Variations

A lease that is registered under the Real Property Act 1900 (NSW) (RPA) may be varied to:

• • increase or reduce the rent;
• • increase or reduce the term of the lease; or
• • vary, omit or add a provision of the lease: s 55A(1) RPA.

Variations as to the premises leased may not be varied under the RPA. The addition of a landlord or tenant cannot be effected by a variation.

Only leases with at least 10 years unexpired may be registered under the Transfer of Land Act 1958 (Vic): s 11(1). Section 67A of that Act allows variations of registered leases to be made by the registered proprietor with the consent of the lessor but provides that such permitted variations do not include:

• • a transfer or assignment of a lease; and
• • an alteration of:
• • ◦ the term of a lease;
• • ◦ an area of leased land; or
• • ◦ the parties to a lease.

The Landgate Land Titles Registration Policy and Procedure Guides provides that:

A sub-lease may include variations to the lease, however any variations included cannot alter the lease area or the term of the lease. The lessor must be a party to any variations of the lease.

A variation of lease cannot alter the leased area, the term of the lease or the parties to the lease.

Where the area of the leased premises is to be varied, a surrender of lease form should be used where the leased premises are being decreased, and a new lease granting the additional area of land is to be prepared where the leased premises are being increased.

Where the term of a lease is to be increased, an extension of lease form should be used. Where the parties to the lease are to be varied, a transfer of lease form should be used.

A variation document of a freehold lease cannot be accepted for registration. Please note however, that variations to a freehold lease can be included in an extension of lease, sub-lease or transfer of lease document.

A person who acquires an interest in land takes free of any sublease that has a term exceeding 3 years unless that sublease has been registered on the title to the property. See s 58(1)(d) Land Titles Act 1925 (ACT).

A variation of a sublease does not bind any third party unless the variation has been registered. The current form of variation of sublease is Land Titles Form 022-VSL.

It is not possible to register a variation of the terms of a lease that is registered under the Real Property Act 1886 (SA) (RPA) unless an extension of lease is registered in accordance with s 153 of the RPA. Such an extension can include provisions which:

• • increase or reduce the rent;
• • increase or reduce the term of the lease; or
• • vary, omit or add a provision of the lease.

It is common for an extension of lease to extend the term of a lease for one day in order to provide a means of registering such variations.

Variations as to the premises leased or the addition of a landlord or tenant cannot be effected by an extension of lease.