86Surrender of lease

86 Surrender of lease (1) Where any registered lease is intended to be surrendered and the surrender is effected otherwise than through the operation of a surrender in law or than under any law for the time being in force relating to insolvent or bankrupt estates, there may be endorsed upon the lease or on the counterpart thereof the word ‘Surrendered’ with the date of the surrender or a memorandum of surrender may be executed. (2) The endorsement or memorandum of surrender shall be signed by the lessee and by the lessor as evidence of the acceptance of the surrender, and shall be attested by a witness. (3) Where the Commonwealth is the lessor, the endorsement or memorandum of surrender may be signed— (a) in the case of national land—by the Commonwealth Minister for the time being administering the National Land Ordinance 1989; and (b) in the case of Territory land—by the Minister for the time being administering the Acts relating to the leasing of Crown land in the ACT; and that signature shall constitute and be evidence of the acceptance by the Commonwealth of the surrender. (4) If an owners corporation surrenders the lease on behalf of a lessee under the Unit Titles Act 2001, section 167A, the endorsement or memorandum of surrender must be— (a) signed by the owners corporation; and (b) accompanied by evidence of the resolution of the owners corporation mentioned in the Unit Titles Act 2001, section 167A (2) (c). (5) Subject to this section, the registrar-general shall, upon production to him or her of— (a) the lease or counterpart endorsed in accordance with this section; or (b) a memorandum of surrender executed in accordance with this section; enter in the register a memorial recording the date of the surrender. (6) Upon the making of the entry required by subsection (5) the interest of the lessee in the land shall revest in the lessor or in the person in whom, having regard to intervening circumstances (if any), the land would have vested if the lease had not been executed. (7) No lease subject to a registered mortgage or encumbrance shall be surrendered without the consent of the mortgagee or encumbrancee. (8) Where a lease subject to a registered mortgage is intended to be surrendered with a view to the acceptance of a new lease in its place, the registrar-general shall not enter in the register a memorial of the surrender unless he or she is satisfied, on reasonable grounds— (a) that the mortgage has been discharged; or (b) that— (i) the mortgagee consents to the continuation of the mortgage under section 91B; and (ii) the priority of the mortgage relative to each other mortgage (if any) continuing in force under section 91B, can be clearly defined; and (iii) the land comprised in the new lease includes all or part of the land comprised in the lease to be surrendered. (9) Where a lease out of which any registered sublease is derived is intended to be surrendered with a view to the acceptance of a new lease in place thereof, the endorsement to be made upon the lease or the counterpart thereof shall be the words ‘Surrendered with a view to the acceptance of a new lease’, with the date of the surrender or, if a memorandum of surrender is executed, the memorandum shall include the words ‘This surrender is with a view to the acceptance of a new lease’. (10) Upon production to him or her of the endorsement or memorandum of surrender, the registrar-general shall not make any entry in the register until there is presented for registration a new lease from the same lessor to the same lessee of the whole or part of the land comprised in the surrendered lease which new lease is, subject to registration of the surrender of the surrendered lease, in every respect entitled to registration. (11) Immediately after making an entry in the register of the surrender of a lease pursuant to an endorsement or memorandum of surrender made in accordance with subsection (9), the registrar-general shall register the new lease and shall endorse thereon a memorial of every sublease which is continued in force by section 91A, and shall include in the memorial the words ‘Continued in force by the Land Titles Act 1925, section 91A’, or words to the like effect. (12) For subsection (11), a reference in a memorial to section 90A is taken to be a reference to section 91A.