97 Severance of joint tenancy by unilateral action
(1) Registration of a transfer by a joint tenant of the joint tenant’s interest in the land that is the subject of a joint tenancy to himself or herself severs the joint tenancy.(2) If a joint tenancy is proposed to be severed by unilateral action by one joint tenant, the Registrar-General may require the person who proposes to sever the joint tenancy to provide the Registrar-General, before recording the instrument that severs the joint tenancy, with:(a) the names and addresses of the joint tenants or, if the addresses are unknown, evidence of the efforts made by the person to locate the addresses of the joint tenants, and(b) a statement that the person is not aware of any limitation or restriction on his or her capacity or entitlement to sever the joint tenancy (arising, for example, from the capacity in which the person holds an estate or interest in the land concerned or from a private agreement).(3) The Registrar-General may require the person who proposes to sever a joint tenancy to provide additional information concerning:(a) other persons who may be affected by the severance of the joint tenancy, and(b) any limitation or restriction on the capacity or entitlement of the person to sever the joint tenancy, and(c) any other matter that the Registrar-General considers appropriate.(4) The Registrar-General may require any information provided for the purposes of this section to be provided by statutory declaration.(5) The Registrar-General must give notice of the lodgment of a dealing for registration or recording that may sever a joint tenancy to all joint tenants in the joint tenancy (other than any joint tenant who executed the dealing, or on whose behalf the dealing was executed). Section 12A (2) and (3) applies to and with respect to a notice given under this section.(6) Despite subsection (5), the Registrar-General is not required to give notice of the lodgment of a dealing for registration or recording that may sever a joint tenancy to a joint tenant in any of the following circumstances:(a) if the proposed severance is to arise from the recording of a court order made in proceedings to which the joint tenant is a party,(b) if the proposed severance is to arise from the registration of a transfer pursuant to a writ in respect of an interest of any of the joint tenants,(c) if the dealing concerned is witnessed by the joint tenant and the dealing indicates that the joint tenancy is to be severed,(d) if the dealing is accompanied by a written acknowledgment by the joint tenant that he or she has received legal advice as to the effects of the severance of the joint tenancy,(e) if the proposed severance is to arise out of registration following an application under section 90.
(1) Two or more persons who may be registered as joint proprietors of an estate or interest in land under the provisions of this Act, shall be deemed to be entitled to the same as joint tenants.(2) Subject to subsection (3), where persons are entitled to be registered as proprietors of a life estate and an estate in remainder in, or as tenants in common of shares in, land under the provisions of this Act (other than land comprised in a folio of the Register created pursuant to section 32 (3)), or are entitled to be so registered in respect of land in the course of being brought under the provisions of this Act pursuant to Part 4, Part 4A or Part 4B, the Registrar-General may, in respect of the life estate and estate in remainder or, as the case may be, the shares:(a) create separate folios of the Register and issue separate certificates of title,(b) create a folio or folios of the Register and issue such certificate or certificates of title as the Registrar-General thinks proper, or(c) deliver any existing certificate of title after making thereon and in the Register such recording as may be required by this Act.(3) The Registrar-General shall not refuse to act in accordance with subsection (2) (a) if the Registrar-General is requested so to act and the Registrar-General’s expenses for so acting are paid.
101 Registration of survivor of joint proprietors
(1) Where a person becomes entitled to an estate or interest in land:(a) upon the death of a person registered with the person as joint proprietor of that estate or interest, or(b) by the determination or defeasance, by death or the occurrence of some other event, of an estate or interest in land,the Registrar-General may, upon application in the approved form by the person so entitled and proof to the Registrar-General’s satisfaction of the death or other event, as the case may require, register that person as proprietor of the estate or interest.(2) Subsection (1) does not authorise the Registrar-General to bring land under the provisions of this Act.
(1) The Registrar-General shall cause approved forms to be supplied free of charge or at such moderate charges as the Registrar-General may fix and the Registrar-General may license a person to print and sell approved forms.(2) The Registrar-General may register a dealing containing departures, not being in matters of substance, from an approved form and the dealing shall be deemed to be in an approved form when it has been authenticated in accordance with subsection (3).(3) Approved forms must be sealed with the seal of the Registrar-General or authenticated in such other manner as the Registrar-General approves.
105 Recording of writ in Register
(1) A writ, whether or not it is recorded in the Register, does not create any interest in land under the provisions of this Act.(1A) An estate or interest in land under the provisions of this Act, being an estate or interest arising under a contract of sale under a writ, is not extinguished or otherwise affected merely because the writ subsequently expires.Note. Completion of the sale, including execution of the transfer, is authorised by section 116 of the Civil Procedure Act 2005.(2) Subject to subsections (3), (5) and (6), the Registrar-General may record a writ in the Register pursuant to an application in the approved form which:(a) identifies, by reference to a folio of the Register or to a registered dealing, the land in respect of which the recording is sought,(b) is accompanied by:(i) a sealed copy of the writ, or(ii) a copy of a sealed copy of the writ certified by the Sheriff to be a true copy,(c) incorporates, or is accompanied by, a statutory declaration that, to the satisfaction of the Registrar-General, identifies the judgment debtor named in the writ with the registered proprietor of the land comprised in that folio or registered dealing, and(d) is lodged before the date shown on the writ as the date on which the writ expires.(3) Where application is made under subsection (2) for the recording of a writ and it appears to the Registrar-General that the land to which the application relates is held by the registered proprietor in a fiduciary capacity the Registrar-General may refuse to record the writ unless it is proved to the Registrar-General’s satisfaction that the writ was issued pursuant to a judgment against the registered proprietor in that fiduciary capacity.(4) A writ recorded in the Register with respect to a registered mortgage, charge or lease may be executed by the sale and transfer, in the approved form, of the mortgage, charge or lease.(5) Where a writ is recorded in the Register, the Registrar-General shall not, unless the Registrar-General cancels that recording, record in the folio of the Register, or upon the registered dealing, upon which the writ was recorded a renewal of the writ or a second or subsequent writ that was issued on the same judgment.(6) Where, at the time of lodgment of an application for the recording of a writ, a dealing for valuable consideration affecting the land identified under subsection (2) (a) in the application is awaiting registration and is in registrable form, the Registrar-General shall not record the writ unless:(a) the dealing is withdrawn from registration, or(b) the dealing does not dispose of the whole estate and interest in the land so identified and the application indicates to the satisfaction of the Registrar-General that, unless the dealing is subsequently withdrawn from registration, its registration is to precede the registration of any transfer giving effect to a sale under the writ.
(1) Subsection (2) does not apply to a dealing affecting land in respect of which a writ is recorded under section 105 where the dealing is:(a) a transfer giving effect to a sale under the writ,(b) a dealing on which is endorsed a consent under section 113 (6) (b) of the Civil Procedure Act 2005,(c) an application under Part 4A for cancellation of a caution,(d) a transfer referred to in section 53 (3) executed pursuant to a right or covenant stipulated in a lease that was recorded in the Register before the writ was so recorded,(e) a dealing which, upon registration, will record the determination of a registered lease,(f) a dealing by a mortgagee or chargee in exercise of the mortgagee’s or chargee’s powers under a mortgage or charge that was recorded in the Register before the writ was so recorded,(g) a postponement of mortgage where each of the relevant mortgages was recorded in the Register before the writ was so recorded,(h) an order for foreclosure issued under section 62 (1),(i) an application for the recording under section 66 (1) of the satisfaction or discharge of an annuity, rent-charge or sum of money secured by a registered charge,(j) a dealing referred to in a provision of section 74H (5),(k) an order or transfer referred to in section 85 (1),(l) an office copy of an order referred to in section 86 (1),(m) a dealing referred to in section 86 (3),(n) an application under section 90,(o) a dealing by The Official Receiver in Bankruptcy constituted under the Bankruptcy Act 1966 of the Commonwealth,(p) a dealing the registration or recording of which is ordered or directed under section 122 (4), 124 or 138,(q) an application under section 105D for cancellation of the recording of a writ, or(r) a notification in the Gazette whereby land becomes Crown land within the meaning of the Crown Lands Acts.(2) Where a writ is recorded under section 105 and a dealing (other than a dealing to which, by the operation of subsection (1), this subsection does not apply) that affects the land to which the recording relates is lodged for registration within the protected period, the Registrar-General shall not, during the protected period, register the dealing unless the writ is referred to in the dealing as if it were a prior encumbrance.(3) Notwithstanding anything in subsection (7), where a writ has been recorded under section 105 and a transfer by the judgment debtor is lodged for registration, being a transfer that:(a) is in registrable form,(b) comprises the whole of the land to which the recording relates, and(c) is accompanied by an associated agreement for sale endorsed with the relevant consent under section 113 (6) (b) of the Civil Procedure Act 2005,the Registrar-General shall register the transfer and cancel the recording of the writ.(4) Notwithstanding anything in subsection (7), where a writ has been recorded under section 105 and a transfer or mortgage by the judgment debtor is lodged for registration, being a transfer or mortgage that:(a) is in registrable form,(b) in the case of a transfer, comprises part of the land to which the recording relates or, in the case of a mortgage, comprises the whole or part of that land,(c) in the case of a transfer, is accompanied by an associated agreement for sale endorsed with the relevant consent under section 113 (6) (b) of the Civil Procedure Act 2005, and(d) in the case of a mortgage, is endorsed with the relevant consent under section 113 (6) (b) of the Civil Procedure Act 2005,the Registrar-General shall register the transfer or mortgage.(5) Where:(a) a writ which has been recorded in the Register is referred to in a dealing as if it were a prior encumbrance, and(b) a transfer in registrable form pursuant to a sale under the writ is lodged for registration,the Registrar-General shall, whether or not:(c) the dealing referred to in paragraph (a) has been registered, or(d) the judgment debtor named in the writ is registered as proprietor of the land comprised in the transfer referred to in paragraph (b),make such recordings in the Register as will register the transferee under the transfer referred to in paragraph (b) as proprietor of the land comprised in that transfer, freed from any estate or interest created by the dealing referred to in paragraph (a).(6) Where a writ recorded under section 105 has not, within the protected period, been executed by sale of the land to which the recording relates, a dealing with that land lodged for registration before the writ is so executed may be registered notwithstanding the recording of the writ.(7) Where a writ recorded under section 105 is, after the expiration of the protected period, executed by sale of all or part of the land to which the recording relates and a transfer pursuant to the sale is lodged for registration:(a) the Registrar-General shall register the transfer under section 105B (1) if, at the time the transfer is lodged:(i) the judgment debtor named in the writ is registered as proprietor of the whole of the land comprised in the transfer,(ii) the transfer is in registrable form, and(iii) no dealing creating or disposing of an estate or interest in the whole or part of the land comprised in the transfer and expressed to be for valuable consideration is awaiting registration,and shall so register the transfer notwithstanding that, at the time it is lodged, a dealing creating or disposing of an estate or interest in the whole or part of the land comprised in the transfer but not expressed to be for valuable consideration is awaiting registration,(b) the Registrar-General shall refuse to register the transfer if:(i) the judgment debtor named in the writ is not, at the time the transfer is lodged, registered as proprietor of any of the land comprised in the transfer, and(ii) the person who is, at that time, registered as proprietor of any of that land became so registered pursuant to a dealing expressed to be for valuable consideration,unless the writ was referred to in the dealing referred to in subparagraph (ii) as if it were a prior encumbrance,(c) the Registrar-General shall refuse to register the transfer if, at the time it is lodged:(i) the judgment debtor named in the writ, or a transferee from that judgment debtor pursuant to a transfer not expressed to be for valuable consideration, is registered as proprietor of part only of the land comprised in the transfer, and(ii) another person registered as proprietor of some other part of that land became so registered pursuant to a dealing expressed to be for valuable consideration,unless:(iii) the writ was referred to in the dealing referred to in subparagraph (ii) as if it were a prior encumbrance, or(iv) all the land referred to in subparagraph (ii) is excluded from the transfer,and the Registrar-General shall so refuse notwithstanding that the transfer would, but for this paragraph, be in registrable form,(d) the Registrar-General shall refuse to register the transfer if, at the time it is lodged, the whole of the land comprised therein is the subject of another transfer that:(i) is awaiting registration,(ii) is in registrable form,(iii) is expressed to be for valuable consideration, and(iv) is not a transfer that, upon registration, would operate only to create or release an easement or profit à prendre,unless that other transfer is withdrawn from registration or the writ is referred to therein as if it were a prior encumbrance,(e) the Registrar-General shall refuse to register the transfer if, at the time it is lodged, part of the land comprised therein is the subject of another transfer that is awaiting registration, is in registrable form, is expressed to be for valuable consideration and is not a transfer that, upon registration, would operate only to create or release an easement or profit à prendre unless:(i) that other transfer is withdrawn from registration, or(ii) that part of the land is excluded from the first-mentioned transfer,(f) the Registrar-General shall refuse to register the transfer if, before it was lodged, a dealing (not being a transfer or, if it is a transfer, being a transfer that operated only to create or release an easement or profit à prendre) by the judgment debtor named in the writ expressed to be for valuable consideration and creating or disposing of an estate or interest in the whole or part of the land comprised in the first-mentioned transfer has been registered unless that estate or interest is referred to in the first-mentioned transfer in a memorandum of prior encumbrances,(g) the Registrar-General shall refuse to register the transfer if, before the transfer was lodged, a dealing (not being a transfer or, if it is a transfer, being a transfer that, upon registration, would operate only to create or release an easement or profit à prendre) expressed to be for valuable consideration and creating or disposing of an estate or interest in the whole or part of the land comprised in the transfer is awaiting registration unless:(i) that dealing is withdrawn from registration, or(ii) that estate or interest is referred to in the first-mentioned transfer in a memorandum of prior encumbrances.(8) Where:(a) a writ recorded under section 105 is, after the expiration of the protected period, executed by sale of the whole or part of the land to which the recording relates,(b) a transfer in registrable form pursuant to the sale is lodged for registration, and(c) a dealing (including another transfer but not being a dealing expressed to be for valuable consideration) by the judgment debtor named in the writ was lodged for registration after the recording of the writ, being a dealing that:the Registrar-General shall register the transfer referred to in paragraph (b) and:(i) creates or disposes of an estate or interest in the whole or part of the land comprised in the transfer referred to in paragraph (b), and(ii) at the time the transfer referred to in paragraph (b) was lodged for registration, had been registered or was awaiting registration,(d) where the dealing referred to in paragraph (c) has been registered—cancel its registration, or(e) where the dealing so referred to is awaiting registration—reject it,unless:(f) where that dealing is a transfer that affects part only of the land comprised in the transfer referred to in paragraph (b)—the estate or interest created or disposed of by the dealing is excluded from the transfer so referred to, or(g) in any other case—that estate or interest is referred to in a memorandum of prior encumbrances in the transfer so referred to.(9) In this section, protected period, in relation to a writ, means the period:(a) that begins when the writ is recorded in the Register, and(b) that ends at the expiration of 6 months after the writ is recorded in the Register, or on the expiration of the writ, whichever first occurs.
105B Registration of transfer pursuant to sale under writ
(1) A transfer pursuant to a sale under a writ is registered when it is recorded in the Register and the Registrar-General may make a like recording on the relevant certificate of title or duplicate registered dealing when it becomes available to the Registrar-General.(2) Upon the registration of a transfer referred to in subsection (1), the transferee holds the land transferred free from all estates and interests except such as:(a) are recorded in the relevant folio of the Register or on the relevant registered dealing,(b) are preserved by section 42, and(c) are, in the case of land comprised in a qualified folio of the Register, subsisting interests within the meaning of section 28A.(3) An action for recovery of damages sustained through deprivation of land, or of any estate or interest in land, by reason of the registration of a transfer purporting to give effect to a sale under a writ does not lie against the Registrar-General.(4) In this section, transfer means a transfer in the approved form.
105C Lapsing of writ in relation to land
(1) Upon the registration of a transfer or other dealing that for valuable consideration disposes of the whole estate or interest in land affected by a recording of a writ (not being a transfer pursuant to a sale under the writ) the writ lapses in relation to that land unless the transfer or other dealing refers to the writ as if it were a prior encumbrance.(2) Upon the registration of a dealing that for valuable consideration disposes of or creates an estate or interest less than the whole estate or interest in land affected by a recording of a writ, the writ lapses in respect of the estate or interest so disposed of or created unless the dealing refers to the writ as if it were a prior encumbrance.(3) (Repealed)
105D Cancellation of recording of writ
(1) The Registrar-General may cancel a recording in the Register of a writ if application for the cancellation of the recording is made in the approved form and:(a) the application incorporates or is accompanied by:(i) a withdrawal of the writ signed by the judgment creditor, and(ii) a statutory declaration that satisfies the Registrar-General that the writ has not been executed by sale of the land to which the application relates,(b) (Repealed)(c) the application incorporates or is accompanied by evidence that satisfies the Registrar-General that the writ has been satisfied otherwise than by sale of the land to which the application relates, or(d) the writ has lapsed and the application is supported by such evidence as the Registrar-General may require.(2) The Registrar-General, on his or her own motion or on an application made in the approved form, may cancel a recording in the Register of a writ in relation to any land, or any estate or interest in land, if:(a) the Registrar-General registers a transfer of the land, estate or interest pursuant to a sale under the writ, as referred to in section 105B (1), or(b) the writ lapses in respect of that land, estate or interest, as referred to in section 105C, or(c) the writ expires.
106 Execution of instruments by corporations
For the purposes of this Act, the provisions of sections 127–129 of the Corporations Act 2001 of the Commonwealth are taken to apply to the execution of instruments as if:(a) those provisions formed part of this Act, and(b) any reference in those provisions to a company were a reference to a corporation that is not a company within the meaning of the Corporations Act 2001 of the Commonwealth.Note. Sections 127–129 of the Corporations Act 2001 of the Commonwealth apply to companies under that Act as a matter of federal law.
111 Lost etc certificate of title
(1) Where a certificate of title of land under the provisions of this Act is lost, mislaid or destroyed, the proprietor of the land may apply in the approved form to the Registrar-General for the issue of a new certificate of title.(2) An application under subsection (1) shall be supported by such evidence as the Registrar-General may require.(3) The Registrar-General, if satisfied that a certificate of title has been lost, mislaid or destroyed, may issue a new certificate of title or new certificates of title for the land comprised in the firstmentioned certificate of title and may record in the Register that the new certificate of title or new certificates of title has or have been issued pursuant to this section.
114 Registrar-General may require plan to be lodged
The Registrar-General may:(a) where a person is applying to have land brought under the provisions of this Act, refuse to accept lodgment of or reject the application,(b) where a person is seeking to obtain registration of a dealing or to lodge a caveat, refuse to register the dealing or to accept lodgment of the caveat or reject the dealing or caveat, and(c) where a person is seeking to obtain the creation of a folio of the Register or the issue of a certificate of title for the land comprised in a folio of the Register, refuse to create the folio or issue the certificate of title,if the person has refused or neglected to comply with a requirement of the Registrar-General:(d) to lodge in the office of the Registrar-General a plan (being, where the Registrar-General so specifies, a plan of survey) of the relevant land, together with such number of copies of the plan, if any, as the Registrar-General may specify, or(e) to obtain registration or recording, under Division 3 of Part 23 of the Conveyancing Act 1919, of such a plan.
115 Certified copies to be furnished by Registrar-General and to be evidence
(1) The Registrar-General, upon payment of the prescribed fee, shall furnish to any person applying for the same a certified copy of any registered instrument affecting land under the provisions of this Act.(2) Every such certified copy signed by the Registrar-General and sealed with the Registrar-General’s seal shall be received in evidence in any Court or before any person having, by law or by consent of parties, authority to receive evidence as prima facie proof of all the matters contained or recited in or recorded on the original instrument.
(1) (Repealed)(2) Where the Registrar-General supplies information in response to a written inquiry as to the manner in which a proposed dealing or plan should be drawn, or whether a proposed dealing or plan should be entitled to registration, by or under this or any other Act:(a) the Registrar-General may require payment of a prescribed fee, or may supply the information without fee, and(b) the fact that any such information has been so supplied shall not, of itself, bind the Registrar-General to register or otherwise give effect to any dealing or plan, or any class of dealing or plan.(3) A regulation prescribing a fee for the purposes of paragraph (a) of subsection (2) may:(a) prescribe the fee to be paid in the circumstances specified in the regulation,(b) require, in the circumstances specified in the regulation, the payment of a fee calculated on such basis as may be prescribed by the regulation, or(c) authorise the Registrar-General to charge, in circumstances not provided for under paragraph (a) or (b), a reasonable fee.
117 Certificate of correctness
(1) The Registrar-General may reject, or may refuse to accept or to take any action in relation to, any primary application, dealing or caveat unless it bears the following certificates:(a) a certificate (signed by or on behalf of each person by whom the application, dealing or caveat has been executed) to the effect that the application, dealing or caveat is correct for the purposes of this Act, and(b) a certificate (signed by each witness to the execution of the application, dealing or caveat) to the effect that:(i) the witness is an eligible witness, and(ii) the application, dealing or caveat was executed by the person to whose execution of the application, dealing or caveat the witness is attesting in the presence of the witness.(1A) The Registrar-General may reject, or may refuse to accept or to take any action in relation to, any dealing accompanied by a notice (in accordance with section 39 (1B)) unless:(a) in the case of a notice lodged electronically—the dealing is accompanied by a certificate to the effect that the notice has been lodged electronically in a form and in the manner approved by the Registrar-General and that the notice is correct for the purposes of this Act, and(b) in any other case—the notice bears a certificate to the effect that the notice is correct for the purposes of this Act.(1B) A certificate referred to in subsection (1A) must be signed by:(a) the person lodging the dealing, or(b) a party to the dealing, or(c) a solicitor or agent acting for the person lodging, or a party to, the dealing.(2) Any person who falsely or negligently certifies to the correctness of any application, dealing, caveat or notice referred to in this section shall incur therefor a penalty not exceeding 10 penalty units.(3) Such penalty shall not prevent the person who may have sustained any damage or loss in consequence of error or mistake in any such certified application, dealing or caveat from recovering damages against the person who has certified the same.(4) In this section, eligible witness, in relation to the execution of an application, dealing or caveat, means a person who:(a) is at least 18 years of age, and(b) is not a party to the application, dealing or caveat, and(c) has known the person to whose execution of the application, dealing or caveat the witness is attesting for more than 12 months or has taken reasonable steps to ensure the identity of that person.(5) Without limiting the generality of subsection (4) (c), a witness is to be considered as having taken reasonable steps to ensure the identity of the person to whose execution of the application, dealing or caveat the witness is attesting if the person has taken the steps prescribed by the regulations.