Conveyancing and Law of Property Act 1898 (NSW)

Conveyancing and Law of Property Act 1898 No 17 An Act to consolidate the Statutes relating to Conveyances, Assignments, and Titles to Lands. Part 1A Preliminary 1 Name of Act (1) This Act may be cited as the Conveyancing and Law of Property Act 1898. (2) Nothing in this Act contained shall be taken in any way to alter or modify the provisions of the Married Women's Property Act of 1893, but this Act shall take effect only so far as it is not inconsistent with the said Married Women's Property Act of 1893. 2 First Schedule (1) The Acts mentioned in the First Schedule to this Act are to the extent therein expressed hereby repealed. (2) All rules of Court made under the authority of any Act or section hereby repealed and being in force at the passing of this Act shall be deemed to have been made under the authority of this Act. 2A Definition In this Act, unless the context or subject matter otherwise indicates or requires: minor means a person under the age of eighteen years. Part 1 Titles to Crown grants 3 Certain conveyances to pass the fee to purchaser notwithstanding the omission of words of inheritance In every case where before the first day of July, one thousand eight hundred and fifty-eight, any person seised of or entitled to any land in fee, or entitled to have a Crown grant thereof made to him in fee, has sold and has conveyed or contracted to convey such land to a purchaser, the purchaser shall be deemed as against the vendor, his heirs, executors, administrators, and assigns, to have taken or to be entitled to (as the case may be) an estate in fee in such land notwithstanding the absence of any words of inheritance in the instrument of conveyance or contract (as the case may be), unless a contrary intention appears by such instrument or otherwise: Provided that this section shall not prejudice the title of any person in possession of the land on the thirtieth day of June, one thousand eight hundred and fifty-eight, and claiming under such vendor. 4 For remedy of insufficient descriptions in grants No Crown grant of land issued previously to the first day of July, one thousand eight hundred and fifty-eight, and no deed in which the description of the land corresponds with that contained in such grant shall be void for want of certainty in such description in any case where the Governor has, since the last-mentioned date, by an instrument in writing under his hand and the seal of the Colony, described, or shall hereafter by a similar instrument describe, with sufficient certainty, the land intended to have been comprised in such grant; but in every such case the land so described as last aforesaid shall be taken to be the land described in the grant and in every such deed as aforesaid, and to have been granted and conveyed thereby respectively. 5 Proviso to protect subsequent grants and adverse holders Nothing in the preceding section shall prejudice any person who was on the first day of July, one thousand eight hundred and fifty-eight, in possession of the land or any part thereof claiming adversely to the grantee, his heirs or assigns, or shall affect any grant of the same land or any part thereof issued by the Crown subsequently to the first grant or any title to the land claimed under such subsequent grant. 6 New description to be advertised etc (1) No such instrument shall be signed unless the intention to make and sign the same has been notified under the hand of the Minister for Lands by three separate publications in the Government Gazette and in some newspaper circulating in the district in which the land is situated, three months at the least before the time of such signing containing therein the name of the grantee and of the party applying for such instrument, and the description in the grant as well as that proposed to be substituted. (2) Every such instrument shall be countersigned by the Minister for Lands and enrolled in the office for the registration of deeds. 7 The like provisions in case of error in names The like proceedings may be taken in respect of any Crown grant issued previously to the first day of January, one thousand eight hundred and sixty-three, in which there is any misnomer of the grantee, or misdescription of the land granted, and in every case where an instrument in writing has been or shall be so signed and enrolled as aforesaid, stating therein the matters intended to be corrected, and the name or description substituted or intended so to be, such name or description shall be taken to have been inserted originally in the grant and in every deed containing the erroneous name or description, and such grant and every such deed shall operate and be construed accordingly. 8 Proof of instrument Any such instrument as aforesaid may be by separate writing or be endorsed on the grant to which it relates, and it shall be sufficient in any proceedings for the party adducing any such instrument to prove its enrolment without showing compliance with any other provision of the preceding section. 9 Cases may be referred to Commissioners for claims to grants For any of the purposes contemplated by the five last preceding sections or any of them, the Governor may cause inquiry to be made as to the interests of any person who may be affected or who represents that he will be affected by any proposed new description or correction of any error as aforesaid before the Commissioners for claims to grants of land appointed under Part 2, and may refer accordingly any application for any such instrument as aforesaid, and any claim or caveat in opposition thereto, for the report thereupon of such Commissioners at the cost of the parties as in the case of persons applying for or entering a caveat against the issue of a grant, and such Commissioners shall thereupon have power to summon and examine the parties and all witnesses where evidence may be deemed necessary, and to report to the Governor upon the matters as fully and in the same manner as upon an inquiry authorised in terms by Part 2. 10 Conditions in grants (1) No title to land shall be held bad either at law or in equity by reason of the breach or non-performance of any condition imposed by the Crown and contained in a Crown grant of the land, an instrument of transfer of the land or a folio of the Register kept under the Real Property Act 1900, created in respect of the land in any case where it appears by any proclamation or by writing under the hand of the Governor, countersigned by the Minister for Lands, that no proceedings will be at any time taken on behalf of the Crown for avoiding the grant or the title to the land by reason of such breach or non-performance. (2) Every such proclamation may be in general terms applying to all conditions, or may be limited to conditions of particular classes, or a particular class of cases only. 11 Protection to bona fide purchasers against persons claiming against grantees by matter of prior date In every case where, before the first day of July, one thousand eight hundred and fifty-eight, any Crown grant of land was issued containing a proviso purporting to reserve or hold harmless the rights of all parties other than the grantee, such proviso shall as against every bona fide purchaser or mortgagee for valuable consideration (whether before or after the passing of this Act), without actual notice of some adverse claim and against all persons claiming under such purchaser or mortgagee, be inoperative and void. 12 Protection to bona fide purchaser from grantee in possession In all other cases of land granted previously to the first day of July, one thousand eight hundred and fifty-eight, and being on such date in the possession of the grantee, his heirs or assigns, the rights of all parties claiming adversely to such grantee by matter before the date of the grant shall, as against every bona fide purchaser or mortgagee for valuable consideration without actual notice of the adverse claim, and against all persons claiming under such purchaser or mortgagee, be barred and extinguished both at law and in equity. 13 The like in certain other cases In every case of land granted by the Crown between the thirtieth day of June, one thousand eight hundred and fifty-eight, and the first day of January, one thousand eight hundred and sixty-three, the rights of all parties claiming the same land, adversely to the grantee by matter before the date of the grant, shall as against every bona fide purchaser or mortgagee for valuable consideration, without actual notice of the adverse claim, and against all persons claiming under such purchaser or mortgagee, be barred and extinguished both at law and in equity, whether there be such a proviso or reservation as aforesaid in the grant or not. 14 Proclamations promising Crown grants (1) Every promise made previously to the first day of July, one thousand eight hundred and fifty-eight, by any Governor of New South Wales, of a grant of land in fee to any person shall (except as against the Crown) be deemed to have conferred upon him an interest in such land, devisable by will or alienable by contract, in like manner as equitable estates in land are devisable or alienable. (2) Every such promise may be evidenced by any proclamation, or by writing under the hand of the Governor or Colonial Secretary, or by recital or statement in any Crown grant. (3) This section shall not prejudice or affect the title of any person in possession of the land under any Crown grant, or claiming adversely to the person first referred to, his heirs, executors, administrators, or assigns. 15 Lands of debtors or accountants to the Crown (1) For the protection of purchasers and mortgagees under Crown debtors or accountants to the Crown, the Auditor-General may at any time take and pass the accounts of any such debtor or accountant, and upon satisfaction thereof may certify the same under his hand, and thereupon the Governor may, by writing, under his hand, countersigned by the Colonial Secretary or Colonial Treasurer, release all or any of the lands of such debtor or accountant in respect of all claims of the Crown against him up to the date of such release. (2) Every such release shall have the effect of an absolute discharge of all the then lands of such debtor or accountant, or of the particular lands specified, as the case may be, in the hands of any bona fide purchaser or mortgagee in respect of such claims. Part 2 Claims to grants of land 16 Appointment etc of Commissioners for claims to Crown grants (1) The Governor may issue one or more Commission or Commissions under the Great Seal as the same may become necessary, and may thereby nominate and appoint three or more persons to be "Commissioners for examining and reporting upon claims to grants of land within the Colony of New South Wales," and one of the said persons shall be appointed by the Governor to be President of the said Commission. (2) The said Commissioners, or any two of them, of whom the President shall be one, shall have full power and authority to hear, examine, and report upon all applications for grants of land under the Great Seal that may be referred to them under and by virtue of the provisions of this Act. (3) Each of the said Commissioners shall, before proceeding to act as such, take and subscribe before one of the Judges of the Supreme Court the oath set forth in the Second Schedule, and the Colonial Secretary shall cause the said oaths so subscribed to be recorded in his office. (4) The Commissioners appointed under the Act fifth William IV number twenty-one, and in office at the passing of this Act shall continue to be Commissioners under this Act without reappointment and without taking the abovementioned oath, and shall have and exercise the same powers and duties in all respects as if they had been appointed under this Act and had taken the said oath. 17 Appointment of Secretary (1) The Governor may appoint some person to perform the duties of Secretary to the said Commissioners. (2) The Secretary shall, before exercising any of the duties of his office, take and subscribe before one of the Judges of the Supreme Court the oath set forth in the Third Schedule, and the Colonial Secretary shall cause the said oath so subscribed to be recorded in his office. (3) The Secretary appointed under the Act fifth William IV number twenty-one, and in office at the passing of this Act, shall continue to be Secretary under this Act without reappointment and without taking the said oath, and shall have and exercise the same powers and duties in all respects as if he had been appointed under this Act and had taken the said oath. 18 Governor as often as he shall see fit to refer all claims to grants of land to Commissioners (1) The Governor may, as often as to him seems fit, refer the claims of all persons to have grants of land in due form of law executed to them, in virtue and in performance of the promise of any Governor for the time being, to the said Commissioners, to the end that all such claims may be duly examined and reported upon for the information and guidance of the Governor. (2) The said Commissioners, or any two of them, of whom the President shall be one, shall proceed to hear, examine, and report thereon in manner hereinafter mentioned. (3) Nothing herein contained shall authorise the said Commissioners to receive or report upon any claims but such as are referred to them by the Governor as aforesaid. 19 Commissioners to be guided by the real justice and good conscience of the case (1) In hearing and examining all claims to grants as aforesaid the said Commissioners shall be guided by the real justice and good conscience of the case without regard to legal forms and solemnities, and shall direct themselves by the best evidence that they can procure, or that is laid before them, whether the same be such evidence as the law would require in other cases or not. (2) If the Commissioners, or any two of them, are satisfied that the person claiming such lands or any part thereof is entitled in equity and good conscience to hold the said lands and to have a grant thereof made and delivered to such person under the Great Seal, they shall report the same and the grounds thereof to the Governor accordingly, and shall set forth the situation, measurement, and boundaries by which the said lands shall be described in every such grant. (3) Nothing herein contained shall be held to oblige the Governor to make and deliver any such grant as aforesaid unless he deems proper so to do. 20 Meetings of the Commissioners The meetings of the Commissioners shall be holden at such place as the Governor from time to time appoints, and the Commissioners shall proceed with all due dispatch to investigate and report upon the claims referred. 21 Power of Commissioners to summon witnesses (1) The Commissioners, upon receiving any such claim for report as aforesaid, may appoint a day by notice in the Gazette for hearing such claim, and may issue summonses requiring all such persons, as are therein named, to attend the Commissioners at the day and time therein appointed to give evidence as to all matters and things known to any such person respecting any claim as aforesaid, and to produce in evidence all deeds, instruments, or writings in the possession or control of any such persons which they might by law be required and compelled to give evidence of or to produce in evidence in any cause respecting the like matters depending in the Supreme Court, in so far as the evidence of such persons and the production of such deeds, instruments, and writings are necessary for the due investigation of any such claim as aforesaid depending before the Commissioners. (2) All such evidence shall be taken down in writing in the presence of the witnesses respectively giving the same, and shall at the time be signed by them or, in case of their refusing or being unable to sign, by the Secretary to the Commissioners; and all such evidence shall be given on oath, which oath the Commissioners shall administer to every person appearing before them to give evidence. (3) Any person taking a false oath in any case wherein an oath is required to be taken by this Act shall be deemed guilty of perjury, and being thereof duly convicted shall be liable to such pains and penalties as any person convicted of perjury is subject and liable to. 22 Offences Part 3 of the Royal Commissions Act 1923 has effect as if the Commissioners were a commission within the meaning of that Act. 23 Effect of mortgages and judgments prior to actual grant All mortgages and judgments which would have bound the said lands or any part of them in case grants thereof had been given under the Great Seal, before such mortgages or judgments were made or given, shall have the same force and effect with respect to such lands after grants thereof have been made and delivered in pursuance of the provisions of this part as if the same had been made and delivered previous to the dates of such mortgages or judgments as aforesaid, any law to the contrary in anywise notwithstanding. 24 Remuneration of Commissioners and Secretary (1) The Commissioners shall respectively receive for their own use, for every final report made by them in the manner and form prescribed by this part upon any claim to a grant of land, the sum of four dollars twenty cents. (2) The Secretary to the Commissioners shall receive, for every case referred to the Commissioners, the sum of four dollars. (3) The sums aforesaid shall be the whole remuneration of the Commissioners and their Secretary in respect of their offices, and the Governor shall by warrant under his hand direct such sums to be paid out of the Treasury. 25 Fees to be taken by Secretary to Commissioners (1) There shall be paid to the Secretary of the Commissioners, by every person making a claim to a grant of land, which is referred by the Governor to the Commissioners for examination as hereinbefore is provided, the several fees specified in the Fourth Schedule. (2) The Secretary shall duly account for the fees so paid to him as aforesaid, and shall pay the same into the hands of the Colonial Treasurer on the last day of every month, to be appropriated to public uses. (3) The Commissioners, or any two of them, of whom the President shall be one, may admit any poor person to appear and prosecute his claim as aforesaid without the payment of any fees if it appears to the Commissioners that such person is poor and not in a condition to pay the same. Part 3 The conveyance and assignment of property 26 Deeds executed by married woman under proclamation of 6 March 1819 valid (1) Every deed, conveyance, or other instrument in writing made and executed by any married woman prior to the first day of January, one thousand eight hundred and forty-four, of and concerning any lands, tenements, or hereditaments situated in New South Wales, and acknowledged in the form and manner appointed and directed by the proclamation of the Governor bearing date the sixth day of March, one thousand eight hundred and nineteen (a true copy whereof is set forth in the Sixth Schedule), shall be and be taken to be valid and effectual to pass and convey all the right, title, and interest of such married woman to and in all such lands, tenements, or hereditaments intended to be alienated and conveyed by such deed or other instrument. (2) Any deed in due form of law, made and executed by any party from whom any estate, right, title, or interest in any lands, tenements, or hereditaments situated in New South Wales, is or may be intended to be passed, and duly acknowledged by such party in the manner hereinafter provided, shall be as valid and effectual to pass all the estate, right, title, interest, and claim of the respective parties to such deed, in or to all and every such lands, tenements, or hereditaments in such deed mentioned and intended to be conveyed, and to transfer and convey the same to the grantee, bargainee, or other person therein mentioned, his heirs and assigns for ever, according to the several estates and interests by such deed conveyed and limited as if a fine with proclamations had been levied, or a common recovery suffered, of such lands, tenements, or hereditaments, or as if such lands, tenements, or hereditaments intended to be conveyed had been conveyed by the firmest and most regular deeds, conveyances, and instruments. (3) All deeds shall be deemed to be and to have been duly acknowledged when the acknowledgment has been or purports to have been received and certified as follows, that is to say: (a) in New South Wales by: (i) any Judge of the Supreme Court, or (ii) the Registrar-General or his deputy, or (iii) any commissioner of the Supreme Court authorised to take affidavits and not residing within five miles of the city of Sydney, or (iv) any person authorised by a commission under the hand and seal of the Judges of the Supreme Court, or any of them, to take and receive acknowledgments for the purposes of this Act, or (b) in any part of Her Majesty's dominions other than New South Wales by: (i) any Judge exercising jurisdiction in such part, or (ii) the Mayor or Chief Magistrate of any city or town in such part, or (iii) any commissioner of the Supreme Court of New South Wales for taking affidavits, or (c) in any foreign country by: (i) The British Consul or Vice-Consul, or (ii) any commissioner of the Supreme Court of New South Wales for taking affidavits. (4) If a married woman is a party to any such deed she shall be examined privately and apart from her husband by the person before whom such acknowledgment is made as aforesaid, and shall confess that she executed the same freely and voluntarily and without the fear, menace, or coercion of her husband. (5) Every such acknowledgment and confession shall be certified as aforesaid under seal or otherwise by the person before whom the same is made, and such certificate shall be endorsed or affixed to the deed, and shall be in the form or to the effect of the form in the Fifth Schedule, and shall be deemed and taken as sufficient proof of every such acknowledgment or confession as aforesaid. (6) Every deed affecting or intended to affect land in New South Wales, which has been executed by any married woman or tenant in tail, and which purports to have been acknowledged by such woman or tenant before some person having authority in that behalf, shall be valid and effectual in its intended operation to all intents and purposes, notwithstanding that the acknowledgment endorsed on such deed may not have been taken or certified in due form. (7) No such acknowledgment shall be taken before the person employed to prepare the deed acknowledged, or before a person being a party thereto. (8) This section shall not prejudice the rights of any person under any decree, order, or judgment of any Court of competent jurisdiction made prior to the passing of this Act, or in any suit, action, or other judicial proceeding pending at the passing of this Act. 27 Acknowledgment of deeds where marksman is a party The original instrument to which any such acknowledgment as aforesaid relates shall be produced to the person before whom the same is made, and in case such instrument appears to have been executed by any party unable to write, such person shall refuse to complete such acknowledgment by certifying the same, unless the execution by such party is attested by some justice of the peace, barrister, attorney, or notary public other than the person by whom such instrument has been prepared, whose attestation shall contain a certificate that the contents of such instrument were previously explained to the party so unable to write, and that the nature and effect thereof were, at the time of such attestation, to the best of the belief of such justice of the peace, barrister, attorney, or notary public understood by such party. 28 Fees payable (1) When any deed acknowledged as aforesaid is received into the office of the Registrar-General for registration, or when any deed is acknowledged as aforesaid before the Registrar-General or his deputy, the Registrar-General or his deputy shall demand and take for every acknowledgment before whomsoever made the sum of one dollar. (2) The moneys so received shall be regularly accounted for and paid over by the Registrar-General to the Treasury. (3) Every commissioner for taking affidavits and every commissioner for taking acknowledgments appointed under this Act (except at Sydney) may demand and have for his own use for the taking and certifying by him as aforesaid of every acknowledgment under this Act the sum of fifty cents, which shall be paid in addition to the sum of one dollar payable to the Registrar-General or his deputy as aforesaid. 29, 30 (Repealed) 31 Registration of deed of feoffment equivalent to livery of seisin The due registration in the office of the Registrar-General of any deed of feoffment executed since the first day of January, one thousand eight hundred and forty-four, or hereafter executed, shall operate as and be for all purposes equivalent to livery of seisin as to the lands and hereditaments comprised in and intended to be conveyed by such deed of feoffment, the same in all respects as if there had been livery of seisin actually made and given of the same lands and hereditaments in the most valid and effectual form and manner. 32 Release equivalent to lease and release Every deed or instrument of release executed after the passing of this Act shall be as effectual as if the releasing parties who have executed the same had also executed a lease or bargain and sale for a year for giving effect to such release, although no such lease or bargain and sale has been executed, and the recital or mention of a lease or bargain and sale in a release executed before the first day of January, one thousand eight hundred and forty-four, shall be conclusive evidence of the execution of such lease or bargain and sale. 33 Provision for cases of future and contingent uses Where by any instrument, whether executed before or after the passing of this Act, any hereditaments are limited to uses, all uses thereunder whether expressed or implied by law, and whether immediate or future or contingent or executory or to be declared under any power therein contained, shall take effect when and as they arise by force of and by relation to the estate and seisin originally vested in the person seised to the uses, and the continued existence in him or elsewhere of any seisin to uses or scintilla juris shall not be deemed necessary for the support of or to give effect to future or contingent or executory uses, nor shall any such seisin to uses or scintilla juris be deemed to be suspended or to remain or to subsist in him or elsewhere. 34–36 (Repealed) Part 4 Leases and sales of settled estates and estates of minors 37 Interpretation (1) The word settlement as used in this part shall signify any Act of Parliament, deed, agreement, will, or other instrument, or any number of such instruments, under or by virtue of which any hereditaments or any estate or interest in land stand for the time being limited to or in trust for any persons by way of succession, including any such instruments affecting the estates of any one or more of such persons exclusively. (2) The term settled estates as used in this part shall signify all hereditaments of any tenure, and all estates or interests in any such hereditaments which are the subject of a settlement. (3) For the purposes of this part a tenant in tail after possibility of issue extinct shall be deemed to be a tenant for life. (4) All estates or interests in remainder or reversion not disposed of by the settlement and reverting to the settlor or descending to the heir of a testator or passing to his personal representatives or next of kin under the law relating to the descent and distribution of the real estate of intestates shall be deemed to be estates coming to such settlor, heir, personal representative, or next of kin under and by virtue of the settlement. (5) Land and any estate or interest therein which is the subject of a settlement is for the purposes of this part settled land. (6) In determining what are settled estates within the meaning of this part the Court shall be governed by the state of facts and by the trusts or limitations of the settlement at the time of the said settlement taking effect. (7) Where a person in his own right seised or beneficially entitled to land for an estate in fee simple or for any leasehold interest at a rent is a minor, such land or leasehold interest shall be deemed to be settled estate within the meaning of this part. (8) The expression The Court in this part shall mean the Supreme Court. (9) For the purposes of this part a person shall be deemed to be entitled to the possession or to the receipt of the rents and profits of settled land, although his estate may be charged or encumbered either by himself or by the settlor or otherwise howsoever to any extent, but the estates or interests of the parties entitled to any such charge or encumbrance shall not be affected by the acts of the persons entitled to the possession or to the receipt of the rents and profits as aforesaid unless they concur therein. 38 The Court's power of making leases The Court may, if it deem it proper and consistent with a due regard for the interests of all parties entitled under the settlement and subject to the provisions and restrictions in this part contained, authorise leases of any settled estates or of any rights or privileges over or affecting any settled estates for any purpose whatsoever whether involving waste or not, provided the following conditions be observed: (1) Every such lease shall be made to take effect in possession at or within one year next after the making thereof, and shall be for a term of years not exceeding for an agricultural or occupation lease ten years, and for a mining lease forty years, and for a repairing lease fifteen years, and for a building lease thirty years. (2) (a) On every such lease shall be reserved the best rent or reservation in the nature of rent, either uniform or not, that can be reasonably obtained, to be made payable half-yearly or oftener, without taking any fine or other benefit in the nature of a fine. (b) In the case of a mining lease a nominal rent, or any smaller rent than the rent to be ultimately made payable, may, if the Court thinks fit so to direct, be made payable during all or any part of the first five years of the lease. (c) In case of a mining lease, the rent reserved may be in part by way of royalty on the minerals raised, or on the gross or net produce thereof. (3) (a) Where the lease is of any earth, coal, stone, or mineral, a certain portion of the whole rent or payment reserved shall be from time to time set aside and invested as hereinafter mentioned, namely, when and so long as the person for the time being entitled to the receipt of such rent is a person who, by reason of his estate or by virtue of any declaration in the settlement, is entitled to work such earth, coal, stone, or mineral for his own benefit one-fourth part of such rent, and otherwise three-fourth parts thereof. (b) In every such lease sufficient provision shall be made to insure such application of the aforesaid portion of the rent by the appointment of trustees, or otherwise as the Court deems expedient. (4) Every such lease shall be by deed, and the lessee shall execute a counterpart thereof. (5) Every such lease shall contain a condition for re-entry on non-payment of the rent for a period of twenty-eight days after it becomes due, or for some less period to be specified in that behalf. 39 Leases may contain special covenants Subject and in addition to the conditions hereinbefore mentioned, every such lease