Part 4A Qualified folios of the Register
In this Part and in all instruments purporting to be made or executed under this Act, unless inconsistent with the context or subject matter:Caution means a caution referred to in section 28J.
Land under common law title means land alienated from the Crown in fee and not subject to the provisions of this Act and any estate or interest therein.
Registered deed means a conveyance, mortgage or charge registered under the provisions of Division 1 of Part 23 of the Conveyancing Act 1919.
Subsisting interest, in relation to land for which a qualified folio of the Register has been created, means:
(a) any contingent or vested estate or interest in that land that was in existence at the date on which the qualified folio of the Register was created and would have been enforceable against the person for the time being registered in that qualified folio as the proprietor had that qualified folio not been created and had any dealing registered therein been effected by a corresponding instrument duly registered under Division 1 of Part 23 of the Conveyancing Act 1919 at the same time as the dealing became registered in the Register, and(b) any estate or interest in that land, arising by prescription or under any statute of limitations, that was in existence or in the course of being acquired at the date on which the qualified folio of the Register was created.
28B Qualified folio may be created on primary application
The Registrar-General may, upon a request made by the persons who have applied under Part 4 to bring any land under the provisions of this Act, and, where any mortgagee of the land has joined in the application, with the consent of that mortgagee, and upon withdrawal of the application, create, in accordance with the provisions of this Part, a qualified folio of the Register for any land the subject of the application.
28C Qualified folio may be created on subdivision
(1) The Registrar-General may refuse to register, pursuant to Division 3 of Part 23 of the Conveyancing Act 1919, a plan of subdivision that includes land under common law title unless there is lodged with the Registrar-General:(a) any registered deed whereby the land was, or purported to be, conveyed to the subdivider, or(b) where the subdivider acquired title to any such land by devolution in law, any registered deed whereby the land was, or purported to be, conveyed to the person from whom the land so devolved, and such other evidence of the devolution as the Registrar-General may require,together with any registered deed whereby a legal estate in the land is, or purports to be, vested in a mortgagee.(2) Upon registration of a plan referred to in subsection (1) and lodgment of the appropriate documents referred to in that subsection, the Registrar-General may create, in accordance with the provisions of this Part, a qualified folio of the Register for any land under common law title included in the plan.
28D Qualified folio may be based on registered deed
Where the title to any land under common law title is evidenced by a registered deed and the land is so described in that deed that, in the opinion of the Registrar-General, no further survey definition is necessary adequately to define the boundaries of that land, the Registrar-General may:(a) create, in accordance with the provisions of this Part, a qualified folio of the Register for any of that land, and(b) for the purposes of so creating a qualified folio of the Register, retain any relevant deed in the Registrar-General’s custody.
28E Qualified folio may be created upon investigation by Registrar-General
(1) The Registrar-General may cause notice to be given to any person (in this subsection referred to as the addressee) requiring the addressee, after making such inquiries as are necessary to enable the addressee to do so, within a time specified in the notice:(a) to furnish to the Registrar-General a statement supplying the particulars required by the notice in respect of land under common law title specified in the notice, being land the boundaries of which, in the opinion of the Registrar-General, are adequately defined without further survey definition,(b) to indicate in that statement whether the addressee claims a proprietary interest in the land,(c) where the addressee so claims a proprietary interest by virtue of an assurance or other disposition or by devolution in law:(i) to indicate the nature of that interest, and(ii) where the Registrar-General so requires, to include in the statement a list setting out in chronological order particulars of all instruments that evidence title to the interest claimed and of the existence of which the addressee is aware and to indicate in that list which of those instruments are in the addressee’s possession or under the addressee’s control,(d) where the addressee so claims a proprietary interest by the operation of any statute of limitations, to furnish to the Registrar-General such evidence in support of that claim as the addressee possesses, and(e) to produce to the Registrar-General such instruments, being instruments referred to in paragraph (c) (ii) that are in the possession of the addressee or under the addressee’s control, as the Registrar-General may require.(2) Where a notice has been given under subsection (1) the Registrar-General may, in accordance with the provisions of this Part, create a qualified folio of the Register for any land specified in the notice.(3) Any person who wilfully refuses or neglects to comply with any requirement of a notice given to the person under subsection (1) or who makes any statement pursuant to such a notice that, to the person’s knowledge, is false or misleading in a material particular shall be guilty of an indictable offence and shall be liable therefor to the penalty or punishment provided by section 141 (1).
28EA Ordinary folio may be created in certain cases
(1) The Registrar-General may, instead of creating a qualified folio of the Register for land under section 28C, 28D or 28E, create an ordinary folio of the Register for the land if the Registrar-General is satisfied that, were the Registrar-General to create a qualified folio of the Register for the land, the only subsisting interests affecting the land would be one or more of the following:(a) the interest of a mortgagor under a mortgage in respect of which the Registrar-General would be required by section 12B (2) to record the Registrar-General’s caveat,(b) an interest that the Registrar-General would protect by recording the Registrar-General’s caveat under section 12 (1) (e) or (f),(c) an interest that the Registrar-General would record in the qualified folio of the Register,(d) an interest that, without any action by the Registrar-General referred to in paragraph (a), (b) or (c), would be preserved by section 42.(2) The Registrar-General may create an ordinary folio of the Register under this section only for land the boundaries of which, in the opinion of the Registrar-General, are adequately defined without further survey definition.
28F Qualified title for holders of aquaculture leases
A folio created, pursuant to section 13D (3), in the name of a lessee of land under Part 6 of the Fisheries Management Act 1994 may, if the Registrar-General considers it appropriate, be created as a qualified folio.
28G Restriction on creation of qualified folio
(1) Where the Registrar-General intends to bring land under the provisions of this Act by creating a qualified folio of the Register for that land and, pursuant to section 12 (1) (h) or 12 (1A), gives notice of that intention the Registrar-General shall, in the notice, specify a period (expiring not earlier than one month after the date of the notice) before the expiration of which that folio will not be created.(2) The Registrar-General shall not create a qualified folio of the Register if notice of intention to create the folio has been given and the period specified in the notice pursuant to subsection (1) has not expired.
28GA Creation of qualified or ordinary folio to be indexed
(1) Immediately after bringing land under the provisions of this Act by creating a qualified folio of the Register or by creating an ordinary folio of the Register under section 28EA, the Registrar-General shall cause a notification of the creation of the qualified folio or ordinary folio, as the case may be, to be entered, in such manner as appears to the Registrar-General to be appropriate, in the index to the General Register of Deeds kept pursuant to Division 1 of Part 23 of the Conveyancing Act 1919.(2) Immediately after bringing land under the provisions of this Act by creating a qualified folio of the Register for that land, the Registrar-General shall chart on any appropriate map or plan or otherwise record the creation of the folio.
28H Recording on qualified folio of registered deeds executed before creation
(1) (Repealed)(2) The Registrar-General may record in a qualified folio of the Register any registered deed that affects the land for which the qualified folio was created if the deed:(a) was executed, before the qualified folio was created, by the registered proprietor for the time being recorded therein,(b) is presented to the Registrar-General, together with an application in the approved form, in the same manner as that in which a similar dealing would be required to be presented to the Registrar-General for lodgment if the dealing related to land for which an ordinary folio of the Register had been created, and(c) is so presented before the caution recorded under section 28J in the folio has lapsed or been cancelled.
28I Subsisting interests to be entered on qualified folio
(1) When creating a qualified folio of the Register for any land, the Registrar-General shall record in that folio any subsisting interest then apparent to the Registrar-General, but shall not be concerned to make searches or inquiries as to the existence of any such interest.(2) The Registrar-General may, at any time after the creation of a qualified folio of the Register, record in that folio any additional subsisting interest in the land comprised therein.
(1) When creating a qualified folio of the Register for any land, the Registrar-General shall record in that folio a caution warning persons dealing with the registered proprietor that the land comprised therein is held subject to any subsisting interest, whether recorded therein or not.(1A) Where, in the opinion of the Registrar-General, any of the documents which evidenced the title to land comprised in a qualified folio of the Register conveyed or purported to convey the land otherwise than for valuable consideration, the Registrar-General may, when creating the folio, include in the caution recorded therein a notation to that effect.(1B) Where, in the opinion of the Registrar-General, the title of the registered proprietor to land comprised in a qualified folio of the Register depends on the operation of any statute of limitations, the Registrar-General may, when creating the folio, include in the caution recorded therein a notation to that effect.(2) In any caution recorded under subsection (1) in a qualified folio of the Register, the Registrar-General may indicate that, for the purpose of creating an ordinary folio of the Register for other land, a chain of title evidencing the title to land for which the qualified folio was created has been accepted by the Registrar-General up to a specified deed registered under Division 1 of Part 23 of the Conveyancing Act 1919.(3) Where a caution contains any such indication, the qualified folio of the Register shall, notwithstanding any other provision of this Part, not be subject to any interest arising under an instrument registered under Division 1 of Part 23 of the Conveyancing Act 1919 before the registration of the specified deed referred to in subsection (2), other than such subsisting interests as are recorded in that folio or are preserved by section 42.
28K Additional subsisting interests may be notified
The registered proprietor of land for which a qualified folio of the Register has been created may lodge with the Registrar-General a memorandum in the approved form setting out particulars of any subsisting interest affecting that land and not already recorded in that folio, and the Registrar-General shall thereupon make such recording in that folio in respect of that subsisting interest as the Registrar-General considers appropriate.
28L Duties of registered proprietor dealing with land in qualified folio
A registered proprietor of land comprised in a qualified folio of the Register who has knowledge of a subsisting interest that affects that land and is not recorded in that folio and who, without having lodged a memorandum as provided in section 28K, creates or disposes of or otherwise deals with any estate or interest in land so affected or applies for the cancellation of a caution shall be guilty of an indictable offence and shall be liable therefor to the penalty or punishment provided by section 141 (1).
28M Lapsing of caution on qualified folio created after registered deed for value (section 28J (1))
(1) This section sets out the 2 ways in which a caution recorded on a qualified folio of the Register under section 28J (1) that does not include a notation under section 28J (1A) or (1B) may lapse.(2) Firstly, if after the creation of the qualified folio, a person for valuable consideration and without fraud to which the person is a party becomes registered or, pursuant to section 36 (8), is deemed to have become registered, as proprietor of an estate or interest in the land comprised in the folio, the caution recorded on the folio lapses as regards the estate or interest:(a) on the expiration of 6 years after the creation of the folio, or(b) when the person becomes, or is deemed to have become, registered,whichever is the later.(3) Secondly, if immediately before the expiration of 12 years after the creation of the qualified folio, the caution affecting the folio has not lapsed as regards all estates and interests in the land comprised in the folio or been cancelled, the caution lapses on the expiration of that period.
28MA Lapsing of caution on qualified folio created after registered deed other than for value (section 28J (1A))
(1) This section sets out the 2 ways in which a caution recorded on a qualified folio of the Register under section 28J (1) that includes a notation under section 28J (1A) but does not include a notation under section 28J (1B) may lapse.(2) Firstly, if after the creation of the qualified folio, a person for valuable consideration and without fraud to which the person is a party becomes registered or, pursuant to section 36 (8), is taken to have become registered, as proprietor of an estate or interest in the land comprised in the folio, and another person subsequently for valuable consideration and without fraud to which that other person is a party becomes, or is taken to have become, registered as proprietor of that estate or interest, the caution recorded on the folio lapses as regards the estate or interest:(a) on the expiration of 6 years after the time when the firstmentioned person becomes, or is taken to have become, registered, or(b) at the time the other person becomes, or is taken to have become, registered,whichever is the later.(3) Secondly, if:(a) after the creation of the qualified folio, a person for valuable consideration and without fraud to which the person is a party becomes registered or, pursuant to section 36 (8), is deemed to have become registered, as proprietor of an estate or interest in the land comprised in the folio, and(b) immediately before the expiration of 12 years after the person becomes, or is deemed to have become, so registered, the caution has not lapsed as regards the estate or interest or been cancelled,the caution lapses as regards the estate or interest on the expiration of that period.
28MB Effect of lapsing of caution under section 28M or 28MA
(1) If a caution lapses under section 28M or 28MA then, subject to subsection (2), the lapsing operates to free the land or the estate or interest in respect of which the caution lapses from any interests that affected the land at the date on which it was brought under this Act by the creation of a qualified folio of the Register.(2) However, the lapsing of a caution under section 28M or 28MA does not operate to defeat a subsisting interest that:(a) was, immediately before the lapsing:(i) recorded in the qualified folio, or(ii) the subject of a caveat affecting land comprised in the qualified folio, or(b) is preserved by section 42.(3) The provisions of this section and sections 28M (3) and 28MA (3) do not operate to defeat the estate or interest of a mortgagor in land in respect of which a Registrar-General’s caveat has been recorded under section 12B (2).
28MC Application for cancellation of caution accompanied by search
(1) This section applies in respect of a caution recorded on a qualified folio of the Register under section 28J (1) including a caution with a notation under section 28J (1A) but excluding a caution with a notation under section 28J (1B).(2) The registered proprietor of land comprised in a qualified folio on which a caution in respect of which this section applies is noted may, at any time, apply to the Registrar-General in the approved form for cancellation of the caution recorded in the folio.(3) The Registrar-General may cancel the caution if:(a) the application is accompanied by an office copy of a certificate of the result of a search relating to the land under section 197 of the Conveyancing Act 1919 and any other evidence that the Registrar-General may request, and(a1) the Registrar-General has had regard to a survey report and an identification survey relating to the land that have been prepared by a registered surveyor, and(b) the Registrar-General is satisfied that all estates and interests in the land are held free from any subsisting interests, other than those referred to in section 28MG, and(c) the boundaries of the land, in the opinion of the Registrar-General, are adequately defined without further survey definition.(4) For the purposes only of enabling a search to be carried out under section 197 of the Conveyancing Act 1919 in relation to an application under this section, land comprised in a qualified folio is taken not to be land subject to the provisions of this Act.
28MD Application for cancellation of lapsed caution
(1) The registered proprietor of land comprised in a qualified folio:(a) that is not affected by a notation under section 28J (1B), and(b) in respect of which a caution has lapsed by the operation of section 28M or 28MA,may apply to the Registrar-General in the approved form for cancellation of the caution recorded in the folio.(2) The Registrar-General may cancel the caution if the Registrar-General is satisfied that, by virtue of section 28MB, all estates and interests in the land are held free from any subsisting interests, other than those referred to in section 28MG.
28ME Application for cancellation of caution on qualified folio created on possessory title (section 28J (1B))
(1) This section sets out the way in which an application for cancellation of a caution recorded on a qualified folio of the Register under section 28J (1) that does not include a notation under section 28J (1A) but does include a notation under section 28J (1B) may be made.(2) The registered proprietor of land on which a caution in respect of which this section applies is recorded may apply to the Registrar-General in the approved form for cancellation of the caution if 12 years, running from the date on which a cause of action to recover the land comprised in the qualified title first accrued to a person, has expired.(3) The Registrar-General may cancel the caution to which the application relates to the extent that it affects the land if:(a) before the expiration of the period of 12 years referred to in subsection (2), no person has served notice of the commencement of an action to recover the land on the Registrar-General or given the Registrar-General written notice of an order made by the Supreme Court restraining the Registrar-General from cancelling the caution, and(b) the Registrar-General is satisfied that, by virtue of any statute of limitations, the land is held free from any subsisting interests, other than those referred to in section 28MG.
28MF Registrar-General may cancel lapsed caution
(1) The Registrar-General may, if the Registrar-General thinks fit, cancel a caution that lapses by the operation of this Part.(2) In particular, the Registrar-General may, if the Registrar-General thinks fit, cancel a caution that lapses in accordance with section 28M (3).
28MG Cancellation of caution in certain cases does not defeat certain subsisting interests
The cancellation of a caution under section 28MC, 28MD, 28ME or 28MF does not operate to defeat a subsisting interest that:(a) was recorded in the qualified folio of the Register immediately before the cancellation, or(b) is preserved by section 42.
28MH Cancellation of caution on resumption or sale under Local Government Act 1993
(1) This section applies when the Registrar-General:(a) records a resumption pursuant to section 31A (3) (a) or (b), or(b) records a transfer pursuant to section 726 of the Local Government Act 1993,of land comprised in a qualified folio of the Register.(2) On making a recording to which this section applies, the Registrar-General:(a) must cancel the caution recorded in the qualified folio, and(b) when the certificate of title becomes available to the Registrar-General, must cancel the caution recorded on it,in so far as the caution relates to the land so resumed or transferred.
28N Cancellation of instruments
Before cancelling any caution recorded in a qualified folio of the Register, the Registrar-General may, in the Registrar-General’s discretion, call in and cancel, wholly or partially as the case may require, any instruments of title executed before the creation of the folio and affecting the land for which the folio was created.
28O Certain proceedings against Registrar-General barred
Notwithstanding the provisions of Parts 13 and 14, no proceedings shall be brought, and no action shall lie, against the Registrar-General for any refusal to create a qualified folio of the Register or to cancel a caution.
28P Application of provisions of this Act to qualified folio and land therein
(1) Except as otherwise provided by this Act:(a) land comprised in a qualified folio of the Register is subject to the provisions of this Act,(b) the provisions of this Act relating to ordinary folios of the Register, land comprised in ordinary folios of the Register and to the registration of dealings affecting land comprised in ordinary folios of the Register shall apply to qualified folios of the Register, land comprised in qualified folios of the Register and the registration of dealings affecting land comprised in qualified folios of the Register,(c) a reference in this and in any other Act (other than the Strata Schemes (Freehold Development) Act 1973 or the Strata Schemes (Leasehold Development) Act 1986) to a folio of the Register includes a reference to a qualified folio of the Register, and(d) a qualified folio of the Register shall be evidence as to title in all respects as if it were an ordinary folio of the Register, except that it shall be subject to every subsisting interest in the land comprised therein, whether recorded in the Register or not.(2), (3) (Repealed)
28Q Application of Act No 6, 1919, Part 4
(1) To the extent that, but for this section, Part 4 of the Conveyancing Act 1919 would not apply to or in respect of land comprised in a qualified folio of the Register, it shall so apply, and shall be deemed always to have so applied after the commencement of the Real Property (Conversion of Title) Amendment Act 1967 as if the land were not land subject to the provisions of this Act.(2) Subsection (1) shall not operate to exclude the application, to and in respect of land comprised in a qualified folio of the Register, of such of the provisions of Part 4 of the Conveyancing Act 1919 as apply to and in respect of land under the provisions of this Act.
28QA Information and production of documents
(1) The Registrar-General, for the purpose of bringing land under the provisions of this Act in accordance with this Part, may:(a) retain any deed lodged in the office of the Registrar-General which purports to convey or vest any estate or interest in the land,(b) require persons lodging any such deed to furnish a statement in the approved form supplying the particulars therein requested in relation to any such estate or interest, and(c) by notice in writing served on any person, require the person to produce within a period specified in the notice, being a period expiring not earlier than one month after the date of the notice, any deed or other document or certificate which the person is able to produce and particulars whereof are specified in the notice, being a deed, document or certificate relating to any estate or interest in the land.(2) Any person who wilfully refuses or neglects to comply with any requirement under subsection (1) or who makes any statement pursuant to such a requirement that, to the person’s knowledge, is false or misleading in a material particular shall be guilty of an indictable offence and shall be liable therefor to the penalty or punishment provided by section 141 (1).
28R Certain instruments to have no effect
Where a dealing creating or transferring an estate or interest in land comprised in a qualified folio of the Register has been registered under this Act, any other instrument not registrable under this Act is, to the extent that it purports to give effect to the transaction creating or transferring that estate or interest, of no force or effect.