Do I need mortgagee consent to register my lease?

Whether you need a simple retail lease, complex agreements for large commercial premises or high-volume leasing work for a shopping centre, the leasing lawyers at Kells have the experience to assist you.

It is recommended that all leases with a term, including option terms, of more than 3 years are registered with NSW Land Registry Services (‘NSWLRS’).

NSWLRS has strict requirements which must be met in order for leases to be registered.

This includes requirements in relation to the form of the lease itself. For example, which pages the lessor (‘landlord’) and lessee (‘tenant’) need to have signed.

In addition, for a lease to be lodged for registration with NSWLRS, written consent from any mortgagee recorded on the title of the property is required.

How do I get the mortgagee’s consent?

When acting for landlords in relation to a lease, as part of the process of registering the lease, Kells will request consent from the mortgagee, which is generally a bank.

Each bank differs in their requirements for providing the consent.

Generally, a bank will only require a copy of the fully executed lease, being the lease signed by both the landlord and tenant. Some banks may require an additional form to be signed by the landlord and tenants.

The bank will usually charge an administration fee for providing the consent, which is generally taken directly from a bank account nominated by the landlord. The standard position under both commercial and retail leases is that while the tenant is responsible for the NSWLRS lease registration fees, the landlord will pay their own fees for obtaining their mortgagee’s consent.

While the form differs slightly between them, each bank will have a standard form consent that they will provide.

Once received, a copy of the consent from the mortgagee is then uploaded by the landlord’s lawyer alongside a copy of the signed lease to the online property platform PEXA. It is then lodged for registration with NSWLRS.

Do I still need the mortgagee’s consent if I have paid off my mortgage?

If a landlord has repaid their mortgage in full and the mortgage has not formally been discharged, the mortgage will remain registered on the title.

If the mortgage is still registered on the title of the property, the mortgagee’s consent will therefore be required in order to register the lease.

Each bank has their own discharge form to be completed to remove the mortgage from title. As with providing their mortgagee consent, banks will generally charge administration fees in doing so.

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