Real Property Act 1900 (NSW)

Real Property Act 1900 No 25 An Act to consolidate the Acts relating to the declaration of titles to land and the facilitation of its transfer. Part 1A Preliminary 1 Name of Act This Act may be cited as the Real Property Act 1900. 2 Repeal of Acts (1) The Acts mentioned in Schedule 1, to the extent therein expressed, are hereby repealed, and all lands, estates, and interests which at the commencement of this Act are subject to the provisions of the Acts so repealed shall be subject to the provisions of this Act. (2) All rules, forms, and orders made under the provisions of any Act hereby repealed and in force at the commencement of this Act shall be deemed to have been made under the corresponding provisions of this Act. (3) All applications duly made, registrations duly effected, proceedings duly commenced or had, and acts or things duly done under the Acts hereby repealed shall be deemed to have been duly made, effected, commenced, had, or done respectively under the corresponding provisions of this Act, but at the date on which the same were in fact made, effected, commenced, had, or done. (4) All laws, statutes, Acts, ordinances, rules, regulations, and practice whatsoever relating to freehold and other interests in land operative on the first day of January one thousand eight hundred and sixty-three are, so far as inconsistent with the provisions of this Act, hereby repealed so far as regards their application to land under the provisions of this Act, or the bringing of land under the operation of this Act. (5), (6) (Repealed) 3 Definitions (1) In the construction and for the purposes of this Act, and in all instruments purporting to be made or executed thereunder (if not inconsistent with the context and subject matter)— (a) the following terms shall bear the respective meanings set against them— Approved form—Form approved by the Registrar-General for the purposes of any provision of this or any other Act in relation to which the expression is used (see section 104), including an electronic data file containing such a form. Authorised representative—A law practice or licensed conveyancer (or firm of licensed conveyancers) authorised under a client authorisation to represent a party to a conveyancing transaction in connection with the execution or lodgment of documents that give effect to that transaction. Business day—A day that is not a Saturday or Sunday or a public holiday or bank holiday throughout the State. Caveator—The person by whom or on whose behalf a caveat has been lodged under the provisions of this Act, or any enactment hereby repealed. Charge—Any charge on land created for the purpose of securing the payment of an annuity, rent-charge or sum of money other than a debt. Chargee—The proprietor of a charge. Charger—The proprietor of land or of an estate or interest in land that is subject to a charge. Client authorisation—A client authorisation as defined by section 107. Computer folio—A folio of the Register that is not a manual folio. Computer folio certificate—A certificate issued under section 96D. Consular officer—Consul-general, consul, and vice-consul, and any person for the time being discharging the duties of consul-general, consul, or vice-consul. Conveyancing rules—The rules determined by the Registrar-General under section 12E. Conveyancing transaction—A conveyancing transaction within the meaning of the Electronic Conveyancing National Law (NSW) to which this Act applies. Covenant charge—Any charge on land created under section 88F of the Conveyancing Act 1919 for securing the payment of money. Covenant chargee—The proprietor of a covenant charge. Covenant charger—The proprietor of land or of any estate or interest in land subject to a covenant charge. Dealing—Any instrument other than a grant, caveat or priority notice, including an electronic form of that instrument, being an instrument— (a) that is registrable or capable of being made registrable under the provisions of this Act, or (b) in respect of which any recording in the Register is by this or any other Act or any Act of the Commonwealth required or permitted to be made. Note— The Electronic Conveyancing National Law (NSW) facilitates the electronic lodgment of registry instruments. Dealings are a type of registry instrument. Department—The Department of Customer Service. Deputy Registrar-General—A member of staff of the Department who has been designated under section 4B to be a Deputy Registrar-General. Digitally sign—Has the same meaning as in the Electronic Conveyancing National Law (NSW). Easement in gross—An easement without a dominant tenement created pursuant to the provisions of section 88A or 88B of the Conveyancing Act 1919 or acquired by the Commonwealth in exercise of authority conferred by any Act of the Parliament of the Commonwealth. Electronic Lodgment Network—An Electronic Lodgment Network under the Electronic Conveyancing National Law (NSW). Firm of licensed conveyancers—A firm of licensees within the meaning of the Conveyancers Licensing Act 2003. Fraud—Fraud includes fraud involving a fictitious person. Grant—Any Crown grant of land. Instrument—Any grant, conveyance, assurance, deed, map, plan, will, probate, or exemplification of will, or any other document in writing or in electronic form relating to the disposition, devolution or acquisition of land or evidencing title to land. Land—Land, messuages, tenements, and hereditaments corporeal and incorporeal of every kind and description or any estate or interest therein, together with all paths, passages, ways, watercourses, liberties, privileges, easements, plantations, gardens, mines, minerals, quarries, and all trees and timber thereon or thereunder lying or being unless any such are specially excepted. Law practice—A law practice within the meaning of the Legal Profession Uniform Law (NSW). Licensed conveyancer means the holder of a licence in force under the Conveyancers Licensing Act 2003. Limited folio—A folio of the Register that includes a recording under section 28T (4) that has not been cancelled. Lodge—Includes lodge electronically— (a) in accordance with this Act or the Electronic Conveyancing National Law (NSW), or (b) in a way approved by the Registrar-General. Lodgment rules—Rules made by the Registrar-General under section 12F. Manual folio—A folio of the Register maintained by the Registrar-General wholly in the form of a document in writing. Mortgage—Any charge on land (other than a covenant charge) created merely for securing the payment of a debt. Mortgagor—The proprietor of land or of any estate or interest in land pledged as security for the payment of a debt. Mortgagee—The proprietor of a mortgage. Ordinary folio—A folio of the Register that is neither a limited folio nor a qualified folio. Plan of survey—A formal land survey plan within the meaning of the Surveying and Spatial Information Act 2002. Possessory applicant—Person who makes a possessory application. Possessory application—Application under section 45D. Primary applicant—Person who makes a primary application. Primary application—Application to bring under the provisions of this Act land that is not subject to those provisions. Priority notice—A priority notice under Part 7B. Proprietor—Any person seised or possessed of any freehold or other estate or interest in land at law or in equity in possession in futurity or expectancy. Qualified folio—A folio of the Register in which is recorded a caution under section 28J that has not been cancelled. Registrar-General—The person employed in the Public Service as the Registrar-General. Regulations—The regulations made under this Act. Sign—Includes digitally sign in accordance with the Electronic Conveyancing National Law (NSW). The Register—The Register required to be maintained by section 31B (1). Torrens Assurance Fund—The Torrens Assurance Fund established under section 134. Transfer—The passing of any estate or interest in land under this Act whether for valuable consideration or otherwise. Transmission—The acquirement of title to or interest in land consequent on the death, will, intestacy or bankruptcy of a proprietor. Uplift—The removal of a dealing or other document that has been lodged for registration or recording from its priority position so that it can be corrected or amended without withdrawing the dealing or document. Writ—A writ for the levy of property within the meaning of Part 8 of the Civil Procedure Act 2005, including any such writ issued pursuant to an Act of the Commonwealth. Note— See, for example, section 77M of the Judiciary Act 1903 of the Commonwealth and other similar provisions of Commonwealth legislation. (b) The description of any person as a proprietor, transferor, transferee, mortgagor, mortgagee, charger, chargee, lessor, or lessee, or as seised of having or taking any estate or interest in any land shall be deemed to include the executors, administrators, and assigns of such person. (c) (Repealed) (d) A reference to recording includes a reference to amending, cancelling or deleting. (e) A reference to a caveator includes a reference to any person who claims through or under the caveator and also includes a reference to any person other than the caveator who, by virtue of section 74M (1), is authorised to withdraw the caveat which was lodged by the caveator. (f) A reference to an office copy of an order, judgment or injunction made, given or granted by a court is a reference to a copy of that order, judgment or injunction certified as such an office copy by the proper officer of the court. (g) A reference to a dealing, caveat, priority notice, instrument or other document that is in paper form being duly executed or witnessed includes a reference to it being certified or otherwise authenticated in accordance with the conveyancing rules. Note— See also sections 107 (4) and 108 with respect to the effect of the signing of documents under the authority or purported authority of client authorisations. Note— The Interpretation Act 1987 contains definitions and other provisions that affect the interpretation and application of this Act. (2) A reference in this or any other Act to a recording in a folio of the Register includes a reference to a recording in the Register with respect to that folio. (2A) Words and expressions used in this Act that are defined in the Land and Property Information NSW (Authorised Transaction) Act 2016 have the same meanings as in that Act, except in so far as they are defined differently in this Act or the context or subject-matter otherwise indicates or requires. (3) Notes in the text of this Act do not form part of this Act. 3A Application of Act to electronic form plans and other documents (1) This section applies to— (a) plans lodged for the purposes of this Act, and (b) other documents, except office copies of court orders, that— (i) are required by or under this or any other Act to be lodged with those plans, or (ii) are of a class prescribed by the regulations made under this Act as documents that may be lodged in electronic form. (2) A reference in this Act— (a) to a plan or another document includes a reference to an electronic data file containing a plan or another document in an electronic form, and (b) to the lodging of a plan or another document includes a reference to the electronic lodging of a plan or another document in an electronic form approved by the Registrar-General, and (c) to a sheet of a plan or another document that is in electronic form, is a reference to a sheet on which the whole or part of the plan or other document would be reproduced if the plan or other document were converted to hard copy form without re-pagination. (3) If a plan is lodged electronically, all other documents that are required to be lodged with the plan must also be lodged electronically in an electronic form approved by the Registrar-General, except— (a) office copies of court orders, and (b) any other documents excepted from this requirement by regulations under this or any other Act or by the Registrar-General. (4) Any signature, seal, certificate, consent or other approval required to authenticate, or to authorise the registration or recording of, a plan proposed to be lodged in electronic form is to be endorsed on an approved form for signatures. When the plan is lodged, that form must also be lodged electronically in an electronic form approved by the Registrar-General. (5) This Act applies to and in respect of plans and other documents lodged in electronic form in the same way as it applies to other plans and documents, subject to any modifications prescribed by this Act or the Conveyancing Act 1919 or the regulations under either of those Acts. 3B Arrangements for payment of fees (1) Except as provided by section 96J, a provision of this Act to the effect that something may or must be done on or after payment of a fee prescribed by the regulations enables or requires (as appropriate) the thing to be done if arrangements have been made in accordance with the regulations for the future payment of the fee. (2) A fee prescribed under this or any other Act for or in respect of the exercise of a titling and registry function is, when the function is exercised by the authorised operator, the maximum fee that is payable and the authorised operator can accept a lesser fee for or in respect of the exercise of the function. (3) The acceptance of a lesser fee by the authorised operator does not operate to reduce the amount that is required to be paid from the fee into the Torrens Assurance Fund. Part 1 Administration 4 Administration of Act The Registrar-General is authorised to execute the provisions of this Act. 4A Registrar-General—delegation and seal of office (1) The Registrar-General may delegate any of the powers and functions of the Registrar-General under this or any other Act, other than this power of delegation, to a Deputy Registrar-General or member of staff of the Department. (2) The Registrar-General is to have a seal of office that bears an impression of the Arms of the State of New South Wales and has inscribed in the margin the words "Registrar-General, New South Wales". (3) An instrument or document issued by the Registrar-General or a Deputy Registrar-General, acting or purporting to act under the authority of any Act, is not invalid only because of— (a) any irregularity in the manner or time of affixing, impressing or printing the seal of the Registrar-General to or on the instrument or document, or (b) a failure to affix, impress or print the seal of the Registrar-General to or on the instrument or document. (4) All courts and persons acting judicially— (a) are required to take judicial notice of the seal of the Registrar-General, and (b) must, until the contrary is proved, presume that the seal was properly affixed. (5) The seal of the Registrar-General may be affixed by electronic or mechanical means. 4B Deputy Registrars-General (1) The Registrar-General may, by instrument in writing, designate one or more members of staff of the Department to be Deputy Registrars-General. (2) If more than one Deputy Registrar-General is designated, the Registrar-General may, in the instrument designating a person to be a Deputy Registrar-General or by a subsequent instrument in writing, designate one of the Deputy Registrars-General to be the Senior Deputy Registrar-General. (3) A Deputy Registrar-General has such powers and functions as may be— (a) assigned to the Deputy Registrar-General by the Registrar-General, and (b) conferred or imposed on the Deputy Registrar-General by or under this or any other Act. (4) A Deputy Registrar-General is to exercise his or her powers and functions (including delegated powers and functions of the Registrar-General) in accordance with any directions given by the Registrar-General. (5) If there is no Registrar-General or the Registrar-General is absent from his or her duties— (a) in the case where there is only one Deputy Registrar-General—the Deputy Registrar-General may act as the Registrar-General, or (b) in the case where there is more than one Deputy Registrar-General—the Senior Deputy Registrar-General may act as the Registrar-General. (6) A Deputy Registrar-General acting as the Registrar-General under subsection (5) has the same powers and functions as the Registrar-General and anything done by the Deputy Registrar-General in the exercise of those powers and functions has same effect as if it had been done by the Registrar-General. 5–10 (Repealed) Part 2 General powers of Registrar-General 11 Minister's directions (1) The Minister may give directions to the Registrar-General requiring the implementation by the Registrar-General of policies or requirements of general application that the Minister is satisfied are necessary or desirable in the public interest to protect the integrity of the Register. (2) The Registrar-General is required to give effect to any direction of the Minister under this section. 12 Powers of Registrar-General (1) The Registrar-General may exercise the following powers, that is to say— (a) The Registrar-General may require any person who may have possession or control of an instrument relating to land the subject of a dealing, or relating to the title to any such land, to produce that instrument, and the Registrar-General may retain any such instrument, whether produced pursuant to this paragraph or otherwise, until it is no longer required for action in connection with a dealing lodged with the Registrar-General. (b) The Registrar-General may summon any person referred to in paragraph (a) or any person who to the Registrar-General appears to be interested in any land, title to land, or instrument affecting land, the subject of a dealing to appear and give an explanation respecting that land, title, or instrument. (c) The Registrar-General may administer oaths or may take a statutory declaration in lieu of administering an oath. (d) The Registrar-General may, subject to this section and upon such evidence as appears to the Registrar-General sufficient, correct errors and omissions in the Register. (d1) The Registrar-General may, subject to subsection (3A), on such evidence and after such notices (if any) as appear to the Registrar-General to be sufficient, and with the consent of the proprietors and any mortgagees of the land, correct the Register by correcting a reference to one or more lot numbers in a plan. The Registrar-General may make the correction on the application of a proprietor or mortgagee or on the Registrar-General's own initiative. (e) The Registrar-General may record in the Register a caveat on behalf of any person under any legal disability or on behalf of Her Majesty to prohibit the transfer or dealing with any land belonging or supposed to belong to any such person as hereinbefore mentioned, and also to prohibit the dealing with any land in any case in which it appears to the Registrar-General that an error has been made by misdescription of such land or otherwise in any folio of the Register or instrument, or for the prevention of any fraud or improper dealing. Editorial note— See Trustee Act 1925, sec 11. (f) For the protection of any person interested in land under the provisions of this Act the Registrar-General may record in the Register a caveat, or may otherwise record the interest of that person in the Register in such manner as appears to the Registrar-General to be appropriate. (g) The Registrar-General may, on such evidence as appears to the Registrar-General sufficient, record in the Register any change in the name of a registered proprietor, whether the change is consequent upon the marriage of the proprietor or otherwise. (h) The Registrar-General may at the Registrar-General's discretion, and notwithstanding anything in this Act, dispense with any advertisement or the supply to the Registrar-General of any information or the production to the Registrar-General of any instrument. (h1) The Registrar-General may give notice by advertisement or by personal service, whenever and to whomever the Registrar-General thinks appropriate, of the intended exercise or performance of any power, authority, duty or function conferred or imposed by this Act. The Registrar-General may instead, if the Registrar-General considers it to be appropriate, direct another person to give notice in a manner and form approved by the Registrar-General. (i) The Registrar-General may, where the Registrar-General is satisfied that an estate or interest has been extinguished by merger, make such recording in the Register as the Registrar-General considers appropriate. (1A) Notwithstanding subsection (1) (h1), a notice of intention to bring land under the provisions of this Act or to grant a possessory application or to register a plan of survey lodged for the purposes of section 28V may be served by post. (2) Where a person required to produce an instrument pursuant to paragraph (a) of subsection (1) fails to produce the instrument or to allow it to be inspected or, being summoned pursuant to paragraph (b) of that subsection, refuses or neglects to give an explanation which the person is, pursuant to that paragraph, required to give, or knowingly misleads or deceives any person authorised to demand any such explanation, the person shall for each such offence incur a penalty not exceeding 2 penalty units, and the Registrar-General, if the instrument or information withheld appears to the Registrar-General material, may reject the relevant dealing referred to in that subsection. (3) Where the Registrar-General, in the exercise of the powers conferred upon the Registrar-General by subsection (1) (d), makes a correction in the Register— (a) the Registrar-General shall, by an appropriate recording in the Register, authenticate the correction and record the date thereof, and (b) to the extent that, but for this paragraph, the correction would prejudice or affect a right accrued from a recording made in the Register before the correction, the correction shall be deemed to have no force or effect, and (c) subject to paragraph (b), the Register shall, as so corrected, have the same validity and effect as it would have had if the error or omission had not occurred, and (d) the Registrar-General shall, while any right preserved by paragraph (b) is subsisting, maintain available for search a record of the date, nature and effect of the correction, and (e) the Registrar-General must keep a record of every correction. (3A) If the Registrar-General makes a correction referred to in subsection (1) (d1)— (a) the correction— (i) must not make original words or symbols illegible, and (ii) must be dated, and (iii) must be initialled by the Registrar-General, and (b) the correction takes effect as if the error corrected had not occurred, and (c) the correction does not affect the construction of any instrument made or entered into before the correction so as to prejudice any person claiming under that instrument, and (d) the Registrar-General must keep a record of every correction. (4) Where the Registrar-General exercises the powers conferred upon the Registrar-General by subsection (1) (f) otherwise than by entering the Registrar-General's caveat, the interest recorded shall be deemed to be an interest within the meaning of section 42 but otherwise shall have no greater operation or effect than it would have had if not so recorded. (5) Upon the recording, pursuant to subsection (1) (i), of the extinction of an estate or interest by merger, that estate or interest shall be deemed to have been extinguished accordingly. (6) The powers of the Registrar-General under this section may be exercised with respect to electronic lodgments in conjunction with powers granted under the Electronic Conveyancing National Law (NSW). (7) A power to correct errors and omissions conferred by subsection (1) includes a power to correct errors and omissions resulting from a malfunction of— (a) an Electronic Lodgment Network or electronic system in which information is communicated between the Electronic Lodgment Network and the Registrar-General, or (b) any other system, approved by the Registrar-General, that enables the lodgment of dealings, caveats, priority notices and other documents in electronic form. 12A Power of Registrar-General to serve notice of proposed action (1) The Registrar-General may, before taking any action that alters the Register, give notice of the proposed action to any person that the Registrar-General considers should be notified of it. (2) Where the Registrar-General has given notice pursuant to the powers conferred upon the Registrar-General by subsection (1), the Registrar-General may refuse to take the action until after the expiration of a period specified in the notice and the Registrar-General may proceed to take the action at or after the expiration of the period so specified unless the Registrar-General is first served with, or with written notice of, an order of the Supreme Court restraining the Registrar-General from so doing. (3) Where a person given notice under subsection (1) does not within the time limited by the notice serve upon the Registrar-General or give the Registrar-General written notice of an order made by the Supreme Court restraining the Registrar-General from taking the action, no action by that person or by any person claiming through or under that person shall lie against the Registrar-General in respect of the taking of the action specified in the notice. (4) No action shall lie against the Registrar-General for failure to give a notice under subsection (1). 12AA Notice to produce electronic form plans and other documents (1) As soon as is practicable after a written demand of the Registrar-General requiring its production is served on a person who has lodged a plan or other document in electronic form for the purposes of this Act, the person is required to produce to the Registrar-General— (a) an electronically formatted version or a hard copy version of the plan, as directed by the Registrar-General, or the original hard copy version of the other document, in each case as it was when the plan or other document was lodged electronically, and (b) in the case of a plan, the approved form for signatures on which the signatures, seals, certificates, consents or other approvals required to authenticate, or to authorise the registration or recording of, the plan were endorsed. (2) This section applies only to a written demand served— (a) in the case of a plan or other document lodged for the purpose of its being registered or recorded, while the plan or other document is so lodged, or (b) in the case of a plan or other document that has been lodged otherwise than for the purpose of its being registered or recorded, before the period prescribed by the regulations (or any shorter period agreed to by the Registrar-General) has expired after the plan or other document was lodged, or (c) in the case of a plan or other document that has been registered or recorded, before the period prescribed by the regulations (or any shorter period agreed to by the Registrar-General) has expired after the plan or other document has been registered or recorded. 12B Mortgagee or mortgagor may be recorded as registered proprietor (1) Where it appears to the Registrar-General that the legal estate in land is vested in a mortgagee and the Registrar-General creates under any provision of this Act, other than section 17 (2), a folio of the Register for the land, the Registrar-General may record the mortgagee or the mortgagor in the folio as registered proprietor of the land. (2) Where, pursuant to subsection (1) or section 17 (2), the Registrar-General records a mortgagee as registered proprietor in a folio of the Register for any land, the Registrar-General shall record in the folio the Registrar-General's caveat forbidding the recording in the Register of any dealing relating to that land by the mortgagee other than a dealing giving effect to an exercise of the mortgagee's powers as mortgagee. 12C Recording of native title in Register (1) The Registrar-General may, on evidence that appears to the Registrar-General sufficient, record in the Register approved determinations of native title made under the law of this State or of the Commonwealth and any other matters relating to native title rights and interests that the Registrar-General considers appropriate. (2) The information referred to in subsection (1) may be recorded in a manner and form that the Registrar-General considers appropriate. (3) In this section, approved determination of native title, native title and native title rights and interests have the same meanings as they have in the Native Title Act 1993 of the Commonwealth. 12D Registrar-General's Guidelines (1) The Registrar-General may publish such information as the Registrar-General considers appropriate for the guidance or assistance of persons in connection with the operation of this Act or any other Act under which the Registrar-General exercises titling and registry functions, including (without limitation) information concerning— (a) the completion of forms, and (b) the preparation and lodgment of dealings, plans and other documents for registration or recording, and (c) the practices and procedures of the Registrar-General in the exercise of titling and registry functions. (2) Information published under this section may be published as the Registrar-General's Guidelines. 12E Conveyancing rules (1) Making of conveyancing rules The Registrar-General may from time to time determine, in writing, rules for or with respect to the preparation and lodgment of documents to give effect to conveyancing transactions (the conveyancing rules), including rules for or with respect to the following— (a) the verification of identity and authority, including— (i) the standards to which identity and authority are to be verified, and (ii) the classes of persons in respect of whom identity and authority are to be verified, and (iii) the classes of documents in relation to which verification of identity and authority requirements apply, and (iv) the classes of persons who can undertake verification of identity and authority, and (v) any supporting evidence and retention requirements, (b) client authorisations, including— (i) the form of a client authorisation, and (ii) the classes of documents to which a client authorisation applies, and (iii) any supporting evidence and retention requirements, (c) matters to be certif