South Australia: Real Property Act 1886 (SA)

South Australia Real Property Act 1886 An Act to consolidate and amend the Real Property Act 1861, the Real Property Act Amendment Act 1878 and the Rights-of-Way Act 1881, and for other purposes. Contents Part 1—Preliminary 1 Short title 3 Interpretation 4 Repeal 5 Savings 6 Laws inconsistent not to apply 6A Effect of section 6 7 Lands under previous Acts to be under this Act 8 Land not to be withdrawn Part 2—Objects of this Act 10 Objects 11 Construction Part 3—The Lands Titles Registration Office 12 Lands Titles Registration Office to be at Adelaide 13 Administration of Act 16 Exercise of powers of Registrar-General 17 Delegation 19 Solicitor not to engage in private practice 21 Seal of office 22 Fees etc 23 Accounts of Registrar-General and payment of moneys 23A Payment of moneys received in trust 24 Registrar-General not to be liable for acts done bona fide Part 4—The bringing of land under the Act 25 Land in two classes 26 Land on alienation from Crown to be under Act 27 Lands granted prior to the day on which this Act comes into operation may be brought into operation under this Act 28 Undivided shares and mortgaged land may not be brought under Act except upon conditions 29 Provisions as to surrender of documents etc 30 Statements to be verified by declaration 31 Application, how to be dealt with 32 Titles in three classes 33 Procedure under second class 34 Procedure under third class 35 Notice of application to be published 36 Second and third classes brought under this Act 37 How land to be brought under Act 38 Action to be taken on return of notices or failure of personal service 39 Caveat against bringing land under Act 40 If caveat be received within time limited, proceedings stayed 41 Applicant may withdraw his application 42 Documents of title, if they include other property, to be returned to applicant 43 Certificate to issue in name of deceased applicant proprietor or his nominee 44 Proceedings under caveat 45 Lapse of caveat 46 Reversion expectant on lease not to be extinguished Part 5—Registration of title Division 1—Registration of title in the Register Book 47 Registration of title in the Register Book 49 Folios in Register Book 51 Requirements of memorial 51A Evidentiary Division 2—Registration of title by other methods 51B Registration of title electronically etc 51C Issuing certificates of title 51D Evidentiary Division 2A—Boundaries of registered land 51E Coordinated cadastre Division 3—General 52 Record of registration 53 Retention of records 54 Form of instruments and manner of lodgement 55 Non-compliant documents may be registered or recorded 56 Priority of instruments 56A Registration 57 Effect of registration or recording of instruments 59 Provision for registration in case of death of person 64 Power of court to direct cancellation of certificate or entry 65 Search allowed 66A Lodgement of land grant Part 6—The title of registered proprietors 67 Instruments not effectual until registration 69 Title of registered proprietor indefeasible 70 In other cases title of registered proprietor shall prevail 71 Saving of certain rights and powers 72 Knowledge of trust not evidence of want of bona fides Part 7—Certificates of title 74 Joint tenants and tenants in common 75 Certificates for remainder and reversions 76 Mode of inheritance or succession shall be implied 77 Memorials on certificates 78 Issue of new certificate on application 78A Issue of new certificate on alteration etc Part 7A—Title by possession to land under this Act 80A Application for certificate based on possession 80B Application requirements 80C Application how dealt with 80D Requisitions 80E Notice of application 80F Caveats 80G Power to issue certificates 80H Cancellation of instruments 80I Fees Part 8—Easements 81 Certificates may contain statement of right-of-way or other easement 82 Description of easement 83 Registered proprietor not to be subject to rights-of-way not mentioned in certificate 84 Easement not binding on registered proprietor subsequently acquiring land bona fide for value unless entered on certificate of title 85 Land to be held free of rights-of-way 86 Public rights-of-way etc not within this Act 87 Certificates heretofore issued conclusive evidence of right-of-way therein described 88 Entry as to easement to be made on certificates of title 89 Short form of describing right-of-way 89A Incorporation of long forms of easements in instruments 90 Deposit of plan showing rights-of-way 90A Application of sections 90B, 90C, 90D, 90E and 90F 90B Variation and extinguishment of easements 90C Easement and servient land may be vested in same person 90D Survey of easement 90E No private right-of-way over public street or road 90F Easement subject to existing mortgage etc Part 9—Crown leases 90G Interpretation 91 Interpretation of Crown lease 92 Person now holding under lease or agreement may surrender 93 Execution and registration of Crown Lease 94 Forfeiture etc of Crown Lease 95 Indefeasibility of title under Crown lease 95A Evidentiary 95B Operation of Part in relation to Crown leases and other instruments subject to other Acts Part 10—Transfers 96 Transfers 96AA Creation of easements by reservation 97 Transferee of land subject to mortgage or encumbrance to indemnify transferor 102 Memorial of order for sale of land for non-payment of rates 103 Registration of transfer hereunder 104 Discharge of memorial 105 Sale under writ of fieri facias or decree, warrant or order of court 106 Transfer not to be valid against purchaser until entry of writ 107 Transfer on sale under writ, warrant, decree or order 109 Satisfaction of writ, warrant, decree, or order 110 Lapse of writ, decree, warrant, or order 111 Transfer by registered proprietor to spouse etc 115A Issue of certificate where land is vested by operation of law Part 11—Leases and surrenders 116 Leasing of land 117 Contents of lease 118 Leases not to bind non-consenting mortgagees or encumbrancees 119 Lease for 1 year need not be registered 119A Standard terms and conditions of lease 120 Lease may be surrendered by separate instrument 121 Registrar‑General may record surrender 122 Effect of entry of surrender 123 Surrender where lease subject to mortgage or under-lease 124 Covenants to be implied in every lease against the lessee 125 Powers to be implied in lessor 126 Registrar-General to note particulars of re-entry in Register Book Part 12—Mortgages, encumbrances, and discharges 128 Mortgage of land 128A Obligations of mortgagee 128B Encumbrance of land 129 Contents of mortgage or encumbrance 129A Standard terms and conditions of mortgage or encumbrance 130 Covenant to be implied in every mortgage 130A Implied covenant in encumbrance 131 Subsequent mortgagees or encumbrancees, may redeem prior mortgages etc 132 Nature of mortgage and encumbrance, and procedure in case of default 133 Power of sale 134 Mortgagee's receipt to discharge purchaser 135 Appropriation of proceeds 135A Mode of payment of encumbrance 136 Transfer upon sale by mortgagee or encumbrancee 137 Power of mortgagee to enter, take possession, distrain, let, or bring action for recovery of land 138 Power of mortgagee to distrain on tenant or occupier for arrears not exceeding the amount of rent due 139 Duty of mortgagee of leasehold entering into possession of rent and profits to account 140 Application by mortgagee to Registrar-General for foreclosure 141 Procedure on foreclosure application 142 Effect of order for foreclosure 142A Provision for case where mortgagee or encumbrancee refuses to join in proceedings on default 143 Discharge of mortgages and encumbrances 144 Partial discharge of mortgage or encumbrance on grant of easement 145 Entry of satisfaction of annuity 146 Discharge of mortgage by Minister in certain cases 147 Cancellation of registration of mortgage by Registrar‑General 148A Entry in Register Book where rights of mortgagee barred by Statute 150 Transfer of mortgage, lease and encumbrance 151 Effect of such transfer 152 Covenants implied in transfer of lease 152A Obligation of transferee if mortgage transferred Part 13—Extensions 153 Renewal or extension of mortgage etc 153A Requirements for renewal or extension of mortgage 153B Obligations of mortgagee Part 13A—Priority notices 154A Person who intends to lodge instrument may lodge priority notice 154B Effect of priority notices 154C Registration of instruments identified in priority notice 154D Lodging party need not be informed that instrument cannot be registered or recorded 154E Withdrawal of priority notice 154F Cancellation of priority notice by Registrar-General 154G Cessation of priority notice 154H Registration of instruments after priority notice is no longer in force 154I Civil liability Part 14—Powers of attorney 155 Power of attorney 156 Deposit of duplicate or attested copy 157 Revocation of power of attorney 158 Power of attorney heretofore given 159 Entry of death of grantor 160 Instruments executed before entry of revocation or death to be valid 160A Note of revocation or death may be made on electronic copy of power of attorney Part 15—Trusts and transmissions 161 Trusts contained in grant from the Crown to be inserted in certificate as in original grant 162 No particulars of trust to be entered in Register Book but trust instrument may be deposited 163 Insertion of the words "with no survivorship" in instruments 164 Trustees may authorise insertion of "with no survivorship" 165 Effect of record 166 Court may direct notice to be published before order is made 167 Court may protect persons interested 168 Survivors may perform duties or transfer to new trustees 169 Disclaimers 170 Transmission by bankruptcy or statutory assignment 171 Transmission to be recorded in Register Book 172 Proceedings in case assignment declared void 173 Bankruptcy or assignment of lessee 174 Entry of surrender or foreclosure not to prejudice cause of action 175 Transmission of estate of deceased persons 176 Application to be made in such case 177 Particulars of application to be recorded 178 Effect of such entry 179 Where 2 or more executors or administrators, all must concur 180 Person registered in place of deceased, bankrupt, or assigning proprietor, to be proprietor of land for purpose of dealing 181 Proceedings when executor etc refuse to transfer 182 Court may order transfer to person entitled 183 Court may decide question of title etc 184 Order of Court vesting land 185 Action may be brought by person claiming beneficial interest in name of trustee 186 Purchases from registered proprietor not to be affected by notice 187 Except in case of fraud 188 Registration of survivor of joint proprietors, and of remainder-man entitled to estate in possession Part 16—Caveats 191 Caveats Part 17—Ejectment 192 Summons to give up possession 193 Summons to contain description of land 194 Orders on non-appearance to summons 195 Orders on appearance to summons 196 Dismissal of summons not to prejudice other rights 197 Effect of order for possession 198 Writ of habere facias unnecessary where no one is in possession, or the land is surrendered voluntarily 199 Existing rights preserved Part 18—The Assurance Fund 201 The Assurance Fund 203 Party deprived of land may sue for compensation 204 Exoneration of proprietor after transfer for value, except in certain cases 205 Proceedings against the Registrar-General, as nominal defendant 207 Purchasers etc protected 208 Proceedings against the Registrar-General as nominal defendant 209 Value of buildings to be excluded 210 Persons claiming may, before taking proceedings, apply to the Registrar‑General for compensation 210A Value of land determined by market value 210B Registrar‑General may use Fund money 211 Assurance Fund not liable for breach of trust or improper exercise of power of sale 212 Nor for misdescription of boundaries or parcels except in certain cases 213 Procedure upon, and enforcement of claims against the Assurance Fund 214 Proceedings where same land is included in two or more grants from the Crown. Assurance Fund not liable in such case 215 Limitation of actions 216 Court to have regard to contributory negligence 217 Payments out of Assurance Fund to be deemed made on account of certain persons 218 Moneys paid out of the Assurance Fund may be recovered 219 Judgment may be entered by Registrar-General for amount paid on account of absent persons Part 19—Special powers and duties of Registrar-General 220 Powers of Registrar-General 220A Registrar-General may require production or verification of documents or information 221 Reviews 223 Registrar-General may refer question of law Part 19A—Rectification of certificates 223A Applications for amendment 223B Notices to be given 223C Power of Registrar-General to reject 223D Caveats 223E Grant of application 223F Alterations of certificate in bringing land under this Act 223G Amendment of title 223H Notice of amendment of title 223J Rectification by consent 223K Saving of other powers 223L Operation of corrections Part 19AB—Division and amalgamation of allotments Division 1—Preliminary 223LA Interpretation 223LB Unlawful division of land 223LC Application of this Part Division 2—General procedures to be observed in relation to division of land 223LD Application for division 223LDA Application may deal with statutory encumbrances 223LE Deposit of plan of division in Lands Titles Registration Office 223LF Streets, roads etc 223LG Service easements 223LH Consent to plans of division 223LI Assessment of stamp duty Division 3—Amalgamation 223LJ Amalgamation Division 5—Miscellaneous provisions 223LP Regulations Part 20—Procedure and penalties 226 Forms of summons by Registrar-General 227 On refusal or neglect of person summoned, Registrar-General may apply to Judge 228 Declarations 229 Offences 230 Perjury 232 Certifying incorrect documents 232A Offences relating to verification of identity 232B Offences relating to verification of authority 233 Other offences 234 Certificate etc procured by fraud to be void 240 Conviction not to affect civil remedy Part 20A—Client authorisation 240A Client authorisation 240B Effect of client authorisation 240C Termination of client authorisation 240D Instruments to be executed by natural persons 240E Client authorisation may be given by Crown or statutory corporation 240F Legal practitioner and registered conveyancer must obtain authorisation 240G Retention of client authorisation Part 21—Miscellaneous 241 Plans and maps 242 Diagrams of land in certificates of title 242A Cases where measurements not required 244 Provision for person under disability of infancy or mental incapacity 245 Court may appoint guardian 246 Unregistered instruments to confer claim to registration 247 Informal documents may be registered 248 Memorial to be entered 249 Equities not abolished 250 Lis pendens not to be registered 251 No title by adverse possession 252 Corporations and district councils to furnish Registrar-General with plans of new streets etc 253 Surveyor-General to furnish Registrar-General with particulars of orders confirming opening of new roads etc 254 Alteration of plans 255 Confused boundaries 258 Reference to Real Property Acts 259 General powers of Court not affected 260 Valuable consideration may be proved by prior instruments 261 General covenants to be implied in instruments 262 Implied powers and covenants may be modified or negatived 263 In action for breach, party may be proceeded against as if he had covenanted in express words 264 Implied covenants to be joint and several 265 Short forms of covenants in mortgages and leases 266 Short form for expressing exception of mines and minerals 267 Witnessing of instruments 268 Improper witnessing 270 Execution of instrument by corporation 273 Authority to register 273AA Proof of authority of unrepresented parties to enter into transaction 273A Verification of identity requirements 273B Verification of authority guidelines 274 Solicitors and conveyancers to be generally entitled to recover fees for work done under this Act 275 Forms in Schedules 276 Service of notices 276A Evidence of instruments lodged electronically 277 Regulations Schedule 1—Transitional provisions Schedule 2—Application to bring land under the provisions of the Real Property Act 1886 Schedule 3—Caveat forbidding lands to be brought under the Real Property Act 1886 Schedule 5—A free and unrestricted right‑of‑way Schedule 6—Short forms of easements and their interpretation Schedule 16—Short forms of covenants and their interpretation Schedule 17—Short form of exception of mines and minerals and its interpretation Schedule 22—Summons by Registrar-General Legislative history The Parliament of South Australia enacts as follows: Part 1—Preliminary 1—Short title This Act may be cited for all purposes as the Real Property Act 1886. 3—Interpretation (1) In this Act, unless the contrary intention appears— allotment includes— (a) a community lot, a development lot and common property created by division under the Community Titles Act 1996; and (b) a unit and common property created by division under the Strata Titles Act 1988; appropriate form means a form, which may be an electronic form, approved by the Registrar-General; the Assurance Fund means the Real Property Act Assurance Fund constituted under this Act; caveatee means any person against whose application for any purpose a caveat has been lodged, and shall include the registered proprietor of any land in respect of which a caveat has been lodged; caveator means any person lodging a caveat; certificate means a certificate of title issued under any of the Real Property Acts, or any grant from the Crown issued after the passing of the Real Property Act No. 15 of 1857 and before the commencement of the Real Property (Witnessing and Land Grants) Amendment Act 1995, and includes all plans and entries on the certificate of title; client authorisation—see section 240A; Court means— (a) the Supreme Court; and (b) in sections 52, 64, 71, 80, 87, 105, 108, 110, 142A, 154I, 165, 166 and 167 of this Act includes any other court or tribunal constituted under the law of this State or the Commonwealth; and (c) in section 191 and Part 17 includes the District Court; document includes a document in electronic form; document of title means a document evidencing or relating to the title of land not under the provisions of any of the Real Property Acts; dominant land means any land having a right-of-way or other easement appurtenant thereto or annexed to the ownership thereof; easement includes a profit à prendre; encumbrancee means the registered proprietor of an encumbrance; encumbrancer means the registered proprietor of land subject to an encumbrance; execution includes execution by a legal practitioner or registered conveyancer under a client authorisation; instrument means any document capable of registration in the Lands Titles Registration Office, or in respect of which a record is under an Act directed, required or permitted to be made in the Register Book, and includes a document that may be registered or recorded in the Register of Crown Leases under section 93; instrument of title means an instrument evidencing or relating to the title to land under the provisions of any of the Real Property Acts; land includes all tenements and hereditaments corporeal and incorporeal of every kind and description, and every estate and interest in land; law practice has the same meaning as in the Legal Practitioners Act 1981; legal practitioner has the same meaning as in the Legal Practitioners Act 1981; lessee means the registered proprietor of a lease; lessor means the registered proprietor of land subject to a lease; mentally incapacitated person has the same meaning as in the Guardianship and Administration Act 1993; mortgagee means the registered proprietor of a mortgage; mortgagor means the registered proprietor of land subject to a mortgage; participation rules means the participation rules determined by the Registrar‑General under section 23 of the Electronic Conveyancing National Law (South Australia); proprietor means any person seized or possessed of, or entitled to land; registered conveyancer means a person registered as a conveyancer under the Conveyancers Act 1994; registered proprietor means a person appearing by the Register Book to be the proprietor of an estate or interest in land registered under any of the Real Property Acts; servient land means land subject to any easement; sign a document or instrument—see subsection (3); statutory assignment means any deed assigning a debtor's estate for the benefit of his or her creditors, executed under an Act; the Real Property Acts means the Real Property Act (No. 15 of 1857), The Real Property Law Amendment Act (No. 16 of 1858), the Real Property Act of 1860 (No. 11 of 1860), the Real Property Act of 1861 (No. 22 of 1861), the Real Property Act Amendment Act of 1878 (No. 128 of 1878), the Rights-of-Way Act 1881 (No. 223 of 1881), and this Act; transmission means the passing of title to land in any manner other than by transfer; Tribunal means the South Australian Civil and Administrative Tribunal established under the South Australian Civil and Administrative Tribunal Act 2013; verification of authority guidelines—see section 273B; verification of identity requirements—see section 273A. (2) The description of any person as proprietor, transferor, transferee, mortgagor, mortgagee, caveator, caveatee, encumbrancer, encumbrancee, lessor, lessee, or trustee, or as seized of, having, or taking any estate or interest in land shall be deemed to extend to and include the heirs, executors, administrators, and assigns of such person. (3) If a provision of this Act requires that an instrument or document be signed by a person, the instrument or document must be— (a) signed by the person personally; or (b) signed personally on behalf of the person by another person under a power of attorney. 4—Repeal The following Acts or parts of Acts are hereby repealed: Number|Title|Extent of Repeal| 22 of 1861|Real Property Act of 1861.|The whole.| 128 of 1878|Real Property Act Amendment Act of 1878.|The whole.| 223 of 1881|Rights-of-Way Act 1881.|The whole.| 225 of 1881|Act to amend The Probate and Succession Duty Act 1876.|The following words at the end of section 3, subsections 2 and 3: "The estate being exempt under clause 2 of this Act."| 5—Savings Such repeal shall not affect any appointment, regulation, instrument, fund, act, matter, or thing lawfully made, done, executed, or in existence under the authority of the said Acts or any or either of them; nor prevent prosecution or punishment for any offence committed or act done in violation of the provisions of the said Acts or any or either of them; or interfere with the recovery of any penalty or of any forfeiture incurred under the said Acts or any or either of them; or with the enforcement, vindication, or recovery, of any estate, right, title, trust, covenant, contract, or interest preserved, acquired, accruing, existing or entered into under the provisions of the said Acts or any or either of them; nor shall such repeal affect or in any way interfere with any act or thing, prosecution or punishment, enforcement, vindication, or recovery saved or protection given by the said repealed Acts; and all applications, actions, suits, proceedings, instruments, registrations, and other acts, matters, and things made, commenced, pending, signed, entered, or done under the said repealed Acts or any or either of them before the passing of this Act, may be proceeded with, prosecuted, completed, and acted on in the same manner and shall be as valid and effectual as if this Act had not been passed. 6—Laws inconsistent not to apply No law, so far as inconsistent with this Act, shall apply to land subject to the provisions of this Act, nor shall any future law, so far as inconsistent with this Act, so apply unless it shall be expressly enacted that it shall so apply "notwithstanding the provisions of the Real Property Act 1886". 6A—Effect of section 6 Section 6 has effect as if Schedule 1 Part 4 of the Aboriginal Lands Trust Act 2013 had never come into operation. 7—Lands under previous Acts to be under this Act All lands subject to the provisions of any of the Real Property Acts shall, on and from the day upon which this Act shall come into operation, and all land hereafter brought under the provisions of any of the Real Property Acts, pursuant to any application commenced at the time of this Act coming into operation, shall, from the time of the issuing of the certificate for such land, be held subject to the provisions of this Act. 8—Land not to be withdrawn No land once subject to the provisions of this Act shall ever be withdrawn therefrom. Part 2—Objects of this Act 10—Objects The objects of this Act are to simplify the title to land and to facilitate dealing therewith, and to secure indefeasibility of title to all registered proprietors, except in certain cases specified in this Act. 11—Construction This Act shall always be construed in such manner as shall best give effect to the objects hereinbefore declared. Part 3—The Lands Titles Registration Office 12—Lands Titles Registration Office to be at Adelaide The Lands Titles Registration Office shall be continued at Adelaide for the purposes of this Act. 13—Administration of Act (1) There is to be a Registrar-General. (2) The Registrar-General is responsible for the administration of this Act. (3) There are to be such deputies of the Registrar-General as may be necessary or expedient for the administration of this Act. (4) There are to be such other persons engaged in the administration of this Act as the Registrar‑General thinks fit. (5) The Registrar‑General and the deputies of the Registrar‑General are to be Public Service employees. 16—Exercise of powers of Registrar-General Any power or function conferred on, or assigned to, the Registrar-General by this or any other Act may be exercised or carried out— (a) by any Deputy Registrar-General; or (b) by any person to whom that power or function has been delegated by the Registrar-General. 17—Delegation (1) The Registrar‑General may delegate to a person (including a person for the time being performing particular duties or holding or acting in a particular position) a function or power under this or any other Act (except a prescribed function or power). (2) A delegation— (a) must be by instrument in writing; and (b) may be absolute or conditional; and (c) does not derogate from the power of the delegator to act in a matter; and (d) is revocable at will. (3) A delegated function or power may, if the instrument of delegation so provides, be further delegated in accordance with that instrument. (4) For the avoidance of doubt, nothing in this section affects— (a) indefeasibility of title of registered proprietors as set out in section 69; or (b) the exclusive power of the Governor to prescribe fees or charges payable for or in respect of matters under this Act as set out in section 277; or (c) the operation of the scheme for compensation set out in Part 18. 19—Solicitor not to engage in private practice It shall not be lawful for any person whilst holding the office of solicitor under this Act to engage in private practice as a barrister, attorney, solicitor or registered conveyancer, but this prohibition shall not apply to any acting solicitor. 21—Seal of office The Registrar-General shall have and use a seal of office bearing the impression of the Royal Arms of England and the words "Registrar-General South Australia"; and every instrument bearing such seal, and purporting to be issued by the Registrar-General, or by a Deputy Registrar-General or a delegate referred to in section 17, shall be received in evidence, and shall be deemed to be issued by or under the direction of the Registrar-General without further proof, unless the contrary be shown. 22—Fees etc (1) The Registrar-General may demand and receive such fees, in respect of the several matters provided for in this Act, as are prescribed. (2) Until regulations under this Act are made prescribing fees in respect of the matters referred to in subsection (1) of this section the Registrar-General may demand and receive such fees as were payable in respect of those matters immediately before the commencement of the Real Property Act Amendment Act 1972. 23—Accounts of Registrar-General and payment of moneys (1) The Registrar-General shall keep a correct account of all sums of money received by him in accordance with the provisions of this Act, and shall pay the same to the Treasurer. (2) All fines and fees received under the provisions of this Act shall (subject to the provisions of Part 18 of this Act) be carried into account by the Treasurer as General Revenue. 23A—Payment of moneys received in trust (1) Where the Minister has received moneys in trust or otherwise on account of a mortgagee or other person, and the Minister is satisfied that the moneys may be properly paid to any person the Minister may upon the application of that person and upon provision by that person of such an indemnity or indemnities, if any, as the Minister thinks fit, make payment of the moneys to that person. (1a) Before making payment to any person under subsection (1) of this section the Minister may require the production of such evidence as he thinks fit to the effect that— (a) succession duties that may be payable out of, or in respect of, the moneys have been paid; and (b) any other claim to which the moneys may be liable has been satisfied. (2) Any payment made by the Treasurer before the commencement of the Real Property Act Amendment Act 1975 of moneys of a kind referred to in subsection (1) of this section shall be for all purposes as lawful, valid and effectual as it would have been if— (a) that subsection was enacted and in force at the time at which that payment was made; and (b) the payment of those moneys complied in all respects with the provisions of that subsection. 24—Registrar-General not to be liable for acts done bona fide The Registrar-General shall not individually, nor shall any person acting under his authority, be liable to any action, or proceeding for or in respect of any act or matter bona fide done, or omitted to be done, in the exercise or supposed exercise of the powers of this Act. Part 4—The bringing of land under the Act 25—Land in two classes For the purpose of bringing land under the provisions of this Act, it shall be regarded as divided into two classes, as follows: (a) land hereafter alienated in fee from the Crown; (b) land heretofore alienated in fee from the Crown. 26—Land on alienation from Crown to be under Act As to land hereafter alienated in fee from the Crown, the same shall, immediately on alienation, be subject to the provisions of this Act. 27—Lands granted prior to the day on which this Act comes into operation may be brought into operation under this Act As to land heretofore alienated from the Crown in fee but not under the provisions of any of the Real Property Acts (whether such land shall constitute the entire or only part of the land included in any land grant), the same may be brought under the provisions of this Act in the following manner, that is to say—The Registrar-General shall receive applications in the form of Schedule 2 hereto, or in a form to the like effect, if made by any of the following persons, that is to say— (a) by any person claiming to be the person in whom the fee simple is vested either at law or in equity: Provided that wherever trustees, seized in fee simple, have no power to sell the land which they may seek to bring under the provisions of this Act, the persons claiming or appearing to be beneficially entitled to the said land shall consent to such application; (b) by any person having power to appoint or dispose of the fee simple, at law or in equity, in cases where the Registrar-General shall be satisfied that the application is made for the purpose of carrying such power into effect; (c) by any person claiming a life estate, not being a leasehold for a life or lives: Provided that all persons claiming or appearing to be beneficially entitled in reversion or remainder shall join in or consent to such application; (d) the father, or if the father be dead, the mother or other guardian of any infant, or the administrator or committee of the estate of a mentally incapacitated person or the guardian of such a person, may make or consent to an application in the name or on behalf of the infant or mentally incapacitated person; and any person holding a power of attorney authorising the sale of a freehold estate in any land may make the application in respect of such land in the name or on behalf of the proprietor, unless such power shall expressly prohibit his so doing. 28—Undivided shares and mortgaged land may not be brought under Act except upon conditions No such application shall be received from any person claiming to be entitled to an undivided share of any land unless the persons who shall appear to be entitled to the other undivided shares shall join in the application with a view to bringing the entirety under the provisions of this Act; nor from the mortgagor of any land unless the mortgagee shall consent to such application; nor from the mortgagee of any land except in the exercise of or for the purpose of giving effect to a sale under a power of sale contained in the mortgage deed. 29—Provisions as to surrender of documents etc Every applicant shall, when making his application, surrender to the Registrar-General all documents of title in his possession or under his control relating to or in any way affecting the land, and shall furnish a schedule of such documents, and also, if required, an abstract of his title, and shall, in his application, state the nature of his estate or interest in the land, and of every estate or interest therein held by any other person, whether at law or in equity, in possession, reversion, remainder, or expectancy, and give full particulars of every right-of-way or other easement affecting the land of which he is aware, or has had notice, or which he knows to be claimed by any other person, and shall state whether the land be occupied or unoccupied, and if occupied, the name and description of the occupant, and the nature of his occupancy, and whether such occupancy be adverse or otherwise; and shall, when practicable, state the names and addresses of the occupants and proprietors of all lands contiguous to the land in respect of which application is made so far as known to him, and that the schedule so furnished includes all documents of title relating to such land in his possession or under his control, and may, in his application, require the Registrar‑General, at the expense of the applicant, to cause personal notice of the application to be served upon any person whose name and address shall for that purpose be therein stated, and shall give an address to which notices in respect of such application may be sent. 30—Statements to be verified by declaration The statements made in the application shall be verified by the declaration of the applicant or the person acting in his name or on his behalf. 31—Application, how to be dealt with Upon receipt of the application the Registrar-General shall cause the title of the applicant to be examined and reported on by a legal practitioner. 32—Titles in three classes (1) For the purposes of all applications, the titles of applicants shall be divided into three classes as follows: (a) Class I—When applicant is original grantee, and no transactions have been registered when the applicant is the original grantee from the Crown, and the land has been granted on or subsequently to the first day of March, 1842, and no transaction affecting the title has at any time been registered, and the applicant has not required notice of his application to be served personally upon any person; (b) Class II—When applicant is not original grantee, or any transactions have been registered when, although the title does not belong to the first class, the land is held by the applicant for the estate or interest described in the application free from mortgage, encumbrance, or other beneficial interest affecting the title thereto, or if any such mortgage, encumbrance, or interest exists the parties interested therein join in or consent to the application, and the applicant has not required notice of his application to be served personally upon any person; (c) Class III—When evidence of title imperfect when any person beneficially interested in the land otherwise than as lessee, or any person interested in any mortgage or encumbrance affecting the title, is not a party joining in or consenting to the application, or the title or evidence of title set forth by the applicant is imperfect, or the applicant has required notice of his application to be served personally upon any person. (2) If it shall appear to the Registrar-General that the title of the applicant belongs to the first class he shall bring such land under the provisions of this Act forthwith. 33—Procedure under second class If it shall appear to the satisfaction of the Registrar-General that the title of the applicant belongs to the second class, he shall cause notice of the application to be published in the Government Gazette; and shall further limit and appoint a time, not less than one month nor more than twelve months from the date of the publication in the Government Gazette, upon or after the expiration of which he shall, unless he shall in the interval have received a caveat forbidding him so to do, bring the land under the provisions of this Act. 34—Procedure under third class If it shall appear to the satisfaction of the Registrar-General that the title of the applicant belongs to the third class, it shall be lawful for him to reject such application altogether, or in his discretion to cause notice of the application to be served upon all persons other than the applicant, who shall appear to have any interest in the land which is the subject of the application and to be published in the Government Gazette, and in such manner as he may direct; and to limit and appoint a time in his discretion, or as the Court may prescribe, not less than two months nor more than twelve months from the date of the first of such publications in the Government Gazette, upon or after the expiration of which it shall be lawful for the Registrar-General to bring the land under the provisions of this Act, unless he shall in the interval have received a caveat forbidding him so to do. 35—Notice of application to be published The Registrar-General shall cause notice to be published in such manner as aforesaid, or in such other manner as may be prescribed by any order of the Court, that application has been made for bringing the land therein referred to under the provisions of this Act, and shall also cause a copy of such notice to be posted in a conspicuous place in his office, and in such other places as he may deem necessary, and shall forward, by registered or certified post, a copy of such notice addressed to each of the persons, if any, stated in the application to be in occupation of the land, or to be occupiers or proprietors of land contiguous thereto, so far as his knowledge of the addresses of such persons shall enable him, and to such other persons as he may think fit, and in case the applicant shall have required any notice to be personally served upon any person named in his application, then and in such case the Registrar‑General shall cause a copy of such notice to be so served upon such person. 36—Second and third classes brought under this Act If within the time limited and appointed as aforesaid by the Registrar-General, or under any order of the Court, any notice forwarded as aforesaid, shall not be returned to him by the Postmaster-General, and if within the time so limited he shall not have received a caveat, as hereinafter described, forbidding him so to do—and in any case in which personal notice may be required as aforesaid, if he shall have received proof to his satisfaction that such notice has been served, the Registrar-General shall bring the land described in the application under the provisions of this Act. 37—How land to be brought under Act The Registrar-General shall bring land under the provisions of this Act by issuing a certificate for the same to the applicant, or to such person as he or the person applying in his name or on his behalf may by any writing under his hand direct. 38—Action to be taken on return of notices or failure of personal service The Registrar-General, whenever he shall be made aware that any notice required by any applicant to be served personally has failed to be, or cannot be, so served, shall notify the same to such applicant, who, if he think fit, may by writing under his hand, withdraw such requirement, and the Registrar-General thereupon or in case any notice shall be returned to him by the Postmaster-General, may reject the application altogether, or bring the land therein described under the provisions of this Act forthwith, or after such further interval, notification, or advertisement as he may think fit. 39—Caveat against bringing land under Act Any person having or claiming an estate or interest in any land sought to be brought under the provisions of this Act, or the attorney or agent of any such person, may, within the time by the Registrar-General or under any order of the Court for that purpose limited, lodge a caveat in the Lands Titles Registration Office, in the form of Schedule 3 hereto, forbidding the bringing of such land under the provisions of this Act. Every such caveat shall state the nature of the estate or interest claimed by the person lodging the same and the grounds on which such claim is founded, and no caveat shall be received unless some address within South Australia shall be given therein at which notices and proceedings relating to the caveat may be served. 40—If caveat be received within time limited, proceedings stayed The Registrar-General shall, upon receipt of any such caveat, within the time limited as aforesaid give notice thereof to the applicant proprietor, and shall suspend further action in the matter, and the land in respect of which such caveat shall have been lodged shall not be brought under the provisions of this Act until such caveat shall have been withdrawn or shall have lapsed from any of the causes hereinafter provided, or until a decision therein shall have been obtained from the Court having jurisdiction in the matter. 41—Applicant may withdraw his application Any applicant may withdraw his application at any time prior to the issuing of the certificate, and the Registrar-General shall in such case, upon request in writing signed by the applicant, return to him, or to the person, if any, notified in the application as having a lien thereon, all documents of title deposited in support of the application. 42—Documents of title, if they include other property, to be returned to applicant Upon issuing a certificate bringing land under the provisions of this Act the Registrar-General shall endorse a memorandum on every document of title deposited by the applicant in support of his application, stating that the lands described in such certificate have been brought under the Real Property Act. If any such document of title shall relate to or include any property, whether personal or real, other than the land included in the certificate, the Registrar-General shall return such document to the applicant, but otherwise shall retain the same in his office; and no person shall be entitled to the production of any document so retained, except upon the written order of the applicant or of some person claiming through or under him, or upon the order of the Court. 43—Certificate to issue in name of deceased applicant proprietor or his nominee In case an applicant, or the person to whom he or the person applying in his name or on his behalf, may have directed a certificate to be issued, shall die in the interval between the date of the application and the date on which the certificate shall be issued, the certificate shall be issued in the name of the applicant, or in the name of the person to whom it shall have been so directed to be issued as the case may require, and the land shall devolve in like manner as if the certificate had been issued prior to the death of the applicant or of such person. 44—Proceedings under caveat Whenever a caveat shall have been lodged in the Lands Titles Registration Office forbidding land to be brought under the provisions of this Act, the like proceedings as are hereinafter provided for the removal of caveats, in the case of land already under the provisions of this Act, shall be open to the caveatee for removal of the caveat, and for the recovery of costs and damages from the caveator, in case the caveat shall have been lodged by the caveator wrongfully and without reasonable cause. 45—Lapse of caveat Every such caveat shall be deemed to have lapsed after the expiration of 1 month from the day on which the caveat is lodged, unless the person by whom or on whose behalf the same was lodged shall, within that time, have taken proceedings in the Court to establish his or her title to the estate or interest claimed, and give written notice thereof to the Registrar-General, or shall have obtained from the Court an order or injunction restraining the Registrar-General from bringing the land under the provisions of this Act. No such lapsed caveat shall, except with the permission of the Court, be renewed by or on behalf of the same person in respect of the same estate or interest. 46—Reversion expectant on lease not to be extinguished The reversion expectant upon a lease shall not be deemed to have been extinguished in consequence of the land comprised in such lease having been brought under the provisions of this Act, and the registered proprietor of any land which is subject to a lease granted prior to the first certificate being issued in respect of such land, shall be held in all Courts to be seized of the reversion expectant upon such lease, and to have all the powers, rights and remedies to which a reversioner is by law entitled and shall be subject to all covenants and conditions in such lease expressed or implied to be performed on the part of the lessor. Part 5—Registration of title Division 1—Registration of title in the Register Book 47—Registration of title in the Register Book This Division applies to, and in relation to, the registration of title to land in the Register Book. 49—Folios in Register Book Each certificate of title shall constitute a separate folium of the Register Book, and the Registrar-General shall record thereon distinctly and separately all memorials affecting the land included in each certificate. 51—Requirements of memorial Every memorial entered in the Register Book shall be sealed with the seal of the Registrar-General, and shall state the nature of the instrument to which it relates and such other particulars as the Registrar-General directs, and shall refer by number or symbol to such instrument. 51A—Evidentiary (1) Subject to this Act, a certificate of title must be accepted in legal proceedings as conclusive evidence of title to land and to any other estate or interest in land that it records and as evidence (which may be rebutted) of any other information that it records. (2) A document that purports to have been certified by the Registrar-General to be a correct copy of a certificate of title may be accepted in legal proceedings as if it were the certificate of title. Division 2—Registration of title by other methods 51B—Registration of title electronically etc Where the Registrar-General is required by this or any other Act or any other law to register title to land or record any other information relating to land, the Registrar‑General may register the title or record the information by an electronic, electromagnetic, optical or photographic process and, in that case, the provisions of this Act (excluding Division 1) and any other relevant Act will be construed so as to apply to, and in relation to, the registration of title or recording of information by that process and in particular— (a) the term Register Book will be taken to include the records maintained by the Registrar-General pursuant to this section relating to the land; (b) the term certificate or certificate of title will be taken to mean the records maintained by the Registrar‑General under this section relating to the land; (e) a requirement that a record relating to the land be made in the Register Book or on the certificate of title for the land will be satisfied if the Registrar‑General makes the record by an electronic, electromagnetic, optical or photographic process. 51C—Issuing certificates of title (1) If title to land is registered under this Division, the Registrar‑General must issue a certificate of title setting out the registered proprietor's estate or interest in the land and the encumbrances, liens or other interests (if any) to which the estate or interest is subject. (2) The Registrar‑General may cancel a certificate of title and issue a new certificate in its place— (a) when registering an instrument dealing with or affecting the registered proprietor's estate or interest in the land; or (b) if, in the Registrar‑General's opinion, a record should be made on the title. (3) Despite subsection (1), the Registrar‑General may withhold the issue of a certificate of title if in his or her opinion proper reasons exist for doing so. 51D—Evidentiary (1) Subject to this Act a statement (that has been certified by the Registrar-General) of— (a) title to land or to any estate or interest in land recorded by the Registrar‑General under this Division must be accepted in legal proceedings as conclusive evidence of title to land or to any estate or interest in land; and (b) any other information recorded by the Registrar-General under this Division must be accepted in legal proceedings as evidence (which may be rebutted) of that information. (2) A statement referred to in subsection (1) that purports to have been certified by the Registrar-General must be taken in legal proceedings, in the absence of proof to the contrary, to have been so certified. Division 2A—Boundaries of registered land 51E—Coordinated cadastre (1) Where the Surveyor-General had lodged a plan delineating the boundaries of allotments in a designated survey area with the Registrar-General under the Survey Act 1992, the Registrar-General must examine the plan and, if it is in order, accept it for filing in the Lands Titles Registration Office. (2) A plan accepted for filing under subsection (1) must be accepted in legal proceedings as evidence (which may be rebutted) of the position and dimensions of the boundaries of allotments that it delineates. (3) A court, tribunal or other body or person conducting legal proceedings must not make a finding that the position or dimensions of the boundary of an allotment varies from the position or dimensions of the boundary shown on a plan accepted for filing under subsection (1) unless the court, tribunal, body or person has first given the Surveyor‑General, or a person acting on his or her behalf, the opportunity to present evidence and be heard on that question. (4) If the Registrar-General finds an error in a plan accepted for filing under subsection (1), he or she may, with the approval of the Surveyor-General, amend the plan in order to correct the error. (5) As soon as practicable after accepting a plan for filing under subsection (1) or amending a plan under subsection (4), the Registrar-General must correct any certificate of title that is inconsistent with a boundary delineated on the plan. Division 3—General 52—Record of registration On registering an instrument, the Registrar‑General must make a record of the date and time of registration and the record must be accepted in legal proceedings as conclusive evidence of the date and time of registration. 53—Retention of records Once information has been registered or recorded by the Registrar-General under this Act the Registrar-General must retain it in the form in which it was originally registered or recorded, or in some other form. 54—Form of instruments and manner of lodgement (1) Subject to this Act, the Registrar‑General may not register or record an instrument that purports to transfer or otherwise deal with or affect an estate or interest in land under this Act unless the instrument complies with this Act, is lodged in a manner approved by the Registrar-General and is in the appropriate form. (2) However, if an instrument contains a clear error the Registrar‑General may correct the error, and the instrument will then be valid and have effect as if the error had not been made. 55—Non-compliant documents may be registered or recorded The Registrar‑General may register or record a document that is not in the appropriate form, or does not comply with a requirement under this Act (including where the document is not signed or executed in a manner required under this Act), despite the fact that the document does not comply with that form or requirement, if the Registrar‑General is satisfied— (a) that the document substantially complies with the appropriate form or requirements of this Act (as the case requires); and (b) that loss or inconvenience would result if the document were not registered or recorded. 56—Priority of instruments (1) Instruments must be registered or recorded in the order in which they are presented to the Registrar‑General for registration or recording. (2) Instruments registered or recorded in respect of or affecting the same estate or interest in land are entitled (despite any express, implied or constructive notice) to priority according to the time of registration or recording. (3) However, if 2 or more instruments dealing with or affecting the same estate or interest in land have been presented for registration or recording at the same time, the Registrar‑General may register or record those instruments in the order that will give effect to the intentions of the parties as expressed in, or apparent to the Registrar‑General from, the instruments. (4) Subsections (1), (2) and (3) operate subject to Part 13A. (5) The Registrar‑General may, on application in the appropriate form, vary the order of priority between 2 or more registered mortgages or encumbrances. (6) An application under subsection (5)— (a) must be made, with the consent of the mortgagor or encumbrancer, by every holder of a mortgage or encumbrance that is to have its order of priority varied; and (b) if a registered mortgage or encumbrance is, by virtue of the proposed variation of order of priority, to be postponed to a mortgage or encumbrance over which it has had priority—must be made with the consent of the holder of the mortgage or encumbrance that is to be postponed. (7) The Registrar‑General must record a variation of an order of priority under subsection (5) on the certificate of title affected by the mortgages or encumbrances. 56A—Registration A certificate of title will be taken to be registered upon the Registrar-General allotting a volume and folio number in respect of the certificate of title. 57—Effect of registration or recording of instruments (1) Subject to subsection (2), every instrument will, when registered or recorded, be deemed part of the Register Book. (2) Subsection (1) does not operate to deem an instrument registered or recorded in the Register of Crown Leases part of the Register Book. (3) Every instrument registered in the Register Book or the Register of Crown Leases will be deemed to be a deed duly executed by the parties. 59—Provision for registration in case of death of person (1) In case any person, who either before or after his or her death shall be registered as proprietor of any land shall die after executing any instrument affecting such land, and before registration or recording thereof, the registration or recording of such instrument may nevertheless be proceeded with in accordance with this Act, and shall be valid notwithstanding such death. (2) If a person who has completed a client authorisation dies, an instrument executed pursuant to the client authorisation after the person's death is valid despite the person's death, and may be registered or recorded in accordance with this Act. 64—Power of court to direct cancellation of certificate or entry In any proceeding in the Court respecting any land, or any transaction, contract, or application relating thereto, or any instrument or record affecting any such land, it shall be lawful for the Court to direct the Registrar-General to cancel, correct, record, substitute, issue, or make any certificate of title, or any memorial or entry in the Register Book, or otherwise to do such acts and make such entries as may be necessary to give effect to any judgment, decree, or order of such Court given or made in such proceeding, and the Registrar-General shall obey every such direction. 65—Search allowed (1) Subject to this section, any person may have access to the Register Book, and to all instruments lodged or deposited in the Lands Titles Registration Office, for the purpose of inspection during the hours, and on the days, appointed for search. (1a) If an instrument is lodged electronically, the Registrar‑General may determine that only the instrument as registered is to be accessed. (2) If, on the application of a person whose particulars are, or are to be, contained in the Register Book or in any instruments lodged or deposited in the Lands Titles Registration Office, the Registrar‑General is satisfied that access under this section to any such particulars would be likely to place at risk the personal safety of the person, a member of the person's family or any other person, the Registrar‑General may take such measures as he or she thinks fit to prevent or to restrict access to those particulars. (3) An application under subsection (2) must be in the appropriate form and must contain such particulars, and be supported by such evidence, as the Registrar‑General may require. (4) The Registrar‑General may take such measures as he or she thinks fit to prevent or restrict access to any particulars the subject of an application under subsection (2) while the application is being determined. (5) Nothing prevents the Registrar‑General varying or revoking any measures taken under subsection (2) or (4) if he or she thinks fit. 66A—Lodgement of land grant If a grant of Crown land is lodged in the Lands Titles Registration Office, the Registrar-General must register title to the land. Part 6—The title of registered proprietors 67—Instruments not effectual until registration No instrument registrable under this Act shall be effectual to pass any land or to render any land liable as security for the payment of money, but upon the registration of any instrument in manner herein prescribed, the estate or interest specified in such instrument shall pass, or, as the case may be, the land shall become liable as security in manner and subject to the covenants, conditions, and contingencies set forth and specified in such instrument or by this Act declared to be implied in instruments of a like nature. 69—Title of registered proprietor indefeasible The title of every registered proprietor of land shall, subject to such encumbrances, liens, estates, or interests as may be notified on the certificate of title of such land, be absolute and indefeasible, subject only to the following qualifications: (a) Fraud in the case of fraud, in which case any person defrauded shall have all rights and remedies that he would have had if the land were not under the provisions of this Act: Provided that nothing included in this subsection shall affect the title of a registered proprietor who has taken bona fide for valuable consideration, or any person bona fide claiming through or under him; (b) Forgery or disability in the case of a certificate or other instrument of title obtained by forgery or by means of an insufficient power of attorney or from a person under some legal disability, in which case the certificate or other instrument of title shall be void: Provided that the title a registered proprietor who has taken bona fide for valuable consideration shall not be affected by reason that a certificate other instrument of title was obtained by any person through whom he claims title from a person under disability, or by any of the means aforesaid; (c) Erroneous inclusion of land where any portion of land has been erroneously included, by wrong description of parcels or boundaries, in the certificate of title or other instrument evidencing the title of the registered proprietor: In which case the rights of the person who but for such error would be entitled to such land shall prevail, except as against a registered proprietor taking such land bona fide for valuable consideration, or any person bona fide claiming through or under the registered proprietor; (d) Omission of easement where a right-of-way or other easement not barred or avoided by the provisions of the Rights-of-Way Act 1881, or of this Act, has been omitted or mis-described in any certificate, or other instrument of title: In which case such right-of-way or other easement shall prevail, but subject to the provisions of the said Rights-of-Way Act 1881 and of this Act; (e) Several certificates for the same land where 2 or more certificates of title shall be registered under any of the Real Property Acts in respect of the same land: In which case the title originally first in time of registration shall prevail but without prejudice to the effect of anything done under Part 19A of this Act; (f) Certificate of title to be void if any person is in possession and rightfully entitled adversely to the first registered proprietor any certificate of title issued upon the first bringing of land under the provisions of any of the Real Property Acts, and every certificate of title issued in respect of the said land, or any part thereof, to any person claiming or deriving title under or through the first registered proprietor, shall be void, as against the title of any person adversely in actual occupation of, and rightfully entitled to, such land, or any part thereof at the time when such land was so brought under the provisions of the said Acts, and continuing in such occupation at the time of any subsequent certificate of title being issued in respect of the said land; (h) A lease or letting for not more than a year where at the time when the proprietor becomes registered a tenant shall be in actual possession of the land under an unregistered lease or an agreement for a lease or for letting for a term not exceeding one year: In which case the title of the tenant under such lease or agreement shall prevail; (i) Failure of mortgagee to comply with verification requirement if— (i) the person by or on whose behalf a mortgage was signed or executed as mortgagor (the purported mortgagor) is not the registered proprietor of land subject to the mortgage; and (ii) the mortgagee failed to comply with a requirement under this Act or the Electronic Conveyancing National Law (South Australia)— (A) to verify the purported mortgagor's identity or authority to enter into the mortgage; or (B) if the mortgage was transferred to the mortgagee—to establish that the transferor complied with an obligation imposed under this Act on the transferor, as mortgagee, to verify the identity of the purported mortgagor or to verify the purported mortgagor's authority to enter into the mortgage, the mortgagee's interest under the mortgage is not indefeasible. 70—In other cases title of registered proprietor shall prevail In all other cases the title of the registered proprietor of land shall prevail, notwithstanding the existence in Her Majesty, Her heirs, or successors, or in any person of any estate or interest whatever whether derived by grant from the Crown or otherwise, which but for this Act might be held paramount or to have priority; and notwithstanding any want of notice, or insufficient notice of any application, or any error, omission or informality in any application or proceedings. 71—Saving of certain rights and powers Nothing in the two preceding sections contained shall be construed so as to affect any of the following rights or powers, that is to say— (a) Sales by Sheriff the power