Often landowners in rural areas will allow other family members
to build homes on the family farm or semi rural property. This
article deals with the particular issue of the grant of a long term
lease or licence in these circumstances when allowing other family
members to build homes on the family farm.
This seems fairly uncontroversial at first glance. It helps out
younger family members in a real estate market that is becoming
increasingly out of reach for young West Australians. What must be
considered is, what rights do you actually want to give those
family members by allowing them to build on the property?
A particular issue arises when this happens without subdividing
off the land on which the house is built, from the rest of the
farm. If your intention is to grant a long-term lease or license of
part of your lot to a family member, then you must proceed with
In WA, section 136 (1) of the Planning and Development Act 2005
requires you, as the landlord, to obtain the prior consent of the
Western Australian Planning Commission when granting a long term
lease or licence over land which is part of a lot for a term
(including option periods) exceeding 20 years.
If the prior consent of the Western Australian Planning
Commission is not obtained then the lease or licence will have no
effect and will be unenforceable. This means there will be no
formal recognition of the rights of the family member who built the
home on the property.
This section seeks to prevent landowners short circuiting the
government approval process by effecting a subdivision of land by
granting a long lease. Many families granting long leases or
licenses may be unwittingly caught by this legislation.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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Many retail leases include a covenant to trade, requiring the tenant to open the premises for trade during certain hours.
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