Queensland: Land Title Act 1994 (Qld)

Land Title Act 1994 An Act to consolidate and reform the law about the registration of freehold land and interests in freehold land, and for other related purposes Part 1 Preliminary 1 Short title This Act may be cited as the Land Title Act 1994. 3 Object of Act The object of this Act is to consolidate and reform the law about the registration of freehold land and interests in freehold land and, in particular— (a) to define the rights of persons with an interest in registered freehold land; and (b) to continue and improve the system for registering title to and transferring interests in freehold land; and (c) to define the functions and powers of the registrar of titles; and (d) to assist the keeping of the registers in the land registry, particularly by authorising the use of information technology. 4 Definitions A dictionary in schedule 2 defines particular words used in this Act. 4A References In a provision of this Act about a community titles scheme, a reference to— (a) scheme land, is a reference to the scheme land for the scheme; and (b) the body corporate, is a reference to the body corporate for the scheme; and (c) common property, is a reference to common property for the scheme; and (d) the community management statement, is a reference to the community management statement for the scheme. 5 Act binds all persons This Act binds all persons, including the State and, so far as the legislative power of the Parliament permits, the Commonwealth, the other States and the Territories. Part 2 Administration Division 1 General Subdivision 1 Registrar and land registry 6 Registrar of titles (1) There is to continue to be a registrar of titles. (2) The registrar has a seal of office. (3) The registrar is to be employed under the Public Sector Act 2022. (4) Judicial notice must be taken of the signature, or the imprint of the seal, of the registrar appearing on a document and the document must be presumed to have been properly signed or sealed until the contrary is proved. (5) In acting under this Act or another Act, the registrar is subject to the chief executive, but is not subject to any other officer or employee of the department. 7 Land registry (1) The registrar must keep a land registry. (2) The land registry includes— (a) the freehold land register; and (b) the power of attorney register; and (c) the Foreign Ownership of Land Register; and (d) registers about land prescribed by regulation; and (e) other registers about land required or permitted by an Act to be included in the land registry. (3) In this section— Foreign Ownership of Land Register means the register under the Foreign Ownership of Land Register Act 1988. power of attorney register see section 133(1). 8 Form of registers (1) A register kept by the registrar may be kept in the form (whether or not in a documentary form) the registrar considers appropriate. (2) Without limiting subsection (1), the registrar may change the form in which a register or a part of a register is kept. Subdivision 2 Delegations 9 Delegation by registrar (1) The registrar may delegate the registrar's functions under this Act or another Act to— (a) an appropriately qualified public service employee; or (b) the titles registry operator. (2) If a function of the registrar is delegated to the titles registry operator, the titles registry operator must subdelegate the function to an appropriately qualified employee of the titles registry operator. (3) The titles registry operator may impose conditions on a subdelegation under subsection (2) that are not inconsistent with any conditions to which the delegation to the titles registry operator is subject. (4) If the registrar delegates the registrar's function of keeping the land registry to the titles registry operator, a reference in an Act to an office of the land registry is, if the context permits, taken to be a reference to an office of the titles registry operator— (a) where documents may be lodged; and (b) that is published on the operator's website. (5) In this section— function includes power. 9AA Use of registrar's title (1) A public service employee delegated a function of the registrar under this Act or another Act may, when performing the function, act under the title 'registrar of titles'. Note— See the Queensland Future Fund (Titles Registry) Act 2021, section 30 in relation to the titles registry operator, or the operator's employees, using the registrar's title. (2) In this section— function includes power. Subdivision 3 Practice manual 9A Land title practice manual (1) The registrar may keep a manual of land title practice (by whatever name called) in the way the registrar considers appropriate, for the information and guidance of persons performing functions in relation to the land registry and other persons dealing with the land registry. (2) The manual may include— (a) directions given by the registrar under— (i) section 10(1)(b); or (ii) the Forestry Act 1959, section 61RW(1)(b); or (iii) the Land Act 1994, section 287(1)(b); and (b) practices developed in the land registry, before or after the commencement of this section, for the depositing and lodging of instruments, including practices directed at ensuring that— (i) there is consistency and efficiency in land registry processes; and (ii) each register under this Act is an accurate, comprehensive and usable record; and (iii) the integrity of the registers included in the land registry is supported and maintained to the greatest practicable extent. (3) The manual may include statements about additional information a person may be required to produce, or additional instruments or documents a person may be required to deposit, under section 156. (4) The manual may provide for the registrar's approval of the form of an electronic conveyancing document for the Electronic Conveyancing National Law (Queensland), section 7(1)(a). (5) The registrar must make the manual available to the public in the way the registrar considers appropriate. (6) Without limiting subsection (5), the registrar must ensure an up-to-date copy of the manual is available to be read free of charge at each office of the land registry. Division 2 General requirements for instruments in the freehold land register 10 Form of instruments (1) An instrument lodged by a person or issued by the registrar must— (a) be in the appropriate form; and (b) comply with the directions of the registrar about— (i) how the appropriate form must be completed; and (ii) how information to be included in or given with the instrument must be included or given. (2) An instrument required or permitted to be executed must be in the appropriate form when it is executed. (3) However, the registrar may register an instrument that is not in the appropriate form if the registrar is satisfied it is not reasonable to require the instrument to have been executed in the appropriate form. (4) Also, the registrar may register, or otherwise deal with, an instrument that does not comply with a direction mentioned in subsection (1)(b) if the registrar is satisfied it is reasonable to not require the compliance. (5) Subsections (3) and (4) do not apply to an instrument that is an electronic conveyancing document. 10A Registration of, or dealing with, particular instruments or other documents (1) This section applies if an instrument or other document is lodged or deposited other than in compliance with a requirement under this Act. (2) The registrar may register, or otherwise deal with, the instrument or document if the registrar is satisfied it is reasonable not to require the compliance. 11 Execution of certain instruments (1) An instrument to transfer or create an interest in a lot must be executed by— (a) the transferor or the person creating the interest; and (b) the transferee or the person in whose favour the interest is to be created or a legal practitioner authorised by the transferee or the person. (2) A total or partial discharge or release of mortgage need only be signed by the mortgagee. (3) For an instrument that is an electronic conveyancing document, subsections (1) and (2) apply subject to the form approved for the instrument under the Electronic Conveyancing National Law (Queensland), section 7. 11A Original mortgagee to confirm identity of mortgagor (1) This section applies to— (a) the mortgaging of a lot or an interest in a lot; and (b) an amendment of a mortgage mentioned in paragraph (a). (2) Before the instrument of mortgage or amendment of mortgage is lodged for registration, the mortgagee under the instrument (the original mortgagee) must take reasonable steps to ensure the person who is the mortgagor under the instrument is identical with the person who is, or who is about to become, the registered proprietor of the lot or the interest in a lot. (2A) For subsection (2), a person is the mortgagor under an instrument of mortgage or amendment of mortgage if the person executes the instrument as mortgagor, including, if the instrument is an electronic conveyancing document, through a subscriber digitally signing the instrument under the Electronic Conveyancing National Law (Queensland). (2B) Also, for subsection (2), a person is the mortgagor under an instrument of mortgage or amendment of mortgage if the instrument is an electronic conveyancing document and the person signs, as mortgagor, a document that under the participation rules under the Electronic Conveyancing National Law (Queensland)— (a) is required as a supporting document for the instrument of mortgage or amendment of mortgage; and (b) is required to be kept by the original mortgagee. (3) Without limiting subsection (2), the original mortgagee takes reasonable steps under the subsection if the original mortgagee complies with practices included in the manual of land title practice under section 9A for the verification of identification of mortgagors. (4) The original mortgagee must, for 7 years after the instrument is registered, and whether or not there is registered a transfer of the interest constituted by the mortgage— (a) keep a written record of the steps taken under subsection (2); or (b) keep originals or copies of the documents and other evidence provided to or otherwise obtained by the original mortgagee in complying with subsection (2). Maximum penalty—20 penalty units. (5) The registrar may, whether before or after the registration of the instrument, and whether or not there has been registered a transfer of the interest constituted by the mortgage, ask the original mortgagee— (a) to advise the registrar about the steps taken by the original mortgagee under subsection (2); and (b) to produce for the registrar's inspection the written record mentioned in subsection (4)(a) or the originals or copies mentioned in subsection (4)(b). (6) The original mortgagee must comply with a request under subsection (5) unless the original mortgagee has a reasonable excuse. Maximum penalty—20 penalty units. (7) This section applies to an instrument of mortgage only if it is executed after the commencement of this section. 11B Mortgage transferee to confirm identity of mortgagor (1) This section applies to the transfer of the interest constituted by the mortgage of a lot or an interest in a lot. (2) Before the instrument of transfer is lodged for registration, the transferee under the instrument of transfer (the mortgage transferee) must take reasonable steps to ensure the person who was the mortgagor under the instrument of mortgage was identical with the person who, when the instrument of mortgage was registered, was the registered proprietor of the lot, or the interest in a lot. (2A) For subsection (2), a person was the mortgagor under an instrument of mortgage if the person executed the instrument as mortgagor, including, if the instrument is an electronic conveyancing document, through a subscriber digitally signing the instrument under the Electronic Conveyancing National Law (Queensland). (2B) Also, for subsection (2), a person was the mortgagor under an instrument of mortgage if the instrument is an electronic conveyancing document and the person signed, as mortgagor, a document that under the participation rules under the Electronic Conveyancing National Law (Queensland)— (a) was required as a supporting document for the instrument of mortgage; and (b) was required to be kept by the original mortgagee mentioned in section 11A(2). (3) Without limiting subsection (2), the mortgage transferee takes reasonable steps under the subsection if the mortgage transferee complies with practices included in the manual of land title practice under section 9A for the verification of identification of mortgagors. (4) The mortgage transferee must, for 7 years after the instrument of transfer of the mortgage is registered, and whether or not there is registered a further transfer of the interest constituted by the mortgage— (a) keep a written record of the steps taken under subsection (2); or (b) keep originals or copies of the documents and other evidence provided to or otherwise obtained by the mortgage transferee in complying with subsection (2). Maximum penalty—20 penalty units. (5) The registrar may, whether before or after the registration of the instrument of transfer of the mortgage, and whether or not there has been registered a further transfer of the interest constituted by the mortgage, ask the mortgage transferee— (a) to advise the registrar about the steps taken by the mortgage transferee under subsection (2); and (b) to produce for the registrar's inspection the written record mentioned in subsection (4)(a) or the originals or copies mentioned in subsection (4)(b). (6) The mortgage transferee must comply with a request under subsection (5) unless the mortgage transferee has a reasonable excuse. Maximum penalty—20 penalty units. (7) This section applies to an instrument of transfer of a mortgage only if the instrument of transfer is executed after the commencement of this section. (8) However, this section applies in relation to an instrument of mortgage whenever executed. 12 Giving consent for dealings (1) Subject to subsections (2) to (4), if the consent of a person is required or permitted for a dealing with a lot, the consent must be— (a) written on the instrument for the dealing (the relevant instrument); or (b) if the registrar considers it appropriate—deposited with the relevant instrument. (2) If the relevant instrument is an electronic conveyancing document, the person is taken to have complied with subsection (1) if the consent— (a) is in the form of an electronic conveyancing document; and (b) is deposited with the relevant instrument. (3) Subsection (4) applies if the relevant instrument is lodged or deposited in an electronic form by an electronic communication under— (a) this Act or another law, other than the Electronic Conveyancing National Law (Queensland); and (b) the Electronic Transactions (Queensland) Act 2001. (4) The person is taken to have complied with subsection (1) if— (a) a method is used to identify the person and to indicate the person's consent; and (b) having regard to all the relevant circumstances when the method was used, the method was as reliable as was appropriate for the purposes for which the consent was communicated; and (c) the registrar consents to the requirement being met by using the method. 13 [Repealed] 14 Offence not to use appropriate form If there is an appropriate form for an instrument, a person must not knowingly use a form for the instrument that is not the appropriate form. Maximum penalty—20 penalty units. Division 2A Electronic conveyancing documents 14A Reference to a particular type of document includes its electronic conveyancing form A reference in this Act to a document of a type that may be lodged or deposited under this Act includes a reference to the document in the form of an electronic conveyancing document. 14B What is an electronic conveyancing document (1) An electronic conveyancing document is a document under the Electronic Conveyancing National Law (Queensland) that is lodged electronically under section 7 of that Law, in the land registry. Note— Under the Electronic Conveyancing National Law (Queensland), schedule 1, section 12(1), definition document, a document includes any record of information that exists in a digital form and is capable of being reproduced, transmitted, stored and duplicated by electronic means. (2) Subsection (3) applies to a document that is lodged or deposited in an electronic form by an electronic communication under— (a) this Act or another law, other than the Electronic Conveyancing National Law (Queensland); and (b) the Electronic Transactions (Queensland) Act 2001. (3) To remove any doubt, it is declared that the document is not an electronic conveyancing document. 14C Signing or executing an electronic conveyancing document If this Act provides for a document to be signed or executed and the document is an electronic conveyancing document, the document must be digitally signed as provided for under the Electronic Conveyancing National Law (Queensland). 14D Registering an electronic conveyancing document For registering an electronic conveyancing document, the registrar may rely on a certification made under the participation rules determined under the Electronic Conveyancing National Law (Queensland). Division 3 Powers of the registrar 15 Registrar may correct registers (1) The registrar may correct any register kept by the registrar if the registrar is satisfied that— (a) the register is incorrect; and (b) the correction will not prejudice the rights of the holder of an interest recorded in the register. (2) Without limiting subsection (1), the registrar may correct a register under the subsection if— (a) the register is incorrect because the registrar has incorrectly recorded a particular or registered an instrument; or (b) the registrar has held an inquiry under division 4, and has decided that the register is incorrect, including for example, because there has been fraud affecting the register. (3) The registrar may correct a register kept by the registrar, whether or not the correction will prejudice the rights of the holder of an interest recorded in the register, if— (a) the register to be corrected is the freehold land register, and the correction is to show, in relation to a lot, an easement the particulars of which have been omitted from, or misdescribed in, the register; or (b) the Supreme Court has ordered the correction under section 26. (4) Section 185(3), (4) and (6) applies for subsection (3)(a) in the same way it applies for section 185(1)(c). (5) The registrar's power to correct a register includes power to correct a particular in the register or an instrument forming part of the register. (6) If a register is corrected, the registrar must record in the register— (a) the state of the register before the correction; and (b) the time, date and circumstances of the correction. (7) A register corrected by the registrar under this section has the same effect as if the relevant error had not been made. (8) For subsection (1)(b), the rights of the holder of an interest recorded in the register are not prejudiced if the holder acquired or has dealt with the interest with actual or constructive knowledge that the register was incorrect and how it was incorrect. 16 Lot-on-plan description The registrar may simplify the description of a lot registered in the freehold land register by amending the existing description to a lot-on-plan description. 17 Registrar may prepare and register caveat (1) The registrar may prepare and register a caveat over a lot, or an interest in a lot, in favour of a person. (2) The registrar may act under subsection (1) to prevent a dealing with the lot that may prejudice— (a) the Commonwealth, a State or a local government; or (b) a minor; or (c) a person who is intellectually or mentally impaired or is incapable of managing the person's own affairs; or (d) a person who is absent from the State; or (e) a person because of— (i) misdescription of the lot or its boundaries; or (ii) fraud or forgery; or (f) a person to whom a notice has been given, or has been required to be given, under section 30(3); or (g) a person, other than a person mentioned in any of paragraphs (a) to (f), who has an interest in the lot. (3) Also, the registrar may act under subsection (1) to prevent a dealing with a lot to give effect to an order of a court of competent jurisdiction directed to the registrar. (4) Subsection (2)(g) applies only if the registrar is satisfied, because of the nature or urgency of particular circumstances, there is no practicable alternative to registering the caveat. 18 Registrar may require public notice to be given of certain proposed action (1) This section applies if a person (the applicant) asks the registrar to do any of the following things— (a) register the person as an adverse possessor; (b) register a transmission of a registered interest; (c) dispense with production of an instrument. (2) The registrar may, by written notice, require the applicant to give public notice of the request. (3) However, if the applicant has asked the registrar to register the person as an adverse possessor, the registrar must require the applicant to give public notice of the request. (4) The registrar may specify in the notice to the applicant— (a) what is to be included in the public notice; and (b) how many times the public notice is to be published; and (c) how and when the public notice is to be published. (5) The applicant must satisfy the registrar that the public notice has been given as required by the registrar. 18A Pre-examination of plans (1) Nothing in this Act prevents the registrar from examining a plan of survey and related instruments deposited before the plan— (a) is approved by a local government; or (b) is lodged for registration. (2) Section 156 applies to a plan and related instruments deposited under subsection (1). Division 4 Inquiries 19 Registrar may decide to hold inquiry The registrar may decide to hold an inquiry under this division— (a) to decide whether a register should be corrected; or (b) to consider whether a person has fraudulently or wrongfully— (i) obtained, kept or procured an instrument affecting land in a register; or (ii) procured a particular in a register or an endorsement on an instrument affecting land; or (c) to consider whether a fraud affecting the land registry has otherwise been committed; or (d) to otherwise consider an issue arising from the lodgement or registration of an instrument in the land registry; or (e) in circumstances prescribed by regulation. 20 Registrar's duties on inquiry When conducting the inquiry, the registrar— (a) must observe natural justice; and (b) must act as quickly, and with as little formality and technicality, as is consistent with a fair and proper consideration of the issues. 21 Registrar may decide procedures (1) The registrar— (a) is not bound by the rules of evidence; and (b) may inform himself or herself in any way the registrar considers appropriate; and (c) may decide the procedures to be followed at the inquiry. (2) However, the registrar must comply with this division and the procedural rules that may be prescribed by regulation. 22 Registrar's powers on inquiry (1) In conducting the inquiry, the registrar may— (a) act in the absence of a person who has been given reasonable notice; and (b) receive evidence on oath or affirmation or by statutory declaration; and (c) adjourn the inquiry; and (d) disregard a defect, error or insufficiency in a document; and (e) permit or refuse to permit a person (including a legal practitioner) to represent someone at the inquiry. (2) The registrar may administer an oath or affirmation to a person appearing as a witness before the inquiry. 23 Notice to witness (1) The registrar may, by written notice given to a person, require the person to attend the inquiry at a specified time and place as a witness to give evidence or produce specified documents or things. (2) Without limiting subsection (1), any of the following persons may be required to attend the inquiry— (a) a person who may have helped another person act fraudulently or wrongfully in a way mentioned in section 19(b); (b) a person who is a party to a transaction that may have resulted in a fraud affecting the land registry; (c) a person who may have contributed directly or indirectly to a fraud affecting the land registry. (3) A person required to appear as a witness before the inquiry is entitled to the reasonable witness fees decided by the registrar. 24 Offences by witnesses (1) A person who is given a notice under section 23 must not— (a) fail, without reasonable excuse, to attend as required by the notice; or (b) fail, without reasonable excuse, to continue to attend at the inquiry as required by the registrar until excused from further attendance. Maximum penalty—35 penalty units. (2) A person appearing as a witness at the inquiry must not— (a) fail to take an oath or make an affirmation when required by the registrar; or (b) fail, without reasonable excuse, to answer a question the person is required to answer by the registrar; or (c) fail, without reasonable excuse, to produce a document or thing the person is required to produce by a notice under section 23. Maximum penalty—35 penalty units. (3) It is a reasonable excuse for a person to fail to answer a question or produce a document or thing if answering the question or producing the document or thing might tend to incriminate the person. Division 5 Registrar may refer matter to the Supreme Court 25 Referral to Supreme Court from inquiry (1) If, in an inquiry under division 4, a person— (a) fails to attend as required by a notice given under section 23; or (b) fails to continue to attend as required by the registrar; or (c) fails to take an oath or make an affirmation when required by the registrar; or (d) fails to answer a question the person is required to answer by the registrar; or (e) fails to produce a document or thing the person is required to produce by a notice under section 23; the registrar may apply to the Supreme Court for an order to compel the person to comply with the notice or requirement. (2) The Supreme Court may make any order to assist the registrar in the registrar's conduct of the inquiry that the Supreme Court considers appropriate. 26 Other referrals by the registrar to the Supreme Court In any matter under this Act, the registrar may— (a) apply to the Supreme Court for directions; or (b) state a case for decision by the Supreme Court; or (c) refer a finding of an inquiry to the Supreme Court, seeking— (i) an order for the registrar or another person to take a stated action, including for example an order for the registrar to correct a register; or (ii) an order the court considers appropriate in the circumstances. Part 3 Freehold land register Division 1 General 27 Registrar must keep register The registrar must keep a register of freehold land (the freehold land register). 28 Particulars the registrar must record (1) The registrar must record in the freehold land register the particulars necessary to identify— (a) every lot brought under this Act; and (b) every interest registered in the register; and (c) the name of the person who holds, and the name of each person who has held, a registered interest; and (d) if the person who holds a registered interest is a minor—the minor's date of birth; and (e) all instruments registered in the register and when they were lodged and registered. (2) The registrar must also record in the freehold land register anything else required to be recorded by this or another Act. 29 Particulars the registrar may record (1) The registrar may record in the freehold land register anything that the registrar is permitted to record by this or another Act. (2) The registrar may also record in the freehold land register anything that the registrar considers should be recorded to ensure that the register is an accurate, comprehensive and usable record of freehold land in the State. 29A Particulars the registrar may remove The registrar may remove from the freehold land register anything recorded under section 28(2) or 29 if— (a) the registrar no longer considers the thing should be recorded to ensure the freehold land register is an accurate, comprehensive and usable record of freehold land in the State; and (b) the removal of the thing will not prejudice the rights of the holder of an interest recorded in the register. 30 Registrar must register instruments (1) On lodgement of an instrument, the registrar must register the instrument if— (a) the person who lodged it complies with the requirements of this Act for its registration; and (b) the instrument is not inconsistent with another Act or law; and (c) if the instrument is a plan of survey—it is not inconsistent with another plan of survey. (2) However, subsection (1) does not prevent the person from withdrawing the instrument. (3) If the instrument is a plan of survey and it is inconsistent with another plan of survey, the registrar may— (a) give a written notice to a registered proprietor of a lot that may be affected by registration of the plan of survey; or (b) require the person who lodged the instrument to give a written notice, in the way the registrar requires, to a person mentioned in paragraph (a). 31 Instruments form part of the freehold land register On registration of an instrument in the freehold land register, the instrument forms part of the register. 32 Registrar's procedures on lodgement and registration of instrument (1) When an instrument is lodged in the land registry, the registrar must note on the instrument— (a) the date and time of lodgement; and (b) an identifying reference. (2) When the instrument is registered, the registrar must record the information mentioned in subsection (1)(a) and (b) in the appropriate register. 33 Separate part of the freehold land register for powers of attorney The registrar must keep a separate part of the freehold land register for registered powers of attorney. 34 Other information not part of the freehold land register (1) The registrar may keep separately from the freehold land register information that the registrar considers necessary or desirable for the effective or efficient operation of the register. (2) The information may include information given to the registrar by another entity. (3) A relevant entity is not civilly liable for an act done, or omission made, honestly and without negligence in relation to the giving or keeping of information under this section. (4) Without limiting subsection (3), a relevant entity other than the registrar is not civilly liable in relation to the giving or keeping of inaccurate information under this section if the relevant entity did not give the information to the registrar for keeping under this section. (5) In this section— relevant entity means— (a) the registrar; or (b) the chief executive; or (c) the Minister; or (d) the State. 35 Entitlement to search register (1) A person may, on payment of the relevant titles registry fee— (a) search and obtain a copy of— (i) the indefeasible title of a lot; or (ii) a registered instrument; or (iii) an instrument that has been lodged but is not registered (whether or not it has been cancelled); or (iv) information kept under this Act; and (b) obtain a copy of the indefeasible title of a lot, or a registered instrument, certified by the registrar to be an accurate copy. (2) Subsection (1)(a)(iii) does not apply to an instrument that has been destroyed by the registrar. (3) A search under subsection (1) may be carried out at, or a copy mentioned in subsection (1) obtained from, an office of the land registry during office hours on a day the office is open for business. (4) Also, a search under subsection (1) may be carried out by, or a copy mentioned in subsection (1) obtained from, an entity engaged by the registrar for allowing persons to search the land registry or obtain copies of indefeasible titles, registered or other instruments, or information, kept in the registry. (5) The registrar may allow a person to carry out a search under subsection (1)(a) for— (a) only part of an indefeasible title for a lot; or (b) only part of an instrument; or (c) only part of the information about an instrument. (6) The registrar may enter into an arrangement with a department allowing the department to carry out a search, or obtain a copy, under this section without payment of the fee mentioned in subsection (1). (7) However, the registrar may enter into an arrangement under subsection (6) only if the registrar is reasonably satisfied the information obtained from the search or the copy will not be— (a) used for a commercial purpose, including, for example, the marketing or sale of the information or other information; or (b) included in another database of information, in any form, other than with approval from the registrar. (8) If the registrar delegates the registrar's functions of keeping the land registry to the titles registry operator, subsections (4), (6) and (7) apply as if each reference to the registrar were a reference to the operator. 35A Fee required to produce document under subpoena etc. (1) This section applies if a fee is payable under section 35(1) for a person to obtain a copy of a document and— (a) a subpoena requires the document to be produced; or (b) a person has applied under the Evidence Act 1977, section 134A for the document to be produced for inspection. (2) Despite any other law or rule of court, the registrar is not required to produce, or provide a copy of, the document until the fee mentioned in section 35(1) is paid. (3) Subsection (2) does not apply if a department is not required to pay a fee for the document under an agreement mentioned in section 35(6). 36 Evidentiary effect of certified copies of documents (1) A document purporting to be a certified copy of the indefeasible title of a lot obtained under section 35(1)(b) is evidence of the indefeasible title. (2) A document purporting to be a certified copy of a registered instrument obtained under section 35(1)(b) is evidence of the registered instrument. Division 2 Indefeasible title 37 Creation of indefeasible title An indefeasible title for a lot is created on the recording of the particulars of the lot in the freehold land register. 38 Meaning of indefeasible title The indefeasible title for a lot is the current particulars in the freehold land register about the lot. 39 Single indefeasible title for 2 or more lots (1) The registrar may create a single indefeasible title for 2 or more lots that have the same registered owner by including a single set of particulars for the lots in the freehold land register. (2) The registrar may act under this section if the registrar considers that, in the special circumstances of the case, it is appropriate for the lots to have a single indefeasible title. (3) Without limiting subsection (2), the registrar may act under this section if the lots— (a) share a common boundary; or (b) have a boundary that adjoins the same part of a road or watercourse. 40 Separation of single indefeasible title for 2 or more lots (1) If the registrar has created a single indefeasible title for 2 or more lots, the registrar may create separate indefeasible titles for any of the lots by cancelling the single set of particulars for the lots in the freehold land register and including separate particulars for the lots. (2) This section does not prevent the registrar from also acting under section 39 for 2 or more of the lots. 41 Transfer of land forming part of indefeasible title If the registrar registers an instrument of transfer for only part of the land in the indefeasible title of a lot, the registrar must create separate indefeasible titles for the part of the land that is transferred, and the part that is not transferred, by cancelling the particulars for the lot in the freehold land register and including separate particulars for each of the parts in the register. Division 2A Indefeasible title for common property 41A Creation of indefeasible title for common property When a community titles scheme is established, the registrar must create an indefeasible title for the common property for the scheme. 41B Meaning of indefeasible title for common property The indefeasible title for common property is the current particulars in the freehold land register about the common property. 41BA Ownership of common property (1) Common property for a community titles scheme is owned by the owners of the lots included in the scheme, as tenants in common, in shares proportionate to the interest schedule lot entitlements of their respective lots. (2) Subsection (1) applies even though, under section 41A, the registrar creates an indefeasible title for the common property. (3) An owner's interest in a lot is inseparable from the owner's interest in the common property. Examples for subsection (3)— 1 A dealing affecting the lot affects, without express mention, the interest in the common property. 2 An owner can not separately deal with or dispose of the owner's interest in the common property. 41C Application of provisions of Act to common property (1) In this Act, a reference to a lot is taken to include a reference to common property. (2) However, subsection (1) has effect only to the extent necessary to allow for the registration, and appropriate recognition under this Act, of dealings that— (a) affect common property (including dealings affecting interests in common property); and (b) are consistent with the BCCM Act. (3) In particular, subsection (1) has effect subject to the following principles— • there can be no registered owner for common property (although the body corporate for the community titles scheme that includes the common property is taken to be the registered owner for dealings affecting the fee simple interest in the common property) • the fee simple interest in the common property for a community titles scheme can not be the subject of sale or transfer (although a part of the common property might be the subject of transfer after the registration of an appropriate plan of subdivision and the recording of a new community management statement) • the fee simple interest in common property can not be the subject of a mortgage (although a lesser interest able to be created over common property, for example, a lease, might be the subject of a mortgage). (4) Without limiting subsections (2) and (3), subsection (1) has no application for the purpose of the following provisions— • this Act's definition of lot • division 2. Division 3 [Repealed] 42 [Repealed] 43 [Repealed] 44 [Repealed] 45 [Repealed] 46 [Repealed] Part 4 Registration of land Division 1 Alienation of State land 47 Alienated State land to be registered (1) As soon as practicable after land is alienated from the State— (a) if the deed of grant for the land takes effect on delivery to the grantee—notice that the deed has been delivered to the grantee must be given to the registrar; or Note— See the Aboriginal Land Act 1991, section 44 and the Torres Strait Islander Land Act 1991, section 40 for examples of deeds of grant that take effect on delivery of the deed to the grantee. (b) otherwise—the deed of grant for the land must be lodged in the land registry. (2) The registrar must register the deed of grant by recording the particulars of the grant in the freehold land register. (3) On the registration of the deed of grant, an indefeasible title is created for the relevant lot. Division 2 Land held by State 48 Land held by the State The State may, under this Act, acquire, hold and deal with lots. Division 2A Format of plans of survey 48A Available formats for plans (1) A plan of survey may be in a standard, building or volumetric format. (2) The format to be used in the plan depends on how the plan is to define the land to which it relates. 48B Standard format plan A standard format plan of survey defines land using a horizontal plane and references to marks on the ground. Example of marks— posts in the ground 48C Building format plan (1) A building format plan of survey defines land using the structural elements of a building, including, for example, floors, walls and ceilings. (2) For subsection (1)— structural elements, of a building, includes projections of, and references to, structural elements of the building. Example of projections as structural elements of a building— Projections might be used to define a lot that includes a balcony, courtyard, roof garden or other area not bounded, or completely bounded, by a floor, walls and a ceiling. 48D Volumetric format plan A volumetric format plan of survey defines land using 3 dimensionally located points to identify the position, shape and dimensions of each bounding surface. Division 2B Explanatory format plans 48E Explanatory format plan (1) The registrar may approve the lodging of a plan relating to an interest in land other than a plan of survey in standard, building or volumetric format (an explanatory format plan) if the registrar is satisfied the land to which the interest relates may be accurately defined using— (a) information already held in the land registry; or (b) other information giving a high level of accuracy about the extent of the interest. (2) Lodging an explanatory format plan, approved under this section, is sufficient compliance with a requirement under this Act to lodge a plan of survey in standard, building or volumetric format. Division 3 Plans of subdivision 49 Meaning of plan of subdivision A plan of subdivision is a plan of survey providing for 1 or more of the following— (a) division of 1 or more lots; (b) amalgamation of 2 or more lots to create a smaller number of lots; (c) dedication of land to public use; (d) redefinition of a lot on a resurvey. 49A Plan of subdivision may be registered (1) A plan of subdivision may be registered. (2) A lot defined in the plan is created as a lot when the plan is registered. 49B Standard format plan of subdivision (1) This section applies to a standard format plan of subdivision. (2) Common property for a community titles scheme may be created under the plan, but only if— (a) the plan also creates 2 or more lots; or (b) the common property created is additional to common property already existing under the community titles scheme. (3) The plan may create a lot from common property, other than common property created under— (a) a building format plan of subdivision, and within structural elements of a building; or (b) a volumetric format plan of subdivision. 49C Building format plan of subdivision (1) This section applies to a building format plan of subdivision. (2) Common property for a community titles scheme must be created under the plan unless the plan divides a lot, or amalgamates 2 or more lots, on an existing registered building format plan of subdivision. (3) Two or more lots must be created under the plan unless— (a) the plan amalgamates 2 or more lots on an existing registered building format plan of subdivision; or (b) common property for a community titles scheme is created under the plan, and the common property created is additional to common property already existing under the community titles scheme. (4) Except to the extent permitted under a direction given by the registrar under section 10(1)(b), the boundary of a lot created under the plan, and separated from another lot or common property by a floor, wall or ceiling, must be located at the centre of the floor, wall or ceiling. 49D Volumetric format plan of subdivision (1) This section applies to a volumetric format plan of subdivision. (2) Common property for a community titles scheme may be created under the plan, but only if— (a) the plan also creates 2 or more lots; or (b) the common property created is additional to common property already existing under the community titles scheme. (3) The plan may divide a lot on a standard, building or volumetric format plan of subdivision. 49DA Creation of common property (1) This section applies if— (a) the community management statement for a community titles scheme provides for the progressive subdivision of scheme land; and (b) under the scheme, the scheme land is to be subdivided by a plan of subdivision to create common property under sections 49B to 49D. (2) The registration of the plan and recording of the new community management statement for the scheme operate, without anything further, to create the common property. 49E Division of lot on standard format plan of subdivision (1) This section applies if a building or volumetric format plan of subdivision divides a standard format lot, creating 2 or more lots. (2) If, after the division, a created lot continues to be defined using a horizontal plane and references to marks on the ground, the created lot is a standard format lot. 50 Requirements for registration of plan of subdivision (1) A plan of subdivision must— (a) distinctly show all roads, parks, reserves and other proposed lots that are to be public use land; and (b) include a statement agreeing to the plan and dedicating the public use land by— (i) the registered owner; or (ii) if the mortgagee of the registered owner is in possession—the mortgagee in possession; and (c) show all proposed lots marked with separate and distinct numbers; and (d) distinctly show all proposed common property; and (e) show all proposed easements marked with separate and distinct letters; and (f) comply with the Survey and Mapping Infrastructure Act 2003; and (g) be certified as accurate by a cadastral surveyor within the meaning of the Surveyors Act 2003; and (h) have been approved by the relevant planning body, unless the plan of subdivision provides only for— (i) the amalgamation of 2 or more lots to create a smaller number of lots; or (ii) the redefinition of a lot on a resurvey; or (iii) under the BCCM Act, chapter 2, part 3, division 2, the incorporation of a lot with common property or conversion of lessee common property within the meaning of that Act; and (i) if the plan of subdivision provides for the division of 1 or more lots, or the dedication of land to public use—have been approved by the relevant planning body; and (j) be consented to by all registered mortgagees of each lot the subject of the plan and all other registered proprietors whose interests are affected by the plan; and (k) if the plan affects land subject of a conservation agreement under the Nature Conservation Act 1992—be consented to, in writing, by the chief executive of the department in which that Act is administered; and (l) if the plan affects land in the wet tropics area under the Wet Tropics World Heritage Protection and Management Act 1993—be consented to, in writing, by the executive director of the Wet Tropics Management Authority under that Act. (2) If the plan of subdivision is to give effect to a surrender under the Land Act 1994, section 55, of all or part of land contained in a deed of grant in trust, the plan of subdivision— (a) must be endorsed with or accompanied by the written approval of the Minister under that section; and (b) need not have been approved by the relevant planning body as would otherwise be required under subsection (1)(h) or (i). (3) Subsection (1)(h) and (i) does not apply to a plan of subdivision that, other than for this subsection, would have been required to have been approved by the relevant planning body if— (a) for a plan that, other than for this subsection, would have required approval by MEDQ—the plan is not a plan of subdivision as defined in the Economic Development Act 2012, section 104(3); or (b) for a plan that, other than for this subsection, would have required approval by the relevant local government—the plan is not a plan for which a process for approving the plan is provided under the Planning Act. (4) Also, subsection (1)(h) and (i) does not apply to a plan of subdivision that, under a provision of another Act, is a plan that is not required to be approved by the relevant planning body. (5) If a plan of subdivision is approved as mentioned in subsection (1)(h) or (i) under the Economic Development Act 2012, section 104 or the Planning Act, the plan must be lodged for registration within 6 months after the approval. (6) In this section— relevant planning body means— (a) if the proposed lots are in a priority development area—MEDQ; or (aa) if the proposed lots are in a State development area and the subdivision is regulated by an approved development scheme—the Coordinator-General; or (b) otherwise—the relevant local government. 51 Dedication of public use land in plan (1) The dedication of a lot to public use in a plan of subdivision must be of the registered proprietor's whole interest in the lot. (2) On registration of the plan, without anything further— (a) if the dedication is for a road—the road is opened for the Land Act 1994; or (b) if the dedication is for a non-tidal watercourse or a lake—the plan is taken to be the source material for the land for the Survey and Mapping Infrastructure Act 2003, section 99; or Note— The Survey and Mapping Infrastructure Act 2003, section 99 defines when a boundary of land is a non-tidal boundary (watercourse) or non-tidal boundary (lake). See the Land Act 1994, section 13A for provisions about the ownership of land on the watercourse side or lake side of one of these boundaries. (c) if the dedication is of a lot for a purpose mentioned in the Land Act 1994, section 31(1) and the Minister administering that Act consents to the plan—the lot is dedicated as a reserve for the purpose; or (d) otherwise—the lot becomes unallocated State land under the Land Act 1994. (3) Subsection (4) applies to an easement over a lot if— (a) the easement is an easement for providing access or a right of way, including a public thoroughfare easement; and (b) the lot or a part of the lot is dedicated for a road under subsection (2). (4) The easement is extinguished to the extent it is over the lot or the part of the lot dedicated for the road. 51A Access for public use land A plan of subdivision providing for the dedication of a lot to public use, other than as a road, non-tidal watercourse or a lake, may be registered only if— (a) on registration, access to the lot will be available through a road or a public thoroughfare easement; or (b) the Minister administering the Land Act 1994 has approved that the plan of subdivision may be registered without access to the lot being available. 52 Particulars to be recorded on registration of plan In registering a plan of subdivision, the registrar must record in the freehold land register particulars of— (a) each proposed lot that is not public use land; and (b) to the extent that it is practicable—common property created under the plan. 53 Lodged plan that is withdrawn and relodged If a plan of subdivision is lodged within 6 months after it is approved as mentioned in section 50(1)(h) or (i) and is withdrawn and re-lodged under section 159, it must be treated for the purposes of sections 175 and 178 to have been lodged when it was first lodged. 53A Division excluding road or watercourse (1) A lot may be divided by a plan of subdivision, even though there is a road or watercourse within the boundaries of the lot that is not part of the lot. (2) However, the road or watercourse is not included in any lot created by the plan of subdivision, even though it may be within the boundaries of the lot. Division 3A Dedication of road by notice 54 Dedication of road by notice (1) The registered owner of a lot may dedicate the lot as a road for public use by the registration of a dedication notice. (2) Part of a lot may not be dedicated as a road for public use under this section. (3) A dedication notice must have been approved by the relevant planning body. (4) On the day the dedication notice is registered— (a) the dedication of the lot as a road for public use takes effect; and (b) the land is opened for public use as a road. (5) This section does not apply if the dedication notice is for the land to be dedicated as a road under the Acquisition of Land Act 1967, section 12B. Note— A dedication notice for land taken under the Acquisition of Land Act 1967 to be dedicated as a road is registered under section 12B of that Act. (6) In this section— dedication notice means a notice in the approved form requesting the registrar to register a dedication of land as a road. relevant planning body means— (a) if the lot is in a priority development area—MEDQ; or (aa) if the lot is in a State development area—the Coordinator-General; or (b) otherwise—the local government. Division 4 Building management statements 54A Building management statement may be registered (1) A building management statement may be registered. (2) A building management statement is an instrument that— (a) identifies lots to which it applies; and (b) contains provisions benefiting and burdening the lots to which it applies; and (c) otherwise complies with the requirements of this division for a building management statement. (3) Each lot to which a building management statement applies must be a lot entirely or partly contained in, or entirely or partly containing, 1 or more buildings. (4) However, a building management statement that otherwise complies with subsection (3) may also apply to a lot that is not entirely or partly contained in, and does not entirely or partly contain, 1 or more buildings if the lot is the subject of a building development approval. (5) If a lot to which a building management statement applies is the subject of a plan of subdivision, the statement applies to each lot created by the registration of the plan. (6) In this section— building development approval means a development approval under the Planning Act for development relating to a proposed building or buildings. 54AA Single area for lots to which building management statement applies (1) The lots to which a building management statement applies must form a single, continuous area of land. (2) A number of lots are taken to form a single, continuous area of land even if there is a road or watercourse within the external boundaries of the area comprising of the lots. (3) Despite subsection (1), a building management statement may apply to lots that do not form a single, continuous area of land if the registrar is satisfied, on reasonable grounds, that all the lots are located within an area that is sufficiently limited to ensure the effective and efficient application of the provisions of this division. 54B Circumstances under which building management statement may be registered (1) A building management statement may be registered only if it is signed by the registered owners of all lots to which the statement applies. (2) The lots to which a building management statement applies must comprise— (a) 2 or more volumetric format lots; or (b) 1 or more volumetric format lots, and 1 or more standard format lots. (3) In this section, a reference to standard format lot or volumetric format lot is taken to include a reference to common property, if the common property is created on registration of— (a) a building format plan of subdivision; or (b) a volumetric format plan of subdivision. 54C Content of building management statement (1) A building management statement must contain provisions about the following— (a) the supply of services to lots; (b) rights of access to lots; (c) rights of support and shelter; (d) insurance arrangements. (2) A building management statement may contain provisions about the following— (a) establishment and operation of a management group; (b) imposition and recovery of levies, how levy amounts are to be kept and how levy amounts are to be spent; (c) property maintenance; (d) architectural and landscaping standards; (e) dispute resolution; (f) rules for common services and facilities; (g) administrative arrangements; (h) arrangements for accomplishing the extinguishment of the statement; (i) proposed future development. (3) To avoid doubt, it is declared that a right of access, support or shelter, or other right in the nature of an easement, under a building management statement may operate according to its terms, and may be effective, despite the absence of a formal registered easement establishing the right. (4) A dispute resolution provision under a building management statement may operate to require the referral of a dispute arising under the building management statement other than to a court, but the provision is ineffective to the extent that it purports to operate to stop final determination of the dispute in a court of competent jurisdiction. 54D Registration of building management statement (1) When registering a building management statement, the registrar must record a reference to the statement on the indefeasible title for each lot to which the statement relates. (2) However the registrar is not obliged to examine, but may examine, a building management statement for its validity, including, in particular, its consistency with any plan of subdivision, or its compliance with the requirements for a building management statement. (3) A registered building management statement binds the successors in title to the registered owner of each lot to which the statement applies. 54DA When building management statement taken not to be registered (1) A registered building management statement is taken not to be registered under this Act to the extent it includes a prohibition, requirement or restriction that, under the Building Act 1975, chapter 8A, part 2, has no force or effect. Editor's note— Building Act 1975, chapter 8A, part 2 (Provisions to support sustainable housing) (2) Subsection (1) has effect only for a building management statement registered after the commencement of this section. (3) The registrar may refuse to register an instrument purporting to be a building management statement if the registrar is satisfied it includes a prohibition, requirement or restriction that, under the Building Act 1975, chapter 8A, part 2, has no force or effect. 54E Amending a building management statement (1) A building management statement may be amended by registering an instrument of amendment of the building management statement. (2) The instrument of amendment must be signed by the registered owners of all lots to which the building management statement applies. (3) The instrument of amendment must not change the lots to which it applies. 54F Building management statement if lots owned by 1 registered owner A building management statement may be registered even if all the lots to which it applies have the one registered owner. 54G One person becoming registered owner of all lots If the one person becomes the registered owner of all lots to which a building management statement applies, the building management statement is extinguished only if the registered owner asks the registrar to extinguish it. 54H Extinguishing a building management statement (1) A building management statement may be extinguished by registering an instrument of extinguishment of the building management statement. (2) A building management statement may be extinguished in part to remove a lot that is not contained in, or does not contain, a building or a part of a building, by registering an instrument of partial extinguishment of the building management statement. (3) The instrument of extinguishment or partial extinguishment must be signed by the registered owners of all lots to which the building management statement applies. (4) However, a building management statement may be extinguished or partially extinguished only if—