sec.41Existing interests

### sec.41 Existing interests If transferable land was, immediately before becoming Torres Strait Islander land under this division, subject to an interest or benefited by an easement, the interest continues in force or the land continues to be benefited by the easement. Without limiting subsection (1) , if transferable land was, immediately before becoming Torres Strait Islander land under this division, the subject of— a 1985 Act granted lease or a new Act granted lease under the new Land Holding Act ; or a lease under the Land Act ; or a trustee (Torres Strait Islander) lease; the trustee of the land is, by operation of this section, substituted for the lessor as a party to the lease. The terms of a lease mentioned in subsection (2) are not affected by the operation of this section or any other provision of this Act and, for the purposes of those terms, the Land Act continues to apply to a lease under that Act, with all necessary modifications and such modifications as are prescribed, as if the lease continued to be such a lease and the trustee of the land were the lessor. However, subsections (5) to (5B) apply if, under an available State land agreement— an interest in transferable land (the previous interest ) ends on the grant of the land under this part; and a new interest granted by the trustee of the land is to have effect in substitution for the previous interest on the grant of the land. Despite subsections (1) to (3) , the previous interest ends on the grant of the land. However, if the previous interest was a lease under the Land Act (the previous lease ) and the interest that is to have effect in substitution for the previous lease is a lease under the Land Title Act (the new lease )— despite section 20 (3) and the available State land agreement, the previous lease does not end until the new lease is registered in the freehold land register; and the lessee of the new lease must lodge the new lease for registration in the freehold land register immediately after the grant of the land; and if a sublease was in force under the previous lease immediately before the grant of the land, on the grant of the land the sublease continues under the new lease; and subject to paragraph (e) and subsection (5B) , the new lease must be registered in the freehold land register subject to the same encumbrances to which the previous lease was subject, and in the same priorities, as recorded in the appropriate register immediately before the grant of the land; and any particulars recorded in the appropriate register for the previous lease immediately before the grant of the land must be recorded in the freehold land register for the land, to the extent the particulars are relevant to the land. If an easement that burdened the previous lease was in existence immediately before the grant of the land, on the grant of the land the easement— continues in existence, despite the Land Act , section 372 ; and burdens the land the subject of the new lease; and is taken to have been registered under the Land Title Act , part 6 , division 4 . Subsection (5) applies despite any other Act. In this section— interest includes— native title; and a right of a local government to access, occupy, use or maintain a facility on the land; and an interest in favour of the State or Commonwealth other than an interest that is not registered. s 41 amd 1991 No. 76 s 47 ; 1993 No. 85 s 169 ; 1994 No. 81 s 527 sch 5 ; 2008 No. 29 s 73 sch ; 2010 No. 39 s 324 ; 2011 No. 26 s 158 ; 2013 No. 2 ss 152 , 155 ; 2019 No. 17 s 92 ; 2021 No. 11 s 29 (sec.41-ssec.1) If transferable land was, immediately before becoming Torres Strait Islander land under this division, subject to an interest or benefited by an easement, the interest continues in force or the land continues to be benefited by the easement. (sec.41-ssec.2) Without limiting subsection (1) , if transferable land was, immediately before becoming Torres Strait Islander land under this division, the subject of— a 1985 Act granted lease or a new Act granted lease under the new Land Holding Act ; or a lease under the Land Act ; or a trustee (Torres Strait Islander) lease; the trustee of the land is, by operation of this section, substituted for the lessor as a party to the lease. (sec.41-ssec.3) The terms of a lease mentioned in subsection (2) are not affected by the operation of this section or any other provision of this Act and, for the purposes of those terms, the Land Act continues to apply to a lease under that Act, with all necessary modifications and such modifications as are prescribed, as if the lease continued to be such a lease and the trustee of the land were the lessor. (sec.41-ssec.4) However, subsections (5) to (5B) apply if, under an available State land agreement— an interest in transferable land (the previous interest ) ends on the grant of the land under this part; and a new interest granted by the trustee of the land is to have effect in substitution for the previous interest on the grant of the land. (sec.41-ssec.5) Despite subsections (1) to (3) , the previous interest ends on the grant of the land. (sec.41-ssec.5A) However, if the previous interest was a lease under the Land Act (the previous lease ) and the interest that is to have effect in substitution for the previous lease is a lease under the Land Title Act (the new lease )— despite section 20 (3) and the available State land agreement, the previous lease does not end until the new lease is registered in the freehold land register; and the lessee of the new lease must lodge the new lease for registration in the freehold land register immediately after the grant of the land; and if a sublease was in force under the previous lease immediately before the grant of the land, on the grant of the land the sublease continues under the new lease; and subject to paragraph (e) and subsection (5B) , the new lease must be registered in the freehold land register subject to the same encumbrances to which the previous lease was subject, and in the same priorities, as recorded in the appropriate register immediately before the grant of the land; and any particulars recorded in the appropriate register for the previous lease immediately before the grant of the land must be recorded in the freehold land register for the land, to the extent the particulars are relevant to the land. (sec.41-ssec.5B) If an easement that burdened the previous lease was in existence immediately before the grant of the land, on the grant of the land the easement— continues in existence, despite the Land Act , section 372 ; and burdens the land the subject of the new lease; and is taken to have been registered under the Land Title Act , part 6 , division 4 . (sec.41-ssec.6) Subsection (5) applies despite any other Act. (sec.41-ssec.7) In this section— interest includes— native title; and a right of a local government to access, occupy, use or maintain a facility on the land; and an interest in favour of the State or Commonwealth other than an interest that is not registered. - (a) a 1985 Act granted lease or a new Act granted lease under the new Land Holding Act ; or - (b) a lease under the Land Act ; or - (c) a trustee (Torres Strait Islander) lease; - (a) an interest in transferable land (the previous interest ) ends on the grant of the land under this part; and - (b) a new interest granted by the trustee of the land is to have effect in substitution for the previous interest on the grant of the land. - (a) despite section 20 (3) and the available State land agreement, the previous lease does not end until the new lease is registered in the freehold land register; and - (b) the lessee of the new lease must lodge the new lease for registration in the freehold land register immediately after the grant of the land; and - (c) if a sublease was in force under the previous lease immediately before the grant of the land, on the grant of the land the sublease continues under the new lease; and - (d) subject to paragraph (e) and subsection (5B) , the new lease must be registered in the freehold land register subject to the same encumbrances to which the previous lease was subject, and in the same priorities, as recorded in the appropriate register immediately before the grant of the land; and - (e) any particulars recorded in the appropriate register for the previous lease immediately before the grant of the land must be recorded in the freehold land register for the land, to the extent the particulars are relevant to the land. - (a) continues in existence, despite the Land Act , section 372 ; and - (b) burdens the land the subject of the new lease; and - (c) is taken to have been registered under the Land Title Act , part 6 , division 4 . - (a) native title; and - (b) a right of a local government to access, occupy, use or maintain a facility on the land; and - (c) an interest in favour of the State or Commonwealth other than an interest that is not registered.