New South Wales Consolidated Acts

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REAL PROPERTY ACT 1900 - SECT 91

Disclaimer of lease under Commonwealth Act

91 Disclaimer of lease under Commonwealth Act

(1) This section applies to and in respect of a lease registered under the provisions of this Act where:
(a) the registered proprietor of the lease is a bankrupt within the meaning of the Commonwealth Act,
(b) the trustee, as defined by the Commonwealth Act, has disclaimed the lease pursuant to that Act,
(c) a Court having jurisdiction in bankruptcy under that Act has not made an order pursuant to section 133 (9) of the Commonwealth Act vesting the lease in some person other than the lessee, and
(d) no application has been made pursuant to that subsection to such a Court, or any application so made has been dismissed.
(2) A lessor under a lease to which this section applies may, by notice in the approved form, served in the prescribed manner, on a person (other than the bankrupt lessee) who is registered as proprietor of an interest in the lease and any person who, by a caveat, claims to be entitled to an interest in the lease, require that person to state within a time specified for the purpose in the notice whether the person on whom the notice is so served claims the interest of the lessee or claims an interest derived therefrom.
(3) Subject to this section, the Registrar-General may record in the Register that a lease to which this section applies has been surrendered by operation of law where the lessor applies in the approved form for such a recording to be made, and:
(a) there is no person, other than the bankrupt lessee, registered as proprietor of an estate or interest in the lease and the lease is not affected by any caveat, or
(b) the lessor lodges with the application evidence that notice has been served as provided in subsection (2) upon every person (other than the bankrupt lessee) who appears from the Register to have or to claim an interest in the lease and that no person on whom notice has so been served has, within the time specified in the notice, claimed the interest of the lessee or (otherwise than as registered proprietor of a sub-lease) an interest derived therefrom,
and any caveat which would have the effect of prohibiting the recording of the surrender of the lease has lapsed or has been withdrawn.
(4) Before recording a surrender of lease under subsection (3), the Registrar-General shall record any sub-lease claimed pursuant to that subsection in the folio of the Register or on the registered lease that evidences the title of the lessor, and that folio or registered lease, as the case may be, shall thereupon evidence the title to the reversion expectant on the sub-lease.
(5) Where a lease to which this section applies is subject to a mortgage registered under the provisions of this Act the mortgagee may, by notice in the approved form, served in the prescribed manner, on any person (other than the bankrupt lessee) who is registered as proprietor of an interest in the lease and any person who, by caveat, claims to be entitled to an interest in the lease, require that person to state within a time specified for the purpose in the notice whether the person on whom the notice is so served claims the interest of the lessee or claims an interest derived therefrom.
(6) Subject to this section, the Registrar-General may record in the Register that a mortgage of a lease to which this section applies has been foreclosed where the mortgagee applies in the approved form for such a recording to be made, the application is in respect of the whole of the land subject to the mortgage, and:
(a) there is no person, other than the mortgagee and the bankrupt lessee, registered as proprietor of an estate or interest in the lease and the lease is not affected by any caveat, or
(b) the mortgagee lodges with the application evidence that notice has been served as provided in subsection (5) upon every person (other than the mortgagee and the bankrupt lessee) who appears from the Register to have or to claim an interest in the lease and that no person on whom notice has so been served claims the interest of the lessees or claims (otherwise than as registered proprietor of a sub-lease) an interest derived therefrom,
and any caveat which would have the effect of prohibiting the recording of the foreclosure of the mortgage has lapsed or has been withdrawn.
(7) Before recording a foreclosure of mortgage under subsection (6), the Registrar-General shall record, in the folio of the Register or on the registered lease that evidences the title of the lessee, any sub-lease claimed pursuant to that subsection that is binding on the mortgagee and that folio or registered lease shall thereupon evidence the title to the reversion expectant on the sub-lease.



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