Consent for dealings

Background on consent for dealings

Consent for dealing is a legal requirement under s.18, Community Housing Providers (Adoption of National Law) Act 2012 (the Act) for any dealing on land where a Housing Agency (the Secretary of DCJ or the New South Wales Land or Housing Corporation (LAHC)) have (including deemed to have) an interest in land where you are proposing a dealing. The arrangements in the Act replace previous similar requirements under s.67L, Housing Act 2001.

Dealings include actions like placing a mortgage, proposed sales or transfers, granting of easements, subdivision, lot consolidation, recording local government requirements imposed by planning consents etc and require registration on the title with NSW Land Registry Services (LRS).

More detail on the consent process is set out in the guidance attached. Please take the time to review the guidance and share with all relevant staff in your organisation.

Consent for dealings guidelines

Your organisation should always seek independent advice regarding compliance with legal obligations. The information in this guidance is not intended as a substitute for advice from a qualified professional.

1. How will I know if consent is required?

CHPs must approach the Housing Agency for consent for all dealings in land in which the Housing Agency (the Secretary of the Department of Communities and Justice (DCJ) or the New South Wales Land and Housing Corporation (LAHC)) has (or is deemed to have) an interest.

An interest is generally recorded on the registered title for the land, see the examples set out below, but might also include a mortgage in favour of the Housing Agency in older matters:

Figure 1 Example (only) - statutory interest on title (Secretary DCJ).

Figure 2 Example (only) statutory interest registered on title (Land and Housing Corporation).

There may also be circumstances where an interest is deemed to be held by a Housing Agency but not yet registered (not recorded on the title). See, for example cl. 8 of the Community Housing Assistance Agreement (CHAA) used for funding programs such as the Community Housing Innovation Fund (CHIF) (see https://dcj.nsw.gov.au/documents/service-providers/grants/Draft-Community-Housing-Assistance-Agreement-template.pdf).

A requirement for Housing Agency consent is generally set out in the CHAA or other agreement that provided the source funding or assistance. For example, see cl. 11 of the CHAA used for funding programs such as the CHIF (see https://dcj.nsw.gov.au/documents/service-providers/grants/Draft-Community-Housing-Assistance-Agreement-template.pdf).We note that the some CHAAs may include a description of exempt dealings, however, you are required to seek confirmation from the relevant Housing Agency that the proposed dealing does not require consent. It is for the Housing Agency to confirm and provide notification for the Registrar-General that a transfer or other dealing is an exempt transaction (see s.18(5)(b) of the Act).

2. Where should requests for consent be lodged?

All requests for consent can be lodged online at the consent for dealings mailbox dealings@homes.nsw.gov.au.

Similarly, queries or requests regarding specific dealing proposals can be sent to this consent for dealings inbox.

This email is not appropriate for “Direct Dealings” proposals which are different to Dealing Consents, see Homes NSW guidelines for direct dealings for more information.

3. When should a CHP approach the Housing Agency(s) for consent?

It is best to approach the relevant Housing Agency for consent well before finalising the relevant transaction (loan, subdivision, sale/change of ownership, receipt of the relevant planning conditions/consent etc), the timeframe will differ for different types of dealing, however, the earlier better is a sound general rule.

Contacting the Housing Agency earlier for more complex transactions is a must, for example, the creation and financing of ‘special purpose vehicles’ (SPVs) to develop projects on land in which the Housing Agency has an interest may trigger multiple consent, and other contractual requirements – we can manage them much more efficiently where we have access to the required information earlier and this avoids conflicts or timing issues at critical points in your financing and project management processes.

4. What will happen if I seek registration of an interest without seeking consent (or confirmation of exemption)?

You may be in breach of your obligations under the relevant CHAA or other agreement.

Typically, the Registrar General must require you to seek Housing Agency consent or confirmation of an exempt dealing prior to allowing the dealing to be registered.

Leaving consent until last; at the stage that you wish to register mortgages or proceed with a development or other activity, may create critical issues and costs for you as we may require more time than you anticipated to properly consider your request or may even be unable to provide consent. This is particularly important where third parties may be involved. CHPs should consult the relevant Housing Agency prior to completing negotiations that may impact on Housing Agency consent, including with financiers.

5. How long will it take to obtain Housing Agency consent?

Due to the variety of triggers for different dealings, it is difficult to commit to a fixed timeframe for each consent process.

Lodging your request 6 weeks ahead of your deadline should generally be enough to obtain consent on time. 

Factors that impact on our capacity to manage consent processes efficiently, including:

1. providing sufficient information and appropriate authority for us to proceed (see below);
2. providing quick responses to requests for further information where required;
3. ensuring that any outstanding or related contractual obligations (for example, extensions, variations or novation) have been progressed or completed as relevant; and
4. having legal representation available where required.

6. What should my application include?

Requirements will vary with the complexity of the transaction/activity that triggered the requirement for the consent for dealing(s) request, at a minimum your application should include:

1. full description of the subject land – the lot/strata numbers on the registered title(s) and the addresses for the property or properties;
2. current title searches for each parcel of land (no older than 3 months);
3. copies of funding agreements/mortgages relevant to each parcel of land – CHIF, THTP etc;
4. a list dealings/registrations required – for example, mortgage, lot consolidation, positive covenant (council restriction on use) and transfer of ownership/lease or sale;
5. project details setting out the reason for the request, for example - “Consent to the dealings is intended to permit the financing, development and construction of xx affordable and xx social dwellings at <address>. Ownership of the development will be transferred to CHP Co SPV (you should include details of registration CHP and ACNC) on completion.”;
6. (as relevant) financial details including new and existing loans and associated funding including:
   • loan documents/letters of offer, draft terms and conditions;
   • funding agreements;
   • relevant financier requirements and requests (for tripartite deeds, priority agreements etc); and
   • property valuations; and
7. proper legal authority for the application, typically the application should be signed by the Chief Executive Officer or appropriate office holders for your organisation.

As a general guide, an application requiring the recording of a simple easement on title that is required by a consent authority (council, utility provider etc) should require far less information than a complex proposal requiring multiple contract changes and dealings on title.

Further information and feedback

Please feel welcome to contact the team at Homes NSW with any questions regarding this process. You can send an email any queries to dealings@homes.nsw.gov.au

Your feedback is important to us, any concerns or suggestions about our consent for dealings processes can also be lodged at dealings@homes.nsw.gov.au