1999
1999
2001-07-18
act
publicspecial
act.reprint
allinforce
2001-07-17
act-2001-056
none
act-1999-058
b0a1e17a-60e4-4434-b683-37cd9535b84b
5657a16e-adad-42eb-8d6d-79352249636f
Note—
The Act was repealed by the Statute Law (Miscellaneous Provisions) Act 2001
No 56, Sch 4 with effect from 17.7.2001.
An Act to amend the Real
Property Act 1900 with respect to corrections to the
Register, cautions, easements, caveats, severance of joint tenancies and
appeals from boundary determinations, and for other purposes; to amend the
Conveyancing Act 1919 with respect to
easements and positive covenants, and for other purposes; and to
consequentially amend the Land and Environment Court Act
1979.
1Name of
Act
This Act is the Real Property and
Conveyancing Legislation Amendment Act
1999.
2Commencement
This Act commences on a day or days to be
appointed by proclamation.
3Amendment of Real Property Act 1900 No
25
The Real Property Act
1900 is amended as set out in Schedule
1.
4Amendment of other
Acts
The Acts specified in Schedule 2 are amended as
set out in that Schedule.
Schedule 1Amendment of Real Property Act
1900
(Section 3)
[1]Section 12 Powers of
Registrar-General
Insert after section 12 (1) (d):
(d1)
The Registrar-General may, subject to subsection
(3A), on such evidence and after such notices (if any) as appear to the
Registrar-General to be sufficient, and with the consent of the proprietors
and any mortgagees of the land, correct the Register by correcting a reference
to one or more lot numbers in a plan. The Registrar-General may make the
correction on the application of a proprietor or mortgagee or on the
Registrar-General’s own initiative.
[2]Section 12
(3A)
Insert after section 12 (3):
(3A)
If the Registrar-General makes a correction
referred to in subsection (1) (d1):
(a)
the correction:
(i)
must not make original words or symbols
illegible, and
(ii)
must be dated, and
(iii)
must be initialled by the Registrar-General,
and
(b)
the correction takes effect as if the error
corrected had not occurred, and
(c)
the correction does not affect the construction
of any instrument made or entered into before the correction so as to
prejudice any person claiming under that
instrument.
[3]Section 23A Instruments of
title, how to be dealt with
Omit “section 14 of the Archives Act
1960” from section 23A (4) (c).
Insert instead “section 21 of the State Records Act
1998”.
[4]Section 28MA Lapsing of
caution on qualified folio created after registered deed other than for value
(section 28JA (1A))
Omit section 28MA (2). Insert instead:
(2)
Firstly, if after the creation of the qualified
folio, a person for valuable consideration and without fraud to which the
person is a party becomes registered or, pursuant to section 36 (8), is taken
to have become registered, as proprietor of an estate or interest in the land
comprised in the folio, and another person subsequently for valuable
consideration and without fraud to which that other person is a party becomes,
or is taken to have become, registered as proprietor of that estate or
interest, the caution recorded on the folio lapses as regards the estate or
interest:
(a)
on the expiration of 6 years after the time when
the firstmentioned person becomes, or is taken to have become, registered,
or
(b)
at the time the other person becomes, or is taken
to have become, registered,
whichever is the later.
[5]Section 38 Recording dealings
on certificate of title etc
Omit “Archives Act
1960” wherever occurring in section 38 (5) (b) and
(6).
Insert instead “State
Records Act 1998”.
[6]Section 48 Creation of
cross-easements for party walls by plans on application
Insert after section 48 (1):
(1A)
A plan registered or recorded under Division 3 of
Part 23 of the Conveyancing Act
1919 on or after 1 August 1996 creates cross-easements
if:
(a)
a boundary of a lot is shown in the plan as
passing longitudinally through the whole or any part of a wall,
and
(b)
the wall is described in the plan as a
“proposed party wall”, and
(c)
the Registrar-General has recorded in the
Register an application to create cross-easements for support of the wall made
in the approved form by each person having a registered estate or interest in
the land that will be benefited or burdened by the
cross-easements.
[7]Section 48
(2)
Omit “such an
easement”.
Insert instead “an easement referred to in
subsection (1) or (1A)”.
[8]Section 49 Cancellation of
recordings of easements after abandonment, consolidation of tenements or
release
Insert after section 49 (1):
(1A)
The Registrar-General may, under this section,
cancel a recording relating to an easement in relation to:
(a)
all of the land benefited or burdened by the
easement, or
(b)
any one or more of the lots, or part of a lot,
burdened by the easement, or
(c)
any one or one or more of the lots benefited by
the easement.
[9]Section 49
(2)
Insert “before the application for the
cancellation of the recording is made to the Registrar-General” after
“years”.
[10]Section 54 Lease may be
surrendered by execution of surrender in approved form
Omit “or insolvent” from section 54
(1).
[11]Section
74LA
Insert after section 74L:
74LACaveat lapses when order
ceases to have effect
(1)
If the operation of a caveat is extended for a
specified period by an order of the Supreme Court under this Part and no
further order is made by the Court extending the operation of the caveat
before the expiration of the period specified in the order, the caveat lapses
on the expiration of that period.
(2)
If the operation of a caveat is extended until
the further order of the Court by an order of the Supreme Court under this
Part, the caveat lapses if the Registrar-General, on being satisfied that the
proceedings in which the order was obtained have been finalised and that no
further order is likely to be sought, makes a recording in the Register to the
effect that the caveat has lapsed.
[12]Section 97 Severance of joint
tenancy by unilateral action
Omit “A transfer” from section 97
(1).
Insert instead “Registration of a
transfer”.
[13]Section 97
(2)
Insert “proposed to be” before
“severed”.
[14]Section 97
(2)
Omit “severs” where firstly
occurring.
Insert instead “proposes to
sever”.
[15]Section 97
(3)
Omit “severs”. Insert instead
“proposes to sever”.
[16]Section 97
(5)
Omit “lodges the
dealing”.
Insert instead “executed the dealing, or on
whose behalf the dealing was executed”.
[17]Section 97
(6)
Insert after section 97 (5):
(6)
Despite subsection (5), the Registrar-General is
not required to give notice of the lodgment of a dealing for registration or
recording that may sever a joint tenancy to a joint tenant in any of the
following circumstances:
(a)
if the proposed severance is to arise from the
recording of a court order made in proceedings to which the joint tenant is a
party,
(b)
if the proposed severance is to arise from the
registration of a transfer pursuant to a writ in respect of an interest of any
of the joint tenants,
(c)
if the dealing concerned is witnessed by the
joint tenant and the dealing indicates that the joint tenancy is to be
severed,
(d)
if the dealing is accompanied by a written
acknowledgment by the joint tenant that he or she has received legal advice as
to the effects of the severance of the joint tenancy,
(e)
if the proposed severance is to arise out of
registration following an application under section
90.
[18]Section 126 Compensation for
party deprived of land
Omit “dead, bankrupt, or insolvent,”
from section 126 (5) (b).
Insert instead “dead or
bankrupt”.
[19]Section 131 Money paid in
respect of a claim on Torrens Assurance Fund may be recovered against estate
of deceased or bankrupt person
Omit “insolvent or” wherever
occurring in section 131 (2).
[20]Section 133 Torrens Assurance
Fund not liable in certain cases
Omit “insolvent or” from section 133
(1) (c).
[21]Section
135C
Omit the section. Insert instead:
135CBoundaries to which Part
applies
This Part authorises the determination of the
position of a boundary between adjoining parcels of land, whether or not each
parcel is under the provisions of this Act.
[22]Section
135J
Omit the section. Insert instead:
135JAppeals to Land and
Environment Court
(1)
A person who is dissatisfied with a determination
under this Part may appeal to the Land and Environment Court for determination
by the Court of the position of the boundary.
(2)
Only the following persons can appeal:
(a)
an owner of land adjoining the
boundary,
(b)
a person who applied for the determination as
purchaser under a contract for the sale of land adjoining the
boundary,
(c)
a public or local authority or the Head of a
Government Department.
(3)
An appeal must be made not later than 28 days
after notice of the Registrar-General’s determination is given to the
person concerned.
(4)
The Registrar-General is not to take action under
section 135K (Noting of boundary on plans etc):
(a)
until the expiration of the period during which
an appeal can be made against the determination concerned to the Land and
Environment Court, and
(b)
(if an appeal is made during that period) until
the matter has been determined by the Land and Environment
Court.
(5)
The Registrar-General is entitled to be joined as
a party, and to appear and be heard either personally or by his or her duly
appointed agent, at the hearing of an appeal under this section and at the
hearing of any appeal under the Land and
Environment Court Act 1979 in respect of any such
appeal.
[23]Section 135K Noting of
boundary on plans etc
Insert after section 135K (3):
(4)
The Registrar-General may, if the position of a
boundary is determined under this Part, request the applicant for the boundary
determination to deposit in the office of the Registrar-General a plan (being,
if the Registrar-General so specifies, a plan of survey) showing details of
the boundary as so determined, together with the number of copies of the plan
specified by the Registrar-General.
(5)
The Registrar-General may refuse to take action
under this section if an applicant fails to comply with a request under
subsection (4).
[24]Section 135O Owners may agree
to dispense with certain requirements
Omit “referral” from section 135O
(b). Insert instead “appeal”.
[25]Section
138
Omit the section. Insert instead:
138Court may direct cancellation
of folios and other actions related to folios
(1)
A court may, in proceedings for the recovery of
any land, estate or interest from the person registered as proprietor of the
land, make ancillary orders of the kind set out in subsection (3), if the
court is of the opinion that the circumstances of the case require any such
order to be made.
(2)
A court may, in proceedings for the possession or
production of a certificate of title or in proceedings in which the court
makes a determination as to an estate or interest in land, make ancillary
orders of the kind set out in subsection (3), if the court is of the opinion
that the certificate of title has not been, or is not likely to be, produced
by a person for the purposes of the registration of a dealing affecting the
land concerned.
(3)
A court may order the Registrar-General to do one
or more of the following:
(a)
cancel or amend a folio of the
Register,
(b)
cancel, amend or make a recording in a folio of
the Register,
(c)
create a new folio of the
Register,
(d)
issue a new certificate of
title.
(4)
The Registrar-General must give effect to any
such order.
(5)
A court that makes an order under this section
may order that a person deliver a certificate of title or other instrument to
the Registrar-General for the purpose of giving effect to any such
order.
(6)
An action does not lie against the
Registrar-General for recovery of damages sustained through deprivation of
land, or any estate or interest in land, because of compliance by the
Registrar-General with an order under this section.
(7)
In this section:
court does not include a Local Court
or a tribunal.
[26]Schedule 3 Savings and
transitional provisions
Insert at the end of clause 1 (1):
Real Property and
Conveyancing Legislation Amendment Act
1999
[27]Schedule 3, Part
4
Insert at the end of Part 3:
Part 4Real
Property and Conveyancing Legislation Amendment Act
1999
6Definition
In this Part:
amending
Act means the Real Property and
Conveyancing Legislation Amendment Act
1999.
7Lapsing of existing
caveats
Section 74LA, as inserted by the amending Act,
applies to orders made by the Supreme Court before the commencement of that
section and in force immediately before that commencement in the same way as
it applies to orders made after that commencement.
8Severance of joint
tenancies
Section 97, as amended by the amending Act, does
not apply to or in respect of a dealing lodged, but not registered or
recorded, immediately before the commencement of this
clause.
9Objections to boundary
determinations
(1)
Section 135J, as in force immediately before the
commencement of this clause, continues to apply in respect of a request made
under that section before that commencement.
(2)
The Land and Environment Court has jurisdiction
to deal with a referral arising out of a request referred to in subclause (1)
as if the Land and Environment Court Act
1979 was not amended by the amending
Act.
Schedule 2Amendment of other
Acts
(Section 4)
2.1Conveyancing Act 1919 No
6
[1]Section 88BA Positive
covenants for maintenance or repair
Insert “If the land is subject to an
easement without a dominant tenement created in favour of a prescribed
authority (as referred to in section 88A), the instrument must indicate the
name of the prescribed authority.” after “covenant.” in
section 88BA (3).
[2]Section 88BA (6)
(a)
Omit “transfer
and”.
[3]Section 88B Creation and
release of easements, profits à prendre and restrictions on use of land
by plans
Insert “or partially released” after
“released” in section 88B (2) (c1).
[4]Section 88B (3)
(c)
Insert “88BA,” before
“88D”.
[5]Section 88K Power of Court to
create easements
Omit “in accordance with the
easement” from section 88K (2) (a).
Insert instead “having the benefit of the
easement”.
[6]Schedule 4A Easements in
gross
Omit “the lot benefited” from clause
2 (a) of Part 5.
Insert instead “any structure used by that
body”.
[7]Schedule 9 Savings,
transitional and other provisions
Insert at the end of clause 1 (1):
Real Property and
Conveyancing Legislation Amendment Act
1999
2.2Land
and Environment Court Act 1979 No
204
Section 19 Class 3—land
tenure, valuation, rating and compensation matters
Omit section 19 (c). Insert instead:
(c)
appeals against boundary determinations under
Part 14A (Boundary determinations) of the Real Property Act
1900,
Historical
notes
Table of amending
instruments
Real Property and
Conveyancing Legislation Amendment Act 1999 No 58.
Assented to 24.11.1999. Date of commencement, 1.1.2000, sec 2 and GG No 144 of
24.12.1999, p 12192.