Forfeiture and Validation of Leases Act 1905 (ACT)

Forfeiture and Validation of Leases Act 1905 (repealed)   

A1905-8

Republication No 6

Effective:  28 March 2007

Republication date: 28 March 2007

As repealed by A2006-38 s 507

Unauthorised version prepared by ACT Parliamentary Counsel’s Office

About this republication

The republished law

This is a republication of the Forfeiture and Validation of Leases Act 1905 (repealed) (including any amendment made under the Legislation Act 2001, part 11.3 (Editorial changes)). It also includes any commencement, amendment, repeal or expiry affecting the republished law to 28 March 2007. 

The legislation history and amendment history of the republished law are set out in endnotes 3 and 4.

Kinds of republications

The Parliamentary Counsel’s Office prepares 2 kinds of republications of ACT laws (see the ACT legislation register at type="disc">

authorised republications to which the Legislation Act 2001 applies

unauthorised republications.

The status of this republication appears on the bottom of each page.

Editorial changes

The Legislation Act 2001, part 11.3 authorises the Parliamentary Counsel to make editorial amendments and other changes of a formal nature when preparing a law for republication.  Editorial changes do not change the effect of the law, but have effect as if they had been made by an Act commencing on the republication date (see Legislation Act 2001, s 115 and s 117). The changes are made if the Parliamentary Counsel considers they are desirable to bring the law into line, or more closely into line, with current legislative drafting practice.

This republication does not include amendments made under part 11.3 (see endnote 1).

Uncommenced provisions and amendments

If a provision of the republished law has not commenced or is affected by an uncommenced amendment, the symbol  U  appears immediately before the provision heading.  The text of the uncommenced provision or amendment appears only in the last endnote.

Modifications

If a provision of the republished law is affected by a current modification, the symbol  M  appears immediately before the provision heading.  The text of the modifying provision appears in the endnotes.  For the legal status of modifications, see Legislation Act 2001, section 95.

Penalties

The value of a penalty unit for an offence against this republished law at the republication date is—

(a)if the person charged is an individual—$100; or

(b)if the person charged is a corporation—$500.

Forfeiture and Validation of Leases Act 1905 (repealed)

Contents

Page

Part 1Preliminary

1. Name of Act  2

Part 2Forfeiture of leases

1. Definitions for pt 2  3

2. Application of pt 2  3

3. Restrictions on re-entry or forfeiture  4

4ANotices under s 4 (1)  5

1. Protection of under-lessees  5

Part 3Invalid leases under powers

1. A         Pt 3 does not bind Territory  7

2. Lease taken to be granted in intended exercise of power  7

3. Certain invalid leases to be construed as agreements to lease              7

4. Certain leases validated  8

5. Acceptance of rent taken to be confirmation of lease  8

6. Lessee bound to accept confirmation  9

7. Saving of other rights  9

Part 4Miscellaneous

1. Approved forms  10

Endnotes

1. About the endnotes  11

2. Abbreviation key  11

3. Legislation history  12

4. Amendment history  13

5. Earlier republications  15

Forfeiture and Validation of Leases Act 1905 (repealed)

An Act to grant relief against the exercise of rights of re-entry and forfeiture under leases, and against defects invalidating certain leases, and for other purposes

Part 1Preliminary

1. Name of Act

   This Act is the Forfeiture and Validation of Leases Act 1905.

Part 2Forfeiture of leases

1. Definitions for pt 2

   NoteA definition applies except so far as the contrary intention appears (see Legislation Act 2001, s 155).

   In this part:

   lease includes—

   (a)an original or derivative under-lease; and

   (b)an agreement for a lease if the lessee has become entitled to have the lease granted.

   lessee includes an original or derivative under-lessee.

   lessor includes an original or derivative under-lessor.

   under-lease includes an agreement for an under-lease if the under‑lessee has become entitled to have the under-lease granted.

   under-lessee includes a person deriving title under or from an under-lessee.

   under-lessor includes a person deriving title under or from an under-lessor.

2. Application of pt 2

   (1)This part applies to a lease or under-lease despite any provision of the lease to the contrary.

   (2)However, this part does not apply to a residential tenancy agreement under the Residential Tenancies Act 1997.

3. Restrictions on re-entry or forfeiture

   (1)A right of re-entry or forfeiture under a lease for breach of a provision of the lease is not enforceable by proceeding or otherwise unless—

   (a)the lessor gives the lessee a notice—

   (i)specifying the breach; and

   (ii)requiring the lessee to pay compensation for the breach; and

   (iii)if the breach can be remedied—requiring the lessee to remedy the breach; and

   (b)the lessee fails within a reasonable time after being given the notice—

   (i)to pay reasonable compensation for the breach; and

   (ii)if the breach can be remedied—to remedy the breach.

   NoteIf a form is approved under s 12 (Approved forms) for a notice, the form must be used.

   (2)If the lessor under a lease seeks to enforce, by proceeding or otherwise, a right of re-entry or forfeiture under the lease for breach of a provision of the lease, the lessee may apply to the Supreme Court for relief.

   (3)If the lessee applies to the Supreme Court for relief, the court may grant or refuse relief.

   (4)If the Supreme Court grants relief, it may do so on the conditions it considers appropriate, including the granting of an injunction to restrain similar breaches of the lease in the future.

   (5)This section does not apply in relation to—

   (a)a lease granted by the Territory; or

   (b)a lease for a term of 1 year or less; or

   (c)a provision of a lease—

   (i)against assigning, under-leasing or parting with possession, or disposing, of the leased land; or

   (ii)for forfeiture on the bankruptcy of the lessee; or

   (d)the taking in execution of the lessee’s interest; or

   (e)re-entry or forfeiture for nonpayment of rent.

   (6)For this section, the term of a lease limited to continue only while the lessee does not breach the lease is taken to be the term for which the lease could continue apart from a breach.

4ANotices under s 4 (1)

(1)A notice under section 4 (1) must be in writing.

(2)If the lessee is not in the ACT, the notice may be given to the lessee by serving it personally on the lessee’s lawyer or agent in the ACT.

(3)Subsection (2) does not limit any other Territory law that authorises service of the notice in another way.

1. Protection of under-lessees

   (1)If the lessor under a lease seeks to enforce, by proceeding or otherwise, a right of re-entry or forfeiture under the lease for breach of a provision of the lease, a person (the interested person) claiming an interest in all or part of the leased property as under-lessee may apply to the Supreme Court for relief.

   (2)If the interested person applies to the Supreme Court for relief, the court may grant or refuse relief.

   (3)Without limiting subsection (2), the Supreme Court may stay any proceeding brought by the lessor to enforce the right of re-entry or forfeiture under the lease and vest all or any part of the leased property in the interested person as under-lessee, or in any other capacity, for a term not longer than the term of the lease.

   (4)If the Supreme Court grants relief, it may do so on the conditions it considers appropriate.

   (5)For this section, the term of a lease limited to continue only while the lessee does not breach the lease is taken to be the term for which the lease could continue apart from a breach.

Part 3Invalid leases under powers

5APt 3 does not bind Territory

(1)This part does not bind the Territory.

(2)This section has effect despite the Legislation Act 2001, section 121 (Binding effect of Acts).

1. Lease taken to be granted in intended exercise of power

   If—

   (a)a valid power of leasing is vested in or may be exercised by a person granting a lease; and

   (b)the lease cannot have effect, or continue to have effect, according to its terms independently of the power (because of the ending of the estate or interest of the person or otherwise);

   the lease is, for this part, taken to be granted in the intended exercise of the power, even though the power is not mentioned in the lease.

2. Certain invalid leases to be construed as agreements to lease

   (1)If in the intended exercise of any power of leasing, whether derived under a law in force in the ACT or under any instrument lawfully creating the power, a lease is granted that is, by reason of the nonobservance or omission of some condition or restriction, or by reason of any other deviation from the terms of the power, invalid as against the person entitled after the determination of the interest of the person granting the lease to the reversion, or against other the person who, subject to any lease lawfully granted under the power, would have been entitled for any estate to the hereditaments comprised in the lease, the lease, in case the same have been made bona fide, and the lessee named in the lease, his or her executors, administrators, or assigns (as the case may require) have entered under the lease, shall be considered in equity as a contract for a grant at the request of the lessee, his or her executors, administrators, or assigns (as the case may require), of a valid lease under the power, to the like purport and effect as the invalid lease, save so far as any variation may be necessary to comply with the terms of the power; and all persons who would have been bound by a lease lawfully granted under the power shall be bound in equity by the contract.

   (2)However, no-one is entitled under the equitable contract mentioned in subsection (1) to obtain a variation of the lease if the people who would have been bound by the contract are willing to confirm the lease without variation.

3. Certain leases validated

   (1)This section applies if—

   (a)a lease granted in the intended exercise of a valid power of leasing is invalid because, when the lease was granted, the person granting the lease could not lawfully grant it; and

   (b)the person was at least 18 years old at that time; and

   (c)the person can, at a later time, lawfully grant the lease or a similar lease under the power.

   (2)If this section applies, the lease is taken to have been granted by the person under the power at the later time.

   (3)This part applies to the lease.

4. Acceptance of rent taken to be confirmation of lease

   (1)This section applies if, on or before acceptance of rent under an invalid lease, a written receipt, memorandum or note confirming the lease is signed by the person accepting the rent or by someone authorised by that person.

   (2)The acceptance of the rent is, as against the person accepting the rent, taken to be a confirmation of the lease.

5. Lessee bound to accept confirmation

   (1)This section applies if—

   (a)a person (the first person) is in possession of land under an invalid lease; and

   (b)someone else (the other person) is entitled, subject to the interest of the first person in the land, to possession of the land or to receipt of its rents and profits; and

   (c)the other person can confirm the lease without variation.

   (2)The first person (or a person deriving title to the lease under or from the first person), or anyone else who would have been bound by the lease if it had been valid, must, if asked by the other person, accept confirmation of the lease by the other person.

   (3)The confirmation may be made by a written memorandum or note signed by the other person and the person accepting the confirmation.

   (4)On the confirmation of the lease, the lease is taken to have been valid from the time it was granted.

6. Saving of other rights

   This part does not affect the rights of anyone in relation to a breach of a provision of an invalid lease.

   Example

   Rights of a person named as lessor of an invalid lease to re-entry or forfeiture for breach of a provision of the lease.

Part 4Miscellaneous

1. Approved forms

   (1)The registrar-general may, in writing, approve forms for this Act.

   (2)If the registrar-general approves a form for a particular purpose, the approved form must be used for that purpose.

   (3)An approved form is a notifiable instrument.

   NoteA notifiable instrument must be notified under the Legislation Act 2001.

Endnotes

1. About the endnotes

   Amending and modifying laws are annotated in the legislation history and the amendment history.  Current modifications are not included in the republished law but are set out in the endnotes.

   Not all editorial amendments made under the Legislation Act 2001, part 11.3 are annotated in the amendment history. Full details of any amendments can be obtained from the Parliamentary Counsel’s Office.

   Uncommenced amending laws and expiries are listed in the legislation history and the amendment history.  These details are underlined.  Uncommenced provisions and amendments are not included in the republished law but are set out in the last endnote.

   If all the provisions of the law have been renumbered, a table of renumbered provisions gives details of previous and current numbering. 

   The endnotes also include a table of earlier republications.

2. Abbreviation key

am = amended	ord = ordinance
amdt = amendment	orig = original
ch = chapter	par = paragraph/subparagraph
def = definition	pres = present
dict = dictionary	prev = previous
disallowed = disallowed by the Legislative	(prev...) = previously
Assembly	pt = part
div = division	r = rule/subrule
exp = expires/expired	renum = renumbered
Gaz = gazette	reloc = relocated
hdg = heading	R[X] = Republication No
IA = Interpretation Act 1967	RI = reissue
ins = inserted/added	s = section/subsection
LA = Legislation Act 2001	sch = schedule
LR = legislation register	sdiv = subdivision
LRA = Legislation (Republication) Act 1996	sub = substituted
mod = modified/modification	SL = Subordinate Law
o = order	underlining = whole or part not commenced
om = omitted/repealed	or to be expired

1. Legislation history

   This Act was originally a NSW Act—the Forfeiture and Validation of Leases Act 1905 No 8 (NSW).

   The Act was in force in NSW immediately before 1 January 1911 (the date of establishment of the ACT) and was continued in force by the Seat of Government Acceptance Act 1909 (Cwlth), s 6.

   Under the Seat of Government (Administration) Act 1910 (Cwlth), s 4 the Act had effect in the ACT as if it were an ACT law (subject to ordinances made under the Seat of Government (Administration) Act 1910).

   The Australian Capital Territory (Self-Government) Act 1988 (Cwlth), s 34 (4) converted most former NSW laws in force in the ACT into ACT enactments. This allowed the ACT Legislative Assembly to amend and repeal the laws. This Act was converted into an ACT enactment on 11 May 1989 (self-government day).

   Under the Interpretation Act 1967 (repealed), s 65 all former NSW Acts in force in the ACT immediately before 10 November 1999 (including this Act) became, for all purposes, laws made by the ACT Legislative Assembly. This completed the process of making former NSW Acts fully into ACT laws.

   Before 11 May 1989, ordinances commenced on their notification day unless otherwise stated (see Seat of Government (Administration) Act 1910 (Cwlth), s 12).

   NSW legislation

   Forfeiture and Validation of Leases Act 1905 No 8

   assented to 21 August 1905
   commenced 21 August 1905

   as amended by

   Commonwealth legislation

   New South Wales Acts Application Ordinance 1984 No 41 sch 2 pt 15

   assented to 2 August 1984
   commenced 2 August 1984

   Legislation after becoming Territory enactment

   Acts Revision (Position of Crown) Act 1993 No 44 sch 1

   notified 27 August 1993 (Gaz S165)

   commenced 27 August 1993 (s 2 and Gaz S 165)

   Land Titles (Consequential Amendments) Act 1995 No 54 sch pt 1

   notified 20 December 1995 (Gaz 1995 No S313)
   ss 1-3 commenced 20 December 1995 (s 2 (1))
   sch pt 1 commenced 20 June 1996 (s 2 (3))

   Statute Law Amendment Act 2001 (No 2) No 56 sch 3 pt 3.22 amdts 3.278-3.298

   notified 5 September 2001 (Gaz 2001 No S65)
   s 1, s 2 commenced 5 September 2001 (s 2 (1))
   sch 3 pt 3.22 amdts 3.278, 3.279, 3.282-3.298 commenced 5 September 2001 (s 2 (1))
   sch 3 pt 3.22 amdts 3.280, 3.281 commenced 12 September 2001 (s 2 (2))

   Legislation Amendment Act 2002 No 11 pt 2.23

   notified LR 27 May 2002
   s 1, s 2 commenced 27 May 2002 (LA s 75)
   pt 2.23 commenced 28 May 2002 (s 2 (1))

   as repealed by

   Civil Law (Property) Act 2006 A2006-38 s 507

   notified LR 28 September 2006
   s 1, s 2 commenced 28 September 2006 (LA s 75 (1))
   s 507 commenced 28 March 2007 (s 2 and LA s 79)

   
   
   

2. Amendment history

   The New South Wales Acts Application Act 1984 (previously the New South Wales Acts Application Ordinance 1984), sch 2, pt 15 sets out the text of this Act in an amended form and provided for the amended form to apply as the text of the Act in force in the ACT.  This endnote, therefore, only details amendments made after the enactment of the 1984 Act.

   Title

   titleam 2001 No 56 amdt 3.278

   Name of Act

   s 1sub 2001 No 56 amdt 3.279

   Definitions for pt 2

   s 2ins 2001 No 56 amdt 3.280

   Application of pt 2

   s 3sub 2001 No 56 amdt 3.280

   Restrictions on re-entry or forfeiture

   s 4sub 2001 No 56 amdt 3.280, amdt 3.281

   Notices under s 4 (1)

   s 4Ains 2001 No 56 amdt 3.281

   Protection of under-lessees

   s 5sub 2001 No 56 amdt 3.282

   Pt 3 does not bind Territory

   s 5Ains 1993 No 44 sch 1

   sub 2001 No 56 amdt 3.283; 2002 No 11 amdt 2.46

   Lease taken to be granted in intended exercise of power

   s 6sub 2001 No 56 amdt 3.284

   Certain invalid leases to be construed as agreements to lease

   s 7am 1995 No 54 sch pt 1

   am 2001 No 56 amdts 3.285-3.292

   Certain leases validated

   s 8sub 2001 No 56 amdt 3.293

   Acceptance of rent taken to be confirmation of lease

   s 9sub 2001 No 56 amdt 3.294

   Lessee bound to accept confirmation

   s 10sub 2001 No 56 amdt 3.295

   Saving of other rights

   s 11sub 2001 No 56 amdt 3.296

   Pt 4

   hdgins 2001 No 56 amdt 3.298

   Approved forms

   s 12om 2001 No 56 amdt 3.297

   reloc from Forfeiture of Leases Act 1901 by 2001 No 56 amdt 3.299

   (4)-(7) exp 12 September 2002 (s 12 (7))

3. Earlier republications

   Some earlier republications were not numbered. The number in column 1 refers to the publication order. 

   Since 12 September 2001 every authorised republication has been published in electronic pdf format on the ACT legislation register.  A selection of authorised republications have also been published in printed format. These republications are marked with an asterisk (*) in column 1.  Electronic and printed versions of an authorised republication are identical.

Republication No	Amendments to	Republication date
1	Ord 1984 No 41	31 August 1992
2	Act 1993 No 44	31 January 1994
3	Act 2001 No 56	21 February 2002
4	Act 2002 No 11	30 May 2002
5	A2002-11	13 September 2002

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