New South Wales: Conveyancing Act 1919 (NSW)

Conveyancing Act 1919 No 6 An Act to amend and consolidate the law of property and to simplify and improve the practice of conveyancing; and for such purposes to amend certain Acts relating thereto. Part 1A Preliminary 1 Name of Act and commencement This Act may be cited as the Conveyancing Act 1919 and shall commence and come into operation on the first day of July, one thousand nine hundred and twenty. 2 (Repealed) 3 Repeals (1) The Acts mentioned in the First Schedule to this Act are to the extent therein expressed hereby repealed. (2) All rules of court made under the authority of any Act or section hereby repealed and being in force at the commencement of this Act, shall so far as applicable, be deemed to have been made under the authority of this Act. 4 Operation of Act Any alteration, by this Act, of the law, whether by the repeal of an enactment, or otherwise, shall not, unless otherwise expressly provided by this Act, affect— (a) any right accrued, or obligation incurred, before the commencement of this Act under the law so altered, or (b) the validity or invalidity, or any operation, effect or consequence, of any instrument executed or made, or of anything done or suffered before the commencement of this Act, or (c) any action, proceeding or thing then pending or uncompleted; every such action, proceeding and thing may be carried on and completed as if the enactment had not been repealed, or the law otherwise altered. 5 Restriction on validation of instruments Where any instrument executed prior to the commencement of this Act is by any provision hereof rendered valid and effectual, and would, but for this Act, be or remain invalid or ineffectual, such instrument shall be deemed to be validated only where the person who is at the commencement of this Act in possession of the property affected by the instrument claims under such instrument and not adversely to it. 6 Application of Act to Real Property Act 1900 and other Acts (1) Except as hereinafter provided, this Act, so far as inconsistent with the Real Property Act 1900, shall not apply to lands, whether freehold or leasehold, which are under the provisions of that Act. (2) Except as hereinafter provided by this Act or the regulations made for the purposes of section 52A or 66ZA, this Act shall not be construed as affecting the provisions of the Crown Land Management Act 2016, the Mining Act 1992 or the Offshore Minerals Act 1999 or the provisions of any other Act dealing with Crown lands. (2A) Division 4 (Easements and restrictive and positive covenants) of Part 6, so far as it is applicable, applies to and in respect of Crown land, including land under a continued incomplete tenure purchase, continued perpetual lease, continued term lease or continued special lease within the meaning of Schedule 1 to the Crown Land Management Act 2016. (3) Wherever any provision of this Act is expressed to apply to land under the provisions of or dealings under the Real Property Act 1900, such provision shall not be deemed to apply exclusively to such land or dealings unless the contrary appears. 6A Application of Act to electronic form plans and other documents (1) This section applies to— (a) plans lodged for the purposes of this Act, and (b) other documents that— (i) are required by or under this or any other Act to be lodged with those plans, or (ii) are of a class prescribed by the regulations made under this Act as documents that may be lodged in electronic form. (2) A reference in this Act— (a) to a plan or another document includes a reference to an electronic data file containing a plan or another document in an electronic form, and (b) to the lodging of a plan or another document includes a reference to the electronic lodging of a plan or another document in an electronic form approved by the Registrar-General, and (c) to a sheet of a plan or another document that is in electronic form is a reference to a sheet on which the whole or part of the plan or other document would be reproduced if the plan or other document were converted to hard copy form without re-pagination. (3) If a plan is lodged electronically, all other documents that are required to be lodged with the plan must also be lodged electronically in an electronic form approved by the Registrar-General, except— (a) (Repealed) (b) any other documents excepted from this requirement by regulations under this or any other Act or by the Registrar-General. (4) Any signature, seal, certificate, consent or other approval required to authenticate, or to authorise the registration or recording of, a plan proposed to be lodged in electronic form is to be endorsed on an approved form for signatures. When the plan is lodged, that form must also be lodged electronically in an electronic form approved by the Registrar-General. (5) This Act applies to and in respect of plans and other documents lodged in electronic form in the same way as it applies to other plans and documents, subject to any modifications prescribed by this Act or the regulations. (6) This section extends to plans and other documents relating to land under the Real Property Act 1900. 6B Arrangements for payment of fees A provision of this Act to the effect that something may or must be done on or after payment of a fee— (a) prescribed by the regulations, enables or requires (as appropriate) the thing to be done if arrangements have been made in accordance with the regulations for the future payment of the fee, or (b) prescribed under another Act, enables or requires (as appropriate) the thing to be done if arrangements have been made in accordance with the regulations under that Act for the future payment of the fee. 6C Electronic form documents and signatures (1) A reference in this Act to a contract or deed includes a reference to an electronic data file containing a contract or deed in an electronic form. (2) This Act applies to and in respect of contracts or deeds in an electronic form in the same way as it applies to other contracts or deeds, subject to any modifications prescribed by this Act or the regulations. (3) To avoid doubt, Division 2 of Part 2 of the Electronic Transactions Act 2000 applies to a requirement or permission under this Act for a document to be verified, authenticated, attested or witnessed under the signature of a person other than the author of the document, subject to any regulations under this Act. (4) This section extends to contracts or deeds relating to land under the Real Property Act 1900. (5) The regulations may, for the purposes of this Act, prescribe— (a) what does and does not constitute an electronic signature or attestation, and (b) any further requirements in relation to electronic signatures and attestations. (6) If a contract is provided in electronic form, all other documents that are required to be attached to the contract, or provided before completion of the contract, may, despite any other provision in this Act or the regulations, also be provided in electronic form if the document is clearly legible in that form. Part 1 Interpretation 7 Definitions (1) In the interpretation of this Act, and of any rules or regulations made thereunder, unless the context or subject matter otherwise indicates or requires— Administrator means administrator within the meaning of the Probate and Administration Act 1898, and includes the NSW Trustee and Guardian acting as collector under an order to collect. Approved form means a form approved by the Registrar-General for the purposes of the provision of this Act in which the expression is used. Assurance includes a conveyance and a disposition made otherwise than by will; and assure has a corresponding meaning. Bankruptcy means any act or proceeding in law having, before or after the commencement of the Conveyancing (Amendment) Act 1972, effects or results similar to those of bankruptcy, and includes the winding-up of a company under the Companies Act 1961, the Companies (New South Wales) Code or the Corporations Act 2001 of the Commonwealth; and bankrupt has a meaning corresponding with that of bankruptcy. Commonwealth means Commonwealth of Australia, and Commonwealth Act (with or without descriptive words) means an Act passed by the Parliament of the Commonwealth and includes any Act amending or substituted for the same. Conveyance includes any assignment, appointment, lease, settlement, or other assurance by deed of any property; and convey has a meaning corresponding with that of conveyance. Court means the Supreme Court. Crown plan means a plan (such as a county or parish map, a town or village map or a portion plan) that has been prepared by or on behalf of the Crown and is held by the Registrar-General, and includes a registered plan that has been lodged for registration with the Registrar-General by or on behalf of the Crown. Current plan has the meaning given by section 7A. Dealing has the same meaning as it has in the Real Property Act 1900. Deed in relation to land under the provisions of the Real Property Act 1900, includes a dealing having the effect of a deed under that Act. Disposition includes a conveyance, and also an acknowledgment under section 83 of the Probate and Administration Act 1898, vesting instrument, declaration of trust, disclaimer, release and every other assurance of property by any instrument except a will, and also a release, devise, bequest, or an appointment of property contained in a will; and dispose has a corresponding meaning. Executor means the executor to whom probate has been granted, and includes an executor by right of representation. Existing lot means— (a) a lot whose boundaries are shown in a current plan, or (b) in relation to land that is not included in a current plan, any distinct lot or portion of land whose current boundaries are identified in the document or documents that evidence current legal interests in the land, whether comprising the whole of a parcel, or 2 or more parts of a parcel separated by land reserved or acquired for a road, railway or other like purpose. General Register of Deeds means the General Register of Deeds maintained under section 184C. Income, when used with reference to land, includes rents and profits. Incumbrance includes a mortgage in fee or for a less estate, and a trust for securing money, and a lien and a charge of a portion, annuity, or other capital or annual sum; and incumbrancee has a meaning corresponding with that of incumbrance, and includes every person entitled to the benefit of an incumbrance, or to require payment or satisfaction thereof. Instrument includes deed, will, and Act of Parliament. Land includes tenements and hereditaments, corporeal and incorporeal, and every estate and interest therein whether vested or contingent, freehold or leasehold, and whether at law or in equity. Land under the provisions of the Real Property Act 1900 or any equivalent expression, means estates registered under that Act. Licensed conveyancer means the holder of a licence in force under the Conveyancers Licensing Act 2003. Mental disability means the legal disability by reason of which the property of a person subject thereto may, pursuant to the law from time to time in force with respect to mental health, be committed to the management and care of another person. Minor means a person under the age of eighteen years; and minority has a corresponding meaning. Mortgage includes a charge on any property for securing money or money's worth; and mortgage-money means money or money's worth secured by a mortgage. Mortgagee includes any person from time to time deriving title to the mortgage under the original mortgagee; and mortgagee in possession means a mortgagee who in right of the mortgage has entered into and is in possession of the mortgaged property. Mortgagor includes any person from time to time deriving title to the equity of redemption under the original mortgagor, or entitled to redeem a mortgage, according to the person's estate, interest, or right in the mortgaged property. Mortgage, mortgagee, and mortgagor in relation to land under the provisions of the Real Property Act 1900 have the same meaning as in that Act. Order includes judgment. Personal representative means the executor or administrator for the time being of a deceased person. Possession, when used with reference to land, includes the receipt of income therefrom. Power to postpone sale means power to postpone in the exercise of a discretion whether separately expressed or implied by the terms of the trust for sale. Property includes real and personal property, and any estate or interest in any property real or personal, and any debt, and any thing in action, and any other right or interest. Purchaser means a purchaser for valuable consideration, and includes a lessee, mortgagee, or other person who for valuable consideration acquires an interest in property, except that in Part 4, Divisions 5 and 6 purchaser means only a person who acquires an interest in or charge on property for money or money's worth; and purchase has a meaning corresponding with that of purchaser. Registered means registered in the appropriate register by the Registrar-General. Registered plan means any of the following— (a) a plan of subdivision, a plan of consolidation or a plan of identification (each within the meaning of section 195) that is registered in accordance with Division 3 of Part 23, (b) a strata plan, strata plan of subdivision or strata plan of consolidation within the meaning of the Strata Schemes Development Act 2015, (c) (Repealed) (d) a plan that is registered for the purpose of showing either or both of the following— (i) land that is proposed to be acquired, by agreement or compulsory process, under a provision of an Act (including a Commonwealth Act) that authorises the acquisition of land by compulsory process, or (ii) the residue of land of which part is proposed to be so acquired, (e) a plan (other than a plan referred to in paragraph (a)–(d)) that is registered or recorded by the Registrar-General for the purpose of showing a parcel in a lawful division of land. Regulations means regulations made under this Act. Rent includes yearly or other rent, toll, duty, royalty, or other reservation by the acre, the ton, or otherwise; and fine includes premium or foregift, and any payment, consideration, or benefit in the nature of a fine, premium, or foregift. Sale means only a sale properly so called. Securities include stocks, funds, and shares. Trust corporation means the NSW Trustee and Guardian or a trustee company or The Official Receiver in Bankruptcy or the trustee in whom is vested the property of a bankrupt. Trust for sale means a binding trust for sale, whether or not exercisable at the request or with the consent of any person, and with or without a power at discretion to postpone sale. Trustee company means a licensed trustee company within the meaning of Chapter 5D of the Corporations Act 2001 of the Commonwealth authorised by an Act of New South Wales to act as trustee. Trustees for sale mean the persons holding property on trust for sale. Valuable consideration includes marriage but does not include a nominal consideration in money. War damage means damage caused by, or in repelling, enemy action, or by measures taken to avoid the spreading of the consequences of damage caused by, or in repelling, enemy action. Will includes codicil. (2) (a) Any deed, will, agreement for a settlement, or other agreement, Act, or other instrument, or any number of instruments, whether made or passed before or after, or partly before and partly after the commencement of the Conveyancing (Amendment) Act 1930, under or by virtue of which instrument or instruments any land on or after such commencement stands for the time being— (i) limited to or in trust for any persons by way of succession, or (ii) vested in, or limited in trust for a minor in possession, creates, or is for the purposes of this Act a settlement, and is in this Act referred to as a settlement, or as the settlement, as the case requires— Provided that where land is the subject of a compound settlement references in this Act to the settlement shall be construed as meaning such compound settlement, unless the context otherwise requires. (b) Where a minor is beneficially entitled to land, and by reason of an intestacy or otherwise there is no instrument under which the interest of the minor arises or is acquired, a settlement shall be deemed to have been made by the intestate or by the person whose interest the minor has acquired. (c) An estate or interest not disposed of by a settlement and remaining in or reverting to the settlor, or any person deriving title under the settlor, is for the purposes of this Act an estate or interest comprised in the subject of the settlement and coming to the settlor or such person under or by virtue of the settlement. 7A Current plan (1) In this Act, current plan means a Crown plan or a registered plan, but does not include so much of a Crown plan or registered plan as is taken not to form part of a current plan because of subsection (2), (3) or (4). (2) So much of a Crown plan or registered plan as merely identifies— (a) land that is proposed to be acquired, by agreement or compulsory process, under a provision of an Act (including a Commonwealth Act) that authorises the acquisition of the land by compulsory process, or (b) the residue of land of which part is proposed to be so acquired, is taken not to form part of a current plan until such time as the land is so acquired. (3) So much of a Crown plan or registered plan as merely identifies— (a) land that is, or is proposed to be, leased (otherwise than for a period that, including the period of any option to renew, exceeds 5 years), or (b) land the subject of a plan of subdivision for lease purposes (within the meaning of Division 3B or 3C of Part 2), or (c) land the subject of a special purpose lease within the meaning of Division 5.7 of the Crown Land Management Act 2016, is taken not to form part of a current plan. (4) So much of a Crown plan or registered plan as relates to land the subject of a later current plan (that is, a current plan that was filed or lodged with the Registrar-General after the Crown plan or registered plan was so lodged) is taken not to form part of a current plan. Part 2 General rules affecting property Division 1 Rules of law upon certain points 8 (Repealed) 9 Equitable waste An estate for life without impeachment of waste shall not confer, or be deemed to have conferred, upon the tenant for life any legal right to commit waste of the description known as equitable waste, unless an intention to confer such right expressly appears by the instrument creating such estate. 10 Merger There shall not, after the commencement of this Act, be held or deemed to be any merger by operation of law only of any estate, the beneficial interest in which would not be deemed to be merged or extinguished in equity, and this provision shall apply to any merger by operation of law only arising before or after the commencement of this Act. 11 Mortgagor A mortgagor entitled for the time being to the possession of any land as to which no notice of the mortgagee's intention to take possession, or to enter into the receipt of the rents and profits thereof, has been given by the mortgagee, may sue for such possession, or for the recovery of such rents or profits, or to prevent or recover damages in respect of any trespass or other wrong relative thereto, in the mortgagor's own name only, unless the cause of action arises upon a lease or other contract made by the mortgagor jointly with any other person. 12 Assignments of debts and choses in action Any absolute assignment by writing under the hand of the assignor (not purporting to be by way of charge only) of any debt or other legal chose in action, of which express notice in writing has been given to the debtor, trustee, or other person from whom the assignor would have been entitled to receive or claim such debt or chose in action, shall be, and be deemed to have been effectual in law (subject to all equities which would have been entitled to priority over the right of the assignee if this Act had not passed) to pass and transfer the legal right to such debt or chose in action from the date of such notice, and all legal and other remedies for the same, and the power to give a good discharge for the same without the concurrence of the assignor: Provided always that if the debtor, trustee, or other person liable in respect of such debt or chose in action has had notice that such assignment is disputed by the assignor or anyone claiming under the assignor, or of any other opposing or conflicting claims to such debt or chose in action, the debtor, trustee or other person liable shall be entitled, if he or she thinks fit, to call upon the several persons making claim thereto to interplead concerning the same, or he or she may, if he or she thinks fit, pay the same into court under and in conformity with the provisions of the Acts for the relief of trustees. 13 Stipulations not of the essence of contracts Stipulations in contracts, as to time or otherwise, which would not before the commencement of this Act have been deemed to be or to have become of the essence of such contracts in a court of equity, shall receive in all courts the same construction and effect as they would have heretofore received in such court. Division 2 Land 14 The immediate freehold of land to lie in grant as well as in livery All land shall as regards the assurance of the immediate freehold thereof be deemed to lie in grant as well as in livery. 15 Creation of certain estate in chattels real Any estate or interest that can be created by will in any chattel real may also be created by deed. 16 When contingent remainders capable of taking effect (1) A contingent remainder existing at any time after the commencement of this Act shall be capable of taking effect notwithstanding the want of a particular estate of freehold to support it in the same manner as it would take effect if it were a contingent remainder of an equitable estate supported by an outstanding legal estate in fee simple. (2) A contingent remainder or a contingent interest lying between two estates vested in the same person shall prevent the merger of those two estates. 17 Rule in Shelley's case excluded in certain cases Where in an instrument coming into operation after the commencement of this Act a remainder is limited mediately or immediately to the heirs or heirs of the body of a person to whom an estate for any life in the same premises is expressly given, the estate of such person shall be confined to an estate for the life mentioned with a remainder to the person's heirs or heirs of the person's body as purchasers. 18 Release of part of land from rent charge not to extinguish whole charge The release from a rent charge of part of the land charged therewith shall not extinguish the whole rent charge, but shall operate only to bar the right to recover any part of the rent charge out of the land released without prejudice nevertheless to the rights of all persons interested in the land remaining unreleased and not concurring in or confirming the release. 19 Limitations of estates tail to pass the fee simple (1) In any instrument coming into operation after the commencement of this Act a limitation which, if this section had not passed, would have created an estate tail (legal or equitable) in any land in favour of any person shall be deemed to create an estate in fee simple (legal or equitable as the case may be) in such land in favour of such person to the exclusion of all estates or interests limited to take effect after the determination or in defeasance of any such estate tail. (2) (a) Where at the commencement of this Act any person is entitled to an estate tail (legal or equitable) and whether in possession, reversion, or remainder, in any land, such person, save as is hereinafter mentioned, shall be deemed to be entitled to an estate in fee simple (legal or equitable, as the case may be) in such land, to the exclusion of all estates or interests limited to take effect after the determination or in defeasance of any such estate tail. (b) Where any such person is an infant and such land for any estate or interest would pass to any other person in the event of the death of the infant under the age of twenty-one years and without issue, then in such case the infant shall be deemed to take an estate in fee simple with an executory limitation over of such estate or interest on the happening of such event in favour of such other person. (c) This subsection does not apply in respect of a person under mental disability. (d) In this subsection the expression estate tail includes that estate in fee into which an estate tail is converted where the issue in tail are barred, but persons claiming estates by way of remainder or otherwise are not barred; also an estate in fee voidable or determinable by the entry of the issue in tail; but does not include the estate of a tenant in tail after possibility of issue extinct. (3) This section applies to land under the provisions of the Real Property Act 1900, and the Registrar-General is hereby authorised on application in the form approved under that Act to make all such recordings in the Register kept under that Act as may be necessary to give effect thereto. 19A Estates tail—further provisions (1) Where at or after the first day of January one thousand nine hundred and seventy-one any person is entitled, or would, but for section 19, be entitled, to an estate tail (legal or equitable) and whether in possession, reversion, or remainder, in any land, such person shall be deemed to be entitled to an estate in fee simple (legal or equitable, as the case may be) in such land, to the exclusion of all estates or interests limited to take effect after the determination or in defeasance of any such estate tail and to the exclusion of all estates or interests in reversion on any such estate tail. (2) In this section the expression estate tail includes that estate in fee into which an estate tail is converted where the issue in tail are barred, but persons claiming estates by way of remainder or otherwise are not barred also an estate in fee voidable or determinable by the entry of the issue in tail; but does not include the estate of a tenant in tail after possibility of issue extinct. (3) This section applies to land under the provisions of the Real Property Act 1900, and the Registrar-General is hereby authorised on application in the form approved under that Act to make all such recordings in the Register kept under that Act as may be necessary to give effect thereto. 20 (Repealed) 21 Dower abolished No widow shall become entitled, nor on or after the fifteenth day of December, one thousand eight hundred and ninety (being the day of the passing of the Probate Act of 1890), shall any widow be deemed to have become entitled to dower out of any land or out of any estate or interest in the same. 22 No assurance to have tortious operation No assurance of any land hereafter made shall be deemed to have a tortious operation. 23 Dealings with land of undischarged bankrupt (1) All transactions by a bankrupt with any bona fide purchaser in respect of any land acquired by the bankrupt after a sequestration order has been made, and whether with or without notice of the bankruptcy, shall, if completed before any intervention by the official assignee of the estate of the bankrupt, be valid against the official assignee, and any estate or interest in such land which by virtue of the Bankruptcy Act 1898, or any Act relating to insolvency, is vested in the official assignee, shall determine and pass in such manner and to such extent as may be required for giving effect to any such transaction. (2) This section shall apply to transactions with respect to land completed before the commencement of this Act in any case where there has not been any intervention by the official assignee before that date. (2A) (a) After the expiration, whether before or after the commencement of the Conveyancing (Amendment) Act 1930, of twenty years after— (i) the date of the sequestration of the estate of a bankrupt under any Act relating to bankruptcy, or (ii) the execution of an assignment for the benefit of the creditors of the assignor, no action, suit, or other proceeding instituted by the official assignee or the trustee of the assignment for the recovery of land which by any such Act or by the assignment was vested in the official assignee or the trustee of the assignment shall succeed against a purchaser from the bankrupt or assignor, or under a sale in execution, or against a successor in title of such purchaser. (b) This subsection shall not apply where the official assignee or trustee of the assignment was in actual possession of the land at the time of the purchase. (c) This subsection shall not apply where the land is under the provisions of the Real Property Act 1900. (3) The registration by the official assignee in the General Register of Deeds of a claim in the prescribed form, or in the case of lands under the provisions of the Real Property Act 1900 the lodging of a caveat under that Act, shall be deemed to be a sufficient intervention. (4) An order affecting the title to any land (not being land under the provisions of the Real Property Act 1900) made under the Bankruptcy Act 1898, is void as against a person who, after the commencement of the Conveyancing (Amendment) Act 1972 and without notice of the order, purchases land from a person whose title to the land is affected by the order, unless the order is registered in the General Register of Deeds. 23A Abolition of the double possibility rule (1) The rule of law prohibiting the limitation after a life interest to an unborn person of an interest in land to the unborn child or other issue of an unborn person is hereby abolished, but without prejudice to any other rule relating to perpetuities. (2) This section only applies to limitations or trusts created by an instrument coming into operation after the commencement of the Conveyancing (Amendment) Act 1930. Division 3 Assurances of land 23B Assurances of land to be by deed (1) No assurance of land shall be valid to pass an interest at law unless made by deed. (2) This section does not apply to— (a) an acknowledgment under section 83 of the Probate and Administration Act 1898, (b) a disclaimer made in accordance with any law relating to bankruptcy in force before or after the commencement of the Conveyancing (Amendment) Act 1972, or not required to be evidenced in writing, (c) a surrender by operation of law, and a surrender which may, by law, be effected without writing, (d) a lease or tenancy or other assurance not required by law to be made in writing, (e) a vesting order, (f) any other assurance taking effect under any Act or Commonwealth Act. (3) This section does not apply to land under the provisions of the Real Property Act 1900. 23C Instruments required to be in writing (1) Subject to the provisions of this Act with respect to the creation of interests in land by parol— (a) no interest in land can be created or disposed of except by writing signed by the person creating or conveying the same, or by the person's agent thereunto lawfully authorised in writing, or by will, or by operation of law, (b) a declaration of trust respecting any land or any interest therein must be manifested and proved by some writing signed by some person who is able to declare such trust or by the person's will, (c) a disposition of an equitable interest or trust subsisting at the time of the disposition, must be in writing signed by the person disposing of the same or by the person's will, or by the person's agent thereunto lawfully authorised in writing. (2) This section does not affect the creation or operation of resulting, implied, or constructive trusts. (3) For the purposes of this section, a requirement for writing may be satisfied in electronic form and a requirement for writing to be signed may be satisfied by electronic signature. 23D Creation of interests in land by parol (1) All interests in land created by parol and not put in writing and signed by the person so creating the same, or by the person's agent thereunto lawfully authorised in writing, shall have, notwithstanding any consideration having been given for the same, the force and effect of interests at will only. (2) Nothing in this section or in sections 23B or 23C shall affect the creation by parol of a lease at the best rent which can reasonably be obtained without taking a fine taking effect in possession for a term not exceeding three years, with or without a right for the lessee to extend the term at the best rent which can reasonably be obtained without taking a fine for any period which with the term would not exceed three years. 23E Savings in regard to secs 23B, 23C, 23D Nothing in section 23B, 23C, or 23D shall— (a) invalidate any disposition by will, or (b) affect any interest validly created before the commencement of the Conveyancing (Amendment) Act 1930, or (c) affect the right to acquire an interest in land by virtue of taking possession, or (d) affect the operation of the law relating to part performance. Division 3A Transactions with respect to existing lots 23F Certain transactions to refer to lots shown on current plan (1) This section applies to the following transactions— (a) the conveyance or transfer of part of an existing lot, (b) the lease of part of an existing lot, (c) the mortgage of part of an existing lot, (d) the partition of an existing lot. (2) The Registrar-General may refuse to register a transaction to which this section applies unless— (a) the land to which the transaction relates is shown on a current plan, and (b) the boundaries of each part into which the land is divided as a result of the transaction follow the boundaries of an existing lot. (3) This section does not apply to an agreement with respect to land the subject of— (a) a proposed plan of subdivision, a proposed plan of consolidation or a proposed plan of identification within the meaning of section 195, or (b) a proposed strata plan, proposed strata plan of consolidation or proposed strata plan of subdivision within the meaning of the Strata Schemes Development Act 2015, but the agreement is taken to be conditional on the registration of the proposed plan. 23G Exceptions to sec 23F Section 23F does not apply to the following transactions— (a) a transaction that relates to the whole of the land comprised in a folio of the Register kept under the Real Property Act 1900, (b) an application by the Crown to bring Crown land under the provisions of the Real Property Act 1900, (b1) a transaction, initiated by the Crown, that redefines a boundary of Crown land that was brought under the provisions of the Real Property Act 1900 on the application of the Registrar-General under section 13D of that Act, (c) a transaction that relates to the whole of the residue of land comprised in a folio of the Register kept under the Real Property Act 1900, where part only of the land is shown in a current plan, (d) a transaction that comprises— (i) the lease of part of an existing lot for a period that, including the period of any option to renew, does not exceed 5 years, or (ii) the transfer, conveyance, sublease, variation or mortgage of a leasehold interest so created, (e) a transaction that comprises— (i) the lease of the whole or any part of a building, or (ii) the transfer, conveyance, sublease, variation or mortgage of a leasehold interest so created, (f) a transaction that relates to an existing lot that is owned by 2 or more persons in severalty, where— (i) one of the owners disposes of his or her part of the lot to another owner, or (ii) all of the owners of the lot dispose of the lot to some other person, (g) a transaction that relates to part of an existing lot, where— (i) that part (and no other part of the lot) is held by a person in his or her capacity as a trustee, administrator or executor of, or as a beneficiary of the estate of, an owner referred to in paragraph (f), and (ii) the transaction relates to the whole of that part, (h) a transaction that relates to part of an existing lot, where— (i) the transaction is necessary to give effect to an order, direction or judgment of a court of competent jurisdiction, and (ii) the person by whom the transaction is given effect to does not have power to give effect to such a transaction with respect to any other part of the lot, (i) a transaction that relates to part of an existing lot, where— (i) the transaction gives effect to a sale of land under a writ of execution, under Division 5 of Part 2 of Chapter 17 of the Local Government Act 1993, under the NSW Trustee and Guardian Act 2009 or under any power conferred by a Commonwealth Act, and (ii) the person giving effect to the transaction does not have power to give effect to such a transaction with respect to any other part of the lot, (j) a transaction that relates to part of an existing lot (not being land under the provisions of the Real Property Act 1900), where— (i) a person in adverse possession of that part disposes of that part to some other person, and (ii) the firstmentioned person does not have power to dispose of any other part of the existing lot, (k) a transaction that relates to part of an existing lot, where the transaction conveys or transfers land to an Aboriginal Land Council in accordance with the requirements of the Aboriginal Land Rights Act 1983, the Native Title (New South Wales) Act 1994 or any other Act or law, (l) a transaction that relates to the whole of the residue of an existing lot, where part of the lot— (i) has been the subject of a transaction referred to in paragraph (h), (i), (j) or (k), or (ii) has been acquired, by agreement or compulsory process, under a provision of an Act (including a Commonwealth Act) that authorises the acquisition of land by compulsory process, or (iii) has been dedicated as a public road, (m) a transaction that comprises— (i) the lease or licence of part of an existing lot under an ARTC arrangement under Part 8A of the Transport Administration Act 1988, or (ii) the transfer, conveyance, sublease, variation or mortgage of a leasehold interest so created, (n) a transaction that comprises— (i) the granting of a special purpose lease within the meaning of Division 5.7 of the Crown Land Management Act 2016, or (ii) the transfer, conveyance, sublease, variation or mortgage of a leasehold interest so created, (o) a transaction comprising the lease of part of association property within the meaning of the Community Land Development Act 2021. Division 3B Subdivisions to allow leases for caravan parks or mobile home estate purposes 23H Definitions In this Division, plan of subdivision for lease purposes means a plan of subdivision (within the meaning of section 195) of land within a caravan park or a manufactured home estate (within the meaning of the Local Government Act 1993) that is marked, in accordance with the regulations, so as to indicate that development consent to the subdivision has been granted under the Environmental Planning and Assessment Act 1979 subject to the condition that the subdivision is a subdivision for lease purposes. 23I Transactions (1) The Registrar-General may refuse to register a transaction with respect to a lot in a plan of subdivision for lease purposes unless it comprises— (a) the lease of the whole of the lot for a period that, including the period of any option to renew, does not exceed 20 years, or (b) the transfer, conveyance, sublease, variation or mortgage of a leasehold interest so created. (2) This section does not apply to an agreement with respect to land the subject of a proposed plan of subdivision for lease purposes, but the agreement is taken to be conditional on the registration of the proposed plan. Division 3C Subdivisions to allow leases for forestry purposes 23J Definition In this Division, plan of subdivision for lease purposes means a plan of subdivision (within the meaning of section 195) that is marked, in accordance with the regulations, to indicate that development consent to the subdivision has been granted under the Environmental Planning and Assessment Act 1979 subject to the condition that the subdivision is a subdivision for forestry lease purposes. 23K Transactions (1) The Registrar-General may refuse to register a transaction with respect to a lot in a plan of subdivision for lease purposes unless it comprises— (a) the lease of the whole of the lot for a period that, including the period of any option to renew, does not exceed 40 years, or (b) the transfer, conveyance, sublease, variation or mortgage of a leasehold interest so created. (2) This section does not apply to an agreement with respect to land the subject of a proposed plan of subdivision for lease purposes, but the agreement is taken to be conditional on the registration of the proposed plan. Division 4 Property generally 24 Person may assure property to himself or herself, or to himself or herself and others A person may assure property to himself or herself, or to himself or herself and others. 25 Power for corporations to hold property as joint tenants (1) A body corporate shall be capable of acquiring and holding any property in joint tenancy in the same manner as if it were an individual, and where a body corporate and an individual or two or more bodies corporate become entitled to any property under circumstances or by virtue of any instrument which would, if the body corporate had been an individual, have created a joint tenancy they shall be entitled to the property as joint tenants— Provided that the acquisition and holding of property by a body corporate in joint tenancy shall be subject to the like conditions and restrictions as attach to the acquisition and holding of property by a body corporate in severalty. (2) Where a body corporate is a joint tenant of any property, then on its dissolution the property shall devolve on the other joint tenant. 26 Construction of conveyance etc of any property beneficially to two or more persons together (1) In the construction of any instrument coming into operation after the commencement of this Act a disposition of the beneficial interest in any property whether with or without the legal estate to or for two or more persons together beneficially shall be deemed to be made to or for them as tenants in common, and not as joint tenants. (2) This section does not apply to persons who by the terms or by the tenor of the instrument are executors, administrators, trustees, or mortgagees, nor in any case where the instrument expressly provides that persons are to take as joint tenants or tenant by entireties. 27 Tenants in common of equitable estate acquiring the legal estate Where two or more persons entitled beneficially as tenants in common to an equitable estate in any property are or become entitled in their own right whether as joint tenants or tenants in common to the legal estate in such property equal to and co-extensive with such equitable estate both the legal and equitable estates shall be held by them as tenants in common unless such persons otherwise agree. 28 Release and disclaimer of powers (1) A person to whom is given any power (other than a power coupled with a duty), whether coupled with an interest or not, may by deed release or contract not to exercise the power. (2) Any such person as aforesaid may by deed disclaim any such power, and after such disclaimer shall not be capable of exercising or joining in the exercise of the power. (3) On such disclaimer the power may be exercised by the other or others, or the survivors or survivor of the others, of the persons to whom the power is given, unless the contrary is expressed in the instrument creating the power. (4) This section applies to powers created by instruments coming into operation either before or after the commencement of this Act. (5) Where any such power is exercisable by a dealing to be registered under the Real Property Act 1900, the power may be released or disclaimed by a dealing in the form approved under that Act and such a dealing may be registered under that Act. 29 Appointments to be valid notwithstanding one or more objects excluded (1) No appointment in exercise of any power to appoint any property amongst several objects shall be invalid on the ground that any object of the power has been altogether excluded, but every such appointment shall be valid and effectual notwithstanding that any one or more of the objects do not by such appointment or in default of appointment take a share or shares of the property. (2) Nothing in this section shall prejudice or affect any provision in any instrument creating any power which declares the amount of the share or shares from which no object of the power shall be excluded, or some one or more object or objects shall not be excluded. (3) This section applies to appointments made after the commencement of this Act in exercise of powers created before or after the commencement of this Act. 29A Protection of purchasers claiming under certain void appointments (1) An instrument purporting to exercise a legal or equitable power of appointment over property, which, in default of and subject to any appointment, is limited to or held in trust for a class or number of persons including the appointee, shall not be void on the ground of fraud on the power as against a purchaser in good faith— Provided that, if the interest appointed exceeds in amount or value the interest in such property to which immediately before the execution of the instrument the appointee was presumptively entitled under the trust in default of appointment, having regard to any advances made in the appointee's favour and to any hotchpot provision, the protection afforded by this section to a purchaser shall not extend to such excess. (2) In this section a purchaser in good faith means a person dealing with an appointee for valuable consideration and without notice of the fraud, or of any circumstances from which, if reasonable inquiries had been made, the fraud might have been discovered. (3) A successor in title to a purchaser entitled to the benefit of this section shall be entitled to the like benefit. (4) This section applies only to dealings effected after the commencement of the Conveyancing (Amendment) Act 1930, but applies to powers created or arising either before or after such commencement. (5) This section as amended by the Minors (Property and Contracts) Act 1970 applies only to dealings effected after the commencement of that Act, but applies to powers created or arising either before or after such commencement. 29B Restrictions on executory limitations (1) Where there is a person entitled to— (a) land for an estate in fee simple or for any less estate or interest, or (b) any other property, with an executory limitation over on default or failure of all or any of the person's issue, whether within or at any specified period of time or not, that executory limitation shall be or become void and incapable of taking effect, if and as soon as there is living any issue who has attained the age of eighteen years of the class on default or failure whereof the limitation over was to take effect. (2) This section applies where the executory limitation is contained in an instrument coming into operation after the first day of July one thousand nine hundred and twenty save that, as regards instruments coming into operation before the commencement of the Conveyancing (Amendment) Act 1930 it only applies to limitations of land for an estate in fee, or for a term of years absolute or determinable on life, or for a term of life. (3) This section as amended by the Minors (Property and Contracts) Act 1970 applies where the executory limitation is contained in an instrument coming into operation after the commencement of that Act. 29C Restrictions on operation of conditions of forfeiture (1) Where there is a person entitled to income (including an annuity or other periodical income) or any other property, subject to a condition of forfeiture on alienation, whether voluntary or involuntary, and whether with or without words of futurity, then— (a) unless the instrument containing the condition expressly provides to the contrary, no alienation, whether by way of charge or otherwise, of the income or other property, made or occurring before the person becomes entitled to receive payment of the income, or to call for a conveyance or delivery of the other property, shall operate to create forfeiture under the condition unless the alienation is in operation at the time the person becomes so entitled, (b) notwithstanding any stipulation to the contrary in the instrument containing the condition no voluntary alienation made by the person, with the sanction of the court, shall operate to create forfeiture under the condition. (2) This section applies where the condition of forfeiture is contained in an instrument executed, made, or coming into operation before or after the commencement of the Conveyancing (Amendment) Act 1930, but only in cases where such person becomes entitled to receive payment of the income, or to call for an assurance or delivery of the other property, or, where the alienation with the sanction of the court is made after such commencement. 30 Notice of severance of joint tenancy (1) A person who unilaterally severs, or causes the severance of, a joint tenancy in land to which the Real Property Act 1900 does not apply must give notice of the severance to all joint tenants in the joint tenancy as soon as practicable after the joint tenancy has been severed. (2) The notice is to be given in a form approved by the Registrar-General. (3) Failure to give notice as required by and in accordance with this section does not invalidate or otherwise affect the severance of the joint tenancy. 31, 31A (Repealed) 32 Vesting in executor or administrator de bonis non (1) Where, upon the death of an executor or administrator, administration of the estate remaining unadministered is granted, such estate shall, upon the grant, vest as from the death of such executor or administrator, in the person to whom the grant is made. (2) Where in the case of a person dying on or after the fifteenth day of December, one thousand eight hundred and ninety (being the day of the passing of the Probate Act of 1890), administration of the estate remaining unadministered has been granted prior to the commencement of this Act, a conveyance by the person to whom the grant was made shall be deemed to be and to have been effectual to pass any legal estate in the property conveyed which was vested in the deceased executor or administrator at the time of his or her death. 33 Meaning of heir, next of kin, or statutory next of kin of any person (1) Where, under the terms of any will coming into operation, or of any instrument (other than a will) made, after the commencement of section 3 of the Conveyancing (Amendment) Act 1977, any property would, but for this section, vest in— (a) the heirs of a person, (b) the next of kin of a person, or (c) the next of kin of a person to be determined in accordance with the Probate and Administration Act 1898, the provisions of the applicable intestacy rules shall, subject to subsection (2), apply in respect of that property in the same way as those provisions would apply if that person had died intestate as to that property. (2) Subsection (1) applies only if and so far as a contrary or another intention is not expressed in the will or other instrument and shall have effect subject to the provisions of the will or other instrument. (3) Where, under the terms of any will coming into operation, or of any instrument (other than a will) made, before the commencement of section 3 of the Conveyancing (Amendment) Act 1977, any property would, but for this subsection, vest in— (a) the heirs of a person, (b) the next of kin of a person, or (c) the next of kin of a person to be determined in accordance with the Probate and Administration Act 1898, that property shall vest in the persons in whom it would have vested if that section had not commenced. (4) In subsection (1)— applicable intestacy rules means— (a) for a will coming into operation, or an instrument made, before the repeal of Division 2A of Part 2 of the Probate and Administration Act 1898—that Division as in force immediately before its repeal, and (b) for a will coming into operation, or an instrument made, after the repeal of that Division—Chapter 4 (Intestacy) of the Succession Act 2006. 34 Meaning of heir (male or female) or heirs (male or female) of the body of any person (1) Where under the terms of any instrument coming into operation after the commencement of this Act any property vests in— (a) the heir or heirs of the body of any person, or (b) the heir or heirs male, or the heir or heirs male of the body of any person, or (c) the heir or heirs female, or the heir or heirs female of the body of any person, the property shall vest as follows— In case (a) in the issue of such person as tenants in common per stirpes, in case (b) in the sons and issue of sons of such person as tenants in common per stirpes, and in case (c) in the daughters and the issue of daughters of such person as tenants in common per stirpes. (2) This section applies only if and as far as a contrary or other intention is not expressed in the instrument, and shall have effect subject to the terms of the instrument and to the provisions therein contained. 35 Presumption of survivorship In all cases where two or more persons have died under circumstances rendering it uncertain which of them survived, the deaths shall for all purposes affecting the title to any property be presumed to have taken place in order of seniority, and the younger be deemed to have survived the elder. 36 (Repealed) 36A Power to direct division of chattels Where any chattels belong to persons jointly or in undivided shares, the persons interested to the extent of a moiety or upwards may apply to the court for an order for division of the chattels or any of them, according to a valuation or otherwise, and the court may make such order and give any consequential directions as it thinks fit. 36B Contingent and future interests to carry the intermediate income Where under an instrument other than a will coming into operation after the commencement of the Conveyancing (Amendment) Act 1930 property stands limited to a person for a contingent or future interest, or stands limited to trustees upon trust for a person whose interest is contingent or executory, such interest shall, subject to the statutory provisions relating to accumulations, carry the intermediate income of that property from the time when the instrument comes into operation, except so far as such income or any part thereof may be otherwise expressly disposed of. 36C Persons taking who are not parties (1) A person may take an immediate or other interest in land or other property, or the benefit of any condition, right of entry, covenant, or agreement over or respecting land or other property, although the person may not be named as a party to the assurance or other instrument. (2) Such person may sue, and shall be entitled to all rights and remedies in respect thereof as if he or she had been named as a party to the assurance or other instrument. 36D Provisions as to supplemental instruments Any instrument (whether executed before or after the commencement of the Conveyancing (Amendment) Act 1930) expressed to be supplemental to a previous instrument, shall, as far as may be, be read and have effect as if the supplemental instrument contained a full recital of the previous instrument, but this section shall not operate to give any right to an abstract or production of any such previous instrument, and a purchaser may accept the same evidence that the previous instrument does not affect the title as if it had merely been mentioned in the supplemental instrument. 37 (Repealed) Division 5 Voidable dispositions 37A Voluntary alienation to defraud creditors voidable (1) Save as provided in this section, every alienation of property, made whether before or after the commencement of the Conveyancing (Amendment) Act 1930, with intent to defraud creditors, shall be voidable at the instance of any person thereby prejudiced. (2) This section does not affect the law of bankruptcy for the time being in force. (3) This section does not extend to any estate or interest in property alienated to a purchaser in good faith not having, at the time of the alienation, notice of the intent to defraud creditors. 37B Voluntary alienation of land how far voidable as against purchasers (1) Every instrument (other than a will) which operates, or on registration would operate as a voluntary alienation of land, shall, if made with intent to defraud a subsequent purchaser, be voidable at the instance of a subsequent purchaser. (2) For the purposes of this section no such instrument (whether made before or after the commencement of the Conveyancing (Amendment) Act 1930) shall, if registered before a subsequent purchase, be deemed to have been made with intent to defraud by reason only of that purchase, or that the instrument was not made for valuable consideration. 37C Acquisitions of reversions at an under value (1) No acquisition made in good faith, without fraud or unfair dealing, of any reversionary interest in real or personal property for money or money's worth, shall be liable to be opened or set aside merely on the ground of under value. In this subsection reversionary interest includes an expectancy or possibility. (2) This section does not affect the jurisdiction of the court to set aside or modify unconscionable bargains. Division 6 37D (Repealed) Part 3 General rules relating to deeds Division 1 Deeds and their effect 38 Signature and attestation (1) Every deed, whether or not affecting property, shall be signed as well as sealed, and shall be attested by at least one witness not being a party to the deed; but no particular form of words shall be requisite for the attestation. (1A) For the purposes of subsection (1), but without prejudice to any other method of signing, a deed is sufficiently signed by a person if— (a) by the direction and in the presence of that person the deed is signed in the name of that person by another person, (b) the signature is attested by a person who is not a party or signatory (except by way of attestation) to the deed, and (c) the person attesting the signature certifies in his or her attestation that he or she is a prescribed witness and that the signature was affixed by the direction and in the presence of the person whose signature it purports to be. (1B) For the purposes of subsection (1) but without prejudice to any other method of signing, a deed is sufficiently signed by a person if— (a) that person affixes his or her mark to the deed, (b) the affixing of the mark is attested by a person who is not a party or signatory (except by way of attestation) to the deed, and (c) the person attesting the affixing of the mark certifies in his or her attestation— (i) that, before the mark was affixed, he or she explained the nature and effect of the deed to the person making the mark, and (ii) that he or she believed, at the time the mark was affixed, that the person making the mark understood the explanation. (2) Indenting shall not be necessary in any case. (3) Every instrument expressed to be an indenture or a deed, or to be sealed, which is signed and attested in accordance with this section, shall be deemed to be sealed. (4) Every deed, executed and attested in accordance with this section may be proved in the same manner as a deed not required by law to be attested might have been proved heretofore. (5) Nothing in this section contained shall affect— (a) the execution of deeds by corporations, or (b) the provisions of section 184F(4), or (c) any deed executed prior to the commencement of this Act. 38A Electronic form deeds (1) A deed may be created in electronic form and electronically signed and attested. (2) Section 38(5)(a) does not limit the application of this section to the execution of deeds by corporations. 39 Receipt in deed sufficient (1) A receipt for consideration money or securities in the body of a deed shall be a sufficient discharge for the same to the person paying or delivering the same without any further receipt for the same being indorsed on the deed. (2) This section applies only to deeds executed after the commencement of this Act. 40 Receipt in deed or indorsed evidence for subsequent purchaser (1) A receipt for consideration money or other consideration in the body of a deed or indorsed thereon shall in favour of a subsequent purchaser not having notice that the money or other consideration thereby acknowledged to be received was not in fact paid or given wholly or in part be sufficient evidence of the payment or giving of the whole amount thereof. (2) This section applies to deeds executed or indorsements made before or after the commencement of this Act. 41 Mode of exercise of powers (1) Where a power of appointment by an instrument other than a will is exercised by deed, executed and attested in accordance with this Act, or in the case of a dealing under the Real Property Act 1900 in accordance with that Act, such deed or dealing shall, so far as respects the execution and at