Division 1(1) Where land under the provisions of this Act is intended to be transferred, or any easement or profit à prendre affecting land under the provisions of this Act is intended to be created, the proprietor shall execute a transfer in the approved form.(2) This section does not apply to the creation of an easement or profit à prendre that burdens and benefits separate parcels of land if the same person is the proprietor of the separate parcels of land.
46A Creation of easements etc over own land by a dealing
(1) An easement, profit à prendre or restriction on the use of land that burdens and benefits separate parcels of land all under the provisions of this Act may be created even though the same person is the proprietor of those separate parcels of land, notwithstanding any rule of law or equity in that behalf.(2) Any such easement, profit à prendre or restriction on the use of land may be created under this section only by registration in the Register of an instrument that is in the form approved for the purpose by the Registrar-General.(3) The Registrar-General may refuse to register such an instrument if the Registrar-General is not satisfied that the boundaries of the land concerned, or the site of the easement or the land to which the profit à prendre or restriction applies, are adequately defined.(4) The Registrar-General may make such recordings in the Register as are necessary to give effect to the easement, profit à prendre or restriction on the use of land.(5) The instrument creating the easement, profit à prendre or restriction on the use of land must be executed:(a) by the registered proprietor of the land burdened and the land benefited by the easement, profit à prendre or restriction, and(b) by every mortgagee, chargee or covenant chargee under a mortgage, charge or covenant charge recorded in the folio of the Register relating to that land.(6) The Registrar-General may refuse to register any such instrument unless consents in writing to the registration of the instrument signed by (or by an agent authorised by) such of the following persons as the Registrar-General may determine:(a) the lessee under any lease, or the judgment creditor under any writ, recorded in the folio of the Register relating to the land to be burdened or benefited by the easement, profit à prendre or restriction,(b) the caveator under a caveat relating to any estate or interest in that land,are lodged in the office of the Registrar-General.Note. This section allows an easement, profit à prendre or restriction on the use of land to be created by registration of a dealing under this Act as an alternative to registration of a plan to which section 88B of the Conveyancing Act 1919 applies, if all the land concerned is held under the provisions of this Act by the same person.
46B Roads included in certain certificates of title
(1) Where, before the commencement of the Real Property (Amendment) Act 1921, a road or part thereof bounding land the subject of a Crown grant, or reserved in a Crown grant, was included within the boundaries of the land described in a certificate of title without being specifically excepted from the certificate of title by express exception or notification referring to the road, the certificate of title shall, in so far as it includes the road or part thereof, be deemed for all purposes to have been properly issued, and to include the area of the road or part thereof, as the case may be.(2) This section shall bind the Crown.
46C Registrar-General may register as proprietor person who is entitled to land by operation of statute
(1) Where, by the operation of a statute, either directly or by reason of anything done in pursuance thereof:(a) land under the provisions of this Act became, before the commencement of the Real Property (Amendment) Act 1970, or becomes, after that commencement, vested in a person (other than the registered proprietor of the land) either alone or jointly or in common with that registered proprietor, or(b) land that is the site of a closed road or part thereof so became, or so becomes, vested in a person registered under this Act as the proprietor of adjoining land,the Registrar-General may, of the Registrar-General’s own motion, and shall, at the written request (made in the approved form) of a person in whom there has been such a vesting on such evidence as appears to the Registrar-General sufficient, and after such notice (if any) to such person as the Registrar-General deems proper, register the person in whom any such land is vested as the proprietor of such estate therein as the Registrar-General deems to be appropriate, and for that purpose the Registrar-General may make such recordings in the Register and create such folios of the Register, as appears to the Registrar-General to be necessary or proper.(2) (Repealed)(3) If a certificate of title or duplicate registered dealing evidencing title to an estate or interest affected by a vesting registered pursuant to this section is in the possession of some person other than the person registered as proprietor under subsection (1) and the person so in possession fails to deliver it to the Registrar-General for cancellation when required in writing by the Registrar-General so to do, the certificate of title or duplicate registered dealing shall be deemed to be wrongfully retained within the meaning of section 136.(4) The Registrar-General shall be deemed always to have been authorised:(a) to make a recording before the commencement of the Real Property (Amendment) Act 1921, and(b) to issue a certificate of title before that commencement,that the Registrar-General could have made or issued had this section and section 46B been in force at the time the recording was made, or the certificate of title issued, as the case may be.
47 Recording, variation and release of easements etc
(1A) In this section, affecting interest means an easement, profit à prendre or restriction on the use of land.(1) When an affecting interest that burdens land under the provisions of this Act is created, the Registrar-General is to record particulars of the dealing creating the affecting interest:(a) in the folio of the Register for the land burdened, and(b) if the affecting interest is an easement or profit à prendre that benefits land under the provisions of this Act—in the folio of the Register for the land benefited.(2) An affecting interest may, by a lease, be granted in or over land, other than the demised land, of which the lessor is registered as proprietor under this Act, where it is granted for the purpose of being annexed to or used and enjoyed together with the estate or interest of the lessee under the lease.(3) An affecting interest may, by a lease, be reserved in or over the demised land for the purpose of being annexed to or used and enjoyed together with other land of which the lessor is registered as proprietor under this Act.(4) On registration of a lease that grants or reserves an affecting interest, the Registrar-General shall make such recordings in the Register in respect of the affecting interest, as the Registrar-General considers appropriate.(5) The Registrar-General may record a dealing effecting a disposition of a registered affecting interest in gross by making such recordings in the Register as the Registrar-General considers appropriate.(5A) The terms or site of a registered affecting interest may be varied by a registered dealing in the approved form, or by such a dealing and a plan illustrating the varied site registered or recorded under Division 3 of Part 23 of the Conveyancing Act 1919.(5B) The dealing effecting the variation and the plan (if any) must be executed:(a) by the registered proprietors of the land burdened, and of any land benefited, by the affecting interest, and(b) by every mortgagee, chargee or covenant chargee under a mortgage, charge or covenant charge recorded in the folio of the Register relating to that land.(5C) The Registrar-General may refuse to register any such dealing or plan unless consents in writing to the registration of the dealing or plan signed by (or by an agent authorised by) such of the following persons as the Registrar-General may determine:(a) the lessee under any lease, or the judgment creditor under any writ, recorded in the folio of the Register relating to that land,(b) the caveator under a caveat relating to any estate or interest in that land,are lodged in the office of the Registrar-General.(6) An affecting interest recorded in the Register may be released wholly or partly by a registered dealing in the approved form.(6A) Where the registered proprietor of an affecting interest applies to the Registrar-General in the approved form for cancellation of a specified recording in the Register relating to the affecting interest and, except in the case of an easement created under section 88A of the Conveyancing Act 1919 or where the Registrar-General otherwise approves, the application bears, or is accompanied by, the written consent of each person who has a registered interest in the land benefited by the affecting interest, the Registrar-General may, to the extent applied for, cancel any recording relating to the affecting interest in any folio of the Register, and, when it becomes available to the Registrar-General, upon any certificate of title.(7) An affecting interest (being an affecting interest that benefits land) recorded in the Register shall not be extinguished solely by reason of the same person becoming proprietor of separate parcels of land respectively burdened and benefited by the affecting interest, notwithstanding any rule of law or equity in that behalf.(8) The provisions of subsection (7) shall only apply to easements and profits à prendre which, according to the Register, subsist at the commencement of the Real Property (Amendment) Act 1970 and to easements and profits à prendre recorded in the Register after that commencement.(9) Subsection (7) applies only to a restriction on the use of land recorded under this section after the commencement of Schedule 1 [10] to the Property Legislation Amendment Act 2005.
48 Creation of cross-easements for party walls by plans on application
(1) A plan registered or recorded under Division 3 of Part 23 of the Conveyancing Act 1919 before the commencement of this section creates cross-easements if:(a) a boundary of a lot is, in a manner satisfactory to the Registrar-General, shown in the plan as passing longitudinally through the whole or any part of a wall, and(b) the wall is described in the plan as a “party wall”, and(c) the Registrar-General has recorded in the Register an application to create cross-easements for support of the wall made in the approved form by each person having a registered estate or interest in land that will be benefited or burdened by the cross-easements.(1A) A plan registered or recorded under Division 3 of Part 23 of the Conveyancing Act 1919 on or after 1 August 1996 creates cross-easements if:(a) a boundary of a lot is shown in the plan as passing longitudinally through the whole or any part of a wall, and(b) the wall is described in the plan as a “proposed party wall”, and(c) the Registrar-General has recorded in the Register an application to create cross-easements for support of the wall made in the approved form by each person having a registered estate or interest in the land that will be benefited or burdened by the cross-easements.(2) The benefit of an easement referred to in subsection (1) or (1A) is appurtenant to each lot shown in the plan as consisting of or including a portion of the wall.(3) Each lot shown in the plan as consisting of or including another portion of the wall is subject to the burden of the easement.(4) The easement entitles each person for the time being having the benefit of the easement to the continued existence of each portion of the wall:(a) that is necessary for the support of so much of the building as is contained within the lot to which the easement is appurtenant, and(b) that consists of or is included within another lot which is subject to the burden of the easement.
49 Cancellation of recordings of easements after abandonment, consolidation of tenements or release
(1) The Registrar-General may cancel a recording relating to an easement in the Register if the easement has been abandoned.(1A) The Registrar-General may, under this section, cancel a recording relating to an easement in relation to:(a) all of the land benefited or burdened by the easement, or(b) any one or more of the lots, or part of a lot, burdened by the easement, or(c) any one or one or more of the lots benefited by the easement.(2) An easement may be treated as abandoned if the Registrar-General is satisfied it has not been used for at least 20 years before the application for the cancellation of the recording is made to the Registrar-General, whether that period commenced before, on or after, the date of assent to the Property Legislation Amendment (Easements) Act 1995.(3) However, an easement is not capable of being abandoned:(a) if the easement does not benefit land, or(b) to the extent (if any) that the easement benefits land owned by the Crown, or by a public or local authority constituted by an Act, or(c) if the easement is of a class of easements prescribed by the regulations as being incapable of being abandoned.(4) Before cancelling any such recording, the Registrar-General must:(a) serve a notice of intention to cancel the recording, personally or by post, on:(i) where the instrument creating the easement does not allow the identification of the land benefited by the easement—any person that the Registrar-General considers should receive such a notice taking into consideration the nature and location of the easement, the circumstances surrounding the creation of the easement and the physical characteristics of any relevant land, or(ii) in any other case—all persons having a registered estate or interest in land benefited by the easement, and(b) consider any submission made by those persons (but only if the submission is made by the date specified in the notice, being a date later than one month from the date on which the notice is served).(4A) However, the Registrar-General may give notice of the intention to cancel a recording to some or all of the persons referred to in subsection (4) (a) by advertisement in a newspaper rather than by personal or postal service if the Registrar-General is of the opinion that:(a) it is appropriate in the circumstances to give notice by advertisement in a newspaper, and(b) the relevant easement is unlikely to be of real benefit to the land benefited by the easement because the land benefited is no longer connected to the land burdened by the easement in a way that allows access to the site of the easement.(5) The Registrar-General may cancel a recording in the Register relating to an easement:(a) if satisfied that the recording relates to land for which the easement has no practical application because separate parcels of land that were respectively burdened and benefited by the easement have been consolidated into a single parcel, or(b) if the easement has been released under section 88B of the Conveyancing Act 1919.(6) An application for cancellation of any such recording must be made in the approved form or in a form prescribed by regulations made under the Conveyancing Act 1919.
51 Interest and rights of transferor pass to transferee
Upon the registration of any transfer, the estate or interest of the transferor as set forth in such instrument, with all rights, powers and privileges thereto belonging or appertaining, shall pass to the transferee, and such transferee shall thereupon become subject to and liable for all and every the same requirements and liabilities to which the transferee would have been subject and liable if named in such instrument originally as mortgagee, chargee or lessee of such land, estate, or interest.
52 Transfer of mortgage or lease transferee’s right to sue
(1) By virtue of every such transfer, the right to sue upon any mortgage or other instrument and to recover any debt, sum of money, annuity, or damages thereunder (notwithstanding the same may be deemed or held to constitute a chose in action), and all interest in any such debt, sum of money, annuity, or damages shall be transferred so as to vest the same at law as well as in equity in the transferee thereof.(2) Nothing herein contained shall prevent a Court from giving effect to any trusts affecting the said debt, sum of money, annuity, or damages, in case the transferee shall hold the same as a trustee for any other person.
52A Mortgage of a mortgage or charge
(1) All acts, powers, and rights which may be done or exercised by the mortgagee or chargee of an estate in land in relation to the estate or the mortgagor or charger of the estate may, when the mortgage of, or charge on, the estate is subject to a mortgage, be done or exercised by the mortgagee of the mortgage or charge, and shall not be done or exercised by the mortgagee or chargee of the estate.(2) Nothing in this section shall affect the rights of a mortgagor or charger who has not received notice of a mortgage of the mortgage or charge.(3) This section applies only to mortgages executed after the commencement of the Conveyancing (Amendment) Act 1930 of mortgages or charges created before or after such commencement.(4) In case of default within the meaning of section 57, notice authorised by that section shall not be given by leaving the notice on the mortgaged or charged land.(5) The provisions of section 60 shall not apply in case of default by the mortgagor of a mortgage or charge.