Transfer of Oyster Lease Information Kit
When is a transfer of an oyster lease required?The transfer of an oyster lease is required when the current lessee sells a lease to another party. The transfer of the lease, if consented to by the Minister, formalises the change in ownership of the lease. A joint application from both parties is required.
Transferee or transferor?The transferor is the individual or corporation owning the lease and making application to transfer the lease to another party. The transferee is the individual or corporation to whom the lease is to be transferred.
When can an oyster lease be transferred?A lease may be transferred at any time whilst the lease is current. If the lease is about to expire, a renewal application should be submitted with the transfer application. A lease cannot be transferred if it has expired, been surrendered or cancelled. If a mortgage or other interest (encumbrance) is noted on the lease, a transfer cannot proceed without the written consent of any party with an interest in the lease (financial or otherwise). If a transferor or transferee has overdue rent, contributions or other amounts payable to the Minister in respect to that or any other lease, the application may be rejected.
How is an application duly made to transfer an oyster lease?
- Complete the transfer application form. This involves filling out every section of the form in clear and legible print. Ensure all applicants (transferees and transferors) sign the form and have it witnessed by an adult person or persons who are not a party to the transfer. An incomplete application form will result in the rejection of the application.
- Attach the current original lease documents. If the lease documents are not supplied with the application form the application will be rejected. If the deeds are lost or destroyed, the current lessee(s) must complete the statutory declaration on the back of the application form and replacement documents applied for with the relevant prescribed fee (see fee schedule).
- Submit all payments with the application. The applicant must submit the prescribed transfer application fee (see fee schedule) and any other payment required with your application. If payment is made at a local Fisheries office, a copy of the receipt must be attached to the application. Any outstanding account matters relating to any aquaculture lease held by either party should be settled prior to an application being lodged.
- Stamp Duty – see “Does the transfer of an oyster lease attract Stamp Duty?”
Structures on, or partly on, an oyster lease.The application form asks for information about the presence of structures on the lease, including buildings, sheds, work platforms, fences etc. If a structure exists which is not recorded on the department’s files, an inspection may be arranged. A transfer application may not proceed if a lease has an illegal structure on it. Illegal structures will need to be removed, or necessary approvals gained, prior to the transfer being completed. Alternatively, NSW DPI may request a signed agreement from the transferee to undertake any necessary work, which may include the removal of the structure.
Photographs of ANY structure located wholly or partly within the lease must be included with the application. The application must include at least two photographs of each structure taken at low tide clearly detailing the type of structure, its location within the lease, size and condition. Photographs are to be labelled on the back with the lease number and date.
Will the area have to be surveyed?Generally not, however, if it has become apparent at any time that the lease area is inconsistent with the lease plan the Minister may require the area to be surveyed at the expense of the applicant(s) before the transfer proceeds.
What should the transferee request for lease tenancy?A lease may be held under either a “tenancy in common” or “joint tenancy” agreement. If the lease will be transferred to two or more individuals, the section on tenancy in the application form must be completed by the transferee. Under joint tenancy, upon the death of one of the lessees, the lease is automatically transferred to any surviving lessees. Under tenancy in common, the portion of the lease held by the deceased lessee is transferred according to the deceased’s will and/or at the direction of the executor of the deceased’s estate.
If either option is not selected on the transfer application form, “tenancy in common” is allocated. Tenancy arrangements do not apply to a lease held solely by an individual or company. An adjustment to the tenancy arrangement may be made by submitting a written request at any time during the currency of the lease.
Does the transfer of an oyster lease attract stamp duty?Yes. The transfer of an oyster lease is a dutiable transaction and stamp duty is payable to the Office of State Revenue (OSR). The purchase price must be completed on the application form. To assist industry, NSW DPI acts as an agent for the OSR and stamp duty can be paid through NSW DPI by attaching:
- a separate cheque for the duty amount made payable to the “Commissioner of State Revenue”, and lodging it with the application. Do not pay stamp duty with the credit card facility provided; and
- a Certified Copy of Client Identification.
Alternatively, the applicant may attend the nearest Office of State Revenue, pay the duty and have the transfer application form stamped.
Who provides the Certified Copy of Client Identification?
All transferees must provide a certified copy of client identification.
What is a Certified Copy of Client Identification?A certified copy is a true copy of an original document that has been sighted and certified by an acceptable person and noted as follows:
‘I certify that I have sighted the original document and this is a true copy of it.’
The certification must have the certifier’s name, title, registration number (where applicable) and be signed and dated.
Who can certify?
Acceptable people who may certify documents for the purpose of client identification are:
- Legal practitioner
- Commissioner for Declarations
- Licensed conveyancer
- Member of Parliament
- Justice of the Peace (JP)
- Police officer
- Certified practising accountant
- Chartered Accountant
- Minister of religion
- Medical practitioner
- Officers of OSR
- Public notary
- Veterinary practitioner
What is a Client Identification document?
For individuals, evidence of their date of birth is required. A certified copy of one of the following documents must be provided:
- Australian Driver Licence (current)
- Australian Birth Certificate
- Passport (current)
- Firearms Licence (current)
- Proof of Age Card
- Australian Citizenship Certificate
- Foreign Passport and Visa used for entry into Australia
For companies, evidence of the ABN/ACN/ARBN number is required. If this information is displayed on the transfer application no further evidence is required.
Stamp duty formula & directionsPayment of stamp duty relates only to the sale price of the lease not including any consideration for material or stock held on the lease. To work out the dutiable amount payable to the OSR, refer to the table below.
To make stamp duty payment through DPI NSW, submit a separate cheque payable to the “Commissioner of State Revenue” and lodge it with application form. The Office of State Revenue may not accept a nil value.
Stamp duty payable (Min $10.00)
$0 - $800
$10.00 minimum fee applies
$801 - $14,000
$1.25 for each $100 or part thereof
$14,001 - $30,000
$175.00 plus $1.50 for each $100 or part thereof over $14,000
$30,001 - $80,000
$415.00 plus $1.75 for each $100 or part thereof over $30,000
Penalties apply for false stamp duty declarations
Note: For further information regarding stamp duty and Client Identification documents please refer to the Office of State Revenue website - www.osr.nsw.gov.au
What happens with the lease security arrangement?If the existing lease security arrangement is a cash deposit the transferor will be entitled to a refund once the lease is transferred. If the lease was under a guarantee or other financial arrangement the transferor will amend or cancel that arrangement following the transfer of the lease. If the lease is covered under the non-refundable annual contribution no refund or adjustment will be issued. In all cases the transferee is required to elect a lease security arrangement for the lease. If no lease security arrangement is nominated by the transferee the non-refundable annual contribution will be allocated.
What happens to fees already invoiced to the transferor for the current billing period?Rent and other contributions in respect of the lease that have been charged to the transferor’s account for the current billing period are not refundable or transferable, as these are payable in advance. If the transferor wishes to recoup any fees already billed to his/her account these should form part of the consideration (sale price) of the lease. After the transfer is completed, lease fees and rent will be redirected to the new owner of the lease in the next annual billing period.
Can a lease be transferred to any person?
- No. The transferee must be an individual or a corporation acceptable to the Minister by meeting the following criteria. The transferee must be:
- An individual, corporation or director of a corporation not disqualified from holding an aquaculture permit under section 161 of the Fisheries Management Act, 1994.
- An individual or corporation with no overdue rent, contributions or other amounts payable to the Minister in respect of any aquaculture lease.
- An individual or corporation who, in the Minister's opinion, is not considered to have a poor record of managing one or more other leased areas.
Does the transferee have to hold an aquaculture permit?Any individual or corporation may be considered as an acceptable transferee providing they meet the minimum criteria as set out above. All aquaculture leases must be authorised by a current Class A Aquaculture Permit. If the transferee is not the holder of a current permit, they may either:
- nominate an aquaculture permit upon which the lease will be authorised and apply for the appropriate subletting approval; or
- lodge a duly made application for a Class A aquaculture permit.
The ownership of a lease alone does not authorise the lessee to carry out aquaculture so any transfer application will not be finalised until an appropriate arrangement can be made regarding an aquaculture permit.
How can the transfer application fee be paid?There are several methods available for the payment of fees.
- Submit a cheque or money order with your application, made payable to Department of Trade & Investment.
- Pay at any office of NSW DPI using the methods available there and attach the receipt to the application.
- Complete the credit card section on the application form to make payment by credit card.
- For stamp duty refer to the section on Stamp Duty Formula and directions.
Is the processing fee refundable if the application is withdrawn or refused?If an application to transfer an aquaculture lease is withdrawn or refused, NSW DPI is not required to refund the processing fee. The department may, however, refund the whole or part of the fee in such circumstances as considered appropriate.
Where can more information about transferring an oyster lease be obtained?More information about transferring an oyster lease may be obtained from Aquaculture Administration at Port Stephens on 02 4982 1232.
Information about the Aquaculture Lease Area Condition Sstatement(ALAC)
What is the purpose of an ALAC?
The purpose of the ALAC is for all parties subject to the lease transfer to identify and agree on the condition of a lease area or work required, prior to the transfer being progressed. The ALAC aims to improve the time taken to process oyster lease transactions. The lease condition statements relate mainly to neat and tidy and marking provisions.
Where do I find information about lease condition standards?Standards for lease marking, signs, neat and tidy, other structures, storage and mooring can be found in the NSW Oyster Industry Sustainable Aquaculture Strategy (OISAS), at NSW DPI Fisheries Offices or by contacting Aquaculture Administration on 02 4982 1232.
What parts of the form must I complete?All condition statements 1 to 11 must be answered and the ALAC declaration signed and dated. Photographs of the lease area with the lease number, date and time they were taken written on them must be attached. If the ALAC is incomplete the application will be rejected and returned to the applicant.
What if I answer No to any of the lease condition statements?Where any one item from 1 - 11 on the ALAC is answered No the transfer application will be rejected unless there is an approved work plan. To obtain an approved work plan complete a work plan form. After completing the work plan form the District Fisheries Officer for the area where the lease is situated will need to approve and sign the work plan – always leave a message if the office is unattended. The approved work plan must then be submitted with the rest of the transfer application to NSW DPI Aquaculture Administration at Port Stephens. Alternatively, contact Aquaculture Administration on 02 4982 1232.
Who has to sign the ALAC declaration?
- All current aquaculture permit holders who have the lease number listed on their aquaculture permit, and
- All current lessees (If two or more people own the lease they all must sign), and
- All parties to the lease transfer including prospective lessees and aquaculture permit holders.
If the ALAC declaration is not signed by all parties the application will be returned as incomplete.
I do not agree with the answers on the lease condition statement. Do I have to sign it?
- sign it until you agree with it.
- Talk with all parties involved and make it a truthful condition statement BEFORE anyone signs the declaration.
- If an agreement over the lease condition statement can not be made you can engage the District Fisheries Officer to complete the statement for all parties to sign. A fee of $250 is payable to NSW DPI for this service.
How do I get the District Fisheries Officer to complete the ALAC?
- Contact the NSW DPI District Fisheries Office for the area where the lease is situated.
- Once the ALAC has been completed and signed by the District Fisheries Officer it will be sent to all relevant parties for signature. All people involved in the transaction MUST sign the statement and submit it with the rest of the transfer application.
What happens if the condition statement is false or misleading?
Where false or misleading information is provided penalties may apply and the work may be completed by NSW DPI and costs recovered. Action may also be taken to have the lease and aquaculture permit suspended or cancelled.
This checklist will help you to lodge a successful application.
- Has the applicant completed every section of the application form?
- Is the application form signed by both transferor(s) and transferee(s) and witnessed by a person or persons who are not a party to the transaction?
- Does the transferee hold an aquaculture permit to authorise the lease, a subletting arrangement with another permit holder or an application for an aquaculture permit lodged with NSW DPI?
- Is the processing fee (made payable to Industry & Investment NSW), or receipt of such fee, or credit card details attached to the application? (see fee schedule)
- Is the lease current at the time of application?
- Has stamp duty been paid at the OSR and receipt attached to the application, or a separate payment for the dutiable amount submitted with this application?
- Have any outstanding account matters for either party been settled prior to the lodgement of the application?
- Are the lease documents attached, or has the statutory declaration for lost or destroyed documents been completed and replacement fee submitted?
- If a mortgage or other interest is noted on the lease documents, has the written consent of the mortgagee or other party been submitted with the application?
- If you have answered No to any of the lease condition statements 1 – 11 on the ALAC is an approved work plan attached?