For the purpose of this information, "lease" means Crown lease.
Your lease contains a building and development covenant, which may either require you to commence and/or complete construction of a building on your land within 12 months and 24 months respectively, from the commencement date of the lease. You will be granted a certificate of compliance once the building is constructed in accordance with the building and development covenant. If not, you will need to apply for consent to transfer your land without complying with the building and development covenant.
Agreement to transfer
A consent to a transfer must satisfy that:
- the proposed assignee or transferee intends to comply with the building and development provision; and
- the proposed assignee or transferee has given any security required; and
- either the lessee cannot, for personal or financial reasons, comply with the building and development provision;
- or the proposed transferee or assignee (the homebuyer) has a contract with the person (the builder) proposing to transfer or assign the lease and under the contract, the builder is required to build a home on the leased land for the homebuyer.
Consent to transfer a lease may also be given if it is the first sale of an individual lease of undeveloped land by the person who provided the infrastructure on and subdivided the holding lease of which the individual lease is a subdivision.
The Authority also considers the history of transfers of the lessee and the purchaser to determine a pattern of behaviour, that is where a person has used the consent to transfer before the issue of a compliance certificate as a means to divest themselves of property in the past.
Make a request for consent to transfer
To seek consent to transfer you need to submit to the Environment and Planning Directorate the Registrar-General's Office standard transfer document signed by both parties, accompanied by relevant documentation and the administrative fee. Further information may be requested from you before a decision is made. However, should no further information be required, a consent may be granted fairly quickly.
Exceptions to government consent
Where the lease contains a building and development covenant and the building is incomplete, a lease can be assigned or transferred without consent in the following circumstances:
- death of the Crown lessee;
- where the transfer or assignment is made under an order of the Family Court, an order of another court having jurisdiction under the Family Law Act 1975 (Cth) or an order under the Domestic Relationships Act; or
- the transfer or assignment occurs because of bankruptcy or insolvency;
In other circumstances, where the lease does not contain development covenants, such as ex-Government housing built before ACT self-government, a certificate of compliance may not be required.
The Environment and Planning Directorate's decision to refuse consent to a transfer of a lease is appealable to the Administrative Appeals Tribunal. The Tribunal can make a decision to support the Environment and Planning Directorate's decision, vary that decision, or make a new decision. The Tribunal can also ask the Environment and Planning Directorate's to reconsider its decision.
If you do not appeal the decision, or the Tribunal confirms the Environment and Planning Directorate's decision to refuse to consent to the transfer, you must either comply with the building and development covenants, or surrender the lease to the Territory.
Buyers who have questions about the matters contained in the standard form of Contract for Sale approved by the ACT Law Society should discuss them with their lawyer for advice.