Transmit aquaculture lease - information kit

When is a transmission of an aquaculture lease required?

The transmission of an aquaculture lease is required to distribute a deceased person’s lease holdings in accordance with their Will or tenancy arrangement.

What are the two types of tenancy arrangements for aquaculture leases?

Joint tenancy - upon the death of a lessee, the lease does not legally become part of the deceased person's Estate. It is automatically transmitted to any surviving lessees.

Tenancy in common - the proportion of the leases held by the deceased lessee may be 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 may occur following the issuance of Letters of Administration.

For leases held by a sole individual or a company, the tenancy is taken to be ‘tenancy in common’.

What is needed to transmit an aquaculture lease held under a joint tenancy arrangement?

Complete the lease transmission application form (link provided above). Ensure all surviving lessees sign the form.
Submit a certified copy of the death certificate (if not previously provided).
Attach the original lease documents. If the lease documents are lost or destroyed, the surviving lessees must submit a statutory declaration to replace the lease documents (fee applies).
Submit payment of the application fee (refer to the aquaculture fee schedule).

What is needed to transmit an aquaculture lease held under a common tenancy arrangement?

Complete the lease transmission application form. Ensure the Executor and all beneficiaries sign the form.
Submit a certified copy of the death certificate (if not previously provided).
Attach the original lease documents. If the lease documents are lost or destroyed, the Executor must submit a statutory declaration to replace the lease documents (fee applies).
Submit payment of the application fee (refer to the aquaculture fee schedule).
Submit a copy of the Last Will and Testament as well as the Grant of Probate or Letters of Administration.

When can an aquaculture lease be transmitted?

A lease transmission can only be applied for after the death of a lessee. A lease which has expired or has been otherwise terminated cannot be transmitted. If a lease is about to expire, or has recently expired, the Executor may apply to renew the lease. Any such renewal application will not be finalised until matters surrounding the Estate have also been finalised (for example, probate has been granted).

If a mortgage or other interest is endorsed on the lease, a transmission will not be progressed without the written consent of the party who has a registered interest in the lease.

If a deceased lessee has overdue aquaculture fees, the Executor of the Estate will be notified of the monies owing to NSW DPI.

Can a lease be transferred to someone other than the beneficiary?

Yes, if the lease is held under a common tenancy arrangement and it is bequeathed to a person as part of the Estate but not noted specifically in the Will. In such cases, the beneficiary and Executor may transfer the lease directly to another party. For further details on transfer requirements please refer to the transfer lease information kit.

If a lease is bequeathed to a person and the lease particulars are detailed in the Will, the lease must be transmitted to the beneficiary before it can be transferred to another party.

Leases held under a joint tenancy arrangement must be transmitted to the surviving lessees.

Does a transmission application attract Goods and Services Tax?

No. Goods and Services Tax (GST) is not payable on an application to transmit a lease.

Once a lease transmission has been finalised, will any money owing on an aquaculture account (which is related to the lease) be redirected to the beneficiary?

No. A lease is transmitted only when the Minister’s delegate consents to the transaction. The fees for the current billing period will remain the responsibility of the Executor. The lease and permit fees for the next billing period (from 1 July) will be directed to the new lease and permit holder.

Does the beneficiary have to hold an aquaculture permit?

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

apply to sublet the lease(s) to another permit holder, or
apply for their own class A aquaculture permit.

The ownership of a lease does not authorise the lessee to carry out aquaculture on that lease, so a lease transmission will not be finalised until an arrangement can be made for the lease to be authorised by a current aquaculture permit.

What are the options if the beneficiary does not want to, or is unable to retain the lease(s)?

Holding aquaculture leases can carry significant financial and legal responsibilities. In such cases where the beneficiary of a lease does not wish to retain that lease, they may transfer (sell) the lease to another party. The transferee must be able to meet certain criteria. An application to transfer an aquaculture lease may be lodged concurrently with the application to transmit.

How can the transmission application fee be paid?

Payment options are provided on the lease transmission application form.

What happens after an application to transmit a lease is lodged?

NSW DPI will check to ensure the applicants have addressed all matters relating to the lease transmission. If anything is missing or outstanding, the application will not be progressed until the outstanding requirements are met.

Once all requirements are met, NSW DPI will endorse the original and duplicate lease documents with the details of the new lessee. The endorsed original lease documents are returned to the new lessee for safekeeping. An updated aquaculture permit is sent to the relevant permit holder.

Where can I get more information about lease transmissions?

For more information, contact Aquaculture Administration via email aquaculture.administration@dpi.nsw.gov.au.

Application checklist

This checklist will help you to lodge a successful application.

Have you completed every section of the application form?
Has the application form been signed by all relevant parties?
Have the original lease documents been attached to the application, or have you lodged a request to replace the lease documents (fee applies)?
Is the lease current at the time of application? If the lease is about to expire, have you lodged an application to renew the lease?
Does the beneficiary hold a current aquaculture permit, or have they lodged an application to sublet the lease to another permit holder, or an application for a new aquaculture permit?
If a mortgage or other interest is endorsed on the lease documents, do you have the written consent of the mortgagee?