It is important for the Landlord and the Tenant to register a
commercial lease on the title of the property with Landgate
(WA's register of land ownership) as it is the best form of
security for the Landlord and the Tenant.
It is therefore important that a condition is set out in the
lease agreement that obliges the landlord to register the lease.
Whether or not you should register a lease depends on who you are
and your interests in the property in question.
This e-checklist will focus on:
When can you register a lease and why you should register a
Implications for Landlords, Tenant and Buyer for not
registering a lease.
Registering a lease
A lease can be registered at Landgate when the term of the lease
(excluding options) exceeds three years. This is done by lodging at
Landgate a completed form, attaching an original copy of the lease
and paying the relevant registration fee. Registering a lease
requires the consent of the Landlord and the Mortgagee of the land
Registration is defined in section 7 of the Property Law Act
1969 (WA) by the following definition:
"registered or duly
registered means registered in the manner provided by the
Transfer of Land Act 1893 where the land affected is under that
Act, and otherwise means registered in the manner provided by the
Registration of Deeds Act 1856."
Tenants in actual possession of an unregistered lease are given
protection pursuant to section 68 of the Transfer of Land Act 1893
(WA) ("TLA") where the term does not exceed 5 years.
However, section 68 does not protect a Tenant's option to renew
or extend the lease unless the lease is registered or protected by
Where a lease exceeding five years is unregistered, either the
Landlord or the Tenant can terminate the lease when the property is
sold to a third party. The registration of a lease exceeding five
years prior to the transfer of land will ensure that the lease
cannot be terminated by the new owner or the Tenant.
Implications for Landlord
A potential Buyer of a leased property should likely seek
evidence that the existing leases are valid and enforceable to
ensure continuity of occupancy (and value) of that property.
Any Landlord intending to sell should ensure:
leases on the property which can be registered are registered
on the title;
leases on the property which cannot be registered are protected
by registration of a caveat on the title; and
that the lease agreement obligates the Tenants to enter into a
deed with new owners of the property whereby they affirm the
continuation of the lease.
It may also be a requirement of the Mortgagee for the leases to
be registered as a condition of providing the funding.
Additionally, subject to certain exemptions, leases with a term
exceeding 20 years (including options) require Western Australia
Planning Commission approval as this could be considered a
subdivision of land.
Landlords should also ensure that the lease includes an
obligation on the Tenant to remove the expired leases. This is done
by lodging at Landgate a completed surrender form which needs to be
signed by both the Landlord and Tenant.
Implications for Tenant
Tenants should ensure that it is a condition of a lease that the
lease exceeding five years be registered on the title. Only by
registration of the lease will the Tenant have indefeasibility of
title. If a lease exceeding five years is not registered the Tenant
and the new owner may terminate the lease on the Landlord selling
Tenants should also note that any Mortgagee with a prior
encumbrance to the lease may need to consent to the registration of
the lease. As such, Tenants will require the cooperation of the
Landlord in order to register a lease.
If the lease is silent on the issue of registration and the
Landlord does not agree to register the lease, the Tenant should
consider registering a caveat on the title of the property. This
will serve to alert all potential Buyers of the property to the
existence of the lease but will not offer the same security as
Implications for Buyer
Buyers of a leased property who wish to retain a particular
Tenant will need to ensure that the lease is registered. A Tenant
could walk away upon a change of ownership of the leased
A Buyer should ensure that:
it is a condition of the contract for sale that all leases
(that are capable of being registered) are registered prior to the
settlement of the sale; or
the Tenant confirms in writing in a deed with the new owner
that the Tenant affirms the lease after the sale of the
This checklist covers the bare basics only and there is much
more to cover on this important issue. We would be pleased to
discuss your leasing requirements.
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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Warranties can be risk-shifting mechanisms when the party giving the warranty is not the party at fault for the defect.
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