Conditional Agreement to Lease Torres Strait Islander DOGIT Land for Private Residential

Conditional Agreement to LeaseTorres Strait Islander Deed of Grant in Trust land for Private Residential Purposes

between

[Insert Name of Trustee]

and

[Insert Name of Potential Lessee]

Table of contents

RECITALS…………………………………………………………………...2

OPERATIVE PROVISIONS……………………………………………….2

1. DEFINITIONS ………………………………………………………………2

1. COMMENCEMENT & TERM……………………………………………..3

1. TERMINATION……………………………………………………………..3

1. COSTS………………………………………………………………………3

1. POTENTIAL LESSEE’S OBLIGATIONS …………………………………3

1. WORKS ON THE LAND …………………………………………………...4

1. CONSIDERATIONPAYABLE UNDER LEASE………………………….4

1. RENT PAYABLE UNDER LEASE…………………………………………4

1. STATUTORY OBLIGATIONS…………………………. ………………….5

SCHEDULE 1 – Reference Schedule

SCHEDULE 2 – Trustee Confirmations

SCHEDULE 3 – Native Title Requirements

SCHEDULE 4 – Survey Requirements

SCHEDULE 5 – Costs

SCHEDULE 6 - Lease Form 7 and Form 20

CONDITIONAL AGREEMENT TO LEASE

Between: [Insert name of Trustee] (“Trustee”)

and:[Insert name of Party who lodged EOI] (“Potential Lessee”)

RECITALS

1. The Trustee holds on trust land the subject of a DOGIT granted for the benefit of Torres Strait Islander inhabitants or for Torres Strait Islander purposes;

1. An EOI has been lodged by the Potential Lessee for the grant of a Lease by the Trusteeon the DOGIT land for residential purposes;

1. The Trustee has evaluated the EOI and is prepared to grant the Lease to the Potential Lessee,conditional upon fulfilment by the Parties of the conditions set out in this Agreement;

1. The Trustee proposes to grant the Lease pursuant to Part 8, Division 1 of the TSILA;

1. The Potential Lessee acknowledges that this Agreement does not give them any rights to Deal with the land, except where it is necessary to comply with the terms of this Agreement.

OPERATIVE PROVISIONS

1.Definitions

1.1In this Agreement:

“Agreement”means this document including all schedules;

“TSILA” means theTorres StraitIslanderLand Act 1991 (Qld);

“DNRM” means the Queensland Department of Natural Resources and Mines

“DOGIT”has the same meaning given in the TSILA;

“DHPW” means the Queensland Department of Housing and Public Works;

“Deal” meansto use, occupy, conduct works or otherwise conduct activities on the land;

“EOI” means the Expression of Interest lodged by the Potential Lessee to the Trustee in relation to the Lease;

“ILUA” means an indigenous land use agreement meeting the requirements of section 24BA, section 24CA or section 24DA of the Native Title Act 1993 (Cth);

“Land” means the land the subject of the Lease, as described in Item 3 of Schedule 1;

“Lease” means the interest granted in the Land by the Trustee to the Potential Lessee pursuant to Part 8, Division 1 of the TSILA, and upon fulfilment of the conditions in this Agreement;

“Trustee” means [Insert Name of Trustee];

“Parties” means the Potential Lessee and the Trustee;

“Potential Lessee” means [insert name of party who lodged EOI];

“Works” means any form of earthmoving or construction on the Land.

2.Commencement and Term

2.1 This Agreement commences on the date it is executed by the last Party to do so, recorded at Item 4 in Schedule 1.

2.2Subject to clauses 3.1 this Agreement remains in force for a period of 90 days.If survey requirements are identified in Schedule 4 this Agreement remains in place for up to a further 90 days, and if native title requirements are identified in Schedule 3 this Agreement remains in force for up to a further two years, as necessary.

2.3The Potential Lessee may apply in writing to the Trustee, at the contact details provided in Item 1 of Schedule 1, for an extension of a specified time in order to comply with the conditions of this Agreement and the Trustee will not unreasonably refuse this request.

2.4The Trustee will notify the Potential Lessee, at the contact details provided at Item 2 in Schedule 1, in writing within 21 days of receipt of the Potential Lessee’s request for an extension, advising the Potential Lessee whether or not the extension is granted.

3.Termination

3.1This Agreement is terminated upon receipt by the Trustee of written notice by the Potential Lessee informing that they no longer wish to pursue the Lease.

3.2The Potential Lessee must pay the Trustee’s reasonable costs associated with processing the EOI up to the date of termination.

4.Costs

4.1The Potential Lessee is liable to pay the Trustee’s reasonable costs, if any, associated with the processing of the EOI, as provided for in Schedule 5.

4.2Where the Trustee has provided in Schedule 3 that the Potential Lessee must satisfy native title requirements prior to the registration of the Lease, the Potential Lessee must bear all costs associated meeting these requirements.

For example: An ILUA may be required therefore the Potential Lessee must bear the native title party’s costs associated with the ILUA, unless agreed otherwise with the native title party.

4.3The Potential Lessee will pay all costs associated with the lodgement and registration of the Lease, as provided for in Schedule 5.

5.Potential Lessee’s Obligations

5.1The Potential Lessee will be required to comply with the Lease (Form 7) and the associated conditions (Form 20) contained in Schedule 6. The Potential Lessee is entitled to propose amendments to the conditions of the lease outlined in Form 20 if the condition is identified as a negotiable condition.

5.2Where the Trustee has provided in Schedule 3 that there are native title requirements to be addressed prior to the execution and registration of the Lease, the Potential Lessee must comply with those requirements to the satisfaction of the Trustee, including that an ILUA be registered with the National Native Title Tribunal before it can be relied upon.

5.3Where the Trustee has provided in Schedule 4 that the Land is required to be surveyed in order to meet registration requirements, the Potential Lessee must survey the Land and provide a copy of the survey to the Trustee within 180 days of commencement of this Agreement.

6.Works on the Land

6.1The Potential Lessee will not commence any Works on the Land prior to the grant of the Lease.

6.2The value of any Works done in contravention of clause 6.1 shall be forfeited by the Potential Lessee in the event that the Lease is not granted and the Trustee may require the Potential Lessee to rectify the Works.

7.Consideration Payable under Lease

7.1The Potential Lessee must pay the consideration payable for the Lease as a lump sum, as provided for in Schedule 5, to the Trustee upon demand prior to the execution of the Lease.

7.2Where there is a private residential premises (a dwelling) on the Land, the consideration payable will take into account the value of this private residential premises.

8.Rent Payable under Lease

8.1The Potential Lessee must pay the rent in accordance with the Lease and as provided for in Schedule 5.

9.Statutory Obligations

9.1The Parties agree to comply with all other statutory obligations to give effect to this Agreement.

EXECUTED AS A DEED

Signed by [Insert name of Trustee]

as trustee for the [Insert name of trust] ______

thisday of20__ (signature)

in the presence of

Witness :______

(print name) (signature)

Signed by [Insert name of Potential lessee]

______

thisday of20___ (signature)

in the presence of

Witness :______

(print name) (signature)

Schedule 1

Reference Schedule

Item 1 – Trustee’s details
Name
Contact position
Address
Phone No
Fax No
Item 2 – Potential Lessee’s Details
Name
Address
Phone No
Fax No
Item 3 – Land Details
Description
i.e. Lot/plan details
Address
Item 4 - Date
Date of Agreement

Schedule 2

Trustee Confirmations

The Trustee confirms that actions have been undertaken to confirm that:

1. The Potential Lessee is eligible to be granted a private residential lease on Torres Strait Islander DOGIT land.

1. The Trustee considers that the grant of the lease would be for the benefit of persons for whom the Trustee holds the land.

1. The Trustee has explained to the Torres Strait Islander people particularly concerned with the land the nature, purpose and effect of the grant of the lease and these people are generally in agreement with the grant of the lease.

1. The Land Panel (being the forum established under the Local Government Act 2009 to advise the regional council about land use) has been consulted on the grant of the lease (for the Injinoo, New Mapoon and Umagico divisions of the Northern Peninsula Area Regional Council only).

1. The local government has granted development approval to reconfigure the DOGIT.

1. There is no existing interest in the land proposed to be leased.

Schedule 3

Native Title Requirements

Outcome of native title assessment

______

Trustee requirement of Potential Lessee regarding the native title assessment

______

Potential Lessee reporting requirements

[Insert timetable for reports from Potential Lessee to Trustee describing progress in fulfilling native title requirements]

______

Schedule 4

Survey Requirements

To register a lease with DNRMthe lease boundaries must be suitably surveyed.

Is the land suitably surveyed (Yes) (No)

If (No), survey is required to a standard to satisfy registration requirements.

Schedule 5

Costs

1. Valuation Information

(Trustee to Annex copy of valuation/s here)

1.1 Land Valuation

Using the valuation methodology decided by the DNRMChief Executive in accordance with section 107(1)(a)(iii) of the TSILA the Trustee has determined that the value of the land is:

[Insert amount $XXX,XXX and amount in words]

1.2 Existing Dwelling Valuation:

Using the valuation methodology agreed to by the DHPW Chief Executive in accordance with section 108(6) of the TSILAthe Trustee has determined the value of the existing private residential premises on the Land is:.

[Insert amount $XXX,XXX and amount in words]

2. Consideration

Consideration payable by the Potential Lessee is equal to the value of the land plus the value of any existing dwelling, as described in 1.1 and 1.2 above:

[Insert amount $XXX,XXX and amount in words]

3. Rent

The annual rent payable under the Lease, as determined by the Trustee, is:

$1.00 (one dollar) per annum, payable on demand.

4.Services provided to the Land

Trustee to identify services (eg water, sewerage, waste collection) the local government will provide to the leased land, and the estimated annual costs of these services.

5. Lease Registration costs

[Trustee to insert the requirements of and costs associated with registering the lease].

6. Processing EOI

Trustee to identify costs, if any, associated with processing the EOI.

Schedule 6

Lease Form 7 and Form 20