shall continue in existence for the purposes specified in the order until such date as may be specified in the order or in a further order of the Supreme Court.
(11) An order made under subsection (10) may include directions for or with respect to any of the following matters:
(a) the sale or disposition of any property of the body corporate,
(b) the discharge of the liabilities of the body corporate,
(c) the termination of any development scheme that relates to the parcel and the cancellation of the development statement concerned,
(d) the persons liable to contribute money required for the discharge of the liabilities of the body corporate and the proportionate liability of each such person,
(e) the distribution of the assets of the body corporate and the proportionate entitlement of each person under that distribution,
(f) the administration and functions of the body corporate,
(g) any legal proceedings which have been brought by or against the body corporate and which are currently pending,
(h) the voting power at meetings of the body corporate of persons referred to in paragraphs (d) and (e),
(i) any matter in respect of which it is, in the opinion of the Supreme Court, just and equitable, in the circumstances of the case, to make provision in the order,
(j) the winding up of the body corporate (including the appointment and functions of any person to carry out the winding up).
(12) An order under subsection (10) shall have effect according to its tenor notwithstanding any other provision of this Part.
(13) The Supreme Court may, from time to time, vary any order made under subsection (10) on the application of any person who was entitled to appear and be heard on the hearing of the application for that order.
38 Restrictions on re-entry or forfeiture of lease of lot
(1) Where the lease of a lot is subject to a registered mortgage, charge or covenant charge, a right of re-entry or forfeiture under a provision of the lease for a breach of any covenant, condition or agreement (express or implied) in the lease shall, notwithstanding section 129 (6) of the Conveyancing Act 1919, not be exercised unless the lessor has served on the mortgagee, chargee or covenant chargee a copy of the notice relating to that breach served on the lessee under section 129 of that Act.
(2) Where a lessor has brought legal proceedings to enforce a right of re-entry or forfeiture under a provision of a lease of a lot, the Supreme Court may, on application by any person claiming as mortgagee, chargee or covenant chargee of the lot make an order:
(a) staying those proceedings on such terms as appear to the Supreme Court to be just and equitable, and
(b) vesting, for the whole of the remaining term of the lease, or any shorter term, the lease of the lot in that person on such conditions as to the execution of any dealing or other document, payment of proper and reasonable rent, costs, expenses, damages, compensation, giving security or otherwise as that Court, having regard to all the circumstances of the case, thinks just and equitable.
(3) An order under subsection (2):
(a) may be made in proceedings for the purpose brought by the person claiming as mortgagee, chargee or covenant chargee, or
(b) where the proceedings brought by the lessor are already in the Supreme Court, may be made in those proceedings.