Transmit aquaculture lease

Joint tenancy

On the death of a lessee, the lease is automatically transmitted to any surviving lessees. It does not become part of the Estate.

A lease must be held by a partnership in order for it to be held under a joint tenancy arrangement.

Tenancy in common

On the death of a lessee, the leases held by the deceased lessee are transmitted according to their last will and testament following a grant of probate. If a lessee died intestate (without a will), the transmission of the leases will occur following the issuance of the letters of administration.

Leases held by an individual or a company must be held under a tenancy in common arrangement.

The following documentation is required for a transmission of a joint tenancy lease:

• A certified copy of the death certificate.
• The original lease documents. If the lease documents have been misplaced, the surviving lessees can submit a statutory declaration to replace the lease documents (fee applies).
• Payment of the prescribed fee (refer to the aquaculture fee schedule).

There is an application form available that can help you with the above process.

The following documentation is required for a transmission of a common tenancy lease:

• A certified copy of the death certificate.
• The original lease documents. If the lease documents have been misplaced, the Executor of the Estate can submit a statutory declaration to replace the lease documents (fee applies).
• Payment of the prescribed fee (refer to the aquaculture fee schedule).
• A certified copy of the last will and testament, as well as the grant of probate or letters of administration.

There is an application form available that can help you with the above process.

When the department receives the lease transmission documentation, it will send you an invoice for the prescribed fee. Payment options will be provided on the invoice.

A lease can be transmitted after the death of a lessee, at any time while the lease is current. If the lease is about to expire, a renewal application will need to be submitted with the transmission documentation. A lease cannot be transmitted if it has expired or has been otherwise terminated.

For joint tenancy leases, the leases must be transmitted to the surviving lessees.

For common tenancy leases, it is possible to transfer the lease directly to another party, as long as the lease is not specifically bequeathed to a person in the will. The beneficiary or Executor will need to approve any such transfer.

If a lease is specifically bequeathed to a person in the will (the lease particulars are detailed in the will), the lease must first be transmitted to the beneficiary before it can be transferred to another party.

No. If the beneficiary does not hold an aquaculture permit, then they can:

• Apply to sublet the leases to another permit holder, or
• Apply for a new class A aquaculture permit.

A transmission will not be finalised until an appropriate arrangement is in place to ensure the lease is authorised by an aquaculture permit.

Holding aquaculture leases can carry significant financial and legal responsibilities. If the beneficiary does not wish to retain the leases that have been left to them, they may apply to transfer the leases to another party.

If the leases have not been specifically bequeathed to the beneficiary, the transfer application can occur in place of the transmission application. If, however, the leases have been specifically bequeathed to the beneficiary, the transmission must occur first before the leases can be transferred.

The department will check that there are no issues that may hold up the progression of the transmission (for example, overdue debt on the aquaculture account).

For common tenancy leases, the department cannot finalise the transmission without the grant of probate or letters of administration. These can take some time to be processed by the relevant authorities.

Once the transmission can be progressed, the department will update its records with the details of the transmission. The lease documents will be endorsed with the change in ownership and returned to the new lessee. The permit holders will receive an updated copy of their permit.

For estimated transaction processing times, refer to the aquaculture transactions fact sheet.

Any lease and permit fees that remain due and payable will become the responsibility of the Executor of the Estate. If they are not paid, debt recovery action against the Estate may occur.

The lease and permit fees for the next billing period (from 1 July) will be directed to the new lessee and permit holder.

For information about subletting an aquaculture lease, contact aquaculture administration via email at aquaculture.administration@dpird.nsw.gov.au

This checklist will help you to lodge a successful transmission request.

• Have you provided DPIRD with a certified copy of the death certificate and for common tenancy leases, a certified copy of the last will and testament?
• For common tenancy leases, have you provided DPIRD with a copy of the grant of probate or letters of administration (once they have been finalised)?
• Have you submitted the original lease documents or has the relevant persons signed a statutory declaration for misplaced lease documents (fee applies)?
• Are the leases current? If a lease is about to expire, has the relevant persons submitted an application to renew the lease? This would be the surviving lessees for a joint tenancy lease, and the Executor for a common tenancy lease.
• Does the beneficiary hold an aquaculture permit? If not, have they submitted a lease sublet application or an application for a new aquaculture permit?
• If there is a mortgage or other interest over the lease, has the written consent of the mortgagee or other party been submitted with the transmission documentation?