For the Advertising, Preparing, and Issuing Agricultural Leases of the West Coast Settlement Reserves.
His Excellency the Governor in Council.
Whereas by "The West Coast Settlement Reserves Act, 1881," it is enacted that the Governor in Council may from time to time make, alter, and revoke regulations, inter alia, for the advertising, preparing, and issuing leases of the West Coast Settlement Reserves:
Now, therefore, His Excellency the Governor, in pursuance and exercise of the power and authority conferred upon him by the hereinbefore in part recited Act, and by and with the advice and consent of the Executive Council of the said colony, doth hereby make the following regulations as those upon which leases of the said reserves for agricultural purposes shall be advertised, prepared, and issued, that is to say,—
In these regulations and in the Schedules, if not inconsistent with the context,—
"The Act" means "The West Coast Settlement Reserves Act, 1881:"
"Substantial improvements" means houses and buildings, and includes fencing, planting, draining, and reclamation of land, the benefit of which is unexhausted at the time of valuation:
"Lessor" means Trustee as defined by the Act:
"Lessee" means any person taking a lease from the lessor under the Act:page 4
"Reserves Trustee" means the West Coast Settlement Reserves Trustee as defined by the Act:
"Notice" means a notice given by causing the same to be personally served on any person, or by leaving the same at his usual or last known place of abode or business in the colony, or by forwarding the same by post addressed to his usual or last known place of abode or business:
"Publicly notified," "public notice," means a notice published by advertisement at least twice in a newspaper having general circulation in the district wherein the land to be leased is situated.
How first Leases disposed of.
1. Every lease (hereinafter referred to as a "lease") shall be put up to public competition by tender, after public notice thereof, at an upset rental equivalent to five pounds per centum on the capital value as fixed by the lessor of the land proposed to be leased.
Provided that such value so fixed shall not be less than the price for which similar lands may be sold for cash under the law for the time being regulating the price of such land in the district.
2. Every tender shall be in the form in the First Schedule hereto. Forms of tender can be had on application at the District Land Offices, New Plymouth, Patea, and Hawera.
3. Every tenderer will be notified that his tender has been accepted, in the form in the Second Schedule hereto, or to that effect.
4. All tenders for any land shall be opened by the lessor or Reserves Trustee at one time as advertised.
Any such tender shall be deemed to be informal and incapable of being accepted unless closed up and accompanied by a statutory declaration in the form or to the effect set forth in the Third Schedule hereto, and also accompanied by an amount equal to six months' rent at the rate tendered, paid either in cash or by a marked cheque. Forms of declaration can be obtained at the offices before mentioned.
5. The highest tenderer for a lease, if his tender shall equal or exceed such upset price, shall be declared the lessee, and be entitled to possession of the lands the lease of which has been so purchased by him when and so soon as he has executed a lease page 5 thereof in accordance with the provisions of the Act and these regulations, and has complied with any other conditions lawfully prescribed in that behalf at the time of sale.
6. If the rent offered by two or more persons is of the same amount, and is higher than that offered by any other tenderers, then the lessor shall decide by lot which of such two or more persons shall be declared the lessee.
7. The deposits and fees paid by the unsuccessful tenderers shall be returned to them by the lessor or Reserves Trustee immediately after the tenders have been opened.
8. If any person who has been declared a lessee hereunder shall fail to execute his lease within twenty-one days from the date of the notice of acceptance of his tender in the form in the Second Schedule hereto, his deposit shall be absolutely forfeited to the lessor, and his right to obtain a lease of such lands shall absolutely cease and determine: Provided the lease is ready for execution at the office for the district of the Reserves Trustee; otherwise the lessee shall not be deemed to have committed default until the expiration of fifteen days after notice shall have been sent to him that the lease is so ready.
Provided, further, that at any time within seven days from such forfeiture the lessor may declare the next highest tenderer for the same lease to be the lessee, or, if the rent offered by two or more persons is the same amount, and is higher than the rent offered by any other tenderer save the one who has so forfeited his right to a lease as aforesaid, the lessor may decide by lot which of such others shall be the lessee, upon his again pa[unclear: y for th]e deposit and fees as aforesaid, if his deposit [unclear: shall] have been previously returned to him; and thereupon the provisions of the Act and these regulations shall apply to such person as if he had been declared the lessee on the day of the opening of the tenders. But any such tenders, to be capable of being accepted under this proviso, must equal or exceed the upset price as aforesaid.
And in case of forfeiture of his right to a lease by the person so declared a lessee under the above proviso, the procedure prescribed by the said proviso shall, mutatis mutandis, be continued from time to time, until the land be leased in accordance with the Act and these regulations, or until there be a failure page 6 of all tenderers whose tenders are formal and who are willing to accept the lease in accordance with the Act and these regulations.
9. If no tender shall be received for any of the leases advertised for competition by tender prior to the time fixed for opening the tenders, any person may at any time thereafter apply for any one of such leases, and be declared the lessee thereof at the upset rental fixed, upon complying with the other conditions of the Act and these regulations prescribed as to tenders.
If two or more applicants shall lodge their tenders at the same time, the right to the lease shall be decided by lot.
10. Any one person may tender for two or more leases at the same time, but, except in the case provide:! for by clause fourteen hereof, he shall not be capable of becoming the lessee under more than one lease; and if he shall be found, upon the opening of the tenders, to be the highest tenderer for more than one lease, he shall, except in the case before mentioned, elect forthwith which of such leases he will accept, and thereupon the lessor shall, subject to the other provisions of the Act and these regulations, declare the next highest tenderer for the lease or leases which the first-mentioned tenderer has elected not to accept to be the lessee, or, if there be two or more tenderers at the same amount and higher than any other tenderers, shall decide by lot.
Provided that, in the event of any person tendering for two or more leases, the deposit of a sum equal to one half-year's rent of the tender largest in amount shall be sufficient.
Provided further that, if he be tendering for two or more leases such as he may in the aggregate become the lessee of under the fourteenth clause hereof, the deposit shall in such case be a half-year's rent, at the rate tendered for each such lease.
11. The lessor may at any time reduce the upset rental of land which he has failed to lease, subject to the proviso to clause one hereof, and may again call for tenders for the same at such reduced rental.
12. Any person of the age of eighteen years may become a lessee hereunder, and shall be as capable of executing a lease and shall be bound by the terms thereof and of the Act and these regulations as if such person was of full age.
Limits of Area for each Lessee.
13. No lease shall be made to any person nor shall any person be capable of becoming the lessee under a lease or a sublessee who, under the lessor, shall become either the tenant, or occupier in the whole, either by himself or jointly with any other person or persons, including the lands comprised in the lease, of a greater area than six hundred and forty acres of rural laud and forty acres of suburban land.
14. No person shall be capable of becoming the lessee under more than one lease, unless the lands comprised in the several leases adjoin each other.
Provided that lands shall be deemed to adjoin, or be contiguous to, each other if only separated by a road or stream.
15. The provisions of the last two preceding clauses shall not apply to persons who may become lessees or sublessees by marriage, or under a will, or by virtue of an intestacy.
As to Preparation, Cost, Execution, and Registration of Leases.
16. Every lease shall be prepared by the lessor, and shall, as nearly as may be, be in the form and contain the powers, reservations, provisions, conditions, covenants, and agreements set forth in the Fourth Schedule hereto.
17. Every lease shall be in duplicate, and the lessee shall be entitled to the registered copy of the same, provided he shall have paid, before the execution of such lease by the lessor, the moneys payable for stamping and registering the lease, and a fee of one pound.
18. Every lease shall, after execution thereof by the lessor and the lessee, be registered by the lessor under "The Land Transfer Act, 1870," or any amendment thereof.
As to Term, Payment of Rent, and Taxes.
19. Every lease of rural land shall be for a term fixed so as to expire on the thirtieth day of June in any year.
20. The lessee shall pay the rent reserved by his lease to the lessor by equal half-yearly instalments in advance, on the first day of the months of January and July in each year.
21. The lessee shall be liable for all rates, taxes, page 8 or assessments of every nature or kind whatsoever imposed upon the occupier of the lands included in his lease during the term for which he is lessee.
As to Transfers, Subleases, and Sales by Mortgagees, &c.
22. No lessee, or any person claiming by, through, under, or in trust for him, shall transfer, charge, sublet, or otherwise part with the possession or occupation of the land leased to him, or any part thereof, without the previous consent in writing of the lessor, and until the transferee, sublessee, or person acquiring possession or occupation has deposited with the lessor a statutory declaration in the form or to the effect set forth in the Third Schedule hereto.
23. No trustee in bankruptcy or under a deed of assignment who as such has acquired a lease, and no Sheriff or other officer of any Court who may be entitled to sell a lease by virtue of any process of such Court, shall be capable of selling such lease until the purchaser has deposited with the lessor a statutory declaration in the form or to the effect set forth in the Third Schedule hereto.
24. All dealings with or under leases in contravention of the provisions of the two last preceding clauses shall be absolutely void.
As to Surrenders.
25. Any lessee may, with the consent of the lessor, surrender the lands leased by him, and thereupon valuations shall be made, and a new lease of the said lands offered for sale in like manner as if the lease so surrendered was about to be determined by effluxion of time, save that it shall not be competent, for the period of seven years from the date of such surrender, for the lessee who has so surrendered to become the lessee of the new lease either originally or by transfer or sublease.
As to the Taking for Public Purposes, or Resumption, of Lands leased.
26. Should any part of the land so leased be taken for public purposes or resumed by the lessor, the rent payable by the lessee shall be abated in such proportion to the whole rent payable under the lease as the area so taken or resumed bears to the whole area leased, and the lessee shall, upon such taking or resumption of the whole or any part of the lands page 9 leased by him, be paid by the lessor compensation, valued by arbitration, for any substantial improvements of a permanent character which may have been made by him and may be then in existence on the said lands the possession of which has been so resumed.
27. If by reason of such taking or resumption any portion of the land included in the lease is so severed from the rest of the land included therein as in the opinion of the lessee greatly diminishes the value to him of the portion severed, then he shall, with the consent of the lessor, be entitled to surrender any portion so severed, and shall thereupon be entitled to a further abatement of rent and to compensation as if the portion so surrendered had been taken or resumed as above mentioned: Provided that should any difference arise in respect of any matter affected by the preceding clause or this clause it shall be referred to arbitration in the manner hereinafter provided.
As to Occupation and Improvements.
28. Each lessee shall, within two years from the date of his lease, bring into cultivation not less than one-tenth of the land leased by him; within four years from the said date, not less than one-fifth of the said land; and within six years from the date of his lease, in addition to the cultivation of one-fifth of the land, shall place on such land substantial improvements of a permanent character to the value of one pound for every acre.
29. Each lessee of suburban land shall, within one year from the date of his lease, fence in all the open land leased by him.
30. Improvements to be suitable to, and consistent with the extent and character of, the holdings; and none shall be allowed for in any valuation in excess of five pounds for every acre of rural land, or ten pounds for every acre of suburban land.
As to Arbitration.
|(a.)||"Whenever in these regulations a valuation or other matter is required to be referred to arbitration, such reference shall be to two persons, one to be appointed in writing by the lessee (which term throughout these regulations includes the executor, administrator, or permitted assignee of any lessee hereunder), and the other by the lessor.page 10|
|(b.)||If either the lessee or the lessor shall fail to appoint an arbitrator within twenty-one days after being requested in writing to do so by the other party, then the arbitrator appointed by the other party shall alone conduct the arbitration, and his decision shall be final and binding on both parties.|
|(c.)||If the said arbitrators shall fail to agree upon the matter referred to them within twenty-eight days after the same has been so referred, then the matter so referred shall be decided by an umpire appointed by the said arbitrators before they shall have entered on the reference; and the decision of such arbitrators or umpire shall be final and binding on both parties.|
|(d.)||Every such arbitration shall be carried on in the manner prescribed by "The Supreme Court Practice and Procedure Amendment Act, 1866," or any amendment thereof.|
|(e.)||All costs of and incidental to the reference shall be in the discretion of the arbitrator or umpire.page 12|
32. The conditions set forth in the Act and these regulations as regards leases shall operate and shall be deemed to bind the lessor and the lessee as fully and effectually as if they were set forth in every lease.
33. If any lessee hereunder shall make default in the payment of rent or in the observance or performance of any of the conditions herein contained, or which may be expressed or implied in his lease, and shall allow such default to continue for three calendar months, or shall be convicted of making any false declaration hereunder, his lease shall thereupon absolutely determine, and the lands included in the same, with all improvements thereon, shall absolutely revert to the lessor, without any payment whatsoever to the lessee, and without releasing him from his liability in respect of any rent then due.
"The West Coast Settlement Reseeyes Act, 1881."
To the Public Trustee.
I [or We], the undersigned, do hereby tender for Section, Block _____,_____ Survey District, as notified by an advertisement published in the _____ of the _____ day of, 188, and in accordance with the conditions of tender exhibited at _____, for the sum of £_____per annum for the whole term of _____ years. I [or We] enclose herewith for £, being the deposit payable as required.
Should the tender be accepted, I [or We] undertake to sign a lease of the said land within twenty-one days after receiving notice of such acceptance.
Dated this _____ day of _____, 188 .
"The West Coast Settlement Reseeyes Act, 1881."
West Coast Settlement Reserves Department, _____, _____, _____, 188 .
Sir,—I am directed to inform you that your tender of to lease, in accordance with the conditions of tender exhibited at _____, Section _____, Block _____, _____Survey District, for _____ years, at an annual rent of £ per annum for the whole term, has been accepted by the Public Trustee. A lease and counterpart will be forwarded for your perusal and signature to this office, notice of which you will receive. Should you fail to execute the lease within twenty-one days of the date hereof, and pay the sum of £ for preparing, stamping, and registering such lease, your claim thereto will be liable to be forfeited, and the land declared open for occupation.
"The West Coast Settlement Reserves Act, 1881."
|1.||That I am of the full ago of eighteen years.|
|2.||That I am the person who, subject to the provisions of "The West Coast Settlement Reserves Act, 1881," is tendering for the purchase [or is desirous of becoming the transferee or sublessee] of a lease of [Here specify land].|
|3.||That I am purchasing such lease solely for my own use and benefit, and for the purposes of cultivation, and not directly or indirectly for the use or benefit of any other person whomsoever.|
|4.||That, including the said lands, I am not the tenant or occupier, directly or indirectly, either by myself or jointly with any other person or persons, of any lands anywhere on the West Coast Settlement Reserves exceeding in the whole six hundred and forty acres of rural land and forty acres of suburban land.|
And I make this solemn declaration conscientiously believing the same to be true, and by virtue of an Act of the General Assembly of New Zealand intituled The Justices of the Peace Act, 1882."
A.B.Declared at _____, this _____ day of _____, 188, before me, > Justice of the Peace for the Colony of New Zealand [or Solicitor or Notary Public].
Note.—This declaration will require a half-crown stump.
"The West Coast Settlement Reserves Act 1881."
Memorandum of Lease.
Whereas a grant under "The West Coast Settlement Reserves Act, 1881," has been issued to of the lands hereinafter described: and whereas, in exercise of the powers and authorities in that behalf imposed upon him by the said Act, the Public Trustee has agreed to grant this lease:
|1.||That the lessee shall and will, during the said term, pay unto the Public Trustee or his successors (hereinafter referred to as "the lessor"), the said yearly rental on the days and in manner hereinbefore mentioned.|
|2.||That the lessee shall and will, during the said term, bear and pay all taxes, charges, rates, or assessments now or hereafter during the said term to be assessed, charged, or imposed upon the hereby demised premises, or upon the landlord or tenant in respect thereof, or of any buildings or improvements thereon.|
|3.||That the lessee shall not assign, sublet, mortgage, or part with the possession of the hereby demised premises, or any part thereof, without the consent in writing of the lessor previously obtained for that purpose.|
|4.||That the lessee "will insure" and "paint outside every alternate year."|
|5.||That he "will fence" and "cultivate."|
And it is hereby expressly agreed and declared between and by the said parties hereto that within three months before the determination of this demise by effluxion of time all buildings and fixtures, including fencing, on the land hereby demised, which shall be deemed to be substantial improvements under the regulations made under the said Act, shall be valued by arbitration in the manner hereinafter mentioned; and a fresh lease of the said land for the same period and on the same conditions as this lease shall be page 14 offered for sale by public tender, subject to the payment by the incoming tenant to the lessee of the valuation so to be ascertained as aforesaid; and in the event of there being no accepted tenderer at the said auction the lessee shall have the option of accepting a new lease of the said land for the same period and on the same conditions as this lease, at a rental to be fixed by arbitration as hereinafter provided, but in the fixing of which the arbitrators or umpire shall not be entitled to take into consideration the value of the improvements for which the lessee would otherwise have been entitled to payment as aforesaid; and if the lessee shall decline to accept such new lease or to execute a counterpart thereof, on the same being tendered to him for the purpose, he shall forfeit all right and title to the value of such improvements as aforesaid.
And it is hereby further declared and agreed that throughout this lease, where any matter is agreed to be referred to arbitration, then such matter shall be determined by the written award of two arbitrators, one to be appointed by the lessor and the other by the lessee, and, in case the said arbitrators shall fail to agree upon an award within twenty-eight days after their appointment, then by the written award of an umpire to be appointed in writing by such arbitrators before entering upon the consideration of the matters referred to them; and if either party, after receiving written notice from the other party of the appointment by such other party of an arbitrator, shall fail within twenty-one days after the receipt of such notice to name an arbitrator, or shall name an arbitrator who shall refuse to act, then the arbitrator appointed by the party giving such notice may proceed in the reference alone, and his award on the matter referred to arbitration shall be final and conclusive on both parties; and the said arbitrator or arbitrators and their umpire shall have full power and authority to decide all questions which may arise in the course of the said reference, and in particular any questions as to what matters or things are proper subjects of valuation; and the cost of every such reference and award shall be, in the discretion of the arbitrators or umpire, and the submission hereby made on the award thereon may be made a rule of the Supreme Court of New Zealand at the instance of either of the parties hereto:page 15
Provided always that, if the rent hereby reserved shall not be paid on the days hereinbefore appointed for payment thereof, then and in such case it shall and may be lawful for the lessor to charge to and recover from the lessee interest at the rate of fifteen pounds per centum per annum on all overdue rent from the date it became due until the date of actual payment:
Provided always that if the rent hereby reserved shall be in arrear and unpaid for the space of three calendar months next after any of the days herein appointed for payment thereof, although no formal demand shall be made for such payment, or in case the lessee shall infringe, or fail to perform or observe, any or either of the covenants, conditions, or agreements herein contained or implied, and by and on the part of the lessee to be performed or observed, then and in any such case it shall be lawful for the lessor into and upon the demised premises, or any part thereof in the name of the whole, to re-enter, and the same to have again, repossess, and enjoy, and to let, use, and dispose thereof as if these presents had not been made; and in case of such re-entry the lessee shall not be entitled to receive, nor shall the lessor be compellable to pay, any valuation or sum for any improvements whatsoever, anything herein contained to the contrary notwithstanding; and such re-entry shall in no wise prejudice the right of the lessor to recover any rent then due or payable, or right of distress, action, or suit that may have arisen under these presents prior to such re-entry.
Lessee.The Schedule referred to in the foregoing lease.
Forster Goring,Clerk of the Executive Council.