Land Titles Act 1980 (Tas)

Land Titles Act 1980 An Act to consolidate and amend the law relating to the registration of title to land, easements and possessory titles [Royal Assent 21 May 1980] Be it enacted by His Excellency the Governor of Tasmania, by and with the advice and consent of the Legislative Council and House of Assembly, in Parliament assembled, as follows: PART I - General 1. Short title This Act may be cited as the Land Titles Act 1980 . 2. Commencement (1) This section and section 1 shall commence on the date of assent to this Act. (2) Except as provided in subsection (1) , this Act shall commence on such date as may be fixed by proclamation. 3. Interpretation (1) In this Act, except in so far as the context or subject matter otherwise indicates or requires – approved form means a form approved by the Recorder under section 169A ; Assistant Recorder of Titles means an Assistant Recorder of Titles appointed pursuant to section 4 (3A) ; assurance fund means the assurance fund referred to in section 150 ; caveator means the person by whom or on whose behalf a caveat has been lodged; dealing means any document in writing (other than a grant) which is registrable or capable of being made registrable under this Act or in respect of which any recording in the Register is by this or any other Act required or permitted to be made and includes a priority notice, but for the purposes of Part IX does not include a caveat or a withdrawal of a caveat; Deputy Recorder means the Deputy Recorder of Titles appointed pursuant to section 4 (3) ; duplicate registered dealing means the duplicate of a registered dealing delivered pursuant to section 48 (6) ; electronic communication has the same meaning as in the Electronic Transactions Act 2000 ; electronic dealing means a dealing that is an electronic communication; encumbrance means any charge on land created for the purpose of securing a current, future or contingent payment of an annuity, rent-charge, or sum of money other than a debt; encumbrancee means the proprietor of an encumbrance; encumbrancer means the registered proprietor of land subject to an encumbrance; forestry right has the meaning assigned to that expression in the Forestry Rights Registration Act 1990 ; grant means the grant of any land of the Crown; instrument includes any grant, certificate of title, conveyance, assurance, deed, map, plan, survey, will, probate, or exemplification of will or probate, or any other document in writing relating to the disposition, devolution, or acquisition of land or evidencing title to land; land includes – (a) messuages, tenements and hereditaments, corporeal and incorporeal, of every kind and description (whatever may be the estate or interest in them), together with all paths, passages, ways, waters, watercourses, liberties, privileges, easements, plantations, gardens, mines, minerals and quarries and all trees and timber on land or lying or being under land; and (b) any structure which is above land but permanently anchored to, or otherwise kept in place above, the land; legal practitioner means an Australian legal practitioner; lessee means the registered proprietor of a lease; lessor means the registered proprietor of the reversion immediately expectant upon the expiration of a registered lease; mortgage means any charge on land created merely for securing a debt; mortgagee means the proprietor of a mortgage; mortgagor means the registered proprietor of land subject to a mortgage; newspaper does not include a newspaper published solely in electronic form; office copy, in relation to an order, means a copy of the order that is certified by a legal practitioner, a justice or a Commissioner for Declarations to be a true copy of the order; proclaimed date means the date fixed by proclamation under section 2 (2) ; proprietor means any person seised or possessed of any estate or interest in land at law or in equity, in possession, in futurity, or in expectancy; public record means a public record referred to in section 36 ; qualified title means a folio of the Register on which is recorded a caution in accordance with section 21 (2) ; Recorder means the Recorder of Titles appointed pursuant to section 4 (1) ; Register means the register of title referred to in section 33 ; registered means registered under this Act or any of the Acts specified in Schedule 2 ; registered land means land which is subject to this Act; registered proprietor means any person appearing by a folio of the Register, or by any registered dealing, to be the proprietor of any estate or interest in registered land; repealed Act means the Real Property Act 1862 ; transfer means the passing of any estate or interest in land under this Act, whether for valuable consideration or otherwise; transmission means the acquisition of title to, or an interest in, land, consequent on the death, will, intestacy, or bankruptcy of a proprietor. (2) The describing of any person as owner, proprietor, transferor, transferee, mortgagor, mortgagee, encumbrancer, encumbrancee, lessor, or lessee, or as seised of or having or taking any estate or interest in any land, shall include the executors, administrators, and assigns of that person. 3A. Crown to be bound This Act binds the Crown, not only in right of Tasmania but also, so far as the legislative power of Parliament permits, the Crown in all its other capacities. PART II - Administration 4. Appointment of Recorder, &c. (1) The Governor may appoint a State Service officer or State Service employee to be Recorder of Titles, and that officer or employee is to hold that office in conjunction with State Service employment. (2) A person is not eligible for appointment as Recorder of Titles unless the person is – (a) a legal practitioner of not less than 5 years' standing; or (b) an Australian lawyer who has been a legal practitioner for at least 5 years. (3) The Governor may appoint a State Service officer or State Service employee to be Deputy Recorder of Titles, and that officer or employee is to hold that office in conjunction with State Service employment. (3A) The Governor may appoint State Service officers and State Service employees to an office of Assistant Recorder of Titles and officers and employees so appointed are to hold office in conjunction with State Service employment. (4) Subject to and in accordance with the State Service Act 2000 , such persons as may be considered necessary may be appointed or employed for the purposes of this or any other Act. 5. Seal of office The Recorder shall have and use a seal of office, bearing the impression of the arms of the State, and having inscribed in the margin thereof the words "Recorder of Titles, Tasmania". 6. Powers and immunities of Deputy Recorder, &c. Anything that is by law or practice appointed, authorized, or required to be done by the Recorder may lawfully be done by the Deputy Recorder or a person appointed to the office of Assistant Recorder of Titles who when so doing has the same immunities and protection from suits as the Recorder. 7. Documents purporting to be sealed or signed by Recorder or Deputy Recorder, &c., to be received in evidence All documents, whether purporting to be issued or written by or under the direction of the Recorder, and purporting either to be sealed with the Recorder's seal of office or signed by the Recorder or by the Deputy Recorder or a person appointed to the office of Assistant Recorder of Titles, shall, if admissible, be received in evidence, and shall be deemed to have been issued or written by or under the direction of the Recorder, without further proof, unless the contrary is shown. 8. Facsimile signature of Recorder or Deputy Recorder, &c. Whenever it is required or permitted by this or any other Act that the Recorder, the Deputy Recorder or an Assistant Recorder of Titles sign any document, memorial, recording, certificate, endorsement, or plan, the Recorder, Deputy Recorder or an Assistant Recorder may – (a) attach; or (b) authorize an officer to attach – a facsimile of the signature of the Recorder, Deputy Recorder or Assistant Recorder of Titles, respectively, to the document, memorial, recording, certificate, endorsement, or plan and the facsimile so attached has the same force and effect as if the Recorder, Deputy Recorder or an Assistant Recorder, as the case may be, had personally signed the Recorder's, Deputy Recorder's or Assistant Recorder of Titles' name in the place of the facsimile signature, and all courts and judges shall take judicial notice of the facsimile signature of the Recorder, Deputy Recorder and Assistant Recorder and shall presume that it was properly attached. PART III - Bringing land under this Act Division 1 - Crown grant 9. Unalienated land, when alienated in fee, to be subject to this Act Except as provided in section 10 (3) , all unalienated lands of the Crown, when alienated in fee, become subject to this Act. 10. Transfers to be used instead of grant deeds (1) Except as provided in subsection (3) , land of the Crown that is not under this Act shall not be granted by letters patent but shall be granted by transfer in an approved form as if it had already been brought under this Act. (2) The Recorder, upon receiving a transfer under subsection (1) , shall create a folio of the Register for the land comprised in the transfer, and upon a folio being created the transfer shall be deemed to be duly registered, and duly enrolled of record. (3) When the Crown grants an easement to be appurtenant only to land that is not registered land, the grant shall be effected by letters patent as if this section had not been enacted. (4) Where an easement is granted by letters patent in pursuance of subsection (3) , the letters patent shall be registered under the Registration of Deeds Act 1935 as an instrument and delivered to the grantee. (5) On the registration of letters patent as provided in subsection (4) , the letters patent shall be deemed to have been duly enrolled of record. Division 2 - Application 11. Applications to bring land under this Act (1) Subject to subsection (2) , land may be brought under this Act on the application in writing in an approved form of any of the following persons: (a) the person claiming to be the owner of the fee simple either at law or in equity; (b) the person claiming to be entitled to a grant in fee from the Crown of any land under or by virtue of a contract with the Crown (other than a contract under any Act relating to the sale of Crown lands), or in equity and good conscience; (c) the tenant for life, or person having the powers of a tenant for life, under the Settled Land Act 1884 ; (d) the guardian of an infant or the administrator of the estate of a person under the Guardianship and Administration Act 1995 , if – (i) the infant or patient would have been entitled, if not under disability, to apply under paragraph (a) , paragraph (b) , or paragraph (c) ; and (ii) the application contains a direction that the infant or patient shall be registered as proprietor; (e) a person holding power of attorney authorizing the sale of a freehold estate in the land in the name of the proprietor of that land, unless the power expressly prohibits the person making such an application; (f) the legal practitioner acting for a person referred to in paragraph (a) , (b) , (c) , (d) or (e) . (2) An application under this section shall not be made by – (a) a person claiming to be entitled to an undivided share of any land, unless the person who appears to be entitled to the other undivided shares of the land joins in the application with a view to bringing the entirety under this Act; or (b) a tenant for life, or person having the powers of a tenant for life, under the Settled Land Act 1884 unless – (i) the tenant for life, or the person having the powers of a tenant for life, is selling or exchanging the fee simple pursuant to a provision of that Act or the Settled Land Act 1911 and directs that the purchaser or person to whom the fee simple is given in exchange shall be registered as proprietor; or (ii) in the case of a life tenant in possession – (A) where there is a vested estate in expectancy in the land (other than an estate vested in an infant), the application contains a direction that the person entitled to that estate shall be registered as proprietor of that estate; or (B) where there is a vested estate in expectancy in the land to which an infant is entitled, or there is an estate in expectancy in the land capable of taking effect on the happening of a future event, the application contains a direction that the trustee of the settlement under which the estate in expectancy was created shall be registered as proprietor of that estate – so that upon the granting of the application and compliance with the direction, all the vested estates in the land are brought under this Act. (3) A person who lodges an application under this section or a mortgagee or other person who has, in the person's possession or under the person's control, instruments constituting or in any way affecting the title of the land to which the application relates shall lodge those instruments and also, if required, an abstract of the title to that land with the Recorder. (4) A person referred to in subsection (3) shall not lodge with the Recorder any instruments which a purchaser of the land to which the application relates would not be entitled to require pursuant to section 35 of the Conveyancing and Law of Property Act 1884 . (5) A chamber in a building standing on land that is not under this Act shall not be brought under this Act separately from the land and building. 12. How application dealt with (1) The Recorder may – (a) do or require to be done such things as will, in the opinion of the Recorder, justify the Recorder in bringing the land to which an application under section 11 relates under this Act; and (b) subject to sections 13 and 14 , bring the land under this Act by creating a folio of the Register for the land. (2) In considering an application under section 11 in respect of land unalienated in fee from the Crown, the Recorder shall be guided by equity and good conscience and by the best evidence that can or may be procured, even though it is not such as the Recorder might require in other cases. (3) Where, on considering an application under section 11 , the Recorder is of the opinion that the applicant's title is open to objection but is nevertheless a title the holding under which will not be disturbed, the Recorder may bring the land under this Act with a title other than a qualified title. (4) Where an application under section 11 by a person claiming a life estate in possession directs that the person entitled to a vested estate in expectancy in the land shall be registered as proprietor of the estate in expectancy, the Recorder may refuse to bring the land to which the application relates under this Act unless the Recorder approves the title to the life estate and the vested estate in expectancy, and brings all the vested estates in the land under this Act. 13. Notices (1) Where an application under section 11 is based on a claim by possession under a statute of limitations (other than a claim against the Crown), the applicant is to – (a) post on the land, or at such place as the Recorder directs, and keep so posted for not less than 30 days before the granting of the application; and (b) publish, not less than 30 days before the granting of the application, in at least one newspaper that is published, and circulating generally, in Tasmania and that is available in the locality in which the relevant land is situated – a notice of the application in such form as the Recorder directs. (2) The Recorder may refuse to bring land under this Act in a case to which subsection (1) applies until it has been proved to the Recorder's satisfaction that the requirements of that subsection have been complied with. (3) A notice under this section shall specify a time (being not less than 30 days) after the expiration of which the Recorder may, unless a caveat is lodged forbidding it, bring the land under this Act. 14. Caveat forbidding the bringing of land under this Act (1) A person who claims an estate or interest in land that is the subject of an application under section 11 may, before the creation of a folio of the Register for that land, lodge a caveat with the Recorder in accordance with an approved form forbidding the bringing of the land under this Act. (2) The Recorder, on the lodgement of a caveat pursuant to subsection (1) , shall notify the person who lodged an application under section 11 in respect of the land and shall not proceed with the application until – (a) the caveat has been withdrawn or has lapsed as provided in subsection (3) ; or (b) a judgment or order in the matter has been obtained from a court of competent jurisdiction. (3) On the expiration of 30 days after lodgement, a caveat lodged pursuant to subsection (1) lapses and ceases to have any effect unless the caveator has, within that period – (a) commenced proceedings in a court of competent jurisdiction to establish the caveator's title to the estate or interest specified in the caveat and has given written notice that the caveator has commenced proceedings to the Recorder, in which case the Recorder shall not proceed with the application until those proceedings have been determined; or (b) obtained and served on the Recorder an injunction or order of a court of competent jurisdiction restraining the Recorder from bringing the land under this Act, in which case the Recorder shall not proceed with the application while that injunction or order is in force. (4) Unless permitted by a Supreme Court order, a caveat that has lapsed under subsection (3) may not be renewed and a new caveat may not be lodged by or on behalf of the same person in respect of the same estate or interest. (5) Section 133 (5) and (6) and section 135 apply to a caveat lodged pursuant to subsection (1) . 15. Withdrawal of application to bring land under Act An applicant may withdraw the applicant's application to bring land under this Act at any time before the creation of a folio of the Register for that land, and on the withdrawal of the application the Recorder shall return the muniments of title lodged in support of the application to the person from whom the Recorder received them. Division 3 - Completing the Register 16. Appointed day (1) The expression appointed day, in relation to a provision of this Division, means such day as the Governor, by order, declares to be the appointed day for the purposes of that provision. (2) The Governor may declare different appointed days in respect of the provisions of this Division. 17. Land may be brought under this Act on registration of instruments under the Registration of Deeds Act 1935 (1) A person who lodges for registration under the Registration of Deeds Act 1935 – (a) a conveyance on sale; or (b) a legal mortgage by conveyance of the fee simple; or (ba) any other instrument that affects land – shall leave with the Recorder, in addition to the documents required by section 12 of that Act – (c) a statement in an approved form signed by the purchaser or mortgagor or by the legal practitioner acting for and on behalf of the purchaser or mortgagor and addressed to the Recorder, which shall state the facts of the ownership of the land and such further information as may be required by the form; and (d) all instruments, in the person's possession or under the person's control, constituting or in any way affecting the title to the land except any instruments which a purchaser of the land to which the statement relates would not be entitled to require pursuant to section 35 of the Conveyancing and Law of Property Act 1884 , and also, if required, an abstract of that title. (1A) A person who lodges for registration under the Registration of Deeds Act 1935 a forestry right shall leave with the Recorder, in addition to the documents required by section 12 of that Act – (a) a statement in a form approved by the Recorder signed by the owner of the land over which the forestry right is granted or by the legal practitioner acting for and on behalf of that owner and addressed to the Recorder, which shall state the facts of the ownership of the land and such further information as may be required by the form; and (b) all instruments, in the person's possession or under the person's control, constituting or in any way affecting the title to the land except any instruments which a purchaser of the land to which the statement relates would not be entitled to require pursuant to section 35 of the Conveyancing and Law of Property Act 1884 , and also, if required, an abstract of that title. (2) The Recorder may refuse to register a conveyance on sale, a legal mortgage by conveyance of the fee simple, another instrument that affects land or a forestry right unless it is accompanied by a statement and other instruments as required by subsection (1) or (1A) . (3) On registering under the Registration of Deeds Act 1935 a conveyance, mortgage, other instrument or forestry right to which subsection (1) or (1A) applies the Recorder may, if the Recorder thinks fit – (a) bring the land comprised in the conveyance, mortgage, other instrument or forestry right under this Act by creating a folio of the Register for that land; and (b) for the purposes of so bringing the land under this Act, return the conveyance, mortgage, other instrument or forestry right and any other instruments in the Recorder's custody to the lodging party. (4) . . . . . . . . 17A. Land to be brought under this Act upon subdivision (1) On and after the appointed day the owner of land which is not registered land shall not subdivide any land – (a) held under the same title; or (b) included in one subsisting legal mortgage by conveyance of the fee simple – unless the owner has made an application under section 11 to bring the land under this Act. Penalty: Fine not exceeding 20 penalty units. (2) In subsection (1) subdivide, in respect of land, means to divide the surface of that land legally by creating estates or interests giving separate rights of occupation. 18. Land may be brought under this Act upon subdivision The Recorder may refuse to accept a sealed plan under Part 3 of the Local Government (Building and Miscellaneous Provisions) Act 1993 that is lodged with the Recorder on or after the appointed day and that includes land which is not registered land until all the land – (a) held under the same title as any of the land included in the plan; or (b) included in one subsisting legal mortgage by conveyance of the fee simple with any of the land included in the plan – whichever the Recorder, in the Recorder's discretion, directs, is brought under this Act. 19. Land may be brought under this Act at the instance of the Recorder (1) The Recorder may on or after the appointed day cause notice to be given to any person requiring the person, within a time specified in the notice, not being a time less than 30 days from the date of the notice – (a) to inform the Recorder in writing whether the person claims an estate or interest in land (not being registered land) specified in the notice; (b) where the person claims an estate or interest by virtue of an assurance or other disposition or by devolution in law – (i) to furnish to the Recorder a statement in an approved form; and (ii) to produce to the Recorder all instruments constituting or in any way affecting the person's title to the land that are in the person's possession or under the person's control or in the possession or under the control of the mortgagee of the land except any instruments which a purchaser would not be entitled to require pursuant to section 35 of the Conveyancing and Law of Property Act 1884 ; and (c) where the person claims an estate by the operation of a statute of limitations, to furnish to the Recorder such evidence in support of that claim as the person possesses. (2) Where the Recorder has given notice under subsection (1) the Recorder may bring any land specified in the notice under this Act by creating a folio of the Register for that land. (3) The Recorder shall, as far as possible, use the Recorder's powers under this section so that by the operation of sections 17 and 18 and this section all land (other than Crown land) which is not registered land shall be brought under this Act. 20. Refusal to comply with notice under section 19; making false or misleading statement, &c. (1) Any person who wilfully refuses or neglects to comply with any requirement of a notice given to the person under section 19 is guilty of an offence and is liable on summary conviction to a fine not exceeding 5 penalty units and a daily fine not exceeding one penalty unit. (2) Any person who makes a statement under section 17 (1) (c) or section 19 (1) (b) , or furnishes the Recorder with evidence under section 19 (1) (c) , that to the person's knowledge is false or misleading in a material particular is guilty of an offence and liable on summary conviction to a fine not exceeding 50 penalty units or to imprisonment for a term not exceeding 2 years. Division 4 - Qualified title 21. Qualified title (1) Land may be brought under this Act with a qualified title where – (a) an applicant under section 11 – (i) fails to satisfy the Recorder that the applicant is entitled to the estate that the applicant claims; (ii) fails to do or prove to the Recorder's satisfaction such things or matters as the Recorder may have required the applicant to do or prove in order to justify the bringing of the land under this Act; or (iii) requests the Recorder to register a qualified title; (b) the proprietor of land to which section 17 applies or a person to whom the Recorder has given notice under section 19 requests the Recorder to register a qualified title; (c) the Recorder is doubtful whether the title of any person to whom any provision of Division 3 of this Part applies is a title the holding under which will not be disturbed; or (d) under any Act the Recorder is directed or empowered to register a qualified title. (2) Where land is brought under this Act with a qualified title a caution shall be recorded on the folio of the Register for that land and may be – (a) a general caution, that is to say, a caution that the registered proprietor holds the registered proprietor's estate subject to all estates and interests in the land created before the land was brought under this Act; or (b) a particular caution, that is to say, a caution that the registered proprietor holds the registered proprietor's estate subject to any defect in title or the estate or interest of any person the existence or probable or possible existence of which is indicated in a minute signed by the Recorder and filed in the office of the Recorder. (3) The Recorder's minute for the purpose of subsection (2) (b) – (a) shall set forth any defect in the title or any estate or interest or probable or possible estate or interest of any person in the land and the acts or matters that ought to be done or proved and the requisitions that ought to be complied with in order to justify the cancellation of the caution recorded on the folio of the Register; (b) does not form part of the Register; and (c) shall be made available for inspection by any person on payment of the prescribed fee (if any). (4) The Recorder may revise and amend a minute under subsection (2) so as to indicate which of the defects, estates, or interests referred to in the minute have been removed or resolved and which of the acts, matters, or requisitions so referred to have been done, proved, or complied with. (5) Where a general caution is recorded on a folio of the Register, the Recorder may at any time cancel that caution and substitute a particular caution. (6) The Recorder may, upon production to the Recorder of such evidence of title as the Recorder deems sufficient, cancel a caution recorded on a folio of the Register. 22. Subsisting estates and interests to be recorded on qualified title (1) When bringing land under this Act with qualified title, the Recorder shall record on the relevant folio of the Register any subsisting estate or interest then apparent to the Recorder, but shall not be concerned to make searches or inquiries as to the existence of any such interest. (2) The Recorder may, at any time after the creation of a qualified title – (a) if a general caution is recorded on the qualified title, record on that qualified title any additional subsisting estate or interest in the land comprised in the title; or (b) if a particular caution is recorded on the qualified title, record on that qualified title any additional subsisting estate or interest the existence or probable or possible existence of which is indicated in the relevant Recorder's minute – and, in either case, in such a manner as to preserve the priority that the additional estate or interest would have had if it had been recorded on the relevant folio of the Register when the land was first brought under this Act. 23. Certain informal dealings may be registered An instrument that affects any land brought under this Act and that might have been registered under the Registration of Deeds Act 1935 if the land had not been brought under this Act may, in the discretion of the Recorder, be registered under this Act notwithstanding that it is not an instrument in an approved form, and when registered has effect for all purposes as if it were such an instrument. 24. Qualified title may be cancelled or corrected in certain circumstances (1) If, on application made to the Recorder for that purpose, it appears to the Recorder that the proprietor of an estate or interest in the land comprised in a qualified title has suffered judgment for the recovery of the land or a declaration, injunction, or other judgment destructive of that proprietor's estate or interest wholly or in part, the Recorder – (a) must cancel or correct the folio of the Register relating to that land; and (b) must call in and cancel or correct the corresponding certificate of title, if any, as the circumstances may require. (2) Subject to subsection (3) , a person who claims an estate of freehold in the whole or any part of the land comprised in a qualified title of which some other person is the registered proprietor may apply to have the land brought under this Act as if that qualified title had not been created, and the Recorder, if satisfied of the grounds of the applic