Transfer of Land Act 1893
Western Australia
Transfer of Land Act 1893
Contents
Part IA — Preliminary
1.Short title2
2.Repeals and savings2
3.Application of other laws etc. and this Act2
4.Terms used; application of Act to Crown land3
4A.Sections of this Act that do not apply to Crown land12
Part I — Officers
5.Commissioner of Titles13
6.Deputy Commissioner of Titles13
7.Registrar of Titles14
7A.Offices of Commissioner and Registrar may be held by one person15
8.Examiner of Titles, Assistant Registrar of Titles15
8A.Designating statutory officers, generally16
9.Certain signatures to be judicially noticed17
10.Seal17
11.Assistant Registrar’s powers18
12.Commissioner and Examiner of Titles not to practise law18
13.Oaths of office18
14.Commissioner and Registrar may exercise functions electronically19
15.Delegation by Commissioner19
15A.Delegation by Registrar20
16.Rules relating to surveyors20
17.Some of Minister for Lands’ functions under this Act may be performed by authorised officer21
Part II — Bringing land under the Act
20.Bringing lands alienated in fee before 1 July 1875 under this Act22
20A.Evidence and restrictions of requisitions23
21.How application to be dealt with when no dealing has been registered24
22.How application to be dealt with when dealing has been registered24
23.Notice of application to bring land under this Act and rescission of previous directions on undue delay25
24.Person claiming title by possession to post notice of application on land26
25.Land to be brought under this Act unless caveat received26
26.Land occupied may be brought under this Act by different description from that in title on special application26
27.Applications to bring land under this Act or to amend certificate may be granted as to land occupied under but not described in title deeds or certificate27
28.Title may be given to excess of land occupied under Crown grant over land described in Crown grant27
29.Excess of land may be apportioned between different owners or proprietors28
30.Parties interested may lodge caveat29
31.If caveat received, proceedings suspended29
32.Caveat to lapse unless proceedings taken within one month30
33.Judge may require production of title deeds in support of application to bring land under this Act30
34.Applicant may withdraw application31
35.Documents of title31
36.Subsisting lease to be endorsed and returned32
37.Additional evidence to be scheduled32
38.Some certificates of title to issue in name of deceased person32
39.Registration of leaseholds33
42.Production of lease may be dispensed with on bringing land under this Act33
43.Certain memorials to be sufficient evidence of conveyances in fee34
45.Commissioner may direct Registrar to bring land under this Act34
46.Title to land sold under order or decree may be deemed sufficient34
47.Formalities of order35
Part III — Certificates of titles and registration
48.Register36
48A.Certificates of title37
48B.Duplicate certificates of title38
48C.Symbols40
49.One certificate may be created for lands not contiguous40
50.Area of land need not be mentioned in certificate40
52.Registration of certificates of title and instruments40
53.Priority of registration of instruments41
54.Incorporation of terms etc. of certain memoranda42
55.Trusts42
56.Memorandum to state certain particulars43
57.Memoranda of instruments to be entered43
58.Instruments not effectual until registered44
59.Notations as to legal disability of proprietor44
60.Joint tenants and tenants in common45
61.Effect of insertion of words “no survivorship”45
62.Notice to be published before effect given to order45
63.Certificate to be conclusive evidence of title46
63A.Certificates may contain statement of easements47
64.Certificate conclusive evidence as to title to easements47
65.Short forms etc. for easements, effect of48
65A.Memorandum of easement49
66A.No separate certificate for easement49
67.Certificate conclusive evidence in suit for specific performance or action for damages49
68.Estate of registered proprietor paramount50
69.Certain easements and conditions to be noted as encumbrances52
70.Reversions expectant on leases53
70A.Factors affecting use and enjoyment of land, notification on title53
71.Single certificate may be created instead of separate ones54
71A.Separate certificates may be created instead of single one55
71B.Replacing duplicate certificates of title55
72.History of dealings to be preserved56
74.Duplicate may be dispensed with in certain cases56
74A.Substitute certificates of title57
74B.New duplicate certificates of title58
75.Where duplicate certificate lost, destroyed or obliterated59
76.Duplicate certificates etc. issued in error etc., powers to recover61
77.Procedure when person summoned etc. under s. 7662
78.Registrar may call in duplicate certificate etc.62
79.Person who fails to bring in duplicate certificate etc. may be brought before Supreme Court63
81.Words of inheritance or succession to be implied64
Part IIIA — Crown leases
81A.Registration of Crown leases issued on or after 2 May 191065
81B.Registration of Crown leases issued before 2 May 191065
81C.Effect of registration67
81D.Registration of transfer etc.67
81E.No foreclosure without consent of Minister for Lands68
81F.Entry of forfeiture69
81G.Crown lessee to be deemed of full age69
81H.Sections of this Act and land Acts that do not apply to Crown leases70
81I.Mortgage of Crown lease to be transferred to Crown grant70
Part IIIB — Registration and recording in relation to Crown land
Division 1 — General
81J.Application of this Part71
81K.Terms used71
81L.Creation and registration of certificates of Crown land title and qualified certificates of Crown land title71
81M.Lodging etc. of management orders72
81N.Crown surveys72
81O.No duplicate certificates of Crown land title or duplicate qualified certificates of Crown land title to be issued72
81P.Endorsements on certificates of Crown land title and qualified certificates of Crown land title72
81Q.Leases and subleases of Crown land, registration of73
81R.Profits à prendre, registration of74
81RA.Other encumbrances in respect of fee simple in Crown land74
81S.Prerequisites to registering dealings as to Crown land75
81T.Registered proprietors etc. protected against ejectment except in certain cases76
Division 2 — Transitional
81U.Registrar may accept for registration signed and stamped duplicate original documents78
81V.Minister for Lands may apply for cancellation, creation etc. of certificates of Crown land title etc.78
81W.Procedure when applications referred to Commissioner79
81X.Procedure on lodging of caveat under s. 81W(6)82
81Y.Registrar’s duties when applications made under s. 81V(1)(a) granted83
81Z.Registrar’s duties when applications made under s. 81V(1)(b) granted84
81ZA.Procedure for registering interests for which no certificate of Crown land title or qualified certificate of Crown land title exists85
81ZB.Qualified certificates of Crown land title, general matters85
81ZC.Interests in Crown land not registered within transitional period void as against registered interests in Crown land etc.86
81ZD.Registrar may convert Crown leases into leases registered under s. 81Q87
Part IV — Dealings with land
Division 1 — Transfers
82.Transfers88
83.Transfer to include right to sue thereunder88
84.Transfers may be to proprietor and others jointly etc.89
85.Signed and registered instruments have efficacy of deeds89
86.Duplicate certificate to be delivered to Registrar on transfer90
87.Total transfer by endorsement on paper title or by entering transferee’s name on digital title90
88.Transferee of encumbered land to indemnify transferor91
88A.Memorial of easements to be registered91
Division 2 — Leases and subleases
91.Leases92
92.Covenants by lessee implied in leases92
93.Lessor’s powers implied in leases93
94.Short forms of covenants by lessees93
95.Covenant to be implied on transfer of lease94
96.Recovery of possession by lessors to be entered in Register94
97.Mortgagee of interest of bankrupt lessee may apply to be entered as transferee of lease and on default lessor may apply95
98.Surrendering leases95
99.Lessee may sublet96
100.Registration of subleases97
102.Provisions about leases apply to subleases97
103.Covenants implied in subleases98
104.Determination of lease or sublease by re‑entry to be entered in Register98
Division 2A — Carbon rights and carbon covenants
104A.Terms used100
104B.Registration of carbon right form100
104C.Extension of carbon right100
104D.Transfer of carbon right101
104E.Mortgage of carbon right102
104F.Surrender of carbon right102
104G.Registration of carbon covenant form103
104H.Extension of carbon covenant103
104I.Variation of carbon covenant104
104J.Transfer of benefits under carbon covenant106
104K.Mortgage of carbon covenant106
104L.Surrender of carbon covenant107
Division 2B — Tree plantation agreements and plantation interests
104M.Terms used107
104N.Registration of tree plantation agreement108
104O.Extension of plantation interest108
104P.Variation of agreement110
104Q.Transfer of plantation interests111
104R.Mortgage of plantation interests112
104S.Surrender of plantation interests112
Division 3 — Mortgages and annuities
105.Mortgages and charges for annuities, creating113
105A.Extension of mortgage, charge or lease114
106.Mortgage or charge not to operate as transfer; default procedures114
107.Written demand equivalent to written notice116
108.Power to sell in cases of continuing default116
109.Application of purchase money117
110.Transfer after sale by mortgagee etc., effect of118
111.Remedies of mortgagee or annuitant in cases of default119
112.Further remedies of mortgagee or annuitant119
112A.Abolition of power of distress120
113.Covenants implied in mortgages120
114.Mortgagee or annuitant of leasehold entering into possession become liable to lessor121
115.Short form of covenant by mortgagor to insure121
116.Rights of mortgagees generally121
117.Mortgagor not to sue on cause of action available to mortgagee without mortgagee’s consent122
118.Application of money obtained by mortgagor in action for waste of or damage to mortgaged lands123
119.Mortgagee may seek court order as to money recovered by mortgagor in action123
120.Application of moneys obtained by mortgagee in action124
121.Foreclosure, application for order for124
122.Application for foreclosure to be advertised126
123.Discharge of mortgages and annuities126
124.Mortgages etc. made before land brought under this Act127
125.Entry of satisfaction of annuity127
126.Payments under and discharge of mortgages when mortgagee absent from State etc.128
127A.Subsequent mortgages or charges130
127.First mortgagee to produce title for registration of subsequent instrument131
128.Land brought under this Act subject to mortgage, rights of mortgagee etc.131
128A.Another mortgagee may tender payment131
Division 3A — Restrictive covenants and the modification, discharge and enforcement of restrictive covenants and easements
129A.Creation of restrictive covenants132
129B.Discharge and modification of restrictive covenants133
129BA.Restrictive covenants benefiting local governments and public authorities134
129BB.Discharge and modification of s. 129BA covenants134
129C.Supreme Court’s powers as to easements etc.137
Division 4 — Miscellaneous
130.Seal of corporation substitute for signature141
131.Implied covenants and powers may be modified or negatived141
133.Property (seizure and sale) order, registration of etc.142
134.Purchaser from registered proprietor not required to inquire into title and not affected by notice of unregistered interest etc.147
135.Transferee of tenant in tail may be registered for larger estate which tenant in tail can confer148
136.Registrar to furnish plan showing land dealt with where memorandum on certificate does not describe the land148
Part IVA — Creation of easements and restrictive covenants by notations on subdivision plans and diagrams
136A.Term used: plan150
136B.Application of this Part150
136C.Notation of easements on subdivision plans150
136D.Notation of restrictive covenants on subdivision plans152
136E.Consent of certain persons required to creation of easements and restrictive covenants153
136F.When easements and restrictive covenants under this Part have effect153
136G.Easements and restrictive covenants under this Part may be effective for specified term only154
136H.Easements and restrictive covenants under this Part may both burden and benefit land of same proprietor154
136I.Recordings in Register154
136J.Discharge and modification of easements and restrictive covenants under this Part155
Part V — Caveats
136K.Term used: section 138A caveat; application of this Part158
137.Lodging caveats for land already under this Act158
138.Consequences of lodging caveat159
138A.Caveats to which s. 138B to 138D apply161
138B.Requiring caveator to seek court order extending s. 138A caveat161
138C.Supreme Court’s powers on application by caveator162
138D.Restrictions on caveators lodging further s. 138A caveats163
139.Effect of caveats164
140.Compensation for caveat lodged without reasonable cause164
141.Registrar’s duties when caveat lodged or lapses165
141A.Requiring caveators to withdraw caveats or substantiate their claims165
142.Caveat on behalf of beneficiary under will or settlement does not bar registration in certain cases166
Part VI — Powers of attorney and attestation of instruments
143.Powers of attorney, creation and filing of167
144.Powers of attorney, effect of168
145.Signatures on documents, witnessing requirements168
Part VII — Search certificates and stay orders
146.Finding out whether proprietor is free to deal with land171
147.Person issued search certificate under s. 146 entitled to inspect certificate of title171
148.Person proposing to deal with proprietor may obtain stay of registration for 48 hours if title is clear171
149.Instrument effecting proposed dealing entitled to priority if lodged within 48 hour stay granted under s. 148172
150.Other instruments received in the 48 hours to have usual priority if proposed dealing not lodged under s. 149172
Part VIII — Surveys, plans, parcels and boundaries
151.Crown survey boundaries as marked on ground are true boundaries173
152.Crown grant or lease conveys land within survey boundaries173
153.Aliquot parts of Crown section having excess of area174
153A.Land not in grant etc. but included in certificate due to error in survey may be deemed included in grant etc.174
154.How boundaries may be proved in absence of survey marks175
155.Margin of error allowed in description of boundaries176
156.Commissioner may require special survey of land176
157.Commissioner may require accuracy of survey to be verified177
158.Commissioner may disregard minute errors of dimensions177
159.Excess land may be apportioned between different owners or proprietors177
160.Commissioner’s powers where boundaries unclear in subdivision178
161.Plan to be made of subdivision proposed under s. 160179
162.Subdivision proposed under s. 160 to be advertised etc.179
163.Finalised subdivision, verification and effect of plan of180
164.Public notice to be given of finalised subdivision and plan181
165.Expense of survey ordered under s. 160, how paid181
166.New certificates of title on subdivision of land181
166A.Subdivisions of Crown land182
166B.Subsidiary certificates of Crown land title183
167.Number of allotment on plan of subdivision sufficient description for purposes of dealing184
167A.Rights of way generally not public ways or thoroughfares184
168.Abuttals may be used in description of land in certificate185
169.Objects which may constitute abuttals186
Part IX — Amendment of certificates and amendment or replacement of graphics
169A.Only Minister for Lands may alter areas, boundaries or positions of parcels of Crown land187
170.Proprietor may apply for amendment of certificate to make boundaries coincide with land occupied under certificate187
171.Proprietor may apply to have other certificates amended where inconsistent with description of land in his certificate and occupied by him187
172.Form of application under s. 170 or 171188
173.How application under s. 170 or 171 to be dealt with188
174.Notice of s. 170 or 171 application to be given to owners etc. of adjourning land affected by it189
175.Notice of s. 170 or 171 application to be published and publicly displayed189
176.Person opposing s. 170 or 171 application may lodge caveat190
177.Applications under s. 170, 171 or 20 may be granted although other certificates may be affected190
178.On granting application other certificates, relevant graphics and duplicate certificates may be amended, replaced or reissued191
Part X — Special powers and duties of the Commissioner and Registrar
180.Commissioner may summons people to provide information192
181A.Commissioner and Registrar may require supporting documentation or evidence or verification194
181B.Commissioner and Registrar may require verification by statutory declaration196
181.Regulations196
182AA.Prescribed fees may exceed cost recovery201
182AB.Expiry of s. 182AA202
182A.Commissioner and Registrar may determine requirements203
182B.Publication of requirements206
182.Orders vesting trust estate207
183.Commissioner may make vesting order in cases of completed purchase208
184.Encumbrances which no longer affect title, powers to deal with209
187.Appointment of executor, administrator or Public Trustee, entry on Register and effect209
188.Powers of Registrar210
189.Registrar may correct apparent errors in instruments without direction of Commissioner212
190.Money received by Registrar212
191.Registrar may demand prescribed fees212
192A.Registrar entitled to assume that lodging party has certain authorities from other interested parties213
192B.Registrar may refuse lodgment for non‑compliance with certain requirements214
192C.Commissioner may refuse to take action if requirements not complied with214
192D.Registrar may refuse registration, noting or recording for non‑compliance with requirements215
192E.Notice of non‑compliance under s. 192D217
192.Defective documents, rejection of217
193.Power to state case for Supreme Court218
Part XI — Restrictions on, and recovery of, payments of compensation by State
195.Moneys paid by State under s. 201 may be recovered219
196.State not liable in certain cases220
Part XII — Actions and other remedies
198.Officers not to be liable for acts done bona fide222
199.Registered proprietor protected against ejectment except in certain cases222
200.Court may direct cancellation of certificate or entry in Register in certain cases223
201.Compensation of person deprived of land223
202.Purchasers protected224
203.Owner may require Commissioner or Registrar to substantiate decision before Supreme Court225
204.Cost of summons and proceedings under s. 203 to be in discretion of court226
205.Actions for damages may in some cases be brought against Registrar as nominal defendant226
206.Actions for damages for loss due to inaccurate survey227
207.Actions for damages in certain other cases227
208.Claims for damages may be made to Commissioner before commencing court action228
209.Notice of action to be served228
210.Damages etc. awarded to be charged to Consolidated Account229
211.Limitation of actions229
212.Rules of Supreme Court to apply and same right of appeal as in ordinary actions230
213.Obligation to make discovery not excluded231
Part XIII — Offences
214.Offences232
214A.Effect of fraud233
Part XIV — Miscellaneous
219.Person entitled under will etc. may apply to be registered234
220.Application under s. 219, how dealt with234
221.Remainder‑man or reversioner may apply to be registered235
222.Person claiming title under statute of limitations may apply to be registered236
223.Application under s. 222, how dealt with236
223A.Caveat against application237
227.Survivor of joint proprietors may apply to be registered237
228.Proprietors and transferees for time being to stand in place of previous owners238
229.Proprietor’s name, use of in court action by beneficiary etc.238
229A.Easement not used or enjoyed for 20 years, removal of239
229B.Orders made under s. 229A, effect of240
230.On s. 20 applications, easements not used for 20 years or more may be omitted from certificate240
231.Buildings on public roads etc. in Perth or Fremantle for 20 years or more241
232A.Effect of dealing with duplicate certificate of title in accordance with requirements as alternative to production242
232B.Effect of using alternative means to provide consent, permission or approval243
232.Receipt for documents lodged244
233.Pending actions etc. not to affect dealings244
234.Trustees etc. of bankrupts etc. may apply to be registered245
235.Bankruptcy of proprietor not to affect dealings until s. 234 application or caveat lodged245
236.Tenant in tail245
237.Conditions of sale in Twenty‑sixth Schedule, adoption of246
238.Forms may be modified246
238A.Registrar’s copy to be definitive246
238B.Resubmission of document lodged electronically if data capture defective247
239.Inspection of Register and related documents; obtaining copies and print‑outs249
239B.Evidentiary documents as to current and historical matters251
240.Service of notices251
240A.Notification of change of address, fax number or way of receiving notices electronically254
242.Interests disposed of or created by court order etc., registration of254
243.Revesting of land held by Crown in fee simple as Crown land256
Part XV — Transitional provisions for Electronic Conveyancing Act 2014
244.Term used: amending Act257
245.Transitional provision for s. 52(2)257
246.Transitional provision for s. 105(4)257
247.Transitional provision for s. 182A (requirements)257
First Schedule — Acts repealed
Second Schedule — Application to bring land under Act
Third Schedule — Notice to be posted on land
Fourth Schedule — Application to be registered as proprietor by possession
Ninth Schedule — Creation of rights of carriage‑way
Tenth Schedule — Short and long forms of certain easements
Twelfth Schedule — Short form of covenants by lessee
Sixteenth Schedule — Short form of covenant by mortgagor to insure
Nineteenth Schedule — Power of Attorney
Twenty‑fourth Schedule — Form of application to amend certificate or amend or replace relevant graphic
Twenty‑sixth Schedule — General conditions of sale
Twenty‑eighth Schedule — Application to register Crown lease
Notes
Compilation table283
Uncommenced provisions table290
Other notes290
Defined terms
Western Australia
Transfer of Land Act 1893
An Act to consolidate the law relating to the simplification of the title to and the dealing with estates in land.
[Heading inserted: No. 19 of 2010 s. 43(2).]
This Act may be cited as the Transfer of Land Act 1893.
[Section 1 inserted: No. 81 of 1996 s. 4.]
(1)The Acts mentioned in the First Schedule to this Act to the extent to which the same are thereby expressed to be repealed are hereby repealed.
(1A)Such repeal shall not affect any appointment (including those of specially licensed surveyors) declaration or any certified statement or list made or any application pending or any registration effected or any notice or certificate given or any memorandum entered or any caveat lodged or any seal prepared or any title estate interest claim right of dower or other right or power of attorney existing or duly acquired under the said Acts or any of them before the commencement of this Act.
(2)In all cases where in any Act instrument order decree rule regulation or document whatsoever reference is made to The Transfer of Land Act 1874 or to any Act or provision hereby repealed such reference shall be construed and have effect as if the same reference was made to the corresponding provisions of this Act.
[Section 2 amended: No. 19 of 2010 s. 51.]
3.Application of other laws etc. and this Act
(1)All laws statutes Acts Ordinances rules regulations and practice whatsoever so far as inconsistent with this Act shall not apply or be deemed to apply to land whether Crown, freehold or leasehold which shall be under the operation of this Act.
(2A)If a provision of this Act is inconsistent with a provision of the Electronic Conveyancing Act 2014, the provision of that Act prevails to the extent of the inconsistency.
(2)This Act does not —
(a)apply to the registration of rights over land in respect of minerals, petroleum, geothermal energy or geothermal energy resources; or
(b)prevent or otherwise affect the system of registration under other Acts of mining, petroleum or geothermal energy rights in respect of land whether Crown, freehold or leasehold.
(3)In subsection (2) —
geothermal energy and geothermal energy resources have the same meanings as they have in the Petroleum and Geothermal Energy Resources Act 1967;
mining, petroleum or geothermal energy rights has the same meaning as it has in the Land Administration Act 1997.
(4)If a provision of this Act is inconsistent with a provision of the Strata Titles Act 1985 that relates to strata leases, the provision of that Act prevails to the extent of the inconsistency.
[Section 3 amended: No. 31 of 1997 s. 88; No. 28 of 2003 s. 129(2); No. 35 of 2007 s. 106; No. 2 of 2014 s. 62; No. 30 of 2018 s. 194.]
4.Terms used; application of Act to Crown land
(1)In the construction of this Act except where the subject or context or the other provisions hereof require a different construction —
annuitant means the proprietor of an annuity or charge;
annuity means a sum of money payable periodically and charged on land under the operation of this Act by an instrument hereunder;
approved form, subject to section 81K, means a form approved by the Registrar of Titles;
Australian lawyer has the meaning given to that term in the Legal Profession Act 2008 section 3;
authorised land officer has the meaning given by the Land Administration Act 1997;
Authority means the Western Australian Land Information Authority established by the Land Information Authority Act 2006 section 5;
carbon covenant, carbon covenant form, carbon right and carbon right form have the same respective meanings as they have in the Carbon Rights Act 2003;
certificate of Crown land title means certificate of Crown land title within the meaning of the Land Administration Act 1997;
charge means —
(a)the instrument creating and charging an annuity; or
(b)subject to section 15(10) of the Land Administration Act 1997, a charge referred to in section 15(9)(b) of that Act;
conveyancing transaction has the meaning given in the Electronic Conveyancing Act 2014 section 3(1);
counterpart has the meaning given in subsection (1CA);
Crown land has the same meaning as it has in the Land Administration Act 1997;
Crown land lease means lease of Crown land registered under section 81Q;
Crown lease means every lease or other holding of Crown lands under the Land Act 1898 1, or any regulation thereby repealed, granted for or extending over a period of 5 years or more;
dealing, in relation to Crown land, has the same meaning as it has in the Land Administration Act 1997;
digital signature has the meaning given in the Electronic Conveyancing Act 2014 section 3(1);
digital title means a certificate of title in a medium in which the data comprising the certificate is stored and retrieved by digital means;
digitally sign has the meaning given in the Electronic Conveyancing Act 2014 section 3(1);
document means any record of information however recorded, and includes —
(a)anything on which there is writing; or
(b)anything on which there are marks, figures, symbols or perforations having a meaning for persons qualified to interpret them; or
(c)anything from which sounds, images or writings can be reproduced with or without the aid of anything else; or
(d)a map, plan, drawing or photograph; or
(e)any record of information that exists in a digital form and is capable of being reproduced, transmitted, stored and duplicated by electronic means;
ELN has the meaning given in the Electronic Conveyancing Act 2014 section 3(1);
ELNO has the meaning given in the Electronic Conveyancing Act 2014 section 3(1);
encumbrances includes all prior estates interests rights claims and demands which can or may be had made or set up in to upon or in respect of the land, and a dealing that is registered under this Act;
endorsed includes anything written, noted or marked, by means approved by the Registrar of Titles, upon or in any document;
Examiner of Titles means a person who is an Examiner of Titles under section 8(1);
grant means the grant by Her Majesty of land in fee and also includes Crown leases;
grantor means the proprietor of land charged with the payment of an annuity;
graphic includes —
(a)a sketch plan in the possession of the Registrar;
(b)a plan or diagram lodged or deposited under this Act;
(c)a plan of survey of Crown land,
in such medium for the storage and retrieval of information or combination of such media as the Registrar approves;
instrument includes —
(a)a document for the conveyance, assignment, transfer, lease, sublease, mortgage or charge of freehold land; and
(b)a document creating an easement, profit à prendre or restrictive covenant; and
(c)a carbon right form, carbon covenant form or tree plantation agreement; and
(d)a document for —
(i)the transfer, mortgage or charge of a carbon right, carbon covenant, plantation interest or profit à prendre or for any other dealing in relation to a carbon right, carbon covenant, plantation interest or profit à prendre; or
(ii)the extension of a carbon right, carbon covenant or plantation interest; or
(iii)the variation of a carbon covenant or tree plantation agreement; or
(iv)the surrender of a carbon right, carbon covenant or plantation interest;
and
(e)a document lodged with a plan or diagram under Part IVA for the purpose of creating an easement or restrictive covenant under that Part; and
(f)any other document for a dealing in relation to Crown land;
interest, in relation to Crown land, has the same meaning as it has in the Land Administration Act 1997;
judge means a judge of the Supreme Court of Western Australia;
land includes messuages, tenements and hereditaments corporeal or incorporeal in freehold and Crown land; and in every certificate of title certificate of Crown land title and qualified certificate of Crown land title transfer and lease created and registered or issued or made under this Act such word also includes all easements and appurtenances appertaining to the land therein described or reputed to be part thereof or appurtenant thereto;
management body has the same meaning as it has in the Land Administration Act 1997;
metropolitan region has the meaning given to that term in the Planning and Development Act 2005 section 4;
Minister for Lands means the Minister as defined in the Land Administration Act 1997 section 3(1);
ministerial order means an order made by the Minister for Lands under the Land Administration Act 1997;
paper title means a certificate of title in a paper medium;
participation rules has the meaning given in the Electronic Conveyancing Act 2014 section 3(1);
person includes a corporation whether aggregate or sole;
plantation interest has the same meaning as it has in the Tree Plantation Agreements Act 2003;
profit à prendre, in relation to —
(a)Crown land, has the same meaning as it has in the Land Administration Act 1997; or
(b)other land, includes profit à prendre referred to in section 34B of the Conservation and Land Management Act 1984 or Part 7 of the Forest Products Act 2000;
proprietor means —
(a)in relation to freehold land, the owner, whether in possession, remainder, reversion or otherwise, of land or of a lease, mortgage or charge over land; or
(aa)in relation to a carbon right, carbon covenant or plantation interest, a person; or
(b)in relation to Crown land —
(i)the holder of an interest in Crown land; or
(ii)a management body empowered under the Land Administration Act 1997 to grant or enter into interests in Crown land or to deal with or create any other right or title of a proprietary nature in Crown land,
whose name appears in the Register as the proprietor of that freehold land, lease, mortgage, charge, carbon right, carbon covenant or plantation interest, or the holder of that interest or power, and includes the donee of a power to appoint or dispose of that ownership, interest or power;
public authority means —
(a)a Minister of the Crown in right of the State; or
(b)any State Government department, State trading concern, State instrumentality or State agency; or
(c)any public statutory body, whether or not corporate, established under a written law but not including a local government;
qualified certificate of Crown land title means qualified certificate of Crown land title within the meaning of the Land Administration Act 1997;
qualified valuer means —
(a)in relation to a certificate of the value of land that is produced to the Registrar pursuant to a requirement made by him before the expiration of 12 months from the coming into operation of the Land Valuers Licensing Act 1978 2 —
(i)a person appointed as a sworn valuator under the provisions of this Act as enacted before the coming into operation of that Act; or
(ii)a person who is licensed under that Act;
(b)in relation to a certificate of the value of land that is produced to the Registrar pursuant to a requirement made by him after the expiration of 12 months from the coming into operation of the Land Valuers Licensing Act 1978 2 — a person who is licensed under that Act;
record includes information stored or recorded by means of a computer;
Register means the Register referred to in section 48;
relevant graphic, in relation to a certificate of title, means a graphic endorsed on, annexed to, referred to in or otherwise linked or connected to, the certificate of title;
reserve has the same meaning as it has in the Land Administration Act 1997;
settlement means any document under or by virtue of which any land shall be so limited as to create partial or limited estates or interests;
sheriff means the Sheriff of Western Australia and any deputy sheriff appointed by the Sheriff of Western Australia;
sign includes digitally sign;
signature includes a digital signature;
subscriber has the meaning given in the Electronic Conveyancing Act 2014 section 3(1);
symbol means a symbol approved by the Registrar under section 48C;
transmission means the acquirement of the ownership of freehold land under the will of the proprietor or by descent or by executors or administrators as such or under any settlement;
tree plantation agreement means an agreement as defined in the Tree Plantation Agreements Act 2003.
(1a)This Act applies, with such modifications —
(a)as are necessary or desirable; or
(b)as are prescribed,
or both, to Crown land.
(1b)Without limiting the generality of subsection (1a), a reference in this Act to —
(a)a certificate of title, document of title or muniment of title includes, unless the contrary intention appears, a reference to a certificate of Crown land title or qualified certificate of Crown land title; or
(b)a Crown grant includes, unless the contrary intention appears, a reference to a certificate of title created and registered on the registration of a transfer in fee simple of the relevant parcel of Crown land; or
(c)land, to freehold land or to land under the operation of this Act includes, unless the contrary intention appears, a reference to Crown land; or
(d)the Minister includes, unless the contrary intention appears, a reference to the Minister for Lands; or
(e)a person having an estate or interest in land includes, unless the contrary intention appears, a reference to —
(i)a person having an interest in Crown land; and
(ii)a management body empowered under the Land Administration Act 1997 to grant or enter into interests in Crown land;
or
(f)the exercise of rights by a proprietor of land to grant leases, licences or mortgages of or over the land includes, unless the contrary intention appears, a reference to the exercise by a management body of corresponding powers conferred on it under section 46(3) or 59(5) of the Land Administration Act 1997.
(1CA)For the purposes of this Act, a document is a counterpart in relation to another document if —
(a)the documents relate to the same conveyancing transaction; and
(b)the documents contain exactly the same data or information, apart from all or any of the following —
(i)any signature created for or appearing on each document;
(ii)the details of any attesting witness;
(iii)the date on which the documents were signed or witnessed;
(iv)any data or information authorised or required by a taxation Act (as defined in the Taxation Administration Act 2003 Glossary);
(v)anything else prescribed by the regulations for the purposes of this paragraph.
(1c)A word or expression which is defined in the Land Administration Act 1997 has, unless the contrary intention appears or the word or expression is otherwise defined in this Act, the same meaning in this Act as it has in that Act.
(2)All land and every estate and interest in land under the operation of The Transfer of Land Act 1874 and all instruments and dealings affecting any such land estate or interest shall from the commencement of this Act be deemed to be under the operation of this Act.
(3)In this Act, a reference to a short form in relation to an easement of a type described in column 2 of the Tenth Schedule is a reference to the corresponding short form description of that type of easement set out in column 1 of that Schedule.
[Section 4 amended: 2 Edw. VII. No. 10 s. 2 (as amended: No. 17 of 1950 s. 75); No. 54 of 1909 s. 2; No. 17 of 1950 s. 6; No. 56 of 1978 s. 4; No. 126 of 1987 s. 33; No. 81 of 1996 s. 5 and 145(1); No. 31 of 1997 s. 89; No. 34 of 2000 s. 72; No. 59 of 2000 s. 51; No. 6 of 2003 s. 4; No. 56 of 2003 s. 11; No. 59 of 2004 s. 140; No. 38 of 2005 s. 15; No. 60 of 2006 s. 103; No. 21 of 2008 s. 711(2); No. 8 of 2010 s. 28; No. 19 of 2010 s. 38(2); No. 2 of 2014 s. 63; No. 30 of 2018 s. 195.]
4A.Sections of this Act that do not apply to Crown land
(1)Subject to subsection (2), this Act applies to Crown land in the same way as it applies to freehold land.
(2)Notwithstanding any other provision of this Act, sections 29, 48B, 70, 71B, 86, 222, 223 and 223A do not apply to Crown land.
[Section 4A inserted: No. 31 of 1997 s. 90.]
(1)The Governor may designate a person to be the Commissioner of Titles under this Act.
(2)A person cannot be the Commissioner of Titles unless —
(a)the person is a member of the Authority’s staff; and
(b)the person is an Australian lawyer of not less than 7 years’ standing and practice.
(3)When the Land Information Authority Act 2006 section 104(1) comes into operation the person who, immediately before then, is the Commissioner of Titles becomes the Commissioner of Titles as if designated under subsection (1) for the balance of the person’s term of office.
[Section 5 inserted: No. 60 of 2006 s. 104; amended: No. 21 of 2008 s. 711(3).]
6.Deputy Commissioner of Titles
(1)The Governor may designate a person, or each of 2 or more persons, to be a Deputy Commissioner of Titles under this Act.
(2)A person cannot be a Deputy Commissioner of Titles unless —
(a)the person is a member of the Authority’s staff; and
(b)the person is an Australian lawyer of not less than 5 years’ standing.
(2a)When the Land Information Authority Act 2006 section 105(1) comes into operation a person who, immediately before then, is a Deputy Commissioner of Titles becomes a Deputy Commissioner of Titles as if designated under subsection (1) for the balance of the person’s term of office.
(3)When and as often as the Commissioner is incapacitated by illness, absence or other sufficient cause from performing the duties of the Commissioner, a Deputy Commissioner nominated in writing by the Commissioner is to act as, and in the place of, the Commissioner during the Commissioner’s incapacity.
(3a)When there is no Commissioner, a Deputy Commissioner nominated in writing by the former Commissioner before ceasing to be the Commissioner is to act as, and in the place of, the Commissioner.
(3b)If, in a circumstance described in subsection (3) or (3a), there is no Deputy Commissioner who has been nominated as described in that subsection and is able to act, a Deputy Commissioner nominated in writing by the Minister, is to act as, and in the place of, the Commissioner.
(4)A Deputy Commissioner while acting as Commissioner has all the powers of, and shall perform all the duties and functions of, the Commissioner, except the power of delegation conferred by section 15.
[(5), (6)deleted]
(7)The exercise by a Deputy Commissioner of any power or function pursuant to this section is sufficient evidence of his authority to do so, and no person shall be concerned to inquire as to that authority or be affected by any notice in relation thereto.
(8)A Deputy Commissioner is subject in all matters to the direction and control of the Commissioner.
[Section 6 inserted: No. 14 of 1972 s. 2; amended: No. 32 of 1994 s. 18; No. 6 of 2003 s. 5; No. 65 of 2003 s. 120(3); No. 60 of 2006 s. 105; No. 21 of 2008 s. 711(4).]
(1)The Governor may designate a person to be the Registrar of Titles under this Act.
(2)A person cannot be the Registrar of Titles unless the person is a member of the Authority’s staff.
(3)When the Land Information Authority Act 2006 section 106 comes into operation the person who, immediately before then, is the Registrar of Titles becomes the Registrar of Titles as if designated under subsection (1).
[Section 7 inserted: No. 60 of 2006 s. 106.]
7A.Offices of Commissioner and Registrar may be held by one person
(1)A person qualified to be the Commissioner of Titles may be, and may perform the functions of, both the Commissioner of Titles and the Registrar of Titles.
(2)Any act, matter, or thing which is required by this Act to be —
(a)referred by the Registrar of Titles to the Commissioner of Titles; or
(b)done or proceeded with or granted or refused by the Registrar of Titles by the direction or order or with the consent or approval of the Commissioner of Titles, or after the Commissioner of Titles has been satisfied of any facts,
may be dealt with by a person who is both the Registrar of Titles and the Commissioner of Titles without any reference, or on his own initiative or judgment, or pursuant to any order or direction made or given by himself, as in the circumstances of the case may appear to be most convenient.
(3)Nothing in this section shall be deemed to extend the powers of any Assistant Registrar.
[Section 7A inserted: No. 5 of 1925 s. 2; amended: No. 60 of 2006 s. 107.]
8.Examiner of Titles, Assistant Registrar of Titles
(1)The Governor may designate a person, or each of 2 or more persons, to be an Examiner of Titles under this Act.
(2)The Governor may designate a person, or each of 2 or more persons, to be an Assistant Registrar of Titles under this Act.
(3)A person cannot be an Examiner of Titles or an Assistant Registrar of Titles unless the person is a member of the Authority’s staff.
(4)A person cannot be an Examiner of Titles unless the person is an Australian lawyer.
(5)When the Land Information Authority Act 2006 section 108 comes into operation a person who, immediately before then, is an Assistant Registrar of Titles becomes an Assistant Registrar of Titles as if designated under subsection (2).
[Section 8 inserted: No. 60 of 2006 s. 108; amended: No. 21 of 2008 s. 711(5).]
8A.Designating statutory officers, generally
(1)This section applies to —
(a)the designation of a person under section 5 to be the Commissioner of Titles; and
(b)the designation of a person under section 6 to be a Deputy Commissioner of Titles; and
(c)the designation of a person under section 7 to be the Registrar of Titles; and
(d)the designation of a person under section 8(1) to be an Examiner of Titles; and
(e)the designation of a person under section 8(2) to be an Assistant Registrar of Titles.
(2)The power to designate a person includes —
(a)the power to revoke a designation previously made under that power; and
(b)the power to designate a person to perform functions of another person who has that designation when it is impractical for that other person to perform the functions.
[Section 8A inserted: No. 60 of 2006 s. 109.]
9.Certain signatures to be judicially noticed
(1)All courts judges and persons acting judicially shall take judicial notice of the signature of the Commissioner of Titles (hereinafter called the Commissioner) and of any Deputy Commissioner and of the Registrar of Titles (hereinafter called the Registrar) and of any Assistant Registrar of Titles (hereinafter called an Assistant Registrar) and of any Examiner of Titles.
(2)Nothing in this section or section 10 limits the operation of section 55 or 56 of the Evidence Act 1906.
[Section 9 amended: No. 14 of 1972 s. 3; No. 31 of 1997 s. 92; No. 6 of 2003 s. 6.]
(1)The Registrar shall have a seal which shall be in a form, and applied by means, approved by the Registrar.
(2)Certificates of title and other documents purporting to be marked with the seal, other than copies or print‑outs of documents provided under section 239(3), shall be admissible as evidence without further proof.
(3)The mark of the seal on any entry or memorandum entered in the Register or on any registered instrument or its duplicate shall be treated by any court or person having by law or by consent of parties authority to receive evidence as conclusive evidence that —
(a)the entry or memorandum has been duly entered in the Register; and
(b)the instrument, or the instrument to which the duplicate, entry or memorandum relates, has been duly registered.
(4)The mark of the seal on any memorandum referred to in section 54 shall be treated by all courts as conclusive evidence that the memorandum has been duly filed under that section.
[Section 10 inserted: No. 81 of 1996 s. 6 3; amended: No. 6 of 2003 s. 7.]
11.Assistant Registrar’s powers
Everything by this or any other Act appointed or authorised or required to be done or signed or initialled by the Registrar may be done or signed or initialled by any Assistant Registrar; and shall be as valid and effectual as if done or signed or initialled by the Registrar himself, except that an Assistant Registrar cannot exercise the power of delegation given to the Registrar by section 15A.
[Section 11 amended: No. 28 of 1969 s. 3; No. 60 of 2006 s. 110; No. 30 of 2018 s. 196.]
12.Commissioner and Examiner of Titles not to practise law
The Commissioner shall not nor shall any Examiner of Titles under this Act directly or indirectly engage in legal practice or share in the profits of a person so engaged.
[Section 12 amended: No. 21 of 2008 s. 711(6).]
Every Registrar and Assistant Registrar shall before executing any duties as the Registrar or an Assistant Registrar take the following oath before a judge:
I A.B. do solemnly swear that I will faithfully and to the best of my ability execute and perform the duties of Registrar of Titles [or Assistant Registrar of Titles] under the Transfer of Land Act 1893. So help me God.
[Section 13 amended: No. 60 of 2006 s. 111.]
14.Commissioner and Registrar may exercise functions electronically
(1)Anything that the Commissioner is required or authorised to do under this Act may be done by the Commissioner by electronic means in any way the Commissioner determines is appropriate.
(2)Anything that the Registrar is required or authorised to do under this Act may be done by the Registrar by electronic means in any way the Registrar determines is appropriate.
(3)If, in reliance on this section, something is done electronically when it would otherwise be required to have been done, or could have been done, using or with respect to a paper document, the doing of that thing electronically has the same effect as if that thing had been done using or with respect to a paper document.
(4)This section applies even though the provision requiring or authorising the Commissioner or Registrar to do something expressly or impliedly requires or authorises the thing to be done by means of a paper document.
[Section 14 inserted: No. 2 of 2014 s. 64.]
(1)The Commissioner may delegate any power or duty of the Commissioner under another provision of this Act to —
(a)a Deputy Commissioner;
(b)an Examiner of Titles;
(c)any other member of the Authority’s staff who is an Australian lawyer.
(2)The delegation must be in writing signed by the Commissioner.
(3)A person to whom a power or duty is delegated under this section cannot delegate that power or duty.
(4)A person exercising or performing a power or duty that has been delegated to the person under this section is to be taken to do so in accordance with the terms of the delegation unless the contrary is shown.
(5)Nothing in this section limits the ability of the Commissioner to perform a function through an officer or agent.
(6)A delegation to a Deputy Commissioner that the Commissioner made before the repeal effected by the Land Information Authority Act 2006 section 105(3) becomes, when section 112 of that Act inserts this section, of the same effect as if the Commissioner had made the delegation under this section.
[Section 15 inserted: No. 60 of 2006 s. 112; amended: No. 21 of 2008 s. 711(7).]
(1)The Registrar may delegate any power or duty of the Registrar under another provision of this Act to a member of the Authority’s staff.
(2)The delegation must be in writing signed by the Registrar.
(3)A person to whom a power or duty is delegated under this section cannot delegate that power or duty.
(4)A person exercising or performing a power or duty that has been delegated to the person under this section is to be taken to do so in accordance with the terms of the delegation unless the contrary is shown.
(5)Nothing in this section limits the ability of the Registrar to perform a function through an officer or agent.
[Section 15A inserted: No. 60 of 2006 s. 112.]
16.Rules relating to surveyors
The Minister may from time to time make rules and regulations to be observed by licensed surveyors lawfully entitled to practise under this Act.
[Section 16 amended: No. 25 of 1909 s. 29; No. 17 of 1950 s. 8.]
17.Some of Minister for Lands’ functions under this Act may be performed by authorised officer
(1)A function that the Minister for Lands has under a provision listed in the Table may be performed by a public service officer of the Department, as defined in the Land Administration Act 1997 section 3(1), who is authorised in writing by the Minister for Lands to do so.
(2)Nothing in this section limits the ability of the Minister for Lands to otherwise perform a function through an officer or agent.
Table
|
s. 70A(1), (2)(b), (3) |
s. 81D(1)(a) |
|
s. 81E |
s. 81F(1), (2), (3), (4) |
|
s. 81L |
s. 81V(1) |
|
s. 81ZA(3) |
s. 104(2) |
|
s. 129BA(2) |
s. 129BB(1), (2), (3) |
|
s. 136J(1), (2), (3) |
s. 145(2) |
|
s. 153A |
s. 166A(1), (3) |
|
s. 166B(1), (3) |
|
[Section 17 inserted: No. 8 of 2010 s. 29.]
Part II — Bringing land under the Act
[18.Deleted: No. 31 of 1997 s. 93(1) 4.]
[19.Deleted: No. 31 of 1997 s. 94(1) 5.]
20.Bringing lands alienated in fee before 1 July 1875 under this Act
(1)Land alienated in fee by Her Majesty before 1 July 1875 may be brought under the operation of this Act by an application in the form in the Second Schedule.
(2)The application may be made by any of the following persons (that is to say) —
(a)the person claiming to be the owner of the fee simple either at law or in equity;
(b)persons who collectively claim to be the owners of the fee simple either at law or in equity;
(c)persons who have the power of appointing or disposing of the fee simple;
(d)the person claiming to be the owner of the first estate of freehold provided that the owner of any vested estate of inheritance join in applying to bring the land under the operation of the Act;
(e)trustees for sale of the fee simple but if any previous consent to their selling be requisite the persons required to give such consent to consent to the application;
(f)the guardian of any infant or the committee of the estate of any lunatic or person of unsound mind unable to govern his estates so however that the application be made on behalf of such infant lunatic or person and the certificate of title be prepared for registration in his name;
(g)a tenant for life within the meaning of the Settled Land Act 1892 6, if the application contains a direction that the certificate of title be registered in the names of the trustees of the settlement within the meaning of that Act, and the trustees consent to the application.
(3)Despite subsection (2), a mortgagor shall not be entitled to make such application unless the mortgagee shall consent thereto.
(4)Despite subsection (2), a mortgagee shall not be entitled to make such application unless in the exercise of his power of sale and unless the certificate of title shall be prepared for registration in the purchaser’s name.
(5)Despite subsection (2), the attorney of any corporation howsoever and wheresoever incorporated whether already constituted or hereafter to be constituted by a power of attorney under a seal purporting to be the common seal of the corporation giving the power may make such application for and on behalf of the corporation of which he is the attorney and may make the requisite declaration to the best of his knowledge information and belief and may subscribe the application in his own name.
[Section 20 amended: No. 17 of 1950 s. 9; No. 81 of 1996 s. 8; No. 6 of 2003 s. 9; No. 19 of 2010 s. 51.]
20A.Evidence and restrictions of requisitions
(1)In applications to bring land under the Act the Commissioner may accept as evidence recitals, statements and descriptions of facts, matters and parties in deeds, instruments, Acts of Parliament and statutory declarations, the date shown as that of the execution, signature, passing or making of which precedes that of the application by at least 20 years.
(2)In applications to bring land under the Act an applicant shall not be required to negative, except as to the knowledge, information and belief of himself and his agents, the existence of any unregistered conveyances or assurances affecting any part of the land the subject of the application.
[Section 20A inserted: No. 17 of 1950 s. 10; amended: No. 19 of 2010 s. 51.]
21.How application to be dealt with when no dealing has been registered
The Registrar shall refer such application to the Commissioner for his direction or if there be such an officer then to an Examiner of Titles who shall report on the title and submit the same and the papers to the Commissioner for his direction; and if it shall appear to the Commissioner that no transaction affecting the land has been registered under any general registration Act concerning the registration of deeds relating to or affecting land and if he shall be satisfied as to the title of the applicant he shall direct the Registrar to bring the land under the operation of this Act either forthwith or after advertisement made as hereinafter directed by registering a certificate of title.
22.How application to be dealt with when dealing has been registered
(1)If it shall appear to the Commissioner that any such transaction as aforesaid has been registered and that all encumbrances affecting the land (excepting such as are hereinafter mentioned as not requiring special notification) have been released or that the owners thereof have consented to the application or that any encumbrance (not being a mortgage the owner whereof shall not have consented to the application) may be specified in the certificate of title and continue outstanding and if he shall be satisfied with the evidence submitted in support of the title and of such further evidence as he shall call for by requisition the Commissioner shall direct notice of the application to be advertised once at least in the Government Gazette and in one newspaper published in the city of Perth or circulating in the neighbourhood of the land and to be served on any persons named by him; and shall appoint a time not less than 14 days nor more than 12 months from such notice or from the advertisement or the first of such advertisements (if more than one) on or after the expiration of which the Registrar shall unless a caveat shall be lodged forbidding the same bring the land under the operation of this Act.
(2)The expenses of all advertisements under this or any other section shall in all cases be paid to the Registrar before the publication thereof.
[Section 22 amended: No. 19 of 2010 s. 51.]
23.Notice of application to bring land under this Act and rescission of previous directions on undue delay
(1)The Registrar shall under such direction as aforesaid cause notice to be published in such manner as by such direction may be prescribed that application has been made for bringing the land under the operation of this Act and shall cause a copy of such notice to be posted in a conspicuous place at the Authority’s office and shall serve a copy of the notice on every person whom the Commissioner has directed to be served with such notice, the persons stated in the application to be occupiers of the land, the occupiers and owners of the lands contiguous to the land (unless the land is an entire Crown allotment) and all persons appearing on the Register to have a then subsisting estate or interest in the land.
(2)Notwithstanding however any direction heretofore given or which shall hereafter be given by the Commissioner to bring land under the operation either of The Transfer of Land Act 1874, or of this Act he may after sending to the applicant or his agent one month’s notice in this behalf rescind such direction and reject the title unless the applicant shall adduce satisfactory proof that he is proceeding without unnecessary delay in removing or complying with the requisitions made on the title.
[Section 23 amended: No. 81 of 1996 s. 9; No. 60 of 2006 s. 118(2); No. 19 of 2010 s. 51.]
24.Person claiming title by possession to post notice of application on land
On any application to bring land under this Act on a title claimed by possession the applicant shall post on the land the subject of the application or at such place as the Commissioner shall direct a notice in the form in the Third Schedule either accurately describing or necessarily including the land claimed by possession and shall keep the same so posted for not less than 21 days prior to the day limited for entry of caveat; and the Commissioner may refuse to create the certificate until it has been proved to his satisfaction that the requirements of this section have been complied with.
[Section 24 amended: No. 81 of 1996 s. 10.]
25.Land to be brought under this Act unless caveat received
If before the registration of the certificate the Registrar shall not have received a caveat forbidding the same he shall bring the land under this Act by registering in the name of the applicant or in the name of such person as may have been directed in that behalf a certificate of title, in an approved form, to the land.
[Section 25 amended: No. 17 of 1950 s. 11; No. 81 of 1996 s. 11.]
26.Land occupied may be brought under this Act by different description from that in title on special application
On any application to bring land under this Act in which the land actually and bona fide occupied by the applicant differs in boundaries area or position from the land described in his muniments of title he may apply to bring under this Act the land so occupied; and in any such case the applicant shall state in his application in addition to the other particulars required by this Act that the land as occupied by him and as to which he applies for a certificate is not correctly described in the muniments of title lodged in support of the application and shall specify to the best of his knowledge and belief the reasons for the discrepancy between the land as occupied and the land as described in the muniments of title.
27.Applications to bring land under this Act or to amend certificate may be granted as to land occupied under but not described in title deeds or certificate
On any application to bring land under this Act by a description different from that in the muniments of title or for the amendment of a certificate or for the amendment or replacement of a relevant graphic the Commissioner may grant the same as to the land in the occupation of the applicant if the discrepancy between the land as occupied and as described in the muniments or certificate of title or relevant graphic shall appear to be due to the inaccuracy of any survey or plan or description on the sale of the land by the Crown or on any subsequent dealing therewith or to any discrepancy between the actual measurements or bearings at any time made or marked on the ground and those represented or mentioned in any plan or description.
[Section 27 amended: No. 81 of 1996 s. 12; No. 6 of 2003 s. 10.]
28.Title may be given to excess of land occupied under Crown grant over land described in Crown grant
If the land included in any application to bring land under this Act or for an amended certificate or for the amendment or replacement of a relevant graphic consist of a Crown town or suburban allotment or country location and it shall be found by survey or otherwise that by reason of erroneous measurements in the original Crown survey the actual dimensions of such section allotment or portion as marked on the ground exceed or fall short of the dimensions given in the Crown grant or certificate of title or relevant graphic of such land the Commissioner may direct the Registrar to create and register a certificate in respect of such land as if the dimensions marked on the ground had been the dimensions given in the Crown grant or certificate of title and to amend or replace, if necessary, any relevant graphic.
[Section 28 amended: No. 81 of 1996 s. 13; No. 31 of 1997 s. 95; No. 6 of 2003 s. 11.]
29.Excess of land may be apportioned between different owners or proprietors
Where land has been subdivided by the Crown into allotments or portions of equal area and by reason of erroneous measurements in the original Crown survey the area of the section as marked on the ground exceeds the sum of the areas of all the allotments or portions as shown by any plan or description used at the Crown sale or by any grant or certificate of title or on any relevant graphic of any such allotment or portion the total excess of area of the section shall be deemed originally distributable amongst the allotments or portions equally; and if the area of the land included in any application to bring land under this Act or for an amended certificate or for the amendment or replacement of a relevant graphic is in the applicant’s possession and was in such applicant’s possession or those through whom he claims for over 12 years previous to the application and does not exceed the area obtained by dividing the area of the section as shown on the ground by the number of original allotments or portions the Commissioner may without ascertaining the dimensions of the other allotments or portions and without the consent of the owner or owners thereof direct the Registrar to create and register a certificate in respect of the land included in such application as if the whole of it had been included by metes and bounds in the original grant or certificate of title and to amend or replace, if necessary, any relevant graphic.
[Section 29 amended: No. 81 of 1996 s. 14; No. 6 of 2003 s. 12.]
30.Parties interested may lodge caveat
(1)Any person claiming any estate or interest in the land described in the advertisement may in person or by agent before the registration of the certificate lodge a caveat with the Registrar in an approved form forbidding the bringing of such land under this Act.
(2)Every such caveat shall be signed by the caveator or by his agent and shall particularise the estate or interest claimed.
(3)The Registrar may by notice require any person lodging such caveat to support the same by a statutory declaration within 7 days after the service of such notice stating the nature of the title under which the claim is made and also to deliver a perfect abstract of the title to such estate or interest.
(4)Unless such declaration be lodged within the time aforesaid the caveat shall lapse.
(5)A caveat under this section cannot be lodged unless one of the following is specified in it for the purposes of the service of notices in relation to the caveat —
(a)an address in Australia;
(b)a number for a facsimile machine in Australia;
(c)a way of receiving notices electronically (for example, an email address) that is prescribed by the regulations for the purposes of this paragraph.
[Section 30 amended: No. 81 of 1996 s. 15; No. 19 of 2010 s. 51; No. 2 of 2014 s. 65.]
31.If caveat received, proceedings suspended
(1)The Registrar upon receipt of such caveat shall notify the same to the applicant and shall suspend proceeding in the matter until such caveat shall have been withdrawn or shall have lapsed as in this Act provided or until an order in the matter shall have been obtained from the Supreme Court or a judge.
(2)The applicant may if he think fit summon the caveator to attend before the Supreme Court or a judge in chambers to show cause why such caveat should not be removed; and such court or judge may upon proof that such caveator has been summoned make such order in the premises either ex parte or otherwise as to such court or judge may seem fit.
[Section 31 amended: No. 19 of 2010 s. 51.]
32.Caveat to lapse unless proceedings taken within one month
(1)After the expiration of one month from the receipt thereof such caveat shall be deemed to have lapsed unless the person by whom or on whose behalf the same was lodged shall within that time have taken proceedings in a court of competent jurisdiction to establish his title to the estate or interest specified in the caveat and shall have given written notice thereof to the Registrar or shall have obtained and served on him an injunction or order of the Supreme Court or a judge restraining him from bringing the land under this Act.
(2)A caveat shall not be renewed by or on behalf of the same person in respect of the same estate or interest.
[Section 32 amended: No. 19 of 2010 s. 51.]
33.Judge may require production of title deeds in support of application to bring land under this Act
(1)After an application has been made to have any land brought under the operation of this Act a judge may require all persons having in their possession or custody any deeds instruments or evidences of title relating to or affecting the land the subject of such application to produce the same to the Commissioner and in case there be such to any Examiner of Titles for his inspection upon such terms and subject to such conditions and for such charge or fee as the judge making the order may think just and shall fix.
(2)All applications to be made to a judge under this section may be made by summons in chambers by the applicant owner or by the person in whose name a certificate of title would be created if the application were to be successful.
[Section 33 amended: No. 81 of 1996 s. 16; No. 19 of 2010 s. 51.]
34.Applicant may withdraw application
An applicant may withdraw his application at any time prior to the registration of the certificate; and the Registrar shall in such case return to the applicant or to the person appearing by the application to be entitled thereto all evidences of title lodged in support of the application; but in such case if a caveator shall have been put to expense without sufficient cause by reason of such application he shall be entitled to receive from the applicant such compensation as a judge on a summons in chambers shall deem just and order.
(1)Upon registering a certificate of title the Registrar shall retain in his custody and possession all grants and instruments evidencing the title of the person registered and shall endorse upon the last of them if there be more than one a memorandum that the land included in the certificate has been brought under this Act and shall sign such memorandum.
(2)Despite subsection (1), if any of such grants or instruments relate to any property other than the land included in such certificate the Registrar shall return such grant or instrument to the person from whom he received the same.
(3)No person shall be entitled to an inspection of any of such instruments except upon the written order of the person who originally deposited the same or of some person claiming through or under him or upon the order of a judge or of the Commissioner.
(4)No action or suit at law or in equity shall be brought or maintained upon any covenant or agreement for the production of the documents which shall be so retained or upon any agreement to give or enter into a covenant for the production thereof; and if any such action or suit shall be commenced it shall be a sufficient answer thereto that such documents have been retained under this Act.
[Section 35 amended: No. 19 of 2010 s. 51.]
36.Subsisting lease to be endorsed and returned
Where any subsisting lease has been lodged the Registrar shall after he has endorsed the same as above provided in the case of the last material registered document, return such lease to the person lodging the same upon the applicant lodging with the Registrar a certified copy of such lease.
37.Additional evidence to be scheduled
When any additional evidence is produced in support of any application either to bring land under the operation of this Act or upon a transmission the documents shall be delivered to the Registrar who shall thereupon add them to the schedule of the application noting thereon the time of their production and affixing his initials thereto before submitting such additional evidence to the Commissioner.
38.Some certificates of title to issue in name of deceased person
In case the applicant or the person in whose name the certificate of title has been prepared for registration dies between the application and the registration of the certificate it shall be registered in the name of such applicant or of such person as the case may be; and such land shall devolve or pass in like manner as if the certificate had been registered prior to the death of such applicant or person.
[Section 38 amended: No. 81 of 1996 s. 17.]
(1)Land leased for a term of years of which 10 years are unexpired or leased for years determinable with a life or lives may be brought under the operation of this Act as near as may be in a similar manner and subject to the same or similar provisions as are hereinbefore contained with respect to freehold land.
(2)The application may be made by persons having such estates and interests in the leasehold land as are similar or correspondent to the estates and interests of the persons entitled to apply to bring freehold land under this Act.
(3)Every certificate of title to leasehold land shall always be subject to the rights and powers of the lessor or his representative and of any person entitled to the inheritance in the land immediately expectant on the term as well as to the encumbrances hereinafter mentioned as not requiring special notification.
(4)The several provisions of this Act with respect to freehold land shall apply to leasehold and with such variations only as the difference in the nature of such property requires or as may be necessary to render such provisions applicable to leaseholds for years.
[Section 39 amended: No. 19 of 2010 s. 51.]
[40.Deleted: No. 81 of 1996 s. 18.]
[41.Deleted: No. 81 of 1996 s. 19.]
42.Production of lease may be dispensed with on bringing land under this Act
On any application to bring land under this Act the Commissioner may dispense with the production of any lease and may accept the memorial of the registration thereof as sufficient evidence of its contents; and if the memorial does not disclose any right of renewal or purchase no such right shall be assumed to have existed and the lease shall be deemed to have expired at the time at which it would have expired according to the date and term appearing in the memorial.
43.Certain memorials to be sufficient evidence of conveyances in fee
A memorial of any release conveyance or reconveyance registered under any Ordinance or Act concerning the registration of deeds relating to or affecting land may for the purpose of bringing land under this Act be deemed by the Commissioner sufficient evidence of the deed referred to being a conveyance in fee simple of the lands described in such memorial unless the contrary can reasonably be inferred from the prior or subsequent title or from something appearing on the face of such memorial.
[Section 43 amended: No. 113 of 1965 s. 4; No. 81 of 1996 s. 20.]
[44.Deleted: No. 81 of 1996 s. 21.]
45.Commissioner may direct Registrar to bring land under this Act
Notwithstanding anything hereinbefore contained the Commissioner may after the publication of such advertisements as he may deem fit direct the Registrar to bring any land under the operation of this Act.
[Section 45 amended: No. 81 of 1996 s. 22.]
46.Title to land sold under order or decree may be deemed sufficient
An office copy of any order heretofore made or which shall hereafter be made by the Supreme Court (whether such order shall hereafter be in the form of an order confirming the report of the master or in any other form) confirming a person as the purchaser of any land sold in fee simple under or in pursuance of any decree or order of such court together with an office copy of such decree or order and such certificate of payment as hereinafter mentioned may for the purpose of bringing land under this Act be deemed by the Commissioner sufficient evidence of the title of the purchaser to such land subject to any estate or interest appearing by the decree or order or order of confirmation or subsequently created, and registered.
Every order of confirmation of a purchase which shall hereafter be made shall be drawn up so as to refer to a schedule thereto containing the name and address of the purchaser and a description of the land purchased by him; and the master of the Supreme Court is hereby required after payment and acceptance of all the money payable in respect of any particular purchase to give upon any such office copy order of confirmation a written certificate that the purchase money and all interest in respect thereof payable by any purchaser named in such certificate for any land therein referred to has been wholly paid.
[Section 47 amended: No. 81 of 1996 s. 146(1).]
Part III — Certificates of titles and registration
(1)The Registrar shall cause to be maintained for the purposes of this Act a Register comprising —
(a)all registered certificates of title; and
(b)in relation to land that is the subject of a digital title, a record of the endorsements of the particulars of all dealings and matters referred to in section 48A(2) or 81P, as is relevant to the case, that used to affect, but do not currently affect, the land; and
(c)in relation to land that is the subject of a paper title, a record of the entries of recovery of possession and of surrender made under section 102 in relation to a sublease of the land.
(2)The Register may be maintained in any medium for the storage and retrieval of information or combination of such media —
(a)whether or not the kind of medium is the same as that in which the information was originally presented for registration or lodgment; and
(b)where, in the opinion of the Registrar, the medium or combination is appropriate having regard to the purposes of this Act.
(3)Where a record of information in the Register deteriorates or is incomplete, the Registrar may cause another record to be prepared or the record to be completed, as the case may be, and the new or completed record then has effect as the record for the purposes of the Register.
(4)The Registrar may prepare the new or completed record from such evidence as is available as to the content of the original or complete record, as the case may be.
(5)If under subsection (3) a new record is prepared or a record is completed, the Registrar shall ensure the following are entered in the Register —
(a)the date that the new record was prepared or the record was completed; and
(b)such information as will enable the history of the record to be traced.
(6)The Registrar may at any time cause a record of information in the Register that is in one medium or a combination of media to be converted to another medium or combination of media with such advice to persons affected by the conversion as the Registrar considers appropriate.
[Section 48 inserted: No. 81 of 1996 s. 23; amended: No. 6 of 2003 s. 13.]
(1)Subject to subsection (1a), each certificate of title created for registration shall be in an approved form.
(1a)The following may, with the approval of the Registrar, be endorsed on, annexed to, referred to in or otherwise linked or connected to, a certificate of title, but do not form part of the certificate of title —
(a)information about the land that is the subject of the certificate, not being information about the title of the land or particulars that are required to be endorsed on the certificate under subsection (2);
(b)a graphic of the extent or location of —
(i)the land that is the subject of the certificate; or
(ii)an easement affecting the whole or part of the land; or
(iii)a restrictive covenant affecting the whole or part of the land; or
(iv)a positive covenant, as defined in the Land Administration Act 1997, affecting the whole or part of the land.
(2)The Registrar shall endorse on each certificate of title the particulars of all dealings and matters affecting the land that is the subject of the certificate where the particulars are required by this Act to be registered or entered in the Register and such endorsement shall be in a manner that preserves the priorities of those dealings or matters.
[Section 48A inserted: No. 81 of 1996 s. 23; amended: No. 6 of 2003 s. 14.]
48B.Duplicate certificates of title
(1)Where a certificate of title has been registered the Registrar shall issue a duplicate certificate of title to the proprietor of the land that is the subject of the certificate of title unless subsection (1A) applies or the proprietor requests, in an approved form, that —
(a)a duplicate certificate of title not be issued; or
(b)the duplicate certificate of title be issued to a person named and authorised by the proprietor, in which case the Registrar shall issue the duplicate certificate to that person.
(1A)A duplicate certificate of title is not to be issued to the proprietor of a strata leasehold estate in land as defined in the Strata Titles Act 1985 section 3(1).
(2)Where the Registrar issues a duplicate certificate of title, the duplicate shall be in or on a medium approved by the Registrar.
(3)Where a duplicate certificate of title is not issued, the Registrar shall endorse the certificate of title to that effect.
(4)If land is the subject of a certificate of title, the Registrar may cancel the duplicate certificate of title for the land if —
(a)a request is made in accordance with subsection (5A) for the cancellation of the duplicate certificate of title; and
(b)the duplicate certificate of title is delivered to the Registrar for retention, disposal or destruction.
(5A)A request may be made under subsection (4) by —
(a)a proprietor of the land (including the proprietor of a registered mortgage or registered charge over the land); or
(b)a person lodging an instrument for the registration of a mortgage or charge over the land (the incoming mortgagee), but only if the incoming mortgagee satisfies the Registrar that the incoming mortgagee holds an acknowledgment from the registered proprietor of the freehold estate in the land that the incoming mortgagee intends to make the request.
(5B)On cancelling a duplicate certificate of title under subsection (4), the Registrar must endorse the certificate of title to that effect.
(5)Subject to subsection (1A), nothing in this section prevents the Registrar from issuing a duplicate certificate of title on the request, in an approved form, of the person who, for the time being, is the proprietor of the land for a duplicate certificate of title to be issued to that proprietor or to a person named and authorised by that proprietor as the person to whom the duplicate may be issued.
[Section 48B inserted: No. 81 of 1996 s. 23; amended: No. 6 of 2003 s. 15; No. 2 of 2014 s. 66; No. 30 of 2018 s. 197.]
The Registrar may endorse a record of information in his possession with a symbol —
(a)of a kind; and
(b)with a meaning,
approved by the Registrar.
[Section 48C inserted: No. 81 of 1996 s. 23.]
49.One certificate may be created for lands not contiguous
One certificate of title may be created and registered for several parcels of land though the same are not contiguous if in the opinion of the Registrar their relative positions can be sufficiently and conveniently shown in a relevant graphic.
[Section 49 amended: No. 32 of 1917 s. 2; No. 81 of 1996 s. 24; No. 6 of 2003 s. 16.]
50.Area of land need not be mentioned in certificate
It shall not be necessary to mention the area of any parcel of land included in a certificate and the omission to refer to the area of the land comprised in a certificate shall not in any case invalidate the certificate.
[Section 50 amended: No. 17 of 1950 s. 13; No. 94 of 1972 s. 4; No. 6 of 2003 s. 17.]
[51.Deleted: No. 81 of 1996 s. 25.]
52.Registration of certificates of title and instruments
(1)A certificate of title, in the case of a paper title, is registered when —
(a)it has been allocated a reference number distinguishing it from all other certificates of title; and
(b)it has been sealed.
(1a)A certificate of title, in the case of a digital title, is registered when —
(a)it has been allocated a reference number distinguishing it from all other certificates of title; and
(b)it has been incorporated into the Registrar’s digital database as a certificate of title.
(2)An instrument purporting to affect any land for which a certificate of title has been registered is registered when a memorandum referred to in section 56 in relation to the original instrument has been entered in the Register on the certificate.
(3)The Registrar may require a person who presents a lease for registration to also lodge a duplicate of the lease.
(4)The person named in —
(a)a certificate of title referred to in subsection (1); or
(b)an instrument referred to in subsection (2),
as the proprietor or as having an estate or interest or power in relation to the land that is the subject of the certificate or the instrument shall be deemed to be the registered proprietor of the land or to have the estate or interest or power in relation to the land, as the case may be.
[Section 52 inserted: No. 81 of 1996 s. 26; amended: No. 6 of 2003 s. 18; No. 2 of 2014 s. 67.]
53.Priority of registration of instruments
(1)The Registrar shall register an instrument presented for registration in the order, and from the time, of its presentation.
(2)Instruments purporting to affect the same estate or interest have priority as between each other according to the time of registration and not according to the date of the instrument, notwithstanding any actual or constructive notice.
[Section 53 inserted: No. 81 of 1996 s. 27.]
54.Incorporation of terms etc. of certain memoranda
(1)In this section, memorandum means a document containing terms, conditions, covenants or other provisions purporting to affect any land under the operation of this Act.
(2)Any person may, on payment of the prescribed fee, lodge with the Registrar a memorandum in an approved form.
(3)The Registrar may file —
(a)a memorandum lodged under subsection (2) if the content is approved by the Registrar; and
(b)a memorandum on his own behalf,
and the Registrar shall allocate to each memorandum so filed a reference number distinguishing it from all other memoranda filed under this section.
(4)A provision of a particular memorandum filed under this section may be incorporated into a certificate of title, instrument, plan, diagram or other document affecting land under the operation of this Act (the document), with or without amendment, by notation to that effect on the document.
(5)A provision of a memorandum noted as being incorporated into a document under subsection (4), or that provision as amended, as the case may be, shall be deemed to be set out in its entirety in the document.
(6)Nothing in this section affects any other provision of this Act by which terms, conditions, covenants or other provisions that affect land under the operation of this Act may be incorporated into a document for the purposes of this Act.
[Section 54 inserted: No. 81 of 1996 s. 28; amended: No. 2 of 2014 s. 68.]
(1)The Registrar shall not enter on a certificate of title notice of any trusts other than those set out in the body of the original Crown grant or certificate of title or contained or referred to in the transfer, or the ministerial order for the conveyance, of the relevant Crown land into the fee simple.
(2)Where a trust is declared in any other document and the document or a copy of it has been deposited with the Registrar, the Registrar may cause the document or copy to be kept for safe custody and reference but shall not register the document.
(3)The Commissioner may protect, in any manner he thinks fit, the rights of the persons for the time being beneficially interested in, or required to give consent under, a trust a record of which is kept under subsection (2).
(4)The rights incidental to any proprietorship, instrument, dealing or matter registered under this Act shall not be affected by the keeping of a record of a trust under subsection (2).
[Section 55 inserted: No. 81 of 1996 s. 29; amended: No. 31 of 1997 s. 96; No. 6 of 2003 s. 19.]
56.Memorandum to state certain particulars
Every memorandum (other than a memorandum under Part IVA) entered in the Register shall state the date of lodgment for registration of the instrument to which the memorandum relates and such other particulars as the Registrar directs.
[Section 56 inserted: No. 28 of 1969 s. 5; amended: No. 81 of 1996 s. 30 and 145(1).]
57.Memoranda of instruments to be entered
When a memorandum of any instrument is entered in the Register and the duplicate certificate of title or duplicate instrument (if any) is presented to the Registrar —
[(a)deleted]
(b)the Registrar shall enter on the duplicate certificate of title, in the case of a paper title, or duplicate instrument, as the case may be, a memorandum in the same terms as the memorandum entered in the Register; and
(c)in the case of a digital title, the Registrar shall cancel the duplicate certificate of title (if any) and may issue a new edition of the duplicate certificate of title in accordance with section 74B(2).
[Section 57 inserted: No. 81 of 1996 s. 31; amended: No. 6 of 2003 s. 20; No. 2 of 2014 s. 69.]
58.Instruments not effectual until registered
No instrument until registered in manner herein provided shall be effectual to pass any estate or interest in any land under the operation of this Act or to render such land liable to any mortgage or charge or to make any dealing in respect of Crown land effective, as the case requires; but upon such registration the estate or interest comprised in the instrument shall pass or as the case may be the land shall become liable in manner and subject to the covenants and conditions set forth and specified in the instrument or by this Act declared to be implied in instruments of a like nature, or the dealing in respect of Crown land is made effective, as the case required.
[Section 58 amended: No. 81 of 1996 s. 32; No. 31 of 1997 s. 97.]
59.Notations as to legal disability of proprietor
Where the proprietor of land under the operation of this Act is a minor or a person under any other legal disability the Registrar shall state on the certificate of title and on the duplicate certificate of title (if any) the age of such minor or the nature of the disability, as the case may be, so far as is known to the Registrar.
[Section 59 inserted: No. 81 of 1996 s. 33.]
60.Joint tenants and tenants in common
Two or more persons who may be registered as joint proprietors of land shall be deemed to be entitled to the same as joint tenants; and in all cases where 2 or more persons are entitled as tenants in common to undivided shares of or in any land such persons may receive one certificate for the entirety or separate certificates for the undivided shares.
61.Effect of insertion of words “no survivorship”
(1)Upon the transfer of any land and upon the lease of any freehold land to 2 or more persons as joint proprietors with the words “no survivorship” endorsed thereon the Registrar shall enter such words in the memorandum of such transfer or lease and also upon any certificate of title registered in the name of such joint proprietors pursuant to such transfer and sign his name thereto.
(2)Two or more joint proprietors of any land or of any such lease or of any charge may by writing, under their hands direct the Registrar to enter the words “no survivorship” upon the certificate of title or instrument relating to the property.
(3)In every case after such words shall have been signed by the Registrar whether under this or any preceding section it shall not be lawful for any persons other than the proprietors registered to transfer or otherwise deal with the property without the order of the Supreme Court or a judge thereof obtained on motion or petition or the order of the Commissioner.
[Section 61 amended: No. 81 of 1996 s. 34; No. 19 of 2010 s. 51.]
62.Notice to be published before effect given to order
(1)Before making any such order the court or judge or Commissioner shall cause notice of the intention so to do to be advertised once at least in one newspaper published in the city of Perth or circulating in the neighbourhood of the land and shall appoint a time within which it shall be lawful for any person interested to show cause against such order being made.
(2)After the expiration of that time it shall be lawful for the said court or judge or Commissioner to give directions for the transfer of such land or lease or charge to any new proprietor or proprietors solely or jointly with or in the place of any existing proprietor or proprietors, or to make such order in the premises as shall be just for the protection of any persons beneficially interested in such property or in the proceeds thereof; and on such order being deposited with the Registrar he shall make such entries and perform such acts for giving effect thereto as the provisions of this Act may render necessary.
(3)The Commissioner in any case within the last preceding section in which members of a corporation that is a friendly society within the meaning of section 16C of the Life Insurance Act 1995 of the Commonwealth are interested may before making an order thereunder dispense with the aforesaid advertisement.
[Section 62 amended: No. 26 of 1999 s. 106(2); No. 74 of 2003 s. 120; No. 19 of 2010 s. 51.]
63.Certificate to be conclusive evidence of title
(1)No certificate of title created and registered upon an application to bring land under this Act or upon an application to be registered as proprietor on a transmission shall be impeached or defeasible by reason or on account of any informality or irregularity in the application or in the proceedings previous to the registration of the certificate; and every certificate of title created and registered under any of the provisions herein contained shall be received in all courts of law as evidence of the particulars therein set forth or incorporated and of the entry thereof in the Register, and shall be conclusive evidence that the person named in such certificate as the proprietor of or having any estate or interest in or power to appoint or dispose of the land therein described is seised or possessed of such estate or interest or has such power.
(2)A reference in subsection (1) to a certificate of title does not include a reference to a qualified certificate of Crown land title.
[Section 63 amended: No. 81 of 1996 s. 35 and 145(1); No. 31 of 1997 s. 98.]
63A.Certificates may contain statement of easements
(1)Any certificate of title may contain a statement therein or entry thereon to the effect that the land therein described has appurtenant thereto any easement or that the land therein described is subject to any right or right of way or other easement.
(2)The statement or entry shall —
(a)contain a non‑diagrammatic description of the extent or location of the easement; or
(b)refer to the instrument creating the easement if that instrument is deposited with the Authority; or
(c)refer to any other record of information in the possession of the Registrar which gives a non‑diagrammatic description of the extent or location of the easement; or
(d)refer to a relevant graphic of the extent or location of the easement.
[Section 63A inserted: No. 54 of 1909 s. 15 and 16 (as amended: No. 17 of 1950 s. 75); amended: No. 81 of 1996 s. 36; No. 6 of 2003 s. 21; No. 60 of 2006 s. 118(1).]
64.Certificate conclusive evidence as to title to easements
Whenever any certificate of title either already registered or issued or hereafter to be registered or issued under any of the provisions or otherwise under the operation of this Act shall contain any statement to the effect that the person named in the certificate is entitled to any easement therein specified such statement shall be received in all courts of law and equity as conclusive evidence that he is so entitled.
[Section 64 amended: No. 6 of 2003 s. 22.]
65.Short forms etc. for easements, effect of
(1)Where a transfer, lease, tree plantation agreement or certificate of title contains the words “together with a right of carriage way over...” or words to that effect and specifies the road or land over which the easement is created by reference to a map on which the road or land is indicated by a symbol then, unless the contrary intention appears, the words of the Ninth Schedule shall be deemed to have effect in relation to the transfer, lease, tree plantation agreement or certificate of title, as the case requires.
(2)Where a plan or an instrument referred to in Part IVA contains the words “right of carriage way” in relation to a place indicated on the plan or, in the case of an instrument, on the plan in relation to which the instrument was lodged then, unless the contrary intention appears, the words of the Ninth Schedule applicable to a transfer shall be deemed to have effect in relation to that plan or instrument.
(3)Where —
(a)a transfer, lease, tree plantation agreement or certificate of title; or
(b)a plan or an instrument referred to in Part IVA,
contains a short form of easement then the words in column 2 of the Tenth Schedule corresponding to the short form shall be deemed to have effect in relation to that transfer, lease, tree plantation agreement, certificate of title, plan or instrument, unless the contrary intention appears.
[Section 65 inserted: No. 81 of 1996 s. 37 7; amended: No. 56 of 2003 s. 12; No. 19 of 2010 s. 38(3) .]
(1)Subject to subsection (2), a memorandum of an easement affecting land under the operation of this Act that has been created by a plan, diagram or instrument shall be entered on the certificate of title for each dominant and servient tenement.
(2)If an easement is created under Part IVA by notation on a scheme plan as defined in the Strata Titles Act 1985 section 3(1) or as a short form easement or restrictive covenant under that Act, it is not necessary for a memorandum of the easement to be entered on the certificates of title for the dominant and servient tenements that are also a subject of that plan.
[Section 65A inserted: No. 81 of 1996 s. 37; amended: No. 30 of 2018 s. 198.]
[66.Deleted: No. 81 of 1996 s. 38.]
66A.No separate certificate for easement
A separate certificate of title for an easement shall not be created.
[Section 66A inserted: No. 17 of 1950 s. 15; amended: No. 81 of 1996 s. 39.]
67.Certificate conclusive evidence in suit for specific performance or action for damages
In any action for specific performance or for damages brought by a proprietor of any land under the operation of this Act against a person who may have contracted to purchase such land not having notice of any fraud or other circumstances which according to the provisions of the said Act or of this Act would affect the right of the vendor the certificate of title of such proprietor shall be held to be conclusive evidence that such proprietor has a good and valid title to the land for the estate or interest therein mentioned or described and shall in any such action entitle such proprietor to a decree for the specific performance of such contract.
68.Estate of registered proprietor paramount
(1)Notwithstanding the existence in any other person of any estate or interest whether derived by grant or transfer of the fee simple from the Crown or otherwise which but for this Act might be held to be paramount or to have priority the proprietor of land or of any estate or interest in land under the operation of this Act shall except in case of fraud hold the same subject to such encumbrances as may be notified on the registered certificate of title for the land; but absolutely free from all other encumbrances whatsoever except the estate or interest of a proprietor claiming the same land under a prior registered certificate of title and except as regards any portion of land that may by wrong description of parcels or boundaries be included in the certificate of title or instrument evidencing the title of such proprietor not being a purchaser for valuable consideration or deriving from or through such a purchaser.
(1A)Despite subsection (1), the land which shall be included in any certificate of title or registered instrument shall be deemed to be subject to the reservations exceptions conditions and powers (if any) contained in the grant thereof or transfer of the fee simple or otherwise and to any rights subsisting under any adverse possession of such land and to any public rights of way and to any easements acquired by enjoyment or user or subsisting over or upon or affecting such land and to any unpaid rates and to any mining lease or licence issued under the provisions of any statute and to any prior unregistered lease or agreement for lease or for letting for a term not exceeding 5 years to a tenant in actual possession notwithstanding the same respectively may not be specially notified as encumbrances on such certificate or instrument but no option of purchase or renewal in any such lease or agreement shall be valid as against a subsequent registered interest unless such lease or agreement is registered or protected by caveat.
(2)Notwithstanding the existence in any other person of any interest in Crown land which but for this Act might be held to be paramount or to have priority, the holder of an interest in Crown land shall, except in case of fraud, hold that interest —
(a)subject to such encumbrances as may be notified on the registered certificate of Crown land title for the Crown land; but
(b)absolutely free from all other encumbrances whatsoever, except —
(i)the interest of a proprietor claiming the same Crown land under a prior registered certificate of Crown land title; and
(ii)as regards any portion of Crown land that may by wrong description of parcels or boundaries be included in the certificate of Crown land title or other instrument evidencing the Crown title of that proprietor, not being a purchaser for valuable consideration or deriving from or through such a purchaser.
(3)Notwithstanding subsection (2), the Crown land included in any registered certificate of Crown land title, registered qualified certificate of Crown land title or registered instrument shall be deemed to be subject to —
(a)any reservation, exception, condition, covenant or power to which the relevant interest in Crown land is subject; and
(b)any public right of way; and
(c)any easement subsisting over or upon or affecting that Crown land; and
(d)any unpaid rates; and
(e)any mining tenement within the meaning of the Mining Act 1978; and
(f)any prior unregistered lease or agreement for lease or for letting for a term not exceeding 5 years to a tenant in actual possession,
even if it is, or they are, not specially notified as an encumbrance on that certificate of Crown land title or instrument, but no option of purchase or renewal of any lease or agreement referred to in paragraph (f) shall be valid as against a subsequent registered interest unless that lease or agreement is registered or protected by a caveat.
(4)In subsections (2) and (3), a reference to a certificate of Crown land title or registered instrument does not include a reference to a qualified certificate of Crown land title.
[Section 68 amended: No. 81 of 1996 s. 40; No. 31 of 1997 s. 99; No. 19 of 2010 s. 51.]
69.Certain easements and conditions to be noted as encumbrances
(1)Notwithstanding the reservation in the last preceding section of any easements subsisting over or upon or affecting any land comprised in any certificate of title the Registrar shall specify upon any future certificate of such land and its duplicate (if any) as an encumbrance affecting the same any subsisting easement over or upon or affecting the same which shall appear to have been created by any deed or writing.
(2)Notwithstanding section 68(1A) the Registrar shall endorse as an encumbrance upon all future certificates of title and their duplicates (if any) any special building condition or condition against free alienation or other condition (not being a power of resumption by the Crown for any public purpose) contained in any grant conveyance or other document of title of the land described in such certificate and its duplicate (if any) and such endorsement may be in the words following or to the like effect (that is to say):
“Special building condition contained in to [A.B.] registered vol. fol. ,” or as the case may be.
“Condition against (free alienation or other condition) contained in to [A.B.] registered vol. fol. ,” or as the case may be.
[Section 69 amended: No. 81 of 1996 s. 41; No. 19 of 2010 s. 51.]
70.Reversions expectant on leases
The person named in any certificate of title as the proprietor of an estate of freehold in possession in the land therein described shall be held in every court of law to be seised of the reversion and inheritance in the land immediately expectant upon the term of any lease that may be mentioned as an encumbrance in such certificate and to have all powers rights and remedies to which such a reversioner is by law entitled and shall be subject to all the covenants and conditions in such lease to be performed and observed by or on the part of the lessor.
70A.Factors affecting use and enjoyment of land, notification on title
(1)Where, in relation to land under the operation of this Act —
(a)the local government of the district in which the land is situated; or
(b)a public authority,
considers it desirable that proprietors or prospective proprietors of the land be made aware of a factor affecting the use or enjoyment of the land or part of the land, the local government or the public authority may, on payment of the prescribed fee, cause a notification of the factor to be prepared in an approved form and lodged with the Registrar.
(2)Where —
(a)a notification is lodged under subsection (1); and
(b)the written consent of the proprietor of the land accompanies the notification,
the Registrar shall endorse the certificate of title for the land to that effect.
(3)The local government or the public authority which lodged the notification under subsection (1) and the proprietor of the land for the time being may, at any time after the notification has been lodged, on payment of the prescribed fee and in an approved form, request the Registrar to remove the notification from the certificate of title for the land or modify the notification.
(4)Without limiting subsection (2), the Registrar shall endorse certificates of title with such information about notifications and their modification or removal, and in such manner, as the Registrar thinks fit.
[Section 70A inserted: No. 81 of 1996 s. 42.]
71.Single certificate may be created instead of separate ones
On the application of any proprietor or of any person entitled to become a proprietor of land under separate certificates of title and on his delivering up the duplicate (if any) of each certificate the Registrar may create and register in the proprietor’s name a single certificate of title for the whole of such land or several certificates as to portions thereof in accordance with such application so far as the same may be done consistently with any regulations for the time being in force respecting the parcels of land that may be included in one certificate of title; and upon registering any certificate under this section the Registrar shall cancel the previous certificate and shall endorse thereupon a memorandum setting forth the occasion of such cancellation and referring to the new certificate.
[Section 71 amended: No. 81 of 1996 s. 43.]
71A.Separate certificates may be created instead of single one
(1)The Registrar, upon application being made in writing by a proprietor of land the subject of a certificate of title, may create and register in the proprietor’s name a separate certificate of title for part of the land, and shall endorse upon the certificate of title, from the subject of which part is taken, a memorandum partially cancelling the certificate.
(2)The Registrar shall retain the duplicate (if any) of the partially cancelled certificate of title and, when required by the proprietor, shall create and register in the proprietor’s name a certificate of title for the land remaining the subject of the partially cancelled certificate of title.
[Section 71A inserted: No. 17 of 1950 s. 17; amended: No. 81 of 1996 s. 44.]
71B.Replacing duplicate certificates of title
(1)The Registrar may, upon the delivery to him of a duplicate Crown grant or duplicate certificate of title, issue a new duplicate certificate of title in the place of the existing duplicate Crown grant or duplicate certificate of title, which shall thereupon be cancelled.
(2)Where the Registrar is of opinion that, because of the condition of dilapidation of a duplicate certificate of title or Crown grant lodged with him for any purpose, it should be replaced by a new duplicate certificate of title, he may —
(a)require the proprietor of the land the subject of the certificate of title or Crown grant to apply for a new duplicate certificate of title;
(b)retain the Crown grant or certificate of title so dilapidated until the proprietor applies for a new duplicate certificate of title.
[Section 71B inserted: No. 17 of 1950 s. 17; amended: No. 81 of 1996 s. 45.]
72.History of dealings to be preserved
Such references shall be noted in the Register and on instruments filed hereunder as will allow the title to be traced either downwards from or upwards to the original certificate of title; but it shall not be necessary in any certified copy of any certificate of title or instrument to insert such references; and every such copy shall be deemed complete notwithstanding the omission of such references.
[Section 72 amended: No. 81 of 1996 s. 145(1); No. 6 of 2003 s. 23.]
[73.Deleted: No. 31 of 1997 s. 100.]
74.Duplicate may be dispensed with in certain cases
(1)The Registrar with the consent of the Commissioner may dispense with the production of any duplicate certificate of title or duplicate instrument (if any) for the purpose of entering thereon the memorandum by this Act required.
(2)If the Registrar dispenses with the production of a duplicate certificate of title in the case of a paper title, upon the registration of the dealing the Registrar shall notify in the memorandum in the Register that no entry of such memorandum has been made on the duplicate (if any) and such dealing shall thereupon be as valid and effectual as if such memorandum had been entered.
(3)If the Registrar dispenses with the production of a duplicate certificate of title (if any) in the case of a digital title, the Registrar shall notify in the memorandum in the Register that the duplicate certificate of title was not produced and such dealing shall be as valid and effectual as if such memorandum had been entered.
(4)The Registrar may with the like consent dispense with the production of the duplicate certificate of title (if any) required to be delivered up prior to the registration of any person as proprietor on the transmission of an estate of freehold.
(5)Despite subsections (1) to (4), before registering such dealing or transmission the Registrar shall require proof by statutory declaration that the duplicate is not deposited or held as a security or lien and shall give at least 14 days’ notice of his intention to register such dealing in at least one newspaper published in the city of Perth or circulating in the neighbourhood of the land.
(6)Nothing in this section applies if the production, presentation, delivery up or lodging of a duplicate certificate of title is dispensed with under regulations made under section 181 or requirements determined under section 182A.
[Section 74 amended: No. 81 of 1996 s. 46 and 145(1); No. 6 of 2003 s. 24; No. 19 of 2010 s. 51; No. 2 of 2014 s. 70.]
74A.Substitute certificates of title
(1)Where any original Crown grant or any certificate of title kept by the Registrar is lost, destroyed or so dilapidated or obliterated as to be illegible, the Commissioner may cause a substitute certificate of title to be created and registered and may prepare the substitute certificate from the duplicate or such other evidence as is available as to the contents of the original Crown grant or the previous certificate of title.
(2)If under subsection (1) a substitute certificate of title is created, the Registrar shall ensure the following are entered in the Register —
(a)the date that the substitute certificate of title was created; and
(b)such information as will enable the history of the creation of the certificate of title to be traced.
[Section 74A inserted: No. 81 of 1996 s. 47; amended: No. 6 of 2003 s. 25.]
74B.New duplicate certificates of title
(1)Where a duplicate certificate of title has been issued and —
(a)the duplicate has been destroyed by, or in circumstances known to, the Registrar; and
(b)the proprietor of the land that is the subject of the certificate of title requests, in an approved form, that a new duplicate certificate of title be issued without cancellation of the certificate of title,
then the Registrar may cause a new duplicate certificate of title to be issued to the proprietor or to a person named and authorised by the proprietor as the person to whom the duplicate may be issued.
(2)If, in the case of a digital title —
(a)a duplicate certificate of title has been issued and is later cancelled; and
(b)the cancelled duplicate certificate of title has been produced to the Registrar,
the Registrar may cause a new edition of the duplicate certificate of title to be issued to the proprietor of the land that is the subject of the digital title or to a person named and authorised by the proprietor as the person to whom the duplicate may be issued.
(3)Subsection (4) applies if —
(a)a document is lodged electronically under the Electronic Conveyancing Act 2014; and
(b)in connection with the lodging of that document, a duplicate certificate of title is not produced but is dealt with in another way in accordance with —
(i)regulations made under this Act; or
(ii)requirements determined under section 182A;
and
(c)that document is later withdrawn from registration or is rejected.
(4)If this subsection applies, the Registrar may cause a new duplicate certificate of title or, in the case of a digital title, a new edition of the duplicate certificate of title to be issued to —
(a)the proprietor of the land that is the subject of the certificate of title; or
(b)a person named and authorised by the proprietor as the person to whom the duplicate may be issued.
[Section 74B inserted: No. 81 of 1996 s. 47; amended: No. 6 of 2003 s. 26; No. 2 of 2014 s. 71.]
75.Where duplicate certificate lost, destroyed or obliterated
(1)In the event of any duplicate certificate of title in the case of a paper title or Crown lease being lost or destroyed or becoming so obliterated as to be useless, application may be made to the Commissioner for the creation and registration of a certificate of title or a Crown lease to replace the duplicate certificate of title or Crown lease the duplicate of which has been lost or destroyed or obliterated as aforesaid, and the Commissioner may, upon proof to his satisfaction of the loss or destruction or obliteration of such duplicate certificate of title or Crown lease, direct the Registrar to cancel the certificate of title or the Crown lease for the land then comprised in the certificate of title or the Crown lease the duplicate whereof has been lost or destroyed or obliterated and to create and register a new certificate of title or Crown lease for such land.
(1AA)The Registrar, before registering such new certificate of title or Crown lease, shall give at least 14 days’ notice of his intention so to do in at least one newspaper published in the city of Perth or circulating in the neighbourhood of the land.
(1a)In the event of any duplicate certificate of title in the case of a digital title being lost or destroyed or becoming so obliterated as to be useless, application may be made to the Commissioner for the issue of a new edition of the duplicate certificate of title to replace the lost, destroyed or obliterated duplicate certificate of title and the Commissioner may, upon proof to his satisfaction of the loss or destruction or obliteration of such duplicate certificate of title, direct the Registrar to issue a new edition of the duplicate certificate of title.
(2)A duplicate certificate of title or Crown lease replaced by a duplicate certificate of title or Crown lease under subsection (1) and section 48B ceases to have effect on the registration of the new certificate of title or Crown lease under subsection (1).
(3)A duplicate certificate of title replaced by a duplicate certificate of title under subsection (1a) ceases to have effect on the issue of the new edition of the duplicate certificate of title under that subsection.
(3a)If the duplicate certificate of title or Crown lease replaced by a duplicate certificate of title or Crown lease under subsection (1) and section 48B or under subsection (1a) is found or recovered, the person who finds or recovers the duplicate shall immediately lodge it with the Registrar who shall endorse it to note that it has ceased to have effect under subsection (2) or (3), as is relevant to the case.
(4)When a duplicate Crown lease is replaced under subsection (1), the Registrar shall, in cancelling that Crown lease under that subsection, endorse the relevant certificate of Crown land title or qualified certificate of Crown land title, as the case requires, with all the particulars of, or endorsed on, that Crown lease.
(5)In this section, a reference to a Crown lease includes a reference to a Crown land lease issued by the Minister for Lands.
[Section 75 inserted: No. 28 of 1944 s. 2 (as amended: No. 17 of 1950 s. 75); amended: No. 81 of 1996 s. 48; No. 31 of 1997 s. 101; No. 6 of 2003 s. 27; No. 19 of 2010 s. 51.]
76.Duplicate certificates etc. issued in error etc., powers to recover
(1)In case it shall appear to the satisfaction of the Commissioner that any duplicate certificate of title or instrument has been issued in error or contains any misdescription of land or of boundaries or that any entry or endorsement has been made in error on any duplicate certificate of title or instrument or that any duplicate certificate instrument entry or endorsement has been fraudulently or wrongfully obtained or that any duplicate certificate or instrument is fraudulently or wrongfully retained he may by notice in writing require the person to whom such document has been so issued or by whom it has been so obtained or is retained to deliver up the same for the purpose of being cancelled or corrected or given to the proper party as the case may require; and in case such person shall refuse or neglect to comply with such requisition the Registrar on the direction of the Commissioner may apply to a judge to issue a summons for such person to appear before the Supreme Court or a judge and show cause why such duplicate certificate or instrument should not be delivered up for the purpose aforesaid; and if such person when served with such summons shall neglect or refuse to attend before such court or a judge thereof at the time therein appointed it shall be lawful for a judge to issue a warrant authorising and directing the person so summoned to be apprehended and brought before the Supreme Court or a judge for examination.
(2)Where a person has not complied with a requisition under subsection (1) and the Registrar has not applied to a judge for the issue of a summons referred to in that subsection, nothing in subsection (1) prevents any other interested person from applying to a judge to issue a summons referred to in that subsection.
[Section 76 amended: No. 81 of 1996 s. 49.]
77.Procedure when person summoned etc. under s. 76
Upon the appearance before the court or a judge of any person summoned or brought up by virtue of a warrant under section 76(1) or (2) it shall be lawful for the court or judge to examine such person upon oath and (in case the same shall seem proper) to order such person to deliver up such duplicate certificate of title or instrument as aforesaid; and upon refusal or neglect by such person to deliver up the same pursuant to such order to commit such person to gaol until such duplicate certificate or instrument shall be delivered up; and in such case or in case such person cannot be found so that a requisition and summons may be served upon him under section 76(1) or (2) —
(a)the Commissioner may (if the circumstances of the case require it and subject to paragraph (b)) direct the Registrar to issue to the proprietor of the land; or
(b)the court or a judge may, upon the application of the Registrar or any other interested person, order the Registrar to issue to such person as the court or judge directs,
such duplicate certificate of title as can be issued in the case of any duplicate certificate of title being lost or destroyed and the Registrar shall enter in the Register on the relevant certificate of title notice of the issuing of such duplicate certificate and the circumstances under which the same was issued and thereupon the duplicate certificate so refused or neglected to be delivered up as aforesaid shall be deemed for all purposes to be null and void.
[Section 77 amended: No. 81 of 1996 s. 50.]
78.Registrar may call in duplicate certificate etc.
On any transfer by a sheriff or the Magistrates Court or mortgagee to a purchaser of any land estate or interest under this Act or for the purpose of amending or cancelling any certificate or its duplicate under the provisions of this Act or for the purpose of inspection in case of loss destruction or obliteration of any certificate of title the Registrar shall by writing under his hand require the judgment debtor mortgagor or mortgagee or proprietor of the land comprised in any duplicate certificate or instrument or the person having the possession, custody or control of any such duplicate certificate or instrument to bring the same to the Authority within a period named in such requisition not less than 7 days from the date thereof to be endorsed, cancelled, amended or otherwise dealt with as the case may require.
[Section 78 amended: No. 54 of 1909 s. 11; No. 81 of 1996 s. 51; No. 6 of 2003 s. 28; No. 59 of 2004 s. 140; No. 60 of 2006 s. 118(1).]
79.Person who fails to bring in duplicate certificate etc. may be brought before Supreme Court
If any person shall refuse or neglect to comply with any such requisition as aforesaid the Registrar or any person interested may apply to a judge to issue a summons for such person to appear before the Supreme Court or a judge and show cause why the document mentioned in such requisition should not be delivered up or produced for the purpose mentioned in such requisition; and upon appearance before the court or a judge of any person so summoned it shall be lawful for the court or judge to examine such person upon oath and to receive other evidence or if he did not appear after being duly served with such summons then to receive evidence in his absence and (in case the same shall seem proper) to order such person to deliver up such document upon such terms or conditions as to such court or judge shall seem fit and the cost of the summons and proceedings thereon shall be in the discretion of the court or judge.
[80.Deleted: No. 17 of 1950 s. 19.]
81.Words of inheritance or succession to be implied
Every certificate of any person or corporation sole or aggregate being the proprietor of an estate in fee simple whether in possession remainder or reversion, the holder of an interest in Crown land or the holder of a power conferred on a management body and every instrument transferring, creating or giving effect to such an estate, interest or power to or in favour of any person or corporation shall imply and be deemed to include the heirs of such person or the successors of such corporation.
[Section 81 amended: No. 31 of 1997 s. 102.]
[Heading inserted: No. 54 of 1909 s. 2A (as amended: No. 17 of 1950 s. 75).]
81A.Registration of Crown leases issued on or after 2 May 1910
(1)Subject to subsection (3), every Crown lease issued after the commencement of the Transfer of Land Act Amendment Act 1909, shall be issued in duplicate under seal and forwarded by the Minister for Lands direct to the Registrar for registration under section 53.
(2)The Registrar shall —
(a)enter in a journal particulars of the lease, and mark on each part thereof the number appearing in such journal, and sign his name to each part; and
(b)retain one part (to be called the original), and deliver the other part (to be called the duplicate) to the lessee or, in the case of a mortgage, to the mortgagee; and
(c)register the original in the Register of Leases.
(3)No Crown lease shall be issued after the commencement of the Acts Amendment (Land Administration) Act 1997.
[Section 81A inserted: No. 54 of 1909 s. 3 (as amended: No. 17 of 1950 s. 75); amended: No. 81 of 1996 s. 52; No. 31 of 1997 s. 103.]
81B.Registration of Crown leases issued before 2 May 1910
(1)A Crown lease issued before the commencement of the Transfer of Land Act Amendment Act 1909, may be made subject to and registered under the operation of this Act, by an application in the form in the Twenty‑eighth Schedule.
(2)Such application may be made by the lessee or any person claiming through him, or by any mortgagee, and shall be accompanied by —
(a)the instrument of lease and certified copies of all existing mortgages, subleases, and other dealings (if any) registered under the Land Act 1898 1; and
(b)a certified copy of the lease to be supplied by the Department of Lands and Surveys 8 to the applicant for such purpose; and
(c)the written consent of all registered mortgagees; and
(d)in applications by mortgagees, the written consent of the lessee.
(3)The Registrar shall refer such application to the Commissioner for his direction, and if the Commissioner is satisfied as to the title of the applicant he shall direct the Registrar to bring the land under the Act, either forthwith or after advertisement.
(4)When the Registrar is satisfied that the preceding provisions of this section have been complied with, he shall —
(a)enter in a journal particulars of the lease, and of all existing mortgages and subleases, and mark on the lease and the certified copy the number appearing in the journal, and endorse on the lease and certified copy all existing mortgages and subleases, and sign his name to the lease and certified copy and such endorsements; and
(b)retain and register in the Register of Leases the original lease instrument and deliver the certified copy to the lessee, or, in the case of a mortgage, to the mortgagee.
(5)Any mortgage or sublease of a Crown lease made prior to the lease being registered under this section, and which is still operative —
(a)shall be recorded on the original instrument of lease and on the certified copy; and
(b)when so recorded, shall be read as if it contained all the covenants, powers, and conditions which by this Act are implied in mortgages or subleases or conferred upon the parties thereto, except so far as such mortgage or sublease contains express provisions to the contrary.
[Section 81B inserted: No. 54 of 1909 s. 4 (as amended: No. 17 of 1950 s. 75).]
When a Crown lease is signed by the Registrar it shall be deemed to be registered and, subject to this Act, may be transferred, subleased, and dealt with in like manner as if it had been granted by a registered proprietor and registered in the ordinary way, and the several provisions of this Act with respect to freehold land shall apply to such Crown lease, and every mortgage or sublease thereof, whether granted before or after the commencement of the Transfer of Land Act Amendment Act 1909; with such variations only as the difference in the nature of such property requires, or as may be necessary to render such provisions applicable to leaseholds for years.
[Section 81C inserted: No. 54 of 1909 s. 5 (as amended: No. 17 of 1950 s. 75).]
81D.Registration of transfer etc.
(1)No transfer, sublease, or mortgage of a Crown lease or of a sublease thereof shall be registered until —
(a)the Minister for Lands has informed the Registrar in writing of his consent to the registration; and
(b)if the Registrar so requests, the duplicate Crown lease is presented to the Registrar for any endorsement or other action required by the Registrar.
(2)Nothing in this Act contained shall affect the provisions of the Land Act 1898 1, whereby a transferee or sublessee is required to be a person who is not disqualified under that Act to be a lessee of the land intended to be transferred or sublet.
(3)If a lease is divided under section 134(4)(a) of the Land Administration Act 1997 the Registrar shall —
(a)register, and has power to do all things necessary to register, the division of the land under the lease and the transfer of each part of the land under the lease; and
(b)register any other dealing or thing that may be done in relation to each part of the pastoral lease,
despite anything to the contrary in this Act.
(4)If a lease is divided under section 134(4)(b) of the Land Administration Act 1997 the Registrar shall —
(a)register and has power to do all things necessary to register the division of the lease and the amalgamation of part of the land with the land of an adjoining pastoral lease; and
(b)register any other dealing or thing that may be done in relation to each part of the pastoral lease,
despite anything to the contrary in this Act.
(5)If a lease is divided under section 134(4)(c) of the Land Administration Act 1997 the Registrar shall —
(a)register, and has power to do all things necessary to register, the division of the lease and transfer of part of the lease; and
(b)register any other dealing or thing that may be done in relation to each part of the pastoral lease,
despite anything to the contrary in this Act.
[Section 81D inserted: No. 54 of 1909 s. 6 (as amended: No. 17 of 1950 s. 75); amended: No. 81 of 1996 s. 53; No. 59 of 2000 s. 51; No. 8 of 2010 s. 30.]
81E.No foreclosure without consent of Minister for Lands
No order of foreclosure shall be made in respect of a mortgage of a Crown lease without the consent, in writing, of the Minister for Lands.
[Section 81E inserted: No. 54 of 1909 s. 7 (as amended: No. 17 of 1950 s. 75).]
(1)The Registrar, upon receipt of written notice from the Minister for Lands that any Crown lease has been forfeited or determined in whole or in part, shall make an entry to that effect on the original lease and call in the lessee’s part thereof.
(2)If there is a mortgage or sublease registered against the lease so forfeited or determined, the Registrar shall serve the mortgagee or sublessee with 30 days’ notice of his intention to make such entry within which time the mortgagee or sublessee may carry out the conditions of the lease and apply to the Minister for Lands to waive the forfeiture.
(3)The Minister for Lands may, by notice to the Registrar, allow a longer period than 30 days.
(4)Unless the forfeiture or determination is cancelled by the Governor in Council under the Land Act 1898 1, or is waived by the Minister for Lands under subsection (2), then at the expiration of such days or such longer period as the Minister for Lands shall allow, such forfeiture and determination shall become absolute.
[Section 81F inserted: No. 54 of 1909 s. 8 (as amended: No. 17 of 1950 s. 75); amended: No. 81 of 1996 s. 54.]
81G.Crown lessee to be deemed of full age
(1)Every person who for the time being is the holder of a Crown lease shall, for all purposes in connection with transferring, subletting, mortgaging, or otherwise dealing with the lease, have the same capacity as if he were and shall be deemed of full age.
(2)The provisions of this section shall be deemed to have applied to all holdings under the Land Act 1898 1, from 1 January 1899.
(3)The terms and conditions of any such transfer, sublease, mortgage, or other dealing may be reviewed and altered upon application in Chambers to a judge of the Supreme Court.
[Section 81G inserted: No. 54 of 1909 s. 9 (as amended: No. 17 of 1950 s. 75).]
81H.Sections of this Act and land Acts that do not apply to Crown leases
(1)Sections 92, 93 and 94 of this Act shall not apply to Crown leases.
(2)Sections 80, 122 and 138 to 144 inclusive of the Land Act 1898 1, and sections 74 to 83 inclusive of the Land Act Amendment Act 1906, shall not apply to Crown leases registered under this Act, and section 15 of the Land Act Amendment Act 1900, shall in reference to Crown leases registered under this Act be read subject to section 81F.
[Section 81H inserted: No. 54 of 1909 s. 10 (as amended: No. 17 of 1950 s. 75); amended: No. 26 of 1911 s. 3.]
81I.Mortgage of Crown lease to be transferred to Crown grant
(1)Where the holder of a Crown lease has executed a mortgage thereof, either before or after the commencement of the Transfer of Land Act Amendment Act 1911, and the holder for the time being under the provisions of such Crown lease becomes entitled to a Crown grant in fee simple of the land comprised in and demised by such lease, the mortgage shall, by the operation of the Transfer of Land Act Amendment Act 1911, be transferred and apply to such Crown grant, and to the land thereby granted, in all respects as if such Crown grant had been referred to in the mortgage, and a memorandum of such mortgage shall be endorsed by the Registrar of Titles as an encumbrance on such Crown grant and in the Register on his registering such grant, and a memorandum stating the fact of such transfer shall also be made by the Registrar of Titles on the instrument of mortgage.
(2)This section shall be deemed to have been in operation from the commencement of the Transfer of Land Act Amendment Act 1909.
[Section 81I inserted: No. 26 of 1911 s. 2 (as amended: No. 17 of 1950 s. 75); amended: No. 81 of 1996 s. 55.]
Part IIIB — Registration and recording in relation to Crown land
[Heading inserted: No. 31 of 1997 s. 104(1).]
[Heading inserted: No. 31 of 1997 s. 104(1).]
This Part applies solely to Crown land.
[Section 81J inserted: No. 31 of 1997 s. 104(1).]
In this Part, unless the contrary intention appears —
approved form means form approved under section 278 of the Land Administration Act 1997;
Commissioner means Commissioner of Titles referred to in section 5 or Deputy Commissioner of Titles referred to in section 6;
management order has the same meaning as it has in the Land Administration Act 1997;
repealed Act has the same meaning as it has in the Land Administration Act 1997;
transitional period has the same meaning as it has in the Land Administration Act 1997.
[Section 81K inserted: No. 31 of 1997 s. 104(1).]
81L.Creation and registration of certificates of Crown land title and qualified certificates of Crown land title
On receiving from the Minister for Lands an application requesting him to do so in respect of a parcel of Crown land, the Registrar shall create and register a certificate of Crown land title or a qualified certificate of Crown land title in an approved form for that parcel and may endorse on the certificate of Crown land title or qualified certificate of Crown land title such particulars of any dealing as he considers appropriate.
[Section 81L inserted: No. 31 of 1997 s. 104(1).]
81M.Lodging etc. of management orders
(1)An instrument which is a management order within the meaning of the Land Administration Act 1997 may be lodged with the Registrar in duplicate.
(2)The Registrar shall, when he has registered a management order in duplicate, forward the duplicate copy of the management order to the management body to which the management order relates.
[Section 81M inserted: No. 31 of 1997 s. 104(1).]
Crown surveys required for the purposes of this Part shall comply in all respects with current rules and regulations made under section 16.
[Section 81N inserted: No. 31 of 1997 s. 104(1).]
81O.No duplicate certificates of Crown land title or duplicate qualified certificates of Crown land title to be issued
The Registrar shall not issue duplicate certificates of Crown land title or duplicate qualified certificates of Crown land title.
[Section 81O inserted: No. 31 of 1997 s. 104(1).]
81P.Endorsements on certificates of Crown land title and qualified certificates of Crown land title
(1)The Registrar shall endorse on each certificate of Crown land title or qualified certificate of Crown land title the particulars of all dealings and matters affecting the Crown land that is the subject of a certificate of Crown land title or qualified certificate of Crown land title when those particulars are required by this Act or the Land Administration Act 1997 to be registered or recorded in the Register.
(2)Any endorsement under subsection (1) of a certificate of Crown land title shall be made in such manner as preserves the priorities of those dealings or matters.
[Section 81P inserted: No. 31 of 1997 s. 104(1).]
81Q.Leases and subleases of Crown land, registration of
(1)The Registrar may register on a certificate of Crown land title or qualified certificate of Crown land title a lease or sublease of Crown land for a term of 12 months or more.
(2)If the fee simple in Crown land in respect of which a lease or sublease is registered under subsection (1) is transferred under the Land Administration Act 1997 and a certificate of title is created and registered in respect of that Crown land —
(a)the lease or sublease continues to be registered in respect of the relevant freehold land, until the lease or sublease terminates according to law, as if it had been registered in respect of that freehold land; and
(b)any encumbrance registered in respect of the lease or sublease before that transfer continues to be registered in respect of the relevant freehold land until that encumbrance is terminated, discharged or surrendered or expires.
(3)The Registrar may register any variation of the provisions of a registered lease or sublease effected under the Land Administration Act 1997.
(4)If a dealing is lodged in respect of —
(a)a Crown lease that is treated under section 81ZD(1) as if it were a lease registered under this section; or
(b)a lease of Crown land (not being a Crown lease) that is treated under section 104(2) of the Acts Amendment (Land Administration) Act 1997 as if it were a lease registered under this section,
the Registrar may make such endorsements as the Registrar thinks fit on the original and duplicate lease instrument.
[Section 81Q inserted: No. 31 of 1997 s. 104(1) 9; amended: No. 6 of 2003 s. 29.]
81R.Profits à prendre, registration of
(1)The Registrar may register on a certificate of Crown land title or qualified certificate of Crown land title a profit à prendre granted under section 91(1) of the Land Administration Act 1997 in respect of Crown land.
(2)The Registrar may, while a profit à prendre is registered under subsection (1), register any dealing or record any caveat in respect of the profit à prendre.
(3)If the fee simple in Crown land in respect of which a profit à prendre is registered under subsection (1) is transferred under the Land Administration Act 1997 and a certificate of title is created and registered in respect of that Crown land, the profit à prendre continues to be registered in respect of the relevant land until it is terminated or surrendered or expires.
[Section 81R inserted: No. 31 of 1997 s. 104(1).]
81RA.Other encumbrances in respect of fee simple in Crown land
(1)In subsection (2) —
encumbrance means an encumbrance (as defined in section 4(1)) that is shown on the transfer or other document by which the transfer of Crown land in fee simple is effected.
(2)If —
(a)the fee simple in Crown land in respect of which an encumbrance is registered is transferred under the Land Administration Act 1997; and
(b)a certificate of title is created and registered in respect of the fee simple of that former Crown land,
the encumbrance is by operation of this subsection transferred to and applies to the fee simple when transferred in all respects as if the fee simple had been referred to in the encumbrance until that encumbrance is terminated, withdrawn, discharged, surrendered or expires.
(3)This section does not apply to an encumbrance referred to in section 81Q or 81R.
(4)This section applies to a transfer effected on or after the coming into operation of the Land Administration Act 1997.
[Section 81RA inserted: No. 59 of 2000 s. 51.]
81S.Prerequisites to registering dealings as to Crown land
(1)When a dealing in respect of Crown land is received by the Commissioner or the Registrar for registration, the Commissioner or the Registrar shall satisfy himself that the permission of the Minister for Lands has been obtained in respect of that dealing unless the dealing is one in respect of which the Minister’s permission is not required under the Land Administration Act 1997.
(2)The Registrar shall not, unless he is satisfied that the provisions of —
(a)sections 42 and 43 of the Land Administration Act 1997 have been complied with, register any dealing, other than a dealing referred to in paragraph (b), in respect of a class A reserve; or
(b)section 44 of the Land Administration Act 1997 have been complied with, register the granting or creation of an easement in respect of a class A reserve; or
(c)section 45 of the Land Administration Act 1997 have been complied with, register any dealing in respect of land reserved under section 41 of that Act for the purpose of a national park, conservation park or class A nature reserve.
[Section 81S inserted: No. 31 of 1997 s. 104(1); amended: No. 59 of 2000 s. 51.]
81T.Registered proprietors etc. protected against ejectment except in certain cases
(1)Subject to section 68, an action of ejectment or other action for the recovery of any alienated land does not lie, and is not sustainable, against the person registered as the proprietor of that land under this Act, except in the case of —
(a)the Minister for Lands exercising the powers of sale conferred by section 16(4) of the Land Administration Act 1997 as against that person; or
(b)the Minister for Lands causing the forfeiture of the freehold of that alienated land under section 35 of the Land Administration Act 1997 as against that person; or
(c)the Minister for Lands exercising the power conferred by section 36(c)(ii) of the Land Administration Act 1997 as against that person; or
(d)the Minister for Lands acquiring that alienated land as Crown land under section 52 of the Land Administration Act 1997 as against that person; or
(e)an acquiring authority taking an interest in that alienated land under Part 9 of the Land Administration Act 1997 as against that person.
(2)Subject to section 68, an action of ejectment or other action for the recovery of any Crown land does not lie, and is not sustainable, against the management body of a reserve or mall reserve except in the case of —
(a)the Minister for Lands exercising the power conferred by section 50(1) or (2) or 62(3)(a) of the Land Administration Act 1997; or
(b)an acquiring authority exercising the power conferred by section 161(1)(c) of the Land Administration Act 1997,
as against that management body.
(3)Subject to section 68, an action of ejectment or other action for the recovery of a Crown lease or other lease of Crown land does not lie, and is not sustainable, against the person registered as the proprietor of that Crown lease or other lease under this Act except in the case of —
(a)the Minister for Lands extinguishing that Crown lease or other lease under section 10(4) of the Land Administration Act 1997; or
(b)the Minister for Lands extinguishing that Crown lease or other lease under section 27(4) of the Land Administration Act 1997; or
(c)the Minister for Lands causing the forfeiture of that Crown lease or other lease under section 35 of the Land Administration Act 1997 in respect of the breach of a condition or covenant; or
(d)the Minister for Lands accepting the surrender of that Crown lease or other lease under section 81(1) of the Land Administration Act 1997; or
(e)an acquiring authority taking that Crown lease or other lease under Part 9 of the Land Administration Act 1997; or
(f)the purchaser of that Crown lease or other lease under section 261(1) of the Land Administration Act 1997; or
(g)the Minister for Lands acting under section 270 of the Land Administration Act 1997,
as against that person.
[Section 81T inserted: No. 31 of 1997 s. 104(1).]
[Heading inserted: No. 31 of 1997 s. 104(1).]
81U.Registrar may accept for registration signed and stamped duplicate original documents
(1)The Registrar may accept for registration under this Division not only signed original documents stamped as original documents, but also, in the absence of such original documents, signed duplicate original documents stamped as duplicate original documents before the commencement of the Acts Amendment (Land Administration) Act 1997.
(2)A duplicate original document accepted for registration under subsection (1) is to be treated, when registered, as if it were the original document.
(3)In subsection (1) —
stamped means stamped or endorsed to indicate duty under the Stamp Act 1921 or the Duties Act 2008.
[Section 81U inserted: No. 31 of 1997 s. 104(1); amended: No. 45 of 2002 s. 25; No. 12 of 2008 Sch. 1 cl. 38(1).]
81V.Minister for Lands may apply for cancellation, creation etc. of certificates of Crown land title etc.
(1)The Minister for Lands may at any time apply, whether on behalf of another person or on his own initiative, to the Registrar for —
(a)the cancellation of a qualified certificate of Crown land title in respect of a parcel of Crown land and its replacement with a certificate of Crown land title created and registered in respect of that parcel; or
(b)the creation and registration of a certificate of Crown land title or qualified certificate of Crown land title.
(2)If the Registrar —
(a)is satisfied in respect of an application made under subsection (1) that any interests in, or caveats or dealings in respect of, the relevant Crown land are clearly identified and that there is, in the case of 2 or more such interests or caveats, no dispute concerning the respective priorities of those interests or caveats, the Registrar shall grant that application; or
(b)is not so satisfied, the Registrar may refuse that application or refer it to the Commissioner.
[Section 81V inserted: No. 31 of 1997 s. 104(1).]
81W.Procedure when applications referred to Commissioner
(1)Subject to this section, when an application is referred to the Commissioner under section 81V(2)(b), the Commissioner may, if —
(a)he is satisfied in respect of the application that any interests in, or caveats or dealings in respect of, the relevant Crown land are clearly identified and that there is, in the case of 2 or more such interests or caveats, no dispute concerning the respective priorities of those interests or caveats, cause notice of that application to be —
(i)advertised at least once in a newspaper circulating throughout the State or in the local government district where that Crown land is situated; or
(ii)served on any persons named by him,
or both; or
(b)he is not so satisfied —
(i)refuse that application; or
(ii)in the case of an application for the creation and registration of a certificate of Crown land title, direct the Registrar to create and register a qualified certificate of Crown land title in respect of the relevant Crown land.
(2)Without limiting the generality of subsection (1) —
(a)the Commissioner may be satisfied in respect of an application for the purposes of that subsection if he accepts as evidence recitals, statements and descriptions of facts, matters and parties in deeds, instruments, dealings, Acts and statutory declarations, the date shown as that of the execution, signature, passing or making of which precedes the date of making of the application by at least 12 years; and
(b)any person on whose behalf the application was made shall not be required to negative, except in relation to the knowledge, information and belief of himself and his agents, the existence of any unregistered conveyances, assurances or other dealings affecting any part of the Crown land the subject of the application.
(3)The cost of any advertisement or service of notice under subsection (1) is to be paid to the Registrar before the publication of the relevant advertisement or the effecting of the relevant service.
(4)If —
(a)the Commissioner is satisfied in respect of the matters referred to in subsection (1)(a); and
(b)the Minister for Lands has, before making the relevant application under section 81V(1), advertised under clause 45(3) of Schedule 2 to the Land Administration Act 1997 in connection with the matter the subject of that application; and
(c)the Commissioner is in consequence satisfied that there is no need to cause notice of that application to be advertised or served under subsection (1)(a),
the Commissioner shall, unless a caveat is in force under this Division forbidding him to do so or he is restrained from doing so by an order made under section 81X(3), direct the Registrar to grant that application.
(5)The Commissioner shall, if he causes notice of an application to be —
(a)advertised under subsection (1)(a), fix a period of not less than 14 days, and not more than 12 months, from the date of —
(i)that advertisement; or
(ii)if there is more than one such advertisement, the later or last such advertisement;
or
(b)served under subsection (1)(a), fix a period of not less than 14 days, and not more than 12 months, from the date of —
(i)that service; or
(ii)if there is more than one such service, the later or last such service;
or
(c)both advertised and served under subsection (1)(a), fix a period which is the later of the periods capable of being fixed under paragraphs (a) and (b),
on or after the expiry of which period the Commissioner shall, unless a caveat is in force under this Division forbidding him to do so or he is restrained from doing so by an order made under section 81X(3), direct the Registrar to grant the application.
(6)Any person claiming an interest in Crown land the subject of an application referred to the Commissioner under section 81V(2)(b) may before the creation and registration of a certificate of Crown land title or qualified certificate of Crown land title in respect of that Crown land sign and lodge with the Registrar a caveat in an approved form forbidding the grant of that application.
(7)The Registrar may by notice served on a caveator acting under subsection (6) require that caveator to support the caveat by lodging with the Registrar within a period of 7 days from that service —
(a)a statutory declaration stating the nature of the interest in Crown land under which the relevant claim is made; and
(b)a perfect abstract of the title to that interest.
(8)If the statutory declaration and abstract supporting a caveat are not lodged within the period referred to in subsection (7), the caveat lapses.
(9)A caveat cannot be lodged under subsection (6) unless one of the following is specified in it for the purposes of the service of notices in relation to the caveat —
(a)an address in Australia;
(b)a number for a facsimile machine in Australia;
(c)a way of receiving notices electronically (for example, an email address) that is prescribed by the regulations for the purposes of this paragraph.
[Section 81W inserted: No. 31 of 1997 s. 104(1); amended: No. 2 of 2014 s. 72.]
81X.Procedure on lodging of caveat under s. 81W(6)
(1)When a caveat is lodged with the Registrar under section 81W(6), the Registrar shall forthwith notify the Commissioner and the Minister for Lands.
(2)On being notified under subsection (1) —
(a)the Commissioner shall not direct the Registrar to grant the relevant application until the caveat has been withdrawn or has lapsed or an order setting aside the caveat has been made under subsection (3); and
(b)the applicant may, if he so wishes, summon the caveator to attend before the Supreme Court or a judge to show cause why the caveat should not be set aside.
(3)The Supreme Court or a judge may, on proof that the caveator has been summoned under subsection (2), make such order, whether ex parte or otherwise, in respect of the caveat as the Supreme Court or judge thinks fit.
(4)A caveat shall lapse on the expiry of one month from the date on which it was lodged under section 81W(6), unless the caveator before that expiry —
(a)takes proceedings in a court of competent jurisdiction to establish his claim to the interest specified in the caveat and gives notice of that taking to the Registrar; or
(b)obtains and serves on the Registrar an order of the Supreme Court or a judge restraining the Commissioner from making a direction under section 81W(4) or (5).
(5)A caveat shall not be renewed by or on behalf of the same person in respect of the same interest.
[Section 81X inserted: No. 31 of 1997 s. 104(1).]
81Y.Registrar’s duties when applications made under s. 81V(1)(a) granted
(1)When the Registrar grants an application made under section 81V(1)(a), whether under section 81V(2)(a) or under a direction made under section 81W(4) or (5), the Registrar shall —
(a)create a certificate of Crown land title in an approved form in respect of the parcel of Crown land referred to in the qualified certificate of Crown land title cancelled as a result of the granting of that application; and
(b)endorse on the certificate of Crown land title in correct order of priority particulars of the interests, caveats and dealings —
(i)set out in that qualified certificate of Crown land title; or
(ii)specified in information provided in compliance with a requirement made under clause 45(2) of Schedule 2 to the Land Administration Act 1997,
or both, as the case requires, together with a memorandum of any reservation or vesting made under the repealed Act and affecting that parcel.
(2)After complying with subsection (1), the Registrar shall register the certificate of Crown land title referred to in that subsection.
[Section 81Y inserted: No. 31 of 1997 s. 104(1).]
81Z.Registrar’s duties when applications made under s. 81V(1)(b) granted
(1)When the Registrar grants an application made under section 81V(1)(b), whether under section 81V(2)(a) or under a direction made under section 81W(1)(b), (4) or (5), the Registrar shall —
(a)create a certificate of Crown land title or a qualified certificate of Crown land title in an approved form for the parcel of Crown land referred to; and
(b)endorse on —
(i)the certificate of Crown land title in correct order of priority; or
(ii)the qualified certificate of Crown land title,
particulars of the interests, caveats and dealings specified,
in that application.
(2)After complying with subsection (1), the Registrar shall register the certificate of Crown land title or qualified certificate of Crown land title referred to in that subsection.
[Section 81Z inserted: No. 31 of 1997 s. 104(1).]
81ZA.Procedure for registering interests for which no certificate of Crown land title or qualified certificate of Crown land title exists
(1)Subject to section 20(2) of the Land Administration Act 1997, a person claiming an interest in a parcel of Crown land in respect of which —
(a)no certificate of Crown land title has been created and registered; and
(b)no qualified certificate of Crown land title exists,
may lodge with the Registrar for registration or recording a dealing evidencing, or a caveat claiming, that interest.
(2)On receiving a dealing or caveat lodged with him under subsection (1), the Registrar shall refer that dealing or caveat to the Minister for Lands.
(3)When a dealing or caveat is referred to him under subsection (2), the Minister for Lands shall —
(a)if he is satisfied that any interests in, or caveats or dealings in respect of, the relevant parcel of Crown land are clearly identified and that there is, in the case of 2 or more such interests or caveats, no dispute concerning the respective priorities of those interests or caveats, apply to the Registrar for the creation and registration of a certificate of Crown land title; or
(b)if he is not so satisfied, apply to the Registrar for the creation and registration of a qualified certificate of Crown land title,
in respect of that parcel.
[Section 81ZA inserted: No. 31 of 1997 s. 104(1).]
81ZB.Qualified certificates of Crown land title, general matters
(1)A person is not entitled to recover any compensation or damages from the State, the Minister for Lands, the Commissioner, the Registrar or any Examiner of Titles or other officer as a result of any loss or damage suffered as a result of —
(a)any error in; or
(b)anything that the Minister for Lands, the Commissioner, the Registrar or any Examiner of Titles or other officer has or has not, in good faith, done to or in relation to,
a qualified certificate of Crown land title.
(2)Nothing in subsection (1) affects the validity of anything lawfully done under the repealed Act.
(3)The Registrar may —
(a)register any additional interests or dealings in, or record any additional caveats in respect of, Crown land on a qualified certificate of Crown land title; and
(b)if so directed by the Commissioner, make any necessary corrections to the particulars recorded on a qualified certificate of Crown land title.
[Section 81ZB inserted: No. 31 of 1997 s. 104(1).]
81ZC.Interests in Crown land not registered within transitional period void as against registered interests in Crown land etc.
(1)A person who has a document evidencing an interest in Crown land granted, disposed of or entered into under the repealed Act, or under another written law before the repeal of the repealed Act, may, within the transitional period, lodge —
(a)that document; or
(b)a caveat in respect of that interest,
with the Registrar for registration or recording.
(2)An interest —
(a)to which subsection (1) applies; and
(b)in respect of which a document or caveat is not registered or recorded within the transitional period,
is void as against —
(c)an interest which has been so registered; or
(d)a caveat which has been so recorded; or
(e)an interest which has been registered or a caveat which has been recorded —
(i)after the repeal of the repealed Act; and
(ii)before a document or caveat is registered or recorded in respect of the first‑mentioned interest,
in relation to the same parcel of Crown land to the extent of any inconsistency between the first‑mentioned interest and an interest or caveat referred to in paragraph (c), (d) or (e).
(3)Nothing in this section prevents the registration of an interest, or the recording of a caveat, referred to in subsection (1) after the expiry of the transitional period.
[Section 81ZC inserted: No. 31 of 1997 s. 104(1).]
81ZD.Registrar may convert Crown leases into leases registered under s. 81Q
(1)The Registrar may, when a dealing is lodged with him in respect of a Crown lease, treat the Crown lease as if it were a lease registered under section 81Q on the relevant certificate of Crown land title, and may alter the Register and take such other steps as are necessary for that purpose.
(2)Apart from being treated as if it were a lease registered under section 81Q, a Crown lease referred to in subsection (1) continues to have effect until it terminates according to law.
[Section 81ZD inserted: No. 31 of 1997 s. 104(1).]
(1)The proprietor of land or of a lease mortgage or charge or of any estate right or interest therein respectively may transfer the same by a transfer in an approved form.
(1A)Upon the registration of the transfer the estate and interest of the proprietor as set forth in such instrument or which he shall be entitled or able to transfer or dispose of under any power with all rights powers and privileges thereto belonging or appertaining shall pass to the transferee; and such transferee shall thereupon become the proprietor thereof and whilst continuing such shall be subject to and liable for all and every the same requirements and liabilities to which he would have been subject and liable if he had been the former proprietor or the original lessee mortgagee or annuitant.
(2)Where the consideration for a transfer is not a sum of money, the true consideration shall be concisely stated.
[Section 82 amended: No. 17 of 1950 s. 20; No. 81 of 1996 s. 56; No. 6 of 2003 s. 30; No. 19 of 2010 s. 51.]
83.Transfer to include right to sue thereunder
(1)By virtue of every such transfer as is herein mentioned the right to sue upon any mortgage or other instrument and to recover any debt sum of money annuity or damages thereunder (notwithstanding the same may be deemed or held to constitute a chose in action) and all interest in any such debt sum of money annuity or damages shall be transferred so as to vest the same at law as well as in equity in the transferee thereof.
(2)Nothing herein contained shall prevent a court in its equitable jurisdiction from giving effect to any trusts affecting such debt sum of money annuity or damages in case the transferee shall as between himself and any other person hold the same as a trustee.
[Section 83 amended: No. 19 of 2010 s. 51.]
84.Transfers may be to proprietor and others jointly etc.
The proprietor of land or any estate or interest in land under the operation of this Act whether of the nature of real or personal property may transfer such land estate or interest directly to himself and another person or jointly with any other person to himself alone or create or execute any power of appointment or disposition or create or limit estates in remainder or otherwise as legal estates of or concerning land the subject thereof without the intervention of any precedent or particular estate and also like estates as legal estates without the employment or intervention of any form of use; and upon the registration of such transfer the land estate or interest shall vest in the transferee solely or jointly as the case may be or in the person in whose favour any such power may have been executed or who may have taken under any such limitation or otherwise according to the intent and meaning of such instrument; and she he or they shall become and be deemed the proprietor or proprietors thereof.
[Section 84 amended: No. 28 of 2003 s. 129(3).]
85.Signed and registered instruments have efficacy of deeds
Every transfer or other instrument shall be deemed of the same efficacy as if under seal; and when signed by the proprietor and registered shall be as valid and effectual to all intents and purposes for conveying passing or conferring the estates interests or rights expressed to be thereby transferred leased or created respectively as a deed duly executed and acknowledged by the same person would have been under any law heretofore or now in force in Western Australia or as any other form of document would have been either at law or in equity.
[Section 85 amended: No. 81 of 1996 s. 145(1); No. 28 of 2003 s. 129(4).]
86.Duplicate certificate to be delivered to Registrar on transfer
(1)If a transfer purports to transfer the whole or part of the land mentioned in any certificate of title the transferor shall deliver up to the Registrar the duplicate certificate (if any) and the Registrar shall after registering the transfer endorse on the certificate a memorandum cancelling the same either wholly or partially in accordance with the transfer.
(2)The duplicate (if any) of any wholly or partially cancelled certificate shall be retained by the Registrar.
(3)The Registrar shall create and register in the transferee’s name a certificate of title to the land mentioned in such transfer and, on the application of the proprietor of the untransferred portion, shall create and register in the proprietor’s name a certificate of title to such portion.
(4)If the land to be transferred is leasehold, the lease and duplicate (if any) shall not be cancelled and the latter document instead of being retained by the Registrar shall be delivered to the transferee.
[Section 86 inserted: No. 81 of 1996 s. 57; amended: No. 6 of 2003 s. 31.]
87.Total transfer by endorsement on paper title or by entering transferee’s name on digital title
(1)If a transfer purports to transfer the whole of the land mentioned in a paper title the Registrar may if he thinks fit instead of cancelling the certificate of title under section 86 enter on the certificate of title and on the duplicate certificate (if any) a memorandum of the transfer and deliver the duplicate to the transferee or to a person named and authorised by the transferee as the person to whom the duplicate may be delivered.
(2)If a transfer purports to transfer the whole of the land mentioned in a digital title the Registrar may if he thinks fit instead of cancelling the certificate of title under section 86 —
(a)enter the name of the transferee as the new proprietor on the certificate of title; and
(b)cancel the duplicate certificate of title (if any); and
(c)issue a new edition of the duplicate certificate of title in accordance with section 74B(2).
(3)Every certificate with such memorandum or such change shall be as effectual for the purpose of evidencing title and for all other purposes of this Act as if the old certificate had been cancelled and a new certificate had been created and registered in the name of the transferee and such process in lieu of cancellation may be repeated upon every transfer of the whole of the land.
[Section 87 inserted: No. 6 of 2003 s. 32.]
88.Transferee of encumbered land to indemnify transferor
In every transfer of land under the operation of The Transfer of Land Act 1874, or of this Act subject to a mortgage or charge there shall be implied a covenant with the transferor by the transferee binding the latter and his heirs executors administrators and transferees that he or they will pay the interest secured by such mortgage after the rate and at the times and in the manner therein specified and will pay the annuity at the times and in the manner specified in the charge and will indemnify and keep harmless the transferor and his representatives from and against the principal sum secured by the mortgage and from and against all liability in respect of any of the covenants therein contained or by this Act declared to be implied therein on the part of the transferor.
88A.Memorial of easements to be registered
A memorial of any transfer or lease creating an easement over or upon or affecting land under the operation of this Act shall be entered in the Register on the grant or existing certificate of title of the land, in addition to any other entry which concerns the instrument and which is required by this Act.
[Section 88A inserted: No. 17 of 1950 s. 22; amended: No. 81 of 1996 s. 59.]
[89.Deleted: No. 26 of 1999 s. 106(3).]
[90.Deleted: No. 59 of 2004 s. 140.]
Division 2 — Leases and subleases
The proprietor of any freehold land under the operation of this Act may lease the same for any term exceeding 3 years by signing a lease thereof in an approved form; but no lease or extension of lease as hereinafter provided subject to a mortgage, charge, carbon right, carbon covenant or plantation interest shall be valid or binding against the mortgagee, annuitant, or proprietor of a carbon right, carbon covenant or plantation interest unless he shall have consented in writing to such lease prior to the same being registered but the foregoing provisions of this section shall not prejudice the binding effect of a consent given by a mortgagee, annuitant, or proprietor of a carbon right, carbon covenant or plantation interest to an unregistered lease or extension of lease for any term.
[Section 91 amended: No. 17 of 1950 s. 23; No. 81 of 1996 s. 61; No. 56 of 2003 s. 13.]
92.Covenants by lessee implied in leases
In every lease made under the provisions of this Act there shall be implied the following covenants with the lessor and his transferees by the lessee binding the latter and his heirs executors administrators and transferees (that is to say) —
(a)that he or they will pay the rent reserved by the lease at the time therein mentioned and all rates and taxes which may be payable in respect of the leased property during the continuance of the lease unless otherwise provided by law;
(b)that he or they will keep and yield up the leased property in good and tenantable repair accidents and damage from storm and tempest and reasonable wear and tear excepted.
[Section 92 amended: No. 19 of 2010 s. 51.]
93.Lessor’s powers implied in leases
In every lease made under this Act there shall also be implied in the lessor and his transferees the following powers (that is to say) —
(a)that he or they may with or without surveyors workmen or others once in every year during the term at a reasonable time of the day enter upon the leased property and view the state of repair thereof;
(b)that in case the rent or any part thereof shall be in arrear for the space of one month although no legal or formal demand shall have been made for payment thereof, or in case of any breach or non‑observance of any of the covenants expressed in the lease or by this Act declared to be implied therein on the part of the lessee or his transferees and such breach or non‑observance continuing for the space of one month it shall be lawful for the lessor or his transferees to re‑enter upon and take possession of the leased property.
[Section 93 amended: No. 19 of 2010 s. 51.]
94.Short forms of covenants by lessees
(1)Whenever in any lease made under this Act the lessee shall employ any of the forms of words contained in column one of the Twelfth Schedule and distinguished by any number therein such lease shall be taken to have the same effect and be construed as if he had inserted therein the form of words contained in column 2 of the same Schedule and distinguished by the corresponding number; and every such form shall be deemed a covenant with the lessor and his transferees by the lessee binding the latter and his heirs executors administrators and transferees; but it shall not be necessary in any such lease to insert any such number.
(2)There may be introduced into or annexed to any of the forms in the first column any express exceptions from or express qualifications thereof respectively; and the like exceptions or qualifications shall be taken to be made from or in the corresponding forms in the second column.
[Section 94 amended: No. 19 of 2010 s. 51.]
95.Covenant to be implied on transfer of lease
In every transfer of lease made under The Transfer of Land Act 1874, or this Act and in every transfer of a grant for years there shall be implied a covenant with the transferor by the transferee binding him his heirs executors administrators and transferees that he or they will thenceforth pay the rent by the lease or grant reserved and perform and observe all the covenants contained in the lease or grant or by the said Act or this Act declared to be implied in the lease and on the part of the lessee or his transferees to be performed and observed and will indemnify and keep harmless the transferor and his representatives against all actions claims and expenses in respect of the non‑payment of such rent or the breach or non‑observance of such covenants or any of them.
96.Recovery of possession by lessors to be entered in Register
The Commissioner upon proof to his satisfaction of recovery of possession by a lessor or his transferees by any legal proceeding may direct the Registrar to make an entry of the same in the Register; and the term for which the land was leased shall upon such entry being made determine but without prejudice to any action or cause of action which shall previously have been commenced or have accrued in respect of any breach or non‑observance of any covenant expressed in the lease or by this Act declared to be implied therein.
[Section 96 amended: No. 81 of 1996 s. 145(1).]
97.Mortgagee of interest of bankrupt lessee may apply to be entered as transferee of lease and on default lessor may apply
Upon the bankruptcy of the proprietor of any lease made under this Act subject to one mortgage only or to several mortgages if owned by the same person the Registrar on the application in writing of the mortgagee or his transferees accompanied by a statement signed by the trustee or official assignee of such bankrupt refusing to accept such lease shall enter in the Register a note of such refusal; and such entry shall operate as a foreclosure and as a transfer of the interest of the bankrupt in such lease to the mortgagee or his transferees; and if he or they shall neglect or refuse to make such application as aforesaid within 21 days after notice in writing in that behalf from the lessor or his transferees shall have been served on the mortgagee or his transferees the Registrar on the application in writing of the lessor or his transferees to be registered as surrenderee or surrenderees of the lease accompanied by such a statement as aforesaid and proof of such neglect or refusal shall enter in the Register notice of such statement and of such neglect or refusal; and such entry shall operate as a surrender of such lease discharged from the mortgage or several mortgages aforesaid but without prejudice to any action or cause of action which shall previously have been commenced or have accrued in respect of any breach or non‑observance of any covenant expressed in the lease or by this Act or by any Act hereby repealed declared to be implied therein.
[Section 97 amended: No. 81 of 1996 s. 62 and 145(1).]
(1)A lease made under this Act may be surrendered and determined as well by operation of law or under any Ordinance or Statute now or hereafter to be in force relating to bankrupts and their estates as by the word “Surrendered” with the date being endorsed upon such lease or on the duplicate thereof (if any) and signed by the lessee or his transferee and by the lessor or his transferee and attested by a witness.
(2)The Registrar shall enter in the Register a memorandum recording the date of such surrender and may likewise endorse on either or both the lease and the duplicate lease (if any) a memorandum recording the fact of such entry having been made.
(3)Upon such entry in the Register the estate and interest of the lessee or his transferee shall vest in the lessor or in the proprietor for the time being of the reversion and inheritance in the land immediately expectant on the term.
(4)Production of such lease or duplicate (if any) bearing such endorsement and memorandum shall be sufficient evidence that such lease has been legally surrendered.
(5)Despite subsection (1), no lease subject to a mortgage or charge shall be so surrendered without the consent in writing of the proprietor thereof.
[Section 98 amended: No. 81 of 1996 s. 145(1); No. 6 of 2003 s. 33; No. 19 of 2010 s. 51.]
Subject to section 81Q, the proprietor of any lease under this Act may subject to any provisions in his lease affecting his right so to do sublet for a term not less than 3 years by signing a sublease in an approved form; but no sublease of any land subject to a mortgage or charge upon the lease of the land comprised in the sublease shall be valid or binding against the mortgagee or annuitant of the lease unless he shall have consented in writing to such sublease previously to the same being registered.
[Section 99 amended: No. 81 of 1996 s. 63; No. 31 of 1997 s. 106.]
(1)A sublease is registered —
(a)in the case of a sublease of land that is the subject of a paper title, when a memorandum of the sublease as described in section 56 has been endorsed on the original lease; or
(b)in the case of a sublease of land that is the subject of a digital title, when a memorandum of the sublease as described in section 56 has been endorsed on the certificate of title,
and the person named in any sublease registered as the sublessee shall be deemed to be the proprietor of the sublease.
(2)The Registrar shall endorse on the sublease a certificate of the time at which the memorandum was endorsed under subsection (1)(a) or (b) and shall authenticate such certificate by signing his name on the certificate; and such certificate shall be treated by any court or person having by law or by consent of parties authority to receive evidence as conclusive evidence that such sublease has been duly registered.
[Section 100 inserted: No. 6 of 2003 s. 34.]
[101.Deleted: No. 6 of 2003 s. 35.]
102.Provisions about leases apply to subleases
(1)The provisions of this Act affecting leases, lessors and lessees shall apply to subleases sublessors and sublessees with such modifications and exceptions as the difference between a lease and sublease and in the mode of registration thereof shall require; and the entries of recovery of possession and of surrender provided for by sections 96 and 98 shall in the case of the sublease of land that is the subject of —
(a)a paper title, be made on the sublease and on the lease but not on the certificate of title and the memorandum directed by section 98 to be endorsed on either or both the lease and the duplicate lease (if any) shall be endorsed on either or both the sublease and the duplicate sublease (if any); and
(b)a digital title, be made on the certificate of title and the memorandum directed by section 98 to be endorsed on either or both the lease or the duplicate lease (if any) shall be endorsed on either or both the sublease and the duplicate sublease (if any).
(2)In the case of a surrender of a sublease evidenced by a separate document such document shall be annexed to the original sublease.
(3)If the lease be determined by forfeiture or operation of law or by surrender under any Act relating to bankrupts and their estates such determination or surrender shall determine the sublease.
[Section 102 amended: No. 17 of 1950 s. 24; No. 81 of 1996 s. 145(1); No. 6 of 2003 s. 36.]
103.Covenants implied in subleases
In addition to the covenants specified in section 92 to be implied in every lease there shall be implied in every sublease a covenant with the sublessee and his transferees by the sublessor binding the latter and his executors administrators and transferees that he or they will during the term thereby granted pay the rent reserved by and perform and observe the covenants and agreements contained in the original lease and on his or their parts to be paid performed and observed.
[Section 103 amended: No. 19 of 2010 s. 51.]
104.Determination of lease or sublease by re‑entry to be entered in Register
(1)In the case of a lease or sublease of land under this Act if it be proved to the satisfaction of the Commissioner that the lessor or sublessor his assign or transferee has re‑entered upon the premises in strict conformity with the provisions for re‑entry contained in the lease or sublease or under the power of section 93(b) where the lease or sublease is under this Act or that the lessee or sublessee has abandoned the leased premises and the lease and that the lessor or sublessor his assign or transferee has thereupon re‑entered upon and occupied the said premises by himself or tenants undisturbed by the lessee or sublessee the Commissioner may, subject to subsection (2), direct the Registrar —
(a)in the case of a lease, to make an entry of such re‑entry on the certificate of title for the land that is the subject of the lease; or
(b)in the case of a sublease of land that is the subject of a digital title, to make an entry of such re‑entry on that title; or
(c)in the case of a sublease of land that is the subject of a paper title, to make an entry of such re‑entry on the sublease.
(1a)The term for which the land was leased or subleased shall, upon such entry being made, determine and may be removed as an encumbrance from a certificate of title but without prejudice to any action or cause of action which shall previously have been commenced or have accrued in respect of any breach or non‑observance of any covenant expressed in the lease or sublease or by this Act or any amendment thereof declared to be implied therein.
(2)The Commissioner shall not make a direction under subsection (1) in relation to a Crown lease or other lease or sublease of Crown land without the prior permission of the Minister for Lands.
[Section 104 amended: No. 81 of 1996 s. 145(1); No. 31 of 1997 s. 107; No. 6 of 2003 s. 37; No. 19 of 2010 s. 51.]
Division 2A — Carbon rights and carbon covenants
[Heading inserted: No. 56 of 2003 s. 14.]
In this Division —
affected land, in relation to a carbon right, means the land in respect of which the carbon right is registered;
burdened land, in relation to a carbon covenant, means the land in respect of which the covenant is registered as a burden;
relevant carbon right, in relation to a carbon covenant or a proposed carbon covenant, means the carbon right in relation to which the covenant is, or is to be, entered into.
[Section 104A inserted: No. 56 of 2003 s. 14.]
104B.Registration of carbon right form
(1)A carbon right form shall not be registered unless it is accompanied by —
(a)the written consent of each person who has a registered interest in the freehold land or Crown land in respect of which the proposed carbon right is to be created; and
(b)the prescribed fee.
(2)If a carbon right form is in respect of Crown land, it shall not be registered unless there is compliance with section 18 of the Land Administration Act 1997.
[Section 104B inserted: No. 56 of 2003 s. 14.]
104C.Extension of carbon right
(1)A carbon right may be extended by an instrument of extension in an approved form that sets out the term of the extension and that is signed by each proprietor of the carbon right.
(2)An instrument of extension of a carbon right shall not be registered unless it is accompanied by —
(a)the written consent of each person who has a registered interest in —
(i)the affected land; and
(ii)the carbon right;
and
(b)the prescribed fee.
(3)Subsection (2) does not require the written consent of a person whose signature to an instrument of extension of a carbon right is required under subsection (1).
(4)If a carbon right is registered in respect of Crown land, an instrument of extension of the carbon right shall not be registered unless there is compliance with section 18 of the Land Administration Act 1997.
[Section 104C inserted: No. 56 of 2003 s. 14.]
(1)The requirements of subsections (2), (3) and (4) are in addition to the requirements of Part IV Division 1 and any other provision of this Act relevant to the transfer of land or an interest in land.
(2)A carbon right can only be transferred in relation to the whole of the area of the affected land.
(3)If the proprietor of a carbon right is also the proprietor of a carbon covenant entered into in relation to that carbon right, a transfer of the carbon right shall not be registered unless it is accompanied by a transfer of the proprietor’s interest in the carbon covenant.
(4)If a carbon right is registered in respect of Crown land, a transfer of the carbon right shall not be registered unless there is compliance with section 18 of the Land Administration Act 1997.
[Section 104D inserted: No. 56 of 2003 s. 14.]
(1)The requirements of subsection (2) are in addition to the requirements of Part IV Division 3 and any other provision of this Act relevant to the mortgage of land.
(2)If a carbon right is registered in respect of Crown land, a mortgage of the carbon right shall not be registered unless there is compliance with section 18 of the Land Administration Act 1997.
[Section 104E inserted: No. 56 of 2003 s. 14.]
104F.Surrender of carbon right
(1)A carbon right may be wholly or partially surrendered by an instrument of surrender in an approved form that is signed by each proprietor of the carbon right.
(2)An instrument of surrender of a carbon right shall not be registered unless —
(a)the following have been surrendered, discharged or withdrawn —
(i)each registered interest in the carbon right or the part of the carbon right to be surrendered;
(ii)any carbon covenant that is registered in respect of the carbon right or the part of the carbon right to be surrendered;
(iii)any caveat lodged in respect of the carbon right or the part of the carbon right to be surrendered;
and
(b)the instrument is accompanied by the prescribed fee.
(3)If a carbon right is registered in respect of Crown land, an instrument of surrender of the carbon right shall not be registered unless there is compliance with section 18 of the Land Administration Act 1997.
[Section 104F inserted: No. 56 of 2003 s. 14.]
104G.Registration of carbon covenant form
(1)A carbon covenant form shall not be registered unless it is accompanied by —
(a)the written consent of each person who has a registered interest in —
(i)the land to be burdened by the proposed carbon covenant; and
(ii)the relevant carbon right;
and
(b)the prescribed fee.
(2)If a carbon covenant form is in respect of Crown land, it shall not be registered unless there is compliance with section 18 of the Land Administration Act 1997.
[Section 104G inserted: No. 56 of 2003 s. 14.]
104H.Extension of carbon covenant
(1)A carbon covenant may be extended by an instrument of extension in an approved form that sets out the term of the extension, which shall not be longer than the term of the relevant carbon right, and that is signed by each proprietor of —
(a)the carbon covenant; and
(b)the burdened land.
(2)An instrument of extension of a carbon covenant —
(a)may be used to vary the provisions of a carbon covenant if the Registrar is satisfied that the covenant if varied as proposed would continue to comply with section 11(2) of the Carbon Rights Act 2003; and
(b)shall not be used to effect a change to —
(i)the proprietors of the carbon covenant or the burdened land; or
(ii)the area of the burdened land to which the covenant applies.
(3)An instrument of extension of a carbon covenant shall not be registered unless it is accompanied by —
(a)the written consent of each person who has a registered interest in —
(i)the carbon covenant; and
(ii)the burdened land; and
(iii)the relevant carbon right;
and
(b)the prescribed fee.
(4)Subsection (3) does not require the written consent of a person whose signature to an instrument of extension of a carbon covenant is required under subsection (1)(a) or (b).
(5)If a carbon covenant applies in respect of Crown land, an instrument of extension of the carbon covenant shall not be registered unless there is compliance with section 18 of the Land Administration Act 1997.
[Section 104H inserted: No. 56 of 2003 s. 14.]
104I.Variation of carbon covenant
(1)The provisions of a carbon covenant may be varied by an instrument of variation in an approved form that sets out the variations and the conditions (if any) on which the variations are made, and that is signed by each proprietor of —
(a)the carbon covenant; and
(b)the burdened land.
(2)An instrument of variation of a carbon covenant —
(a)may be used to vary the provisions of a carbon covenant if the Registrar is satisfied that the covenant if varied as proposed would continue to comply with section 11(2) of the Carbon Rights Act 2003; and
(b)shall not be used to effect —
(i)a change to the proprietors of the carbon covenant or the burdened land; or
(ii)a change to the area of the burdened land to which the covenant applies; or
(iii)an extension or other change to the term of a carbon covenant.
(3)An instrument of variation of a carbon covenant shall not be registered unless it is accompanied by —
(a)the written consent of each person who has a registered interest in —
(i)the carbon covenant; and
(ii)the burdened land; and
(iii)the relevant carbon right;
and
(b)the prescribed fee.
(4)Subsection (3) does not require the written consent of a person whose signature to an instrument of variation of a carbon covenant interest is required under subsection (1)(a) or (b).
(5)If a carbon covenant applies in respect of Crown land, an instrument of variation of the covenant shall not be registered unless there is compliance with section 18 of the Land Administration Act 1997.
[Section 104I inserted: No. 56 of 2003 s. 14.]
104J.Transfer of benefits under carbon covenant
(1)The requirements of subsections (2), (3) and (4) are in addition to the requirements of Part IV Division 1 and any other provision of this Act relevant to the transfer of land or an interest in land.
(2)A carbon covenant can only be transferred in relation to the whole of the area of the land in respect of which —
(a)the relevant carbon right is registered; and
(b)the covenant applies.
(3)A transfer of a carbon covenant shall not be registered unless it is accompanied by a transfer of the proprietor’s interest in the relevant carbon right.
(4)If a carbon covenant applies in respect of Crown land, a transfer of the carbon covenant shall not be registered unless there is compliance with section 18 of the Land Administration Act 1997.
[Section 104J inserted: No. 56 of 2003 s. 14.]
104K.Mortgage of carbon covenant
(1)The requirements of subsections (2) and (3) are in addition to the requirements of Part IV Division 3 and any other provision of this Act relevant to the mortgage of land.
(2)A person shall not be a mortgagee of a carbon covenant unless the person is also a mortgagee of the relevant carbon right.
(3)If a carbon covenant applies in respect of Crown land, a mortgage of the carbon covenant shall not be registered unless there is compliance with section 18 of the Land Administration Act 1997.
[Section 104K inserted: No. 56 of 2003 s. 14.]
104L.Surrender of carbon covenant
(1)A carbon covenant may be wholly or partially surrendered by an instrument of surrender in an approved form that is signed by each proprietor of —
(a)the carbon covenant; and
(b)the burdened land that is the subject of the surrender.
(2)An instrument of surrender of a carbon covenant shall not be registered unless —
(a)the following have been surrendered, discharged or withdrawn —
(i)each registered interest in the carbon covenant or the part of the carbon covenant to be surrendered;
(ii)any caveat lodged in respect of the carbon covenant or the part of the covenant to be surrendered;
and
(b)the instrument is accompanied by the prescribed fee.
(3)If a carbon covenant applies in respect of Crown land, an instrument of surrender of the carbon covenant shall not be registered unless there is compliance with section 18 of the Land Administration Act 1997.
[Section 104L inserted: No. 56 of 2003 s. 14.]
Division 2B — Tree plantation agreements and plantation interests
[Heading inserted: No. 56 of 2003 s. 14.]
In this Division —
agreement means a tree plantation agreement;
agreement land has the same meaning as it has in the Tree Plantation Agreements Act 2003.
[Section 104M inserted: No. 56 of 2003 s. 14.]
104N.Registration of tree plantation agreement
(1)A party to an agreement may lodge the agreement for registration.
(2)An agreement shall not be registered unless it is in an approved form and is accompanied —
(a)by the written consent of each person who has a registered interest in the agreement land; and
(b)if the agreement is entered into by a lessee of freehold land or Crown land, by the written consent of each person who has a registered interest in the freehold land or Crown land that is the subject of the lease; and
(c)by the prescribed fee.
(3)If the agreement is entered into by a lessee of Crown land, the agreement shall not be registered unless there is compliance with section 18 of the Land Administration Act 1997.
[Section 104N inserted: No. 56 of 2003 s. 14.]
104O.Extension of plantation interest
(1)A plantation interest may be extended by an instrument of extension in an approved form that sets out the term of the extension and the conditions (if any) on which the extension is made, and that is signed by each proprietor of —
(a)the plantation interest; and
(b)the relevant agreement land.
(2)An instrument of extension of a plantation interest —
(a)may be used to vary the provisions of the relevant agreement if the Registrar is satisfied that the agreement if varied as proposed would continue to comply with section 6(1) of the Tree Plantation Agreements Act 2003; and
(b)shall not be used to effect a change to —
(i)the proprietors of the plantation interest or the relevant agreement land; or
(ii)the area of the relevant agreement land to which the plantation interest applies.
(3)An instrument of extension of a plantation interest shall not be registered unless it is accompanied by —
(a)the written consent of —
(i)each person who has a registered interest in the relevant agreement land; and
(ii)if the relevant agreement was entered into by a lessee of freehold land or Crown land —
(I)each person who is a proprietor of the freehold land or Crown land that is the subject of the lease; and
(II)each person who has a registered interest in the freehold land or Crown land the subject of the lease that was registered subsequent to the registration of the relevant agreement;
and
(iii)each person who has a registered interest in the plantation interest;
and
(b)the prescribed fee.
(4)Subsection (3) does not require the written consent of a person whose signature to an instrument of extension of a plantation interest is required under subsection (1)(a) or (b).
(5)If an agreement is entered into by a lessee of Crown land, an instrument of extension of the plantation interest that is the subject of the agreement is not to be registered unless there is compliance with section 18 of the Land Administration Act 1997.
[Section 104O inserted: No. 56 of 2003 s. 14.]
(1)The provisions of an agreement may be varied by an instrument of variation in an approved form that sets out the variations and the conditions (if any) on which the variations are made, and that is signed by each proprietor of —
(a)the plantation interest that is the subject of the agreement; and
(b)the agreement land.
(2)An instrument of variation of an agreement —
(a)may be used to vary the provisions of the agreement if the Registrar is satisfied that the agreement if varied as proposed would continue to comply with section 6(1) of the Tree Plantation Agreements Act 2003; and
(b)shall not be used to effect —
(i)a change to the proprietors of a plantation interest or the relevant agreement land; or
(ii)a change to the area of the agreement land to which the plantation interest that is the subject of the agreement applies; or
(iii)an extension or other change to the term of a plantation interest.
(3)An instrument of variation of an agreement shall not be registered unless it is accompanied by —
(a)the written consent of —
(i)each person who has a registered interest in the agreement land; and
(ii)if the agreement was entered into by a lessee of freehold land or Crown land —
(I)each person who is a proprietor of the freehold land or Crown land that is the subject of the lease; and
(II)each person who has a registered interest in the freehold land or Crown land the subject of the lease that was registered subsequent to the registration of the agreement;
and
(iii)each person who has a registered interest in the plantation interest that is the subject of the agreement;
and
(b)the prescribed fee.
(4)Subsection (3) does not require the written consent of a person whose signature to an instrument of variation of an agreement is required under subsection (1)(a) or (b).
(5)If an agreement is entered into by a lessee of Crown land, an instrument of variation of the agreement shall not be registered unless there is compliance with section 18 of the Land Administration Act 1997.
[Section 104P inserted: No. 56 of 2003 s. 14.]
104Q.Transfer of plantation interests
(1)The requirements of subsections (2) and (3) are in addition to the requirements of Part IV Division 1 and any other provision of this Act relevant to the transfer of land or an interest in land.
(2)A plantation interest can only be transferred in relation to the whole of the area of the relevant agreement land.
(3)If a plantation interest is registered in respect of Crown land, a transfer of the plantation interest shall not be registered unless there is compliance with section 18 of the Land Administration Act 1997.
[Section 104Q inserted: No. 56 of 2003 s. 14.]
104R.Mortgage of plantation interests
(1)The requirements of subsection (2) are in addition to the requirements of Part IV Division 3 and any other provision of this Act relevant to the mortgage of land.
(2)If a plantation interest is registered in respect of Crown land, a mortgage of the plantation interest shall not be registered unless there is compliance with section 18 of the Land Administration Act 1997.
[Section 104R inserted: No. 56 of 2003 s. 14.]
104S.Surrender of plantation interests
(1)A plantation interest may be wholly or partially surrendered by an instrument of surrender in an approved form that is signed by each proprietor of —
(a)the plantation interest; and
(b)the agreement land.
(2)An instrument of surrender of a plantation interest shall not be registered unless —
(a)the following have been surrendered, discharged or withdrawn —
(i)each registered interest in the plantation interest or the part of the plantation interest to be surrendered;
(ii)any caveat lodged in respect of the plantation interest or the part of the plantation interest to be surrendered;
and
(b)the instrument is accompanied by the prescribed fee.
(3)If an agreement is entered into by a lessee of Crown land, an instrument of surrender of the plantation interest that is the subject of the agreement shall not be registered unless there is compliance with section 18 of the Land Administration Act 1997.
[Section 104S inserted: No. 56 of 2003 s. 14.]
Division 3 — Mortgages and annuities
105.Mortgages and charges for annuities, creating
(1)The proprietor of land under the operation of this Act may —
(a)mortgage the land; or
(b)charge the land with the payment of an annuity.
(2)A mortgage or charge shall be in an approved form.
(3)Subsection (4) applies if —
(a)a counterpart of an instrument purporting to mortgage or charge any land under the operation of this Act (the charging instrument) is lodged for registration in accordance with regulations made under this Act or requirements determined under section 182A; and
(b)the counterpart of the charging instrument lodged —
(i)purports to be signed by the person who, on registration of the mortgage or charge, will become the proprietor of the mortgage or charge; but
(ii)does not purport to be signed by the proprietor of the land;
and
(c)a counterpart of the charging instrument purporting to be signed by the proprietor of the land is not also lodged for registration; and
(d)the charging instrument is registered.
(4)If this subsection applies, the mortgage or charge is not valid or binding against the proprietor of the land unless, before the charging instrument was registered, the proprietor of the land signed a counterpart of the charging instrument.
(5)Subsection (4) overrides section 58.
[Section 105 inserted: No. 81 of 1996 s. 65; amended: No. 2 of 2014 s. 73.]
105A.Extension of mortgage, charge or lease
(1)A mortgage, charge or lease may be extended by an instrument of extension executed by all the parties to the mortgage, charge or lease, as the case may be, and setting out the term of the extension and the conditions on which the extension is made.
(2)Where an instrument of extension is presented to the Registrar he shall enter a memorandum of it on the certificate of title and the Registrar may also —
(a)in the case of a lease, enter a memorandum of it on the record of the lease held by the Authority; or
(b)in the case of a sublease of land that is the subject of a paper title, enter a memorandum of it on the sublease.
(3)No dealing registered subsequent to any mortgage, charge or lease shall be affected by the extension of the mortgage, charge or lease, as the case may be, unless the proprietor in whose favour the dealing was registered gives written consent to the extension.
[Section 105A inserted: No. 81 of 1996 s. 65; amended: No. 6 of 2003 s. 38; No. 60 of 2006 s. 118(1).]
106.Mortgage or charge not to operate as transfer; default procedures
(1)Subject to Division 2 of Part 6 of the Land Administration Act 1997 in the case of conditional tenure land, a mortgage and a charge under this Act shall when registered as hereinbefore provided have effect as a security but shall not operate as a transfer of the land thereby mortgaged or charged; and in case default be made in payment of the principal sum interest or annuity secured or any part thereof respectively or in the performance or observance of any covenant expressed in any mortgage or charge or hereby declared to be implied in any mortgage and such default be continued for one month or for such other period of time as may therein for that purpose be expressly fixed the mortgagee or annuitant or his transferees may serve on the mortgagor or grantor or his transferees notice in writing to pay the money owing on such mortgage or charge or to perform and observe the aforesaid covenants (as the case may be).
(2)Notwithstanding section 240, service of the notice referred to in subsection (1) is not properly effected unless —
(a)the notice is delivered personally to the mortgagor or the grantor or his transferees, as the case requires; or
(b)the notice is sent by registered post to —
(i)the address entered in the Register as the address of the mortgagor or the grantor or his transferees, as the case requires; or
(ii)the address known to the mortgagee or the annuitant or his transferees as the current address of the mortgagor or the grantor or his transferees, as the case requires;
or
(c)the notice is left in a conspicuous place on the mortgaged or charged land; or
(d)the notice is sent to the number of the facsimile machine of the mortgagor or the grantor or his transferees, as the case requires (but only where the mortgagor or the grantor or the transferee has specified in writing to the mortgagee or the annuitant or his transferees, as the case requires, that notices under this section may be served on him by facsimile transmission).
[Section 106 amended: No. 81 of 1996 s. 66; No. 31 of 1997 s. 108; No. 10 of 1998 s. 69(1).]
107.Written demand equivalent to written notice
Subject to Division 2 of Part 6 of the Land Administration Act 1997 in the case of conditional tenure land, when money secured by a mortgage under this Act is made payable on demand a demand in writing pursuant to the mortgage shall be equivalent to the notice in writing to pay the money owing provided for by the last preceding section of this Act; and no other notice shall be required to create the default in payment mentioned in the next following section to this Act.
[Section 107 amended: No. 31 of 1997 s. 109.]
108.Power to sell in cases of continuing default
Subject to Division 2 of Part 6 of the Land Administration Act 1997 in the case of conditional tenure land, if such default in payment or in performance or observance of covenants shall continue for one month after the service of such notice or for such other period as may in such mortgage or charge be for that purpose fixed the mortgagee or annuitant or his transferees may sell the land mortgaged or charged or any part thereof either altogether or in lots by public auction or by private contract and either at one or at several times and subject to such terms and conditions as may be deemed fit; with power to vary any contract for sale and to buy in at any auction or to rescind any contract for sale, and to resell without being answerable for any loss occasioned thereby, with power to make such roads, streets and passages, and to grant and reserve such easements as the circumstances of the case require and the mortgagee or annuitant thinks fit; and may make and sign such transfers and do such acts and things as shall be necessary for effectuating any such sale; and no purchaser shall be bound to see or inquire whether such default as aforesaid shall have been made or have happened or have continued, or whether such notice as aforesaid shall have been served or otherwise into the propriety or regularity of such sale.
[Section 108 amended: No. 17 of 1950 s. 25; No. 31 of 1997 s. 110.]
109.Application of purchase money
(1)If mortgaged or charged land is sold by the mortgagee or his transferees, the purchase money arising from the sale shall be applied as follows —
(a)firstly in payment of the expenses of and incidental to such sale and consequent on such default;
(b)secondly in payment of the moneys which may be due or owing on the mortgage;
(c)thirdly in payment of subsequent mortgages and of any money which may be due or owing in respect of any subsequent charge in the order of their respective priorities,
and the surplus (if any) shall be paid to the mortgagor.
(1A)However, if the sale be made by a mortgagee or his transferees and there is a subsequent charge the purchase moneys after there shall have been made thereout all proper prior payments shall be deposited by him or them in the manner and names and for purposes corresponding with those after mentioned.
(1B)If mortgaged or charged land is sold by the annuitant or his transferees, the purchase money arising from the sale shall be applied as follows —
(a)firstly in payment of the expenses of and incidental to such sale and consequent on such default;
(b)then in payment of the moneys which may be due or owing to the annuitant or his transferees,
and the residue shall be deposited by him or them at interest in the Commonwealth Savings Bank or in some other bank in Perth in the joint names of the annuitant or his transferees and of the Registrar to satisfy the accruing payments of the charge and subject thereto for the benefit of the parties who may be or become entitled to the residue of the deposited money.
(2)This section does not apply to the application of the proceeds of a sale by a mortgagee in accordance with section 77 of the Land Administration Act 1997.
[Section 109 amended: No. 17 of 1950 s. 26; No. 31 of 1997 s. 111; No. 19 of 2010 s. 51.]
110.Transfer after sale by mortgagee etc., effect of
Subject to section 15(10) of the Land Administration Act 1997 and section 32(3)(b) of the Contaminated Sites Act 2003, upon the registration of any transfer signed by a mortgagee or annuitant or his transferees for the purpose of such sale as aforesaid the estate and interest of the mortgagor or grantor in the land therein described at the time of the registration of the mortgage or charge or which he was then entitled or able to transfer or dispose of under any power of appointment or disposition or under any power herein contained shall pass to and vest in the purchaser freed and discharged from all liability on account of such mortgage or charge and of any mortgage charge or encumbrance registered subsequent thereto excepting a lease, carbon right, carbon covenant, plantation interest or grant of easement to which the mortgagee or annuitant or his transferees shall have consented in writing and the purchaser when registered as the proprietor shall be deemed a transferee of such land and the Registrar may either register the purchaser as the proprietor of the land on the existing certificate of title or create and register a new certificate of title in the purchaser’s name as proprietor of the land.
[Section 110 amended: No. 17 of 1950 s. 27; No. 81 of 1996 s. 67; No. 31 of 1997 s. 112; No. 56 of 2003 s. 15; No. 60 of 2003 s. 100.]
111.Remedies of mortgagee or annuitant in cases of default
Subject to the provisions of section 112A the mortgagee or annuitant or his transferees upon default in payment of the principal sum or interest or annuity or any part thereof respectively at the time mentioned in the mortgage or charge may enter into possession of the mortgaged or charged land by receiving the rents and profits thereof and may distrain upon the occupier or tenant of the land under the power to distrain hereinafter contained or may bring an action of ejectment to recover the land either before or after entering into the receipt of the rents and profits thereof or making any distress and either before or after any sale of such land shall be effected under the power of sale aforesaid in the same manner in which he or they might have brought such action if the mortgage money or annuity had been secured to him or them by an assurance of the legal estate in the land mortgaged or charged; and any mortgagee or his transferees shall be entitled to foreclose the right of the mortgagor or his transferees to redeem the mortgaged land in manner hereinafter provided.
[Section 111 amended: No. 17 of 1950 s. 28.]
112.Further remedies of mortgagee or annuitant
(1)Subject to the provisions of section 112A besides his other remedies every mortgagee or annuitant for the time being and every transferee of a mortgage or charge for the time being shall be entitled as often as it shall happen that the interest or annuity or any part thereof respectively shall be in arrear for 21 days and after 7 days shall have elapsed from an application to the occupier or tenant for the payment thereof to enter upon the mortgaged or charged land and distrain the goods and chattels of such occupier or tenant for the arrears of the said interest or annuity and the distress and distresses then and there found to dispose of in like manner as landlords may do in respect of distresses for rent reserved upon common demises and out of the sale moneys to retain the moneys which shall be so in arrear and all costs and expenses occasioned by such distress and sale.
(2)Despite subsection (1), no occupier or tenant shall be liable to pay to any such mortgagee or annuitant or transferee a greater sum than the amount of rent which at the time of making such application for payment shall be due from such occupier or tenant, and any amount so paid as well as any amount which shall be paid by him to any such mortgagee or annuitant or transferee during the time he may be in receipt of the rents and profits shall be held to be pro tanto satisfaction of the rent.
(3)If there be more than one mortgage or charge on any land the mortgagees or annuitants shall be entitled to exercise the remedy given by this section according to their priorities.
[Section 112 amended: No. 17 of 1950 s. 28; No. 19 of 2010 s. 51.]
112A.Abolition of power of distress
On 11 December 1936, and thereafter during the operation of the Distress for Rent Abolition Act 1936, which came into operation on that day, the power to distrain conferred by the last 2 preceding sections is abolished.
[Section 112A inserted: No. 17 of 1950 s. 29.]
113.Covenants implied in mortgages
In every mortgage made under the provisions of this Act there shall be implied covenants with the mortgagee and his transferees by the mortgagor binding the latter and his heirs executors administrators and transferees that he or they will pay the principal money therein mentioned on the day therein appointed and will so long as the principal money or any part thereof shall remain unpaid pay interest thereon or on so much thereof as shall for the time being remain unpaid at the rate and on the days and in manner therein specified; also that he or they will repair and keep in repair all buildings or other improvements which shall have been or shall be erected or made upon the mortgaged land; and that the mortgagee and his transferees may at all reasonable time until such mortgage be redeemed enter into and upon such land with or without surveyors or others to view and inspect the state of repair of such buildings or improvements.
114.Mortgagee or annuitant of leasehold entering into possession become liable to lessor
A mortgagee of or annuitant upon land leased under this Act and his transferees after entering into possession of the land or the receipt of the rents and profits thereof shall during such possession or receipt and to the extent of any benefit rents and profits which may be received become and be subject and liable to the lessor of the said land or his transferees or the person for the time being entitled to the reversion and inheritance expectant on the term of the lease for the payment of the rent reserved by the lease and for the performance and observance of the covenants therein contained or by this Act declared to be implied therein on the part of the lessee or his transferees.
115.Short form of covenant by mortgagor to insure
(1)Whenever in any mortgage made under this Act the mortgagor shall employ the form of words contained in column one of the Sixteenth Schedule such mortgage shall be taken to have the same effect and be construed as if he had inserted therein the form of words contained in column 2 of the same Schedule; and every such form shall be deemed a covenant with the mortgagee and his transferees by the mortgagor binding the latter and his heirs executors administrators and transferees.
(2)There may be introduced into or annexed to the said form in the first column any express exception from or express qualification thereof; and the like exception or qualification shall be taken to be made from or in the form in the second column.
[Section 115 amended: No. 19 of 2010 s. 51.]
116.Rights of mortgagees generally
(1)In addition to and concurrently with the rights and powers conferred on a mortgagee and on a transferee of a mortgage by this Act every present and future mortgagee for the time being of land under this Act and every transferee of a mortgage for the time being upon any such land shall until a discharge from the whole of the money secured or until a transfer upon a sale or an order for foreclosure (as the case may be) shall have been registered have the same rights and remedies at law and in equity (including proceedings before the Magistrates Court) as he would have had or been entitled to if the legal estate in the land or term mortgaged had been actually vested in him with a right in the mortgagor of quiet enjoyment of the mortgaged land until default in payment of the principal and interest money secured or some part thereof respectively or until a breach in the performance or observance of some covenant expressed in the mortgage or to be implied therein by the provisions of this Act.
(2)Nothing contained in this section shall affect or prejudice the rights or liabilities of any such mortgagee or transferee after an order for foreclosure shall have been entered in the Register; or shall until the entry of such an order render a mortgagee of land leased under this Act or the transferee of his mortgage liable to or for the payment of the rent reserved by the lease or for the performance or observance of the covenants expressed or to be implied therein.
[Section 116 amended: No. 81 of 1996 s. 145(1); No. 59 of 2004 s. 140; No. 19 of 2010 s. 51.]
117.Mortgagor not to sue on cause of action available to mortgagee without mortgagee’s consent
(1)A mortgagor or his transferee shall not either before or after such default or breach as aforesaid commence in his own name any action at law for or in respect of any cause of action for which a mortgagee or his transferee may sue under the last preceding section without obtaining the previous consent in writing of such mortgagee or transferee or his agent to the commencement of such action after giving which consent such mortgagee or transferee shall not be entitled to bring in his name any action at law in respect of the cause of action specified in such consent.
(2)Despite subsection (1), if a mortgagor or his transferee shall bring any such action in his own name and the defendant shall prove the existence of a mortgage the plaintiff shall not be nonsuited nor shall there be a verdict against him if he prove in reply that the action was brought with the written consent of the mortgagee or of the transferee of his mortgage or his agent.
[Section 117 amended: No. 19 of 2010 s. 51.]
118.Application of money obtained by mortgagor in action for waste of or damage to mortgaged lands
Any sum of money which shall become payable to the mortgagor or his transferee under any decree or order in any action by him in the Supreme Court for or on account of any waste or damage of or to the land mortgaged shall be paid to the mortgagee or his transferee in reduction or satisfaction of the money secured; and if he shall not be willing to receive the same or shall thereby be fully paid off the same or the balance shall be paid to any subsequent mortgagee or his transferee according to priority in like reduction or satisfaction; and if no mortgagee or his transferee shall be willing or be entitled to receive the same then to the mortgagor or his transferee for his own benefit.
119.Mortgagee may seek court order as to money recovered by mortgagor in action
(1)Any mortgagee or his transferee may either before or after judgment or execution obtained in any action at law brought by the mortgagor or his transferee apply to a judge for a summons in such action calling on the plaintiff and defendant or their attorneys or agents to attend before a judge and show cause why any sum beyond $50 which shall have been or shall be recovered for damages in such action or which shall become payable on the settlement thereof should not be paid to such persons and for such purposes as are hereinbefore mentioned with respect to money payable under any decree or order in any action by the mortgagor or his transferee; and the judge hearing the summons shall determine the matter thereof in a summary manner, and shall make such order therein as to costs and all other matters as may appear to be just and reasonable; and the decision of such judge shall be final and conclusive against all parties.
(2)Every order made in pursuance of this section shall be liable to be rescinded or altered by the court in like manner as other orders made by a single judge.
[Section 119 amended: No. 113 of 1965 s. 4; No. 59 of 2004 s. 140; No. 19 of 2010 s. 51.]
120.Application of moneys obtained by mortgagee in action
Any money received by a mortgagee or his transferee under any proceeding commenced in his name at law or in equity shall after payment by thereout of his costs be applied in reduction or satisfaction of the moneys secured and subject thereto shall be disposed of according to the equities of the parties interested.
121.Foreclosure, application for order for
(1)Whenever default has been made in payment of the principal or interest moneys secured by a mortgage and such default shall be continued for 6 months after the time for payment mentioned in the mortgage, the mortgagee or his transferee may make application in writing to the Commissioner for an order for foreclosure.
(1A)Such application shall state that such default has been made and has continued for the period aforesaid and that the land mortgaged has been offered for sale at public auction by a licensed auctioneer after notice to pay was served in accordance with section 106 and that the amount of the highest bidding at such sale (which amount shall also be stated) was not sufficient to satisfy the moneys secured by such mortgage together with the expenses occasioned by such sale or that there was no bid and that notice in writing of the intention of the mortgagee or his transferee to make an application for foreclosure has been served on the mortgagor or his transferees, and also that a like notice of such intention has been served on every person appearing by the Register to have any right estate or interest to or in the mortgaged land subsequently to such mortgage.
(1B)Such application shall be accompanied by a certificate of the auctioneer by whom such land was put up for sale and by such further evidence in the premises as the Commissioner may require.
(1C)The statements made in such application shall be verified by statutory declaration.
(2)Notwithstanding section 240, service on a person of a notice of intention to apply for foreclosure is not properly effected unless —
(a)the notice is delivered personally to the person; or
(b)the notice is sent by registered post to —
(i)the address entered in the Register as the address of the person; or
(ii)the address known to the mortgagee or his transferees as the person’s current address;
or
(c)the notice is left in a conspicuous place on the mortgaged land; or
(d)the notice is sent to the number of the person’s facsimile machine (but only where the person has specified in writing to the mortgagee or his transferees, as the case requires, that such notices may be served on the person by facsimile transmission).
[Section 121 amended: 60 Vict. No. 22 s. 3; No. 17 of 1950 s. 30; No. 81 of 1996 s. 68; No. 10 of 1998 s. 69(2); No. 19 of 2010 s. 51.]
122.Application for foreclosure to be advertised
Upon such application the Commissioner may direct the Registrar to cause notice to be published once in each of the 3 successive weeks in at least one newspaper published in the city of Perth offering such land for private sale and shall appoint a time not less than one month from the date of the first of such advertisements upon or after which the Registrar shall issue to such applicant an order for foreclosure, unless in the interval a sufficient amount has been obtained by the sale of such land to satisfy the principal and interest moneys secured and all expenses occasioned by such sale and proceedings; and every such order for foreclosure under the hand of the Registrar when entered in the Register shall have the effect of vesting in the mortgagee or his transferee the land mentioned in such order free from all right and equity of redemption on the part of the mortgagor or of any person claiming through or under him subsequently to the mortgage; and such mortgagee or his transferee shall upon such entry being made be deemed a transferee of the mortgaged land and become the proprietor thereof and the Registrar may either register the mortgagee or the transferee as the proprietor of the land on the existing certificate of title or create and register a new certificate of title in the name of the mortgagee or the transferee as the proprietor of the land.
[Section 122 amended: No. 81 of 1996 s. 69 and 145(1).]
123.Discharge of mortgages and annuities
Upon production of a memorandum signed by the mortgagee or annuitant or his transferees and attested by a witness to the satisfaction of the Commissioner discharging the land from the whole or part of the moneys or annuity secured or discharging any part of the land from the whole of such moneys or annuity the Registrar shall make an entry in the Register stating the time at which it was made that such mortgage or charge is discharged wholly or partially or that part of the land is discharged as aforesaid (as the case may be); and upon such entry being made the land or the portion of land described in such memorandum shall cease to be subject to or liable for such moneys or annuity or for the part thereof mentioned in such entry as discharged; and if the land is the subject of —
(a)a paper title, the Registrar shall make a corresponding entry on the duplicate certificate of title (if any) when produced to him for that or any other purpose; or
(b)a digital title, the Registrar shall cancel the duplicate certificate of title (if any) and may issue a new edition of the duplicate certificate of title in accordance with section 74B(2).
[Section 123 amended: No. 81 of 1996 s. 70 and 145(1); No. 6 of 2003 s. 39.]
124.Mortgages etc. made before land brought under this Act
When land shall have been brought under the operation of The Transfer of Land Act 1874 or of this Act and a certificate shall have been registered subject to a mortgage or other encumbrance made or given before the registration of such certificate such mortgage or other encumbrance may be transferred or discharged in like manner as if it were a mortgage or other encumbrance prescribed by and registered under the said Acts or either of them and the mortgagee or the other person claiming under such mortgage or encumbrance may exercise the same rights and remedies as if the mortgage or other encumbrance had been made and registered in the form and manner prescribed by the said Acts or either of them.
[Section 124 amended: 2 Edw. VII. No. 10 s. 5; No. 81 of 1996 s. 71.]
125.Entry of satisfaction of annuity
Upon proof to the satisfaction of the Commissioner of the death of the annuitant or of the occurrence of the event or circumstance upon which in accordance with the provisions of any charge the annuity thereby secured shall cease to be payable and upon proof to the like satisfaction that all arrears of the annuity and all costs occasioned by non‑payment thereof have been paid or satisfied he shall direct the Registrar to make an entry in the Register that such annuity is satisfied; and upon such entry being made the land shall cease to be subject to or liable for such annuity; and if the land is the subject of —
(a)a paper title, the Registrar shall make a corresponding entry on the duplicate certificate of title (if any) when produced to him for that or any other purpose; or
(b)a digital title, the Registrar shall cancel the duplicate certificate of title (if any) and may issue a new edition of the duplicate certificate of title in accordance with section 74B(2).
[Section 125 amended: No. 17 of 1950 s. 31; No. 81 of 1996 s. 145(1); No. 6 of 2003 s. 40.]
126.Payments under and discharge of mortgages when mortgagee absent from State etc.
(1)In case a mortgagee or his transferee shall be absent from Western Australia and there be no person authorised to give a receipt for the mortgage money at or after the date appointed for payment thereof it shall be lawful for the Treasurer to receive such mortgage money with all arrears of interest due thereon in trust for the mortgagee or other person entitled thereto; and thereupon the interest upon such mortgage shall cease to run or accrue.
(1A)The Registrar shall upon production of the receipt of the Treasurer for the amount of the mortgage money and interest make an entry in the Register discharging the land from such mortgage stating the time at which such entry was made; and such entry shall be a valid discharge from such mortgage.
(1B)If the land is the subject of —
(a)a paper title, the Registrar shall make a corresponding entry on the duplicate certificate of title (if any) when produced to him for that or any other purpose; or
(b)a digital title, the Registrar shall cancel the duplicate certificate of title (if any) and may issue a new edition of the duplicate certificate of title in accordance with section 74B(2).
(1C)The Treasurer shall from time to time invest all mortgage moneys and interest which shall be received by him under this section together with all dividends and interest which shall accrue thereon in Western Australian Government or Commonwealth securities for the benefit of the persons who shall for the time being be entitled thereto; but nothing herein contained shall render any Treasurer in any manner liable for not investing the same respectively.
(1D)The Registrar shall address to the Treasurer requisitions countersigned by the Commissioner to pay to such persons the moneys to which they may be entitled hereunder; and such moneys shall be issued in like manner as moneys are now issued from the Consolidated Account.
(1E)In subsections (1) to (1D) —
mortgage money shall include any outstanding balance of the principal moneys secured.
(2)If it be proved to the satisfaction of the Commissioner that the whole of the moneys payable under a mortgage, whether as principal or interest, have been paid and that the mortgagee or his transferee is dead or absent from Western Australia or cannot be found and there is no person empowered or authorised to discharge the mortgage on his behalf the Commissioner may direct the Registrar to make an entry in the Register discharging the land from such mortgage stating the time at which such entry was made and such entry shall be a valid discharge from such mortgage and if the land is the subject of —
(a)a paper title, the Registrar shall make a corresponding entry on the duplicate certificate of title (if any) when produced to him for that or any other purpose; or
(b)a digital title, the Registrar shall cancel the duplicate certificate of title (if any) and may issue a new edition of the duplicate certificate of title in accordance with section 74B(2).
[Section 126 amended: No. 6 of 1946 s. 2; No. 17 of 1950 s. 32; No. 6 of 1993 s. 11; No. 81 of 1996 s. 72 and 145(1); No. 6 of 2003 s. 41; No. 77 of 2006 s. 4; No. 19 of 2010 s. 51.]
127A.Subsequent mortgages or charges
(1)In this section —
mortgage includes a charge;
mortgagee includes an annuitant.
(2)If any land under the operation of this Act is subject to a mortgage, the registration of a subsequent mortgage does not require the consent of the existing mortgagee.
(3)If any land under the operation of this Act is subject to a mortgage, the execution or attempted execution of a subsequent mortgage does not —
(a)constitute a breach of any term, covenant or condition contained in the existing mortgage; or
(b)give rise to any forfeiture or penalty; or
(c)make payable or accelerate the time for payment of any sum or sums that, if the execution or attempted execution of the subsequent mortgage had not happened, would not have been payable or would not have been payable at that time.
(4)This section has effect despite any provision to the contrary in any mortgage.
(5)This section does not apply to or in relation to any mortgage registered before the Electronic Conveyancing Act 2014 section 74 comes into operation.
[Section 127A inserted: No. 2 of 2014 s. 74.]
127.First mortgagee to produce title for registration of subsequent instrument
When any instrument subsequent to a first mortgage is made by the proprietor of any land and such proprietor or the person entitled to the benefit of such subsequent instrument desires the registration of such subsequent instrument the first mortgagee should he hold the duplicate certificate of title which comprises the land in such subsequent instrument shall upon being requested so to do by the proprietor of the land or the person entitled to the benefit of such subsequent instrument but at the cost of the person making such request produce such duplicate certificate of title to the Registrar so that such subsequent instrument may be registered.
128.Land brought under this Act subject to mortgage, rights of mortgagee etc.
When any land has been brought under or shall be brought under this Act subject to any mortgage and the mortgagee or any person claiming under him shall apply for a certificate of title to the land foreclosed or purchased the mortgage shall be deemed to have conferred upon the mortgagee or the purchaser under the power of sale contained in the mortgage the right to be registered as proprietor at law as well as in equity of the same estate in the land as that for which the mortgagor was registered and the only inquiry into title shall be as to the validity of the foreclosure or sale and of any subsequent transfers or transmissions of title to the applicant and no caveat which might have been or which was lodged against the original application shall be lodged or renewed in respect of the same estate or interest against the application of the mortgagee or any person claiming under him.
128A.Another mortgagee may tender payment
Where a mortgagee requires payment of money which is secured by a mortgage and payment of which is due, any other mortgagee of the same land may tender and pay to the mortgagee requiring payment the money so payable, and the mortgagee making the payment shall be entitled, at his own cost, to a transfer of the estate and interest of the mortgagee requiring the payment.
[Section 128A inserted: No. 17 of 1950 s. 33.]
[129.Deleted: No. 26 of 1999 s. 106(4).]
Division 3A — Restrictive covenants and the modification, discharge and enforcement of restrictive covenants and easements
[Heading inserted: No. 81 of 1996 s. 73.]
129A.Creation of restrictive covenants
(1)Restrictive covenants may be created and made binding in respect of land under this Act so far as the law permits by instruments in an approved form, but no such covenant affecting land subject to a mortgage, charge, carbon right, carbon covenant or plantation interest shall be registered unless the mortgagee, annuitant, or proprietor of the carbon right, carbon covenant or plantation interest has consented in writing thereto prior to the same being registered.
(2)Nothing in subsection (1) limits the creation of a restrictive covenant under Part IVA.
(3)Notwithstanding section 52(2), the Registrar may register an instrument creating a restrictive covenant (other than a restrictive covenant created under Part IVA) without entering a memorandum of the restrictive covenant on the certificate of title for the land (if any) benefited by the restrictive covenant.
(4)Nothing in subsection (3) shall be read as affecting any requirement, in relation to the registration of an instrument creating a restrictive covenant, to enter a memorandum of the restrictive covenant on the certificate of title for the land burdened by the restrictive covenant.
(5)Subject to subsection (6), where a restrictive covenant is created under Part IVA, the Registrar shall enter a memorandum of the restrictive covenant on the certificate of title for the land (if any) benefited, and the land burdened, by the restrictive covenant.
(6)If a restrictive covenant is created under Part IVA by notation on a scheme plan as defined in the Strata Titles Act 1985 section 3(1) or as a short form easement or restrictive covenant under that Act, it is not necessary for a memorandum of the restrictive covenant to be entered on the certificates of title for the dominant and servient tenements that are also a subject of that plan.
[Section 129A inserted: No. 17 of 1950 s. 34; amended: No. 81 of 1996 s. 74; No. 56 of 2003 s. 16; No. 2 of 2014 s. 75; No. 30 of 2018 s. 199.]
129B.Discharge and modification of restrictive covenants
(1)Notwithstanding anything contained in this Act to the contrary, but subject to subsection (3), any covenant or agreement affecting or restricting the use of land may be discharged or modified by agreement by all persons interested in the land affected by such covenant or agreement consenting to such discharge or modification.
(2)The Commissioner shall, when satisfied that all parties interested as aforesaid have agreed to the discharge or modification of any covenant entered on any certificate of title in the Register, direct the Registrar to enter a memorandum of the discharge or modification on each such certificate.
(3)Notwithstanding subsection (1), the discharge or modification of a restrictive covenant created under —
(a)section 129BA shall be in accordance with section 129BB; or
(b)Part IVA shall be in accordance with section 136J.
[Section 129B inserted: No. 17 of 1950 s. 34; amended: No. 81 of 1996 s. 75.]
129BA.Restrictive covenants benefiting local governments and public authorities
(1)A restrictive covenant may, under this section, be created and made binding in respect of land under the operation of this Act for the benefit of —
(a)the local government in whose district the land is situated; or
(b)a public authority,
notwithstanding that the benefit of the restrictive covenant would not be in respect of land.
(2)A restrictive covenant under this section shall be in an instrument in an approved form that is lodged with the Registrar and accompanied by —
(a)the written consent of each person who has a registered interest in any land that would be burdened by the restrictive covenant; and
(b)the prescribed fee.
[Section 129BA inserted: No. 81 of 1996 s. 76.]
129BB.Discharge and modification of s. 129BA covenants
(1)Either —
(a)the proprietor of land burdened by a restrictive covenant created under section 129BA; or
(b)a local government or public authority for whose benefit a restrictive covenant has been created under section 129BA (the relevant authority),
may apply, in an approved form and on payment of the prescribed fee, for the restrictive covenant to be discharged or to be modified in the manner set out in the application.
(2)An application under this section shall be accompanied by either —
(a)the written consent of —
(i)the relevant authority; and
(ii)each person who has a registered interest in any land burdened by the restrictive covenant,
to the discharge or the modification of the restrictive covenant as proposed; or
(b)the documents referred to in subsection (3).
(3)Where an application under this section is not accompanied by the written consents referred to in subsection (2)(a), it shall be accompanied by —
(a)the applicant’s statutory declaration to the effect that —
(i)the relevant authority and each person who has a registered interest in any land burdened by the restrictive covenant (not being the applicant) has been given 28 days’ written notice of both the intention to make the application and the substance of the proposed application; and
(ii)notice of both the intention to make the application and the substance of the proposed application has been published —
(I)at least 28 days before the day on which the application is made;
(II)in a newspaper circulating either throughout the State or in the district where the land is situated;
and
(iii)both of the notices referred to in subparagraphs (i) and (ii) stated —
(I)the applicant’s address for service of notices of objection to the proposed application or any part of the proposed application; and
(II)the day, being at least 3 days before the application was proposed to be made, by which notice of objections were to be received;
and
(iv)up to the time of making the application, the applicant had received no notice of objection to either the proposed application or any part of the proposed application;
and
(b)a copy of the notice referred to in paragraph (a)(ii) showing the name of the newspaper in which it was published and the day of publication.
(4)On an application under this section the Registrar, if directed by the Commissioner to do so, shall discharge the restrictive covenant or modify the restrictive covenant in the manner set out in the application.
(5)The Commissioner shall not direct the Registrar to discharge or modify a restrictive covenant under this section if the Commissioner is aware of any notice that has been served under subsection (3)(a)(iii) by which an objection has been made to either the application or any part of the application.
(6)Where a restrictive covenant is discharged or modified under this section the Registrar shall enter a memorandum of the discharge or modification on each certificate of title in the Register on which is entered a memorandum of the restrictive covenant.
[Section 129BB inserted: No. 81 of 1996 s. 76.]
129C.Supreme Court’s powers as to easements etc.
(1)Subject to subsection (1a), where land under this Act is subject to an easement or to any restriction arising under covenant or otherwise as to the user thereof or the right of building thereon, the court or a judge may from time to time on the application of any person interested in the land burdened or benefited, or any local government or public authority benefited, by the easement or restriction, by order wholly or partially extinguish, discharge or modify the easement or restriction upon being satisfied —
(a)that by reason of any change in the user of any land to which the easement or the benefit of the restriction is annexed, or of changes in the character of the property or the neighbourhood or other circumstances of the case which the court or a judge may deem material the easement or restriction ought to be deemed to have been abandoned or to be obsolete or that the continued existence thereof would impede the reasonable user of the land without securing practical benefits to other persons or (as the case may be) would unless modified so impede such user; or
(b)that the persons of full age and capacity for the time being or from time to time entitled to the easement or to the benefit of the restriction whether in respect of estates in fee simple of any lesser estates or interests in the land to which the easement or the benefit of the restriction is annexed have agreed to the same being wholly or partially extinguished, discharged or modified or by their acts or omissions may reasonably be considered to have abandoned the easement or to have waived the benefit of the restriction wholly or in part; or
(c)that the proposed extinguishment, discharge or modification will not substantially injure the persons entitled to the easement or to the benefit of the restriction.
(1a)An application under subsection (1)(a) or (c) to extinguish, discharge or modify a single dwelling covenant that benefits more than 10 lots shall be accompanied by —
(a)the applicant’s affidavit to the effect that the registered proprietor of each lot that is —
(i)wholly or partially within the prescribed area; and
(ii)benefited by the covenant the subject of the application or any other single dwelling covenant,
has been given written notice, the form and content of which has been approved by the Registrar, of the proposed application; and
(b)the written consent of the registered proprietors (at the time the application is made) of the majority of the lots referred to in paragraph (a) to the extinguishment, discharge or the modification of the covenant as proposed.
(1b)For the purposes of subsection (1a)(b), the written consent of the registered proprietor of a lot that has 2 or more registered proprietors is taken to have been given if consent has been given by —
(a)in the case of proprietors who are joint tenants, the majority of those proprietors; or
(b)in the case of proprietors who are tenants in common, a proprietor who is, or 2 or more proprietors who between them are, entitled to the majority of undivided shares in the lot.
(1c)If a lot is subject to a mortgage or charge, the written consent of the registered proprietor of that lot is not to be taken into account for the purposes of subsection (1a)(b) unless it is accompanied by the written consent of the mortgagee or chargee of the mortgage or charge that is first in order of priority.
(1d)In subsection (1a), (1b) and (1c) —
lot means a parcel of land that is shown on a plan (as defined in section 136A) as a lot;
single dwelling covenant means a restrictive covenant that prohibits the construction of more than one dwelling on the lot burdened by the covenant.
(2)When any proceedings by suit or otherwise are instituted to enforce an easement, or to enforce any rights arising out of the breach of a restrictive covenant affecting land under this Act or any local government or public authority then any person against whom the proceedings are instituted may in such proceedings apply to the court or a judge for an order under this section.
(3)The court or a judge may on the application of any person interested make an order declaring —
(a)whether or not in any particular case any land under this Act or any local government or public authority is affected by an easement or by a restriction imposed by any instrument or created under Part IVA; or
(aa)what is the nature and extent of the easement and whether the same is enforceable and if so by whom; or
(b)what upon the true construction of any instrument, plan or diagram purporting to impose a restriction is the nature and extent of the restriction and whether the same is enforceable and if so by whom; or
(c)whether or not any easement or any restrictive covenant ought to be removed as an encumbrance from the Register.
(4)Notice of any application under this section shall, if the court or a judge so directs, be given to the local government of the district in which the land is situated and to such other persons and in such manner whether by advertisement or otherwise as the court or a judge either generally or in a particular instance may order.
(5)An order under this section shall when entered in the Register as hereinafter provided be binding on all persons whether of full age or capacity or not then entitled or thereafter becoming entitled to the easement or interested or thereafter becoming interested in enforcing any restriction which is thereby extinguished, discharged, modified, or dealt with and whether such persons are parties to the proceedings or have been served with notice or not.
(6)This section applies to easements and to restrictions whether subsisting at the commencement of this section or imposed thereafter whether or not created under Part IVA.
(6a)If an order is made on an application to which subsection (1a) applies, the applicant for the order shall apply to the Registrar, in an approved form and with payment of the prescribed fee, for the Registrar to make the amendments and entries in the Register necessary to give effect to the order.
(7)The Registrar shall on the prescribed application make all necessary amendments and entries in the Register for giving effect to such order in respect of all certificates of title specified therein.
(8)The costs of and incidental to an application made pursuant to the provisions of this section to the court or a judge shall not be awarded against the defendant or respondent in any event.
(9)This section does not apply to easements granted under section 144 of the Land Administration Act 1997.
[Section 129C inserted: No. 17 of 1950 s. 34; amended: No. 14 of 1972 s. 4; No. 14 of 1996, s. 4; No. 81 of 1996 s. 77 and 145(1) and (2); No. 31 of 1997 s. 113; No. 3 of 1999 s. 4; No. 30 of 2018 s. 200.]
130.Seal of corporation substitute for signature
(1)A corporation for the purpose of transferring or otherwise dealing with any land under the operation of this Act or any lease mortgage or charge may in lieu of signing and obtaining the attestation of the instrument for such purpose required affix thereto its common seal.
(2)The seal of the attorney of any corporation whose chief or head office of business shall be out of Western Australia whether such attorney shall have been already constituted or shall hereafter be constituted by a power of attorney under a seal purporting to be the common seal of the corporation giving the power shall be deemed to be the common seal of such corporation within the meaning and for the purposes of this section.
[Section 130 amended: No. 19 of 2010 s. 51.]
131.Implied covenants and powers may be modified or negatived
Every covenant and power to be implied in any instrument by virtue of this Act may be negatived or modified by express declaration in the instrument or endorsed thereon; and in the statement of claim in any action for a breach of any such covenant it shall be lawful to allege that the party against whom or against whose real or personal representatives such action is brought did so covenant precisely in the same manner as if such covenant had been expressed in words at length in such instrument any law or practice to the contrary notwithstanding; and every such implied covenant shall have the same force and effect as if it had been set out at length in such instrument; and where in any instrument there shall be more than one covenantor such covenants as are by this Act declared to be implied in instruments of the like nature shall be construed to be several as well as joint.
[Section 131 amended: No. 17 of 1950 s. 35.]
[132.Deleted: No. 17 of 1950 s. 36.]
133.Property (seizure and sale) order, registration of etc.
(1)In this section —
lodged means presented to the Registrar for registration;
property (seizure and sale) order means a property (seizure and sale) order issued by a court under the Civil Judgments Enforcement Act 2004;
register includes to give effect to;
sale period, in relation to a property (seizure and sale) order that is registered under this section in respect of a saleable interest, means the period of 6 months after the date of registration or, if the period is extended by an order made under subsection (13), the extended period;
saleable interest has the meaning given by section 80(1) of the Civil Judgments Enforcement Act 2004;
sheriff’s dealing, in relation to saleable interest, means a transfer of the saleable interest pursuant to a sale of it by the sheriff under a property (seizure and sale) order.
(1a)An application to the Registrar under this section must be made in an approved form.
(2)A judgment creditor who is named in a property (seizure and sale) order may apply to the Registrar to have the order registered in respect of any saleable interest —
(a)that the judgment debtor named in the order has in any land that is under the operation of this Act; and
(b)that is registered in respect of the land.
(3)The application must —
(a)be made before the order ceases to have effect under the Civil Judgments Enforcement Act 2004; and
[(b)deleted]
(c)identify the land in which the judgment debtor has a saleable interest; and
(d)identify the judgment debtor’s saleable interest; and
(e)be accompanied by a copy of —
(i)the order, certified as a true copy by the sheriff; and
(ii)any order made under section 15 of the Civil Judgments Enforcement Act 2004 that affects the order or the judgment to which it relates;
and
(f)be accompanied by the prescribed fee; and
(g)contain or be accompanied by any other information that is prescribed.
(4)Subject to any order made under section 15 of the Civil Judgments Enforcement Act 2004, on such an application the Registrar must register the order in respect of the judgment debtor’s saleable interest, with effect from the time when the application was lodged, if satisfied that —
(a)the application is made in accordance with subsection (3); and
(b)the judgment to which the order relates has not been satisfied; and
(c)the order is not already registered and in effect in respect of that saleable interest.
(5)If the order is registered in respect of a saleable interest, the order has effect for the purposes of this section until a discharge of it is registered under subsection (12), subject to any order made under section 15 of the Civil Judgments Enforcement Act 2004.
(6)Until the order is registered in respect of a saleable interest, a sheriff’s dealing in relation to the interest is not valid as against a purchaser of the interest for valuable consideration, notwithstanding that at the time of the purchase —
(a)the order had been received by the sheriff; or
(b)the purchaser had actual or constructive notice of the order.
(7)While the order has effect in respect of a saleable interest none of the following prevails against a sheriff’s dealing in relation to the interest —
(a)an unregistered instrument, document, or writing;
(b)an equitable mortgage or charge by deposit or otherwise without writing that affects any land, lease, sublease, mortgage, annuity or other charge,
unless a caveat in respect of the matter referred to in paragraph (a) or (b) is lodged —
(c)before the Registrar receives the application to register the order; or
(d)with the permission of the sheriff while the order has effect.
(8)While the order has effect in respect of a saleable interest, an instrument that affects the interest must not be registered unless —
(a)the sheriff has given permission for the instrument to be registered; or
(b)the instrument is an order made, or a notice given, under the Land Administration Act 1997 in relation to Crown land by the Minister under that Act; or
(c)the instrument is another property (seizure and sale) order.
(9)If while the order has effect in respect of a saleable interest a sheriff’s dealing is lodged, the Registrar must register the dealing.
(10)For the purposes of subsection (9) the Registrar may register a sheriff’s dealing without requiring the production of the duplicate (if any) of the certificate of title or a Crown lease or of any other instrument if —
(a)the Registrar has given at least 14 days’ notice of his intention to do so in at least one newspaper published in the city of Perth or circulating in the neighbourhood of the land; and
(b)the transferee has paid the cost of giving the notice.
(11)When a sheriff’s dealing is registered under subsection (9) in respect of a saleable interest —
(a)the dealing, if made by the sheriff, has effect as if it was made by the judgment debtor; and
(b)the judgment debtor’s title to the saleable interest is extinguished; and
(c)any estate or interest of an unregistered purchaser, transferee or mortgagee of the saleable interest or of a person claiming under or through the judgment debtor is extinguished unless it is the subject of a caveat —
(i)lodged before the Registrar received the application to register the order; or
(ii)lodged with the permission of the sheriff while the order has effect.
(12)If while the order has effect —
(a)a saleable interest in respect of which the order is registered is transferred by the registration of a sheriff’s dealing or otherwise; or
(b)the judgment creditor applies to the Registrar for the order to be discharged in relation to a saleable interest in respect of which the order is registered; or
(c)on an application made to the Registrar by any person and accompanied by the prescribed fee, the Registrar is satisfied that —
(i)the judgment to which the order relates has been satisfied; or
(ii)the order has been cancelled by the court that issued it; or
(iii)the sale period has expired,
the Registrar must register a partial or total discharge of the order, as the case requires, with effect from the time when the saleable interest was transferred, or the application was lodged, as the case requires.
(13)If, on an application made by the judgment creditor, the court that issued the property (seizure and sale) order is satisfied that there is a good reason why a sale of the saleable interest will not occur during the sale period, it may make an order that extends the sale period for a period set by the court that is not longer than 6 months.
(14)Unless the court orders otherwise, an application made under subsection (13) must be served on —
(a)the judgment debtor; and
(b)any other judgment creditor who has obtained the registration of a property (seizure and sale) order in respect of the saleable interest; and
(c)any other person who has an interest in the saleable interest.
(15)An order may be made under subsection (13) on more than one occasion.
(16)An order made under subsection (13) has no effect unless it is lodged with the Registrar before the sale period would otherwise expire together with an application to have the order registered and the prescribed fee.
(17)If an order, an application and the prescribed fee are lodged under subsection (16) before the sale period would otherwise expire —
(a)the Registrar must register the order; and
(b)the registered order extends the sale period from its expiry for the period stated in the order.
(18)If under this section an instrument or caveat that may be lodged with the sheriff’s permission is lodged, the sheriff’s written permission must be lodged with or endorsed on the instrument or caveat.
[Section 133 inserted: No. 59 of 2004 s. 138; amended: No. 5 of 2008 s. 122.]
134.Purchaser from registered proprietor not required to inquire into title and not affected by notice of unregistered interest etc.
Except in the case of —
(a)fraud; or
(b)Crown land the subject of a qualified certificate of Crown land title,
no person contracting or dealing with or taking or proposing to take a transfer or other instrument from a person who is or becomes the proprietor of any registered land lease mortgage or charge shall be required or in any manner concerned to enquire or ascertain the circumstances under or the consideration for which such proprietor or any previous proprietor thereof was or becomes registered or required or in any manner concerned to enquire or ascertain the circumstances under or the consideration for which any mortgage or other encumbrance was or is discharged or removed from the Register at any time prior to or simultaneously with the registration of such transfer or other instrument or to see to the application of any purchase or consideration money or shall be affected by notice actual or constructive of any trust or unregistered interest any rule of law or equity to the contrary notwithstanding; and the knowledge that any such trust or unregistered interest is in existence shall not of itself be imputed as fraud.
[Section 134 amended: No. 17 of 1950 s. 37; No. 81 of 1996 s. 145(1); No. 31 of 1997 s. 114.]
135.Transferee of tenant in tail may be registered for larger estate which tenant in tail can confer
A transfer or mortgage in the ordinary form by a tenant in tail under this Act having power to create an estate in fee simple shall create such estate in favour of a transferee mortgagee or transferee under the power of sale in the mortgage and a transferee from a tenant in tail or under a mortgage from a tenant in tail or a mortgagee after foreclosure shall be entitled to have registered a certificate of title for the larger estate which the tenant in tail is empowered to confer but a mortgage under this Act if discharged shall not bar the entail.
[Section 135 amended: No. 81 of 1996 s. 79.]
136.Registrar to furnish plan showing land dealt with where memorandum on certificate does not describe the land
(1)Where part only of the land comprised in a certificate has been dealt with by a registered dealing but the memorandum of such dealing endorsed on the certificate does not specify such part the Registrar shall furnish to any person applying for the same on payment of the fee payable in that behalf a skeleton diagram of the land comprised in the certificate showing by metes and bounds and a distinguishing colour or symbols the position and dimensions of the part included in such dealing; and such diagram shall either be endorsed on, annexed to, referred to in or otherwise linked or connected to, such certificate and the same shall be sealed.
(2)If there be different registered dealings affecting different parts of the land comprised in the certificate and a plan be required showing such different parts a separate fee shall be paid in respect of each such part.
(3)Where different parcels of land not contiguous are included in the certificate the skeleton diagram hereinbefore mentioned need only be of the parcel or parcels which includes or include the part or parts so dealt with.
[Section 136 amended: No. 81 of 1996 s. 80; No. 6 of 2003 s. 42; No. 19 of 2010 s. 51.]
Part IVA — Creation of easements and restrictive covenants by notations on subdivision plans and diagrams
[Heading inserted: No. 81 of 1996 s. 81.]
In this Part, plan means —
(a)a plan or diagram referred to in section 166 or 166A; or
(b)a scheme plan lodged for registration under the Strata Titles Act 1985,
for the subdivision of land under the operation of this Act.
[Section 136A inserted: No. 81 of 1996 s. 81; amended: No. 31 of 1997 s. 115; No. 30 of 2018 s. 201.]
The provisions of this Part are in addition to, and are not to be read as limiting the operation of —
(a)the provisions of this Act in relation to the creation, registration or effect of easements or restrictive covenants except to the extent provided for in those provisions; and
(b)the provisions of any other Act in relation to the creation, registration or effect of easements or restrictive covenants.
[Section 136B inserted: No. 81 of 1996 s. 81.]
136C.Notation of easements on subdivision plans
(1)A proprietor of land that is a subject of a plan may note, in an approved form, on the plan the location of an easement to which the land is proposed to be subject.
(2)An easement cannot be noted on a plan unless the land to be burdened by the easement is a subject of the plan but any land to be benefited by the easement need not be a subject of the plan.
(3)An easement for the benefit of —
(a)the local government in whose district the land is situated; or
(b)a public authority,
may be noted on a plan under this section notwithstanding that the benefit of the easement would not be in respect of land.
(4)Where an easement is noted on a plan in accordance with this section an instrument in an approved form may, but need not, be lodged in relation to the plan unless, under subsection (6), certain information is required to be specified in an instrument and where an instrument is lodged the prescribed fee shall be paid for the lodgment of the instrument.
(5)The following information about the easement shall, subject to subsection (6), be specified in either the plan or in an instrument lodged in relation to the plan, or in both the plan and the instrument —
(a)the land to be burdened by the easement; and
(b)either —
(i)the land to be benefited; or
(ii)the name of the local government or the public authority to be benefited,
by the easement, as the case may be; and
(c)a description of the easement, whether by way of a short form, a modified or supplemented short form or in another manner; and
(d)if the easement is for a particular term, the duration of the term; and
(e)any prescribed matter.
(6)The Registrar may issue directions to the effect that any information referred to in subsection (5) is to be specified in either the plan or in an instrument lodged in relation to the plan, or in both the plan and the instrument and any such direction shall be published in a document a copy of which is available to the public free of charge.
[Section 136C inserted: No. 81 of 1996 s. 81; amended: No. 6 of 2003 s. 44.]
136D.Notation of restrictive covenants on subdivision plans
(1)A proprietor of land that is a subject of a plan may note, in an approved form, on the plan a restrictive covenant to which the land is proposed to be subject.
(2)A restrictive covenant cannot be noted on a plan unless the land to be burdened by the restrictive covenant is a subject of the plan but the land to be benefited by the restrictive covenant need not be a subject of the plan.
(3)A restrictive covenant cannot be noted on a plan unless an instrument in an approved form is lodged in relation to the plan and the prescribed fee is paid for lodgment of the instrument.
(4)The terms of the restrictive covenant shall be specified in an instrument lodged in relation to the plan.
(5)The following information about the restrictive covenant shall, subject to subsection (6), be specified in either the plan or in an instrument lodged in relation to the plan, or in both the plan and the instrument —
(a)the land to be burdened by the restrictive covenant; and
(b)the land to be benefited by the restrictive covenant; and
(c)if the restrictive covenant is for a particular term, the duration of the term; and
(d)any prescribed matter.
(6)The Registrar may issue directions to the effect that any information referred to in subsection (5) is to be specified in either the plan or in an instrument lodged in relation to the plan, or in both the plan and the instrument and any such direction shall be published in a document a copy of which is available to the public free of charge.
[Section 136D inserted: No. 81 of 1996 s. 81; amended: No. 6 of 2003 s. 45.]
136E.Consent of certain persons required to creation of easements and restrictive covenants
An easement or a restrictive covenant cannot be created under this Part unless the proprietor lodges in relation to the plan the written consent to the creation of the easement or restrictive covenant of each person who, immediately before the time referred to in section 136F(1)(a) or (b), as the case requires, either —
(a)has a registered interest in any land that would be burdened by the easement or the restrictive covenant; or
(b)is a caveator in respect of any land that would be burdened by the easement or the restrictive covenant; or
(c)has a registered interest in any land that would be benefited by the easement or the restrictive covenant (whether or not that land is a subject of the plan); or
(d)is a caveator in respect of any land that would be benefited by the easement or the restrictive covenant (whether or not that land is a subject of the plan).
[Section 136E inserted: No. 81 of 1996 s. 81.]
136F.When easements and restrictive covenants under this Part have effect
(1)Land becomes subject to an easement or restrictive covenant noted on a plan in accordance with this Part —
(a)in the case of a scheme plan lodged for registration under the Strata Titles Act 1985, at the time the Registrar registers the scheme plan under that Act; and
(b)in any other case, at the time the new certificate, or if more than one, all the new certificates, for the land the subject of the plan have been registered.
(2)Where an instrument is lodged under this Part in relation to a plan, the instrument shall be deemed to be registered for the purposes of section 58 at the time the land becomes subject to the easement or restrictive covenant under subsection (1).
[Section 136F inserted: No. 81 of 1996 s. 81; amended: No. 30 of 2018 s. 202.]
136G.Easements and restrictive covenants under this Part may be effective for specified term only
An easement or a restrictive covenant created under this Part for a term specified in either the plan on which the easement or restrictive covenant was noted or in the instrument (if any) lodged in relation to the plan is, by virtue of this section and without the need to apply for discharge of the easement or restrictive covenant, of no effect when the specified term expires.
[Section 136G inserted: No. 81 of 1996 s. 81.]
136H.Easements and restrictive covenants under this Part may both burden and benefit land of same proprietor
An easement or a restrictive covenant created under this Part has effect even though any land burdened by the easement or restrictive covenant has the same proprietor as any land benefited by the easement or restrictive covenant.
[Section 136H inserted: No. 81 of 1996 s. 81.]
Subject to sections 65A and 129A(4), the Registrar shall make such records and entries in the Register as to easements and restrictive covenants created under this Part as the Registrar thinks fit.
[Section 136I inserted: No. 81 of 1996 s. 81.]
136J.Discharge and modification of easements and restrictive covenants under this Part
(1)Either —
(a)the proprietor of land burdened or benefited by an easement or a restrictive covenant created under this Part, other than a single dwelling covenant (as defined in section 129C); or
(b)a local government or public authority for whose benefit an easement has been created under this Part (the relevant authority),
may apply, in an approved form and on payment of the prescribed fee, for the easement or restrictive covenant to be discharged or to be modified in the manner set out in the application.
(2)An application under this section shall be accompanied by either —
(a)the written consent of —
(i)each person who has a registered interest in, or is a caveator in respect of, any land that is either burdened or benefited by the easement or restrictive covenant; and
(ii)if applicable, the relevant authority,
to the discharge or the modification of the easement or restrictive covenant as proposed; or
(b)the documents referred to in subsection (3).
(3)Where an application under this section is not accompanied by the written consents referred to in subsection (2)(a), it shall be accompanied by —
(a)the applicant’s statutory declaration to the effect that —
(i)each person who has a registered interest in, or is a caveator in respect of, any land that is either burdened or benefited by the easement or restrictive covenant and, if applicable, the relevant authority (not being the applicant) has been given 28 days’ written notice of both the intention to make the application and the substance of the proposed application; and
(ii)notice of both the intention to make the application and the substance of the proposed application has been published —
(I)at least 28 days before the day on which the application is made;
(II)in a newspaper circulating either throughout the State or in the district where the land is situated;
and
(iii)both of the notices referred to in subparagraphs (i) and (ii) stated —
(I)the applicant’s address for service of notices of objection to the proposed application or any part of the proposed application; and
(II)the day, being at least 3 days before the application was proposed to be made, by which notice of objections were to be received;
and
(iv)up to the time of making the application, the applicant had received no notice of objection to either the proposed application or any part of the proposed application;
and
(b)a copy of the notice referred to in paragraph (a)(ii) showing the name of the newspaper in which it was published and the day of publication.
(4)On an application under this section the Registrar, if directed by the Commissioner to do so, shall discharge the easement or restrictive covenant or modify the easement or restrictive covenant in the manner set out in the application.
(5)The Commissioner shall not direct the Registrar to discharge or modify an easement or a restrictive covenant under this section if the Commissioner is aware of any notice that has been served under subsection (3)(a)(iii) by which an objection has been made to either the application or any part of the application.
(6)Where an easement or a restrictive covenant is discharged or modified under this section the Registrar shall enter a memorandum of the discharge or modification on each certificate of title in the Register on which is entered a memorandum of the easement or restrictive covenant.
[Section 136J inserted: No. 81 of 1996 s. 81; amended: No. 3 of 1999 s. 5.]
136K.Term used: section 138A caveat; application of this Part
(1)In sections 138B to 138D, section 138A caveat has the meaning given by section 138A.
(2)The provisions of sections 138A to 138D are in addition to, and are not to be read as limiting the operation of —
(a)the other provisions of this Act in relation to caveats; and
(b)a person’s entitlement, if any, to apply for an injunction in relation to a caveat.
(3)Subject to subsection (4) and to section 20 of the Land Administration Act 1997, this Part applies to caveats in respect of Crown land.
(4)Sections 138(3) and (4) and 141A do not apply to caveats lodged under section 21 of the Land Administration Act 1997.
[Section 136K inserted: No. 81 of 1996 s. 82; amended: No. 31 of 1997 s. 116; No. 59 of 2004 s. 140.]
137.Lodging caveats for land already under this Act
(1)Any beneficiary or other person claiming any estate or interest in land under the operation of this Act or in any lease mortgage or charge under any unregistered instrument document or writing or under any equitable mortgage or charge by deposit without writing or by devolution in law or otherwise may lodge a caveat with the Registrar in an approved form forbidding the registration of any person as transferee or proprietor of and of any instrument affecting such estate or interest either absolutely or until after notice of the intended registration or dealing be given to the caveator or unless such instrument be expressed to be subject to the claim of the caveator as may be required in such caveat.
(1A)Every such caveat shall state the name and address of the person by whom or on whose behalf the same is lodged and (except in case of a caveat lodged by order of the Supreme Court or by the Registrar pursuant to the direction of the Commissioner as hereinafter provided) shall be signed by the caveator or by his agent.
(1B)The person lodging such caveat shall if required by the Registrar support the same by statutory declaration stating the nature of the estate or interest claimed and the title thereto and may withdraw any such caveat.
(1C)If such declaration when required by the Registrar be not lodged with him within 7 days from the date of such requisition the caveat shall be absolutely null and void.
(1D)A caveat under this section cannot be lodged unless one of the following is specified in it for the purposes of the service of notices in relation to the caveat —
(a)an address in Australia;
(b)a number for a facsimile machine in Australia;
(c)a way of receiving notices electronically (for example, an email address) that is prescribed by the regulations for the purposes of this paragraph.
(2)A person claiming an interest in a proposed carbon right, carbon covenant or plantation interest may, before the relevant carbon right form, carbon covenant form or tree plantation agreement is registered, lodge a caveat under subsection (1) as if the person were claiming an interest in land.
[Section 137 amended: 60 Vict. No. 22 s. 4; No. 17 of 1950 s. 38; No. 81 of 1996 s. 83 and 146(1); No. 56 of 2003 s. 17; No. 19 of 2010 s. 51; No. 2 of 2014 s. 76.]
138.Consequences of lodging caveat
(1)Upon receipt of such caveat the Registrar shall notify the same to the person against whose application to be registered as proprietor or (as the case may be) to the proprietor against whose title to deal with the estate or interest such caveat has been lodged and the judgment creditor named in any property (seizure and sale) order registered under section 133 in respect of the judgment debtor’s saleable interest in such land.
(2)Any such applicant, proprietor or judgment creditor, or any person claiming under any transfer or other instrument signed by the proprietor may if he think fit summon the caveator to attend before the Supreme Court or a judge in chambers to show cause why such caveat should not be removed; and such court or judge may upon proof that such caveator has been summoned make such order in the premises either ex parte or otherwise as to such court or judge may seem fit.
(3)Except in the case of a caveat lodged by or on behalf of a beneficiary claiming under any will or settlement or by the Registrar pursuant to the direction of the Commissioner every caveat lodged against a proprietor shall be deemed to have lapsed as to the land affected by the transfer or other dealing upon the expiration of 14 days after notice served on the caveator that such proprietor has applied for the registration of a transfer or other dealing unless in the meantime such application is withdrawn.
(4)A caveat shall not be renewed by or on behalf of the same person in respect of the same estate or interest except subject to the state of the Register at the time of the renewal of such caveat; but if before the expiration of the said period of 14 days or such further period as shall be specified in any order made under this section the caveator or his agent appears before a judge and gives such undertaking or security or lodges such sum in court as such judge may consider sufficient to indemnify every person against any damage that may be sustained by reason of any disposition of the property being delayed then and in such case such judge may direct the Registrar to delay registering any dealing with the land lease mortgage or charge for a further period to be specified in such order or may make such other order as may be just.
[Section 138 amended: No. 17 of 1950 s. 39; No. 81 of 1996 s. 145(1); No. 59 of 2004 s. 139; No. 5 of 2008 s. 123.]
138A.Caveats to which s. 138B to 138D apply
A caveat that has not been lodged —
(a)under section 30, 176 or 223A; or
(b)by or on behalf of a beneficiary claiming under a will or settlement; or
(c)under a court order; or
(d)by the Registrar on the direction of the Commissioner; or
(e)under any written law other than this Act; or
(f)under any Commonwealth Act; or
(g)by or on behalf, or with the consent, of the Minister for Lands,
is a caveat for the purposes of sections 138B to 138D.
[Section 138A inserted: No. 81 of 1996 s. 84.]
138B.Requiring caveator to seek court order extending s. 138A caveat
(1)If a section 138A caveat has been lodged then the proprietor of the land in respect of which the caveat was lodged, or the judgment creditor named in a property (seizure and sale) order registered under section 133 in respect of the judgment debtor’s saleable interest in such land, may apply, in an approved form and on payment of the prescribed fee, for the Registrar to serve the caveator with a notice to the effect that, unless the caveator takes the action referred to in subsection (2) within 21 days after the day on which the notice is served, the caveat will lapse.
(2)If the notice referred to in subsection (1) is served on the caveator then the caveat lapses 21 days after the day on which the notice was served unless, before that time, the caveator has —
(a)obtained from the Supreme Court an order extending the operation of the caveat —
(i)for such further period as is specified in the order; or
(ii)until the further order of the court;
and
(b)lodged with the Registrar a copy of the order.
[Section 138B inserted: No. 81 of 1996 s. 84; amended: No. 59 of 2004 s. 140.]
138C.Supreme Court’s powers on application by caveator
(1)A caveator who is served with a notice under section 138B(1) may apply to the Supreme Court, in accordance with rules of the court, for an order extending the operation of the caveat.
(2)On the hearing of an application under subsection (1), the Supreme Court —
(a)if satisfied that the caveator’s claim has or may have substance —
(i)may make an order extending the operation of the caveat for such period as is specified in the order; or
(ii)may make an order extending the operation of the caveat until the further order of the court; or
(iii)may make such other orders as it thinks fit concerning the caveat or the land in respect of which the caveat was lodged;
and
(b)if not satisfied that the caveator’s claim has or may have substance, shall dismiss the application; and
(c)may make such ancillary orders in relation to the application as it thinks fit.
(3)An interim order under this section may be made ex parte unless the court orders otherwise.
(4)The applicant shall ensure that the Registrar is served with a copy of each order made by the court on an application under subsection (1).
[Section 138C inserted: No. 81 of 1996 s. 84.]
138D.Restrictions on caveators lodging further s. 138A caveats
(1)If a section 138A caveat —
(a)is withdrawn after a notice under section 138B(1) is served on the caveator but before the caveat could lapse under section 138B(2); or
(b)has lapsed under section 138B(2); or
(c)no longer has effect because of the operation of an order made, or a dismissal, under section 138C by the Supreme Court,
then the caveator cannot lodge with the Registrar any further section 138A caveat in respect of the same land unless —
(d)the consent of the proprietor to do so and, if the notice issued under section 138B(1) was issued on the application of a judgment creditor, the consent of the judgment creditor to do so are endorsed on the further caveat; or
(e)the Supreme Court has made an order giving leave for the lodgment of the further caveat and a copy of that order has been served on the Registrar.
(2)If a caveat has been withdrawn before a notice under section 138B(1), if any, is served on the caveator then nothing in subsection (1) prevents the caveator from lodging a further section 138A caveat in respect of the same land.
[Section 138D inserted: No. 81 of 1996 s. 84; amended: No. 59 of 2004 s. 140.]
(1)While any caveat shall remain in force prohibiting any registration or dealing the Registrar shall not enter in the Register any change in the proprietorship of or any transfer or other instrument purporting to transfer or otherwise deal with or affect the estate or interest in respect to which such caveat may be lodged unless —
(a)subsection (2) applies; or
(b)the instrument is a property (seizure and sale) order within the meaning given in section 133; or
(c)the instrument is a sheriff’s dealing (within the meaning given in section 133) and the matter to which the caveat relates does not, under section 133(7), prevail against the dealing; or
(d)section 142 applies.
(2)Where an instrument is presented for registration and a caveat is lodged after the time of the presentation of the instrument, the caveat shall not have the effect of preventing registration of the instrument but the caveat shall take effect as if lodged after registration of the instrument.
[Section 139 amended: No. 17 of 1950 s. 40; No. 81 of 1996 s. 145(1); No. 5 of 2008 s. 124.]
140.Compensation for caveat lodged without reasonable cause
Any person lodging any caveat with the Registrar either against bringing land under this Act or otherwise without reasonable cause shall be liable to make to any person who may have sustained damage thereby such compensation as a judge on a summons in chambers shall deem just and order.
141.Registrar’s duties when caveat lodged or lapses
(1)Where —
(a)a caveat is lodged under section 137; or
(b)a caveat lapses, whether because of the effect of a provision of this Act or the operation of an order of the Supreme Court,
the Registrar shall enter a memorandum of the caveat or the lapse of the caveat, as the case requires, on the certificate of title for the land in respect of which the caveat was lodged.
(2)A copy of a caveat lodged under section 137 or of so much of the caveat as the Registrar thinks is material to the person to be notified under section 138 shall be sent with the notification under section 138.
[Section 141 inserted: No. 81 of 1996 s. 85.]
141A.Requiring caveators to withdraw caveats or substantiate their claims
(1)Where it appears to the Commissioner that the estate or interest claimed by any caveator has ceased to exist, he may, either of his own motion or on the application of any person claiming any interest in the land or on the application of the judgment creditor named in a property (seizure and sale) order registered under section 133 in respect of the judgment debtor’s estate or interest in such land, serve the caveator with notice requiring him within 14 days from the date of such notice to withdraw such caveat or within such time to commence proceedings in court to substantiate his claim, and in the event of the caveator failing to comply with the requirements of such notice within the time therein limited, or to comply with subsection (1a), the Commissioner may direct the Registrar to remove such caveat from the Register and forward notice of such removal to the caveator.
(1a)If a caveator commences proceedings in court to substantiate his claim under this section, he shall —
(a)within the 14 days referred to in subsection (1); or
(b)within 2 days after commencing proceedings,
whichever time expires later, serve the Registrar with notice that the proceedings have been commenced.
(2)In any proceedings by a caveator to substantiate his claim under this section, he shall, unless otherwise ordered by the court or a judge, join as parties the Registrar of Titles, the registered proprietor and any other person or persons affected by the existence of such caveat.
[Section 141A inserted: No. 17 of 1950 s. 41; amended: No. 81 of 1996 s. 86 and 145(1); No. 24 of 2000 s. 42(1) and (2); No. 59 of 2004 s. 140.]
142.Caveat on behalf of beneficiary under will or settlement does not bar registration in certain cases
Where a caveat has been lodged by or on behalf of a beneficiary claiming under a will or settlement and a change in the proprietorship of or a transfer or other dealing with or affecting the land estate or interest in respect of which the caveat was lodged is presented for registration the same may notwithstanding section 139 be registered without the caveat being withdrawn and without determining the operation of the caveat provided the Commissioner is of opinion that such change of proprietorship or such transfer or other dealing is authorised by the will or settlement and the caveator either consents to the registration or does not lodge a written protest against such registration within 14 days after being served with notice as such caveator.
Part VI — Powers of attorney and attestation of instruments
143.Powers of attorney, creation and filing of
(1)Subject to the provisions of this section the proprietor of any land under the operation of this Act or of any lease mortgage or charge may appoint any person to act for him in transferring the same or otherwise dealing therewith by signing a power of attorney in the form in the Nineteenth Schedule or to the effect thereof.
(1A)Every such power may be filed by lodging the original instrument of power of attorney, a duplicate, or an office copy referred to in the Powers of Attorney Act 1896 10 with the Registrar who shall note the effect of the same in a book to be kept for that purpose and such power shall be in force from the time of noting until the registration of a revocation or extinguishment thereof.
(2)Where a power of attorney is filed within a period of 3 months from the day shown as that on which it was executed, the Registrar may presume that it is in force at the time of filing, unless a revocation has been previously registered.
(3)The provisions of the last preceding subsection shall not be construed so as to affect the force of a power of attorney filed at any time after the lapse of the period of 3 months referred to in the last preceding subsection.
(4)Nothing contained in this Act or in any other written law precludes the Registrar from requiring evidence to his satisfaction that a power of attorney is not revoked.
(5)Subject to any other written law —
(a)the holder of an interest in Crown land may appoint a person to act for him in dealing with that interest; or
(b)the management body of a reserve may appoint a person to act for it in dealing with Crown land within that reserve,
and shall, if he or it does so, file the necessary power of attorney under this section.
[Section 143 amended: 62 Vict. No. 22 s. 2; No. 17 of 1950 s. 42; No. 10 of 1982 s. 28; No. 31 of 1997 s. 117; No. 8 of 2009 s. 10; No. 19 of 2010 s. 51.]
144.Powers of attorney, effect of
A power of attorney given by a person before as well as after becoming a proprietor of any land or of any lease mortgage or charge shall be deemed to be within the meaning of the last preceding section; and every power of attorney heretofore given or which shall hereafter be given when filed and noted as aforesaid shall while continuing in force be valid and available within the scope to the extent of the powers and authorities given or to be given by such power concerning the lands tenements and chattels real generally of the principal for similar or corresponding dealings under this Act with any land under the operation hereof or with any lease mortgage or charge.
[Section 144 amended: No. 17 of 1950 s. 43.]
145.Signatures on documents, witnessing requirements
(1)Subject to subsection (2), an instrument or power of attorney executed after section 87 of the Transfer of Land Amendment Act 1996 comes into operation shall be deemed to be duly executed if —
(a)in the case of such a document executed in Australia, the Registrar is satisfied that each signature is witnessed by a person —
(i)who is not a party to the instrument or power of attorney; and
(ii)who is not a minor and not under any other legal disability; and
(iii)whose full name, address and occupation are stated on the instrument or power of attorney;
and
(b)in the case of such a document executed outside Australia, the Registrar is satisfied that each signature is witnessed by a person who is not a party to the instrument or power of attorney and who is —
(i)a notary public; or
(ii)an Australian consular officer; or
(iii)an elected member of Parliament or other representative body at the equivalent of State or federal level; or
(iv)a judge or magistrate; or
(v)qualified and entitled to practise law; or
(vi)qualified and entitled to practise as a doctor of medicine; or
(vii)qualified and entitled to practise as a civil, electrical or mechanical engineer; or
(viii)qualified as a school teacher; or
(ix)a university lecturer; or
(x)the mayor of a town or city; or
(xi)a person with managerial responsibility in a bank.
(2)If Her Majesty or the State is the registered proprietor of land, an instrument relating to the land shall be deemed to be executed if the Minister signs, and affixes the seal of his office to, the instrument.
(3)If it appears to the Registrar that a signature of a party to an instrument or a power of attorney under this Act has not been witnessed in the manner required by subsection (1), the Registrar may, if he thinks fit, register or file and note the instrument or power of attorney if the genuineness of the signature of the party is proved to his satisfaction by a statutory declaration of a person who knows the party and the party’s signature.
(4)In this section Australian consular officer means a person appointed to hold or act in any of the following offices (being an office of the Commonwealth) in a country or place outside the Commonwealth, namely, ambassador, high commissioner, minister, head of mission, commissioner, chargé d’affaires, consul or secretary at an embassy, high commissioner’s office, legation or other post, consular‑general, consul, vice‑consul, trade commissioner and consular agent.
[Section 145 inserted: No. 81 of 1996 s. 87; amended: No. 31 of 1997 s. 118.]
Part VII — Search certificates and stay orders
146.Finding out whether proprietor is free to deal with land
Any person desiring information as to whether a proprietor is able to deal with the land comprised in his certificate free from obstruction caused by any caveat instrument lodged for registration order injunction or other cause known to the Registrar but not appearing upon the certificate may sign an application for search certificate in an approved form; and on payment of the fee in that behalf provided the Registrar shall cause the necessary searches and inquiries to be made for the purpose of affording the information required; and the result thereof shall be certified in an approved form which is sealed and on which is noted the date and time of the sealing.
[Section 146 amended: No. 81 of 1996 s. 88.]
147.Person issued search certificate under s. 146 entitled to inspect certificate of title
Such search certificate shall refer to the dealing or encumbrance last noted on the certificate of title for the purpose of showing the state of the Register at the time of issuing the search certificate but not of informing the person applying for the search certificate as to what is upon the certificate of title; and such person shall be entitled to inspect the certificate of title and shall be deemed to know all of which an inspection of the certificate of title would have informed him.
[Section 147 amended: No. 81 of 1996 s. 145(2).]
148.Person proposing to deal with proprietor may obtain stay of registration for 48 hours if title is clear
Any person proposing to deal for value with a proprietor may with the consent in writing of such proprietor or his agent authorised in writing in that behalf and on stating the particulars of the proposed dealing lodge with the application for search certificate an application for stay of registration in an approved form; and if the result of the search shows that the proprietor is free to deal the Registrar shall on payment of the fee in that behalf provided sign an order in an approved form staying registration of any instrument affecting the land to be comprised in the proposed dealing for 48 hours from the time mentioned in the search certificate; and the said order shall be affixed to the certificate and a copy thereof given to the applicant.
[Section 148 amended: No. 81 of 1996 s. 89.]
149.Instrument effecting proposed dealing entitled to priority if lodged within 48 hour stay granted under s. 148
If within the said period of 48 hours a properly perfected instrument effecting the proposed dealing be duly lodged for registration such instrument shall have priority over any other instrument which may be lodged for registration after the time mentioned in the search certificate and the same shall be registered notwithstanding any caveat, court order or application by assignee in bankruptcy which may have been lodged with the Authority after the time mentioned in such search certificate.
[Section 149 amended: No. 81 of 1996 s. 90; No. 59 of 2004 s. 140; No. 60 of 2006 s. 118(1).]
150.Other instruments received in the 48 hours to have usual priority if proposed dealing not lodged under s. 149
Subject to the lodging of such duly perfected instrument within such period any other instrument and any caveat, court order or application received by the Authority during such period shall be dealt with in the same manner shall have the same priority as between themselves and shall be as effectual as if no stay of registration had been obtained.
[Section 150 amended: No. 81 of 1996 s. 91; No. 59 of 2004 s. 140; No. 60 of 2006 s. 118(1).]
Part VIII — Surveys, plans, parcels and boundaries
151.Crown survey boundaries as marked on ground are true boundaries
The survey boundaries of any Crown section location allotment or other parcel of land marked on the ground at the time of the Crown Survey thereof and shown by survey posts pegs trenches or other survey marks shall as to any such parcel of land heretofore or hereafter granted, transferred in fee simple or demised by the Crown be and be deemed to have been the true boundaries of such parcel of land whether such boundaries upon admeasurement are or are not found to be of the same dimensions or to include the same area as the boundaries or description of such parcel given in the Crown grant or certificate of title or on a relevant graphic but it shall be lawful for an authorised land officer to alter the survey boundaries marked upon the ground as aforesaid so that however such alteration does not interfere with any improvements which may have been in good faith effected by the lessee, grantee or transferee from the Crown.
[Section 151 amended: No. 126 of 1987 s. 34; No. 31 of 1997 s. 119; No. 6 of 2003 s. 47.]
152.Crown grant or lease conveys land within survey boundaries
(1)Every Crown grant or transfer of Crown land in fee simple purporting to convey a location allotment or other parcel of land whether describing it by distinguishing number or letter or by metes and bounds or otherwise shall be deemed to convey the land included within the survey boundaries of such parcel of land marked on the ground in the Crown survey thereof notwithstanding any discrepancy between the dimensions of such survey boundaries or the area they include and the dimensions or area expressed in such grant or in the relevant certificate of title or shown in any plan used in connection with the alienation by the Crown of such parcel of land.
(2)Nothing in this and the next preceding section shall apply to any such section location allotment or parcel of land where an actual patent mistake or error has been made.
[Section 152 amended: No. 31 of 1997 s. 120; No. 19 of 2010 s. 51.]
153.Aliquot parts of Crown section having excess of area
Where a Crown section has been subdivided by the Crown into allotments or portions of equal area and by reason of excessive measurements in the original Crown survey the area of the section as marked on the ground by the survey boundaries exceeds the sum of the areas of all the allotments or portions as shown by any plan or description used at the Crown sale or as deducible from any Crown grant of any such allotment or portion the total excess of area of the section shall be deemed originally distributable amongst the allotments or portions equally; and every Crown grant or transfer of Crown land in fee simple purporting to be a grant or transfer of one of such allotments or portions shall where the original subdivisional survey boundaries thereof do not exist or if not inconsistent with such boundaries where they do exist be construed to be a grant of such aliquot part of the total area included within the survey boundaries of such section as is obtained by dividing such area by the number of original allotments or portions.
[Section 153 amended: No. 31 of 1997 s. 121.]
153A.Land not in grant etc. but included in certificate due to error in survey may be deemed included in grant etc.
If in any certificate of title registered before or after the passing of the Transfer of Land Act Amendment Act 1902, a piece of Crown land not included in the grant or transfer from the Crown is, in consequence of an error in the survey, included in the certificate of title, the Minister for Lands may, on the recommendation of the Registrar of Titles, order that such piece of land shall be deemed to have been included in the grant or transfer.
[Section 153A inserted: 2 Edw. VII. No. 10 s. 7 (as amended: No. 17 of 1950 s. 75); amended: No. 126 of 1987 s. 35; No. 81 of 1996 s. 92; No. 31 of 1997 s. 122; No. 8 of 2010 s. 31.]
154.How boundaries may be proved in absence of survey marks
When the survey marks of the boundaries of any section allotment or other parcel of land have been removed or obliterated but it is proved in some court of competent jurisdiction or to the satisfaction of the Commissioner of Titles (where the land is under The Transfer of Land Act 1874, or is under or is proposed to be brought under the operation of this Act) in any proceeding or application in which the boundaries of such parcel of land have to be determined that certain buildings fences walls or other improvements of a permanent nature or a succession of such improvements —
(a)have ever since the removal or obliteration of such survey marks indicated or agreed in position with the boundaries originally marked on the ground by the survey marks so removed or obliterated; or
(b)have for the full period of 20 years without interruption been used and regarded by the owner or occupier or successive owners or occupiers of such parcel of land as marking or agreeing in position with the boundaries of the parcel of land comprised in the document of title under or by virtue of which such land is or has been occupied,
such proofs as aforesaid shall be deemed and received as sufficient evidence of the true positions of the original survey boundaries of such parcel of land.
[Section 154 amended: No. 19 of 2010 s. 51.]
155.Margin of error allowed in description of boundaries
(1)From and after the coming into operation of this Act the dimensions of the boundaries of any parcel of land as stated in any document of title now made or hereafter to be made relating to such land or as represented on any graphic endorsed on, annexed to, referred to in or otherwise linked or connected to, any such document of title shall unless such construction is expressly negatived or modified by such document of title or contract be construed as though the phrase “a little more or less” immediately followed and referred to the dimensions so stated or represented.
(2)Such phrase shall in all cases whether so implied or expressed be deemed to cover any difference between the dimensions so stated or represented as aforesaid and the actual dimension of such boundaries as found by admeasurement on the ground when such difference does not exceed the following limits that is to say a limit of 50 millimetres for any one boundary line irrespective of its length where the length does not exceed 40 metres but where it exceeds 40 metres a limit equivalent to 1 in 500 computed upon the total length of such boundary line.
(3)No action shall be brought by reason or in respect of such difference (whether of excess or deficit) where it does not exceed the aforesaid limits.
(4)In any case where such difference does exceed such limits an action for damages or compensation in respect thereof shall only lie in respect of such excess.
[Section 155 amended: No. 94 of 1972 s. 4; No. 6 of 2003 s. 48; No. 19 of 2010 s. 51.]
156.Commissioner may require special survey of land
(1)On any application made to bring land under this Act or to have a certificate of title amended or to have a relevant graphic amended or replaced as to the description of land therein as hereinafter authorised and on any proposed subdivision under section 166 the Commissioner may require such survey and plans to be made and such particulars of the boundaries abuttals adjacent buildings of stone or brick area and position to be furnished at the cost of the applicant or registered proprietor as the Commissioner shall think fit.
(2)All surveys required by the Commissioner in bringing land under this Act shall be made by a licensed surveyor lawfully entitled to practise under this Act.
[Section 156 amended: No. 17 of 1950 s. 45; No. 6 of 2003 s. 49; No. 19 of 2010 s. 51.]
157.Commissioner may require accuracy of survey to be verified
The Commissioner may require any such survey to be tied on to any general or local survey of Western Australia or any district city or town at such permanent datum or other point or points of connection and the measurement of the boundaries to be commenced from such starting point on the land and carried round the boundaries in such direction and order as he may direct; and he may require the accuracy of any such survey to be verified by the signature of the surveyor making the same.
158.Commissioner may disregard minute errors of dimensions
In dealing with any applications involving the amendment of a certificate or adjustment of boundaries the Commissioner may disregard any difference in the dimensions of boundaries or any encroachment excess or deficit which does not exceed 50 millimetres in town and suburban allotments and 1 metre in 1 000 metres in rural locations.
[Section 158 amended: No. 94 of 1972 s. 4.]
159.Excess land may be apportioned between different owners or proprietors
Where a block of land has been subdivided into allotments and by reason of erroneous measurements in the original survey the area of the block as marked on the ground exceeds the sum of the areas of all the allotments and roadways (if any) as shown by any plan or description used at the sale thereof or by the grants or certificates of title or on any relevant graphic of such allotments the total excess of area of the block shall be deemed originally apportionable amongst the allotments and roadways (if any) proportionately to their relative dimensions and if the area of the land included in any application to bring land under this Act or for an amended certificate or for the amendment or replacement of a relevant graphic is in the applicant’s possession and was in the possession of the applicant or of him and those through whom he claims for a period of not less than 15 years previous to the application and does not exceed the area attributable to the allotment or allotments or fraction of an allotment represented by the land included in such application after such apportionment of excess as aforesaid the Commissioner may without ascertaining the dimensions of the other allotments or fraction of allotment and without the consent of the owner or owners thereof direct the Registrar to create and register a certificate in respect of the land included in such application as if the whole of it had been included by metes and bounds in the original grant or certificate of title and to amend or replace, if necessary, any relevant graphic.
[Section 159 amended: No. 81 of 1996 s. 93; No. 6 of 2003 s. 50.]
160.Commissioner’s powers where boundaries unclear in subdivision
Where a block of land has been subdivided and the whole or part thereof sold in allotments according to a plan of subdivision but such block is altogether or in part unoccupied and by reason of errors of survey or misdescription in the muniments of title the boundaries and positions of such subdivisional allotments cannot be ascertained with certainty or are found to be inconsistent with each other and with the scheme of subdivision indicated by what appears on the ground or in the muniments of title and if the original external survey boundaries of such block can be determined and sufficient evidence is available to satisfy the Commissioner as to the governing features of the original scheme the number and relative positions and relative dimensions of the subdivisional allotments roads streets and ways he may upon an application to bring any such subdivisional allotment or allotments under this Act or where such land is already under The Transfer of Land Act 1874 or this Act to have a separate certificate of title created and registered for such allotment or allotments or an existing certificate amended or for a relevant graphic to be amended or replaced cause a survey to be made and if it be found that such land or any portion thereof has been erroneously described as regards position dimensions or area or that an excess or deficiency of measurement exists he may if of opinion that such a course is necessary and expedient for the recognition or registration of titles to land comprised in the said block prepare a scheme of subdivision of the whole or any portion of such block agreeing as near as may be with the original scheme as indicated by such evidence as aforesaid and for that purpose may adjust and determine all or any of the boundary lines and the position and dimensions of the roads streets and ways and apportion any excess either in accordance with section 159 or in such other manner as he shall deem equitable and expedient for the purposes of such subdivision.
[Section 160 amended: 2 Edw. VII. No. 10 s. 6; No. 81 of 1996 s. 94; No. 6 of 2003 s. 51.]
161.Plan to be made of subdivision proposed under s. 160
The scheme of subdivision so prepared shall be embodied in a plan and adopted provisionally for the purposes of the notices hereinafter mentioned.
162.Subdivision proposed under s. 160 to be advertised etc.
(1)After such plan has been constructed the Commissioner shall in addition to any other notices which he may think fit direct notice of the proposed subdivision to be advertised once at least in a newspaper published in Perth and in a newspaper (if any) published and circulating in the neighbourhood of the land and also to be served upon all persons appearing by the Register to be owners or proprietors of the fee simple of any portion of such land.
(2)Such notice shall state that such provisionally adopted plan can be inspected at the Authority’s office and appoint a time not less than 14 days nor more than 6 months within which objections or proposals to alter the same and evidence in support of such objections or proposals will be received by the Commissioner.
(3)It shall be in the discretion of the Commissioner whether or not he will concede to any objections or adopt any alteration submitted to him upon such notice; and if he do adopt any such alteration whether or not any and what notice thereof shall be given to all or any of the persons previously notified.
[Section 162 amended: No. 81 of 1996 s. 95; No. 60 of 2006 s. 118(2); No. 19 of 2010 s. 51.]
163.Finalised subdivision, verification and effect of plan of
(1)After a scheme of subdivision has been finally decided upon the plan embodying it shall be verified by the Commissioner and the inspector of plans and surveys signing a statement in an approved form on the plan and the plan so verified shall be marked with a distinguishing symbol and kept by the Registrar as an approved lodged map of subdivision and shall as from the date of such verification govern the titles subsequently created and registered under this Act in respect of the block so subdivided or any portion thereof.
(1A)The remedy of any person having an estate or interest in the land subdivided or in any portion thereof who shall be injured by any certificate of title registered for the purposes of such subdivision shall lie in damages only and the same may be sued for and recovered in manner indicated by section 207.
(2)In subsection (1) —
inspector of plans and surveys means the person who, for the purposes of section 18 of the Licensed Surveyors Act 1909, is appointed by the Governor to approve plans of authorised surveys within the meaning of that Act.
[Section 163 amended: No. 81 of 1996 s. 96; No. 6 of 2003 s. 52; No. 19 of 2010 s. 51.]
164.Public notice to be given of finalised subdivision and plan
Notice of such subdivision and verification of the plan shall be published in the Government Gazette and in some newspaper circulating in the neighbourhood of the land.
165.Expense of survey ordered under s. 160, how paid
The expense of any survey which the Commissioner shall cause to be made under section 160 shall in the first instance be defrayed out of the Consolidated Account but every applicant who after such subdivision shall apply to bring any portion of the land comprised in such subdivision under this Act or to have a certificate created and registered or amended or for a relevant graphic to be amended or replaced as to any such land for the first time after such subdivision shall in addition to any other moneys chargeable in such case paid to the Registrar (to be by him paid into the Consolidated Account) such amount as the Commissioner shall under his hand certify to be in his judgment an equitable share of such expense to be contributed in respect of the land comprised in such application.
[Section 165 amended: No. 6 of 1993 s. 12; No. 81 of 1996 s. 97; No. 6 of 2003 s. 53; No. 77 of 2006 s. 4.]
166.New certificates of title on subdivision of land
(1)A proprietor of land under the operation of this Act who, after section 98 of the Transfer of Land Amendment Act 1996 comes into operation, wishes to subdivide the land shall apply, in an approved form and on payment of the prescribed fee, to the Registrar for the creation and registration of new certificates of title for the land and the application shall be made in relation to a plan or diagram of the land complying with subsection (2).
(2)Such plan or diagram shall exhibit distinctly delineated all roads streets passages thoroughfares squares or reserves appropriated or set apart for the use of the purchasers and all permanent drains and also all allotments into which the said land may be divided marked with distinct numbers or symbols and shall also show the areas and shall comply in every respect with the rules and regulations for the time being for the guidance of surveyors when practising under this Act.
(3)On an application under this section but subject to section 146(1) of the Planning and Development Act 2005, the Registrar may create and register a new certificate or certificates of title for the land the subject of the application.
(4)For the purposes of subsection (3), the Registrar may have regard to a request of the applicant in relation to when the new certificate or certificates of title are to be created and registered.
[(5)deleted]
(6)References in this section to —
(a)plans or diagrams include references to plans of survey of Crown land; and
(b)certificates of title include references to certificates of Crown land title as they apply to plans of survey of Crown land.
[Section 166 amended: No. 25 of 1909 s. 2; No. 28 of 1969 s. 7; No. 81 of 1996 s. 98; No. 31 of 1997 s. 123; No. 6 of 2003 s. 54; No. 38 of 2005 s. 15.]
166A.Subdivisions of Crown land
(1)The Minister for Lands may, if he wishes to subdivide Crown land at the request of the proprietor of that Crown land or on his own initiative, apply in an approved form, on payment of the prescribed fee, if any, payable by the Minister for Lands and on furnishing a sketch plan in an approved form of that Crown land, to the Registrar for the creation and registration of new certificates of Crown land title or qualified certificates of Crown land title for that Crown land, and that application shall be made in relation to that sketch plan.
(1a)A sketch plan referred to in subsection (1) shall comply with the rules and regulations for the time being for the guidance of surveyors when practising under this Act.
(2)On an application under subsection (1) but subject to Part IVA, the Registrar may create and register new certificates of Crown land title or qualified certificates of Crown land title for the Crown land the subject of the application.
(3)For the purposes of subsection (2), the Registrar may have regard to a request of the Minister for Lands in relation to when the new certificates of Crown land title or qualified certificates of Crown land title are to be created and registered.
[Section 166A inserted: No. 31 of 1997 s. 124; amended: No. 6 of 2003 s. 55.]
166B.Subsidiary certificates of Crown land title
(1)The Minister for Lands may, if he wishes a subsidiary certificate of Crown land title to be created and registered in respect of one or more interests in Crown land the subject of a lease or reserve, prepare a sketch plan in an approved form showing those interests and lodge that sketch plan, together with an application for the creation and registration of the subsidiary certificate of Crown land title, with the Registrar.
(2)On receiving a sketch plan and application lodged under subsection (1), the Registrar may create and register a subsidiary certificate of Crown land title in respect of the relevant interests.
(3)For the purposes of subsection (2), the Registrar may have regard to a request of the Minister for Lands relating to the time when the subsidiary certificate of Crown land title is to be created and registered.
[Section 166B inserted: No. 31 of 1997 s. 124.]
167.Number of allotment on plan of subdivision sufficient description for purposes of dealing
On an application under section 166 or 166A the numbers of the allotments marked on the plan of subdivision or sketch plan may be used as sufficient description of the land for the purpose of dealings with any one or more of such allotments on the sale thereof according to such plan of subdivision or sketch plan and on any subsequent dealings comprising the whole of one or more allotment or allotments.
[Section 167 amended: No. 81 of 1996 s. 99; No. 31 of 1997 s. 125.]
167A.Rights of way generally not public ways or thoroughfares
(1)Subject to subsection (2), every right of way shown and marked as such upon any map or plan deposited with the Registrar, under the provisions of Part VIII, on the subdivision of any land shall, unless the contrary is stated, be deemed an easement appurtenant to the land comprised in such map or plan and abutting upon such right of way, and not a public way or thoroughfare.
(2)Subsection (1) does not apply, and is deemed never to have applied, to or in relation to land —
(a)vested in the Crown under section 20A of the Town Planning and Development Act 1928 11 or section 152 of the Planning and Development Act 2005 for the purpose of a pedestrian accessway or right of way; or
(b)shown and marked as a footway or right of way on a map or plan (being a map or plan deposited with the Registrar of Titles) and transferred to the Crown —
(i)at the same time as, or after, the registration of certificates of title in accordance with that map or plan; and
(ii)before the commencement of section 20A of the Town Planning and Development Act 1928 11.
[Section 167A inserted: 2 Edw. VII. No. 10 s. 8 (as amended: No. 17 of 1950 s. 75); amended: No. 57 of 1991 s. 22; No. 81 of 1996 s. 100; No. 38 of 2005 s. 15.]
168.Abuttals may be used in description of land in certificate
(1)On an application to bring land under this Act or for an amended certificate or for the amendment or replacement of a relevant graphic the land included in the certificate to be created and registered or amended or in the relevant graphic shall at the request of the applicant and may at the discretion of the Commissioner notwithstanding sections 25 and 48A(1) be described by its abuttals in the certificate, in a relevant graphic or in both.
(2)Any abuttal so used may be described by the name by which it is commonly known and with or without the name of its reputed owner; and if the abuttal is upon or consists of land under this Act the number of the certificate of the land constituting the abuttal or on which the abuttal stands shall be mentioned.
(3)Abuttals shall be used in addition to and not in substitution for dimensions unless the Commissioner shall specially authorise the land or any boundary of the land being described by abuttals only.
[Section 168 amended: No. 81 of 1996 s. 101; No. 6 of 2003 s. 58; No. 19 of 2010 s. 51.]
169.Objects which may constitute abuttals
(1)For the purpose of this Act any of the objects hereinafter mentioned may be mentioned as an abuttal — any building wall sectional division of party wall fence permanent drain public or private street or road lane or passage land dedicated to or reserved for the public Government reserve Crown section allotment or portion land described in any certificate of title or relevant graphic and any bay lake river creek or natural or artificial water‑course.
(2)Mention of an abuttal in any certificate of title or relevant graphic shall not be deemed to give title to the abuttal or to be evidence of the title of any person who may be referred to in the description as owner or occupant of the land upon which any abuttal stands or of any land constituting an abuttal.
[Section 169 amended: No. 6 of 2003 s. 59; No. 19 of 2010 s. 51.]
Part IX — Amendment of certificates and amendment or replacement of graphics
[Heading inserted: No. 6 of 2003 s. 60.]
169A.Only Minister for Lands may alter areas, boundaries or positions of parcels of Crown land
Nothing in this Part enables any person, other than the Minister for Lands acting under the Land Administration Act 1997, to cause the alteration of the area, boundaries or position of a parcel of Crown land.
[Section 169A inserted: No. 31 of 1997 s. 126.]
170.Proprietor may apply for amendment of certificate to make boundaries coincide with land occupied under certificate
A proprietor may apply to have his certificate of title amended or a relevant graphic amended or replaced in any case in which the boundaries area or position of the land therein described differ from the boundaries area or position of the land actually and bona fide occupied by him and purporting to be so occupied under the title in respect of which the certificate was registered or in any case in which the description in the certificate or on the relevant graphic is erroneous or imperfect on the face of it.
[Section 170 amended: No. 81 of 1996 s. 102; No. 6 of 2003 s. 61.]
171.Proprietor may apply to have other certificates amended where inconsistent with description of land in his certificate and occupied by him
A proprietor may apply for the amendment of the certificate of title of any other proprietor and the duplicate (if any) or the amendment or replacement of a relevant graphic in any case in which the land described in the applicant’s certificate or relevant graphic and actually and bona fide occupied by him comprises land which by reason of any error in survey or other misdescription is included in the land described in any other certificate or relevant graphic.
[Section 171 amended: No. 81 of 1996 s. 103; No. 6 of 2003 s. 62.]
172.Form of application under s. 170 or 171
(1)Any application to be made as aforesaid shall be in the form set forth in the Twenty‑fourth Schedule and the attorney of any corporation registered as proprietor may apply on behalf of the corporation in manner provided by section 20.
(2)The Commissioner may require an application to be accompanied by either of the following plans setting out such information as is required by the Commissioner for the purposes of the application —
(a)a plan of the applicant’s land; or
(b)a plan of the applicant’s land and any land adjoining the applicant’s land.
(3)A copy of each plan required by the Commissioner under subsection (2) shall be kept for inspection at the Authority’s office until the application has been determined.
[Section 172 amended: No. 6 of 2003 s. 63; No. 60 of 2006 s. 118(2).]
173.How application under s. 170 or 171 to be dealt with
The Registrar shall refer any application made as aforesaid to an Examiner of Titles who shall report thereon and submit the same to the Commissioner for his direction (or if there be no Examiner then to the Commissioner himself) who shall direct notice of the application to be advertised once at least in one newspaper published in the city of Perth or circulating in the neighbourhood of the land and to be served on any persons named by him and to be posted in a conspicuous place outside a post office in the neighbourhood of such land and shall appoint a time not less than 14 days from such notice or from the advertisement or the first of such advertisements if more than one on or after the expiration of which the application may be granted unless a caveat shall be lodged forbidding the granting thereof.
174.Notice of s. 170 or 171 application to be given to owners etc. of adjourning land affected by it
If the granting of an application under section 170 or 171 or of an application to bring land under this Act would affect adjoining land or would cause a certificate of title to be registered which would be inconsistent with the certificate of title or relevant graphic for any adjoining land, the Commissioner shall in addition to any other notices which he may require direct notice of the application to be served upon all persons appearing by the Register to be the owners of an estate in fee simple in, or lessees or mortgagees of, or proprietors of carbon rights or plantation interests in, the adjoining land accompanied by a copy of each plan required under section 172(2) in relation to the application.
[Section 174 inserted: No. 6 of 2003 s. 64; amended: No. 56 of 2003 s. 18.]
175.Notice of s. 170 or 171 application to be published and publicly displayed
The Registrar shall under such direction as aforesaid cause notice to be published in such manner as by such direction may be prescribed that application has been made to amend the certificate of title or to amend or replace a relevant graphic in the manner specified and shall cause a copy of such notice to be posted in a conspicuous place in the Authority’s office together with each plan required under section 172(2) in relation to the application and shall serve every person whom the Commissioner shall have directed to be served with notice; and notwithstanding any direction given by the Commissioner as to any such application he may reject the same if the applicant shall not comply to his satisfaction within such time as to him may seem reasonable with any requisition which he may have made in regard to such application.
[Section 175 amended: No. 81 of 1996 s. 105; No. 6 of 2003 s. 65; No. 60 of 2006 s. 118(2).]
176.Person opposing s. 170 or 171 application may lodge caveat
Any person claiming any estate or interest in the land in respect of which any such application shall be made as hereinbefore provided may before the granting thereof lodge a caveat with the Registrar forbidding the granting of the application; and every such caveat shall in all other respects be in the same form shall be subject to the same provisions and shall have the same effect with respect to the application against which it is lodged as an ordinary caveat against bringing land under the operation of this Act.
177.Applications under s. 170, 171 or 20 may be granted although other certificates may be affected
On any application under section 170 or 171 or to bring land under this Act the Commissioner may grant the same although the certificate to be created and registered or amended or the relevant graphic to be amended or replaced upon such application may affect land comprised in any other certificate or relevant graphic if it shall appear that the land so affected has been included in such other certificate or relevant graphic by reason of some error in survey or other misdescription unless the title to the land so affected has been theretofore determined in a contested proceeding under this Act or in any court of competent jurisdiction in which the right to the possession of such land was in question.
[Section 177 amended: No. 81 of 1996 s. 106 and 145(2); No. 6 of 2003 s. 66.]
178.On granting application other certificates, relevant graphics and duplicate certificates may be amended, replaced or reissued
(1)Upon granting an application under section 170 or 171 or to bring land under this Act the Commissioner shall direct the Registrar to amend any certificate of title or to amend or replace any relevant graphic that is a subject of the application by making the requisite alteration in the relevant certificate of title or relevant graphic accompanied by a statement made and signed by him in the certificate or relevant graphic of the circumstances under which the amendment or replacement has been made.
(2)If the land is the subject of a paper title the Registrar shall make the requisite amendment in the duplicate certificate (if any) when brought to him for that or any other purpose and may retain the duplicate until the amendment is completed.
(3)If the land is subject to a digital title the Registrar shall cancel the duplicate certificate of title (if any) and may issue a new edition of the duplicate certificate of title in accordance with section 74B(2).
(4)If the application is under section 171 the Registrar shall give notice in writing to the proprietor of the land described in the certificate that is being amended or the relevant graphic that is being amended or replaced, informing him of the amendment or replacement and that on the duplicate certificate (if any) being brought to the Authority the duplicate certificate will be amended or reissued free of charge.
(5)The Registrar may refuse to register any dealing with the land or any estate or interest therein until the duplicate certificate (if any) has been brought in for amendment or reissue.
[Section 178 inserted: No. 6 of 2003 s. 67; amended: No. 60 of 2006 s. 118(1).]
[179.Deleted: No. 6 of 2003 s. 68.]
Part X — Special powers and duties of the Commissioner and Registrar
180.Commissioner may summons people to provide information
(1)For the purposes of enabling the Commissioner or the Registrar to perform any function under this Act or any other Act, the Commissioner may, by summons, require any of the persons listed in subsection (2) to appear at a time and place specified in the summons to do all or any of the following —
(a)to give an explanation concerning —
(i)any land; or
(ii)any document affecting the title to any land; or
(iii)any conveyancing transaction;
(b)to produce any grant, certificate of title, will, mortgage or other instrument or document in the person’s possession or within the person’s control —
(i)affecting any land or the title to any land; or
(ii)relating to any conveyancing transaction.
(2)The persons referred to in subsection (1) are the following —
(a)the proprietor, mortgagee or other person interested in any land under, or proposed to be brought under, the operation of this Act in respect of which —
(i)any transfer, lease, mortgage, charge, carbon right, carbon covenant, tree plantation agreement or other dealing is proposed to be transacted or registered; or
(ii)any discharge from any mortgage or charge, or any surrender of a carbon right, carbon covenant or plantation interest, is proposed to be transacted or registered; or
(iii)any transmission is proposed to be registered;
(b)any person whom the Commissioner reasonably considers will be able to give an explanation concerning a conveyancing transaction or produce a document relating to a conveyancing transaction, including (without limitation) —
(i)a subscriber;
(ii)any of a subscriber’s employees, agents, contractors or officers;
(iii)an Australian lawyer;
(iv)a settlement agent as defined in the Settlement Agents Act 1981 section 3(1);
(v)an ELNO;
(vi)any of an ELNO’s employees, agents, contractors or officers.
(3)A summons under subsection (1) must be —
(a)in an approved form; and
(b)signed by the Commissioner; and
(c)served on the person summoned in accordance with section 240 as if it were a notice to which that section applies.
(4)For the purposes of this section —
(a)the Commissioner may require a person summoned under subsection (1) to take an oath or to make an affirmation; and
(b)the Commissioner may administer an oath or affirmation to the person.
(5)If a person is summoned under subsection (1), the Commissioner may deal with the person as in the case of contempt of the Supreme Court if the person —
(a)fails, refuses or neglects —
(i)to attend the Commissioner for the purpose of being examined; or
(ii)to produce any document as required by the summons; or
(iii)to allow any document to which subparagraph (ii) applies to be inspected;
or
(b)refuses or neglects to give any explanation required by the Commissioner.
(6)If the Commissioner considers that any information or document that is withheld from the Commissioner in the circumstances set out in subsection (5) is material, the Registrar is not bound to proceed with the transaction to which that information or document relates.
[Section 180 inserted: No. 2 of 2014 s. 77.]
181A.Commissioner and Registrar may require supporting documentation or evidence or verification
(1)In this section —
lodge includes deposit, present and file.
(2)For the purposes of performing any function under this Act or any other Act, the Commissioner or the Registrar may require any person who lodges any document to do, or to arrange for someone to do, all or any of the following —
(a)to submit or produce any document supporting or authenticating the document;
(b)to provide specified information relating to the document;
(c)to submit or produce evidence relating to a certification given in or with the document, including (without limitation) —
(i)evidence showing the truth of the certification;
(ii)evidence that the person who gave the certification was entitled to give it;
(d)to verify any document, information, evidence, certification or other matter by statutory declaration.
(3)For the purposes of performing any function under this Act or any other Act, the Commissioner or the Registrar may, in relation to a document lodged or to be lodged, require any person to do, or to arrange for someone to do, all or any of the following —
(a)to give a certification in or in relation to the document;
(b)to verify the identity and authority of —
(i)any person who is a party to the conveyancing transaction to which the document relates;
(ii)any person who signed or authorised the signing of the document.
(4)A requirement made under subsection (2) or (3) —
(a)must be given by notice served on the person to whom the requirement relates; and
(b)must specify a period within which the requirement must be complied with; and
(c)may specify how the requirement is to be complied with.
(5)If a requirement made under subsection (2) or (3) in relation to a document is not complied with within the period specified in accordance with subsection (4)(b), the Commissioner or, as the case requires, the Registrar —
(a)may reject the document; and
(b)if the document is rejected, must notify the refusal to the person lodging the document.
(6)If a document is rejected under subsection (5), section 192(2) applies as if the document had been rejected under section 192(1).
[Section 181A inserted: No. 2 of 2014 s. 77.]
181B.Commissioner and Registrar may require verification by statutory declaration
(1)For the purposes of performing any function under this Act or any other Act, the Commissioner or the Registrar may require any person to verify any document, information, evidence, certification or other matter by statutory declaration.
(2)If a requirement under this section is not complied with within the period allowed by the Commissioner or Registrar, the Commissioner or Registrar may refuse to take any action or, as the case requires, any further action in relation to the matter to which the requirement relates.
[Section 181B inserted: No. 2 of 2014 s. 77.]
(1)The Governor may make regulations for or with and respect to —
(a)the parcels of land that may be included in one certificate of title; and
(b)the type and quality of medium or media in or on which applications, instruments, plans and diagrams and other documents to be presented for lodgment with the Authority or registration or entry in the Register shall be presented; and
(ba)the manner or manners in which applications, instruments, plans and diagrams and other documents to be presented for lodgment with the Authority or registration or entry in the Register may be presented; and
(bb)the manner of, and the evidence required to prove, the execution or attestation of applications, instruments, plans and diagrams and other documents to be presented in an electronic medium for lodgment with the Authority or registration or entry in the Register; and
(bc)prescribing requirements relating to the lodgment, presentation, filing or deposit of documents with the Authority, the Commissioner or the Registrar, including (without limitation) —
(i)the types of document that can be lodged electronically under the Electronic Conveyancing Act 2014 section 7(1);
(ii)the form in which documents, or documents of a particular class or type, can be lodged electronically under the Electronic Conveyancing Act 2014 section 7(1);
(iii)the documents that must be lodged or retained when a document is lodged electronically under the Electronic Conveyancing Act 2014 section 7(1);
(iv)how long documents must be retained;
(v)the documents required to support or authenticate a document lodged electronically under the Electronic Conveyancing Act 2014 section 7(1);
and
(bd)prescribing requirements relating to duplicate certificates of title when a document is lodged electronically under the Electronic Conveyancing Act 2014 section 7(1), including (without limitation) —
(i)dispensing with, or authorising the Registrar to dispense with, any requirement of this Act to produce or present or deliver up to the Registrar, or to bring in or lodge, a duplicate certificate of title;
(ii)prescribing how a duplicate certificate of title is to be dealt with if its production, presentation, delivery up, lodging or bringing in is dispensed with;
(iii)requiring a person who lodges a document to have obtained possession of any duplicate certificate of title that would otherwise be required to be produced, presented or delivered up to the Registrar, or to be brought in or lodged, and requiring that person to destroy or invalidate that duplicate certificate of title;
(iv)requiring a person who would otherwise be required, at the request of any person, to produce, present or deliver up, to the Registrar, a duplicate certificate of title to deliver the duplicate certificate of title to someone else in accordance with the regulations, and prescribing how that other person is to deal with the duplicate certificate of title;
and
(be)prescribing requirements relating to certifications that must be included in or with documents lodged, presented, filed or deposited with the Authority, the Commissioner or the Registrar (whether electronically or in paper form), including (without limitation) —
(i)the matters that are required to be certified;
(ii)the persons or classes of persons who can give certifications;
(iii)the form of certifications;
(iv)the evidence showing the truth of a certification that must be retained and how long the evidence must be retained;
and
(bf)prescribing requirements relating to things that are required or authorised under this Act to be endorsed on or included in documents lodged, presented, filed or deposited with the Authority, the Commissioner or the Registrar (whether electronically or in paper form), including (without limitation) requiring or permitting something that otherwise would be required or authorised to be endorsed on or included in a document to be lodged or given separately; and
(bg)prescribing requirements relating to consents, permissions or approvals that are required or authorised under this Act or any other written law to accompany or be endorsed on, lodged with or given in relation to a document lodged, presented, filed or deposited with the Authority, the Commissioner or the Registrar (whether electronically or in paper form), including (without limitation) —
(i)requiring or permitting a consent, permission or approval to be endorsed, lodged or given by electronic means;
(ii)requiring or permitting a consent, permission or approval that otherwise would be required or authorised to accompany or be endorsed on or lodged with a document to be lodged or given separately;
and
(bh)prescribing requirements relating to the verification of the identity and authority of persons who are parties to a conveyancing transaction or who sign or authorise the signing of documents to be lodged, presented, filed or deposited with the Authority, the Commissioner or the Registrar (whether electronically or in paper form), including (without limitation) —
(i)the standards to which identity and authority are to be verified;
(ii)the documents or classes of documents in relation to which verification requirements apply;
(iii)the persons or classes of persons who can undertake verification;
(iv)the evidence showing the steps taken to satisfy the verification requirements that must be retained and how long the evidence must be retained;
and
(bi)prescribing requirements relating to applications made under this Act to the Commissioner; and
(bj)the manner in which notices under this Act must or may be given, including (without limitation) requiring or permitting notices that must or may be given to or by the Registrar or the Commissioner to be given by electronic means; and
(c)prescribing the fees which may be charged for the purposes of this Act including the indemnity of any amount payable out of the Consolidated Account under Part XII that is not recovered under Part XI; and
(d)prescribing forms for the purposes of this Act including forms for alternative use or to be used in substitution for or in addition to the forms in the Schedules; and
(e)all matters and things authorised to be prescribed or necessary or expedient to be prescribed to give effect to this Act.
(1a)On the coming into operation of the Land Information Authority Act 2006 section 113(1) (the commencement), regulations made by the Commissioner under subsection (1) before the commencement become of the same effect as if they were made by the Governor under subsection (1) as amended by the Land Information Authority Act 2006 section 113(1).
(2)The Registrar may, with the approval of the Governor and after consultation with the Land Surveyors Licensing Board constituted under the Licensed Surveyors Act 1909, make regulations providing direction and guidance for licensed surveyors performing surveys authorised or required within the meaning of the definition of authorised survey in section 3 of the Licensed Surveyors Act 1909.
(2a)Subsection (1a) does not prevent the Governor from amending regulations to which that subsection applies.
(3)Section 45(1) and (2) of the Interpretation Act 1984 apply in respect of fees prescribed under this Act notwithstanding sections 3(3) and 45(3) of that Act.
(4)Despite the Interpretation Act 1984 sections 3(3) and 43(6), section 43(6) of that Act applies in respect of regulations and rules made under a power conferred by this Act.
[Section 181 inserted: No. 14 of 1972 s. 6; amended: No. 126 of 1987 s. 36; No. 81 of 1996 s. 109; No. 24 of 2000 s. 42(3); No. 60 of 2006 s. 113 and 118(1); No. 77 of 2006 s. 4; No. 2 of 2014 s. 78.]
182AA.Prescribed fees may exceed cost recovery
(1)Regulations made under section 181 prescribing a fee may prescribe a fee that is more than the amount, or an estimate of the amount, needed to allow recovery of expenditure —
(a)incurred in connection with the matter in relation to which the fee is charged; or
(b)that is relevant to —
(i)the scheme or system under which the action to which the fee relates is taken; or
(ii)the performance of any function to which the fee relates.
(2A)To the extent that regulations to which subsection (1) applies prescribe a fee that includes an amount that is a tax, the regulations may impose the tax.
(2)This section does not limit —
(a)the Interpretation Act 1984 section 45A; or
(b)the extent to which fees prescribed under section 181 may take into account the indemnity of any amount payable out of the Consolidated Account under Part XII that is not recovered under Part XI.
[Section 182AA inserted: No. 11 of 2015 s. 10; amended: No. 12 of 2015 s. 8.]
(1)Section 182AA expires at the end of 31 December 2019 20.
(2)However, the Governor, on the recommendation of the Minister, may, by proclamation made before section 182AA expires, postpone the expiry of section 182AA until the end of a date specified in the proclamation, and in that case that section expires at the end of that date.
(3)The Minister cannot make a recommendation under subsection (2) unless the Minister is satisfied, on the basis of the most recent report laid before each House of Parliament under the Land Information Authority Act 2006 section 93(2), that the expiry of section 182AA should be postponed.
(4)There is no limit on the number of times the expiry of section 182AA may be postponed, but each postponement cannot be for longer than 5 years beginning on the day after the most recent date on which section 182AA would expire if that expiry were not postponed.
(5)The Interpretation Act 1984 section 42 applies to and in relation to a proclamation made under subsection (2) as if the proclamation were a regulation.
(6)The expiry of section 182AA does not affect the validity of any regulations made under section 181 and in effect immediately before that expiry.
[Section 182AB inserted: No. 11 of 2015 s. 10.]
[Note: The expiry of section 182AA is postponed until the end of 31 December 2024 by the Land Legislation (Postponement of Expiry) Proclamation 2018 (see Gazette 21 Dec 2018 p. 4845-6).]
182A.Commissioner and Registrar may determine requirements
(1)The Commissioner or the Registrar may determine requirements relating to all or any of the following matters —
(a)the lodgment, presentation, filing or deposit of documents with the Authority, the Commissioner or the Registrar, including (without limitation) —
(i)the types of document that can be lodged electronically under the Electronic Conveyancing Act 2014 section 7(1);
(ii)the form in which documents, or documents of a particular class or type, can be lodged electronically under the Electronic Conveyancing Act 2014 section 7(1);
(iii)the documents that must be lodged or retained when a document is lodged electronically under the Electronic Conveyancing Act 2014 section 7(1);
(iv)how long documents must be retained;
(v)the documents required to support or authenticate a document lodged electronically under the Electronic Conveyancing Act 2014 section 7(1);
(b)how duplicate certificates of title are to be dealt with when a document is lodged electronically under the Electronic Conveyancing Act 2014 section 7(1), including (without limitation) —
(i)dispensing with, or authorising the Registrar to dispense with, any requirement of this Act to produce or present or deliver up to the Registrar, or to bring in or lodge, a duplicate certificate of title;
(ii)how a duplicate certificate of title is to be dealt with if its production, presentation, delivery up, lodging or bringing in is dispensed with;
(iii)requiring a person who lodges a document to have obtained possession of any duplicate certificate of title that would otherwise be required to be produced, presented or delivered up to the Registrar, or to be brought in or lodged, and requiring that person to destroy or invalidate that duplicate certificate of title;
(iv)requiring a person who would otherwise be required, at the request of any person, to produce, present or deliver up, to the Registrar, a duplicate certificate of title to deliver the duplicate certificate of title to someone else in accordance with the requirements, and requiring that other person to deal with the duplicate certificate of title in accordance with the requirements;
(c)certifications that must be included in or with documents lodged, presented or deposited with the Authority, the Commissioner or the Registrar (whether electronically or in paper form), including (without limitation) —
(i)the matters that are required to be certified;
(ii)the persons or classes of persons who may give certifications;
(iii)the form of certifications;
(iv)the evidence showing the truth of a certification that must be retained and how long the evidence must be retained;
(d)things that are required or authorised under this Act to be endorsed on or included in documents lodged, presented, filed or deposited with the Authority, the Commissioner or the Registrar (whether electronically or in paper form), including (without limitation) requiring or permitting something that otherwise would be required or authorised to be endorsed on or included in a document to be lodged or given separately;
(e)consents, permissions or approvals that are required or authorised under this Act or any other written law to accompany or be endorsed on, lodged with or given in relation to a document lodged, presented, filed or deposited with the Authority, the Commissioner or the Registrar (whether electronically or in paper form), including (without limitation) —
(i)requiring or permitting a consent, permission or approval to be endorsed, lodged or given by electronic means;
(ii)requiring or permitting a consent, permission or approval that otherwise would be required or authorised to accompany or be endorsed on or lodged with a document to be lodged or given separately;
(f)the verification of the identity and authority of persons who are parties to a conveyancing transaction or who sign or authorise the signing of documents to be lodged, presented, filed or deposited with the Authority, the Commissioner or the Registrar (whether electronically or in paper form), including (without limitation) —
(i)the standards to which identity and authority are to be verified;
(ii)the documents or classes of documents in relation to which verification requirements apply;
(iii)the persons or classes of persons who can undertake verification;
(iv)the evidence showing the steps taken to satisfy the verification requirements that must be retained and how long the evidence must be retained;
(g)applications made under this Act to the Commissioner.
(2)Requirements determined under this section are not subsidiary legislation for the purposes of the Interpretation Act 1984, and section 42 of that Act does not apply to them.
(3)The Interpretation Act 1984 sections 43 (other than subsection (6)), 44, 48, 50(1), 55 and 56 and Part VIII apply to requirements determined under this section as if they were subsidiary legislation.
(4)If there is a conflict or inconsistency between a requirement determined under this section and a regulation made under section 181 or under the Electronic Conveyancing Act 2014 section 46, the regulation prevails to the extent of the conflict or inconsistency.
(5)This section does not limit the matters that may be prescribed under section 181.
[Section 182A inserted: No. 2 of 2014 s. 79.]
182B.Publication of requirements
(1)In this section —
requirement means a requirement determined under section 182A;
working day means a day other than a Saturday, a Sunday or a public holiday throughout the State.
(2)The Registrar must ensure —
(a)that all current requirements are publicly available free of charge; and
(b)that requirements, and any changes to requirements, are made publicly available at least 20 working days before the requirements or, as the case requires, the changes to them take effect.
(3)However, changes to requirements can take effect within a shorter period (including immediately on being made publicly available) if the Registrar or the Commissioner is satisfied that the changes need to take effect urgently.
(4)Requirements may be made publicly available in accordance with this section in any manner the Registrar considers appropriate, including (without limitation) by all or any of the following means —
(a)by means of a website;
(b)by publication in a practice manual, customer information bulletin or other similar publication issued by the Authority.
[Section 182B inserted: No. 2 of 2014 s. 79.]
182.Orders vesting trust estate
(1)Whenever any person interested in land under the operations of this Act or any estate or interest therein shall appear to the Supreme Court or to the Commissioner to be a trustee of such land estate or interest within the intent and meaning of any Act now or hereafter to be in force relating to trusts and trustees and any vesting order shall be made in the premises by the said court or by the Commissioner (which order he is hereby empowered to make concurrently with the said court) the Registrar on being served with such order or an office copy thereof shall enter on the certificate of title and duplicate instrument (if any) the date of the said order the time of its production to him and the name and address of the person in whom the said order shall purport to vest the said land estate or interest; and if the land is the subject of —
(a)a paper title, the Registrar shall make a corresponding entry on the duplicate certificate of title (if any) when produced to him for that or any other purpose; or
(b)a digital title, the Registrar shall cancel the duplicate certificate of title (if any) and may issue a new edition of the duplicate certificate of title in accordance with section 74B(2).
(1a)Upon such entry on the certificate of title such person shall become the transferee and be deemed to be the proprietor of the land, estate or interest.
(1b)Unless and until such entry on the certificate of title has been made the order has no effect or operation in transferring or otherwise vesting the land, estate or interest.
(2)The provisions of this section apply to any estate or interest in land which stands registered in the name of any deceased person who was at the time of his death a trustee thereof.
[Section 182 amended: No. 17 of 1950 s. 46; No. 81 of 1996 s. 145(1) and 146(1); No. 6 of 2003 s. 69.]
183.Commissioner may make vesting order in cases of completed purchase
If it be proved to the satisfaction of the Commissioner that land under this Act has been sold by the proprietor and the whole of the purchase money paid and that the purchaser or those claiming under him have entered and taken possession under such purchase and such entry and possession have been acquiesced in by the vendor or his representatives but that no transfer or formal conveyance has ever been executed by the vendor and cannot be obtained by reason that the vendor is dead or residing out of the jurisdiction or cannot be found the Commissioner may in his discretion make a vesting order in the premises and the Registrar on being served with such order shall make the entries directed to be made by the last preceding section in this Act in the case of the vesting orders therein mentioned and the making or the omission to make such entries shall be attended by the same results as declared by the said section in respect of the vesting orders therein mentioned.
184.Encumbrances which no longer affect title, powers to deal with
Where it shall be proved to the satisfaction of the Commissioner that any right or interest notified as an encumbrance, in the case of a paper title, on the certificate or noted, in the case of a digital title, on the record referred to in section 48(1)(b) have been fully satisfied extinguished or otherwise determined and no longer affects the land comprised in the certificate the Commissioner may either direct a statement to that effect signed by the Registrar to be endorsed on the certificate or permit any subsequent certificate dealing with the same land to be registered free from such encumbrance.
[Section 184 amended: No. 17 of 1950 s. 48; No. 81 of 1996 s. 110; No. 6 of 2003 s. 70.]
[185.Deleted: No. 59 of 2004 s. 140.]
[186.Deleted: No. 20 of 1905 s. 20.]
187.Appointment of executor, administrator or Public Trustee, entry on Register and effect
(1)Upon the receipt of an office copy of the probate of any will, or of any letters of administration, or of an order to administer granted to the Public Trustee, or an election to administer filed by the Public Trustee whereby it shall appear that any person has been appointed the executor or administrator of the estate of any deceased person, or that the Public Trustee has been empowered to administer, or has elected to administer any such estate, the Registrar shall, on an application in writing of the executor, administrator, or Public Trustee (as the case may be) to be registered as proprietor in respect of any land, or of any estate, right, title, or interest therein, enter in the Register and on the duplicate instrument (if any) when produced for any purpose, a memorandum notifying the appointment of such legal personal representative and the day of the death of the proprietor, when the same can be ascertained, and upon such entry being made, such legal personal representative shall become the transferee and be deemed to be the proprietor of the estate or interest of the deceased proprietor in such land, estate, right, title, or interest, or of such part thereof as then remains unadministered, and shall hold the same subject to the equities upon which the deceased held the same; but for the purposes of any dealings therewith, such legal personal representative shall be deemed to be the absolute proprietor thereof.
(2)The title of every legal personal representative becoming a transferee under this section shall, upon such entry being made, relate back to and be deemed to have arisen upon the death of the proprietor of any land, or of any estate, right, title, or interest therein, as if there had been no interval of time between such death and entry.
(3)If in any case probate or administration is granted to more persons than one, all of them for the time being shall join and concur in every dealing relating to the land, or to the estate, right, title, or interest therein.
[Section 187 amended: No. 17 of 1950 s. 50; No. 81 of 1996 s. 111.]
(1)The Registrar may exercise and shall perform the powers and duties set out in subsections (2) to (8).
(2)The Registrar may administer an oath and may take and receive the declaration of any person voluntarily making the same (in this Act called a statutory declaration).
(3)The Registrar shall upon the direction of the Commissioner correct errors in the Register or in entries made therein or in duplicate certificates (in cases of paper titles) or instruments or graphics and may supply entries omitted to be made under the provisions of this Act.
(4)In the correction of any such error in a paper medium he shall not erase or render illegible the original words or lines and shall affix the date on which such correction was made or entry supplied and initial the same.
(5)In the correction of any such error in a digital medium the Registrar shall keep a permanent record of any words or lines to be deleted and the date on which the correction was made or the entry supplied and if correcting a digital title the Registrar shall cancel the duplicate certificate of title and may issue a new edition of the duplicate certificate of title in accordance with section 74B(2).
(6)Every error or entry so corrected or supplied shall have the like validity and effect as if such error had not been made or such entry omitted except as regards any entry made in the Register prior to the actual time of correcting the error or supplying the omitted entry.
(7)The Registrar shall upon the direction of the Commissioner lodge a caveat on behalf of Her Majesty or on behalf of any person who shall be under the disability of infancy lunacy unsoundness of mind or absence from Western Australia to prohibit the transfer or dealing with any land belonging or supposed to belong to any such person and also to prohibit the dealing with any land in any case in which it shall appear that an error has been made by misdescription of such land or otherwise in any certificate of title or in any plan, diagram or instrument or for the prevention of any fraud or improper dealing.
(8)Despite any other provision of this Act, the Registrar may destroy any document that is lodged, presented, filed or deposited with the Authority or registered in its office if —
(a)the Commissioner and the Registrar are of the opinion that the retention of the document serves no useful purpose; and
(b)the Minister approves the destruction of —
(i)the document; or
(ii)a class of documents in which that document is included.
(9)The destruction of a cancelled duplicate certificate of title does not require the Minister’s approval under subsection (8).
[Section 188 amended: No. 9 of 1959 s. 2; No. 81 of 1996 s. 112 and 145(1); No. 6 of 2003 s. 72; No. 28 of 2003 s. 129(5); No. 60 of 2006 s. 114; No. 19 of 2010 s. 51; No. 2 of 2014 s. 80.]
189.Registrar may correct apparent errors in instruments without direction of Commissioner
(1)The Registrar may without the direction of the Commissioner correct any patent error in any instrument (whether in paper or electronic form) lodged for registration without such instrument being withdrawn from the Authority.
(2)Such correction must be made in compliance with section 188(3) to (6) and such correction shall have the same validity and effect as if made under the direction of the Commissioner under section 188.
[Section 189 amended: No. 81 of 1996 s. 113; No. 6 of 2003 s. 73; No. 60 of 2006 s. 118(1); No. 19 of 2010 s. 51; No. 2 of 2014 s. 81.]
190.Money received by Registrar
The Registrar is to pay to the Authority any money paid to the Registrar under this Act.
[Section 190 inserted: No. 60 of 2006 s. 115.]
191.Registrar may demand prescribed fees
The Registrar may demand the fees prescribed.
[Section 191 amended: No. 17 of 1950 s. 52.]
192A.Registrar entitled to assume that lodging party has certain authorities from other interested parties
(1)In this section —
lodge includes deposit, present and file.
(2)This section applies to any document that is lodged —
(a)for registration; or
(b)in relation to any land, title, estate or interest; or
(c)in connection with any application or dealing.
(3)The Registrar is entitled to assume that a person who lodges a document to which this section applies has authority from all persons claiming under, or having an interest in, the document to do all of the following —
(a)to lodge it;
(b)if applicable, to withdraw it from registration;
(c)to uplift it for amendment;
(d)to do anything to or in relation to the document that a person claiming under, or having an interest in, the document could do if they had lodged it;
(e)to receive requisitions, communications and notices in respect of it;
(f)to attend to all other matters that may arise —
(i)in the course of registration of the document (if applicable); or
(ii)in the course of any other action that the Registrar is authorised under this Act or any other Act to take with respect to the document.
(4)This section does not apply to any document lodged before the Electronic Conveyancing Act 2014 section 82 comes into operation.
[Section 192A inserted: No. 2 of 2014 s. 82.]
192B.Registrar may refuse lodgment for non‑compliance with certain requirements
(1)In this section —
lodge includes deposit, present and file.
(2)The Registrar may refuse to accept a document for lodgment if —
(a)the document does not comply with —
(i)the requirements of this Act or any regulations made under this Act; or
(ii)a requirement determined under section 182A; or
(iii)the requirements of the Electronic Conveyancing Act 2014 or any participation rules;
or
(b)any requirement mentioned in paragraph (a)(i) to (iii) that relates to the lodging of the document is not complied with.
(3)This section does not limit or affect any other obligation or power to refuse to accept a document for lodgment.
[Section 192B inserted: No. 2 of 2014 s. 82.]
192C.Commissioner may refuse to take action if requirements not complied with
(1)The Commissioner may refuse to take any action that the Commissioner is required or authorised to take under this Act if —
(a)the taking of that action is dependent on compliance with —
(i)a requirement of this Act or any regulations made under this Act; or
(ii)a requirement determined under section 182A; or
(iii)a requirement of the Electronic Conveyancing Act 2014 or any participation rules;
and
(b)that requirement has not been complied with.
(2)For the purposes of subsection (1), taking an action includes (without limiting subsection (1)) —
(a)accepting an application under this Act or any regulations made under this Act; and
(b)giving a direction to the Registrar.
(3)Before refusing to take action in the circumstances set out in subsection (1), the Commissioner may direct the Registrar to give notice of the non‑compliance to any person specified by the Commissioner.
(4)A notice given under subsection (3) —
(a)must be served on the person to whom it is directed; and
(b)must specify a period within which the non‑compliance must be rectified; and
(c)may specify how the non‑compliance is to be rectified.
(5)If a notice of non‑compliance given under subsection (3) relates to a document —
(a)the notice is to be taken to be a notice given under section 192(1) by the Registrar in relation to the document; and
(b)section 192 applies accordingly with all necessary changes.
(6)This section does not limit or affect any other obligation or power to refuse to take any action.
[Section 192C inserted: No. 2 of 2014 s. 82.]
192D.Registrar may refuse registration, noting or recording for non‑compliance with requirements
(1)In this section —
lodge includes deposit, present and file.
(2)This section applies to any document that is lodged —
(a)for registration; or
(b)in relation to any land, title, estate or interest; or
(c)in connection with any application or dealing.
(3)The Registrar may refuse to register, note, file or record a document to which this section applies if —
(a)the document does not comply with —
(i)the requirements of this Act or any regulations made under this Act; or
(ii)a requirement determined under section 182A; or
(iii)the requirements of the Electronic Conveyancing Act 2014 or any participation rules;
or
(b)any requirement mentioned in paragraph (a)(i) to (iii) that relates to the registration, noting, filing or recording of the document is not complied with.
(4)For the purposes of subsection (3), noting a document (the first document) includes (without limiting subsection (3)) —
(a)noting another document to the effect that a provision of the first document is incorporated in the other document; and
(b)endorsing another document to an effect stated in the first document; and
(c)removing a notification from, or modifying a notification in, another document in a way requested in the first document.
(5)This section does not limit or affect any other obligation or power to refuse to register, note or record a document.
[Section 192D inserted: No. 2 of 2014 s. 82.]
192E.Notice of non‑compliance under s. 192D
(1)Before refusing to register, note, file or record a document in the circumstances set out in section 192D(3), the Registrar may give notice of the non‑compliance to the person who lodged the document.
(2)A notice given under subsection (1) —
(a)must be served on the person who lodged the document; and
(b)must specify a period within which the non‑compliance must be rectified; and
(c)may specify how the non‑compliance is to be rectified.
(3)If a notice of non‑compliance is given under subsection (2) in relation to a document —
(a)the notice is to be taken to be a notice given under section 192(1) in relation to the document; and
(b)section 192 applies accordingly with all necessary changes.
[Section 192E inserted: No. 2 of 2014 s. 82.]
192.Defective documents, rejection of
(1)Whenever any instrument caveat surrender discharge of encumbrance court order or other document lodged for registration or in relation to any land title estate or interest or in connection with any application or dealing is erroneous or defective the Registrar may require the correction and re‑execution or correction only (as the case may require) of such document to be made or procured by the person lodging the same; and if such error or defect is not duly amended within the time allowed by the Registrar, after notice of the error or defect and the time so allowed has been given to the person, the Registrar may if he thinks fit reject such document and notify such rejection to the person lodging the document.
(2)If the Registrar rejects a document under subsection (1) —
(a)the Registrar shall retain from the fees paid on the lodging of the document such amount as is prescribed by the regulations (the prescribed amount); and
(b)the prescribed amount shall be forfeited and dealt with under section 190; and
(c)the amount being the difference between the fees paid on the lodging of the document and the prescribed amount may be returned to the person lodging the document when the document is withdrawn from lodgment.
[Section 192 amended: No. 28 of 1969 s. 8; No. 6 of 2003 s. 74; No. 59 of 2004 s. 140; No. 2 of 2014 s. 83.]
193.Power to state case for Supreme Court
It shall be lawful for the Commissioner whenever any question shall arise with regard to the performance of any duty or the exercise of any of the functions by this Act or the Electronic Conveyancing Act 2014 conferred or imposed either on him or on the Registrar to state a case for the opinion of the Supreme Court; and thereupon it shall be lawful for the said court to give its judgment thereon; and such judgment shall be binding upon the Commissioner and Registrar respectively.
[Section 193 amended: No. 2 of 2014 s. 84.]
Part XI — Restrictions on, and recovery of, payments of compensation by State
[Heading inserted: No. 81 of 1996 s. 115.]
[194.Deleted: No. 81 of 1996 s. 116.]
195.Moneys paid by State under s. 201 may be recovered
Whenever any amount has been paid by the State under section 201 on account of any deceased person such amount may be recovered by the State from the estate of such person by action against his personal representatives in the name of the Registrar; and whenever such amount has been paid on account of a person who shall have been adjudged bankrupt the amount so paid shall be considered to be a debt due from the estate of such bankrupt and a certificate signed by the Treasurer certifying the fact of such payment and delivered to the trustee shall be sufficient proof of such debt; and whenever any amount has been paid by the State under section 201 on account of any person who may have absconded or who cannot be found within the jurisdiction of the Supreme Court and may have left any real or personal estate within Western Australia it shall be lawful for the said court or a judge thereof upon the application of the Registrar and upon the production of a certificate signed by the Treasurer certifying that the amount has been paid in satisfaction of a judgment against the State with the Registrar as nominal defendant to allow the State to have judgment against such person forthwith for the amount so paid together with the costs of the application and such judgment shall be final and signed in like manner as a final judgment by confession or default in an adverse suit and execution may issue immediately; and if such person shall not have left real or personal estate within Western Australia sufficient to satisfy the amount for which execution may have been issued as aforesaid the State may, in the name of the Registrar, recover such amount or the unrecovered balance thereof by action against such person at any time thereafter if he shall be found within the jurisdiction of the Supreme Court.
[Section 195 amended: No. 17 of 1950 s. 54; No. 81 of 1996 s. 117.]
196.State not liable in certain cases
(1)The State shall not under any circumstances be liable for compensation for any loss damage or deprivation occasioned by any breach by a registered proprietor of any trust, whether express or implied or constructive, or by the improper exercise of any power of sale expressed or implied in any mortgage or encumbrance; or to any person claiming under an unregistered instrument, document or writing, or any equitable mortgage or charge by deposit or otherwise without writing, or any other interest not protected by caveat, by or in consequence of the registration of a new certificate of title in the name of any registered proprietor pursuant to section 75; in any case in which the same land may have been included in 2 or more grants from the Crown or transfers of Crown land in fee simple; nor shall the State be liable in any case in which loss or deprivation has been occasioned by any land being included in the same certificate of title with other land through misdescription of boundaries or parcels of any land unless in the case last aforesaid it shall be proved that the person liable for compensation and damages is dead or has absconded or has been adjudged bankrupt or the sheriff shall certify that such person is unable to pay the full amount awarded in any action for recovery of such compensation and damages.
(1A)Any amount paid by the State under section 201 on account of any person who may have absconded may be recovered by the State from such person by action in the name of the Registrar at any time thereafter if such person shall be found within the jurisdiction of the Supreme Court.
(1B)The State shall be liable for such amounts only as the sheriff shall fail to recover from the person liable as aforesaid.
(2)The State shall not be liable for compensation for any loss, damage or deprivation occasioned by any error in —
(a)the description of the area, boundaries or position of a parcel of Crown land to which a certificate of Crown land title endorsed with the words “Subject to survey” relates; or
(b)a qualified certificate of Crown land title; or
(c)a document accepted for recording or registration in respect of a qualified certificate of Crown land title; or
(d)the order of priority of a document recorded or registered in respect of a qualified certificate of Crown land title.
[Section 196 amended: No. 54 of 1909 s. 17 (as amended: No. 17 of 1950 s. 75); No. 81 of 1996 s. 118; No. 31 of 1997 s. 127; No. 19 of 2010 s. 51.]
[197.Deleted: No. 81 of 1996 s. 119.]
Part XII — Actions and other remedies
198.Officers not to be liable for acts done bona fide
The Commissioner shall not nor shall the Registrar or any person acting under the authority of either of them or of the Minister for Lands be liable to any action suit or proceeding for or in respect of any act or matter bona fide done or omitted to be done in the exercise or supposed exercise of the powers of this Act or the Strata Titles Act 1985 or the Electronic Conveyancing Act 2014.
[Section 198 amended: No. 8 of 2010 s. 32; No. 2 of 2014 s. 85; No. 30 of 2018 s. 203.]
199.Registered proprietor protected against ejectment except in certain cases
Subject to sections 68 and 81T, no action of ejectment or other action for the recovery of any land shall lie or be sustained against the person registered as proprietor thereof under the provisions of this Act except in any of the following cases (that is to say) —
(a)the case of a mortgagee as against a mortgagor in default;
(b)the case of an annuitant as against a grantor in default;
(c)the case of lessor as against a lessee in default;
(d)the case of a person deprived of any land by fraud as against the person registered as proprietor of such land through fraud or as against a person deriving otherwise than as a transferee bona fide for value from or through a person so registered through fraud;
(e)the case of a person deprived of or claiming any land included in any certificate of title of other land by misdescription of such other land or of its boundaries as against the registered proprietor of such other land not being a transferee thereof bona fide for value;
(f)the case of a registered proprietor claiming under a certificate of title prior in date of registration under the provisions of this Act in any case in which 2 or more certificates of title or a certificate of title may be registered under the provisions of this Act in respect of the same land,
and in any case other than as aforesaid the production of the registered certificate of title or lease shall be held in every court to be an absolute bar and estoppel to any such action against the person named in such document as the proprietor or lessee of the land therein described any rule of law or equity to the contrary notwithstanding.
[Section 199 amended: No. 31 of 1997 s. 128; No. 19 of 2010 s. 51.]
200.Court may direct cancellation of certificate or entry in Register in certain cases
Upon the recovery of any land estate or interest by any proceeding at law or in equity from the person registered as proprietor thereof it shall be lawful for the court or a judge in any case in which such proceeding is not herein expressly barred to direct the Registrar to cancel any certificate of title or instrument or any entry or memorandum in the Register relating to such land estate or interest and to substitute such certificate of title or entry as the circumstances of the case may require; and the Registrar shall give effect to such order.
[Section 200 amended: No. 81 of 1996 s. 145(1).]
201.Compensation of person deprived of land
(1)Any person deprived of land or of any estate or interest in land in consequence of fraud or through the bringing of such land under the operation of this Act or by the registration of any other person as proprietor of such land estate or interest or in consequence of any error or misdescription in any certificate of title or in any entry or memorandum in the Register may bring and prosecute an action at law for the recovery of damages against the person upon whose application such land was brought under the operation of this Act or such erroneous registration was made or who acquired title to the estate or interest through such fraud error or misdescription.
(2)Despite subsection (1) except in the case of fraud or of error occasioned by any omission misrepresentation or misdescription in the application of such person to bring such land under the operation of this Act or to be registered as proprietor of such land estate or interest or in any instrument signed by him such person shall upon a transfer of such land bona fide for value cease to be liable for the payment of any damage beyond the value of the consideration actually received which but for such transfer might have been recovered from him under the provisions herein contained.
(3)In such last‑mentioned case and also in case the person against whom such action for damages is directed to be brought as aforesaid shall be dead or shall have been adjudged bankrupt or cannot be found within the jurisdiction of the Supreme Court then and in any such case such damages with costs of action may be recovered from the State by action against the Registrar as nominal defendant.
(4)All damages and costs to be paid by the State under this section shall be charged to the Consolidated Account and this section appropriates the Consolidated Account accordingly.
(5)In estimating such damages the value of all buildings and other improvements erected or made subsequently to the deprivation shall be excluded.
[Section 201 amended: No. 81 of 1996 s. 120 and 145(1); No. 77 of 2006 s. 4; No. 19 of 2010 s. 51.]
Nothing in this Act contained shall be so interpreted as to leave subject to an action of ejectment or to an action for recovery of damages as aforesaid or for deprivation of the estate or interest in respect to which he is registered as proprietor any purchaser bona fide for valuable consideration of land under the operation of this Act on the ground that the proprietor through or under whom he claims may have been registered as proprietor through fraud or error or may have derived from or through a person registered as proprietor through fraud or error; and this whether such fraud or error shall consist in wrong description of the boundaries or of the parcels of any land or otherwise howsoever.
203.Owner may require Commissioner or Registrar to substantiate decision before Supreme Court
(1)If upon the application of any owner or proprietor to have land brought under the operation of this Act or to have any dealing or transmission registered or recorded or to have any certificate of title foreclosure order or other document created, registered or issued or to have any act or duty done or performed which by this Act is required to be done or performed by the Commissioner or Registrar either of them shall refuse so to do or if such owner or proprietor shall be dissatisfied with the direction upon his application given by the Commissioner it shall be lawful for such owner or proprietor to require the Commissioner or Registrar to set forth in writing under his hand the grounds of his refusal or the grounds upon which such direction was given, and such owner or proprietor may if he think fit at his own costs summon the Commissioner or Registrar as the case may be to appear before the Supreme Court or a judge to substantiate and uphold the grounds of his refusal or of such direction as aforesaid such summons to be issued under the hand of a judge and to be served upon the Commissioner or Registrar 6 clear days at least before the day appointed for hearing the complaint of such owner or proprietor.
(2)Upon such hearing the Commissioner or Registrar or his counsel shall have the right of reply; and the said court or a judge may if any question of fact be involved direct an issue to be tried to decide such fact; and thereafter the said court or a judge shall make such order in the premises as the circumstances of the case may require; and the Commissioner or Registrar shall obey such order.
(3)All expenses attendant upon any such proceedings shall be borne and paid by the applicant or other person preferring such complaint unless the court or a judge shall certify that there was no reasonable ground for such refusal or direction as aforesaid.
[Section 203 amended: No. 17 of 1950 s. 56; No. 81 of 1996 s. 121; No. 19 of 2010 s. 51.]
204.Cost of summons and proceedings under s. 203 to be in discretion of court
Upon any summons or proceeding under the last preceding section the court or judge may notwithstanding anything in the said section to the contrary make such order as to the costs expenses of and attendant upon such summons or proceeding as the court or judge shall deem just; and all costs and expenses to be paid by the Registrar under such order shall be charged to the Consolidated Account and this section appropriates the Consolidated Account accordingly.
[Section 204 amended: No. 17 of 1950 s. 57; No. 81 of 1996 s. 122; No. 77 of 2006 s. 4.]
205.Actions for damages may in some cases be brought against Registrar as nominal defendant
(1)Any person sustaining loss through any omission mistake or misfeasance of the Registrar or any other officer or clerk in the execution of their respective duties under the provisions of this Act or by any error omission or misdescription in any certificate of title or any entry or memorandum in the Register or by the registration of any other person as proprietor and who by the provisions of this Act is barred from bringing an action of ejectment or other action for the recovery of land estate or interest may in any case in which the remedy by action for recovery of damages as herein provided is inapplicable bring an action against the State with the Registrar as nominal defendant for recovery of damages.
(2)In estimating those damages however the value of all buildings and other improvements erected or made subsequently to the loss or deprivation shall be excluded.
[Section 205 amended: No. 81 of 1996 s. 123 and 145(1); No. 19 of 2010 s. 51.]
206.Actions for damages for loss due to inaccurate survey
Any person sustaining any loss or damage by any amendment of a certificate under this Act or by the bringing of land under this Act if the amendment or the registration of the certificate by which such loss or damage was occasioned was in consequence of or justified by any inaccuracy in any survey or plan or description of land used upon any sale of land by the Crown then notwithstanding the provisions of section 201 and section 205 but without prejudice to the rights (if any) of such person thereunder he may in the first instance and without any obligation to pursue the remedies provided by such sections bring an action against the State with the Registrar as nominal defendant for recovery of damages.
[Section 206 amended: No. 81 of 1996 s. 124; No. 6 of 2003 s. 75.]
207.Actions for damages in certain other cases
(1)Any person who shall have sustained or shall hereafter sustain any loss or damage in or by the exercise by the Commissioner of any of the powers conferred on him by The Transfer of Land Act 1874 or by this Act and who shall not have been party or privy to the application or dealing in connection with which such power was exercised may notwithstanding the provisions of section 201 and section 205 and without prejudice to the rights (if any) of such person thereunder in the first instance and without any obligation to pursue the remedies provided by such sections bring an action against the State with the Registrar as nominal defendant for recovery of damages.
(2)Where such person shall have been party or privy to such application or dealing he shall be at liberty to join the Registrar as a nominal co‑defendant in any action brought by him in respect of such loss or damage against any other person or persons who shall have been party or privy to such application or dealing.
[Section 207 amended: No. 81 of 1996 s. 125; No. 19 of 2010 s. 51.]
208.Claims for damages may be made to Commissioner before commencing court action
(1)Any person sustaining loss or damage in any case in which heretofore he would have been entitled to bring an action to recover damages against the State with the Registrar as nominal defendant may before commencing proceedings against the Registrar make application in writing to the Commissioner for compensation and such application shall be supported by affidavit or declaration.
(2)If the Commissioner admit the claim or any part thereof and certify accordingly to the Attorney General thereupon the Governor may if he shall think fit issue a warrant to the Treasurer for the amount so certified and such amount shall be charged to the Consolidated Account and paid to the claimant and this section appropriates the Consolidated Account accordingly.
[Section 208 amended: No. 81 of 1996 s. 126; No. 77 of 2006 s. 4; No. 19 of 2010 s. 51.]
209.Notice of action to be served
In any case in which an action for recovery of damages is permitted to be brought against the State with the Registrar as nominal defendant notice in writing of such action and of the cause thereof shall be served upon such nominal defendant one month at least before the commencement of such action; and if in any such action judgment be given in favour of the nominal defendant or the plaintiff discontinue or become nonsuit the plaintiff shall be liable to pay the full costs of defending such action and the same when taxed shall be recovered by the State in the name of the nominal defendant by the like process of execution as in other actions.
[Section 209 amended: No. 17 of 1950 s. 58; No. 81 of 1996 s. 127.]
210.Damages etc. awarded to be charged to Consolidated Account
If, in an action under section 205, 206 or 207 for the recovery of damages against the State with the Registrar as nominal defendant, the plaintiff or a co‑defendant obtains final judgment against the State then the judge before whom the action was tried or the Supreme Court shall certify —
(a)the fact of such judgment; and
(b)the amount of damages and costs ordered to be paid,
and the amount of such damages and costs shall be paid to the person who obtained the judgment and shall be charged to the Consolidated Account and this section appropriates the Consolidated Account accordingly.
[Section 210 inserted: No. 81 of 1996 s. 128; amended: No. 77 of 2006 s. 4.]
(1)No action for recovery of damages sustained through deprivation of land or of any estate or interest in land shall lie or be sustained against the State or against the person upon whose application such land was brought under the operation of this Act or against the person who applied to be registered as proprietor in respect to such land unless such action shall be commenced within the period of 6 years from the date of such deprivation.
(2)Despite subsection (1), any person being under the disability of infancy or unsoundness of mind may bring such action within 6 years from the date on which such disability shall have ceased so however that such action be brought within 30 years next after the date of such deprivation.
(3)The plaintiff in any such action at whatever time it may be brought and the plaintiff in any action for the recovery of land shall be nonsuited in any case in which the deprivation complained of may have been occasioned through the bringing of land under the operation of this Act if it shall be made to appear to the satisfaction of the judge before whom such action shall be tried that such plaintiff or the persons through or under whom he claims title had notice by personal service or otherwise or was aware that application had been made to bring such land under the operation of this Act and had wilfully or collusively or negligently omitted to lodge a caveat forbidding the same or had allowed such caveat to lapse.
[Section 211 amended: No. 17 of 1950 s. 59; No. 73 of 1954 s. 5; No. 81 of 1996 s. 129; No. 19 of 2010 s. 51.]
212.Rules of Supreme Court to apply and same right of appeal as in ordinary actions
(1)In the conduct of actions under this Act the same rules of procedure and practice shall apply and there shall be the same rights of appeal as shall be in force or exist for the time being in respect of ordinary actions in the court in which such action may be tried.
(2)Despite subsection (1), the judges shall have power from time to time to make rules and orders for regulating proceedings in the Supreme Court under this Act and from time to time to rescind alter or add to such rules and orders.
[Section 212 amended: No. 19 of 2010 s. 51.]
213.Obligation to make discovery not excluded
Nothing in this Act contained shall entitle any person to refuse to make a complete discovery in any action or to answer any question or interrogatory in any civil proceeding in any court of law or bankruptcy; but no answer to any question or interrogatory shall be admissible in evidence against such person in any criminal proceeding except in any case where the contrary may be specially enacted.
(1)A person must not do any of the things set out in subsection (3).
Penalty: imprisonment for 10 years and a fine of $100 000.
Summary conviction penalty: imprisonment for 3 years and a fine of $40 000.
(2)An offence under subsection (1) is a crime.
(3)The things to which subsection (1) applies are —
(a)making any statement or declaration that the person making it knows is false or misleading in a material particular in —
(i)any application under this Act; or
(ii)any document lodged, deposited, presented or filed under this Act;
(b)making or giving any certification required under this Act that the person making or giving it knows is false or misleading in a material particular;
(c)providing to the Commissioner or Registrar any material, document, fact or information that the person providing it knows is false or misleading in a material particular;
(d)suppressing, withholding or concealing from the Commissioner or Registrar any material, document, fact or information;
(e)making any statutory declaration authorised or required under this Act that the person making it knows is false or misleading in a material particular;
(f)giving evidence in the course of an examination before the Commissioner that the person giving it knows is false or misleading in a material particular;
(g)fraudulently procuring —
(i)a certificate of title or instrument; or
(ii)an entry in the Register; or
(iii)any erasure or alteration in any entry in the Register;
(h)whether fraudulently or not, without lawful excuse —
(i)defacing, erasing or altering any words, memorandum or diagram in or on any duplicate certificate or duplicate instrument; or
(ii)destroying any duplicate certificate or duplicate instrument;
(i)misleading or deceiving any person authorised to require an explanation or information in respect of —
(i)any land, or the title to any land, under the operation of this Act; or
(ii)any land, or the title to any land, that is the subject of an application to bring it under the operation of this Act; or
(iii)any land or the title to any land in respect of which any dealing or transmission is proposed to be registered;
(j)without reasonable excuse, neglecting to lodge with the Registrar a duplicate certificate of title or Crown lease when required to do so under this Act.
[Section 214 inserted: No. 2 of 2014 s. 86.]
Any certificate of title, instrument, entry, erasure or alteration procured or made by fraud in any of the circumstances set out in section 214 is void as against all persons who are party to that fraud, whether or not anyone is convicted of that fraud.
[Section 214A inserted: No. 2 of 2014 s. 86.]
[214B.Deleted: No. 2 of 2014 s. 86.]
[215‑218.Deleted: No. 17 of 1950 s. 63.]
219.Person entitled under will etc. may apply to be registered
(1)A devisee or person claiming any estate of freehold in possession or a power to appoint transfer or dispose of the same on a transmission may make application in writing to the Commissioner to be registered as proprietor thereof and shall produce the will or an office copy or probate of the will of the deceased proprietor or letters of administration with his will annexed or the letters of administration in case of intestacy or the settlement under which such applicant claims and shall afterwards furnish such other evidence as may be deemed necessary.
(2)Such application shall state the nature of every interest held by any other person at law or equity in the land within the applicant’s knowledge and that he verily believes himself to be entitled to the estate in or power over such land in respect to which he applies to be registered and shall also state the value of the property.
(3)The devisee or other person making such application shall deliver up the duplicate certificate of title (if any) before being entered in the Register as the proprietor.
[Section 219 amended: No. 81 of 1996 s. 131; No. 19 of 2010 s. 51.]
220.Application under s. 219, how dealt with
(1)Such application shall be referred to the Commissioner or if there be such an officer then to an Examiner of Titles for his examination and report who shall afterwards submit the papers to the Commissioner and the Commissioner may either reject such application altogether or direct notice thereof to be published once at least in one newspaper published in the city of Perth or circulating in the neighbourhood of the land and such further publicity to be given to such application as he may deem fit; and the Commissioner shall appoint a time not less than 14 days from the advertisement or the first of such advertisements if more than one upon or after which the Registrar shall unless a caveat shall be lodged forbidding the same register such applicant as the proprietor of such land or estate by entering in the Register the particulars of the transmission through which such applicant claims and by registering a certificate of title to the land or estate so transmitted.
(2)Upon such entry being made the applicant shall become the transferee of such land or estate and be deemed to be the proprietor thereof.
(3)The person registered consequent on such direction shall hold such land or estate for the purposes for which it may be applicable by law; but for the purpose of any dealings therewith under the provisions of this Act he shall be deemed to be the absolute proprietor thereof.
(4)The Commissioner may direct a caveat to be entered by the Registrar for the protection of the interests of any other persons interested in such land or estate.
[Section 220 amended: No. 81 of 1996 s. 145(1); No. 19 of 2010 s. 51.]
221.Remainder‑man or reversioner may apply to be registered
(1)Any person claiming to have acquired any estate in remainder reversion or otherwise on a transmission may apply to be registered as so entitled in like manner and supported by the like evidence as near as may be as is herein provided with respect to a devisee or other person claiming an estate of freehold in possession on a transmission.
(2)Such application shall be dealt with in like manner as is mentioned in the last preceding section; and any entry made thereupon shall have the same effect and the person registered shall hold the land for the same purposes and shall have the same powers as is and are mentioned in such section.
(3)If there shall be any doubt dispute or litigation under this or under either of the last 2 preceding sections as to the true construction or legal validity or effect of any will or settlement relating to any freehold land or estate or if the person entitled under any of the provisions of this Act to any land or estate under any will settlement or instrument cannot be ascertained the Supreme Court sitting in the exercise of its equitable jurisdiction may appoint a person to be registered as the representative of such land or estate; and such person when registered shall become the transferee and be deemed to be the proprietor thereof for the purposes of this Act subject however to any directions which shall from time to time be given by the court sitting as aforesaid touching the disposition thereof or the dealing therewith.
[Section 221 amended: No. 19 of 2010 s. 51.]
222.Person claiming title under statute of limitations may apply to be registered
(1)Any person claiming to have acquired under or by virtue of any statute of limitations an estate in fee simple in possession in land under the operation of this Act may make application in the form in the Fourth Schedule to be registered as proprietor thereof and shall furnish such evidence as the Commissioner may deem necessary to prove his title.
(2)Such application shall also state the value of the land.
[Section 222 amended: No. 19 of 2010 s. 51.]
223.Application under s. 222, how dealt with
(1)Such application with the papers shall be submitted to the Commissioner who may either reject such application altogether or direct notice thereof to be published once at least in a newspaper published in the city of Perth or circulating in the neighbourhood of the land and to be served on any persons named by him and such further publicity to be given as he shall think fit; and the Commissioner shall in such notice appoint a time not less than 14 days nor more than 12 calendar months from such notice or from the advertisement or the first of such advertisements (if more than one) on or after the expiration of which the Registrar shall unless a caveat shall be lodged forbidding the same register such applicant as the proprietor of such land by endorsing on the registered certificate in the Register the particulars of the title under which such applicant claims and registering in his name a certificate of title to the land.
(2)Upon such registry being effected the applicant shall become the transferee of such land and be deemed to be the proprietor thereof.
[Section 223 amended: No. 14 of 1996 s. 4; No. 81 of 1996 s. 145(1); No. 19 of 2010 s. 51.]
223A.Caveat against application
(1)A person claiming an estate or interest in the land in respect of which any such application is made, may before the granting thereof, lodge a caveat with the Registrar forbidding the granting of such application.
(2)Such caveat shall in all other respects be in the same form and shall have the same effect with respect to the application against which it is lodged, and be subject to the same conditions as an ordinary caveat against bringing land under the operation of this Act.
[Section 223A inserted: No. 17 of 1950 s. 64; amended: No. 19 of 2010 s. 51.]
[224.Deleted: No. 81 of 1996 s. 132.]
[225.Deleted: No. 81 of 1996 s. 133.]
[226.Deleted: No. 6 of 2003 s. 76.]
227.Survivor of joint proprietors may apply to be registered
Upon the death of any person registered with any other person as joint proprietor of any land or of any lease or charge or as joint proprietor of any mortgage owned on a joint account in equity the Commissioner on the application of the person entitled and proof to his satisfaction of such events as aforesaid may direct the Registrar to register such applicant as the proprietor thereof; and she or he shall upon being registered in the manner herein prescribed for the registration of a like estate or interest become the transferee of such land lease mortgage or charge and be deemed its proprietor.
[Section 227 amended: No. 6 of 2003 s. 77.]
228.Proprietors and transferees for time being to stand in place of previous owners
Without lessening or prejudicing any of the other rights powers and remedies hereby given and conferred every proprietor and every transferee when registered of any lease, mortgage, charge, carbon right, carbon covenant or plantation interest shall whilst continuing so registered have the same estates rights powers and remedies and be subject to the same engagements obligations and liabilities and may sue and be sued in his own name at law and in equity in respect thereof or thereupon in like manner as if he had been the original proprietor of the land by or with whom the engagement obligation or liability sued upon was entered into or incurred or the original lessee, mortgagee, annuitant, or proprietor of the carbon right, carbon covenant or plantation interest.
[Section 228 amended: No. 56 of 2003 s. 20.]
229.Proprietor’s name, use of in court action by beneficiary etc.
(1)The proprietor of any land or of any lease mortgage or charge shall on the application of any beneficiary or person interested therein be bound to allow his name to be used by such beneficiary or person in any action suit or proceeding which it may be necessary or proper to bring or institute in the name of such proprietor concerning such land lease mortgage or charge or for the protection or benefit of the title vested in such proprietor or of the interest of any such beneficiary or person.
(2)Such proprietor shall in any such case be entitled to be indemnified in like manner as if being a trustee he would before the passing of this Act have been entitled to be indemnified in a similar case of his name being used in any such action suit or proceeding by his cestui que trust.
[Section 229 amended: No. 19 of 2010 s. 51.]
229A.Easement not used or enjoyed for 20 years, removal of
(1)A proprietor of land may apply to the Commissioner for the removal from the certificate of title of any easement notified thereon.
(2)If the Commissioner is satisfied that the easement has not been used or enjoyed for a period of not less than 20 years, he may make an order directing the removal of the entry or statement of the easement, and thereupon the easement shall be deemed to have been abandoned and extinguished.
(3)The Commissioner shall not make an order under subsection (2) until 21 days after the Registrar has served —
(a)each person appearing from the Register to have an estate or interest in the land to which the easement is appurtenant; and
(b)each person named by the Commissioner,
with notice of the application.
(4)The notice shall be in writing and dated and shall include or contain a plan showing the extent to which such easement is affected.
(5)This section does not apply to any easement created under Part IVA or granted under section 144 of the Land Administration Act 1997.
[Section 229A inserted: No. 17 of 1950 s. 65; amended: No. 14 of 1972 s. 7; No. 81 of 1996 s. 134; No. 31 of 1997 s. 130.]
229B.Orders made under s. 229A, effect of
(1)If an order is made under section 229A(2) and affects the right, estate, or interest of the registered proprietor of land included in any certificate of title in respect of any registered easement appearing thereon, the Registrar shall cancel the entry of such easement to the extent to which it has been determined or extinguished upon the certificate of title and if the land is the subject of —
(a)a paper title, the Registrar shall make a corresponding entry on the duplicate certificate of title (if any) when produced to him for that or any other purpose; or
(b)a digital title, the Registrar shall cancel the duplicate certificate of title (if any) and may issue a new edition of the duplicate certificate of title in accordance with section 74B(2).
(2)The Registrar may call in such duplicate certificate for the purpose of such cancellation and may retain the duplicate until such cancellation is effected and refuse to register any dealing with the land or any estate or interest therein until the duplicate has been brought in or lodged.
(3)For the purposes of this section the right, estate, or interest of a registered proprietor of land shall be deemed to be affected by an order relating to an easement, whether the land was as regards such easement in the position of a dominant or servient tenement.
(4)This section does not apply to any easement granted under section 144 of the Land Administration Act 1997.
[Section 229B inserted: No. 17 of 1950 s. 65; amended: No. 81 of 1996 s. 135; No. 31 of 1997 s. 131; No. 6 of 2003 s. 78.]
230.On s. 20 applications, easements not used for 20 years or more may be omitted from certificate
Upon an application to bring land under this Act, if it shall be proved to the satisfaction of the Commissioner that any easement formerly affecting such land has not been used or enjoyed for a period of not less than 20 years the Commissioner may, notwithstanding section 69, at his discretion direct the Registrar to create and register a certificate of title for such land without notifying such easement as an encumbrance, and thereafter the same shall not be preserved by section 68.
[Section 230 inserted: No. 14 of 1972 s. 8; amended: No. 81 of 1996 s. 136.]
231.Buildings on public roads etc. in Perth or Fremantle for 20 years or more
(1)If upon an application to bring land under this Act or to amend a certificate or to amend or replace a relevant graphic it is found that a building of a permanent nature has been erected so as to encroach upon the width or alignment of a public road street or way within the limits of the city of Perth or city of Fremantle but it is proved to the satisfaction of the Commissioner that such encroachment has continued for a period of not less than 20 years the Commissioner may direct the Registrar to create and register or amend a certificate or to amend or replace a relevant graphic for or including the land covered by such building provided notice of such application and alleged encroachment shall have been duly given to the corporation or other body in whom such road street or way is vested or who have the trust or legal control thereof.
(2)In the event of such body sending in objections it shall be heard in support thereof and the Commissioner shall have power to examine witnesses upon oath on behalf of the applicant and the corporation or other body and make such order as to him may seem fit.
(3)Despite subsection (1), no encroachment so allowed by the Commissioner shall exceed one metre.
(4)The Governor in Council may from time to time upon a petition in that behalf signed by two‑thirds of the total number of members of the council of any local government sealed with the common seal of the local government affected order that the operations of this section be extended to such local government and every order so made shall be published in the Government Gazette and shall take effect as from the day of such publication.
[Section 231 amended: No. 94 of 1972 s. 4; No. 14 of 1996 s. 4; No. 81 of 1996 s. 137; No. 6 of 2003 s. 79; No. 19 of 2010 s. 51.]
232A.Effect of dealing with duplicate certificate of title in accordance with requirements as alternative to production
(1)In this section —
lodge includes deposit, present and file;
produce includes present, deliver up, bring in and provide.
(2)This section applies if —
(a)a document is lodged —
(i)for registration; or
(ii)in relation to any land, title, estate or interest; or
(iii)in connection with any application or dealing;
and
(b)a provision of this Act requires a duplicate certificate of title to be produced in connection with the lodging of that document; and
(c)that duplicate certificate of title is not produced but is dealt with in another way in accordance with —
(i)regulations made under this Act; or
(ii)requirements determined under section 182A.
(3)If this section applies —
(a)for the purposes of this Act and any other written law, dealing with the duplicate certificate of title as mentioned in subsection (2)(c) is to be taken to be compliance with the requirement to produce the duplicate certificate of title in connection with the lodged document; and
(b)the Registrar or, as the case requires, the Commissioner or the Authority may take any action that they are required or authorised to take under this Act or any other written law as if the duplicate certificate of title had been produced, in accordance with that requirement, in connection with the lodged document.
[Section 232A inserted: No. 2 of 2014 s. 87.]
232B.Effect of using alternative means to provide consent, permission or approval
(1)This section applies if —
(a)a consent, permission or approval is required or authorised under this Act or any other written law to accompany or be endorsed on, lodged with or given in relation to a document lodged, presented, filed or deposited with the Authority, the Commissioner or the Registrar; and
(b)the consent, permission or approval is not provided in the way required or authorised under this Act or the other written law but is provided in another way in accordance with —
(i)regulations made under this Act; or
(ii)requirements determined under section 182A.
(2)If this section applies —
(a)for the purposes of this Act and any other written law, providing the consent, permission or approval as mentioned in subsection (1)(b) is to be taken to be authorised by this Act or, as the case requires, the other written law; and
(b)for the purposes of this Act and any other written law, the consent, permission or approval provided as mentioned in subsection (1)(b) —
(i)is to be taken to have been provided in the way required or authorised under this Act or, as the case requires, the other written law; and
(ii)has the same effect as if it had been provided in the way required or authorised under this Act or, as the case requires, the other written law;
and
(c)the Registrar or, as the case requires, the Commissioner or the Authority may take any action that they are required or authorised to take under this Act or any other written law as if the consent, permission or approval had been provided in the way required under this Act or the other written law.
[Section 232B inserted: No. 2 of 2014 s. 87.]
232.Receipt for documents lodged
(1)On any documents being lodged with the Registrar for any of the purposes of this Act the Registrar shall if required so to do give to the person lodging the same a receipt in an approved form.
(2)Documents so lodged shall be returned only to the person who lodged the same or to some person claiming through or under him or authorised in writing by the person entitled to receive the same.
[Section 232 amended: No. 81 of 1996 s. 138; No. 19 of 2010 s. 51.]
233.Pending actions etc. not to affect dealings
To determine doubts which may arise as to the operation of lis pendens on land under this Act it is hereby declared that no lis pendens or registration of lis pendens shall affect or be deemed to have affected the right of any person to obtain the registration of any dealing under this Act or shall deprive or be deemed to have deprived any person dealing under this Act of the benefit of section 134 or of any other section of this Act.
234.Trustees etc. of bankrupts etc. may apply to be registered
(1)Every person who, as trustee, assignee, or by any other name, is representative of a bankrupt or insolvent estate is entitled to be registered as proprietor of any property under this Act, which is portion of such estate, and the Registrar, upon receipt of an office copy of the appointment of such representative, accompanied by an application under his hand to be so registered, shall enter in the Register on the certificate of title for such property, a memorandum notifying the appointment of such representative, who shall thereupon become the transferee, and be deemed to be the proprietor of such property, and shall hold the same subject to the duties and trusts affecting the estate, but for the purpose of dealing therewith under this Act, shall be deemed the absolute proprietor thereof.
(2)All property which any bankrupt or insolvent, before adjudication, or after adjudication and before obtaining his certificate of discharge became entitled to, or became entitled under any power of appointment or disposition to dispose of for his own benefit, shall be deemed a portion of the estate of such bankrupt or insolvent.
[Section 234 amended: 60 Vict. No. 22 s. 5; No. 81 of 1996 s. 139; No. 19 of 2010 s. 51; No. 2 of 2014 s. 88.]
235.Bankruptcy of proprietor not to affect dealings until s. 234 application or caveat lodged
Until such applications shall be made as aforesaid and subject to the operation of any caveat which may be lodged by such trustee dealings by a bankrupt proprietor with land under the operation of this Act may be registered and thereupon shall not be affected by the order of adjudication either at law or in equity.
An estate tail under this Act shall have the same incidents as a similar estate under the general law and the proprietor of such an estate shall have the same power to bar the estate tail and create an estate in fee simple absolute as against all persons whose estates are to take effect after the determination or in defeasance of the estate tail.
237.Conditions of sale in Twenty‑sixth Schedule, adoption of
On any sale of land under the operation of this Act by public auction or private contract the conditions set out in the table marked A in the Twenty‑sixth Schedule may be adopted by inserting the words “The conditions in Table A of the Transfer of Land Act 1893, shall apply to this contract” and when so adopted the said conditions shall be construed as part of the contract subject to any express modification or exclusion of any of them which may be contained in the contract.
The forms contained in the several Schedules and the forms for the time being in force under this Act may be modified or altered in expression to suit the circumstances of every case; and any variation from such forms respectively in any respect not being matter of substance shall not affect their validity or regularity.
238A.Registrar’s copy to be definitive
(1)In this section —
lodge includes deposit, present and file.
(2)If a document is lodged electronically under the Electronic Conveyancing Act 2014 section 7(1), the Registrar may produce, as often as the Registrar thinks necessary for any purpose, a record, copy, print‑out or image of the document in any medium determined by the Registrar.
(3)If the Registrar produces, under subsection (2), a record, copy, print‑out or image of a document, the record, copy, print‑out or image is to be taken to be the definitive form of the document on and from the day on which it was lodged.
(4)The Registrar may produce, as often as the Registrar thinks necessary for any purpose and in any medium determined by the Registrar, a record, copy, print‑out or image of a document that —
(a)is lodged electronically under the Electronic Conveyancing Act 2014 section 7(1); and
(b)is registered, noted or recorded in the Register.
(5)If the Registrar produces, under subsection (4), a record, copy, print‑out or image of a document, the record, copy, print‑out or image is to be taken to be the definitive form of the document as registered, noted or recorded in the Register at the time the record, copy, print‑out or image is produced.
[Section 238A inserted: No. 2 of 2014 s. 89.]
238B.Resubmission of document lodged electronically if data capture defective
(1)This section applies if —
(a)a document is lodged electronically under the Electronic Conveyancing Act 2014 section 7(1); and
(b)for any reason it is impracticable to properly capture the data in the document.
(2)If this section applies —
(a)the Registrar may refuse to complete or to proceed with the registration of the document or, as the case requires, to make any entry or do any other act in relation to the document; and
(b)the Registrar must —
(i)notify the refusal to the subscriber lodging the document; and
(ii)request the subscriber to resubmit the document.
(3)If subsection (2) applies —
(a)the priority of the document is not affected as long as it is resubmitted within 2 months after the date on which it was lodged or any longer period the Registrar allows; and
(b)if the document is not resubmitted in accordance with this section within the period applicable under paragraph (a), it is to be taken never to have been lodged.
(4)If subsection (3)(b) applies to the document, then —
(a)if the impracticability of properly capturing the data in the document was not due, in whole or in part, to any fault on the part of the subscriber that lodged the document or any person for whom the subscriber was acting at the time of lodging the document, or the ELNO that operates the ELN by means of which the document was lodged, all fees paid on the lodging of the document must be refunded; and
(b)if paragraph (a) does not apply —
(i)the Registrar must retain from the fees paid on the lodging of the document (the fees) the amount prescribed by the regulations (the prescribed amount); and
(ii)the prescribed amount is forfeited and must be dealt with under section 190; and
(iii)the amount (if any) that is the difference between the fees and the prescribed amount must be returned to the subscriber that lodged the document when the document is withdrawn from lodgment.
(5)This section is in addition to the powers conferred by section 192.
[Section 238B inserted: No. 2 of 2014 s. 89.]
239.Inspection of Register and related documents; obtaining copies and print‑outs
(1)A person may, on payment of the prescribed fee and during such times as are prescribed by regulation, inspect any of the following —
(a)a registered certificate of title;
(b)a plan or diagram relating to land that is the subject of a certificate of title, including a graphic;
(bb)a scheme document or any item registered or recorded for a strata titles scheme under the Strata Titles Act 1985;
(c)in relation to land that is the subject of a digital title, the record of an endorsement referred to in section 48(1)(b) in relation to the land;
(d)in relation to land that is the subject of a paper title, the record of an entry referred to in section 48(1)(c) in relation to a sublease of the land;
(e)a registered Crown lease or Crown grant;
(f)a registered instrument;
(g)a caveat, power of attorney or discharge of mortgage lodged or deposited under this Act;
(h)a —
(i)notification or memorial under this or any other Act; or
(ii)warrant or writ of execution or court order,
that is registered, entered or otherwise noted on a certificate of title or lodged or deposited under this Act;
(i)an application made under this Act;
(j)a memorandum filed under section 54;
(k)any other document or information that is derived from records and dealings in relation to land under the operation of this Act and is prescribed for the purposes of this subsection by the regulations.
(2)The Registrar may produce to a person who wishes to inspect any document referred to in subsection (1) a copy of the document that the person wishes to inspect and the copy may be in such medium as is approved by the Registrar for the purposes of this section.
(3)The Registrar, on receiving payment of the prescribed fee, shall provide to a person applying for the same a copy or print‑out of any document referred to in subsection (1) and the copy or print‑out may be in an approved form.
(4)Subsection (5) applies if —
(a)2 or more counterpart documents are lodged electronically under the Electronic Conveyancing Act 2014 section 7(1); and
(b)those counterpart documents are consolidated electronically into one document, with or without the addition of further material.
(5)If this subsection applies —
(a)the consolidated document, but not those counterpart documents, is available for inspection in accordance with subsection (1); and
(b)a copy of the consolidated document, but not of the counterpart documents, may be produced in accordance with subsection (2); and
(c)a copy or print‑out of the consolidated document, but not of the counterpart documents, is available for purchase in accordance with subsection (3); and
(d)section 239B applies as if the consolidated document, but not the counterpart documents, were a document referred to in subsection (1).
[Section 239 inserted: No. 6 of 2003 s. 80; amended: No. 59 of 2004 s. 140; No. 60 of 2006 s. 116; No. 2 of 2014 s. 90; No. 30 of 2018 s. 204.]
[239A.Deleted: No. 60 of 2006 s. 117.]
239B.Evidentiary documents as to current and historical matters
(1)The Registrar, on receiving payment of the prescribed fee, shall provide to a person applying for the same —
(a)a certified copy or print‑out of any document referred to in section 239(1); or
(b)a certified document in an approved form that sets out the matters that, at a particular point in time, were contained or recited or incorporated in or endorsed on a document referred to in section 239(1).
(2)A document referred to in subsection (1)(a) or (b) shall be admissible as evidence in any court or by any person having by law or by consent of parties authority to receive evidence as prima facie proof of the document and of the matters set out in the document.
[Section 239B inserted: No. 6 of 2003 s. 82; amended: No. 2 of 2014 s. 91.]
(1)For the purposes of this Act, service of a notice on a person may be effected —
(a)by delivering the notice to the person personally; or
(b)by sending the notice by letter (by pre‑paid post) to the person’s address; or
(c)where a person has specified in a caveat or in an approved form that notices under this Act may be served on him by facsimile transmission to the number of the person’s facsimile machine, by facsimile transmission to such number; or
(d)by sending the notice by electronic means in accordance with the regulations.
(2)For the purposes of subsection (1)(b), address in relation to a person means —
(a)the address specified by the person in a caveat or in an approved form as the address to which notices to that person are to be sent;
(b)if an address has not been specified under paragraph (a), the address entered in the Register as the person’s address;
(c)in the case of a natural person where an address has not been specified under paragraph (a) or entered in the Register, the person’s last known address;
(d)in the case of a person other than a natural person where an address has not been specified under paragraph (a) or entered in the Register, any of the following —
(i)the person’s registered office (if any) within the meaning of the Corporations Act 2001 of the Commonwealth, the person’s principal place of business or the person’s principal office in the State; or
(ii)the address of the office of any administrator, manager, receiver or liquidator appointed under the Corporations Act 2001 of the Commonwealth in relation to the person if that address is the most recent address lodged with the Australian Securities and Investments Commission for the administrator, manager, receiver or liquidator.
(3)Unless the contrary is proved, in relation to service by or on behalf of the Registrar or the Commissioner —
(a)service by letter shall be deemed to be effected at the time when the letter would have been delivered in the ordinary course of post; and
(b)service by facsimile transmission shall be deemed to be effected at the time when a facsimile machine at the office of the Authority prints a statement showing that —
(i)the transmission has been made to another facsimile machine; and
(ii)the other machine has received the transmission;
and
(c)service by electronic means is deemed to be effected as prescribed in the regulations.
(4)For the purposes of subsection (3)(a), a letter shall be deemed to be delivered in the ordinary course of post —
(a)to an address in the metropolitan region, on the next business day after the letter is posted; or
(b)to an address outside the metropolitan region but in the State, on the second business day after the letter is posted; or
(c)to an address outside the State but in Australia, on the third business day after posting; or
(d)to an address outside Australia, on the 14th business day after posting.
(5)Where the Commissioner or Registrar attempts to serve a notice by sending it in a letter but the letter is returned by the post office because the letter is unable, for any reason, to be delivered to the person to whom it is addressed, the Commissioner or Registrar, as the case requires, may if he thinks fit in the circumstances and having regard to the provisions of this Act —
(a)direct any further notice to be served; or
(b)direct that the notice be served in such other manner as the Commissioner or Registrar, as the case requires, thinks is appropriate; or
(c)proceed without the notice being served.
[Section 240 inserted: No. 81 of 1996 s. 142; amended: No. 26 of 1999 s. 106(5); No. 10 of 2001 s. 220; No. 60 of 2006 s. 118(1); No. 2 of 2014 s. 92.]
240A.Notification of change of address, fax number or way of receiving notices electronically
(1)In this section —
notification details means —
(a)an address for service; or
(b)a facsimile number for service; or
(c)a way of receiving notices electronically.
(2)A person may apply to the Registrar to —
(a)change the record of the person’s notification details that have been specified in an approved form for the purposes of section 240 or in a caveat; or
(b)notify the Registrar of any change to the notification details recorded in the Register in respect of the person.
(3)An application must be in an approved form and accompanied by the prescribed fee.
(4)On receiving an application, the Registrar, if satisfied that it would be in order to do so, must alter the notification details accordingly.
[Section 240A inserted: No. 2 of 2014 s. 93.]
[241.Deleted: No. 24 of 2000 s. 42(4).]
242.Interests disposed of or created by court order etc., registration of
(1A)Where by the operation of any statute or statutory or other power or by virtue of any vesting order of any court or judge or an order appointing a person to convey or of a vesting declaration appointment or other assurance an interest in land under this Act being an interest capable of being registered is disposed of or created the registered proprietor shall subject to proper provision being made for payment of costs, be bound to give effect to the disposition.
(1B)If the registered proprietor is unable or refuses to make the requisite transfer or other disposition under this Act or cannot be found or if for any other reason a transfer or other disposition by him under this Act cannot be obtained within a reasonable time then the Registrar upon the direction of the Commissioner may give effect thereto in the Register by making an entry therein containing such particulars relating to such disposition as he may consider necessary.
(1C)The disposition shall take effect in like manner as nearly as may be as if it had been made by the registered proprietor by transfer or other registered disposition.
(1D)Nothing in subsections (1A) to (1C) shall prejudicially affect the rights of a personal representative in relation to the estate of the deceased.
(2)This section shall apply whether the disposition to which the registered proprietor is bound to give effect subject as aforesaid is made before or after the commencement of this Act.
(3)This section shall not apply in those cases in which other provision has been made for giving effect in the Register to any disposition.
(4)In this section, except where a contrary intention appears —
disposition includes a disclaimer surrender or release; and
registered disposition means a disposition which takes effect under the powers conferred by this Act on the registered proprietor of land by way of transfer, lease, mortgage, charge, carbon right, carbon covenant or tree plantation agreement or otherwise.
[Section 242 inserted: No. 17 of 1950 s. 70; amended: No. 81 of 1996 s. 145(1); No. 56 of 2003 s. 21; No. 19 of 2010 s. 51.]
243.Revesting of land held by Crown in fee simple as Crown land
(1)The Registrar may, on registering a ministerial order made under section 82 of the Land Administration Act 1997 —
(a)cancel the certificate of title of the land revested; and
(b)by notice in writing served on the person having possession of the duplicate of that certificate of title, require that person to deliver up that duplicate to the Registrar; and
(c)cancel that duplicate.
(2)If a person does not comply with a requisition made against him under subsection (1)(b) within 30 days after the service on him of the relevant notice, the Registrar may act against the person under section 76(1) as if that requisition were a requisition made against the person under that section and section 76(2) applies accordingly.
[Section 243 inserted: No. 31 of 1997 s. 132.]
Part XV — Transitional provisions for Electronic Conveyancing Act 2014
[Heading inserted: No. 2 of 2014 s. 94.]
In this Part —
amending Act means the Electronic Conveyancing Act 2014.
[Section 244 inserted: No. 2 of 2014 s. 94.]
245.Transitional provision for s. 52(2)
An instrument referred to in section 52(2) (as replaced by the amending Act) includes an instrument presented for registration before the day on which the amending Act section 67 comes into operation.
[Section 245 inserted: No. 2 of 2014 s. 94.]
246.Transitional provision for s. 105(4)
Section 105(4) (as inserted by the amending Act) applies only to and in relation to instruments registered after the amending Act section 73 comes into operation.
[Section 246 inserted: No. 2 of 2014 s. 94.]
247.Transitional provision for s. 182A (requirements)
(1)This section applies to any statement that —
(a)is included in any practice manual, customer information bulletin or other similar publication issued by the Authority before the amending Act section 79 comes into operation; and
(b)relates to any matter in relation to which a requirement can be determined under section 182A(1); and
(c)specifies or has the effect of specifying a requirement in relation to one of those matters; and
(d)has not been superseded or overridden by any other statement included in any publication of the kind mentioned in paragraph (a) and issued before the amending Act section 79 comes into operation.
(2)A statement to which this section applies is to be taken to be a requirement determined under section 182A in the same terms as the original statement, and to continue in force under and subject to this Act.
[Section 247 inserted: No. 2 of 2014 s. 94.]
First Schedule — Acts repealed
[s. 2]
[Heading inserted: No. 19 of 2010 s. 38(4).]
|
Date |
Title of Act |
Extent of Repeal |
|
38 Vict. No. 13
42 Vict. No. 15
42 Vict. No. 17
43 Vict. No. 17
44 Vict. No. 23
47 Vict. No. 22 |
“The Transfer of Land Act 1874.”
“The Transfer of Land Act 1874, Amendment Act 1878.”
“An Act to enforce the payment of Duty on the Transfer of Land.”
“An Act to further amend ‘The Transfer of Land Act 1874’.”
“The Transfer of Land Act 1874, Amendment Act 1880.”
“The Transfer of Land Amendment Act 1883.” |
So much as is not already repealed
So much as is not already repealed
The whole
The whole
The whole
The whole |
Second Schedule — Application to bring land under Act
[s. 20]
[Heading inserted: No. 19 of 2010 s. 38(5).]
Western Australia
Application to bring Land under the operation of the Transfer of Land Act 1893
To the Registrar of Titles
I [insert name and address] hereby apply to have the land hereinafter described brought under the operation of the Transfer of Land Act 1893. And I declare —
1.That I am the owner of an estate in fee simple in possession [or of an estate of freehold in possession for my life or otherwise as the case may require] in All That
[if the land be part only of that granted by the Crown add which land contains (insert area) or thereabouts and is described in the document numbered
in the Schedule hereto or otherwise after the word thereabouts set forth a sufficient description to identify the land.]
2.That such land including all buildings and other improvements thereon is of the value of $ and no more.
3.That there are no documents or evidences of title affecting such land in my possession or under my control other than those included in the Schedule hereto.
4.That I am not aware of any mortgage or encumbrance or lease affecting the said land or that any other person hath any estate or interest therein at law or in equity in possession remainder reversion or expectancy [if there be any add other than as follows and set the same forth.]
5.That the said land is occupied [if unoccupied prefix un to occupied if occupied add by whom and state the name and address of the occupant and the nature of his occupancy.]
6.That the names and addresses so far as known to me of the occupants of all lands contiguous to the said land are as follows: —
7.That the names and addresses so far as known to me of the owners of all lands contiguous to the said land are as follows: —
Dated this day of , 20
|
Made and subscribed at in the presence of
|
|
[The applicant, if in the State, to sign before the Registrar, an Assistant Registrar or any person who, under the Oaths, Affidavits and Statutory Declarations Act 2005, is an authorised witness for an affidavit made in the State; if out of the State, to sign before any person who, under that Act, is an authorised witness for an affidavit made out of the State.]
Schedule of Documents Referred To.
[Second Schedule amended: No. 17 of 1950 s. 71; No. 113 of 1965 s. 4; No. 81 of 1996 s. 146(3); No. 24 of 2005 s. 63.]
Third Schedule — Notice to be posted on land
[s. 24]
[Heading inserted: No. 19 of 2010 s. 38(6).]
Western Australia
Notice
Application has been made to bring the land hereunder described under the Transfer of Land Act 1893 on a title claimed by possession (insert if applicable “as to part”).
The number of the application is
Date of lodging in Authority
Name address and occupation of applicant
Land applied for.
(Here insert description the same as in advertisement.)
Dated this day of , 20
(Signature of applicant or his agent.)
[Third Schedule amended: No. 81 of 1996 s. 147; No. 60 of 2006 s. 118(1).]
Fourth Schedule — Application to be registered as proprietor by possession
[s. 222]
[Heading inserted: No. 19 of 2010 s. 38(7).]
Western Australia
Application to be registered as Proprietor by possession of Land already under the Transfer of Land Act 1893.
To the Registrar of Titles
I (insert name and address) do hereby apply to be registered as proprietor of all that (insert description of land according to the existing certificate or if part only of the land certificated to be applied for state the fact and set forth in metres the boundaries and refer to a map). I claim to have acquired an estate in fee simple in possession in such land under the circumstances and on the grounds following: — (here set forth the circumstances and grounds of claim.)
And I declare
1.That such land including all buildings and other improvements thereon is of the value of $ and no more.
2.That there are no documents or evidences of title affecting such land in my possession or control other than those included in the Schedule hereto.
3.That the said land is occupied (if unoccupied prefix un to occupied, if occupied add by whom and state the name and address of the occupant and the nature and period of his occupancy.)
4.That the names and addresses so far as known to me of the occupants of all lands contiguous to the said land are as follows: —
5.That the names and addresses so far as known to me of the owners of all lands contiguous to the said land are as follows: —
Dated this day of , 20
|
Made and subscribed at in the presence of
|
|
[The applicant, if in the State, to sign before the Registrar, an Assistant Registrar or any person who, under the Oaths, Affidavits and Statutory Declarations Act 2005, is an authorised witness for an affidavit made in the State; if out of the State, to sign before any person who, under that Act, is an authorised witness for an affidavit made out of the State.]
Schedule of Documents Referred to.
[Fourth Schedule amended: No. 113 of 1965 s. 4; No. 94 of 1972 s. 4; No. 81 of 1996 s. 146(2); No. 24 of 2005 s. 63.]
[Fifth, Sixth and Seventh Schedules deleted: No. 81 of 1996 s. 151.]
[Eighth Schedule deleted: No. 26 of 1999 s. 106(6).]
Ninth Schedule — Creation of rights of carriage‑way
[s. 65]
[Heading inserted: No. 19 of 2010 s. 38(8).]
Western Australia
Creation of Right of Carriage‑way in a Transfer of Freehold Land
Together with full and free right and liberty to and for the transferee hereunder and to and for the registered proprietor or proprietors for the time being of the land hereby transferred or any part thereof and his her and their tenants servants agents workmen and visitors to go pass and repass at all times hereafter and for all purposes and either with or without animals or vehicles into and out of and from the said land or any part thereof through over and along the road or way or several roads or ways delineated and indicated by a symbol on the said map.
Creation of Right of Carriage‑way in a Lease of Freehold Land
Together with full and free right and liberty to and for the said lessee and his transferees proprietors for the time being of the land hereby leased or any part thereof and his her and their tenants servants agents workmen and visitors to go pass and repass at all times hereafter during the continuance of this lease and for all purposes and either with or without animals or vehicles into and out of and from the said land and any part thereof through over and along the road or way or several roads or ways delineated and indicated by a symbol on the said map.
[Ninth Schedule amended: No. 81 of 1996 s. 148 7.]
Tenth Schedule — Short and long forms of certain easements
[s. 65(3)]
[Heading inserted: No. 19 of 2010 s. 38(9).]
|
Column 1 Short form description |
Column 2 Long form description |
|
an easement for a right of footway |
the right of every person who, for the time being, is entitled to an estate or interest in possession in the land indicated as the dominant tenement or any part of the land with which the right is capable of enjoyment or in the case of an easement in gross the person having the benefit of the easement and the right for that person and the person’s employees, agents and visitors, at any time, to go, pass and repass on foot for any purpose, without vehicles, to and from the dominant tenement or any such part of it by the way delineated in this plan /diagram /instrument |
|
an easement for water supply purposes |
the right of every person, who for the time being, is entitled to an estate or interest in possession in the land indicated as the dominant tenement or any part of the land with which the right is capable of enjoyment or in the case of an easement in gross the person having the benefit of the easement and the right for that person and the person’s employees and agents, at any time, to break the surface of, dig, open up and use that part of the land within the servient tenement (described for that purpose in this plan /diagram /instrument) for the purpose of laying down, fixing, taking up, repairing, re‑laying, replacing or examining pipes and of using and maintaining those pipes for water supply purposes and to enter that land at any time (if necessary with vehicles and equipment) for any of those purposes |
|
an easement for drainage purposes |
the right of every person who, for the time being, is entitled to an estate or interest in possession in the land indicated as the dominant tenement or any part of the land with which the right is capable of enjoyment or in the case of an easement in gross the person having the benefit of the easement and the right for that person and the person’s employees and agents, at any time, to break the surface of, dig, open up and use that part of the land within the servient tenement (described for that purpose in this plan /diagram /instrument) for the purpose of laying down, fixing, taking up, repairing, re‑laying, replacing or examining drains or drainage pipes and of using and maintaining those drains and drainage pipes for drainage purposes and to enter that land at any time (if necessary with vehicles and equipment) for any of those purposes |
|
an easement for gas supply purposes |
the right of every person who, for the time being, is entitled to an estate or interest in possession in the land indicated as the dominant tenement or any part of the land with which the right is capable of enjoyment or in the case of an easement in gross the person having the benefit of the easement and the right for that person and the person’s employees and agents, at any time, to break the surface of, dig, open up and use that part of the land within the servient tenement (described for that purpose in this plan /diagram /instrument) for the purpose of laying down, fixing, taking up, repairing, re‑laying, replacing or examining pipes and of using and maintaining those pipes for the purpose of supplying gas and to enter that land at any time (if necessary with vehicles and equipment) for any of those purposes |
|
an easement for the transmission of electricity by overhead cable |
the right of every person who, for the time being, is entitled to an estate or interest in possession in the land indicated as the dominant tenement or any part of the land with which the right is capable of enjoyment or in the case of an easement in gross the person having the benefit of the easement and the right for that person and the person’s employees and agents, at any time — |
|
|
(a)to suspend cables across that part of the land within the servient tenement (described for that purpose in this plan/diagram /instrument) and construct supports for those cables; |
|
|
(b)to inspect, alter, maintain, repair and replace those cables and supports; |
|
|
(c)to use the cables for the purpose of transmitting electricity; |
|
|
(d)to break the surface of, dig, open up and use the land for any of the purposes referred to in paragraph (a), (b) or (c); and |
|
|
(e)to enter the land at any time (if necessary with vehicles and equipment) for any of the purposes referred to in paragraph (a), (b), (c) or (d) |
|
an easement for the transmission of electricity by underground cable |
the right of every person who, for the time being, is entitled to an estate or interest in possession in the land indicated as the dominant tenement or any part of the land with which the right is capable of enjoyment or in the case of an easement in gross the person having the benefit of the easement and the right for that person and for the person’s employees and agents, at any time — |
|
|
(a)to lay under the surface of that part of the land within the servient tenement (described for that purpose in this plan /diagram /instrument) ducts, pipes and cables; |
|
|
(b)to inspect, alter, maintain, repair and replace those ducts, pipes and cables; |
|
|
(c)to use the cables for the purpose of transmitting electricity; |
|
|
(d)to break the surface of, dig, open up and use the land for any of the purposes referred to in paragraph (a), (b) or (c); and |
|
|
(e)to enter the land at any time (if necessary with vehicles and equipment) for any of the purposes referred to in paragraph (a), (b), (c) or (d) |
|
an easement for the transmission of television signals by underground cable |
the right of every person who, for the time being, is entitled to an estate or interest in possession in the land indicated as the dominant tenement or any part of the land with which the right is capable of enjoyment or in the case of an easement in gross the person having the benefit of the easement and the right for that person and the person’s employees and agents, at any time — |
|
|
(a)to lay under the surface of that part of the land within the servient tenement (described for that purpose in this plan /diagram /instrument) ducts, pipes and cables; |
|
|
(b)to inspect, alter, maintain, repair and replace those ducts, pipes and cables; |
|
|
(c)to use the cables for the purpose of transmitting television signals; |
|
|
(d)to break the surface of, dig, open up and use the land for any of the purposes referred to in paragraph (a), (b) or (c); and |
|
|
(e)to enter the land at any time (if necessary with vehicles and equipment) for any of the purposes referred to in paragraph (a), (b), (c) or (d) |
|
party wall rights |
the right of every person who, for the time being, is entitled to an estate or interest in possession in the land indicated as the dominant tenement or any part of the land with which the right is capable of enjoyment or in the case of an easement in gross the person having the benefit of the easement to use a party wall within or bordering the servient tenement (described for that purpose in this plan /diagram /instrument) for the support of the walls, floors, ceilings, roofs or other parts of any building built or placed on the dominant tenement |
|
an easement for eaves and gutters |
the right of every person who, for the time being, is entitled to an estate or interest in possession in the land indicated as the dominant tenement or any part of the land with which the right is capable of enjoyment or in the case of an easement in gross the person having the benefit of the easement and the right for that person and the person’s employees and agents, at any time, to construct, inspect, alter, maintain, repair, replace and use eaves, gutters and downpipes over that part of the land within the servient tenement (described for that purpose in this plan /diagram /instrument) and to enter that land at any time for those purposes |
|
an easement for sewerage purposes |
the right of every person who, for the time being, is entitled to an estate or interest in possession in the land indicated as the dominant tenement or any part of the land with which the right is capable of enjoyment or in the case of an easement in gross the person having the benefit of the easement and the right for that person and the person’s employees and agents, at any time, to break the surface of, dig, open up and use that part of the land within the servient tenement (described for that purpose in this plan /diagram /instrument) for the purpose of laying down, fixing, taking up, repairing, re‑laying, replacing or examining pipes and of using and maintaining those pipes for sewerage purposes and to enter that land at any time (if necessary with vehicles and equipment) for any of those purposes |
|
an easement for motor vehicle parking |
the right of every person who, for the time being, is entitled to an estate or interest in possession in the land indicated as the dominant tenement or any part of the land with which the right is capable of enjoyment or in the case of an easement in gross the person having the benefit of the easement and the right for that person and the person’s employees, agents and visitors, at any time, to park motor vehicles for the periods and for the times specified in this plan /diagram /instrument |
[Tenth Schedule inserted as Schedule 9A: No. 81 of 1996 s. 149; amended: No. 6 of 2003 s. 83; renumbered as Tenth Schedule: No. 19 of 2010 s. 38(9).]
[Eleventh Schedule deleted: No. 81 of 1996 s. 151.]
Twelfth Schedule — Short form of covenants by lessee
[s. 94]
[Heading inserted: No. 19 of 2010 s. 38(10).]
|
Column One |
Column Two |
|
1.The lessee will not transfer or sublet. |
1.The lessee his executors administrators or transferees will not during the said term transfer, assign, or sublet the premises hereby leased or any part thereof or otherwise by any act or deed procure the said premises or any part thereof to be transferred or sublet without the consent in writing of the lessor or his transferees first had and obtained. |
|
2.The lessee will fence. |
2.The lessee his executors administrators or transferees will during the continuance of the said term erect and put up on the boundaries of the said land or upon those boundaries upon which no substantial fence now exists a good and substantial fence. |
|
3.The lessee will cultivate. |
3.The lessee his executors administrators or transferees will at all times during the said term cultivate use and manage in a proper and husband like manner all such parts of the land as are now or shall hereafter with the consent in writing of the said lessor or his transferees be broken up or converted into tillage and will not impoverish or waste the same. |
|
4.The lessee will not cut timber. |
4.The lessee his executors and administrators or transferees will not cut down fell injure or destroy any growing or living timber or timber‑like trees standing and being upon the said land without the consent in writing of the said lessor or his transferees. |
|
5.The lessee will insure against fire in the name of the lessor. |
5.The lessee his executors administrators or transferees will insure and during the said term keep insured against loss or damage by fire in the name of the lessor or his transferees in some public insurance office approved of by him or them to the amount of their full value all buildings which shall for the time being be erected on the said land and which shall be of a nature or kind capable of being insured against damage by fire and will when required deposit with the lessor or his transferees the policy of such insurance and within 7 days after each premium shall become payable the receipt for such premium and on any breach or non‑observance of this covenant the lessor or his transferees may without prejudice to and concurrently with the powers granted to him and them by this lease and by the Transfer of Land Act 1893, insure such buildings and the costs of effecting such insurance shall during the said term be a charge upon the said land. |
|
|
All moneys which shall be received under or by virtue of any such insurance shall be laid out and expended in making good the loss or damage. |
|
6.The lessee will paint outside every third year. |
6.The lessee his executors administrators or transferees will in every third year during the continuance of the said term paint all the outside woodwork and ironwork belonging to the leased property with 2 coats of proper oil colours in a workmanlike manner. |
|
7.The lessee will paint and paper inside every fourth year. |
7.The lessee his executors administrators or transferees will in every fourth year during the continuance of the said term paint the inside wood iron and other work now or usually painted with 2 coats of proper oil colours in a workmanlike manner and also re‑paper with paper of the same quality as at present such parts of the said premises as are now papered and also whiten or colour such parts of the said premises as are now whitened or coloured respectively. |
|
8.The lessee will not use the premises as a shop. |
8.The lessee his executors administrators or transferees will not convert use or occupy the said premises or any part thereof into or as a shop warehouse or other place for carrying on any trade or business whatsoever or permit or suffer the said premises or any part thereof to be used for any such purpose or otherwise than as a private dwelling‑house without the consent in writing of the said lessee or his transferees. |
|
9.The lessee will not carry on any offensive trade. |
9.The lessee his executors administrators or transferees will not at any time during the said term use exercise or carry on or permit or suffer to be used exercised or carried on in or upon the said premises or any part thereof any noxious noisome or offensive art trade business occupation or calling and no act matter or thing whatsoever shall at any time during the said term be done in or upon the said premises or any part thereof which shall or may be or grow to the annoyance nuisance grievance damage or disturbance of the occupiers or owners of the adjoining lands and properties. |
|
10.The lessee will carry on the business of publican and conduct the same in an orderly manner. |
10.The lessee his executors administrators or transferees will at all times during the continuance of the said term use exercise and carry on in and upon the premises the trade or business of a licensed victualler or publican and seller of fermented and spirituous liquors and keep open and use the house inn and buildings standing and being upon the land as and for an inn or public‑house for the reception accommodation and entertainment of travellers guests and other persons resorting thereto or frequenting the same and manage or conduct such trade or business in a quiet and orderly manner and will not do or commit or suffer to be done or committed any act matter or thing whatsoever whereby or by means whereof any licence shall be allowed to expire or to become void or shall or may be liable to be forfeited suspended taken away or refused. |
|
11.The lessee will apply for renewal of licence. |
11.The lessee his executors administrators or transferees will from time to time during the continuance of the said term at the proper times for that purpose apply for and endeavour to obtain such licence or licences as is or are or may be necessary for carrying on the said trade or business of a licensed victualler or publican in and upon the said premises and keeping the said house or inn open as and for an inn or public‑house as aforesaid. |
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12.The lessee will facilitate the transfer of licence. |
12.The lessee his executors administrators or transferees will at the expiration or other sooner determination of the said term sign and give such notice or notices and allow such notice or notices of a transfer or renewal of any licence as may be required by law to be affixed to the said house or inn to be thereto affixed and remain so affixed during such time or times as shall be necessary or expedient in that behalf and generally will do and perform all such acts matters and things as shall be necessary to enable the said lessor or his transferees or any person authorised by him or them to obtain the transfer of any licence then existing and in force or the renewal of any licence or any new licence. |
[Thirteenth, Fourteenth and Fifteenth Schedules deleted: No. 81 of 1996 s. 151.]
Sixteenth Schedule — Short form of covenant by mortgagor to insure
[s. 115]
[Heading inserted: No. 19 of 2010 s. 38(11).]
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Column One |
Column Two |
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That I will insure against fire in the name of the mortgagee. |
That I my heirs executors administrators or transferees will insure and so long as any money shall remain secured by this mortgage kept insured against loss or damage by fire in the name of the mortgagee or his transferees in some public insurance office to be approved by him or them all buildings which shall for the time being be erected on the said land and which shall be of a nature or kind capable of being so insured to the amount either of the principal money hereby secured or of the full value of such buildings and will when required deposit with the mortgagee or his transferees the policy of such insurance and within 7 days after each premium shall become payable the receipt for such premium. And that the moneys which shall be received on account of such insurance shall at his or their option be applied either in or towards satisfaction of the moneys secured by this mortgage or in rebuilding or reinstating under the superintendence of his or their surveyor the buildings destroyed or damaged. And that on any breach or non‑observance of this covenant he or they shall be at liberty to effect such insurance and continue the same for such period as may be deemed fit and the costs and expenses paid on account thereof shall be a charge upon the said land and bear interest at the same rate as if principal money overdue. |
[Seventeenth and Eighteenth Schedules deleted: No. 81 of 1996 s. 151.]
Nineteenth Schedule — Power of Attorney
[s. 143(1)]
[Heading inserted: No. 19 of 2010 s. 38(12).]
WESTERN AUSTRALIA
Transfer of Land Act 1893 as amended. No.
POWER OF ATTORNEY
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Full name, address and occupation of donor. |
I |
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Full name, address and occupation of donee. |
do hereby appoint |
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my Attorney to sell to any person all or any lands leases mortgages whether extended or not or charges or interests in land whether now belonging to me or which shall hereafter belong to me under or by virtue of the Transfer of Land Act 1893 or of which I am now or shall hereafter be the proprietor or owner under the said Act. Also to purchase land and interests in land. Also to mortgage all or any such lands or leases or interests for any sum at any rate of interest. Also to charge the same with any annuity of any amount. Also to lease all or any such lands as shall be Crown or freehold tenure for any term of years not exceeding 21 years in possession at any rent. Also to surrender or obtain or accept the surrender of any lease in which I am or may be interested. Also to discharge and partially discharge mortgages and charges. Also to extend mortgages and Leases. Also to lodge and withdraw caveats either wholly or partially. Also to grant and surrender Easements. Also to exercise and execute all powers which now are or shall hereafter be vested in or conferred on me as a lessor, mortgagee or annuitant under the said Act.* |
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*Or otherwise according to the nature and extent of the powers intended to be conferred. |
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And for me and in my name to sign all such Transfers instruments and other documents and do all such acts matters and things as may be necessary or expedient for carrying out the powers hereby given and for recovering all sums of money that are now or may become due or owing to me in respect of the premises and for enforcing or varying any contracts covenants or conditions binding upon any lessee tenant or occupier of the said lands or upon any other person in respect of the same and for recovering and maintaining possession of the said lands and for protecting the same from waste damage or trespass. |
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Dated thisday of20 |
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(a) Signature of Donor/s. |
Signed(a)(c) |
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(b) Signature, address and occupation of witness. |
in the |
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Signed(a) |
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in the |
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(c) Add attestations as required. |
(c) |
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NOTES 1.A separate attestation should be made by each person signing this document; i.e. each signature should be separately witnessed. 2.If executed within the Commonwealth of Australia or its Territories witnesses must be 21 years of age or over and not a party to this document. If executed outside the Commonwealth of Australia or its Territories the witness should be one of the persons listed in section 145 of the Transfer of Land Act 1893. 3.No alteration should be made by erasure. The words rejected should be scored through and those substituted typed or written above them, the alteration being initialled by the persons signing this document and their witnesses. |
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No.
POWER OF ATTORNEY |
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FEES (office use) |
$ |
c |
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Parties ............................................................... ............................................................................. .............................................................................
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Lodged by Address Phone No.
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Use this space for instructions if any documents are to issue to other than lodging party.
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Duplicates, Declarations, etc., lodged with this document. (To be filled in by person lodging.) |
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1. .......................... 2. .......................... 3. .......................... 4. .......................... 5. .......................... 6. .......................... |
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Received items
No’s. ....................
Rec. Clerk.
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BELOW THIS LINE FOR OFFICE USE ONLY
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Deposited at ....................................... o’clock this .................... day of ............................... 20 ........
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Initials |
REGISTRAR OF TITLES |
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EXAMINED. |
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[Nineteenth Schedule inserted: Gazette 24 Feb 1970 p. 544‑5; amended: No. 31 of 1997 s. 133.]
[Twentieth to Twenty‑third Schedules deleted: No. 81 of 1996 s. 151.]
Twenty‑fourth Schedule — Form of application to amend certificate or amend or replace relevant graphic
[s. 172]
[Heading inserted: No. 19 of 2010 s. 38(13).]
Western Australia
Application to Amend Certificate or to amend or replace a relevant graphic: s. 170
[Heading amended: No. 6 of 2003 s. 84(1).]
To the Registrar of Titles
1. I hereby apply to have the certificate of title No.
amended or graphic [state identifying details] amended or replaced in the following particulars: —
[State the nature of proposed amendment or replacement and in a case in which the description in the certificate or graphic is erroneous or imperfect on the face of it add the words on the ground that the certificate or graphic is erroneous or imperfect on the face of it].
2.That the land which would be described by the certificate when amended or a relevant graphic when amended or replaced in accordance with this application is now in my occupation, and has been actually and bona fide occupied by me or persons holding under me since —
3.That the nature of such occupation was as follows: — [State generally how and by whom the land has been occupied as for instance by myself as a farm and dwelling; by my tenants A.B. and C.D. as shops or partly by me as a dwelling and partly by my tenant A.B. as a shop].
4.That the names and addresses so far as known to me of the occupants of all land contiguous to the land so occupied by me are as follows: —
5.That the names and addresses so far as known to me of the owners of all lands contiguous to the land so occupied by me as follows: —
6.That to the best of my knowledge and belief the reasons why the description of the land in the said certificate or graphic does not accord with the description of the land so occupied by me are the following: — [Set out reasons].
Dated the day of 20
Made and subscribed at in the presence of
Application to amend certificate or to amend or replace a relevant graphic: s. 171
[Heading amended: No. 6 of 2003 s. 84(5).]
To the Registrar of Titles.
1.I the registered proprietor of the land which is described as follows in the certificate of title No. — [set out full particulars as in certificate] or graphic [state identifying details] — apply to have a certificate amended or a graphic amended or replaced in the following particulars: — [State the nature of the proposed amendment or replacement and mention the number of every certificate or identifying details of each relevant graphic and the name of every registered proprietor whose certificate of title or relevant graphic would be affected by the proposed amendment or replacement].
2.That to the best of my knowledge and belief the discrepancy between the description in my certificate of title or graphic and that in the other certificates or graphics above mentioned is due to error in survey or misdescription and has arisen — [Give the supposed cause of discrepancy or state that the applicant is unable to assign any specific cause for the discrepancy].
3.That the title to the land affected by the proposed amendment or replacement has never been in contest between me as or as I believe any one from whom I claim and any other person in any proceeding under the Transfer of Land Act 1893 or in any court of law or equity.
4.That the land as described in my certificate or graphic has been actually and bona fide occupied by me and persons holding under me since —
5.That the nature of such occupation was as follows: — [State generally how and by whom the land has been occupied as for instance by myself as a farm and dwelling; by my tenants A.B. and C.D. as shops; or partly by me as a dwelling and partly by my tenant A.B. as a shop].
Dated the day of 20
Made and subscribed at in the presence of
[Twenty‑fourth Schedule amended: No. 81 of 1996 s. 145(2); No. 6 of 2003 s. 84.]
[Twenty-fifth Schedule deleted: No. 2 of 2014 s. 95.]
Twenty‑sixth Schedule — General conditions of sale
[s. 237]
[Heading inserted: No. 19 of 2010 s. 38(15).]
Table A
[Heading inserted: No. 19 of 2010 s. 38(15).]
1.The purchaser shall complete his purchase upon the day that the last of the acceptances or notes for purchase money become due; but he shall be entitled to the possession of the lot or lots purchased by him or to the receipt of the rents and profits thereof upon his acceptance of the title to such lot or lots; and if from any cause whatsoever his purchase shall not be completed at the time above specified the purchaser shall pay interest on such of his acceptances or notes as shall become overdue at the rate of 8% per annum to the time of completion without prejudice however to the vendor’s right under the sixth condition.
2.All roads or ways adjoining or leading to or from the land sold or shown on the existing certificate of title to the property the areas of which roads are not included in such certificate shall be deemed by the purchaser either to be appurtenant to such land or to have become public roads.
3.The certificate of title to the property sold shall be produced and a copy thereof may be made by the purchaser or his solicitor on application in that behalf to the vendor or his solicitor and the purchaser shall within 14 days after the day of sale deliver to the vendor or his solicitor a statement in writing of all objections or requisitions (if any) to or on the title or concerning any matter appearing on the particulars or conditions and in this respect time shall be of the essence of the contract. All objections or requisitions not included in such statements to be delivered within the time aforesaid shall be deemed absolutely waived by the purchaser and in default of such objections (if none) and subject only to such (if any) so delivered the purchaser shall be considered as having accepted the title and it shall be lawful for the auctioneer to pay over and deliver to the said vendor all sums of money paid and acceptances or notes given by the said purchaser on account of the purchase money without being liable to any action or other proceeding for recovery of the same.
4.In case the purchaser shall within the time aforesaid make any objection to or requisition on the title or otherwise which the vendor shall be unable or unwilling to remove or comply with and such objection or requisition shall be insisted on it shall be lawful for the vendor or his solicitor (whether he shall have attempted to remove such objection or to comply with such requisition or not and notwithstanding any negotiation or litigation in respect of the same) at any time by notice in writing to annul the sale and within 1 week after giving such notice to repay the purchaser the amount of his purchase money or so much thereof as shall have been paid in full satisfaction of all claims and demands whatsoever by the purchaser and also to return all unpaid acceptances given by the purchaser but without any interest costs or damages of any description.
5.If any mistake be made in the description or area of the property or if any other error whatsoever shall appear in the particulars of the property such mistake or error shall not annul the sale; but a compensation or equivalent to be settled by 2 referees mutually appointed in writing or their umpire shall be given or taken as the case may require. The party discovering such mistake or error to give notice in writing thereof to the other party within 7 days after such discovery and each party within 7 days after such notice shall appoint in writing a referee and if either party shall refuse to appoint a referee within the term above specified the referee of the other party alone may proceed in the matter and make a final decision. If 2 referees be appointed they are to nominate an umpire in writing before they enter upon the business and the decision of such referee or umpire as the case may be shall be final.
6.If the purchaser shall fail to comply with the above conditions or shall not pay the whole of the deposit or shall not give the acceptances or notes provided for by the contract or shall not duly pay the same or any of them his deposit money or so much thereof as shall have been paid shall be actually forfeited to the vendor who shall be at liberty without notice to rescind the contract and to re‑sell the property bought by the purchaser by public auction or private contract and the deficiency (if any) in price occasioned by such sale together with all expenses attending the same shall immediately be made good by the defaulter at this present sale and in case of non‑payment the amount of such deficiency and expenses shall be recoverable by the vendor as and for liquidated damages and it shall not be necessary previously to tender a transfer to the purchaser or the vendor may deduct and retain such deficiency and expenses out of the amount of any of the before‑mentioned acceptances or notes which shall then have been paid re‑paying unto such defaulter within 7 days after the completion of the sale the residue of such amount but without any interest and returning without any unnecessary delay any then unpaid acceptances or notes.
7.That the vendor will upon due payment of the full amount of purchase money sign a transfer of the property to the purchaser such transfer to be prepared by and at the expense of the purchaser.
8.That the purchaser shall pay or bear the expense of all duty under the Duties Act 2008 on or in respect of the acceptances or notes provided for by the contract and of the transfer to him.
9.The vendor shall not at any time be required by any purchaser or purchasers at the present sale to join in erecting any dividing fence upon any part of the land sold or offered for sale nor shall the vendor be liable at any time to contribute towards the expense of erecting any such dividing fence whether the land now offered for sale be sold or not; but this condition shall not prejudice or affect the rights of purchasers as to dividing fences as between themselves and all other parties except the vendor.
[Twenty‑sixth Schedule amended: No. 113 of 1965 s. 8; No. 12 of 2008 Sch. 1 cl. 38(2).]
[Twenty‑seventh Schedule deleted: No. 25 of 1909 s. 2.]
Twenty‑eighth Schedule — Application to register Crown lease
[s. 81B]
[Heading inserted: No. 19 of 2010 s. 38(16).]
Application to Register a Crown lease under the Transfer of Land Act 1893
To the Registrar of Titles —
I (insert name, address, and occupation) hereby apply to have the land hereinafter described brought under the operation of the Transfer of Land Act 1893. And I declare: —
1.That I am the lessee (or mortgagee or as the case may be) of a Crown lease of all that.
2.That there are no documents or evidences of title affecting such land in my possession or under my control other than those included in the Schedule hereto.
3.That I am not aware of any mortgage or encumbrance or sublease affecting the said land or that any other person has any estate or interest therein at law or in equity (if there are any add other than as follows and set the same forth).
Dated this day of 20
Made and subscribed at in the presence of —
[The applicant, if in the State, to sign before the Registrar, an Assistant Registrar or any person who, under the Oaths, Affidavits and Statutory Declarations Act 2005, is an authorised witness for an affidavit made in the State; if out of the State, to sign before any person who, under that Act, is an authorised witness for an affidavit made out of the State.]
Schedule of Documents referred to
[Twenty‑eighth Schedule inserted: No. 54 of 1909 s. 19 (as amended: No. 17 of 1950 s. 75); amended: No. 24 of 2005 s. 63.]
[Schedule titled The Last Schedule deleted: No. 17 of 1950 s. 74.]
This is a compilation of the Transfer of Land Act 1893 and includes amendments made by other written laws. For provisions that have come into operation, and for information about any reprints, see the compilation table. For provisions that have not yet come into operation see the uncommenced provisions table.
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Short title |
Number and year |
Assent |
Commencement |
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The Transfer of Land Act 1893 |
1893 (56 Vict. No. 14) |
13 Jan 1893 |
13 Jan 1893 |
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Transfer of Land Act 1893 Amendment Act 1896 12 |
1896 (60 Vict. No. 22) (as amended by No. 17 of 1950 s. 75) |
27 Oct 1896 |
27 Oct 1896 |
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Criminal Code Act 1902 s. 3 |
1902 (1 & 2 Edw. VII No. 14) |
19 Feb 1902 |
1 May 1902 (see s. 2 and 3) |
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Transfer of Land Act Amendment Act 1902 12 |
1902 (2 Edw. VII No. 10) (as amended by No. 17 of 1950 s. 75) |
18 Nov 1902 |
18 Nov 1902 |
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Stamp Act Amendment Act 1905 s. 20 |
20 of 1905 (5 Edw. VII No. 20) |
23 Dec 1905 |
1 Jan 1906 (see s. 2) |
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Licensed Surveyors Act 1909 s. 28 and 29 |
25 of 1909 (9 Edw. VII No. 21) |
29 Oct 1909 |
1 Jan 1910 (see s. 1) |
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Transfer of Land Act Amendment Act 1909 13 |
54 of 1909 (9 Edw. VII No. 50) (as amended by No. 28 of 1944 s. 3; No. 17 of 1950 s. 75) |
21 Dec 1909 |
2 May 1910 (see s. 1 and Gazette 4 Mar 1910 p. 649) |
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Transfer of Land Act Amendment Act 1911 12 |
26 of 1911 (1 Geo. V No. 37) (as amended by No. 17 of 1950 s. 75) |
16 Feb 1911 |
16 Feb 1911 |
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Transfer of Land Act Amendment Act 1917 |
32 of 1917 (8 Geo. V No. 13) |
11 Dec 1917 |
11 Dec 1917 |
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Transfer of Land Act Amendment Act 1920 |
30 of 1920 (11 Geo. V No. 30) |
31 Dec 1920 |
31 Dec 1920 |
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Transfer of Land Act Amendment Act 1925 |
5 of 1925 (16 Geo. V No. 5) |
24 Sep 1925 |
24 Sep 1925 |
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Transfer of Land Act Amendment Act 1929 12 |
14 of 1929 (20 Geo. V No. 12) (as amended by No. 17 of 1950 s. 75) |
30 Oct 1929 |
30 Oct 1929 |
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Transfer of Land Act Amendment Act 1929 (No. 2) 13 |
42 of 1929 (20 Geo. V No. 41) (as amended by No. 17 of 1950 s. 75) |
31 Dec 1929 |
31 Dec 1929 |
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Transfer of Land Act Amendment Act 1939 |
23 of 1939 (3 Geo. VI No. 23) |
22 Nov 1939 |
22 Nov 1939 |
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Transfer of Land Act Amendment Act 1944 12 |
28 of 1944 (8 and 9 Geo. VI No. 28) (as amended by No. 17 of 1950 s. 75) |
23 Dec 1944 |
23 Dec 1944 |
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Transfer of Land Act Amendment Act 1946 14 |
6 of 1946 (10 Geo. VI No. 6) |
13 Nov 1946 |
13 Nov 1946 |
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Transfer of Land Act Amendment Act 1946 (No. 2) |
21 of 1946 (10 and 11 Geo. VI No. 21) |
14 Jan 1947 |
14 Jan 1947 |
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Transfer of Land Act Amendment Act 1950 15 |
17 of 1950 (14 Geo. VI No. 17) |
29 Nov 1950 |
16 Mar 1951 (see s. 2 and Gazette 16 Mar 1951 p. 567) |
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Reprint of The Transfer of Land Act 1893 approved 7 Mar 1951 in Vol. 5 of Reprinted Acts (includes amendments listed above except those in the Transfer of Land Act Amendment Act 1950) |
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Limitation Act 1935 s. 48A(1) |
35 of 1935 (26 Geo. V No. 35) |
14 Jan 1955 |
Relevant amendments (see s. 48A and Second Sch. 16) took effect on 1 Mar 1955 (see No. 73 of 1954 s. 2 and Gazette 18 Feb 1955 p. 343) |
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Transfer of Land Act Amendment Act 1959 |
9 of 1959 (8 Eliz. II No. 9) |
25 Sep 1959 |
25 Sep 1959 |
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Reprint of The Transfer of Land Act 1893 approved 5 Jul 1962 in Vol. 16 of Reprinted Acts (includes amendments listed above) |
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Decimal Currency Act 1965 |
113 of 1965 |
21 Dec 1965 |
Act other than s. 4‑9: 21 Dec 1965 (see s. 2(1)); |
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Transfer of Land Act Amendment Act 1969 |
28 of 1969 |
16 May 1969 |
16 May 1969 |
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Transfer of Land Act Amendment Act (No. 3) 1969 |
88 of 1969 |
17 Nov 1969 |
17 Nov 1969 |
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Untitled regulations published in Gazette 24 Feb 1970 p. 516‑45 |
24 Feb 1970 |
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Untitled regulations published in Gazette 8 Feb 1972 p. 244 |
8 Feb 1972 |
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Transfer of Land Act Amendment Act 1972 |
14 of 1972 |
25 May 1972 |
25 May 1972 |
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Metric Conversion Act 1972 |
94 of 1972 |
4 Dec 1972 |
Relevant amendments (see First Sch. 17) took effect on 1 Jan 1973 (see s. 4(2) and Gazette 29 Dec 1972 p. 4811) |
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Reprint of The Transfer of Land Act 1893 approved 7 Jul 1975 (includes amendments listed above) |
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Acts Amendment (Land Valuers) Act 1978 Pt. I and II |
56 of 1978 |
6 Sep 1978 |
1 Jul 1979 (see s. 2 and Gazette 22 Jun 1979 p. 1677) |
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Companies (Consequential Amendments) Act 1982 s. 28 |
10 of 1982 |
14 May 1982 |
1 Jul 1982 (see s. 2(1) and Gazette 25 Jun 1982 p. 2079) |
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Acts Amendment (Land Administration) Act 1987 Pt. VII |
126 of 1987 |
31 Dec 1987 |
16 Sep 1988 (see s. 2 and Gazette 16 Sep 1988 p. 3637) |
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Reserves and Land Revestment Act 1991 s. 22 |
57 of 1991 |
17 Dec 1991 |
17 Dec 1991 (see s. 2) |
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Financial Administration Legislation Amendment Act 1993 s. 11 and 12 |
6 of 1993 |
27 Aug 1993 |
1 Jul 1993 (see s. 2(1)) |
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Acts Amendment (Public Sector Management) Act 1994 s. 18 |
32 of 1994 |
29 Jun 1994 |
1 Oct 1994 (see s. 2 and Gazette 30 Sep 1994 p. 4948) |
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Local Government (Consequential Amendments) Act 1996 s. 4 |
14 of 1996 |
28 Jun 1996 |
1 Jul 1996 (see s. 2) |
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Transfer of Land Amendment Act 1996 3, 7, 18 |
81 of 1996 |
14 Nov 1996 |
Act other than s. 6(1) (to the extent that it refers to s. 10(4) and (5c) of the principal Act), 28, 30, 37, 42, 73‑77, 81, 98, 134, 140 and 141: 14 Nov 1996 (see s. 2(1)); |
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Reprint of the Transfer of Land Act 1893 as at 13 May 1997 (includes amendments listed above) |
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Acts Amendment (Land Administration) Act 1997 Pt. 60 4, 5, 9 |
31 of 1997 |
3 Oct 1997 |
30 Mar 1998 (see s. 2 and Gazette 27 Mar 1998 p. 1765) |
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Statutes (Repeals and Minor Amendments) Act (No. 2) 1998 s. 69 |
10 of 1998 |
30 Apr 1998 |
30 Apr 1998 (see s. 2(1)) |
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Transfer of Land Amendment Act 1999 |
3 of 1999 |
25 Mar 1999 |
s. 1 and 2: 25 Mar 1999; |
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Acts Amendment and Repeal (Financial Sector Reform) Act 1999 s. 106 |
26 of 1999 |
29 Jun 1999 |
1 Jul 1999 (see s. 2 and Gazette 30 Jun 1999 p. 2905) |
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Reprint of the Transfer of Land Act 1893 as at 23 Jul 1999 (includes amendments listed above) |
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Statutes (Repeals and Minor Amendments) Act 2000 s. 42 |
24 of 2000 |
4 Jul 2000 |
4 Jul 2000 (see s. 2) |
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Forest Products Act 2000 s. 72 |
34 of 2000 |
10 Oct 2000 |
16 Nov 2000 (see s. 2 and Gazette 15 Nov 2000 p. 6275) |
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Land Administration Amendment Act 2000 s. 51 |
59 of 2000 |
7 Dec 2000 |
10 Apr 2001 (see s. 2(2) and Gazette 10 Apr 2001 p. 2073) |
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Reprint of the Transfer of Land Act 1893 as at 9 Feb 2001 (includes amendments listed above except those in the Land Administration Amendment Act 2000) |
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Corporations (Consequential Amendments) Act 2001 s. 220 |
10 of 2001 |
28 Jun 2001 |
15 Jul 2001 (see s. 2 and Gazette 29 Jun 2001 p. 3257 and Cwlth. Gazette 13 Jul 2001 No. S285) |
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Taxation Administration (Consequential Provisions) Act 2002 s. 25 |
45 of 2002 |
20 Mar 2003 |
1 Jul 2003 (see s. 2(1) and Gazette 27 Jun 2003 p. 2383) |
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Transfer of Land Amendment Act 2003 s. 4‑42, 44‑45, 47‑55, 58‑84 |
6 of 2003 |
25 Mar 2003 |
Act other than s. 43, 46, 56, 57, 74, 80‑82: 3 May 2003 (see s. 2 and Gazette 2 May 2003 p. 1491); |
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Acts Amendment (Equality of Status) Act 2003 s. 129 |
28 of 2003 |
22 May 2003 |
1 Jul 2003 (see s. 2 and Gazette 30 Jun 2003 p. 2579) |
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Acts Amendment (Carbon Rights and Tree Plantation Agreements) Act 2003 Pt. 5 |
56 of 2003 |
29 Oct 2003 |
24 Mar 2004 (see s. 2 and Gazette 23 Mar 2004 p. 975) |
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Contaminated Sites Act 2003 s. 100 |
60 of 2003 |
7 Nov 2003 |
1 Dec 2006 (see s. 2 and Gazette 8 Aug 2006 p. 2899) |
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Acts Amendment and Repeal (Courts and Legal Practice) Act 2003 s. 120 |
65 of 2003 |
4 Dec 2003 |
1 Jan 2004 (see s. 2 and Gazette 30 Dec 2003 p. 5722) |
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Statutes (Repeals and Minor Amendments) Act 2003 s. 120 |
74 of 2003 |
15 Dec 2003 |
15 Dec 2003 (see s. 2) |
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Courts Legislation Amendment and Repeal Act 2004 Pt. 20 Div. 2 |
59 of 2004 |
23 Nov 2004 |
1 May 2005 (see s. 2 and Gazette 31 Dec 2004 p. 7128) |
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Criminal Procedure and Appeals (Consequential and Other Provisions) Act 2004 s. 78 |
84 of 2004 |
16 Dec 2004 |
2 May 2005 (see s. 2 and Gazette 31 Dec 2004 p. 7129 (correction in Gazette 7 Jan 2005 p. 53)) |
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Reprint 7: The Transfer of Land Act 1893 as at 6 May 2005 (includes amendments listed above except those in the Contaminated Sites Act 2003) |
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Oaths, Affidavits and Statutory Declarations (Consequential Provisions) Act 2005 s. 63 |
24 of 2005 |
2 Dec 2005 |
1 Jan 2006 (see s. 2 and Gazette 23 Dec 2005 p. 6244) |
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Planning and Development (Consequential and Transitional Provisions) Act 2005 s. 15 |
38 of 2005 |
12 Dec 2005 |
9 Apr 2006 (see s. 2 and Gazette 21 Mar 2006 p. 1078) |
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Land Information Authority Act 2006 s. 103‑118 |
60 of 2006 |
16 Nov 2006 |
1 Jan 2007 (see s. 2(1) and Gazette 8 Dec 2006 p. 5369) |
|
Financial Legislation Amendment and Repeal Act 2006 s. 4 19 |
77 of 2006 |
21 Dec 2006 |
1 Feb 2007 (see s. 2(1) and Gazette 19 Jan 2007 p. 137) |
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Reprint 8: The Transfer of Land Act 1893 as at 15 Jun 2007 (includes amendments listed above) |
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Petroleum Amendment Act 2007 s. 106 |
35 of 2007 |
21 Dec 2007 |
19 Jan 2008 (see s. 2(b) and Gazette 18 Jan 2008 p. 147) |
|
Acts Amendment (Justice) Act 2008 Pt. 24 |
5 of 2008 |
31 Mar 2008 |
30 Sep 2008 (see s. 2(d) and Gazette 11 Jul 2008 p. 3253) |
|
Duties Legislation Amendment Act 2008 Sch. 1 cl. 38 |
12 of 2008 |
14 Apr 2008 |
1 Jul 2008 (see s. 2(d)) |
|
Legal Profession Act 2008 s. 711 |
21 of 2008 |
27 May 2008 |
1 Mar 2009 (see s. 2(b) and Gazette 27 Feb 2009 p. 511) |
|
Statutes (Repeals and Miscellaneous Amendments) Act 2009 s. 10 |
8 of 2009 |
21 May 2009 |
22 May 2009 (see s. 2(b)) |
|
Reprint 9: The Transfer of Land Act 1893 as at 21 Aug 2009 (includes amendments listed above) |
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Approvals and Related Reforms (No. 3) (Crown Land) Act 2010 Pt. 9 |
8 of 2010 |
3 Jun 2010 |
18 Sep 2010 (see s. 2(b) and Gazette 17 Sep 2010 p. 4757) |
|
Standardisation of Formatting Act 2010 s. 38, 43(2) and 51 |
19 of 2010 |
28 Jun 2010 |
11 Sep 2010 (see s. 2(b) and Gazette 10 Sep 2010 p. 4341) |
|
Reprint 10: The Transfer of Land Act 1893 as at 7 Jan 2011 (includes amendments listed above) |
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Electronic Conveyancing Act 2014 Pt. 9 |
2 of 2014 |
24 Mar 2014 |
3 Jun 2014 (see s. 2(c) and Gazette 30 May 2014 p. 1679) |
|
Land Legislation Amendment Act 2015 Pt. 5 |
11 of 2015 |
29 Apr 2015 |
30 Jun 2015 (see s. 2(b) and Gazette 2 Jun 2015 p. 1937) |
|
Land Legislation Amendment (Taxing) Act 2015 Pt. 4 |
12 of 2015 |
29 Apr 2015 |
30 Jun 2015 (see s. 2(b) and Gazette 2 Jun 2015 p. 1937) |
|
Reprint 11: The Transfer of Land Act 1893 as at 8 Jan 2016 (includes amendments listed above) |
|||
|
Strata Titles Amendment Act 2018 Pt. 3 Div. 23 |
30 of 2018 |
19 Nov 2018 |
1 May 2020 (see s. 2(b) and SL 2020/39 cl. 2) |
To view the text of the uncommenced provisions see Acts as passed on the WA Legislation website.
|
Short title |
Number and year |
Assent |
Commencement |
|
Transfer of Land Amendment Act 2003 s. 43, 46, 56 and 57 |
6 of 2003 |
25 Mar 2003 |
To be proclaimed (see s. 2) |
|
Community Titles Act 2018 Pt. 14 Div. 23 |
32 of 2018 |
19 Nov 2018 |
To be proclaimed (see s. 2(b)) |
1Repealed by the Land Act 1933 which was repealed by the Land Administration Act 1997.
2The Land Valuers Licensing Act 1978 came into operation on 1 July 1979.
3The Transfer of Land Amendment Act 1996 s. 6(2) reads as follows:
(2)Section 10 of the principal Act as it was in effect immediately before the commencement of subsection (1) continues to have effect in relation to any document or its duplicate and to any memorandum or entry that was sealed, signed, or initialled before that commencement.
4The Acts Amendment (Land Administration) Act 1997 s. 93(2) reads as follows:
(2)If the alienation of Crown land has resulted in the delivery of the grant in fee simple to the Registrar under section 18 of the principal Act, but the Registrar has not created and registered a certificate of title for the land under that section before the commencement of this section, that creation and registration may be completed as if that section had not been repealed.
5The Acts Amendment (Land Administration) Act 1997 s. 94(2) reads as follows:
(2)Section 19 of the principal Act continues to apply to each grant in fee to 2 or more persons in joint tenancy for any public purpose, which grant was in existence immediately before the repeal of that section, as if that section had not been repealed.
6The Settled Land Act 1892 was repealed by the Trustees Act 1962.
7The Transfer of Land Amendment Act 1996 s. 37(3) reads as follows:
(3)Section 65 of and the Ninth Schedule to the principal Act as in force immediately before the commencement of subsection (1) continue to apply to all transfers, leases and certificates of title in effect before that commencement on which an easement was marked in accordance with those provisions.
8On the date as at which this compilation was prepared, the Western Australian Land Information Authority was principally assisting in the administration of the Transfer of Land Act 1893.
9The Acts Amendment (Land Administration) Act 1997 s. 104(2) reads as follows:
(2)A lease of Crown land (not being a Crown lease) granted before the commencement of this section, which lease would have been valid had it been granted as a lease under the Land Administration Act 1997, is validated by force of this subsection and is to be treated as if it were a lease registered under section 81Q of the principal Act as amended by this Act.
10Repealed by the Property Law Act 1969 Second Schedule.
11Repealed by the Planning and Development (Consequential and Transitional Provisions) Act 2005 Schedule 1.
12This Act was amended by the Transfer of Land Act Amendment Act 1950 s. 75. See also note 16.
13This Act was amended by the Transfer of Land Act Amendment Act 1944 s. 3 and the Transfer of Land Act Amendment Act 1950 s. 75. See also note 17.
14The Transfer of Land Act Amendment Act 1950 s. 75 sets out an amendment to the Transfer of Land Act Amendment Act 1946. However, the Transfer of Land Act Amendment Act 1950 s. 32 sets out an amendment to the Transfer of Land Act 1893 that achieves the same result.
15The Transfer of Land Act Amendment Act 1950 provides as follows:
75.Revision of certain of the provisions of the amending Acts
(1)By way of revision, for the purpose of reprinting, the provisions of the amending Acts are amended to the extent specified in the Schedule to this Act.
(2)The provisions of the last preceding subsection shall not be construed so as to affect the provisions of the Amendments Incorporation Act 1938.
16Section 48A and the Second Schedule were inserted into the Limitation Act 1935 by the Limitation Act Amendment Act 1954 s. 8.
17The Schedule to the Metric Conversion Act 1972 was redesignated as the First Schedule by the Metric Conversion Act Amendment Act 1973 s. 3.
18The Transfer of Land Amendment Act 1996 s. 152 reads as follows:
152.Savings and transitional in relation to the assurance fund
(1)In this section —
commencement means the day on which section 1 of this Act comes into operation.
(2)The account called the “assurance fund” immediately before commencement is to be closed on commencement and the money that is in the account at the time when the account is being closed is to be credited to the Consolidated Fund.
(3)Subsection (2) does not affect or prejudice the application of the Interpretation Act 1984 but a right, obligation or liability of, or in respect of, the assurance fund subsisting immediately before commencement becomes, on commencement, a right, obligation or liability of, or in respect of, the State in accordance with Part XI or XII of the principal Act, as the case requires.
19The amendment in the Financial Legislation Amendment and Repeal Act 2006 s. 4 to s. 190 is not included because s. 190 had been replaced by the Land Information Authority Act 2006 s. 115.
20The Land Legislation (Postponement of Expiry) Proclamation 2018 published by Gazette 21 Dec 2018 p. 4845-6 provides that the expiry of section 182AA is postponed until the end of 31 December 2024.
[This is a list of terms defined and the provisions where they are defined. The list is not part of the law.]
Defined termProvision(s)
address240(2)
affected land104A
agreement104M
agreement land104M
amending Act244
annuitant4(1)
annuity4(1)
approved form4(1), 81K
Australian consular officer145(4)
Australian lawyer4(1)
authorised land officer4(1)
Authority4(1)
burdened land104A
carbon covenant4(1)
carbon covenant form4(1)
carbon right4(1)
carbon right form4(1)
certificate of Crown land title4(1)
charge4(1)
charging instrument105(3)(a)
commencement181(1a)
Commissioner81K
conveyancing transaction4(1)
counterpart4(1), 4(1CA)
Crown land4(1)
Crown land lease4(1)
Crown lease4(1)
dealing4(1)
digital signature4(1)
digital title4(1)
digitally sign4(1)
disposition242(4)
document4(1), 54(4)
ELN4(1)
ELNO4(1)
encumbrance81RA(1)
encumbrances4(1)
endorsed4(1)
Examiner of Titles4(1)
fees238B(4)(b)(i)
first document192D(4)
geothermal energy3(3)
geothermal energy resources3(3)
grant4(1)
grantor4(1)
graphic4(1)
incoming mortgagee48B(5A)(b)
inspector of plans and surveys163(2)
instrument4(1)
interest4(1)
judge4(1)
land4(1)
lodge181A(1), 192A(1), 192B(1), 192D(1), 232A(1), 238A(1)
lodged133(1)
lot129C(1d)
management body4(1)
management order81K
memorandum54(1)
metropolitan region4(1)
mining, petroleum or geothermal energy rights3(3)
Minister for Lands4(1)
ministerial order4(1)
mortgage127A(1)
mortgage money126(1E)
mortgagee127A(1)
notification details240A(1)
paper title4(1)
participation rules4(1)
person4(1)
plan136A
plantation interest4(1)
prescribed amount192(2)(a), 238B(4)(b)(i)
produce232A(1)
profit à prendre4(1)
property (seizure and sale) order133(1)
proprietor4(1)
public authority4(1)
qualified certificate of Crown land title4(1)
qualified valuer4(1)
record4(1)
Register4(1)
register133(1)
registered disposition242(4)
relevant authority129BB(1)(b), 136J(1)(b)
relevant carbon right104A
relevant graphic4(1)
repealed Act81K
requirement182B(1)
reserve4(1)
sale period133(1)
saleable interest133(1)
section 138A caveat136K(1)
settlement4(1)
sheriff4(1)
sheriff’s dealing133(1)
short form4(3)
sign4(1)
signature4(1)
single dwelling covenant129C(1d)
stamped81U(3)
statutory declaration188(2)
subscriber4(1)
symbol4(1)
transitional period81K
transmission4(1)
tree plantation agreement4(1)
working day182B(1)