Land Titles Registration Practice Manual

Land Titles Registration practice manual landgate.wa.gov.au

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Land Titles Registration Practice Manual

19 May 2016 Version 14.0

Land Titles Registration Practice Manual- Version 14.0 (19 May 2016)

Terms of Use Disclaimer of Liability The information contained in this manual is distributed by Landgate through the Landgate corporate website (www0.landgate.wa.gov.au/) as a guide or information source only. Various factors beyond the control of Landgate or the Landgate corporate website can affect the quality or accuracy of the information and products. While every effort has been made to ensure accuracy and completeness, no guarantee is given nor responsibility taken by Landgate or the Landgate corporate website for errors or omissions in the manual. Landgate and the Landgate corporate website do not accept any liability for any loss or damage incurred as a result of the use of, or reliance upon the information provided in this manual or incorporated into it by reference.

Important The information in this Manual should not be regarded as legal advice. In all matters, users should seek legal advice from an independent legal practitioner.

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Copyright © Copyright in this Manual is owned by the Western Australian Land Information Authority (Landgate) and is protected by the Copyright Act 1968 (Cwlth). You may use this Manual for the purpose of a guide or information source in respect of land registration practice and procedure in Western Australia. Other than for this specified purpose and for the purposes of and subject to the conditions prescribed under the Copyright Act 1968 (Cwlth) and similar statutes that apply in your jurisdiction, you may not, in any form or by any means: •

Adapt, reproduce, store, distribute, transmit, print, display or create derivative works from any part of this Workbook or

•

Commercialise any information, products or services obtained from any part of this Workbook, without Landgate’s prior written permission.

Requests to use Landgate’s copyright material should be addressed to: Licensing Consultant Pricing and Licensing Landgate PO Box 2222 MIDLAND WA 6036 Tel: (08) 9273 7210 E-mail: [email protected] Any authorised reproduction however altered, reformatted or redisplayed must acknowledge the source of the information and that Landgate is the owner of copyright.

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Table of Contents 1.

General Information .............................................................................. 29

1.1

The Legislation and its Purpose ................................................................................ 30

1.2

1.3

1.4

1.1.1

Offices and Services ...............................................................................................30

1.1.2

Officers ...................................................................................................................31

1.1.3

Land in the Cocos (Keeling) Islands and Christmas Island......................................31

1.1.4

How Land is Brought under The Torrens System ....................................................31

1.1.5

How Changes in the Register are Caused ..............................................................32

1.1.6

How Registration May be Prevented or Delayed .....................................................32

1.1.7

The Scheme of this Manual ....................................................................................33

The Register.............................................................................................................. 34 1.2.1

General ...................................................................................................................34

1.2.2

Duplicate Title .........................................................................................................34

1.2.3

Registration.............................................................................................................36

Forms of Title to Land ............................................................................................... 37 1.3.1

Crown Grant ...........................................................................................................37

1.3.2

Paper Certificate of Title..........................................................................................37

1.3.3

Digital Certificate of Title .........................................................................................38

1.3.4

Record of Certificate of Title ....................................................................................39

1.3.5

Crown Lease (Year Numbered Crown Leases) .......................................................41

1.3.6

Crown Land Record ................................................................................................42

1.3.7

Certificate of Crown Land Title ................................................................................42

1.3.8

Qualified Certificate of Crown Land Title .................................................................43

1.3.9

Subsidiary Certificate of Crown Land Title ..............................................................43

1.3.10

Qualified Subsidiary Certificate of Crown Land Title................................................43

1.3.11

Permit to Occupy under the Land Act 1933 .............................................................44

1.3.12

Licence to Occupy under the Land Act 1933 ...........................................................45

1.3.13

The Present Physical Arrangement of the Register .................................................45

1.3.14

SmartRegister Titling System ..................................................................................46

1.3.15

National Electronic Conveyancing System ..............................................................47

Searching the Register .............................................................................................. 48 1.4.1

Why Search? ..........................................................................................................48

1.4.2

What May Be Searched? ........................................................................................49

1.4.3

Searching ...............................................................................................................49

1.4.4

Enterprise Business Information System (EBIS) .....................................................49

1.4.5

Searching Online Through Land Enquiry (LEN) ......................................................49

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1.5

1.6

1.4.6

Searching Digital Title under SmartRegister............................................................51

1.4.7

Purchase of Land Data ...........................................................................................51

1.4.8

Subject to Dealing Searches ...................................................................................51

1.4.9

Searching by Post ...................................................................................................52

1.4.10

Searching by Facsimile Request .............................................................................52

1.4.11

Certified Copies of Paper Titles...............................................................................52

1.4.12

Certified Copies of Digital Titles ..............................................................................52

1.4.13

Check Search .........................................................................................................53

1.4.14

Searches for Mineral Rights ....................................................................................53

1.4.15

Historical Searches of Paper Titles .........................................................................54

1.4.16

Historical Searches of Digital Titles under SmartRegister .......................................54

1.4.17

Search Certificate ...................................................................................................55

1.4.18

Preparation of Documents ......................................................................................55

1.4.19

Form of Documents ................................................................................................55

Requirements as to Form .......................................................................................... 56 1.5.1

General ...................................................................................................................56

1.5.2

Size, Margins, Quality and Binding .........................................................................56

1.5.3

Private Printing .......................................................................................................56

1.5.4

Form Approval: .......................................................................................................56

1.5.5

Printed Freehold Land Registration Forms ..............................................................57

1.5.6

Amendment of Document Forms Due to the Introduction of SmartRegister in 2001........................................................................................................................58

1.5.7

Completing Documents when a SmartRegister Title Exists .....................................58

1.5.8

Memorandum of Common Provisions .....................................................................59

1.5.9

Documents for which No Form is Provided .............................................................59

1.5.10

Additional Pages .....................................................................................................60

1.5.11

Insert Sheets...........................................................................................................60

1.5.12

Other Provisions Relating to Documents .................................................................60

1.5.13

Fees........................................................................................................................61

Stamp Duty ............................................................................................................... 61 1.6.1

General ...................................................................................................................61

1.6.2

Cocos (Keeling) Islands and Christmas Island ........................................................61

1.6.3

Evidence for Caveats ..............................................................................................61

1.6.4

Additional Stamping ................................................................................................61

1.6.5

Documents that Require Stamping .........................................................................62

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1.7

1.8

1.9

1.10

Parties to Documents ................................................................................................ 63 1.7.1

General ...................................................................................................................63

1.7.2

Name ......................................................................................................................63

1.7.3

Non Anglicised Names ............................................................................................63

1.7.4

Corporation Names .................................................................................................64

1.7.5

Address ..................................................................................................................64

Occupation (Shown for Witnesses and Declarations) ............................................... 68 1.8.1

Adults......................................................................................................................68

1.8.2

Minors .....................................................................................................................68

Land .......................................................................................................................... 68 1.9.1

Estate and Interest ..................................................................................................68

1.9.2

Description of Land .................................................................................................68

1.9.3

Sketches in Documents to Identify Part of the Land in a Certificate of Title .............69

1.9.4

Limitations, Interests, Encumbrances and Notifications ..........................................70

Execution of Documents ........................................................................................... 71 1.10.1

General ...................................................................................................................71

1.10.2

Execution by Making a Cross or Mark .....................................................................72

1.10.3

Examples of Marksman’s Clauses ..........................................................................72

1.10.4

Execution by an Administrator (and Appointment of)...............................................73

1.10.5

Execution by an Attorney ........................................................................................74

1.10.6

Execution by a Corporation under the Corporations Act 2001 .................................74

1.10.7

Execution by a Liquidator ........................................................................................77

1.10.8

Execution by an Official Manager ............................................................................78

1.10.9

Execution by a Receiver .........................................................................................79

1.10.10 Execution by a Registered Friendly Society ............................................................80 1.10.11 Execution by an Incorporated Association ..............................................................81 1.10.12 Execution of Statutory Declarations ........................................................................81 1.10.13 Aboriginal and Torres Strait Islander Corporations ..................................................82 1.10.14 Execution by a foreign registered Corporation ........................................................82 1.10.15 Execution of Electronic documents .........................................................................83 1.10.16 Execution by Overseas Witness..............................................................................85

1.11

Capacity of Parties .................................................................................................... 86 1.11.1

Minors .....................................................................................................................86

1.11.2

Partnerships............................................................................................................87

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1.12

1.13

Incapable Persons..................................................................................................... 87 1.12.1

Before 7 September 1990 .......................................................................................87

1.12.2

After 7 September 1990 ..........................................................................................88

1.12.3

Dealings by a Manager or Administrator .................................................................88

1.12.4

Dealings by the Protective Commissioner of New South Wales ..............................89

1.12.5

Power of the Public Trustee Where an Incapable Person is Domiciled in Other Jurisdictions ............................................................................................................91

Registration ............................................................................................................... 92 1.13.1

Importance of Registration ......................................................................................92

1.13.2

Lodging Documents ................................................................................................93

1.13.3

Lodgement by Post .................................................................................................96

1.13.4

Order of Registration...............................................................................................96

1.13.5

Payment of Fees .....................................................................................................96

1.13.6

Priority of Registration .............................................................................................97

1.13.7

Priority of Registration - Computer Failure ..............................................................97

1.13.8

Computer Record - Unregistered Dealings..............................................................97

1.13.9

Followers ................................................................................................................98

1.13.10 Amendment of Documents Before Lodgement ........................................................98 1.13.11 Amendment of Documents After Lodgement...........................................................98 1.13.12 Patent Errors...........................................................................................................99 1.13.13 Fast Track (Priority) Processing of Documents .......................................................99 1.13.14 Requests to Expedite the Processing of Plans and Documents ..............................99 1.13.15 Lodging of Electronic documents ..........................................................................101

1.14

1.15

1.16

Stopped Documents ................................................................................................ 102 1.14.1

General .................................................................................................................102

1.14.2

Power to Require Amendments ............................................................................102

1.14.3

Requisition Notices ...............................................................................................103

1.14.4

Uplifting Requisitioned (Stopped) Documents .......................................................104

1.14.5

Fixing Stopped Documents ...................................................................................105

1.14.6

Withdrawal of Documents from Registration .........................................................105

1.14.7

Rejection of Documents ........................................................................................106

Rectification in the Register and on Instruments (after Registration) ...................... 106 1.15.1

General .................................................................................................................106

1.15.2

Street Address and Local Government Statements...............................................106

Issue of Instruments after Registration .................................................................... 107 1.16.1

General .................................................................................................................107

1.16.2

Issuing Receipts ...................................................................................................107

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1.17

Service of Court Orders upon the Registrar ............................................................ 109 1.17.1

General .................................................................................................................109

1.17.2

Registrar’s Packets ...............................................................................................109

1.17.3

Status Reports (on Registrar’s Packets) ...............................................................110

2.

Dealings: Transfers, Mortgages, Leases, Charges, Profits a’ Prendre, Carbon Rights, Carbon Covenants and Tree Plantation Agreements . 111

2.1

Transfers ................................................................................................................. 112 2.1.1

General .................................................................................................................112

2.1.2

Choose the Correct Form......................................................................................112

2.1.3

Describe the Land Being Transferred....................................................................113

2.1.4

Describe the Estate or Interest Being Transferred.................................................114

2.1.5

Set Out Limitations, Interests, Encumbrances and Notifications............................114

2.1.6

Describe the Transferor(s) ....................................................................................114

2.1.7

Show the True Consideration ................................................................................114

2.1.8

Describe the Transferee(s) ...................................................................................115

2.1.9

Attestation .............................................................................................................115

2.1.10

Straightforward Transfer of Land...........................................................................115

2.1.11

Transfer - Where Land is Encumbered .................................................................115

2.1.12

Transfers to Joint Tenants ....................................................................................115

2.1.13

Transfers to Tenants in Common ..........................................................................116

2.1.14

Transfer - Tenants in Common and Joint Tenants ................................................116

2.1.15

Purple Title............................................................................................................116

2.1.16

Transfer by a Tenant in Common of His or Her Entire Interest to a Stranger .........117

2.1.17

Transfer by a Proprietor to Himself .......................................................................117

2.1.18

Transfer by a Tenant in Common of Part of His or Her Interest to a Stranger or Strangers ..............................................................................................................117

2.1.19

Transfer by a Tenant in Common of the Whole of His or Her Interest to the Other Co-Tenant or Co-Tenants .....................................................................................118

2.1.20

Transfer by a Tenant In Common of Part of His or Her Interest to a Co-Tenant ....118

2.1.21

Transfer by One Joint Tenant to a Stranger ..........................................................119

2.1.22

Transfers Between Joint Tenants..........................................................................119

2.1.23

Transfer to Effect a Partition of Land .....................................................................120

2.1.24

Transfer to Effect a Change of Tenancy................................................................120

2.1.25

Transfer by Direction .............................................................................................120

2.1.26

Transfer Reciting an Assignment ..........................................................................121

2.1.27

Creation of Life Estates and Estates in Remainder ...............................................121

2.1.28

Transfer by Life Tenants .......................................................................................123

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2.2

2.3

2.4

2.1.29

Transfer by Remainderman ..................................................................................123

2.1.30

Transfer to a Personal Representative (Executor or Administrator) .......................123

2.1.31

Transfers by Executors and Administrators With the Will Annexed .......................124

2.1.32

Transfer by Attorney Under EPA or by Administrator Under Board Order to Self or Family Member .....................................................................................................124

Transfers by an Administrator ................................................................................. 125 2.2.1

General .................................................................................................................125

2.2.2

Transfer by Way of Sale........................................................................................126

2.2.3

Transfer by Way of Distribution or Appropriation ...................................................126

2.2.4

Transfer by Personal Representatives to Themselves or One of Them.................127

2.2.5

Transfer by Mortgagee Exercising Power of Sale..................................................127

2.2.6

Transfer by Mortgagee Exercising Power of Sale for Mortgages under the National Credit Code...........................................................................................................131

2.2.7

Transfer by a Debenture Holder ............................................................................134

2.2.8

Transfer by Annuitant (Chargee) ...........................................................................135

2.2.9

Transfers by Sale for Rates (Local Government Act 1995) ...................................135

2.2.10

Transfer Pursuant to a Property (Seizure and Sale) Order ....................................136

Transfer: Land of Deregistered Company ............................................................... 137 2.3.1

Companies Deregistered Prior to 1 January, 1991 (Representative Provisions) ...137

2.3.2

Companies Deregistered Prior to 1 January, 1991(Disposal Provisions) ...............138

2.3.3

Execution by the Australian Securities & Investments Commission ......................138

2.3.4

Evidence to Support the Transfer Referred to in Chapter 2.3.1 and 2.3.2 .............139

2.3.5

Companies Deregistered on or After 1 January, 1991 (Representative Provisions)139

2.3.6

Companies Deregistered on or After 1 January, 1991 (Disposal Provisions).........140

2.3.7

Attestation and Supporting Evidence ....................................................................140

2.3.8

Distribution in Specie ............................................................................................140

2.3.9

Beneficiaries .........................................................................................................141

2.3.10

Transfers of a Lot on a Strata/Survey-Strata Plan .................................................141

2.3.11

Transfer of Part of The Common Property of a Strata/Survey-Strata Plan ............142

2.3.12

Transfers Creating Easements and Covenants .....................................................142

Transfer of Mortgage, Charge or Lease .................................................................. 143 2.4.1

General .................................................................................................................143

2.4.2

Transfer of Mortgage ............................................................................................144

2.4.3

Transfer of Charge ................................................................................................144

2.4.4

Transfer of Lease ..................................................................................................144

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2.5

2.6

2.7

2.8

Transfers to and from the State of Western Australia.............................................. 145 2.5.1

Transfer and Surrender of Fee Simple Land to State of Western Australia ...........145

2.5.2

Leasehold Land ....................................................................................................145

2.5.3

Transfer of Crown Land to Fee Simple Land .........................................................145

Mortgages and Discharges ..................................................................................... 146 2.6.1

Mortgage Forms....................................................................................................146

2.6.2

Mortgages under the National Credit Code ...........................................................150

2.6.3

Tenancy of the Mortgagees ..................................................................................150

2.6.4

Mortgage by a Tenant in Common of that Interest ................................................151

2.6.5

Mortgage by a Joint Tenant of that Interest ...........................................................151

2.6.6

Mortgage by a Life Tenant ....................................................................................151

2.6.7

Mortgage by a Remainderman ..............................................................................151

2.6.8

Mortgage by Life Tenant and Remainderman Together ........................................151

2.6.9

Mortgage by Personal Representative ..................................................................152

2.6.10

Mortgages - Double Interest ..................................................................................152

2.6.11

Mortgage to a Trustee ...........................................................................................153

2.6.12

Up Stamping a Mortgage ......................................................................................153

2.6.13

Extension of Mortgage ..........................................................................................153

2.6.14

Discharge of Mortgage ..........................................................................................154

2.6.15

Discharge - Where Mortgagee Absent from WA ...................................................155

2.6.16

Discharge - Payment to Absent Mortgagee ...........................................................156

2.6.17

Discharge - Where the Mortgage Money has Been Paid and the Mortgagee is Dead or Absent from the State or Cannot Be Found .............................................156

2.6.18

Mortgage - Merger of Mortgage ............................................................................157

2.6.19

Discharge by a Company or Incorporated Body ....................................................157

2.6.20

Discharge by a Friendly Society ............................................................................157

Charges and Discharges ......................................................................................... 157 2.7.1

Charge ..................................................................................................................157

2.7.2

Discharge of Charge .............................................................................................158

2.7.3

Discharge - Where Annuitant is Dead and there is No Personal Representative ...158

2.7.4

Extension of Charge .............................................................................................158

Leases of Land ........................................................................................................ 159 2.8.1

Form .....................................................................................................................159

2.8.2

Options to Renew a Lease ....................................................................................160

2.8.3

Option to Purchase ...............................................................................................160

2.8.4

Narrative Description of Buildings .........................................................................160

2.8.5

Covenants by the Lessee......................................................................................161

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2.9

2.10

2.8.6

Powers of the Lessor ............................................................................................161

2.8.7

Short Form of Covenants ......................................................................................161

2.8.8

Memorandum of Common Provisions ...................................................................161

2.8.9

Transfer of Lease ..................................................................................................161

2.8.10

Surrender of Lease ...............................................................................................161

2.8.11

Recovery of Possession by Lessor (Section 96) ...................................................162

2.8.12

Re-Entry by Lessor or Sub-Lessor (Section 104) ..................................................162

2.8.13

Merger of Lease ....................................................................................................162

2.8.14

Sub-Lease ............................................................................................................162

2.8.15

Concurrent Leases................................................................................................163

2.8.16

Extension of Lease ...............................................................................................163

2.8.17

Variation of Lease .................................................................................................164

2.8.18

Removal of Expired Term Lease of Crown Land ...................................................164

2.8.19

Forfeiture of Lease of Crown Land ........................................................................166

2.8.20

Pastoral Leases ....................................................................................................166

2.8.21

Removal of Expired Freehold Lease .....................................................................167

Profits a’ Prendre .................................................................................................... 168 2.9.1

General .................................................................................................................168

2.9.2

Profits a’ Prendre under the Conservation and Land Management Act 1984 ........168

2.9.3

Profits a’ Prendre under the Forest Products Act 2000 .........................................169

2.9.4

Transfer of Profits a’ Prendre under the Conservation and Land Management Act 1984 and the Forest Products Act 2000 ................................................................170

2.9.5

Surrender of Profits a’ Prendre under the Conservation and Land Management Act 1984 and the Forest Products Act 2000 ................................................................170

2.9.6

Profits a’ Prendre Under the LAA in Respect of Crown Land ................................172

Carbon Rights ......................................................................................................... 173 2.10.1

General .................................................................................................................173

2.10.2

Carbon Rights Act 2003 ........................................................................................173

2.10.3

Creation of a Carbon Right ...................................................................................173

2.10.4

Registration of a Carbon Right ..............................................................................174

2.10.5

Extension of a Carbon Right .................................................................................174

2.10.6

Transfer of a Carbon Right....................................................................................175

2.10.7

Mortgage of a Carbon Right ..................................................................................175

2.10.8

Surrender of a Carbon Right .................................................................................175

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2.11

2.12

Carbon Covenants .................................................................................................. 176 2.11.1

General .................................................................................................................176

2.11.2

Carbon Rights Act 2003 ........................................................................................176

2.11.3

Creation of a Carbon Covenant.............................................................................176

2.11.4

Registration of a Carbon Covenant .......................................................................177

2.11.5

Extension of a Carbon Covenant ..........................................................................177

2.11.6

Variation of a Carbon Covenant ............................................................................178

2.11.7

Transfer of Benefits under a Carbon Covenant .....................................................179

2.11.8

Mortgage of a Carbon Covenant ...........................................................................179

2.11.9

Surrender of a Carbon Covenant ..........................................................................179

Tree Plantation Agreements.................................................................................... 180 2.12.1

General .................................................................................................................180

2.12.2

Tree Plantation Agreements Act 2003...................................................................180

2.12.3

Creation of a Plantation Interest ............................................................................180

2.12.4

Registration of a Tree Plantation Agreement.........................................................181

2.12.5

Extension of a Plantation Interest ..........................................................................182

2.12.6

Variation of a Tree Plantation Agreement .............................................................182

2.12.7

Transfer of a Plantation Interest ............................................................................183

2.12.8

Mortgage of a Plantation Interest ..........................................................................183

2.12.9

Surrender of a Plantation Interest .........................................................................183

3.

Applications ........................................................................................ 185

3.1

Applications ............................................................................................................. 186

3.2

3.1.1

General .................................................................................................................186

3.1.2

Effect of Applications ............................................................................................186

3.1.3

Forms ...................................................................................................................186

3.1.4

General Requirements ..........................................................................................186

3.1.5

Presentation of Evidence ......................................................................................187

Statutory Declarations ............................................................................................. 187 3.2.1

Declarations Made for the Purposes of the TLA ....................................................187

3.2.2

Form .....................................................................................................................187

3.2.3

Witnessing Statutory Declarations ........................................................................188

3.2.4

Authorised Witnesses Inside Western Australia ....................................................188

3.2.5

Authorised Witnesses Outside Western Australia .................................................190

3.2.6

Content .................................................................................................................190

3.2.7

Declarations by Two or More Persons ..................................................................191

3.2.8

Amendments to a Declaration ...............................................................................191

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3.3

3.4

3.5

3.6

3.2.9

Evidence Produced ...............................................................................................191

3.2.10

Attachments ..........................................................................................................192

Transmission Applications (Section 219 of the TLA) ............................................... 193 3.3.1

On Death of Registered Proprietor ........................................................................193

3.3.2

Who May Apply .....................................................................................................194

3.3.3

Who May Not Apply ..............................................................................................194

Survivorship Applications (Section 227 of the TLA) ................................................ 194 3.4.1

On Death of a Joint Tenant ...................................................................................194

3.4.2

Who May Apply .....................................................................................................195

3.4.3

Bars to Survivorship ..............................................................................................196

3.4.4

On Death of a Life Tenant .....................................................................................196

3.4.5

Application by a Trustee in Bankruptcy (Section 234 of the TLA) ..........................197

Amendment of Name .............................................................................................. 198 3.5.1

General .................................................................................................................198

3.5.2

Married Women ....................................................................................................198

3.5.3

Form .....................................................................................................................198

3.5.4

Evidence Required for Simple Amendment of Name in Case of Error ...................199

3.5.5

Evidence Required for Amendment of Name by Marriage.....................................199

3.5.6

Evidence Required for Amendment of Name by Licence to Change Name or Deed Poll .......................................................................................................................200

3.5.7

Evidence Required for Amendment of Name by Repute or Usage. .......................200

3.5.8

Evidence Required for Amendment of Name by a Certificate Issued by the Registrar of Births, Deaths and Marriages ............................................................................201

3.5.9

Evidence Required for Amendment of Name by a Corporation .............................202

3.5.10

Exception to the General Rule ..............................................................................202

3.5.11

Amending the Address of the Registered Proprietor .............................................203

Foreclosure (Section 121 of the TLA)...................................................................... 203 3.6.1

General .................................................................................................................203

3.6.2

How to Apply.........................................................................................................203

3.6.3

Requirements .......................................................................................................203

3.6.4

Notice of Default ...................................................................................................204

3.6.5

Evidence Required................................................................................................204

3.6.6

Certificate of Auctioneer ........................................................................................204

3.6.7

Conditions of Sale .................................................................................................205

3.6.8

Copies of Advertisements .....................................................................................205

3.6.9

Attempt to Sell by Landgate ..................................................................................205

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3.7

3.8

3.9

3.10

3.6.10

Final Declaration of Mortgagee .............................................................................205

3.6.11

Preparation, Stamping and Processing of the Order .............................................205

3.6.12

Effect of Order ......................................................................................................206

Vesting Orders (Section 182 of the TLA)................................................................. 206 3.7.1

General .................................................................................................................206

3.7.2


3.7.3

Preparation, Stamping and Processing of the Order .............................................207


General .................................................................................................................207

3.8.2



General .................................................................................................................208

3.9.2


New Duplicate Certificate of Title (Section 75 of the TLA)....................................... 209 3.10.1

General .................................................................................................................209

3.10.2

Declaration in Support ..........................................................................................210

3.10.3


3.10.4

Advertising of Application (Paper Title, Crown Lease and Lease of Crown Land only) ......................................................................................................................212

3.11

Removal of Caveats (Section 138B of the TLA) ...................................................... 212

3.12

Removal of Caveats (Section 141A of the TLA) ...................................................... 214

3.13

Search Certificates (s.146 and 147 of the TLA) ...................................................... 215 3.13.1

General .................................................................................................................215

3.13.2

Stay Orders (Section 148 of the TLA) ...................................................................215

3.14

Amendment of Boundaries, Area or Position .......................................................... 215

3.15

Vesting under Section 197 of the Planning and Development Act 2005 (P&D Act) 216

3.16

Name Suppression .................................................................................................. 216

3.17

3.16.1

Eligibility for Name Suppression............................................................................216

3.16.2

How to Apply for Name Suppression.....................................................................217

3.16.3

How to Submit your Name Suppression Application .............................................217

3.16.4

Extent of Name Suppression ................................................................................218

Other Applications Dealt with Elsewhere................................................................. 218

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4.

Caveats, Writs and Warrants, Property (Seizure and Sale) Orders ..... 219

4.1

Caveats ................................................................................................................... 220

4.2

4.3

4.1.1

General .................................................................................................................220

4.1.2

Purpose ................................................................................................................220

4.1.3

Entry of a Caveat ..................................................................................................220

4.1.4

Improper Entry of Caveat ......................................................................................220

4.1.5

Interest in Land Capable of Supporting a Caveat ..................................................221

4.1.6

Registered Proprietor’s Caveat .............................................................................221

4.1.7

Caveat to Prevent Improper Dealings ...................................................................222

4.1.8

Traditional Interests that Support a Caveat ...........................................................222

4.1.9

Nature of the Caveator’s Claim .............................................................................223

4.1.10

Registrar’s Role ....................................................................................................225

4.1.11

Types of Caveats ..................................................................................................225

4.1.12

Forms to Use ........................................................................................................225

Caveats Lodged under Section 137 of the TLA and Section 20 of the LAA ............ 226 4.2.1

Who May Lodge a Caveat Over Freehold Land ....................................................226

4.2.2

Who May Lodge a Caveat Over Crown Land ........................................................226

4.2.3

How the Claim is Stated ........................................................................................226

4.2.4

Supporting Documentary Evidence .......................................................................227

4.2.5

Supporting Statutory Declarations .........................................................................227

4.2.6

Land......................................................................................................................228

4.2.7

Who May Sign Caveats.........................................................................................229

4.2.8

Notice to Registered Proprietors ...........................................................................229

4.2.9

Address for Service of Notice ................................................................................229

4.2.10

Change of Address for Service of Notice ..............................................................230

4.2.11

Caveat against Applications to Bring Land under the Operation of the TLA (Section 30) ........................................................................................................................230

4.2.12

Caveat against an Application to Rectify the Boundaries or Area of the Relevant Graphic for a Title (Section 176 of the TLA) ..........................................................230

4.2.13

Caveat against an Application by Possession of Land Already under The TLA (Section 223A) ......................................................................................................231

Removal of Caveats ................................................................................................ 231 4.3.1

By Withdrawal .......................................................................................................231

4.3.2

By Lapse under Section 138 of the TLA (14 Days Notice).....................................231

4.3.3

Caveat (Improper Dealings) ..................................................................................232

4.3.4

By Taking or Acquisition........................................................................................232

4.3.5

By Order of the Court ............................................................................................232

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4.4

4.5

4.6

4.3.6

By Sale For Rates .................................................................................................232

4.3.7

By the Application of the Registered Proprietor under Section 138B .....................232

4.3.8

By the Application of the Registered Proprietor or Any Person Claiming an Interest in the Land under Section 141A ............................................................................232

4.3.9

By a Sale under a Property (Seizure and Sale) Order ...........................................232

Writs of Fieri Facias and Warrants of Execution ..................................................... 233 4.4.1

General .................................................................................................................233

4.4.2

How Lodged..........................................................................................................233

4.4.3

Effect of Lodgement ..............................................................................................234

4.4.4

Interests in Land Protected Against Execution ......................................................234

Removal of Writs and Warrants .............................................................................. 235 4.5.1

By Application .......................................................................................................235

4.5.2

By the Commissioner of Titles...............................................................................235

4.5.3

By Expiry of the Four Month Period ......................................................................235

4.5.4

By Taking or Acquisition........................................................................................235

4.5.5

By Exercise of a Mortgagee’s Power of Sale.........................................................235

4.5.6

By Sale For Rates .................................................................................................235

4.5.7

By Transfer by the Sheriff, Bailiff or Magistrate .....................................................235

Property (Seizure and Sale) Orders (PSSO) ........................................................... 236 4.6.1

General .................................................................................................................236

4.6.2

How Lodged..........................................................................................................236

4.6.3

Effect of Registration.............................................................................................237

4.6.4

Application to Register an Order Extending the Sale Period in a Property (Seizure and Sale) Order ....................................................................................................237

4.7

Removal of Property (Seizure and Sale) Orders ..................................................... 238

5.

Powers of Attorney and Declarations of Trust ..................................... 239

5.1

Powers of Attorney .................................................................................................. 240 5.1.1

General .................................................................................................................240

5.1.2

Noting and Filing ...................................................................................................240

5.1.3

Production For Sighting.........................................................................................241

5.1.4

Schedule Form .....................................................................................................241

5.1.5

Power of Attorney by a Corporation ......................................................................242

5.1.6

Power of Attorney by Trustee ................................................................................243

5.1.7

Powers of Attorney in a General Lien, etc. ............................................................245

5.1.8

Limited Powers of Attorney ...................................................................................245

5.1.9

Irrevocable Power of Attorney ...............................................................................246

5.1.10

Powers Contained in Leases, Contracts, etc. ........................................................246

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5.2

5.3

5.1.11

Powers Contained in Mortgages ...........................................................................246

5.1.12

Limit of Attorney’s Power ......................................................................................247

5.1.13

Execution of Documents by Attorney ....................................................................247

Enduring Powers of Attorney................................................................................... 247 5.2.1

General .................................................................................................................247

5.2.2

Appointment of Substitutes ...................................................................................248

5.2.3

Duration ................................................................................................................248

5.2.4

Noting and Filing ...................................................................................................248

5.2.5

Witnessing Requirements .....................................................................................250

5.2.6

Execution of Documents by Attorney ....................................................................250

Revocation .............................................................................................................. 251 5.3.1

Revocation of (TLA) Power of Attorney .................................................................251

5.3.2

Revocation of an Enduring Power of Attorney .......................................................252

5.3.3

Notification of Death of the Donor .........................................................................252

5.4

Declarations of Trust (Section 55 of the TLA) ......................................................... 253

6.

Subdivision and Strata/Survey Strata Plans ........................................ 255

6.1

Subdivision .............................................................................................................. 256

6.2

6.1.1

General .................................................................................................................256

6.1.2

Lodgement of Plans ..............................................................................................256

6.1.3

Lot Synchronisation for New Subdivisions ............................................................256

6.1.4

Plans Marked Subject to Examination ...................................................................257

6.1.5

The Plan Examination Process .............................................................................258

6.1.6

Plan Approval .......................................................................................................258

6.1.7

Where a Plan is Shown Certified Correct ..............................................................259

6.1.8

Where a Plan is Shown In Order for Dealings .......................................................259

6.1.9

Where a Plan is Shown Expired ............................................................................259

6.1.10

Comments with Internal Impact .............................................................................260

6.1.11

Comments with External Impact............................................................................261

6.1.12

Compiled Plans .....................................................................................................263

Applications for New Titles ...................................................................................... 264 6.2.1

New Titles for Subdivisions ...................................................................................264

6.2.2

Balance Titles .......................................................................................................265

6.2.3

Separate Titles ......................................................................................................266

6.2.4

Reversion to Crown Allotments .............................................................................266

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6.3

6.4

6.5

6.6

6.7

Strata/Survey-Strata Plans ...................................................................................... 267 6.3.1

General .................................................................................................................267

6.3.2

Strata / Survey-Strata Plans – Elements in Common ............................................268

6.3.3

Strata Plan – Additional Elements .........................................................................268

6.3.4

Survey-Strata Plans – Additional Elements ...........................................................269

6.3.5

Searching a Strata Lot ..........................................................................................269

6.3.6

Strata Title ............................................................................................................269

6.3.7

Production of Duplicate Strata Titles .....................................................................269

Lodgement and Registration of New Strata/Survey-Strata Plans ............................ 270 6.4.1

General .................................................................................................................270

6.4.2

Easements in Respect of Encroachments (Including Easements of Support) .......272

6.4.3


6.4.4

Conversion of Share (Purple) Titles to Strata Titles...............................................273

6.4.5

Disposition Statements For Tenancies in Common ...............................................273

6.4.6

Disposition Statements for Plans of Re-Subdivision ..............................................274

6.4.7

Management Statements ......................................................................................275

6.4.8

Strata Company ....................................................................................................276

6.4.9

Powers and Duties of the Strata Company............................................................276

1996 Single Tier Merger and Conversion Options .................................................. 276 6.5.1

General .................................................................................................................276

6.5.2

Merger by Resolution of Buildings that are Common Property ..............................277

6.5.3

Automatic Merger of Buildings that are Common Property ....................................278

6.5.4

Merger by Resolution of Land that is Common Property .......................................279

6.5.5

Merger by Resolution of Buildings and Land That Are Common Property .............283

6.5.6

Conversion of Strata Schemes to Survey-Strata Schemes ...................................283

Enlargement of the Common Property .................................................................... 286 6.6.1

General .................................................................................................................286

6.6.2

By Conversion of a Strata/Survey-Strata Lot .........................................................286

6.6.3

By Purchase or Lease of Adjoining Land ..............................................................287

6.6.4

By Inclusion of a Closed Public Road or Other Unallocated Crown Land under Section 87 of the LAA ...........................................................................................287

6.6.5

By Inclusion of a Closed Private Road or Right of Way under Section 297A of the Local Government (Miscellaneous Provisions) Act 1960 .......................................288

Sale or Lease of Part of the Common Property....................................................... 288 6.7.1

Sale of Part of the Common Property....................................................................288

6.7.2

Lease of Part of The Common Property ................................................................289

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6.8

6.9

6.10

6.11

6.12

Modifications to an Existing Strata/Survey-Strata Scheme ..................................... 289 6.8.1

General .................................................................................................................289

6.8.2

Change of Name ...................................................................................................289

6.8.3

Change of Address for Service of Notices .............................................................289

6.8.4

Re-Allocation of Unit Entitlement on a Strata/Survey-Strata Plan ..........................290

6.8.5

Re-Subdivision of Strata/Survey-Strata Plans .......................................................291

6.8.6

Consolidation of Two or More Strata/Survey-Strata Lots .......................................292

6.8.7

Addition, Variation or Removal of Restriction as to Use ........................................293

Variation or Termination of a Strata Scheme .......................................................... 294 6.9.1

Variation Upon Damage or Destruction (section 28 of the STA) ............................294

6.9.2

Termination by Unanimous Resolution (Section 30 of the STA) ............................294

6.9.3

Termination for the Purpose of Creating a New Strata/Survey-Strata Scheme – Where Encumbrances on Lots are to be Carried Forward.....................................295

6.9.4

Termination by the Taking of the Whole of the Parcel (Section 29C of the STA) ...295

6.9.5

Termination by Order of District Court (Section 31 of the STA) .............................295

Termination of a Survey-Strata Scheme ................................................................. 296 6.10.1

Termination by Unanimous Resolution (Section 30A of the STA)..........................296

6.10.2

Termination by the Taking of the Whole of the Parcel (Section 29C of the STA) ...296

6.10.3

Termination by Order of District Court (Section 31 of the STA) .............................296

Amendment of By-Laws .......................................................................................... 297 6.11.1

General .................................................................................................................297

6.11.2

Registration of an Amendment of By-Laws ...........................................................298

6.11.3

Exclusive Use By-Laws .........................................................................................298

The State Administrative Tribunal ........................................................................... 299 6.12.1

General .................................................................................................................299

6.12.2

Applications to the State Administrative Tribunal...................................................299

6.12.3

Orders of the State Administrative Tribunal ...........................................................300

6.12.4

Appeals .................................................................................................................300

6.12.5

Registration of an Order of the State Administrative Tribunal ................................301

6.12.6

Registration of an Order by the State Administrative Tribunal to Vary the Unit Entitlement ............................................................................................................301

6.12.7

Registration of an Order of the State Administrative Tribunal with Regard to Retirement Village Disputes ..................................................................................301

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7.

Easements and Covenants ................................................................. 303

7.1

Easements .............................................................................................................. 304

7.2

7.3

7.4

7.1.1

General .................................................................................................................304

7.1.2

Types of Easements .............................................................................................304

7.1.3

Essentials for the Registration of an Easement .....................................................305

7.1.4

How Created .........................................................................................................305

7.1.5

Easements Created by Deed ................................................................................306

7.1.6

Easements Incorporated in a Transfer ..................................................................307

7.1.7

Easements Created in a Plan of Subdivision Pursuant to Section 167 of the P&D Act (Formerly Section 27A of the TP&D Act) ...............................................................307

7.1.8

Creation of Easements on Plans of Subdivisions under Part IVA of the TLA .........307

7.1.9

Creation of Easements under Section 5D by Notation on Survey-Strata Plans .....309

7.1.10

Easements over Crown Land ................................................................................311

7.1.11

Variation of Easement over Crown Land ...............................................................311

Removal of Easements ........................................................................................... 312 7.2.1

Surrender ..............................................................................................................312

7.2.2

Abandonment .......................................................................................................312

7.2.3

Merger ..................................................................................................................313

7.2.4

Taking ...................................................................................................................314

7.2.5

By Court Order ......................................................................................................314

7.2.6

By Order of the Registrar ......................................................................................314

7.2.7

Discharge and Modification of Easements Created under Part IVA .......................314

7.2.8

Discharge or Variation of Easements Created under Section 5D by Notation on Survey-Strata Plans ..............................................................................................315

7.2.9

Cancellation of Easements Over Crown Land .......................................................316

Covenants ............................................................................................................... 317 7.3.1

General .................................................................................................................317

7.3.2

Restrictive Covenants Created by Deed ...............................................................317

7.3.3

Restrictive Covenants in Gross .............................................................................318

7.3.4

Restrictive Covenants Created by Transfer ...........................................................318

7.3.5

Creation of Restrictive Covenants on Plans of Subdivision under Part IVA of the Transfer of Land Amendment Act 1996.................................................................319

7.3.6

Creation of Covenants under the Land Administration Act 1997 ...........................321

Types of Restrictive Covenants ............................................................................... 322 7.4.1

Estate Covenants..................................................................................................322

7.4.2

Restraint of Business or Trade Covenants ............................................................322

7.4.3

Protected View or Outlook Covenants...................................................................322

7.4.4

Covenants with the National Trust ........................................................................322

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7.5

7.6

How Covenants are Removed ................................................................................ 323 7.5.1

General .................................................................................................................323

7.5.2

By Agreement (Section 129B of the TLA) .............................................................323

7.5.3

By Order of the Court (Section 129C of the TLA) ..................................................323

7.5.4

Single Dwelling Restrictive Covenants s.129C (1a) ...............................................324

7.5.5

By Implementation of a Town Planning Scheme (Section 11 in Schedule 7 of the P&D Act) ...............................................................................................................325

7.5.6

Discharge and Modification of Restrictive Covenants Created under Part IVA ......325

7.5.7

Discharge and Modification of Restrictive Covenants in Gross..............................326

7.5.8

Discharge and Modification of Covenants under the Land Administration Act 1997327

Easements and Restrictive Covenants Involving Strata Companies ....................... 327 7.6.1

General .................................................................................................................327

7.6.2

Strata Companies Do Not Own the Parcel in Strata Schemes ..............................327

7.6.3

Execution of Easements and Restrictive Covenants by Strata Companies ...........328

7.6.4

Execution of Easements and Restrictive Covenants by Proprietors of Proposed Strata/Survey-Strata Lots - with Proprietors of Land Outside the Scheme ............328

7.6.5

Easements in Respect of Encroachments .............................................................328

8.

Roads and Their Closure .................................................................... 329

8.1

Roads and their Closure.......................................................................................... 330

8.2

Creation of Public Roads......................................................................................... 330

8.3

8.4

8.2.1

Crown Land ..........................................................................................................330

8.2.2

Alienated Land ......................................................................................................330

8.2.3

Railway Land ........................................................................................................331

8.2.4

Ownership, Care, Control and Access to Roads ...................................................331

Creation of Private Roads ....................................................................................... 333 8.3.1

Private Roads and Rights of Way .........................................................................333

8.3.2

Pedestrian Accessways and Rights of Way under Section 152 of the Planning and Development Act 2005 ..........................................................................................333

Closure of Roads, Pedestrian Accessways and Rights of Way............................... 334 8.4.1

Closure of Public Roads........................................................................................334

8.4.2

Disposal of Land in a Closed Road .......................................................................334

8.4.3

Closure of Private Roads and Rights of Way by Application .................................335

8.4.4

Closure of Private Roads and Rights of Way at the Request of Local Governments ........................................................................................................336

8.4.5

Closure of Pedestrian Accessways and Rights of Way Vested under Section 20A of the Town Planning and Development Act 1928 .....................................................338

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9.

Bringing Land under the TLA and Possessory Titles (Adverse Possession) ......................................................................... 339

9.1

Bringing Land under the Transfer of Land Act 1893 ................................................ 340

9.2

9.1.1

General .................................................................................................................340

9.1.2

Right to Apply .......................................................................................................340

9.1.3

How to Apply.........................................................................................................340

9.1.4

Form of Application ...............................................................................................341

9.1.5

Who May Apply .....................................................................................................345

9.1.6

Proving Documentary Title ....................................................................................345

9.1.7

Survey Requirements ...........................................................................................345

9.1.8

Examination of Application ....................................................................................346

9.1.9

Caveat Against Application ...................................................................................346

9.1.10

Land Brought under the TLA by Operation of Other Statutes ................................346

Applications for Title by Possession (Adverse Possession) .................................... 347 9.2.1

How Claim Arises..................................................................................................347

9.2.2

How to Apply.........................................................................................................347

9.2.3

Form of Application ...............................................................................................348

9.2.4

Proving Possessory Title.......................................................................................350

9.2.5

Evidence in Support ..............................................................................................351

9.2.6

Encumbrances on Land Claimed ..........................................................................352

9.2.7

Confirmation of Possession ..................................................................................352

9.2.8

Whether a Survey is Required ..............................................................................353

9.2.9

Examination of Application ....................................................................................353

9.2.10

Caveat Against Application ...................................................................................353

9.2.11

Searching an Application for Adverse Possession ................................................353

10.

General Law, Licences, Deeds Poll and Applications to Register Change of Name................................................................................. 355

10.1

General Law ............................................................................................................ 356 10.1.1

Land under the General Law .................................................................................356

10.1.2

Nature of the System ............................................................................................356

10.1.3

Method of Registration ..........................................................................................357

10.1.4

Form of Conveyance .............................................................................................358

10.1.5


10.1.6

Satisfaction of Mortgages......................................................................................358

10.1.7

Searches in the Register .......................................................................................359

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10.2

Licences, Deeds Poll and Applications to Register Change of Name ..................... 359 10.2.1

Licences to Change Name ....................................................................................359

10.2.2

Deeds Poll ............................................................................................................360

10.2.3

Application to Register Change of Name ..............................................................360

11.

Charges, Notifications and Memorials ................................................ 361

11.1

General ................................................................................................................... 362

11.2

Charges................................................................................................................... 362

11.3

11.2.1

Bankruptcy Act 1966 (Commonwealth Legislation) ...............................................362

11.2.2

The Health Act 1911 .............................................................................................363

Notifications............................................................................................................. 363 11.3.1

General .................................................................................................................363

11.3.2

Local Government (Miscellaneous Provisions) Act 1960 (Section 364 (2))............364

11.3.3

Environmental Protection Act 1986 (Sections 65, 68A and 70) .............................364

11.3.4

Kambalda Water and Wastewater Facilities (Transfer to Water Corporation) Act 2004......................................................................................................................365

11.3.5

Petroleum Pipelines Act 1969 ...............................................................................366

11.3.6

Planning and Development Act 2005 (Section 165) ..............................................367

11.3.7


11.3.8


11.3.9

Town Planning and Development Act 1928 (Section 12A) ....................................370

11.3.10 Transfer of Land Act 1893 (Section 70A) ..............................................................370

11.4

Memorials................................................................................................................ 371 11.4.1

Aboriginal Heritage Act 1972 ................................................................................371

11.4.2

Agriculture and Related Resources Protection Act 1976 .......................................371

11.4.3

Contaminated Sites Act 2003 ................................................................................372

11.4.4

Country Areas Water Supply Act 1947 ..................................................................374

11.4.5

Memorial of Advertisement for Unpaid Water Rates under the Country Areas Water Supply Act 1947 ....................................................................................................375

11.4.6

Country Towns Sewerage Act 1948 ......................................................................375

11.4.7

Criminal Property Confiscation Act 2000 ...............................................................376

11.4.8

East Perth Redevelopment Act 1991 ....................................................................378

11.4.9

Environmental Protection Act 1986 .......................................................................379

11.4.10 Fines, Penalties and Infringement Notices Enforcement Act 1994 ........................379 11.4.11 First Home Owner Grant Act 2000 ........................................................................381 11.4.12 Heritage of Western Australia Act 1990 ................................................................382 11.4.13 Home Building Contracts (Home Indemnity Insurance Exemptions) Regulations 2002......................................................................................................................383 11.4.14 Industrial Lands Development Authority Act 1966 .................................................384

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11.4.15 Land Administration Act 1997 ...............................................................................385 11.4.16 Legal Aid Commission Act 1976 ...........................................................................386 11.4.17 Local Government Act 1995 ..................................................................................386 11.4.18 Metropolitan Water Supply Sewerage & Drainage Act 1909 .................................387 11.4.19 Proceeds of Crime Act 1987 .................................................................................388 11.4.20 Proceeds of Crime Act 2002 .................................................................................388 11.4.21 Retirement Villages Act 1992 ................................................................................389 11.4.22 Rural Adjustment and Finance Corporation Act 1993 ............................................391 11.4.23 Rural Business Development Corporation Act 2000..............................................392 11.4.24 Soil and Land Conservation Act 1945 ...................................................................392 11.4.25 Taxation Administration Act 2003..........................................................................393 11.4.26 Taxes and Charges (Land Subdivision) Legislation Amendment Act 1996 (Deferral of Charges and Headworks Contributions) ............................................................395 11.4.27 Town Planning and Development Act 1928 (Section 12A) ....................................396 11.4.28 Water Services Act 2012.......................................................................................397 11.4.29 Western Australian Land Authority Act 1992 .........................................................398

12.

Crown Land, Crown Reserves and Amalgamations ............................ 399

12.1

Crown Land ............................................................................................................. 400 12.1.1

General .................................................................................................................400

12.1.2

Introduction to the Land Administration Act 1997 (LAA) ........................................400

12.1.3

Crown Land Administration- Department of Lands (DoL) ......................................401

12.1.4

Defining Crown Land ............................................................................................401

12.1.5

Transmission of Interests from Crown to Freehold ................................................402

12.1.6

Registration of Pre-LAA Crown Documents ..........................................................402

12.1.7

Minister for Lands Consent for Transactions Over Crown Land ............................405

12.1.8

Internal Interests Plans and Sites..........................................................................406

12.1.9

Unqualification and Validation of Qualified Crown Land Titles ...............................406

12.1.10 Subject to Survey – Not for Alienation Purposes ...................................................407 12.1.11 Adjustment of Boundaries .....................................................................................407 12.1.12 Leases of Crown Land and Documents Affecting Leases of Crown Land .............408 12.1.13 Crown Grant in Trust.............................................................................................408 12.1.14 Conditional Tenure Land under Section 75 of the Land Administration Act 1997 ..409 12.1.15 Removal of Trust from Crown Grant......................................................................410 12.1.16 Revestments .........................................................................................................410 12.1.17 Department of Lands- Regional Teams.................................................................411 12.1.18 Easements and Covenants Over Crown Land ......................................................413 12.1.19 Transfers for Purchase of Crown Land..................................................................413 12.1.20 Transfers for Surrender of Freehold Land to Crown Land .....................................413

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12.2

Crown Reserves ...................................................................................................... 414 12.2.1

Introduction ...........................................................................................................414

12.2.2

Management Orders .............................................................................................414

12.2.3

Vesting of Crown Reserves or Crown Land...........................................................415

12.2.4

Revocation of Management Orders ......................................................................415

12.2.5

Change of Purpose of Reserve .............................................................................416

12.2.6

Amendment of Reserve ........................................................................................416

12.2.7

Cancellation of Reserve ........................................................................................416

12.2.8

Class A Reserves .................................................................................................416

12.2.9

Class B Reserves .................................................................................................417

12.2.10 Mall Reserves .......................................................................................................417

12.3

Amalgamations ....................................................................................................... 417 12.3.1

Conveyance and Amalgamation Order .................................................................417

12.3.2

Amalgamation of Pastoral Lease Order ................................................................418

12.3.3

Lease of Crown Land and Amalgamation Order ...................................................418

13.

Taking Orders (Resumptions) and Acquisitions .................................. 419

13.1

Taking Orders (Resumptions) ................................................................................. 420 13.1.1

General .................................................................................................................420

13.1.2

Crown Land ..........................................................................................................421

13.1.3

Freehold Land under the TLA ...............................................................................421

13.1.4

Freehold Land under the Registration of Deeds Act 1856 .....................................422

13.1.5

Freehold Land under the Strata Titles Act 1985 ....................................................422

13.1.6

Freehold Land Held by the Commonwealth ..........................................................422

13.1.7

Land Within the DBNGP Corridor or Rail Freight Corridor .....................................422

13.1.8

Taking by Agreement ............................................................................................423

13.1.9

Taking Without Agreement....................................................................................423

13.1.10 Authorisation Order ...............................................................................................424 13.1.11 Notice of Intention to Resume (Prior to the Introduction of the LAA) .....................424 13.1.12 Notice of Intention to Take ....................................................................................425 13.1.13 Consent for Registration of an Instrument Encumbered by a NOITT .....................427 13.1.14 Notice of Entry ......................................................................................................427 13.1.15 Resumptions (Prior to the Introduction of the LAA) ...............................................427 13.1.16 Taking Order .........................................................................................................429 13.1.17 Variance in Area with Taking Order and NOITT ....................................................431 13.1.18 Amendment or Cancellation of a Taking Order .....................................................431 13.1.19 Taking Order Designation .....................................................................................432 13.1.20 Easements Created by Taking Order ....................................................................433

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13.2

Acquisitions ............................................................................................................. 433 13.2.1

Acquisition by the Commonwealth of Australia ......................................................433

13.2.2

Acquisition Order under the LAA ...........................................................................434

14.

The Western Australian Registrar and Commissioner of Titles Joint Practice: Verification of Identity ........................................................... 435

14.1

Overview ................................................................................................................. 437 14.1.1

Transitional Commencement ................................................................................437

14.1.2

Purpose ................................................................................................................437

14.1.3

Title Fraud.............................................................................................................438

14.1.4

Application of this Practice ....................................................................................438

14.1.5

Sufficient Enquiries Must be Made ........................................................................439

14.1.6

Identity Document Production ...............................................................................440

14.2

Responsibility for Verification of Identity .................................................................. 440

14.3

Verification of Identity Standard .............................................................................. 440

14.4

14.3.1

The Standard ........................................................................................................440

14.3.2

Identity Document Production Standard ................................................................441

14.3.3

Visual Verification of Identity .................................................................................442

Verification of Identity Practice ................................................................................ 443 14.4.1

Who should be Identified?.....................................................................................443

14.4.2

Who Can Do Verification of Identity?.....................................................................443

14.4.3

When Verification of Identity Must Occur ..............................................................444

14.4.4

How to Identify Companies/Incorporated Bodies/Statutory Bodies ........................445

14.4.5

How to Identify a Natural Person in Australia ........................................................446

14.4.6

How to Identify a Natural Person Outside of Australia ...........................................448

14.4.7

The Identifier’s Role ..............................................................................................449

14.5

Identity Documents to be Kept Secure .................................................................... 452

14.6

Mere Mechanical Compliance Not Sufficient ........................................................... 452

14.7

Amendment ............................................................................................................. 453

14.8

Suggested Identifier Certificates (C-1 and C-2)....................................................... 454

15.

List of Forms and Examples ............................................................... 459

15.1

List of Freehold Land Registration Forms ............................................................... 460

15.2

Freehold Form Examples ........................................................................................ 461

15.3

Crown Land Registration Forms and Crown Form Examples ................................. 462 15.3.1

Crown Land Registration Forms............................................................................462

15.3.2

Crown Form examples ..........................................................................................462

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Document Amendment Register Version Amended

Date Amended

Amended By

Version Created

Edition 1.0

1979

J. L. Jamieson

Edition 2.0

Edition 2.0

1986

R. A. McDonald

Edition 3.0

Edition 3.0

1994

R. A. McDonald

Edition 4.0

Edition 4.0

1997

M. Crane

Edition 5.0

Edition 5.0

1998

M. Crane

Edition 6.0

Edition 6.0

1999

M. Crane

Edition 6.1

Edition 6.1

August 2000

M. Crane

Edition 7.0

Edition 7.0

April 2001

M. Crane

Edition 7.01

Edition 7.01

July 2002

M. Crane

Edition 7.02

Edition 7.02

August 2002

M. Crane

Edition 7.1

Edition 7.1

May 2004

M. Crane

Edition 7.2

Edition 7.2

March 2006

M. Crane

Edition 7.3

Edition 7.3

September 2006

M. Crane

Edition 8.0

Edition 8.0

January 2007

M. Crane

Edition 9.0

Edition 9.0

March 2010

D. Pinker

Edition 10.0

Edition 10.0

August 2012

D. Pinker

Edition 10.1

Edition 10.1

October 2012

N. Curnow

Edition 10.2

Edition 10.2

January 2013

N. Curnow

Edition 10.3

Edition 10.3

July 2013

D. Pinker

Edition 11

Edition 11.0

November 2013

D. Pinker & V. McRoberts

Edition 12.0

Edition 12.0

September 2014

J. Christo & N. Curnow

Edition 12.1

Edition 12.1

September 2015

N. Curnow

Edition 13.0

Edition 13.0

May 2016

N. Curnow

Version 14.0

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Changes Since Previous Edition Since Edition 13.0 was released in October 2015, changes have been made and included in this new Edition 14.0. Every effort has been made to correct typing errors. As there are a substantial number of changes (including a significant change to the formatting), Landgate recommends that you replace your current copy with this version, Version 14.0.

The following paragraphs from Edition 13.0 have been amended: 1.2.2.1

2.1.2

6.8.3

1.4.9

2.1.8

6.12.1

1.4.10

.2.2.2

7.2.7

1.4.19

2.6.1

7.5.6

1.5.3

2.6.1.1

7.5.7

1.5.4.1

2.6.1.6

10.1.3

1.5.5.1

3.3.1

11.4.20

1.5.12

3.5.11

13.1.12.1

1.5.13

3.6.5

1.7.5

3.11

1.10.1.1

3.16.3

1.13.2.1

4.2.9

1.13.7 1.13.10 1.13.14 1.13.14.2 1.14.4.1 1.14.4.2

The following paragraphs have been added: 2.1.2.3 2.6.1.5 2.6.14.2 3.2.9

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Jean Villani, Registrar of Titles

Foreword The main aim of the Land Titles Registration Practice Manual is to set in place standards and guidelines, to assist those who are accountable to their clients, for the registration of land transactions on certificates of title. The Manual seeks to define the registration practices and procedures and to provide a comprehensive reference for the preparation of documents lodged for registration. This manual should be read in conjunction with Customer Information Bulletins subsequently issued by the Registrar of Titles after the publication of this edition of the Land Titles Registration Practice Manual. Click here to access the Customer Information Bulletins, which can also be found on Landgate’s website. It is acknowledged that no publication of this nature can cover every circumstance, particularly ones that seeks to interpret changing legislation, instruct, explain and advise on special requirements. Accordingly, there may be matters which are not adequately explained with sufficient clarity or depth to address all situations. Additionally there may also be some practices or procedures which practitioners may wish to challenge. Readers of the Manual are cordially invited to identify any mistakes, errors or omissions and make suggestions for change or improvement. The Practice Manual Change Proforma is the form to use to forward your suggestions for change or improvement to Landgate, and can be found on Landgate’s website. Updates of the Land Titles Registration Practice Manual can be downloaded free of charge via Landgate’s website at www.landgate.wa.gov.au. The Land Titles Registration Practice Manual promotes best practice in conveyancing and is the authoritative source of registration practices and procedures for conveyancing in Western Australia.

Jean Villani Registrar of Titles May 2016

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1.

General Information

The following information relates to the legislative requirements and the use and purpose of the information contained within this manual.

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1.1

The Legislation and its Purpose

The Transfer of Land Act, 1893 as amended, is the statute governing the registration in Western Australia of titles to Freehold land and dealings on those titles. To avoid constant repetition the Transfer of Land Act 1893 will be referred to as the TLA in this manual. Other Statutes affecting land in Western Australia that are referred to extensively in this manual are: •

Transfer of Land Regulations 2004

•

Land Administration Act 1997 (LAA) that governs Crown land

•

Planning and Development Act 2005 (P&D Act)

•

Strata Titles Act 1985 as amended (STA); and

•

Strata Titles General Regulations 1996 (STGR).

The TLA, which is a Torrens System enactment, has as its object: “the simplification of the title to and dealing with estates in land.” It sets up a public register of titles to land, maintained by the Registrar of Titles whose duty it is to certify the entitlement of proprietors. A person who attains the status of a registered proprietor obtains, by the official certification of that interest, indefeasibility of title, subject to the exceptions set out in the TLA. The registered proprietor and persons dealing with a registered proprietor may place the utmost reliance upon the certificate of title. Each title to land is guaranteed by the State and in general, persons wrongfully deprived of their land or interest may claim the monetary value of the land or interest from the government to compensate them for their loss.

1.1.1

Offices and Services

The public registry, required to be maintained by the TLA, is administered by Landgate and is located in Midland Square, Midland. The Land Registration Centre in the Landgate building in Midland is open for inquiries between the hours of 8.30 am to 5.00 pm on Monday to Friday, except public holidays. A branch office is located on the Terrace Level, 200 St George’s Terrace, Perth, for document lodgement and searching services. Dealings such as land transfers can be lodged between the hours of 8.30 am to 4.30 pm only.

Closure of the Bunbury Regional Office Prior to 29 April 2016 a regional office was located in the Austmark Building in Stirling Street, Bunbury which offered document lodgement and searching services. As of Friday 29 April 2016 the Bunbury office will no longer offer document lodgement and searching services. Customers who lodged documents at Bunbury can now: 1.

lodge electronically via PEXA

2.

send documents by mail to: Landgate Document Lodgement Section PO Box 2222 MIDLAND WA 6936 (The required lodgement fees must be included when posting your forms to Landgate.)

3.

lodge via an appointed agent in Perth or

4.

lodge directly at Landgate’s Perth or Midland offices.

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To assist customers with this closure it will provide temporary services consisting of a direct link to the customer call centre in Midland, product information brochures, a dedicated phone line and two computers with print/scan capabilities via a self-service area. Coinciding with the closure of the document lodgement and information service at Landgate’s Bunbury office the collection of documents from that office will also cease after 29 April 2016.

1.1.2

Officers

The principal officers appointed under the TLA are the Commissioner of Titles and a Deputy, the Registrar of Titles and a number of Assistant Registrars of Titles. Another Statutory Officer in the land titles process is the Inspector of Plans and Surveys, appointed under the survey regulations, who is responsible for the approval of all freehold deposited plans. The Inspector has the role of ensuring that all land boundaries are defined with a high level of integrity.

1.1.3

Land in the Cocos (Keeling) Islands and Christmas Island

Both the Islands are Commonwealth Territories and are administered by the Commonwealth. By a series of Commonwealth Acts enacted in 1992 the Shire of Cocos Keeling and the Shire of Christmas Island were created and the property (and other) laws of Western Australia as amended by Commonwealth legislation now apply to both areas. The Islands are still Commonwealth Territories but the laws of Western Australia, as modified and adopted by Commonwealth legislation, are applied. Surveys of both areas have been lodged at Landgate in preparation for the creation of certificates of title for the separate land parcels. Dealings on these titles (and on leases issued and also lodged at Landgate) may be lodged in the same way as dealings on any other land. Land transaction forms, similar to the normal transfer and other forms issued under the Commonwealth Act, have been printed and are available from the Land Registration Centre in the Landgate building in Midland, from the Shire Offices on the Islands or downloaded free of charge from the Internet via Landgate’s website (www.landgate.wa.gov.au). Section 8A(1) of the Territories Law Reform Act 104 of 1992 (Commonwealth) provides the legislative base for the application of Western Australian laws to the Territories. Some variations in the land registration legislation have been made but most of these are extensions of the time limits in the notice provisions to allow for transportation delays between the Midland Office of Landgate and the Territories. Further advice is obtainable from the Advice Officers in the Land Registration Centre in the Landgate building in Midland. This manual contains further details applicable to dealings on land on the Cocos (Keeling) and Christmas Islands under the subject headings. Information relevant to Commonwealth matters can be obtained from the Department of Environment, Sports and Territories, from the Director or Assistant Director of the Islands Liaison Office, Perth on telephone (08) 9481 1705.

1.1.4

How Land is Brought under The Torrens System

Land alienated before 1 July, 1875 may be brought under the TLA by: •

voluntary application pursuant to the provisions of Part II of the TLA

•

application under the provisions of the Real Property (Commonwealth Titles) Act 1925 (No 5 of 1925)

•

and

•

the lodgement of a Memorial in the Deeds Office of a Taking Order under Part 9 of the LAA.

After 1 July, 1875 land alienated from the Crown was brought under the TLA as amended by lodgement of a Crown Grant at Landgate, where it was allocated a certificate of title number pursuant to s.18.

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The registration, under Part IIIA of the TLA of a Crown lease issued under the Land Act, 1933 granted for a period of five years or longer, also had the effect of registering the land under the TLA. With the introduction of the LAA, land alienated from the State is now brought under the TLA by the lodgement of a transfer. 

Note: All transactions affecting Crown land are now registered under the TLA on the Crown land title (see s.68 (2), (3) & (4) of the TLA and s.19 of the LAA).

1.1.5

How Changes in the Register are Caused

The object of conveyancing under the TLA is to secure the desired alteration to the Register (Title), using a statutory system of documentation. The most common types of document must be prepared on forms approved by the Registrar (see 15.1 List of Freehold Land Registration Forms). Some modifications of these forms, not being matters of substance, are permitted by s.238 of the TLA. All the above forms, together with the applications listed in paragraph 1.5.6 and other documents for registration for which no form is prescribed, must still be prepared to the standards laid down in the Transfer of Land Regulations 2004, published in the Government Gazette. Changes in the Register may be brought about by: •

registration of a document expressed to create, transfer or extinguish rights in land

•

registration as proprietors, pursuant to their application, of persons upon whom title has devolved by operation of law. An example is the application, commonly called a transmission application, by the executor or administrator of a deceased registered proprietor under s.187 of the TLA and

•

applications requesting an order or direction by the Commissioner. Examples are vesting orders (sections 182 and 183 of the TLA), foreclosure orders (s.121 of the TLA) and a direction to remove easements (s.229A of the TLA) or covenants (s.129C of the TLA).

1.1.6

How Registration May be Prevented or Delayed

Registration may be prevented or delayed by: •

lodgement of a caveat (see Chapter 4)

•

service of a Property (Seizure and Sale) Order (s.133 of the TLA) (see Chapter 4)

•

an order for stay of registration (s.148 of the TLA) (see paragraph 3.13.2)

•

lodgement of a notice of intention to take or a Taking Order under Part 9 of the LAA (see paragraphs 13.1.12 and 13.1.16)

•

a notice of intention to acquire by the Commonwealth of Australia (see paragraph 13.2.1)

•

a memorial lodged pursuant to certain statutory provisions prohibiting dealings with the estate and interest of the registered proprietor until withdrawn or until the body lodging the memorial consents in writing to such dealings (see Chapter 11 for a detailed list of these Statutes)

•

lodgement of a statutory charge (see Chapter 11)

•

any order of the Supreme Court directing the Registrar to delay registration of any dealing presented for registration

•

an embargo notice issued by virtue of the provisions of the Misuse of Drugs Act, 1981 or the Crimes (Confiscation of Profits) Act 1988 or

•

a freezing notice or freezing order issued by virtue of the provisions of the Criminal Property Confiscation Act 2000.

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It should be noted that the memoranda for all the above procedures are not shown on the duplicate certificate of title. Preparation of documents from the duplicate certificate should never be attempted without first obtaining an up to date search of the original certificate of title from Landgate. In the case of Supreme Court orders and embargo notices, because they are not shown on the Register, the title for the land becomes subject to what is known as a Registrar’s Packet. Registrar’s Packets are held in and monitored by the Complex Dealings Section in the Registrations Branch of Landgate. Any certificate of title that is subject to a Registrar’s Packet continues to form part of the public record and can be searched to ascertain the reason for the status of subject to dealing or other action. The creation of a Registrar’s Packet may, but does not necessarily prevent the lodgement or processing of transactions in land for registration.

1.1.7

The Scheme of this Manual

The pages which immediately follow include some notes on: •

how to prepare instruments

•

how instruments are executed and attested

•

legal capacity

•

lodging instruments for registration and

•

the process of registration.

It will be observed that this treatment follows, as far as possible, the course of a normal transaction from preparation of an instrument to its registration. Where documents are to be prepared and lodged electronically through the Electronic Lodgement Network (ELN), the relevant Electronic Lodgement Network Operator (ELNO) is to be contacted directly for information on document preparation The later parts of the manual treat in detail the different types of applications which may be made, the different types of dealing with land under the TLA such as caveats, easements, memorials, covenants and compulsory acquisition of land. Chapter 12 gives details of dealings in Crown land.

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1.2

The Register

1.2.1

General

The Register kept under the TLA, consists of one copy of each Crown Grant, Crown Lease, Crown land title and either a paper or digital Certificate of Title and every transfer and the original of any other instrument registered under the TLA (s.18, 48 and 52) and strata/survey-strata plans. In relation to land that is the subject of a digital title the Register is also a (historical) record of the endorsements of the particulars of all relevant dealings that used to affect, but do not currently affect the land. In relation to land that is the subject of a paper title the Register is also a record of the entries of recovery of possession and of surrender made in relation to a sublease of the land. The Certificates of Title (and any pre-LAA Crown Leases) are created in the name of the registered proprietor for such estate as is named therein. The original of every certificate of title (and any preLAA Crown Leases) created is retained, as are the survey plans and diagrams, but at the end of 6 years most of the original documents (which have all been microfilmed or scanned into the optical disc image system) are destroyed. Transfers containing sketches are not destroyed. With the introduction of the LAA Crown Land Title ( CLT ) will be created and registered in the name of the State of Western Australia and leases of Crown Land are registered on the relevant CLT. Every certificate of title, sealed with the Seal of the Registrar of Titles in the manner provided in s.10 of the TLA, is admissible as evidence in all Courts without further proof. In practice the original is not produced in Court, a certified copy is produced and retained in the Court records (see paragraph 1.4.11).

1.2.2

Duplicate Title

A freehold duplicate certificate of title (if required) is issued to the Registered Proprietor or other person as authorised by the registered proprietor. Where a certificate of title has been created and registered, a duplicate certificate of title will be issued unless the Registered Proprietor(s) request, in an approved form that a duplicate certificate of title not be issued (s.48B of the TLA). Section 48B of the TLA provides flexibility on the part of the registered proprietors of land to request the issue or non-issue of the duplicate certificate of title. 

Note: A duplicate of a certificate of Crown land title is never issued.

1.2.2.1

Request for non-issue of the duplicate title

Where a duplicate title has been created and issued, the registered proprietor(s) may in an approved form, request the non-issue of the duplicate title. If a request for the non-issue of a duplicate certificate of title is made, no duplicate will be issued upon the lodgement of subsequent documents unless the current registered proprietor(s) request, in an approved form that a duplicate certificate of title is to issue (see below). Only the registered proprietor(s) can make a request for non-issue of the duplicate title. If there is more than one registered proprietor, all of them must make the request. However, a registered proprietor of an undivided share in land may, in an approved form, request the non-issue of the duplicate title for their undivided share in the land.

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Requests for non-issue of a duplicate title may be made in one of the following ways: •

The Registered Proprietor(s) may request the non-issue in Forms A6 and A8.

•

The Mortgagor/ Transferee may request the non-issue in Forms M1, M2, T2, T4, T5 and T7.

•

Where a duplicate certificate of title has issued, the registered proprietor(s) may make application under s.48B (4) on a Form A9, without payment of a registration fee, for the cancellation and non-issue of the duplicate title.



Note: A mortgagee that wants the mortgagors (Registered Proprietors) to request non-issue of the duplicate title upon registration of the mortgage, may like to insert a clause in the mortgage to the effect that the mortgagors will not request the issue of the duplicate title until the mortgage has been discharged.

When a request for the non-issue of a duplicate certificate of title is made, the paper or digital certificate of title (whichever is applicable) will contain the following endorsement: “DUPLICATE CERTIFICATE OF TITLE NOT ISSUED AS REQUESTED BY DEALING”

1.2.2.2

Request for issue of the duplicate title

This document is subject to the Verification of Identity Practice issued jointly by the Western Australian Registrar of Titles and Commissioner of Titles. Please refer to Chapter 14. Where a duplicate title has not been created and issued, the registered proprietor(s) may in an approved form, request the issue of the duplicate title. If a request for the issue of a duplicate certificate of title is made, a duplicate will be issued upon the lodgement of subsequent documents unless the current registered proprietor(s) request, in an approved form, the non-issue of the duplicate certificate of title (see above). Only the registered proprietor(s) can make a request to issue the duplicate title. A registered proprietor of an undivided share in land may, in an approved form, request a separate duplicate title to issue for their undivided share in the land. Requests for issue of a duplicate title may be made in one of the following ways: •

The Mortgagor/ Transferee may request the issue of the duplicate title in Forms M1, M2, T2, T4, T5 and T7.

•

Where a duplicate certificate of title has not previously issued, the registered proprietor(s) may make application on a Form A7, without payment of a registration fee, for a duplicate title to issue.

The duplicate certificate of title (if any) must be produced to the Registrar when any dealing or application concerning the land is lodged for registration. However, the Registrar at the direction of the Commissioner may dispense with the production of the duplicate certificate of title (s.74 of the TLA). 

Note: If the land, the subject of a request for the issue of a duplicate certificate of title, is ENCUMBERED by a registered mortgage(s) or a registered charge(s), a requisition (no fee) will be raised to clarify the matter. The issue of a duplicate title may be against the wishes of the mortgagee and it would not benefit the registered proprietors because they are not entitled to physical possession of a duplicate title that is encumbered by a mortgage or charge.

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1.2.2.3

Third Party Consent to subsequent dealings where no duplicate title has issued

Where a certificate of title is encumbered by a registered mortgage(s) or a registered charge(s) and no duplicate certificate of title has been issued by request of the registered proprietor(s), a letter of consent to subsequent lodgement from the first mortgagee or annuitant is required to be lodged with any document that would normally have required production of the duplicate certificate of title by the first mortgagee or annuitant. The consent of the first mortgagee or annuitant is required where appropriate. (See Example of Consent Letter) 

Note The exceptions being as follows: where the first mortgagee or annuitant lodges a subsequent document for registration or where a second mortgage is being lodged for registration by another mortgagee. In both instances a letter of consent to subsequent lodgement from the first mortgagee or annuitant is not required.

1.2.2.4

Third Party Consent to subsequent dealings where a paper duplicate title has issued

Where there is a paper duplicate Certificate of Title issued, the lodgement of a second or subsequent mortgage requires the production of the duplicate Certificate of Title. Where there is a paper duplicate Certificate of Title issued and a first mortgage has been lodged and is being processed by Landgate, the lodgement of a second mortgage (or any other document that requires the duplicate Certificate of Title) will require a follower consent letter.

1.2.3

Registration

Legal estates and interests in land do not pass by the act of the parties in executing an instrument but by the official act of registration of that instrument (s.58 of the TLA), which takes place when a memorandum of the instrument or dealing is entered on the relative certificate of title. Registration is completed by the memorandum and the certification of registration on the instrument or dealing (as required by s.56 and 57of the TLA) being authenticated in the manner provided by s.10.

From 1 September 2015 A seal will no longer be applied to registered documents. Where provided to our customers, images of un-registered documents will be marked with ‘Subject to Dealing’, ‘Withdrawn’, or ‘Rejected’ in accordance with their status. A registered document will not have these markings. This approach is supported by legislation.

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1.3

Forms of Title to Land

1.3.1

Crown Grant

A Crown Grant is a title to land, formerly Crown land, granted by the Queen (by her Western Australian representative, the Governor) to a person, company, statutory body or incorporated association. The grant may be made for a cash consideration or on the completion of certain developments that will benefit the State or for a mixture of both. Every Crown Grant is subject to reservations to the Crown of the minerals in the land and the land grant is usually limited in depth, either to a depth of 12.19 metres or a depth of 60.96 metres (these limits are the metric equivalents of the imperial measurements of 40 feet and 200 feet). Each Crown Grant also reserves to the Crown the right to resume (now called Taking under the LAA) the land or use part of it for the construction of public works. Crown Grants created and registered in the name of the Commonwealth of Australia are unlimited in depth and do not contain mineral reservations or a right for the Crown (the State) to resume the land. Community Service or religious organisations may have been granted land free of cost for specific purposes beneficial to the community. In this case the land must be used only for that specific purpose and the Crown Grant was said to be a Crown Grant in Trust (see paragraph 12.1.13). When the land is no longer required for its stated purpose it may be sold and the value of the land returned to the Government, leaving the value of the building on the land as the revenue to be returned to the organisation. Most titles for freehold land in Western Australia were derived from a subdivision of land contained in an earlier Crown Grant and all titles derived from a grant are held subject to the same conditions as those listed in the grant. With the introduction of the LAA Crown Grants are no longer created and registered. Land alienated from the Crown is now brought under the TLA by the lodgement and registration of a transfer after a settlement (similar to a Settlement of freehold land) has taken place. This will result in the cancellation of the Crown land title and the creation and registration of a certificate of (freehold) title. 

Note: Even though Crown Grants are no longer created and registered, search copies of all those previously created and registered are available from Landgate.

1.3.2

Paper Certificate of Title

Paper title means a certificate of title in a paper medium. The paper original certificate of title (s.25, 48 and 66 of the TLA) constitutes a separate folium or page of the Register and the Registrar is required to record on it particulars of all instruments, dealings and other matters and, so as to preserve their priority, note the day and time of their registration (s.53 and 56 of the TLA). The Registrar is also required to note on a certificate of title such information as will enable the title to be traced back to the original grant (s.72 of the TLA).

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The essential matters included on a paper certificate of title are: 1.

the name and address of the proprietor of the estate in respect of which the certificate is created and registered

2.

the description of the estate or interest, eg: an estate in fee simple or, where the estate or interest is less than fee simple, a description of that estate

3.

a sufficient description of the land comprised in the certificate

4.

encumbrances, easements, etc to which the estate is subject

5.

a reference to enable the previous title or grant to be found

6.

the volume and folio number in the Register

7.

the date of its registration and

8.

the Seal of the Registrar of Titles.



Note: With the introduction of SmartRegister a digital title (see paragraph 1.3.3 below) is created in place of the former original certificate of title (a paper title) in most cases. Where possible, all original paper certificates of title in existence will be converted to a digital title. Because some certificates of title are not suitable for conversion to a digital title (see paragraph 1.3.14), a paper certificate of title for some pieces of land will continue to exist.

1.3.3

Digital Certificate of Title

Digital title means a certificate of title in a medium in which the data comprising the certificate of title is stored and retrieved by digital means. Under SmartRegister the digital databases become the certificate of title for a piece of land. The digital databases are the Register and persons will be searching the digital register and obtaining copies of the Register by receiving a Record of the Certificate of Title (see paragraph 1.3.4 below) that is taken from the databases. The digital Register will comprise a digital record of the following five elements: •

Reference to the reservations, conditions and depth limits contained in the original grant, but not the specifics of the reservations, conditions and depth limits themselves.

•

Land description.

•

Registered proprietor and the estate or interest of the Registered Proprietor.

•

Limitations, Interests, Encumbrances and Notifications.

•

History of previous dealings in the register.

While the legal title will be the digital information that is stored in the various databases, a paper duplicate certificate of title (if required) will be automatically created and issued to the current registered proprietor or first mortgagee at the conclusion of the registration process. For some general information about SmartRegister, see paragraph 1.3.14.

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1.3.4

Record of Certificate of Title

Under SmartRegister, the computer record (digital data) becomes the certificate of title. A paper printout of what is contained in the digital register for a particular piece of land will be made available to those wishing to search the title. The paper printout (search) of the title is called a Record of Certificate of Title. A Record of Certificate of Title may, in many respects, look like an actual paper-based certificate of title but it is merely a search or printout of the digital Register. A Record of Certificate of Title will be printed on plain white A4 photocopy paper. It will only show current information relevant to the title being searched. No sketch for the land, or other interests is shown on the Record of Certificate of Title.

1.3.4.1 1.

Two main Features of a Record of Certificate of Title are:

Register Number: This is the lot on survey reference for a particular piece of land. It is located in a box at the top right-hand corner. As an example, the Register Number for Lot 2 on Deposited Plan 123456 would be 2/DP123456. In the case of a Strata Plan, the alpha characters used are SP. A Register Number for a SmartRegister Title is not the same thing as a Certificate of Title Volume and Folio number. SmartRegister does not use a Volume and Folio number to identify land.

2.

The Volume and Folio Number: Use this in all search and documentation. Do not use the Register Number.

1.3.4.2

Duplicate edition

A SmartRegister title only contains current information, therefore every transaction (with some exceptions) results in the creation of a new edition of the duplicate certificate of title (if required). The Duplicate Edition panel indicates the number of times a new duplicate certificate of title has been issued under SmartRegister. This panel is located in a box immediately under the Register Number. 

Note: When a duplicate certificate of title is lodged with a dealing, settlement agent’s etc must ensure that the duplicate title they receive prior settlement is the correct (latest) edition. In other words the duplicate edition number as shown on the duplicate certificate of title must be the same number as that shown on the current Record of Certificate of Title. Superseded duplicates, if in the possession of Landgate, will be destroyed.

1.3.4.3

Date duplicate issued

The Date Duplicate Issued panel indicates the date that the latest document or documents lodged were completed by Landgate. This panel is located in a box immediately under the Register Number.

1.3.4.4

Issuing Box details

Shown on the top left-hand corner is the issuing box to which the last edition of the duplicate title issued. Issuing details are still maintained in the separate Document Issuing System (DIS).

1.3.4.5

Land description

Under SmartRegister the land description for a piece of land has been simplified to show only the Lot on Survey information. Interests previously shown in the land description (like depth limits etc) are now shown in the Limitations, Interests, Encumbrances and Notifications section (see below).

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1.3.4.6

Registered Proprietor (First Schedule)

The ownership particulars disclosed in the Registered Proprietor section is an aggregation of the current ownership. In other words it will not be necessary to look at a number of endorsements (as in the case of some paper titles) to ascertain the current proprietorship of the land. The reference to the document number and registration date in the first schedule is the last dealing affecting the current ownership. Any other dealings affecting current ownership lodged previously will be shown in the Historical Database (see paragraph 1.4.16).

1.3.4.7

Limitations, Interests, Encumbrances and Notifications (Second Schedule)

All interests previously shown in the land description and second schedule of a paper title are now shown in this section. Other notations affecting the land formerly shown on a paper title are now also included in the second schedule. Some of these interests are as follows: •

Reference to the reservations, conditions and depth limits contained in the original grant, but not the specifics of the reservations, conditions and depth limits themselves.

•

Easements that benefit and/or burden the land.

•

Less Portion Resumed or Less Portion Dedicated notations that were formerly shown on the sketch of a paper title.

•

Any other encumbrances etc. that were formerly shown in the second schedule of a original (paper) title. and

•

Crown Grants in Trust.

The endorsements in the Second Schedule can be divided into what is known as Prime and Sub endorsements. Sub-endorsements are those affecting a prime endorsement. Primary endorsements are things like mortgages, charges and leases. If for example, a mortgage has been extended, the mortgage becomes the prime endorsement and the extension is the sub-endorsement. Sub-endorsements are shown directly under (indented) the prime endorsement, without regard to document number or date registered (i.e. documents are now not necessarily shown in registration order. With respect to the primary endorsement, the last sub-endorsement affecting the proprietorship of a primary endorsement contains an aggregation of the outcome of the endorsements affecting the proprietorship of the prime endorsement. This means that you only need to search the last sub endorsement to ascertain the total position in respect to the prime Limitation, Interest, Encumbrance or Notification. 

Note: The endorsement This Edition was Issued Pursuant to Section 75 of the TLA is not required to be shown. An asterisk preceding an endorsement indicates that the notation or endorsement following is not shown on the current edition of the duplicate certificate of title (if any).

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1.3.4.8

Statements

This is additional information provided that is not guaranteed by the government. It is information relevant to the land, but not (in most cases) previously available on the paper title. Statements appear toward the bottom of the Record of Certificate of Title after the words: “-----END OF CERTIFICATE OF TITLE-----.” This section includes the following information: •

reference to where the sketch for the land may be obtained

•

the previous title for the land

•

the property street address of the land

•

the local government for the land

•

the responsible agency (crown titles and freehold certificates of title for land held by the State of Western Australia, Commonwealth of Australia or instrumentality, authority or agency representing the State or Commonwealth) and

•

any Notes (see below).



Note: This section contains any other recording of information that does not fit into the previously categories as outlined above. Notes do not form part of the title. It is used as the electronic means to replace the old practice of making pencil notations on the paper original title. Notes include the following information: o

pending surveys (previously noted in the top right-hand corner of the paper original title)

o

lodged dealing where the title is subject to dealing

o

no duplicate issued information and

o

lapsed s.138D caveats.

The Notes section does not appear on the duplicate certificate of title (if any).

1.3.5

Crown Lease (Year Numbered Crown Leases)

Under the Land Act, 1933 a Crown lease is the term applied to Crown land alienated for a leasehold term for conditional purchase, homestead, farm, pastoral or any other purpose as set out in that Act. Since 1909, leases for a five year term or longer, were issued in duplicate by Landgate and registered as Crown leases under s.52 of the TLA. One copy was marked as the original and retained by Landgate and the other copy, the duplicate, was issued to the person entitled to receive it. For administrative convenience, leases from the Crown for a term less than five years were also (from 1989) filed at Landgate in sequence with the longer term leases. These leases were still registered under the provisions of the Land Act 1933 as were any documents lodged against them. Leases of land on Christmas Island, granted under s.5 of the Lands Ordinance, 1987 from 1992 were also registered at Landgate. Leases were entered in a Register of Leases and numbered consecutively in years, eg: 16/1976. With the introduction of the LAA, Crown leases are no longer issued but those still current at that time are still valid and deemed to be issued under the LAA. Over the course of time a Crown land title or qualified Crown land title was created and registered for these portions of Crown land and the lease registered against it.

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Upon the creation and registration of a certificate of (freehold) title for any land for which a Crown lease has been registered in Landgate, and is still current, the lease is cancelled and any encumbrances noted on the lease are carried forward to the certificate of title. The manner in which existing Crown leases may be dealt with is set out in Part IIIA of the TLA and further information on dealing in Crown land is contained in Chapter 12 of this manual. 

Note: Even though Year Numbered Crown leases are no longer issued, search copies of all those previously issued are available from Landgate. For a lease of Crown land under the LAA see paragraph 2.8.1.

1.3.6

Crown Land Record

A Crown land record was an administrative device in the form of a title that was only created for defined portions of Crown land administered under the provisions of the Land Act 1933 as amended. It differed from a certificate of title in that the Crown was always shown as the registered proprietor. Other interests in the (Crown) land were shown and these interests included leases (under the Land Act 1933), easements, reservations to a particular use, and if appropriate, the name of the Local Government or statutory body in which care and control of the land was vested. A particular convenient use of the Crown land record was to show the leases to sporting and other bodies of areas of recreation reserves. Caveats and mortgages could also be registered under the provisions of the Land Act 1933 against the Crown land record. With the introduction of the LAA, no more Crown land records will be issued and all existing Crown land records will become qualified certificates of Crown land titles (see paragraph 1.3.8). 

Note: For historical purposes, search copies of all Crown land records ever issued are available from Landgate.

1.3.7

Certificate of Crown Land Title

A certificate of Crown Land Title (CLT) is a guaranteed title for a defined parcel of Crown land. A CLT, like a freehold certificate of title is conclusive, evidence subject to s.68 of the TLA, of the indefeasibility of title for the Crown interests and encumbrances registered against a defined parcel of Crown land. The CLT is in a format similar to a current freehold certificate of title. The State of Western Australia remains the registered proprietor of all Crown land titles and this is stated in the preamble of each Crown title. A Crown title also displays the Status of the Land and the Primary Interest Holder. The Registrar of Titles creates a CLT under s.81L of the TLA, upon application from the Minister for Lands in the name of the State of Western Australia. The Registrar of Titles under s.81O of the TLA will only issue an original CLT. All actions affecting a Crown land parcel must be registered or lodged under the TLA against the CLT to be effectual. A CLT validated by the Commissioner or Registrar of Titles that all actions have been registered or lodged against it is a guaranteed (indefeasible) title. Interest holders may request the Minister for Lands to make application for a CLT. 

Note: Qualified certificates of Crown land title are not guaranteed (indefeasible) titles (see paragraph 1.3.8 below).

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1.3.8

Qualified Certificate of Crown Land Title

A qualified Crown land title (QCLT) is a Crown land title that has not had verification (by the Commissioner of Titles) that all the tenure, interests, rights and dedications have been lodged or registered in respect of the land. A person having a registered interest on a QCLT does not by the certification of that interest obtain a guaranteed (indefeasible) title, and therefore has no claim for damages against the Registrar of Titles for any error or priority of any interest endorsed on a QCLT. A QCLT provides a simple registration system. Unlike a CLT, a QCLT can be created and registered where all current approved interests may not have been registered or recorded at the time of its creation. When a QCLT has been created, any unidentified interests and / or new interests may be lodged for registration against the QCLT. Landgate treats dealings and interests on QCLTs with the same duty of care as dealings and interests on guaranteed CLTs. Registration of dealings on QCLTs will also provide a basis for searching transactions affecting Crown land and will enable Crown land information to be maintained on Landgate’s computerized land register system. When all interests for a parcel of Crown land have been identified, a QCLT may be unqualified and converted to a guaranteed CLT (see paragraph 12.1.9).

1.3.9

Subsidiary Certificate of Crown Land Title

A Subsidiary of Crown Land Title (SCLT) is a guaranteed title for an interest in a reserve or lease over a defined portion of a land parcel and will refer back to the head CLT. A Site number is allocated to each defined portion set out on an internal interest deposited plan to support the recording of multiple interests (see paragraph 12.1.8) and each SCLT created displays the Site number allocated to it. A SCLT will only contain information relating specifically to the individual interests contained within the site. Reference to the land tenure, primary interest in the land (i.e. the Management Order) and the primary lease in the land (i.e. the head lease) will be endorsed on the Head CLT. When searching or examining documents registered on a SCLT, it is vital to obtain a search of the Head CLT. For example, easements are only shown on the Head CLT. The Minister for Lands will apply to the Registrar of Titles under s.81L of the TLA for the creation of a SCLT when the number of existing interests on the reserve or lease is such that it would be impracticable to lodge or register the additional interests on the head CLT.

1.3.10

Qualified Subsidiary Certificate of Crown Land Title

A Qualified Subsidiary Crown land title (QSCLT) is a subsidiary Crown land title that has not had verification (by the Commissioner for Titles) that all the tenure, interests, rights and dedications as to the reserve or lease have been lodged or registered against the parcel of land that the titles is over. A person having a registered interest on a QSCLT does not by the certification of that interest, obtain a guarantee (indefeasible) title and as such has no claim for damages, against the Registrar of Titles for any error or priority of any interest endorsed on a QSCLT. When all interests for a Site on a Crown internal deposited plan have been identified, a QSCLT may be unqualified and converted to a guaranteed SCLT (see paragraph 12.1.9). 

Note: At present Qualified Subsidiary Crown land titles cannot be converted into a SmartRegister digital title (see paragraph 1.3.14).

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1.3.11

Permit to Occupy under the Land Act 1933

Where Crown land was alienated (sold) and the purchaser had fulfilled the conditions and desired to deal with the land before the creation of the Crown Grant, a permit to occupy could be issued by the Minister for Lands (s.142 of the Land Act 1933). When a permit to occupy was required, the documents to be registered at Landgate were produced at the Sales, Leasing and Securities Section of the Land Operations Division. Section 73 of the TLA provided the machinery for the Registrar to receive a permit and to receive and record upon the permit such instruments as were lodged for registration. The consent of the Minister for Lands was not a pre-condition to be met before any dealings on the permit were registered. The following points should be noted: •

a permit did not bring the land under the TLA, only the instruments registered thereon were under the TLA

•

a permit was only received and recorded on the production of one or more instruments, ie: a transfer, mortgage, lease or charge. A permit was not registered on the production of an application, for example for a transmission application, unless the application was accompanied by an instrument

•

dealings were endorsed on the permit

•

on receipt of the Crown Grant, all dealings on a permit were brought forward onto the Crown Grant and the permit was cancelled

•

a permit lodged to replace a registered Crown lease, which was encumbered, was noted as to the number only of any encumbrance endorsed on the Crown lease

•

normally, an instrument dealing with part of the land in a permit would not have been accepted for registration. In certain circumstances, a transfer of one whole lot out of two or more whole lots on a permit, would not have been refused

•

instruments dealing with undivided shares could be registered and

•

a transfer by a mortgagee in exercise of the power of sale could be taken on a permit but when the Crown Grant was created and registered, it was cancelled and a new certificate of title was created showing the present proprietor.

Since 1989 very few permits have been issued and with the introduction of the TLA, a permit to occupy is no longer issued. 

Note: Even though permits to occupy are no longer issued, search copies of all those previously issued are available from Landgate for historical purposes.

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1.3.12

Licence to Occupy under the Land Act 1933

Where Crown land was alienated (sold) and the purchaser had paid a deposit but had not fulfilled the conditions and desired to deal with the land before the creation of a Crown Grant, a licence to occupy may have been issued by the Minister for Lands. In most cases the desired dealing was a mortgage to fund the development required by the sale conditions. Unlike a permit to occupy, a licence was not registrable under the TLA and all action on it took place under the provisions of the Land Act 1933. The licence was recorded as an encumbrance on a Crown land record in the same manner as a freehold lease is registered on a certificate of title. Dealings such as caveats and mortgages could be registered against the licence by virtue of s.143 to 160 of the Land Act 1933. Licences were numbered in the series allocated to leases registered at Landgate (eg: 17/1993) and dealings on the licences were numbered in the normal document system (eg: F123456). With the introduction of the LAA licence under the Land Act 1933 is no longer issued and those still in existence at that time are still valid but will eventually disappear (within 2 or 3 years) when they are either converted to freehold or forfeited. Even though licences are no longer issued, search copies of all those previously issued are available from Landgate. 

Note: A licence under the Land Act 1933 is completely different to a license under the LAA. A Licence under the LAA is a right to occupy and use Crown land for a specific purpose and term (generally) less than 12 months. The licence is not an interest in land and is therefore not registered on a Crown land title.

1.3.13

The Present Physical Arrangement of the Register

All original certificates of title (paper titles) are filed as separate documents and an image of each title is held on optical disc. Microfilm copies of almost all documents lodged before October 1991 are held on roll film. Copies of documents lodged after then are held on optical disc, as are all freehold surveys and strata plans. Crown surveys have been filmed (in colour) and produced as microfiche. For security reasons, and to avoid damage or loss, the original documents are not usually available to the public for search purposes. Section 239(3) of the TLA authorises the Registrar to supply a print in lieu of producing the original. The search fee includes the cost of such a print. Where it is essential that the original document be sighted, for instance where a reference is made to a section of the land indicated in a colour, arrangements to do so may be made at the Customer Centre in the Landgate building in Midland. Members of the staff are required to use, where practicable, prints or photo copies of original documents. All documents and instruments registered up to the end of 1962 are numbered consecutively by year according to their nature, eg: there is a Transfer 1/1962, a Mortgage 1/1962, an Application 1/1962 and so on and they are filed in their respective categories. From 1963 to June, 1967 the documents were numbered and filed consecutively as a progressive number followed by a year, eg: 24687/67. From July, 1967 continuous numbering and filing in the A series of documents began, eg: A123456 and is continued through the B, C, D, E, F, G, H, I, J, K, L, M, and so forth, and all documents are now numbered in such alpha numerical series. All documents, paper titles and surveys are recorded by filming or optical scanning following the initial registration process and are re-filmed or re-scanned following any later amendment.

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1.3.14

SmartRegister Titling System

Since 1992 Landgate has used image technology to provide its core searching services. These systems have been supported by a paper certificate of title and a paper based registration process for the recording of change in ownership and encumbrances. When a change is recorded on the original (paper) title, it is then scanned and stored on the image system, making it available for searching. In June 1997, Landgate reviewed its future directions for moving into the electronic commerce environment. The key outcome was the need to establish a digital register that would provide the foundation for electronic commerce applications. This would allow conveyancers, in particular, to capitalize on the functionality already provided as part of the Electronic Advice of Sales system. The options available to Landgate were either to develop its own digital register, or to acquire an existing system from another land Registry within Australia. A comprehensive investigation revealed that the New South Wales Integrated Titling System (ITS) appeared capable of meeting Landgate’s requirements. ITS has been redeveloped by Landgate into an automated title registration process suitable for Western Australia that supports a digital register in a text format with an associated survey plan. SmartRegister (SMR) is an internal Landgate system to automate the recording of changes to interests on a certificate of title. With the release of the first phase of SmartRegister on 11th December 2000 Landgate created and registered Western Australia’s first digital certificates of title. The implementation of this first phase of SmartRegister has not changed the customers’ current business processes. They will continue to use existing document forms with some minor changes and lodge them in the usual manner. A major feature of the digital register is that now only current details are displayed and any superseded data is removed to an historical file that is still searchable. While there will no longer be (with some exceptions) paper original Certificates of Title created, paper duplicates will still be issued, if required. While there are variations as to where and how data will be displayed on the digital title, the basic registration processes and principles remain unchanged in this initial phase of SmartRegister. The introduction of the first phase of SmartRegister has made a few changes to the mechanism for searching titles. Eventually Landgate’s tenure inquiry and searching facilities will be enhanced to allow direct access to search the Digital Register.

Back capture of existing paper original certificates of title To implement SmartRegister, it has been necessary to back capture the information on the preexisting paper original certificates of title into the digital databases that now comprise the Register. To ensure that all certificates of title the subject of current or future transactions have been converted to a digital title and ready for processing in SmartRegister, the initial trigger for the conversion of titles will be the lodgement of a dealing. The original paper title that is converted to SMR is not cancelled. Once converted it will bear a superseded watermark. The title will not be removed from file or be marked subject to dealing. The SMR title uses the same Volume and Folio number as the paper title from which it was converted. The paper title becomes the previous version of the current digital title.

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The format of paper titles not suitable for conversion to SMR will, on cancellation, be changed to be similar to a Record of Certificate of Title produced under SmartRegister. A certificate of title not suitable for conversion (at this time) includes: •

titles without a lot on survey land description

•

part lots (this not include balance lots which can be converted)

•

titles that refer to Plans with sections and

•

titles that have a Lot number with fractions, under-numbers or suffixes.

1.3.15

National Electronic Conveyancing System

In 2008 the Council of Australian Governments (COAG) included in the National Partnership Agreement to Deliver a Seamless National Economy an initiative for the implementation in Australia of a National Electronic Conveyancing System (NECS). NECS is a joint government and industry initiative to develop a legislative and business environment for the: •

Preparation and lodgement of registry instruments with Land Registries electronically. and

•

Settlement of real property transactions electronically.

The objectives of this initiative are to: •

Provide a common electronic interface for conveyancing in all States and Territories.

•

Deliver efficiencies throughout Australia in property conveyancing. and

•

Reduce the costs of property transactions.

NECS is being implemented through an Electronic Lodgement Network (ELN) provided and operated by an Electronic Lodgement Network Operator (ELNO). The ELN essentially provides a “hub” for the parties to a conveyancing transaction to electronically prepare and lodge the documents for registration at the Land Registry electronically. The first ELN is being implemented by Property Exchange Australia Limited (previously known as National E-Conveyancing Development Ltd (or NECDL)) and is known as Property Exchange Australia (PEXA). Only approved Subscribers will be able to conduct conveyancing transactions through the ELN. It will not be accessible to the general public. The ELN will also provide a mechanism for the electronic settlement of the financial aspects of a transaction. Online Lodgement System (OLS) is Landgate’s technology solution to provide an interface between existing Landgate applications, eg. SmartRegister, the ELN and Landgate staff. A council of the Registrars of all Jurisdictions has been established by the Intergovernmental Agreement to ensure a uniform approach to electronic conveyancing throughout Australia. Australian Registrars National Electronic Conveyancing Council (ARNECC) is responsible for implementing the legal framework for NECS and for promoting consistent business practices nationally between the Land Registries.

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Legislation Key Components: •

Intergovernmental Agreement (IGA): Entered into by all States and the Northern Territory, committing to implement national uniform legislation, establishes ARNECC to oversee implementation of the legal framework and to work towards consistent business practices.

•

Electronic Conveyancing National Law (ECNL): Passed in New South Wales, and adopted in Victoria, Queensland, the Northern Territory, South Australia and Tasmania. (The ECNL has been adopted in Western Australia (WA) as corresponding legislation, The Electronic Conveyancing Act 2014 with some minor amendments necessary to reflect WA’s statutory framework.)

•

Model Operating Requirements (MOR): Developed by ARNECC and adopted as subsidiary legislation by Registrars of Title in each State and Territory. Sets out the requirements for an Electronic Lodgement Network Operator.

•

Operating Agreement (OA): A contract made between an ELNO and the Registrar or, in the case of WA, Landgate. The OA incorporates the Operating Requirements as contractual terms.

•

Model Participation Rules (MPR): Developed by ARNECC and adopted as subsidiary legislation by Registrars of Title in each State and Territory. These set out the rules on a Subscriber to an Electronic Lodgement Network.

1.4

Searching the Register

1.4.1

Why Search?

With the principle of indefeasibility of the title of a registered proprietor well established, it is generally not necessary to examine retrospectively the title to any land under the TLA. However, a person dealing with the proprietor of land under the TLA should search the Register to establish that the proprietor is registered as proprietor of the interest the subject of the dealing, free of encumbrances other than those already disclosed. It is emphasised that it is unsafe to rely on an inspection of the duplicate certificate of title, as a substitute for a search of the Register. Some reasons why the Register must be searched are: o

The whole or part of the land may be the subject of a notice of intention to take or may have been resumed under the provisions of the Public Works Act 1902 (s.17 and 18), acquired by the Commonwealth (Act 3 of 1925) or taken under Part 9 of the LAA the relevant notification being shown only on the original certificate.

o

The Registrar may have dispensed with production of the duplicate and allowed instruments to be registered (s.74 of the TLA) or created and registered a new or special certificate (s.75 of the TLA).

o

Caveats, property (seizure and sale) orders and some other obstacles to registration are endorsed only on the original certificate (see paragraph 1.1.7).

o

Instruments lodged and awaiting registration may be discovered (see paragraphs 1.4.8 and 1.13.8).

In the case of strata titles, the title for the lot and the strata/survey-strata plan must be searched as not all encumbrances appear on the certificate of title. The plan itself may contain an endorsement of an easement or change of by-laws or an amended schedule of unit entitlement or even changes to the lot outlines and restriction as to the use of common property. A reference to a trust created on the original Crown Grant and not yet removed is only shown on the original title by a rubber stamp endorsement placed near the former title number. In the case of a digital title, it appears in the second schedule on the Record of Certificate of Title and the duplicate Certificate of Title. In no circumstances will search information be given by telephone.

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1.4.2

What May Be Searched?

Landgate maintains a public office, open for inquiries from 8.30 am to 5 pm, Monday to Friday and upon payment of the required search fee [s. 239(3) of the TLA] the Register, comprising digital titles, paper titles, Certificates of Crown Land Title, Crown leases, documents, plans, diagrams and strata/survey-strata plans, may be searched. Applications to bring land under the operation of the TLA may not be searched without the permission of the Principal Consultant of Complex Dealings. Wherever possible a person searching is supplied with a photographic copy or print of the original document, certificate or survey. This is designed to reduce the handling of originals by the public and so prevent loss or damage and to reduce the time spent by a searcher at Landgate.

1.4.3

Searching

To assist a person searching in the Register there is: •

a series of computerised indices to land, including a list of land owners, which give the volume and folio number of the required title and

•

a series of survey plans and diagrams, including a computerised map and related indices known as the land information access system, which also give the volume and folio number of the required title.

1.4.4

Enterprise Business Information System (EBIS)

EBIS is a customer accounting system similar in operation to a credit card. EBIS enables conveyancers to have Landgate’s Search and lodgement fees for their searches, inquiries and stopped document registrations charged to their account. EBIS can be used whether the searches are requested via Land Enquiry (LEN), fax or by personal attendance. Currently EBIS facility also allows for survey lodgement fees (for survey plans and strata/survey-strata plans) to be debited but does not extend to dealing lodgement. Enrolment of clients for EBIS is made by completing a Landgate Account Application Form that is available from the Customer Services Branch in the Landgate building in Midland. Users of EBIS are subject to conditions of use, which are very specific in respect to confidentiality and security. While EBIS credit facilities are interest free and the credit limit offered is at Landgate’s discretion, the full balance owed must be paid each month.

1.4.5

Searching Online Through Land Enquiry (LEN)

Land Enquiry is a convenient online searching and ordering tool available to Landgate Account holders. Searches can be ordered 24 hours a day, seven days a week. Users may also subscribe to MapViewer if required. LEN offers easy online ordering of: •

certificates of title

•

registration documents

•

surveys – freehold and crown diagrams and plans

•

strata/survey strata plans

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Searches can be conducted by: •

name

•

address

•

parcel identifier

•

certificate of title

•

reserve name/number

To access LEN, clients must have: •

a MyLandgate account

•

a login (user ID) for MyLandgate

•

lodged a MyLandgate Account User Access Form (register for a MyLandgate account at http://www0.landgate.wa.gov.au/business-andgovernment/my-landgate/register-for-my-landgate)

•

a personal computer, internet access and suitable communication software or internet access.

Issuing enquiries can be made on-line via the No Charge Enquiry menu. Fees are applicable for hard copy requests. Interactive fees are also applicable when searching for title or ownership information. There is no cost in becoming a LEN user.

1.4.5.1

Ownership records held on the information data base

Nominal Index - this facility provides an index of persons who are registered as a proprietor of a lot and of persons claiming an interest as a purchaser protected by a caveat (for caveats lodged since 11 October, 1982) all linked to a current certificate of title number. Survey/Lot Index - this facility provides a cross reference from a survey lot number on either a plan or diagram to a certificate of title number. Strata/Lot Index - this facility provides a cross-reference from a strata/lot number to a certificate of title number. Crown Allotment Index - this facility provides an index of locations and lots that have a Crown land identity linked to a current certificate of title number. This index also contains the Crown Grant / certificate of title number for every Crown location or lot which has been sold by the Crown. Check Search Certificate (see paragraph 1.4.13) - this facility enables conveyancers, immediately prior to the settlement of a dealing on a land parcel, to check whether there has been any action on the certificate of title since the initial title search was obtained for the preparation of documentation. A Check Search Image once displayed on the conveyancers terminal may be printed by using a print screen facility within the computer. Sales Evidence Index - this facility provides current and historical (from March, 1986) sales transaction details for either individuals, companies, streets and suburbs (within the metropolitan area), map sheets and surveys. Reserves Index - this facility provides an index showing reserve management and status details. Powers of Attorney - this facility provides details of powers of attorney indexed by the donor’s name, attorney’s name and by power of attorney number.

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1.4.5.2

Document Issuing System information held on the database

Item Enquiry - this will allow a client to enquire as to the latest issuing details for a particular register or duplicate/triplicate document; and, Unverified Issuing System - this will allow a client to enquire whether there are any unverified lists to be collected for a particular issuing box.

1.4.6

Searching Digital Title under SmartRegister

1.4.6.1

Via Land Enquiry

Under SmartRegister, titles do not have sketches of the land parcel. To enable Landgate’s customers to easily obtain a sketch for the land, the Land Enquiry screens allow you to order a copy of the previous paper title, which is the default sketch for the digital titles captured in the back capture project.

1.4.6.2

Customer Centre

Users of the Customer Centre will need to indicate on their requests that they require the sketch for the land. If a sketch has not been requested, it will not be provided.

1.4.7

Purchase of Land Data

Digital downloads of the complete range of indexes are available for sale. While most of the data sets are issued for all land in Western Australia’s information can be obtained in a computer graphic form qualified by nominating a specific area, and containing additional information such as land sales price range, area of lots, or date of sale, etc. 

Note Digital land information is governed by the terms and conditions set out in Landgate Licensing Agreements.

1.4.8

Subject to Dealing Searches

1.4.8.1

Dealings

A computer record of dealings in progress awaiting registration is maintained and a check of this record is made each time a search is ordered. Where a dealing is found to be in progress awaiting registration the search is issued endorsed with words subject to dealing. The dealing is made available for physical inspection and following that inspection photocopies can be obtained upon payment of a Dealing Search fee (per each document copied). If a document has been lodged electronically, a searchable document is also available. Conveyancers must bear in mind that the documents may be rejected or withdrawn from registration or registered in an amended form and make their decisions accordingly. The telephone number to request that an unregistered dealing in progress be located and made available for inspection is (08) 9273 7333.

1.4.8.2

Survey Action

A small percentage of paper original titles are removed from file for the purposes of changing a reference to a road shown on the sketch on a title, eg: by closure or to write on a title the reference number of a new survey which could affect the title. If a search of the title was requested the computer would deliver one marked subject to dealing but give a location reference rather than a document reference. The paper original title is available for physical inspection and conveyancers will be told the nature of the action taking place and must then make their decisions accordingly. The telephone number to request that the title be located and made available for inspection is (08) 9273 7333.

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1.4.9

Searching by Post

The Registrar will accept requests for searches by mail provided: •

sufficient information is provided to identify the searches required and

•

the necessary fees accompany the request or the person or firm is an enrolled customer of Landgate’s Enterprise Business Information System (EBIS).

The searches ordered may be either held by the Customer Services Branch for collection at Landgate Midland or Perth office, or delivered to the customer by facsimile or post.

1.4.10

Searching by Facsimile Request

The Registrar will accept requests for searches by facsimile message provided: •

sufficient information is provided to identify the searches required and

•

the person or firm is an enrolled customer of Landgate’s Enterprise Business Information System (EBIS).

The searches ordered may be either held by the Customer Services Branch for collection at Landgate Midland or Perth office, or delivered to the customer by facsimile or post. The facsimile number for search orders is (08) 9250 3187.

1.4.11

Certified Copies of Paper Titles

Certified copies of registered documents, original certificates of title which have no unregistered dealings on them, strata/survey-strata plans, plans and diagrams may be obtained on written request to the Registrar and upon payment of the required fee [s.239(2)]. A request will also be taken by facsimile or telephone (subject to written confirmation) if the person or firm is an enrolled customer of Landgate’s Enterprise Business Information System (EBIS). The telephone number for the service is (08) 9273 7320. Sufficient notice (usually two days) must be given for their preparation. Solicitors requiring certified copies for Court purposes should make their request well in advance of a hearing. Certified copies are certified by the Registrar, or an Assistant Registrar and are acceptable as evidence in any Court.

1.4.12

Certified Copies of Digital Titles

If a title has been converted to a digital title under SmartRegister, it is only possible to obtain a certified copy of the Record of Certificate of Title showing current ownership and interests. The digital title does not contain an image of the sketch of the land therefore a certified copy must always include a copy of the superseded paper title or the relevant survey document. If certification is required in respect to former title particulars (historical data) customers will need to obtain certified copies of the relevant documents. A computer-generated printout (Historical Search) from the Historical Database is not a certificate of title and therefore cannot be certified as such.

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1.4.13

Check Search

As part of a transaction, a conveyancer will often obtain a title search to ascertain the details required to prepare a document. A conveyancer will then need to know if any further action has taken place on that title during the period from the issue of the search up to 8 am on the day of settlement. A simple and expedient method of obtaining the information is the Check Search System. The check search is a computer-generated report that indicates whether there has been any action on a specific title during a stated period. The stated period can be up to three months prior to the date of enquiry. The report states either that no action has taken place on the title or that action has taken place and in the case of action taking place, a new search of the title should be made. The check search is much cheaper than a title search and is generated by the computer system much faster than a title search.

1.4.14

Searches for Mineral Rights

Most Crown Grants when created and registered have contained clauses reserving to the Crown (the State Government) the rights to certain minerals. Before 1 January, 1899 the only rights reserved were for gold, silver and other precious metals. After that date many other metals, mineral oils and phosphate substances (to name a few) were also reserved. As every current certificate of title is created and registered subject to the same terms and conditions as the original Crown Grant, any current land owner can ascertain the mineral rights attached to his or her land holding by searching the original Crown Grant for the land. Crown Grants issued prior to 1 July, 1875 are filed in the Deeds Office and may be located by reference to the Land Index. References to Crown Grants issued after that date may be found by searching the computerised Crown Allotment Index. The reference obtained is usually a Crown Grant filed by volume and folio number but can (for some of the grants issued between 1875 and 1920) be a reference to a town or country grant filed in a separate system. Copies of these grants are also available. Conveyancers, having ascertained the reservations in the Crown Grant, should consider the relevance of the depth limit (if any) also shown in the Crown Grant and the effect of other legislation such as the Mining Act 1978. A registered proprietor may also, by reservation in a transfer, sell the land but retain specified mineral rights. Crown Grants created and registered in the name of the Commonwealth of Australia do not contain any mineral reservations. It is customary, should the Commonwealth dispose of the land, for the transfer effecting the sale to contain the same mineral reservations as contained in the normal Crown Grant. Following the registration of the transfer the Commonwealth can then transfer to the Crown (the State Government) the mineral rights so reserved. With the introduction of the LAA no mineral reservations are shown on the Crown land title or first certificate of (freehold) title created and registered upon the sale of Crown land. Mineral and petroleum rights are no longer shown because they are adequately provided for under s.24 of the LAA and the relevant sections of the Mining Act 1978, the Petroleum Act 1967 and the Petroleum (Submerged Lands) Act 1982. Depth limitations are not included in the land description of the Crown land title or first certificate of (freehold) title created and registered upon the sale of Crown land.

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1.4.15

Historical Searches of Paper Titles

Every certificate of title created and registered bears a reference to the previous title for the same land on the top left-hand side near the State crest. Persons wishing to trace the land ownership backwards in time should start by ordering all the titles successively listed on the top left hand side until the last title ordered is either a Crown Grant or Crown land title or bears the endorsement on the top left hand side O.G. Crown Grant or the reference to a memorial (eg: bkXXII-123). Where the earliest title available refers to a memorial book, information on the land dealings previous to the creation of the title can be obtained by continuing the search in the Deeds Office (see Chapter 10). To finally ascertain whether additional information is available, a search of the public plan should be made, commencing with the current plan and tracing the land back through previous issues of the same plan (called cancelled public plans). Particular notice should be taken of any change in Crown Lot or Location numbers for the land in question and the numbers of Landgate files. If the Lot or Location number does change, a fresh search of that Lot or Location should be made, commencing with the Landgate file. In any case a search of the earliest Landgate file will show any Lessees or Occupiers of the land while it was still Crown land and the circumstances in which the original Crown Grant was created and registered. Search fees are applicable to historical searches. 

Note: For historical searches on digital titles created under SmartRegister, see paragraph 1.4.16.

1.4.16

Historical Searches of Digital Titles under SmartRegister

SmartRegister digital titles are the current ownership and interests in land. Digital titles are not cancelled unless the title is subdivided. The title number remains the same and SMR digital title is simply updated as information changes. It is not possible to view previous versions of digital titles. The SmartRegister system does not retain an image of a register after a new version has been created. The only means of searching the history of a specific parcel of land is to utilize the Historical Database and the document numbers listed in the Historical Search. When a digital title is cancelled, that version of the title can be viewed and the Record (search) of Certificate of Title printed. As documents affecting the land are lapsed into history, e.g. due to the land being transferred or a mortgage discharged etc., they are recorded in the Historical Database list for that particular title. The Historical Search will produce a list of all dealings that have previously affected the register. This type of search will also indicate when a new edition (duplicate title) was issued. It will also provide an indication if a document was withdrawn or rejected. All registered transactions past and present against a digital title are recorded as history and as such will appear in the Historical Database. During the back capture project (see paragraph 1.3.14), only current information will be captured to create the digital title. No historical information will be available in the digital database for back captured titles. Historical information will only become available when the land is dealt on after back capture. All documents lodged after back capture appear in the history list, including those that are still current. While the Historical Database is document generated, back captured documents are not generated by documents. Therefore in the case of an original paper title back captured with a mortgage etc, the mortgage will not go into history when it is discharged. However, the discharge of mortgage document will go into history because it is document generated in SmartRegister. Therefore superseded paper titles will in many cases contain a component of the historical documents relating to the land.

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Interests affecting land created without a document number (e.g. easements created on surveys, Crown Grants in Trust, Act 31, 1920 etc.) go to the top of the Historical Search when they are removed by another dealing. Also Sub-Endorsements, contained in the Second Schedule of the digital title, when removed are listed in order of priority of lodgement, not at the date they lapsed. Requests for SMR Historical Searches can be faxed to the Customer Centre on (08) 9250 3187, or via email [email protected].

1.4.17

Search Certificate

Section 146 of the TLA requires the Registrar to issue a search certificate to show any caveat or instrument which has been lodged for registration but not appearing on the certificate of title. The request for the search certificate is made on a Form SC giving the name of the registered proprietor and the title number. The search certificate is created by an examiner in the Document Examination Section and signed by an Assistant Registrar of Titles. The certificate is issued one or two days after receiving the request, and timed and dated at 8 am on the day of issue.

1.4.18

Preparation of Documents

In the interests of economy (for the client), time (for the engrosser), examination and storage (for the office) the practice of preparing multiple documents, where one will suffice, is discouraged. Those persons or firms using computer facilities to produce their forms may utilise adjustable panels to create more space for complex arrangements or numerous land items. Proper use of the additional page (Form B1) will, in most other cases, provide sufficient space for larger dealings on pre-printed forms. However, there are occasions when separate documents must be used. In a transaction where a number of vendors transfer a number of parcels to a common transferee, separate transfers must be used unless each vendor has an interest in each parcel transferred. For example in a sale from A and B to C where A and B own the land in one certificate and A owns the land in another, two transfers must be prepared, one from A and B to C and one from A to C. If A and B own the land in both certificates, even if they hold different shares, a single transfer may be used. The design of the computerised power of attorney register does not limit the number of donors in any one document. It is recommended that preparing parties show restraint in the number of donors appointed, and impose the same requirement on the number of attorneys in one document.

1.4.19

Form of Documents

The Registrar of Titles is required to approve forms for use under the TLA. A list of Landgate’s standard forms that have been approved by the Registrar is shown at: •

paragraph 15.1 List of Freehold Land Registration Forms of this manual or

•

on Landgate’s corporate web site http://www0.landgate.wa.gov.au/titles-and-surveys/forms-andfees/land-titling-forms.

There is vested in the Registrar a discretion to permit the registration of these forms which have been altered or modified (personalised) to suit particular circumstances. There is also a requirement that such alteration or modification must be submitted for consideration to the Form Approval Group. However, in the interest of rationalisation of forms, personalisation of forms that mirror one of Landgate’s standard forms and only seek to pre-populate information such as lodging party details, no longer require approval. Further to this, separate form approval requests made to the Registrar will only be granted in exceptional circumstances such as where an existing form is proven to be insufficient to facilitate the necessary land transaction.

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1.5

Requirements as to Form

1.5.1

General

Instruments intended to be lodged or registered in respect of land under the TLA must conform to the requirements laid down in the Regulations to the Act.

1.5.2

Size, Margins, Quality and Binding

The standard size of forms (documents) to be lodged for registration is 297 mm by 210 mm in external measurement (A4). Adequate margins (a minimum of 5 mm) must be provided on all sides. Binding is not permitted on original documents and if more than one sheet is used, they should be secured by two staples in the left-hand margin. Duplicate copies of any documents that can be accepted in duplicate may be bound if that is the conveyancer’s desire. The form should not be cut or trimmed in order to fit it into an envelope for posting. The paper selected must be of a type and quality approved by the Registrar of Titles (at least 80 gsm). Persons printing their own forms must ensure they mirror one of Landgate’s approved Land titling forms and be printed in black and white and printed on both sides (duplexed).

1.5.3

Private Printing

In the past private printing of forms was permitted with the approval of the Registrar. These forms were submitted to the Form Approval Group for approval and allocated a form approval number before final printing. A sample of the approved form was held on file for comparison purposes if a query arose. However, in the interest of rationalisation, personalisation of forms no longer require approval. It is important that all privately printed forms, lodged for registration: •

mirror Landgate’s approved Land titling forms

•

conform to the regulations (see paragraph 1.5.2 above)

•

are printed in black and white and printed on both sides (duplexed) and

•

if the document produced is four or more sheets, the sheets are numbered consecutively.

1.5.4

Form Approval:

1.5.4.1

Paper Forms

In the past: Persons or organisations could use forms they generated so long as a template of the form was first approved by Landgate’s Form Approval Group.

Current practice: In the interests of rationalisation of forms, personalised forms that mirror one of Landgate’s approved Land titling forms and only seek to pre-populate information such as lodging party details, no longer require form approval. Further to this, separate form approval requests made to the Registrar will only be granted in exceptional circumstances such as where an existing form is proven to be insufficient to facilitate the necessary land transaction. A template of such a form should be referred to the [email protected].

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1.5.4.2

Mortgage Form Approvals Lodged Electronically

Mortgagees intending to lodge mortgages electronically will arrange for the mortgagor to sign a counterpart mortgage. The mortgage counterpart signed by the mortgagor is not lodged at Landgate. The mortgagee’s counterpart, digitally signed by the mortgagee, is lodged at Landgate. As a consumer protection measure, section 105 of the TLA provides that where a mortgage counterpart has been lodged under regulations applying to counterparts, the mortgage will not be enforceable against the mortgagor unless, before the mortgage is registered, the mortgagor signed a counterpart of the mortgage. A “counterpart” is defined in section 4(1CA) of the TLA. Section 4(1CA)(b)(v) allows regulations to prescribe what are the allowable differences in data or information between a mortgagor’s counterpart and a mortgagee’s counterpart. Regulation 3A of the Transfer of Land Regulations 2004 prescribes those allowable differences. A mortgagee must decide if the mortgage counterpart signed by its mortgagor is, in fact, a counterpart under the definition in section 4(1CA) of the TLA. If it is not a counterpart under the definition, the mortgage may not be enforceable. When requesting approval of a new mortgage form, a mortgagee should consider section 105(4) of the TLA. By approving a mortgage form, neither the Registrar, Landgate nor the State of Western Australia warrant or represent that the approved form is a “counterpart” as that term is defined in section 4(1CA) of the TLA.

1.5.5

Printed Freehold Land Registration Forms

1.5.5.1

Current List of Freehold Land Registration Forms

Landgate’s Freehold Land Registration Forms are available via download from Landgate’s website (http://www0.landgate.wa.gov.au/titles-and-surveys/forms-and-fees/land-titling-forms). These forms are also available from Landgate’s customer counters in our Midland and Perth buildings. Please note that as of Y 29 of April 2016 Landgate’s office in Bunbury no longer offers over the counter services. To assist customers with this closure we will provide temporary services via a self-service area. A full list of Landgate’s Freehold Land Registration Forms can be found in Chapter 15.1 of this manual. 

Note: A freehold form type may be used where a Crown form type has not been created (for example: mortgage, caveat, survivorship or transmission document forms).

1.5.5.2

Easiforms

Before 1 September 2015 Easiforms were an online service providing electronic forms that were completed electronically and printed for submission as a paper lodgement.

From 1 September 2015 Due to the minimal use of this service Easiforms will no longer be available. As alternatives, Landgate customers can: •

Lodge documents online via electronic conveyancing (more information about use of the electronic platform is available on the PEXA website).

•

Download editable PDF Forms from the Landgate website for submission as a paper lodgement (http://www0.landgate.wa.gov.au/titles-and-surveys/forms-and-fees/land-titling-forms).

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1.5.6

Amendment of Document Forms Due to the Introduction of SmartRegister in 2001

Since 2001, slight modifications were made to forms as a result of SmartRegister: 1.

The words LIMITATIONS, INTERESTS, ENCUMBRANCES AND NOTIFICATIONS (Note 3) were added to all forms that contained an encumbrance panel and had a SmartRegister title created and registered. o

Customers who printed their own forms using a word template were required to amend the heading of the ENCUMBRANCE (NOTE 3) panel to that shown above.

o

Existing documents were amended by inserting the words LIMITATIONS, INTERESTS, AND NOTIFICATIONS after the words ENCUMBRANCES (Note 3). The heading was required to read: “ENCUMBRANCES (Note 3), LIMITATIONS, INTERESTS, AND NOTIFICATIONS”

o

An amendment was also required to NOTE 3 on the document cover page. The Note 3 heading amendment to read LIMITATIONS, INTERESTS, ENCUMBRANCES AND NOTIFICATIONS (Note 3). The wording of Note 3 (under the heading) also required amendments. The wording varied depending on the type of document. In the case of a mortgage for example, the notes needed to be amended to read: “In this panel show (subject to the next paragraph) those limitations, interests, encumbrances and notifications affecting the land being mortgaged that are recorded on the certificate(s) of title:

2.

o

in the Second Schedule

o

if no Second Schedule, that are encumbrances (unless to be removed by action or document before registration hereof): o

Easement Benefits or Restrictive/Covenant Benefits are not required to be shown in the Second Schedule or

o

Subsidiary interests or changes affecting a limitation, etc, that is to be entered in the panel (eg, if a lease is shown, do not show any sub-lease or any document affecting either) are not required to be shown in the Second Schedule.”

All documents shown must be identified by nature and number. The plan/diagram encumbrances shown must be identified by nature and relevant plan/diagram. Strata/SurveyStrata plan encumbrances must be described as Interests on the Strata/Survey-Strata plan. If none show Nil.

1.5.7

Completing Documents when a SmartRegister Title Exists

The following is a guide to successfully completing a document form when a SmartRegister title exists.

1.5.7.1

Land Description panel

Copy the land description details as shown on the SmartRegister Title Record. This will show only the lot on survey details - e.g. Lot 10 on Plan 30025.

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1.5.7.2

Limitations, Interests, Encumbrances and Notification panel (where there is one)

Copy the Limitations, Interests, Encumbrances and Notifications shown in this section of the SmartRegister Title Record with the exception of subsidiary limitations, interests, encumbrances and notifications - e.g. a Transfer of Mortgage is not shown. Do not show in the document any of the following: •

The benefit of any easement or restrictive covenant. or

•

Subsidiary limitations, interests, encumbrances and notifications.

1.5.8

Memorandum of Common Provisions

It is possible to simplify the document production, checking and recording processes, both for conveyancers and Landgate, by separating the components of documents such as mortgages and leases into two documents. The statutory or registration components of both documents can be made into a simple, short form mortgage or lease, leaving the contractual component as a Memorandum of Common Provisions. A short form mortgage would contain land description, estate and interest, encumbrances, mortgagor, mortgagee and perhaps (but not necessarily) details of the principal sum, interest and repayments. It would also contain the operative words of formal mortgage and a clause referring to the Memorandum of Common Provisions incorporating its terms and provisions in the mortgage and the formal attestation by the parties. The Memorandum of Common Provisions would contain all the other elements that made up the formal mortgage document or lease. Care should be taken by conveyancers to ensure that the provisions of the memorandum do not conflict with any statute, especially in such matters as notice provisions, where the provisions of the TLA must prevail over any other listed forms agreed to by the parties. It is possible, however, to create a provision in a memorandum in general terms, to achieve both compliance with the Statutes and the wishes of the parties. For instance, a notice provision could be expressed as: “except where expressly required to be given in a particular manner by Statute, notice may be given by ........” Similar drafting may be used to ensure that default and other provisions are not in conflict with the TLA. While Landgate has a policy of making every effort to register the document in a format required by the parties, it will not register documents containing provisions in direct conflict with the requirements of Statutes. The use of the technique shown in the example is encouraged as it permits the use of standard provisions in all States and ensures that the document does not become obsolete by any amendment to the legislation. Memoranda of common provisions for mortgages and leases are lodged, numbered and stored in the same manner as all other documents. They are examined by the Lead Consultant, Dealings Section in the Registrations Branch, who will notify the lodging party of any requisitions. Clients should ensure that the memoranda of common provisions have been accepted before committing to extensive printing orders.

1.5.9

Documents for which No Form is Provided

Some documents to be prepared will not fit any printed form, either because the form is unsuitable for the document or because the document is too complex to be reduced to the panel format. These documents should be prepared on Form B2 Blank Instrument Form.

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1.5.10

Additional Pages

Where a panel on any printed form has insufficient space in which to place the required information, it is permissible to: •

use a double page form eg: Transfer T2 and Mortgage M1 and, after inserting see Page 2 in the appropriate panel, enter the information on page 2 of the form under a heading for that panel and

•

use an additional page (Form B1) and, after inserting see additional page (number of sheet) in the appropriate panel, enter the information on the additional sheet under a heading for that panel. The additional page should be completed by adding the additional page number and reference to the document and date and be stapled to the front of the document by two staples on the left-hand margin. No signatures are required on the additional page.

Additional pages should not be used where another form can be successfully used or the information inserted is not part of the panel format. This information should be prepared on pages of the same size numbered consecutively and stapled inside the document (see paragraph 1.5.11 below).

1.5.11

Insert Sheets

Where the printed matter contained in a form of mortgage is inadequate or partly inappropriate, additional pages may be stapled to a printed form. The Registrar will be satisfied if the clauses contained in the resulting document run in numerical sequence. In most cases insert sheets of good quality white bond paper will be approved for multi page documents. Inserts on sheets other than full size will not be accepted. Information on the sheets may be typed printed or produced by copiers that use unsensitised paper. All insert sheets so produced must be approved by the Registrar. Outside sheets for multi-page documents must be printed on approved paper. All signatures, Seals and initials, wherever appearing on insert sheets, must be original. No binding is required on the original copy of multi-page documents but conveyancers may bind the duplicate copy of any documents that can be accepted in duplicate if they wish.

1.5.12

Other Provisions Relating to Documents

Every document lodged for registration must comply with the following requirements: •

Handwriting, signatures and seals must be clear and legible. o

The use of black or blue ballpoint or felt tips pens are recommended when writing on or signing documents, other colours such as red or green should be avoided.

o

The Seal of a Corporation must be affixed in a manner that makes its reproduction by electronic or photographic process possible. The use of a black ink stamp pad is recommended. Failure to comply with this requirement could lead to rejection of the document;

•

the printing or writing must not extend into the margins;

•

any amendment must be made by striking through the words intended to be rejected, without obliterating them. The amending words should be authenticated by the parties to document but an amendment authorised by the solicitor or agent for the parties will be accepted. An amendment must not be made by rubbing out, scraping or cutting the surface of the paper. The use of plastic paper or type correction fluid for amendment is not permitted; and

•

typewriting should be dense black and the lines of typewriting should not overlap. A carbon copy, or a copy in which the typewritten characters blur or spread or are liable to mark or damage an adjacent sheet, will not be accepted. Where instruments are lodged in duplicate and the original copy to be retained by the Registrar complies with these requirements, no objection will be taken if the duplicate copy is a carbon copy.

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1.5.13

Fees

The fees prescribed under s.181 of the TLA are as published in the Government Gazette from time to time. Copies of the prevailing scale of fees can be obtained from Retail Services customer counters in the Landgate buildings in Midland and Perth. Click on the link for a current copy of the Search and lodgement fees. As of 29 April 2016 the Landgate office in Bunbury will no longer offer over the counter services. To assist customers with this closure it will provide temporary services via a self-service area.

1.6

Stamp Duty

1.6.1

General

On July 1 2008 the Duties Act 2008 came into effect replacing the Stamp Act 1921 and provides that every person whose duty it is to receive or register any instrument shall ensure that any instrument liable for duty is duly stamped. It is therefore necessary that any document liable for duty must be submitted to the Office of State Revenue (Stamp Duties Division) for assessment of the duty and stamping before being presented for registration.

1.6.2

Cocos (Keeling) Islands and Christmas Island

From 1 January 1994 dealings in land in either the Cocos (Keeling) Islands or Christmas Island will require stamp duty to be paid on the same basis as eligible documents dealing in land in Western Australia. The duty is payable on documents entered into (signed) after 31 December 1993.

1.6.3

Evidence for Caveats

Section 278(2) of the Duties Act 2008 allows the Registrar of Titles to accept a caveat for lodgement on evidence that a document has been lodged with the Office of State Revenue (Stamp Duties Division) for assessment of duty. To permit the caveat to be lodged the Office of State Revenue (Stamp Duties Division) will issue a photocopy of all or part of the document endorsed with a stamp noting that the original is being held for assessment of duty.

1.6.4

Additional Stamping

Documents tendered for registration or deposit, which have obviously been noted and stamped by the Office of State Revenue (Stamp Duties Division), will be regarded as sufficiently stamped unless it would seem that fresh matter, which would render the document liable to further duty, has been added since the date of stamping. In the latter case a requisition will be made and the lodging party advised to submit the document again to the Office of State Revenue (Stamp Duties Division) (but see also paragraph 2.6.12 Up Stamping Mortgages).

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1.6.5

Documents that Require Stamping

Unless covered by statutory exemptions (as in transfers or leases to the Crown, Crown Instrumentalities and Local Governments) and marked exempt from duty by the Commissioner for State Taxation, the undermentioned documents must be sufficiently stamped before registration: •

Conveyance and Amalgamation Order (Freehold)

•

Declaration of Trust

•

Disposition statement filed with a strata/survey-strata plan application

•

Family Court Orders vesting land

•

Grant of Easement

•

Lease (if consideration is paid or agreed to be paid)

•

Order for Foreclosure

•

Profit a` Prendre (s.91(1) Land Administration Act 1997)

•

Sub-lease

•

Surrender of Easement

•

Surrender of Lease (if consideration is paid or agreed to be paid)

•

Surrender of Profit a Prendre

•

Surrender of Tree Plantation Interests

•

Transfer of Charge

•

Transfer of freehold estate in land

•

Transfer of leasehold estate in land

•

Transfer of Profit a’ Prendre

•

Transfer of Tree Plantation Interests

•

Vesting Order

Conveyances and other deeds created for the purpose of registration under the Registration of Deeds Act 1856, which create the same interests listed above, must also be stamped before memorialisation. Orders made by the State Administrative Tribunal in strata title matters are exempt from Stamp Duty. 

Note The Office of State Revenue (Stamp Duty Division) is to be contacted concerning assessment of stamp duty on documents, and evidence in support of a document which may be subject to stamp duty assessment prior to lodgement at Landgate.

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1.7

Parties to Documents

1.7.1

General

Landgate, to support its guarantee of title, must be sure that the person selling, mortgaging or otherwise dealing with the land in a title is indeed the person shown as the registered proprietor. In its simplest form, for documents such as mortgages, leases, applications, etc the identity check is the comparison of the name and address shown on the document with the name and address shown on the title.

1.7.2

Name

The name of a person dealing with land must coincide with the name of the registered proprietor or a satisfactory explanation of the difference provided. Amendment of the document and/or amendment to the name in the Register will be required where the document shows that: •

a name has been added to or omitted from the proprietor’s name

•

the order of names is different

•

there is a difference in spelling in the name or names

•

the signature of the proprietor indicates another name

•

a female has been married since first becoming registered proprietor

•

a person has changed name by repute or usage

•

a person has changed name by application to the Registrar of Births, Deaths and Marriages

•

a person has changed name by Deed Poll or Licence to Change Name or

•

a female wishes to revert to the use of her maiden name.

However, there are important exceptions to these rules (see paragraph 3.5.10).

1.7.3

Non Anglicised Names

Landgate follows the anglicised conventions in names, endorsing the surname after the given names and (usually) showing the same surname for married couples. Should a woman not wish to use her husband’s name after marriage, she does not have to (see paragraph 3.5.2). Conveyancers can assist the Registrar to maintain accurate records by underlining the surname of transferees. In the interests of consistency, the Registrar will use the same naming convention for all names but realises the difficulties faced by persons from cultures where the use of a variety of names is both custom and legal. In these cases it will be sufficient if the document recites: [name] also known as [name] and is accompanied by a statutory declaration identifying the person on the document as one and the same as the person on the title. The recital of both names is required to ensure the maintenance of the accuracy of the computer records.

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1.7.4

Corporation Names

The Corporations Act 2001 provides (among other things) for the allocation to each corporation registered, or to be registered, a distinct registration number. On the first occasion that the name of a corporation is shown in a document, its registered Australian Company Number (A.C.N.) must also be shown. The A.C.N. must also be shown in the Common Seal. It is not necessary to show the A.C.N. in the sealing clause. If a corporation executes a document without using the Common Seal, the A.C.N. must be shown in the sealing clause. On 29th May 2000 the Corporations Regulations were amended to include the use of the Australian Business Number (A.B.N.). The new regulations modify the law only to the extent that if a corporation has an A.B.N., it may use the A.B.N. with its company name in place of it’s A.C.N. on documents and negotiable instruments provided that: 1.

the A.B.N. includes the company’s A.C.N. as the last nine digits and

2.

the quotation of the A.B.N. is effected in the same manner in which quotation of the A.C.N. would normally occur, e.g. with the company name where it first appears in the document.

The corporation’s Common Seal must still show the A.C.N. Where a corporation does not have a common seal or does not use a Common Seal to execute documents (see s.127 of the Corporations Act 2001), their attestation clause can show their A.B.N. where it meets the requirement outlined in the first dot point above. Corporations registered under State legislation, such as Building Societies and Credit Unions were also allocated a number, called an Australian Registered Body Number (A.R.B.N.), if they wished to operate out of their State of registration. The effect of the law is that any document at Landgate showing as a party a corporation registered in another State must show after the name its A.R.B.N. number. The number should be shown in the attestation clause but not in the Common Seal.

1.7.5

Address and Address Requirements

The present address of the parties to a document must be shown. Where a person dealing with land (for instance, by entering into a mortgage) has changed address, the present address should be shown followed by the former address. For example” “A of (present address) formerly of (previous address).” As the address shown on the title is used for the service of notices, every effort should be made to ensure the accuracy of the information given. Landgate will accept any alteration of address authenticated by the person whose address it is or the agent, solicitor or banker of that person. Two addresses should not be given for any person. The address of a corporation is the address of the registered office of that corporation. When preparing a transfer, it is acceptable to show the new or proposed address of the transferee (purchaser), thus ensuring that any following notices are received.

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1.7.5.1

On 12 May 2016 Landgate made changes to address requirements for Western Australia’s land registry forms

Landgate uses AS 4590 – 2006 Address Standards for recording addresses for statutory and commercial purposes. It is strongly recommended that Conveyancers comply with the following basic rules from AS 4590 when entering addresses onto Western Australia’s land registry forms. These addresses are provided to Landgate within title dealings – in both paper and electronic formats - to enter onto the Register to be primarily used for the service of any notices required to be sent to the registered proprietors. Following these standards will significantly increase the efficiency of processing paper-based title dealings, reduce delays and assist in accurate delivery of important notices to registered proprietors. When in doubt, the format returned by the Landgate Address Verification Service, where applicable, should be used.

AS4590 – 2006 Address Standards Punctuation Unless specifically part of the address, such as a hyphen in a range of numbers (eg 17-18), punctuation, including commas and full stops, should not be captured in address information. Acceptable format: 1 Midland Square MIDLAND WA 6056 Post Office Box Post Office Box information should be shown in an abbreviated format and capitalised. Private Mail Bag Service should be shown as ‘PRIVATE BAG’ and General Post Office Box should be shown as ‘GPO BOX’. Acceptable format: PO BOX 2222 MIDLAND WA 6936 Care of In Australia, ‘Care of’ is used where a letter etc. is to be delivered and entrusted to another person or company. Consequently, ‘Care of’ should only be used on land transaction forms when immediately followed by the name of a person or company. References to ‘Care of’ should be listed in full (not as C/-). Acceptable format: Care of Joe Citizen of PO BOX 2222 MIDLAND WA 6056 Street addresses Street names, types, suffixes, prefixes and directional indicators should be shown in full, generally without punctuation. Acceptable formats: •

1 Sixth Avenue MOUNT LAWLEY WA 6050 (not 1 6th Ave MT LAWLEY)

•

7 Cottonwood Place O’CONNOR WA 6163 (not 7 Cottonwood Place OCONNOR)

•

3 Chandler Avenue East FLOREAT WA 6014 (not 3 Chandler Avenue E FLOREAT)

•

6153 Kulin-Lake Grace Road NORTH LAKE GRACE WA 6353 (not 6153 Kulin Lake Grace

•

Rd NTH LAKE GRACE)

Please note that both Unit 1 79, 1/79 and Unit 1, 79 Second Avenue MOUNT LAWLEY WA 6050 are all acceptable.

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Suburbs, localities and cities Suburbs and localities are to be fully spelled out and capitalised (e.g. ‘MOUNT), except that ST shall be used for SAINT). Acceptable formats: •

1 City Road MOUNT HAWTHORN WA 6016

•

2 Victoria Street ST JAMES WA 6102

States and postcodes For Australian addresses, the state/territory and postcode (capitalised, abbreviated and without punctuation) are to be included. State abbreviations should be depicted as shown in the following table: State/Territory

State Code

Australian Capital Territory

ACT

New South Wales

NSW

Northern Territory

NT

Queensland

QLD

South Australia

SA

Tasmania

TAS

Victoria

VIC

Western Australia

WA

Acceptable format: 1 Melbourne Street MELBOURNE VIC 3000 International addresses The listing of an overseas address is to include the country (capitalised and not abbreviated). Street names, types, suffixes, prefixes and directional indicators should be shown in full, in accordance with local usage, without punctuation. Acceptable formats: •

87 Brompton Road LONDON SW1K 7XL UNITED KINGDOM

•

16 Glenwood Drive WESTERVILLE OHIO 43081 UNITED STATES OF AMERICA

Western Australian addresses Landgate recommends that all Western Australian (not national or international) addresses that are to be entered into the EAS2 system or into legal documents are checked for accuracy and formatting via the Address Verification Service on Landgate’s website. Only a valid returned address should then be entered into EAS2 or the legal form. The tool contains a follow-up notification for any queries relating to failed addresses. Please note that this service will soon be enhanced to include the state of ‘WA’ in the resulting address. Please remember to include ‘WA’ in the address until this is implemented.

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1.7.5.2

Transitional implementation

The addressing standards described above are intended to apply to all paper land transaction documents in which the address for service of notices is required. The initial focus will be on capturing the correct and consistent addresses of the transferees in transfer of land documents. In dealing cases where a mortgage follows a transfer, Landgate will apply the address of the transferee to the certificate of title. From Monday 1 August 2016 Addresses will no longer be required in the mortgagor panel of mortgage forms lodged in paper. However, where addresses are provided they will be accepted in any format on these forms. Mortgage documents will not then be sufficient to effect a change of the registered proprietor’s address on a certificate of title. Clients are to be directed to the appropriate form, generally NA1, where necessary. The current Lodgement Acceptability Check (LAC) will be modified to remove the check of addresses on mortgage documents. It will continue to check that other related documents where addresses are required are consistent. Leading up to Monday 5 September 2016 Landgate will be reviewing industry take-up and any issues presenting, with a view to subsequently introducing an appropriate compliance date in consultation with industry. Industry professionals are requested to accept the new address standards as soon as practicable. Once a compliance date has been announced, any relevant documents that do not comply with this standard will not pass the LAC and a non-compliance report will be issued. Many land transaction forms are also undergoing review and clear instructions as to when addresses are required will be included. Further information Please contact the Landgate Customer Service team on +61 (0)8 9273 7373 or email [email protected].

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1.8

Occupation (Shown for Witnesses and Declarations)

1.8.1

Adults

The occupation of every witness to a document and of every person swearing a statutory declaration is an essential part of his or her description and must be stated. 

Note: This is not a requirement for Electronically lodged documents.

1.8.2

Minors

In law every person under the age of eighteen years is considered a minor. The date of birth of a minor is an essential part of his or her description and must be shown (s.59 of the TLA). To show a minor, the words a minor born the X day of Y, 19Z are added after the name and address of the person, with X, Y and Z being the relevant date, month and year.

1.9

Land

1.9.1

Estate and Interest

The estate or interest in the land being dealt with must be set out in the panel provided in the printed forms (where applicable). When properly completed, the panel shows whether the land being dealt with is fee simple, leasehold or a lesser estate and also qualifies the extent to which any of those estates is being affected, for example fee simple in one undivided half share or leasehold as to the interest of A as a joint tenant with B. Where it is necessary to show an estate or interest and where the printed form being used does not provide a panel in which to insert the required words, the words may be inserted immediately preceding a description of the land being dealt with.

1.9.2

Description of Land

The correct description of the land being dealt with must be typed or written in the panel provided in each of the forms. A correct description includes: •

the lot or location name and number (if an original Crown survey) or subdivisional lot number with its relevant plan, deposited plan or diagram number;

•

a statement as to whether the lot is part of or the whole of the land in the certificate of title, Crown land title or Crown lease; and

•

the certificate of title or Crown land title volume and folio reference or the number and year of any Crown lease.

In the ELN, the Land Description will be obtained from the Registry Information Supply (RIS).

1.9.2.1

Part of the land in a title

When dealing with part of the land in an existing title, the land description must be precise and unambiguous. Particular care should be taken where part of a lot, being part of the land in a title is being transferred and the extent panel reflects this requirement.

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1.9.2.2

Partial transfer of land in multiple owner subdivisions

In the case of a plan of subdivision that involves multiple owners resulting in the transfer of part of the land in one title (e.g. Lot 10 on Plan 3130) owned by proprietor A to incorporate land owned by proprietor B in another title to form one of the new lots (e.g. Lot 2) on the plan, the land description in the partial transfer will read as follows: All that part of Lot 10 on Plan 3130 as is now comprised in Lot 2 on Plan (insert new plan number) and being part of the land in title Volume 616 Folio 61. For more information on multiple owner subdivisions, see paragraphs 6.1.9 and 6.2.1.

1.9.3

Sketches in Documents to Identify Part of the Land in a Certificate of Title

As a general rule, documents that contain a sketch to identify part of the land in a certificate of title will not be accepted. An Interest Only Deposited Plan (DP) must be prepared by a licensed surveyor to spatially define the land. The document can then make reference to the DP number to accurately identify the portion of the land being dealt with. 

Note: The DP must be In Order for Dealings before the document is lodged. It is acceptable for drawings to be included within a document, as long as they don’t purport to define the area of land affected by the interest.

The following documents are exceptions to the general rule: •

caveats

•

freehold Leases

•

management body leases and non-LAA leases over Crown land

•

simple bore easements between neighbours.

The above document types are exempt from requiring a DP to define the area of interest. A suitable sketch of the land can be attached to the document. The sketch must contain a notation sketch correct and initialled by the parties to the document. 

Note: While the above documents are exempt from having a DP to define a portion of land, a DP can still be created instead of a sketch.

Where a sketch is acceptable to identify the land referred to in a document, the sketch must be fully dimensioned and its relationship to the lot boundary established. Conveyancers may, prior to lodgement of the document, obtain approval of the sketch from the Survey Advice Officer at Landgate. Approval will be endorsed on the sketch if it is accurately and sufficiently dimensioned. The Survey Advice Officer may be contacted by telephone on (08) 9273 7317 and sketches may be forwarded for inspection on facsimile number (08) 9273 7651 or sent by private courier.

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1.9.4

Limitations, Interests, Encumbrances and Notifications

The Limitations, Interests, Encumbrances and Notifications to be noted in the panel on the printed forms are those which are in existence or will be noted on the Register at the time of registration of the dealing. Where Limitations, Interests, Encumbrances and Notifications have been registered on the title before the current document to be lodged, it will be sufficiently identified if it is described by the nature of the Limitations, Interests, Encumbrances and Notifications document and its number. For example Mortgage J123456 and for an easement or restrictive covenant Transfer K654321. Where an encumbrance is lodged with, but in priority to an accompanying instrument, the latter instrument must show the Limitations, Interests, Encumbrances and Notifications by reference to its nature, parties and date of execution, for example” “Mortgage dated ..... to …...” or “Restrictive Covenant created by Transfer ..... dated, made between the transferor and .....” Caveats which are subject to claim may be noted as encumbrances. As to caveats generally see Chapter 4. A current Property (Seizure and Sale) Order may not be shown as an encumbrance and must be removed from the Register before registration of any instrument, except in the case of: •

transfer by the Sheriff or a Deputy Sheriff pursuant to such writ or warrant; or

•

transfer by a mortgagee in exercise of the power of sale where the writ or warrant is lodged after the mortgage.

Care should be taken where several instruments dealing with the same land are presented together for registration. For example, where a transfer from A to B containing a covenant is presented with a transfer from B to C, a sufficient reference to the covenant in the first transfer must appear in the encumbrance panel of the second. 

Note: As a result of SmartRegister, the encumbrance panel shown in documents has been amended to read “ LIMITATIONS, INTERESTS, ENCUMBRANCES AND NOTIFICATIONS”. See paragraphs 1.5.6 and 1.5.7. As a result of NECS, some forms which previously had a LIMITATIONS, INTERESTS, ENCUMBRANCES AND NOTIFICATIONS panel no longer do.

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1.10

Execution of Documents

Documents subject to the Verification of Identity Practice issued jointly by the Western Australian Registrar of Titles and Commissioner of Titles are set out in Chapter 14.

1.10.1

General

1.10.1.1

Instruments under the Act signed by any person and attested by one witness

Instruments under the Act signed by any person and attested by one witness are duly executed, where: •

the witness is not a party to the instrument

•

the witness has signed the document

•

the witness is an adult and there appears on the instrument the full name, address and occupation of the witness, in English script below the witness’ signature. The details of the witness must be able to be clearly read by the Registrar of Titles

•

the instrument is signed within Australia or a Territory of Australia including the Cocos (Keeling) Islands or Christmas Island and

•

the signature of each person is separately attested.

A party to a document and a witness must sign using their usual signature, which may be by printing the name, or using English or other language script, thumb print or other mark. To assist communication with witnesses, if necessary, it would be helpful if the telephone number at which the witness can ordinarily be contacted during business hours is added after his or her occupation. Where an instrument is executed but not attested in the manner provided above and the genuineness of the signature and handwriting of the person signing is proved to the satisfaction of the Registrar, by the statutory declaration of a person well acquainted with the person signing, who: •

identifies the instrument for which the declaration is required or supplied

•

declares positively that the signature thereon is the true signature and handwriting of the person executing the instrument and

•

states how and over what period the declarant has obtained a sufficient knowledge of the signature and handwriting of that person;

then the instrument may be accepted for registration by virtue of s.145(3) of the TLA. Declarations of this nature must be lodged with the document and will be inspected by the document examiner when the complete dealing is examined. Signatures must be in ink, the use of black or blue ballpoint or felt tips pens are recommended when signing. The Registrar expects signatures to be written, not printed, and the presence of a printed name on a document raises the question of whether the document has been signed. Where the printed signature is duly witnessed, the witness is testifying that the document has been signed, but where the printed signature is that of the witness there is a possibility of a later denial, both as to the witness and the party to the document. In cases where the signature of a witness is printed the Registrar will request confirmation that the witness did indeed witness the attestation of the document, and that the signature on the document is the normal signature of the witness.

1.10.1.2

Execution by Overseas Witness

Refer to paragraph 1.10.16 Execution by Overseas Witness where an instrument is signed in any country that is outside Australia or a Territory of Australia.

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1.10.2

Execution by Making a Cross or Mark

Where a person is physically unable to sign his or her name, he or she may still execute a document by making a mark. Where a document is executed by a person who makes a mark, an attestation clause setting out the nature of the incapacity and certifying that the person fully understood the nature and effect of the document signed must be used. Emphasis is placed on ensuring that the person making a mark understands the consequences of the registration of the document. For this reason, care should be exercised in the choice of a witness.

1.10.3

Examples of Marksman’s Clauses

1.10.3.1

A person who understands English but cannot write

Signed by (Name of Marksman) by making (his or her) mark, (he or she) being incapable of signing (his or her) name in the presence of

) (His or Her) ) (Name of + Marksman) ) (Mark)

Witness (Full Name, Address and Occupation)

1.10.3.2

A person who understands English but cannot read or write

Signed by (Name of Marksman) by making (his or her) mark, (he or she) being unable to read or write, after this instrument had been read and explained to (him or her) and (he or she) then appearing to understand fully its nature and effect in the presence of

) (His or Her) ) (Name of + Marksman) ) (Mark) ) ) )


1.10.3.3

A person who does not understand English and cannot write

Signed by the said (Name of Marksman) by making (his or her) mark, (he or she) being unable to read or write in the English language after this instrument had been read and explained to (him or her) in (Name of language) by (Name of Interpreter), a person understanding both languages, (he or she) then appearing to understand fully its nature and effect in the presence of

) ) ) ) (His or Her) ) (Name of + Marksman) ) (Mark) ) ) )

Signature of Interpreter (Full Name, Address and Occupation) The interpreter should be the witness, or if not, he or she must also sign the document and have his or her signature witnessed.

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1.10.3.4

Execution by a person who does not understand English but who can write

In this case also, care should be taken in the choice of a witness: Signed by the said (Name of person) (he or she) being unable to read in the English language after the same having been read and explained to (him or her) in the (Name of second language) by (Name of Interpreter), a person understanding both languages (he or she) then appearing to understand fully its nature and effect in the presence of

) ) ) ) ) (Signature of Person) ) ) )

Signature of Interpreter (Full Name, Address and Occupation) 

Note: The interpreter should be the witness, or if not, he or she must also sign the document and have his or her signature separately witnessed.

1.10.4

Execution by an Administrator (and Appointment of)

An Administrator may be appointed to take control of the affairs of a company that is unable to or may become unable to pay its debts, with the view to entering into a Deed of Company Arrangement, under which the Company may be revived. The Administrator must consent to the appointment and must be a Registered Liquidator. The Administrator may be appointed by: •

the Company by a resolution of its Directors (s.436A of the Corporations Act 2001)

•

the Company’s liquidator (s.436B) or

•

a person entitled to enforce a charge on substantially, the whole of the Company’s property (s.436C).

Once the Administrator is appointed, their appointment cannot be revoked, but may be terminated by an order of the Court (s.447A and 449A). The Court has power to appoint an Administrator under s.449B of the Corporations Act 2001. Notice of the appointment of the Administrator is required to be given under the Corporations Law and this Notice of Appointment must be lodged with the Australian Securities Investments Commission. The appointment of an Administrator has no effect upon the Company’s legal personality, its legal persona remains intact and there is no change in its legal status. However, as a general rule, dealings by an Administrator affecting real property of the Company are void unless entered into: •

by the Administrator on behalf of the Company

•

with the written consent of the Administrator or

•

under a Court Order.

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A moratorium is placed upon the rights of the proprietor of property (including real property) during the period of administration of a Company that is in possession of property. Consent of the Administrator or a Court Order is required before the proprietor of the property can re-take possession. The Administrator can perform any function and exercise any power that the Company and any of its officers could perform or exercise if the Company were not under administration, including the execution of documents (s.437A and 442A of the Corporations Act 2001). The Administrator has power to sell the real estate of the Company. Proof of Appointment of the Administrator should be supplied in the form of a Statutory Declaration by the Administrator stating that the appointment has not been terminated and producing a Certified Copy of the Notice of Appointment lodged with the Australian Securities Investments Commission. The Certified Copy will be returned with the documents issuing on the completion of the dealing. When the Administrator executes documents or instruments on behalf of the Company he must do so by using the Company Seal. The following form of execution of documents by an Administrator is suggested: The Common Seal of ABC Company Pty Ltd A.C.N. 001 234 789 was hereto affixed by (name of Administrator) its duly appointed Administrator

1.10.5

) Common Seal ) ) ) (Signature of Administrator)

Execution by an Attorney

A document executed by an attorney will not be accepted for registration unless the power of attorney under which the attorney acts is lodged and noted in this Office, except where the attorney is signing as transferee on the donor’s behalf. In that case a registrable power of attorney need only be produced for inspection. The proper style of execution by an attorney is shown below but in practice any form of attestation will be accepted provided it is clear that the attorney is signing as attorney. As part of the registration process, the attestation by an attorney is checked to ensure that the attorney has the express power to carry out the intention of the instrument (see paragraph 5.1). A proper execution by an attorney is: Signed by (Name of Attorney) as Attorney for (Name of Donor) in the presence of

) ) Signature of Attorney ) P/A number . . . . . . . .


1.10.6

Execution by a Corporation under the Corporations Act 2001

Under s.127 of the Corporations Act 2001, a company may: •

execute documents under seal or

•

choose not to have a company seal and therefore execute documents without using a seal.

If a company has a seal it is not obliged to use it for the execution of documents. Documents executed by a corporation do not require witnessing by a qualified witness.

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1.10.6.1

Execution with a Common Seal in accordance with section 127(2), section 123 and section 148(1) of the Corporations Act 2001.

A company with a common seal may execute a document if the seal is fixed to the document and the fixing of the seal is witnessed by: •

2 directors of the company

•

a director and director/secretary of the company or

•

for a proprietary company that has a sole director who is also the sole secretary - that sole director and sole secretary.

One person cannot attest the affixing of the Common Seal in two different capacities, i.e. as Director and as Director/Secretary unless that person is the sole Director and also the sole Secretary of the company. If a company executes a document in accordance with s.127(2), as outlined above, persons dealing with the company can rely on the assumptions of regularity in s.129(6). Where a document is executed using a company’s common seal, the common seal must contain the company’s name and: •

the company’s Australian Company Number or the abbreviation A.C.N. and the 9 digit Australian Company Number or

•

the company’s Australian Business Number or the abbreviation A.B.N. and the 11 digits comprising the Australian Business Number. (This option is only available where the 9 digits of the company’s A.C.N. are the same, and in the same order as the last 9 digits of the A.B.N., in accordance with s.123(b)(2) of the Corporations Act 2001.)

Alternately, where a company has as its name the expression ‘Australian Company Number’ followed by the 9 digit number, pursuant to s.148(1) of the Corporations Act 2001, the expression ‘Australian Company Number’ or the abbreviation A.C.N. followed by the 9 digit number must be contained in the company’s common seal. Pursuant to s.153 of the Act, the company identifier set out in the common seal should be the same as the company identifier that first appears in the particular document.

1.10.6.2

Execution without a Common Seal in accordance with section 127(1)

A company may execute a document without using a common seal of the document if signed by: •

2 directors of the company

•

a director and a director/secretary of the company or

•

for a proprietary company that has a sole director who is also the sole secretary.



Note: One person cannot execute a document in two different capacities, ie: as Director and as Director/ Secretary unless that person is the sole Director and also the sole secretary of the company. Where a company executes a document in accordance with s.127(1), as outlined above, persons dealing with the company can rely on the assumptions of regularity in s.129(5) of the Corporations Act 2001.

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1.10.6.3

Variations to the requirements of sections 127(1) and 127(2)

Variations (as to who may execute documents) may be permitted by the Constitution of an individual company. Where one Director or a Governing Director alone, or an authorised person in addition to a Director, either: •

attests the affixing of the corporate Seal or

•

executes a document without a common seal

the person lodging the document for registration is required to provide a true or authentic copy of the sealing clause or execution requirements in the Constitution of the corporation, to verify the right of that person to execute a document on behalf of the company. The copy will be returned and must be produced with each subsequent dealing. To avoid producing the certified copy of a sealing clause or execution requirements each time a corporation deals with land, the Document Examination staff may, on request, record the sealing clause or execution requirements on the departmental computer. Subsequent documents lodged by the same corporation will then be accepted after a computer check by the examiner. The same rules apply where foreign companies are involved.

1.10.6.4

Execution as a Deed (section 127(3) of the Corporations Act 2001)

A company may execute a document as a deed if the document is expressed to be executed as a deed and is executed in accordance with the requirements of s.127(1) or 127(2) as set above.

1.10.6.5

Other forms of Execution (section 127(4) of the Corporations Act 2001)

A company may execute a document in a different form to that set out in sections 127(1) or 127(2) but persons dealing with the company would not have the benefit of the assumptions in either sections 129(5) or 129(6) of the Corporations Act 2001.

1.10.6.6

Examples of Execution with a Common Seal

Where documents are executed with a Common Seal, the following form of execution is suggested as applicable to most corporations. The persons signing should show the position they hold in the company and print their full name under their signature: The Common Seal of XYZ Co Pty Ltd was hereunto affixed in the presence of Signature of Director (Print Full Name) Director Signature of Director/Secretary (Print Full Name) Director/Secretary

Common Seal

The following form of execution is applicable to proprietary companies that have only one Director who is also the only Secretary of the company: The Common Seal of XYZ Co Pty Ltd was hereunto affixed in the presence of Signature (Print Full Name) Sole Director and Sole Secretary

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1.10.6.7

Examples of Execution without a Common Seal

Where documents are executed without a Common Seal, the persons signing should show the position they hold in the company and print their name under their signature: Executed by XYZ Co Pty Ltd ACN . . . . . . . . . . . . . . . Signature of Director (Print Full Name) Director Signature of Director/Secretary (Print Full Name) Director/Secretary The following form of execution is applicable to proprietary companies that have only one Director who is also the only Secretary of the company: Executed by XYZ Co Pty Ltd ACN . . . . . . . . . . . . . . . Signature of Director (Print Full Name) Sole Director and Sole Secretary

1.10.7

Execution by a Liquidator

A liquidator may be appointed by a resolution of a company (Voluntary Liquidation) or by a Court. Notice of such a resolution or decision must be registered in the Australian Securities & Investments Commission. In general terms the role of a liquidator is to collect and convert all the assets of a corporation and pay all the debts or an equal share of all the debts due to creditors. A liquidator does not have an interest or role in continuing the business of a corporation. Appointments made before introduction of the Corporations Law 1989 on 1 January, 1991 continue under the new legislation. The legal estate of real property owned by the company in liquidation remains with the company during the liquidation process in most occasions. A Court may, when making the appointment, also vest the assets (including real property) in the liquidator. Where this is done the liquidator must become the registered proprietor of the real property either by transfer or application, before dealing with it. A transfer or application vesting land in a liquidator, not followed by a further dealing, would be followed by a Registrar’s Caveat (see paragraph 4.1.10). As property usually remains vested in the company, although the liquidator has the power to sell the land as the agent of the company, a formal transfer must be made in the name of the company as transferor (in liquidation) and signed by using the Common Seal affixed by the liquidator. The company directors can also sign the transfer in the normal way using the Common Seal, but the consent of the liquidator must be endorsed on the transfer form. An instrument involving a corporation which is in liquidation should be drawn in the name of the corporation. The words in liquidation should not appear on the Seal, but should be shown in the document. Proof of appointment of the liquidator should be supplied in the form of a statutory declaration by the liquidator stating the facts, declaring that the appointment has not been terminated and producing a certified copy of the appointment as registered with the Australian Securities Investment Commission. The certified copy will be returned with the documents issuing on the completion of the dealing. The statutory declaration will be retained.

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A liquidator has power to sell the real estate of the corporation. The following form of execution is suggested: The Common Seal of Waal & Co Pty Ltd A.C.N. 123 456 789 was hereto affixed by (Name of Liquidator) its duly appointed liquidator

1.10.8

) Common Seal ) ) ) Signature of Liquidator

Execution by an Official Manager

In general terms an official manager is a person appointed by a creditor or creditors, to manage the affairs of a corporation, usually with the view of having it trade out of its debt. Most appointments are as receiver and manager. Appointments made before the introduction of the Corporations Law 1989 on 1 January, 1991 continue under the new legislation. Most financial agreements, whether intended for registration in the Torrens System, in a strict sequence of priorities or as a floating charge or debenture, empower the lender to appoint a person to be the (mortgagor) company’s receiver and manager at any time after the principal monies secured become payable. The appointment can be made either privately (out of the Courts) or by order of the Court. In each case notice of the appointment must be filed within a designated time in the Australian Securities & Investments Commission (ASIC). The primary powers of the appointed receiver/manager are those set out in the loan agreement (for private appointments) or those set out in the Court Order (for Court appointments). Supplementary powers are created in the legislation. With any instrument there should be produced a statutory declaration by the official manager stating the facts of the appointment, and that such appointment is still current, and the authority for the action taken by the registration of the instrument and producing: •

a certified copy issued by the Australian Securities and Investment Commission of the notice of appointment

•

a certified copy of the Debenture or Court Order that was the basis of the appointment and

•

such written consents as may be necessary to give effect to the sale.

The following form of execution is suggested: The Common Seal of Cole & Co Pty Ltd A.C.N. 123 456 789 was hereto affixed by (Name of official manager) its duly appointed Official Manager

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1.10.9

Execution by a Receiver

In general terms a receiver is a person appointed by a particular creditor to collect and convert the assets of a company to pay the debt due to that creditor. The appointment of a receiver does not necessarily result in the liquidation of the company. Appointments made before the introduction of the Corporations Law 1989 on 1 January, 1991 continue under the new legislation. Section 420(2) of the Corporations Act 2001 gives a receiver a wide range of powers to deal in the land of the corporation, subject to the terms of the Debenture or Court Order by which the appointment was made. The property owned by the corporation does not vest in the receiver but he or she becomes an Agent of the corporation with power to sell, mortgage, etc (subject to the conditions of appointment). The Corporations Act 2001 also gives the receiver the power to use the Common Seal of the corporation. On a transfer or other document dealing in the interests of the corporation, the document should be prepared in the name of the corporation and may be executed using the Common Seal of the corporation in the usual manner. If the receiver cannot obtain the co-operation of the Directors to attest the Common Seal or prefers to complete the transaction personally, a signed copy of the Debenture (or a copy of the Debenture certified correct by the Australian Securities & Investments Commissioner) may be lodged at Landgate as a power of attorney. To achieve registration the receiver must file a statutory declaration declaring that the appointment as receiver is still current. A certified copy of the certificate of appointment as receiver issued by the Australian Securities and Investment Commission must be annexed to the statutory declaration. The sealing clause of the company is then as follows: Signed by XYZ Co Pty Ltd A.C.N. 123 456 789 by (insert name) as Receiver Manager

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1.10.10 Execution by a Registered Friendly Society Section 15(4) of the Friendly Societies Act 1894 provided that all the property of a Society shall vest in the trustees of the Society for the time being. Section 16 of the Friendly Societies Act 1894 gave the trustees power to sell and mortgage land except land granted/transferred by the Crown for a specific purpose. A mortgage of such land required the consent of the Governor or Minister as the case may be in writing. A transfer and mortgage by the trustees of the Society required attestation by all the trustees of the Society and a discharge or partial discharge could be signed by the trustees or a majority of them. A recommended form of attestation was: Signed by the (Name of Society) by its Trustees (or by a majority of its Trustees) (Signature of Trustee) Name of Trustee (Signature of Trustee) Name of Trustee A certificate in the form of the Sixth Schedule to the above Act, under the hand of the Registrar of Cooperative and Financial Institutions of the names of the trustees of any Society or branch was sufficient evidence that the persons named are the trustees of that Society or branch. That certificate when registered at Landgate on payment of the required fee, remained in force until superseded by a later certificate. The certificate was numbered and recorded on the internal Landgate computer system and filed in the Legal Section. Any dealing by a Friendly Society could be referred to the Legal Section to check the correctness of the attestation by the trustees. A computer record of current certificates was maintained on the internal Landgate information system locally known as Ditbook. The Friendly Societies Act 1894 was repealed by the Friendly Societies (Western Australia) Act 1999, which in turn was repealed by the Acts Amendment and Repeal (Financial Sector Reform) Act 1999. Friendly Societies in Western Australia are now regulated by the Commonwealth and are now registered under the Corporations Act 2001 and regulated by the Australian Prudential Regulation Authority (APRA). As an example, the Trustees for the United Ancient Order of Druids is now the Druids Friendly Society Limited. Documents that are executed by Friendly Societies are now executed in the same manner as any other corporation (see paragraph 1.10.6 above).

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1.10.11 Execution by an Incorporated Association Associations of persons who are incorporated under the Associations Incorporation Act 1987 have all the powers of a natural person to deal in real property. The one exception is where land has been granted/transferred by the State of Western Australia to an association for a specified purpose. Such land may not be leased for more than 21 years or mortgaged without the written consent of the Governor or Minister as the case may be. The sealing clause, as laid down in the Articles of Association, should be used when an association executes an instrument creating or disposing of an interest in land. No declaration is required where the association is purchasing land or lodging a caveat. In order to identify the persons affixing the Association Seal the lodging party is required to produce with the instrument a statutory declaration by all the persons affixing the Seal certifying that at the time the Seal was affixed they were duly authorised to do so. An acceptable form of statutory declaration, which may be adapted to any particular case, is as follows: MODEL DECLARATION- INCORPORATED ASSOCIATIONS TRANSFER OF LAND ACT 1893 STATUTORY DECLARATION I/We (name address and occupation of person or persons making declaration) do jointly and severally, sincerely declare as follows: 1. I am/we are (one of) the persons authorised by Rule ...... of the Rules of (name of incorporated body) the Association to affix or countersign the affixing of the Common Seal of the Association to documents. 2. The Association is the transferor and (here insert name or names of purchaser) is/are the transferee/s in a transfer dated of all that piece of land comprised in Certificate/s of Title Volumes/s Folio/s. 3. At the time I/we affixed or countersigned the affixing of the Seal of the Association to the said transfer, I/we was/were duly authorised to do so and I/we signed in the capacity of ......./, ....... and ......... respectively of the Association. This declaration is true and I / we know that it is an offence to make a declaration knowing that it is false in a material particular. This declaration is made jointly and severally under the Oaths, Affidavits and Statutory Declarations Act 2005 at (place) on day of 20 bySignature of person making the declaration In the presence of – Signature of authorised witness (Print the full name, address and qualification below the signature of the authorised witness) Where two or more persons declare, then a separate attestation is required for each person.

1.10.12 Execution of Statutory Declarations Full information on the execution of statutory declarations is given in paragraphs 3.2.1 to 3.2.10 inclusive.

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1.10.13 Aboriginal and Torres Strait Islander Corporations The Corporations (Aboriginal and Torres Strait Islander) Act 2006 (a Commonwealth Act) provides for the incorporation of Aboriginal and Torres Strait Islander corporations. The Registrar of Aboriginal and Torres Strait Islander Corporations established by the Act is responsible for the registration of Aboriginal and Torres Strait Islander corporations and the maintenance of a public register.

1.10.13.1 Execution of documents A registered Aboriginal and Torres Strait Islander corporation is a body corporate with perpetual succession and may acquire and dispose of real property and sue and be sued in its corporate name specified in the certificate of registration. An Aboriginal and Torres Strait Islander corporation with a common seal may execute a document if the seal is affixed to the document and the fixing of the seal is witnessed by either: •

two (2) directors of the corporation

•

a director and a corporation secretary of the corporation or

•

for an Aboriginal and Torres Strait Islander corporation that has only one (1) director – that director.

An Aboriginal and Torres Strait Islander corporation may execute a document without using a common seal if the document is signed by either: •

two (2) directors of the corporation

•

a director and a corporation secretary (if any) of the corporation or

•

if the corporation has only one (1) director – that director.

An Aboriginal and Torres Strait Islander corporation may execute a document as a deed and is executed in the manner described above. The Corporations Act (Cwlth) arrangements and reconstructions provisions apply to Aboriginal and Torres Strait Islander corporations.

1.10.14 Execution by a foreign registered Corporation A foreign registered body or Corporation is a Corporation/Company that is not registered in Australia. Documents executed by foreign registered bodies will need to include a letter from a lawyer stating that the company is an overseas company and that they have signed the document in accordance with the laws relating to the jurisdiction of the country in which it is registered. Please be aware that if the execution of the document by authorised officers of the corporation requires a witness, then that witness must be an authorised witness under the provisions of Section 145 1(b) of the TLA. If the document is one that is subject to the VOI Practice, then the witness should be an Australian Consular Officer, unless the Registrar of Titles has accepted an alternative witness due to exceptional circumstances. Written requests to use an alternative witness overseas, should be emailed to [email protected] Evidence may be required verifying that the document has been executed correctly.

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Natural persons executing a real property document on behalf of a foreign registered corporation are required to be identified, if the document is subject to the VOI Practice. Please also refer to paragraph 14.4.4 for Verification of Identity requirements for applicable documents. The VOI Statement that accompanies documents executed by a foreign registered corporation may be made by the lawyer representing that foreign registered corporation in the particular transaction. That lawyer may be the in-house lawyer in the foreign registered corporation.

1.10.15 Execution of Electronic documents 1.10.15.1 Client Authorisation To transact electronically on behalf of a client it will be necessary to obtain written authority from your client i.e. Client Authority. The form and content of the Client Authority (CA) form can be found in the Model Participation Rules Schedule 4. The CA is in addition to the usual appointment to act or retainer agreement. The CA provides for instructions for a specific transaction, standing instructions for a time period or a batch of transactions. The CA was developed in conjunction with the Law Council of Australia (LCA) and the Australian Institute of Conveyancers (AIC). The CA authorises digital signing of documents by the Subscriber for the Client, lodgement of documents with Landgate and financial settlement. The CA must be signed by the Client before the Subscriber digitally signs documents for the Client. Where a person enters into the CA on behalf of the Client; for example, an authorised representative of a corporate client, the Subscriber must take reasonable steps to verify the authority of that person to sign the CA.

1.10.15.2 Verification of Identity (VOI) of Client At the time of entering into the CA the Subscriber must take reasonable steps to verify the identity of their client. For electronic transactions all clients will need to be identified. A Subscriber can determine what constitutes “reasonable steps” in the circumstances however, if a Subscriber complies with the Verification of Identity Standard, Schedule 8 in the Participation Rules, the Subscriber is deemed to have taken reasonable steps. A person providing an identifier declaration, used when the client isn’t able to provide documentary evidence of identity also needs to be identified. VOI is also required for each of the following circumstances: •

the Subscriber’s signers, before giving them a digital certificate;

•

where a Subscriber represents a mortgagee, the mortgagor (unless the mortgagee has already verified the identity of the mortgagor); and

•

a person to whom a duplicate certificate of title is handed, unless that person is another Subscriber

1.10.15.3 Client Entitled to Deal A Subscriber must also take reasonable steps to verify that its Client is entitled to enter into the conveyancing transaction referred to in the CA.

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1.10.15.4 Using Digital Signatures Documents prepared electronically are signed by the Subscriber on behalf of the Client using a digital signature. A Subscriber is liable for the use of digital certificates issued in the name of the Subscriber or at the request of the Subscriber to any person, like an employee. A document that is digitally signed binds the Subscriber and its Client and can be relied on by the Registrar of Titles and by other parties to a conveyancing transaction. Compliance by Subscribers with the obligations in the Participation Rules relating to system security and integrity are fundamental to the integrity of NEC. The consequences under the Participation Rules for non-compliance by a Subscriber include restriction, suspension or termination from use of the ELN. A Subscriber must: •

Take reasonable steps to comply with the ELN’s Security Policy, including security of digital certificates.

•

Ensure that only persons authorised by the Subscriber can access and use the ELN.

•

Ensure only those authorised to Sign for the Subscriber do so.

•

Take reasonable steps to ensure its Signers are persons of good character.

•

Revoke authority of those no longer authorised to sign or access the ELN.

•

Ensure information provided to any authority is correct.

•

Ensure Users are trained and

•

Take immediate action if a security item like a digital certificate has been compromised or used improperly, un-sign any affected document and notify the ELNO.

1.10.15.5 Certifications At the time of attaching a digital signature on behalf of a client, the Subscriber makes certain certifications. These certifications appear on the registry instrument and are set out in Schedule 3 of the Participation Rules. The certifications relate to: •

the taking of reasonable steps to verify a party's identity;

•

the holding of a Client Authorisation;

•

the retention of supporting evidence for the electronic document (including the CA; verification of identity documentation; documentation supporting authority to enter into the transaction. Documents or a copy to be retained for 7 years.);

•

the correctness of the instrument and compliance with Registrar’s requirements; and

•

verification of the identity of a mortgagor and the retention of a counterpart mortgage signed by the mortgagor

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1.10.15.6 False Certifications Section 214 of the TLA makes certain fraudulent acts an offence, including the giving of false information. As at 03 June 2014, section 214 (3)(b) states that making or giving a false certification is an offence. •

The penalty for an offence is imprisonment for 10 years and a fine of $100 000 (s.214(1)).

•

The summary conviction penalty for an offence is imprisonment for 3 years and a fine of $40 000 (s.214(1)).

•

Section 214(2) states that an offence under subsection (1) is a crime.

1.10.15.7 Supporting Evidence A Subscriber will be required to obtain any supporting evidence necessary for the transaction and to retain copies of the evidence for the required period of seven years. This will include the VOI documents, copies of marriage certificates etc. Unlike current paper lodgement practice, some types of supporting evidence will not be required to be lodged with Landgate for electronic transactions. Instead, the Registrar will rely on the certification given by the Subscriber in the electronic instrument that the supporting evidence for the transaction is held. In the future, the Registrar may adopt certifications for some supporting evidence for paper documents as well. The Registrar and the Commissioner will have the ability to set requirements for supporting evidence (for example, what must be obtained and retained by a Subscriber; what must be lodged; how supporting evidence can be submitted). Where supporting evidence is not required to be lodged, the Registrar and the Commissioner will have the power to call in that supporting evidence if it is considered necessary. If the supporting evidence is not provided within the specified time, the document can be rejected from registration. The Registrar and Commissioner will also be able to require a statutory declaration be provided to verify any matter.

1.10.16 Execution by Overseas Witness Where a Western Australian land transaction document is required to be witnessed and / or a person transacting in land needs identity documents certified outside Australia, an Australian Consular Officer can perform these functions (fees apply). The Australian Consular Officer will not sign an “Identifiers Certificate” or a “Statement” as to identity. The Australian Consular Officer will not advise the person transacting in land of the documents required to be sighted and certified; this is the responsibility of that person’s Australian representative, such as the Conveyancer/Lawyer/Mortgagee. The role of the Australian Consular Officer is to certify copies of identity documents or other land or property documents specified by an Australian professional responsible for the conduct of the transaction, and witness signing of the relevant land transaction document. In summary, the Australian Consular Officer will: •

Take reasonable steps to ensure that the person transacting in land is the person entitles to sign the land transaction document presented by sighting and certifying original identity documents;

•

Witness the person signing the land transaction document;

•

Endorse the and transaction documents as a witness; and

•

Not be a party to the transaction.

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This is not a change to the Western Australian Registrar and Commissioner of Titles Joint Practice: Verification of Identity. It merely clarifies the role of Australian Consular Officers with respect to verifying the identity of certain persons, and the witnessing of specified land transaction documents. It is important to note that for the purposes of implementation of the VOI Practice, ‘verification of identity’ and ‘witnessing’ are two separate processes and they need not occur at the same time. Witnessing of documents complements the VOI Practice. At the heart of the VOI Practice is verification of identity and authority to deal. Alternatives to witnessing overseas by an Australian Consular Officer are considered in individual cases where there are extenuating circumstances.

Exceptional or Extenuating Circumstances for Overseas Witnessing In exceptional or extenuating circumstances, an alternative witness within the meaning of Section 145 (1)(b) of the Transfer of Land Act 1893 (TLA) may be accepted. Travel alone or mere inconvenience is not considered as exceptional circumstances. There needs to be some other exceptional or unusual circumstances fully explained, such as, a person with a medical condition making it dangerous for them to travel, and defence personnel on active duty overseas. Requests seeking the approval to use an alternative witness must be made in advance and in writing by the Conveyancer / Lawyer / Mortgagee acting for the relevant party. The request must explain fully the extenuating circumstances and must be made prior to the execution (signing) and witnessing of the land transaction document. All such requests must identify the land by volume and folio number, the document type, as well as stating the name(s) of the relevant parties and settlement date. Written requests should be emailed to [email protected] Unless an exception is granted, Requisitions will issue on documents executed overseas, but not witnessed by an Australian Consular Officer. 

Note: The responsibility for the VOI Practice and to provide a VOI Statement with the relevant documents lies with the Conveyancer / Lawyer / Mortgagee regardless of who witnesses the document. VOI does not apply to Transferees named in Transfers. The Witness to a transferee signing overseas is set out in Section 145 (1) of the Transfer of Land Act 1893.

1.11

Capacity of Parties

1.11.1

Minors

Any person who is under the age of eighteen years is a minor and as such is incapable of dealing in real property. However a minor can become the registered proprietor of land. Section 59 of the TLA requires the Registrar to show the age of the minor on a certificate of title registered in the name of a minor. Where a minor is required to execute an instrument as accepting party, it is a matter of discretion as to whether such instrument can be signed by the minor or should be signed by a parent or guardian on the minor’s behalf. A Court Order is required, appointing a person to sign instruments under the Act, where it is necessary or desirable for a minor to sell or mortgage land (see s.82 of the Trustees Act 1962).

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The instruments are prepared in the name of the minor and executed by the person appointed in the Order. The Order must be produced when the instruments are lodged. A form of attestation suitable to such cases is: Signed by (Name of the Minor) by (his or her) guardian ad litem (Name of Guardian) in the presence of Witness (Full Name, Address and Occupation)

) ) ) (Signature of Guardian) )

To overcome this restriction, land held beneficially by a minor is frequently registered in the name of a trustee pursuant to a declaration of trust. In certain cases minors are given statutory power to deal with their real property. The Land Act 1933 (s.26 and 150) provided that a person over 16 years of age may select, acquire, transfer or hold and mortgage any land under the Land Act 1933. The TLA (s.81G) contains complementary provisions in respect of Crown leases registered under the TLA. 

Note: The LAA makes no specific provisions with regard to minors dealing in Crown land.

1.11.2

Partnerships

A partnership is not a separate legal entity and almost all dealings in land by a partnership must be carried out by listing the names of the individual partners and where appropriate, converting their share in the partnership to a like share of the interest shown in the document. A group of partners lending money as a mortgagee must show the individuals as mortgagees in the mortgagee panel, preferably with their shares also disclosed. The contractual part of the mortgage may, however, contain a reference to the partnership by its trading name. A caveat can also, after listing the members of a partnership by their individual names as caveators, show that they are operating as a partnership (by use of the trading name). Under the rules of the Court, Property (Seizure and Sale) Orders can be issued showing the creditor as a partnership. While there is no impediment to the lodgement of a writ or warrant of this nature, a subsequent withdrawal must be made collectively by the partners individually or a majority of them. At least one of the partners must provide with the withdrawal a statutory declaration setting out a list of the partners and recite the circumstances of repayment or satisfaction (or part satisfaction) of the writ or warrant.

1.12

Incapable Persons

1.12.1

Before 7 September 1990

Before the introduction of the GA Act (WA), the Supreme Court could declare a person incapable of managing his or her own affairs. The power to do so was contained in Part VI of the Mental Health Act 1962. The Court could appoint a person, the Public Trustee or a Trustee Company as manager of the estate of the incapable person (s.64). The Court could, by Order, authorise or direct the manager to exercise all or any of powers set out in s.68. Notwithstanding the introduction of the new legislation, actions commenced under the previous legislation and not then completed still continue under the previous legislation.

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1.12.2

After 7 September 1990

For actions commencing from 7 September, 1990 the Guardianship and Administration Board (the Board) may declare a person incapable of managing his or her own affairs. The Board may appoint a person or a Trustee Company as administrator of the estate of the incapable person (s.64). The Board may, by Order, either grant plenary powers or authorise or direct the administrator to exercise all or any of powers set out in Schedule 2 Part A of the Act. See also paragraph 5.2.1 for the powers of an attorney to deal with the real property of an incapable person. 

Note: On 4 May 2005 the State Administrative Tribunal (SAT) came into being and took over the judicial and adjudicative functions of the Board.

1.12.3

Dealings by a Manager or Administrator

An instrument must be drawn in the name of the incapable person and supported by the original copy from the office where it was issued or a Landgate Sighted copy of the Order under which the manager or administrator proposes to act. Care should be taken that the powers given by the Order are not exceeded and that the terms of the Order are strictly observed. Each instrument must be supported by a statutory declaration by the manager or administrator that the incapacity still existed, the incapable person was still alive and that the appointment had not been revoked, at the time of signing the instrument. The statutory declaration should be made within two (2) days of lodgement of the instrument at Landgate. A suitable form of attestation for instruments dealing with the estate of incapable person is: Signed by (name of manager) the Manager of (name of incapable person) pursuant to an Order of the Supreme Court of Western Australia made the (Date of Order) in the presence of

) )(Signature of Manager) ) ) ) )

Witness (Full Name, Address and Occupation) Signed by (name of administrator) the Administrator of (name of incapable person) pursuant to an order of the State Administrative Tribunal made the (Date of Order) in the presence of

) ) )(Signature of Administrator) ) ) )


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1.12.4

Dealings by the Protective Commissioner of New South Wales

The Protective Commissioner of New South Wales is an independent public official whose office is constituted under the Protected Estates Act 1983 (NSW) (the Act). This public official has responsibilities similar to that of the Guardianship and Administration Board in Western Australia. Under the Act, the Protective Commissioner is appointed to protect and administer the financial affairs and property of people unable to make financial decisions for themselves and where there is no other person suitable or able to assist. The office was established in 1985, forms part of the Human Rights Program of the New South Wales Attorney General’s Department, and provides a wide range of legal, technical, financial, specialist, disability and other services. It is required, by law, to make decisions that are in the best interests of the person whose affairs are under management, and decisions are guided by the principles set out under the Guardianship Act 1987 (NSW). The Office of the Protective Commissioner and the Office of the Public Guardian work in tandem, the Office of the Protective Commissioner deals with management of the financial and property interests of its clients, and the Office of the Public Guardian deals with personal and lifestyle issues. Although each agency is independent of the other, with separate staff and different legislation, the one person holds both positions of Protective Commissioner and Public Guardian.

1.12.4.1

Appointment

The Protective Commissioner may be appointed following an application for a financial management order. A financial management order is a legal decision to appoint the Protective Commissioner, or a private individual under the supervision of the Protective Commissioner, to manage someone’s affairs and is made by either the New South Wales Guardianship Tribunal, the Supreme Court Equity Division, or, in certain circumstances, a magistrate or the Mental Health Review Tribunal. Where the court appoints a private individual, the Protective Commissioner provides direction, supervision and support for the person so appointed.

1.12.4.2

Legislation

The Protective Commissioner may delegate all functions, other than the power of delegation, to any member of staff (s.5A and 5). Powers that the Protective Commissioner’s office can exercise over estates of protected persons is set out in s.24 of the Act. Section 24(3) limits the Protective Commissioner, with respect to the granting of leases, and no lease exceeding five years can be entered into without the direction of the Court. Section 26 of the Act gives the Commissioner the power to execute documents on behalf of the protected person. The management of an estate is terminated by a revocation order of the Court, where the person under guardianship has ceased to be a person under guardianship, or upon the death of the protected person.

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1.12.4.3

Reciprocating States under NSW legislation

Section 65 of the Act allows for reciprocating States to be recognized by notification in the Government Gazette. Western Australia has been declared a reciprocating State by NSW Government Gazette No. 99 of 10 June 1988 at page 3083. Under s.67 of the Act, where a protected person, under the New South Wales legislation, has property in a reciprocating State, the Protective Commissioner may authorize an officer charged by the laws of the reciprocating State with the care, recovery, collection, preservation and administration of the property of the incapable person to collect, recover, manage, sell or otherwise dispose of and administer that property in accordance with the law in force in the reciprocating State as if the protected person was resident in the reciprocating State. The Guardianship and Administration Act 1990 (WA) (GA Act) has similar provisions for reciprocal arrangements. No. 7 of 1996 provides that the Minister may, by notice published in gazette, declare any State to be a reciprocating State. The Guardianship and Administration Board has advised that Western Australia has recognized New South Wales under this reciprocal arrangement in Government Gazette, WA, 21 July 1998. As a result, an order, made in New South Wales by a New South Wales Court of competent jurisdiction, appointing the Protective Commissioner will be effective in Western Australia, as if the order were made by a Court of competent jurisdiction within Western Australia. There is no requirement for the Court order made in New South Wales to go through the formality of being placed before the Guardianship and Administration Board for approval before it can be effective in Western Australia.

1.12.4.4

Landgate’s requirements

The Protected Estates Act 1983 (NSW) allows for the appointment of both estate managers within the office of the Protective Commissioner as well as private individuals who are supervised in the management of estates, by the Protective Commissioner’s office. Therefore Landgate needs to ensure that the person signing any transfer, or other document, on behalf of a protected person in New South Wales, has the proper authority. Landgate will, in principle, recognize the authority of the Protective Commissioner or his delegate to execute transfer documents and other dealings relating to real estate within Western Australia on behalf of persons subject to a financial management order from the competent New South Wales jurisdiction which appoints the Protective Commissioner or his delegate to manage their affairs. Should the Protective Commissioner or his delegate, wish to lodge transfer documents, or other dealings, with Landgate under such an order, Landgate will require that he, or his delegate lodge, with the transfer document, or other dealing: •

the instrument which must be drawn in the name of the incapable person

•

a certified or sealed copy of the order under which the Protective Commissioner or his delegate was appointed

•

a certified copy of the power of delegation for the person signing on behalf of the incapable person

•

a copy of New South Wales Government Gazette No. 99 of 10 June 1988, page 3083, and a copy of the Government Gazette WA of 21 July 1998, page 3829, each of which formalize the reciprocal arrangement between the two States and

•

a statutory declaration in support, made by the Protective Commissioner or his delegate, setting out the background of the matter and stating that the incapacity still exists, the incapable person is still alive, that the appointment had not been revoked at the time of the signing of the instrument, and annexing the above documentation.

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The Protective Commissioner is incorporated as a corporation sole (s.5B(1)). The seal of the corporation sole is to be affixed to a document only in the presence of the Commissioner, Deputy Commissioner, or member of staff who holds a delegation with attestation by the signature of that person affixing the seal (s.5B(1)(2)). 

Note: Paragraph 1.12.3 sets out a similar procedure for dealings by a manager or administrator and provides an example of attestation of instruments which could be adapted where the Protective Commissioner was exercising his power to transfer property in Western Australia.

1.12.5

Power of the Public Trustee Where an Incapable Person is Domiciled in Other Jurisdictions

The provisions of s.31 of the Public Trustees Act 1941 (PTA) empowers the Public Trustee to execute documents on behalf of an incapable person domiciled outside Western Australia, provided that the WA Public Trustee has been given the necessary certificate (instrument in writing under seal) by the relevant authority in a State, or a Territory of the Commonwealth (including New Zealand) having jurisdiction over the incapable person. The certificate must authorise the WA Public Trustee to collect, manage, sell or otherwise dispose of or administer any property in Western Australia which the person named in the instrument is possessed of or is entitled to have an interest. The Public Trustee shall then have with respect to the property of the incapable person plenary functions within the meaning of s.71 of the G A Act as though such functions had been vested in him under s.69 of that Act. This certificate must be produced with any document lodged that is executed by the Public Trustee pursuant to s.31 of the PTA. The above mentioned provisions of the PTA were meant by parliament to operate in conjunction with the provisions of Division 3 of Part 6 of the GA Act which is broader in it’s application. Division 3 provides that inter-jurisdictional arrangements may be made between Western Australia and any other country and States and Territories of Australia in respect of administration orders. Administration orders that have been made in other jurisdictions may authorise the Public Trustee or a relevant official to administer Western Australian properties on behalf of the foreign administrator. It should be noted however that Division 3 of Part 6 of the GA Act has not yet come into operation, as the Minister, under the GA Act, has not yet published the required notices in the Government Gazette. If the provisions of Division 3 of Part 6 of the GA Act do come into effect, it will not abrogate the provisions of s.31 of the PTA. The provisions with regard to incapable persons under both these Acts can co-exit.

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1.13

Registration

1.13.1

Importance of Registration

1.13.1.1

Why the act of registration of an instrument is important

The Register is all important. It is the act of registration of instruments which effects changes to the Register. People who neglect or fail to register their interest in land place themselves in a situation where they may lose their entitlement to the land or have their priority affected by an earlier registration.

1.13.1.2

Letters of Explanation/Confirmation and Consent Letters

In principle, the Registrar of Titles expects that a conveyancer will submit the originals of any duly executed and witnessed letters that are required to support the registration of a title dealing. However, for letters that explain the inconsistency of signatures in a series of documents, the Registrar of Titles will accept at lodgement a copy of a faxed or emailed letter where it accompanies the relevant documents. In such a case, the Registrar of Titles reserves the right to requisition the document for more information when it is examined if it is considered necessary to do so. It is expected that large differences/discrepancies in signatures are quite rare and that letters of explanation will only be required in a very small proportion of dealings. While it is true that signatures by the same person vary occasionally and that comparing any two signatures made at a different place and time is generally an unreliable measure of potentially fraudulent activity, the Registrar of Titles cannot make a general undertaking to accept all differences and discrepancies between signatures purporting to be made by the same person. All other letters of explanation or confirmation presented at lodgement are required to be originally signed and witnessed letters. Consent letters presented at lodgement must also be originally signed and witnessed letters, except where the consent is from a mortgagee, in which case the signing section of the consent letter must include the full name and position of the person signing on behalf of the mortgagee and does not need to be witnessed.

Up to 25 September 2015 Recognising that the above provisions are a change in common practice, especially with respect to lodgement acceptability, the Registrar of Titles will accept at lodgement until Friday 25 September 2015 a copy of a faxed or emailed letter, or an original letter that has not been witnessed, where it accompanies the relevant documents for all letters of explanation.

From Tuesday 29 September 2015 As from Tuesday 29 September 2015, the only exception to the requirement for original letters will be letters that explain the inconsistency of signatures. All other letters must comply with the general provisions described above.

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1.13.2

Lodging Documents

1.13.2.1

The original of a document must be lodged with Landgate

The original of a document must be lodged with Landgate and as a general rule duplicate documents cannot be lodged along with it. However, the TLA does provide for the lodgement of Leases, SubLeases and Powers of Attorney in duplicate. Documents may be lodged in the Acceptance Sections of the Midland or Perth Offices between the hours of 8.30 am and 4.30 pm only. Before presenting the documents, the lodging party should be aware of the present state of the Register and also ensure that there are sufficient fees in hand and that the documents are: •

dated

•

stamped when required by the Office of State Revenue (Stamp Duties Division)

•

signed by the parties and correctly witnessed

•

arranged in the order in which they are to be registered

•

noted on the receipt panel of each document with the volume and folio reference or crown lease number of each certificate of title or crown lease produced with that document (but only on the first document where the documents all refer to the same land) and/or any evidence produced eg: deeds, statutory declarations, etc

•

accompanied by the relevant duplicate certificate of title (if any) or Crown lease or that arrangements have been made for its production.

Upon presentation of the document for registration, the lodging party should: •

complete the white form Lodging Instructions (LT1) to obtain a receipt for the documents lodged and the fees paid. This form is provided free of charge

•

ensure the precise instructions for the return of any duplicate titles and other items

•

present each document in its correct order for registration to the acceptance officer.\



Note: In those cases where: the duplicate certificate of title is required to be produced by the lodging party or the duplicate certificate of title is partially cancelled the customer has the option of simply lodging the documents or ensuring beforehand by enquiry at the Customer Centre, that the relevant duplicate title (if any) has been produced or is indeed partially cancelled. This check will eliminate the chance of receiving a requisition (and a request for a requisition fee) from the Document Examiner if the duplicate title has not been produced or is partially cancelled. The telephone number to ascertain the information is (08) 9273 7333.

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1.13.2.2

Lodgement Acceptability Check

All paper documents presented to Landgate undergo a Lodgement Acceptability Check (the LAC) prior to being accepted for lodgement. Documents are inspected by an Acceptance Officer who compares them to the requirements set out in the LAC. The LAC will review completeness or correctness of the following criteria: •

lodging party details

•

item received panel

•

Office of State Revenue stamping

•

document preparation

•

consideration panel

•

Verification of Identity (VOI)

•

fees

•

execution of documents including witnessing.

The checklist used in association with the LAC is available from the Landgate website with the two ‘Getting It Right’ guides to assist document preparing parties available at: http://www0.landgate.wa.gov.au/for-individuals/legislation-and-reform/practice-manuals The LAC was phased in from 20 July 2015 and fully implemented on 1 September 2015, documents that do not meet the improved LAC will not be accepted for lodgement. By minimising documents lodged with errors, Landgate is improving processing timeframes and reducing the likelihood that our customers will incur requisition fees. This approach is supported by legislation. The documents are then numbered and details of the transaction entered into Landgate’s New Land Registry (NLR) Platform. The lodgement of the document is completed by payment of the required fees. The receipted assessment carries the same number as the document in respect of which the fee was assessed and should be retained in case there is a subsequent need to check on the progress of that document as well as for accounting purposes. To create and lodge documents Electronically, please see paragraph 1.13.15 or contact the relevant ELNO.

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1.13.2.3

Joint Lodgements

Before 1 September 2015 Joint lodgement of documents occurred when two or more participating parties jointly presented their separate documents to form part of the one case. Each party to the case made payment for the documents they personally lodged and received their own (separate) receipt. Recent statistics have shown that less than two per cent of all documents lodged over the last financial year formed part of a joint lodgement.

From 1 September 2015 joint lodgement of documents will no longer be available. Documents that form part of a case will need to be lodged by the one lodging party who pays the registration fees for all the documents and is issued with one receipt that covers all the documents. Most documents that form part of a case are already being lodged by the one lodging party (eg a bank who is lodging a mortgage to follow a transfer of land document). In the situations where several lodging parties want their documents over the same title to be processed together but wish to lodge and pay for their documents separately, the Registrar of Titles has approved the following procedure that will achieve an outcome similar to joint lodgement: 1.

All lodging parties wanting to lodge documents over the same title(s) as part of a single series need to liaise together and mark each document, in the bottom right hand corner of the lodging panel to indicate the order eg 1/3, 2/3, 3/3.

2.

They are all to line up at the same Document Lodgement queue at a Landgate counter in the order they have agreed upon in Step 1 and as marked on the documents. Follower letters, where relevant, will not be required if this step is followed.

3.

Landgate will lodge and receipt each document separately and the documents will undergo the usual internal processing path.

The procedures outlined above will not require any changes to the way Customer Service employees lodge documents. However they will place lodgement receipts in specified issuing boxes on request. The individual lodging parties do not need to inform Customer Service employees of their intention to lodge a series of documents to be processed together. The Registration System will identify all of the unregistered documents that have been lodged against the same title at the examination stage. The document examination process will amalgamate all of the documents numbered as part of a series and process them altogether. If any document in the series is requisitioned, the lodging parties of the other documents in that series will also receive a requisition notice.

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1.13.3

Lodgement by Post

Documents may be lodged for registration by post. Documents addressed directly to the Document Lodgement Section will be sorted and directed immediately to the appropriate section, ensuring that they will get the highest possible time clock priority. Documents should be addressed: Landgate Document Lodgement Section P O Box 2222 MIDLAND WA 6936 Each document or series of documents must be accompanied by a letter requesting registration and enclosing the prescribed fee. 

Note: Duplicate Certificates of Title and original evidence being returned by post will be posted in the normal mail. If you wish to have the duplicate title and/or original evidence returned by registered post, you will need to provide a self-address registered post envelope to Landgate when lodging the document.

1.13.4

Order of Registration

Documents are normally registered in the following order: •

documents removing encumbrances

•

documents effecting changes in the proprietorship of land and

•

documents encumbering the interest of the new registered proprietor.

Within that framework documents are registered in the order which gives effect to the intention of the parties. Where two documents are lodged and some doubt as to priority arises, eg: a discharge and a transfer followed by two mortgages, the lodging party must determine the priority of the mortgages by endorsing in the encumbrance panel of the mortgage intended to be second in priority, details of the parties, the date and amount of the mortgage to be first in priority. The Registrar will register an instrument presented for registration in the order, and from the time, of its presentation. Instruments purporting to affect the same estate or interest have priority as between each other according to the time of registration. (s.53 of the TLA). 

Note: Electronically lodged documents will be registered in the order listed on the Lodgement Instruction Sheet (LIS).

1.13.5

Payment of Fees

The Registrar may demand the fees prescribed (s.191 of the TLA). Fees payable in accordance with the Scale of Fees published in the Government Gazette from time to time must be paid on the day of presentation of the document for registration. Documents on which the fees have not been paid will be rejected and lose their priority. Click on this link for a list of the current search and lodgement fees.

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1.13.6

Priority of Registration

Priority of registration is achieved by the Registrar noting the day and hour when each document is presented for registration on the memorandum endorsed on the paper folium in the Register and on the face of the instrument itself. In the case a digital title under SmartRegister, only the date of Registration appears on the Record of Certificate of Title. In practice each document is allocated a label printed with the document number, date, time lodged, fees and it is this action which establishes the time of registration. Priority is lost when: •

the instrument is rejected under s.192 of the TLA or

•

the instrument is withdrawn from registration at the written request of the lodging party (see paragraph 1.14.6).

All documents are numbered consecutively and the number is used as an identifier for recording purposes. The number, in conjunction with the time and date lodged, establishes the priority of the instruments.

1.13.7

Priority of Registration - Computer Failure

The priority of a document is currently established by the electronic recording of the date and time. When the computer system which allocates the number, date and time fails, no documents will be accepted for registration. The only exceptions to this rule are documents that were taken over the counter prior to the instruction from the Manager of Registrations Branch to stop processing documents (i.e. bulk lodgements by banks). As one component of the system issues numbers for lodgements in the Perth Office (Cloisters) and at the Landgate building in Midland, if lodgement ceases in one centre, it will also cease in the others. When the computer systems become operational once again, documents will be registered in the usual way. Notices setting out these arrangements will be clearly displayed on the acceptance counters at the time of any computer failure.

1.13.8

Computer Record - Unregistered Dealings

A computer record of dealings in the process of registration is kept and is used to locate any such dealings required for search purposes. The record also prevents Landgate from issuing to the public an outdated photocopy search of the relevant title. Access to the system and the information on it is available to members of the public who are enrolled as customers on the Remote Searching System. There is no charge for the information. A manually produced photocopy of the documents in the process of being registered may be obtained by arrangement with the Customer Centre (see paragraph 1.4.8). 

Note: In the case of a digital title under SmartRegister, the Record of Certificate of Title (title search) has a section called Notes that contains information about any unregistered documents lodged against that particular piece of land see paragraph 1.3.4.

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1.13.9

Followers

Follower is the term used to denote documents lodged for registration, which follow documents previously lodged but which have not yet been registered. The primary documents lodged are referred to as leaders. The Follower documents may lodged upon confirmation by Landgate to ensure that the leader dealing is still currently under the registration process. They must be accompanied by a letter requesting the Registrar to register the follower dealing using the duplicate title produced (if any) in the leader dealing. The computer records the fact that there is a follower dealing in the system and issues a warning to the Titles staff of the existence of the follower when the leader dealing is completed. The documents are accepted for registration in the normal manner with a card attached identifying the leader dealing number. The leader and the follower dealings are amalgamated (where possible) and passed to an Examination Group for processing.

1.13.10 Amendment of Documents Before Lodgement An omission or error in a document noticed before it is lodged should be corrected and the correction authenticated by the party to the document affected by the correction. These amendments can also (in most cases) be made by solicitors and settlement agents acting on behalf of their clients. In this case the amendments made are to be verified by a statement on either the face or back of the document or in an accompanying letter on a letterhead in the following form: I . . . (insert full name) . . . am the (solicitor / settlement agent) for the transferee / transferor / etc.). I have made or authorised and I have authority to make and to authorise on behalf of such person(s) the amendments(s) (hereon / on the reverse hereof) countersigned by me. Signed: . . . . . . . . . . . . . . . . . Witnessed: . . . . . . . . . . . . . . . . . . . . Dated: . . . . . . . . . . . . . .

1.13.11 Amendment of Documents After Lodgement After a document has been lodged but not yet registered, minor alterations to the document, not being matters of substance affecting the intention of the parties, can be made (at the discretion of the Registrar) on receipt of a request in writing, detailing the alteration to be made. Written requests to amend will be accepted if the letter of request names the person(s) for whom the author of the letter is acting (who must be the person(s) detrimentally affected by the amendment) and certifies that the authority to make the amendment has been obtained. Such letters will only be accepted from: •

A solicitor or firm of solicitors, in which case the request must be on letterhead paper and signed by the solicitor or a principal of the firm.

•

A settlement agent, in which case the request must be on letterhead paper and signed by a principal of the firm.

•

A bank or a trustee company on its official stationery and signed by a manager or a nominated senior securities officer.

A private person who is personally affected by the required amendment may also by letter, request the amendment of a document. The format and content of this letter is contained in paragraph 1.14.5.

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Written requests to amend will not be accepted from the party lodging the document where the lodging party is: •

an estate agent or a firm of estate agents or

•

a private person who is not personally affected by the required amendment.

In these cases the request to amend must be signed by the party to the instrument affected by the required amendment.

1.13.12 Patent Errors The Registrar is empowered to correct patent errors in instruments after they have been lodged for registration. To make a correction the offending words or figures are ruled through so as not to obscure the original words or figures and the correct words or figures are substituted (s.189 of the TLA).

1.13.13 Fast Track (Priority) Processing of Documents Before 1 September 2015 Once a document was lodged for registration it usually took a week or so (depending on backlogs) before it was examined and processed. It was possible to have some types of land transaction documents Fast Tracked upon the payment of a Fast Track (priority) processing fee.

From 1 September 2015 The ‘user pays’ Fast Track service will no longer be required. Landgate’s modernised systems and processes are enabling improved processing times for this same set of documents as standard.

1.13.14 Requests to Expedite the Processing of Plans and Documents Landgate has had a long standing policy where customers or their representatives could request the expedition of a survey plan and/or document provided the request was supported by evidence of: •

a pending settlement (e.g. a signed offer of acceptance) or

•

a written submission clearly identifying the circumstances for the request (e.g. financial hardship).

A Request to Expedite the Processing of Plans and Documents Policy has been developed and replaces all existing policies and is designed to provide fairness and equity to all parties while enabling decisions relating to the expedition of survey plans and documents to be made in an accountable and transparent manner.

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1.13.14.1 Policy for Expediting Plans and Documents The new policy specifies the following: 1.

All requests for priority must be made in writing (including by facsimile or email) addressed to the Registrar of Titles.

2.

Priority for the processing of documents or plans may be approved by the Registrar or a delegated officer of the Registrar in circumstances where: (i)

the written consent of all parties that have a direct interest in the dealing is obtained and

(ii)

it is demonstrated that: (a)

a party to the dealing will experience financial hardship if the documents or plans are dealt with in Landgate’s standard turnaround times

or (b) 3.

the contract/s specify a definitive settlement date.

For all requests to expedite documents or plans the following evidence requirements apply: (i)

a detailed written explanation as to the circumstances of the matter and

(ii)



a signed letter of consent from each party that has a direct interest in the dealing.

Note The evidence provided for expediting a survey plan will also be sufficient evidence to give priority to the issue of new titles.

1.13.14.2 Additional Evidence In Support of Request to Expedite The following additional evidence is also required dependent upon the basis for the request: Financial Hardship •

Any evidence that may substantiate a claim of financial hardship including copies from financial institutions (which may take the form of an original, photocopy or facsimile copy of a letter on the financial institutions letterhead). and/or

•

An original statutory declaration from the person making the request (a photocopy or facsimile copy of a statutory declaration will be accepted with the request to expedite the processing of plans and documents but the original signed declaration must be forwarded to Landgate within 2 working days). Any statutory declaration made must clearly set out the reasons for and the details of the financial hardship.

Definitive Settlement Date A certified copy of the “offer of acceptance” clearly showing the definitive settlement date, which may include a copy of the signed application for the issue of new titles in relation to a survey plan (the offer and acceptance can be certified by a person eligible to witness a statutory declaration in Western Australia). All enquiries relating to the new “Requests To Expedite The Processing of Plans and Documents Policy” should be directed to Customer Service on (08) 9273 7373.

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1.13.15 Lodging of Electronic documents The implementation of NECS through the ELN has now created the ability to lodge Electronic documents. Approved Subscribers will be able to conduct conveyancing transactions through the ELN. To become a Subscriber and for information on how to prepare Electronic documents, please contact [email protected] or phone 1300 084 515. The following services will be provided to the ELN workspace by Landgate to enable the completion and lodgement of electronic instruments: 1.

Land Title Reference Verification (LRV) - When commencing an electronic transaction the Subscriber will be able to check whether the title or titles to be dealt on are able to be processed electronically. Once the title details are entered into the ELN a request will be made for Landgate to verify that firstly, the title is valid and secondly, that it can be transacted on electronically. Where there is more than one title in the transaction all titles must be capable of being processed electronically. If this is not the case then the transaction will not be able to be processed via ELN and paper lodgement will be necessary.

2.

Registry Information Supply (RIS) - Once the land title/s suitability for electronic transacting has been confirmed, the ELN will request a RIS. The data supplied by Landgate to the ELN in response to this request will be sufficient to enable completion of all instrument types that are able to be lodged via the ELN. The RIS will also include details of any activity on the title/s for the last 60 days.

3.

Title Activity Check (TAC) - The TAC service checks with Landgate for any changes to the registry information initially supplied to the ELN workspace. This service is to be used as required for due diligence purposes by participating Subscribers to ascertain whether there has been any change to the land title information. Multiple TACs may be requested during the life of the workspace. TACs will be triggered automatically by the system or requested manually by a Subscriber.



Note: The RIS and TAC services do not remove any regulated requirement to conduct appropriate land title search/s on behalf of your client.

4.

Lodgement Verification (LV) - The objective of this service is to request Landgate to validate that a given Lodgement Case is acceptable for Lodgement. This service is invoked automatically by the ELN when:

5.

o

All documents in the Lodgement Case (the Lodgement Instructions, all Registry Documents or Administrative Notices) have been prepared, are complete, but not yet necessarily certified or signed;

o

All documents in the Lodgement Case have been certified and signed by all the relevant Subscribers; and

o

In a Lodgement Case involving Settlement, when a Title Activity Response Indicator of “Yes” is returned from the Title Activity Check in the pre-Settlement Title Activity Check. i.e. one hour prior to settlement

Lodgement Verification Status (LVS) - This service provides a means for Landgate to communicate back to the originating ELN workspace the status of a Lodgement Verification request. Upon receipt of a Lodgement Verification Request Landgate will complete verification of all documents in the Lodgement Case against the relevant jurisdictional Business Rules and confirm the acceptability of the Lodgement Case for Lodgement. Landgate will compile the Lodgement Verification Compliance Report, Lodgement Fee Estimate and send the Lodgement Verification Status Advice to the ELN.

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If the Lodgement Case: o

passes verification, Landgate returns a successful Lodgement Verification Compliance Report (Compliance indicator = “Yes”) that includes warning and information messages (in natural language).

o

fails verification, Landgate will return an unsuccessful Lodgement Verification Compliance Report (Compliance indicator = “No”) that includes error and warning messages (in natural language) detailing required documents missing from the Lodgement Case, documents in the Lodgement Case which failed verification and reason(s) why identified documents are not eligible for Lodgement.

Some examples of critical errors which would result in documents being unacceptable for lodgement include but are not limited to: o

the land title is not current,

o

the land title is not valid,

o

incorrect fees paid,

o

Digital signature is missing,

o

Subscriber organisation in the Digital signature does not match Execution,

o

Subscriber does not exist etc.

A title status can change from able to be dealt with electronically to unable to be dealt with electronically during the life of the workspace. Subscribers should investigate any returned warnings and take appropriate action as required. 6.

Lodgement (L) - This service provides a means for the ELN to submit a Lodgement Case for Lodgement with Landgate.

7.

Lodgement Case Status (LCS) - This service provides a means for Landgate to communicate back to the originating ELN workspace the status of a Lodgement Case. Notwithstanding prior successful Lodgement Verification, Landgate may or may not accept a Lodgement Case for Lodgement. The Lodgement Case Status returns the status of the case (Not Accepted, Lodged, Completed) and details of the status of each document in the case (Lodged, Registered, Rejected, Withdrawn).

1.14

Stopped Documents

1.14.1

General

All land transaction documents lodged at Landgate are examined by Registration Officers before they are registered. If a lodged document is found to be erroneous or defective, it will need to be fixed before it can be registered. A document in this situation is known as a Stopped Document.

1.14.2

Power to Require Amendments

The Registrar is empowered to require the lodging party to have the error or defect in a document amended. A Requisition Notice is issued for documents that are stopped (see Chapter 1.14.3 below). When a Requisition Notice is sent out, a requisition fee is levied in those cases where the requisition arises from a mistake that is clearly a matter of fact. Where the Registrar issues a requisition to clarify the intention of a document no requisition fee is levied.

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1.14.3

Requisition Notices

When a document is stopped a Requisition Notice is faxed or posted to the lodging party and preparing party to specify exactly what is wrong with the documents(s). Depending on the type of document that is stopped, a Requisition Notice will be issued under either s.137 or s.192 of the TLA.

1.14.3.1

Under Section 137 of the TLA

If a stopped document is a caveat that needs to be supported by a statutory declaration, a Requisition Notice under s.137 of the TLA will be sent out giving the lodging party 7 days to satisfy the requisition. If the statutory declaration is not filed within the 7 day time period the caveat will automatically become null and void. 

Note: The Registrar of Titles is not able to grant an extension of time for a Requisition Notices issued under s.137.

1.14.3.2

Under Section 192 of the TLA

Before 1 September 2015 For all land transaction documents, with the exception of caveats requiring a statutory declaration (see above), a Requisition Notice under s.192 of the TLA will be sent out giving the lodging party 14 days to satisfy the requisition. If the requisition has not been satisfied within the 14 days, Landgate will then send a Requisition Warning Notice, informing the lodging party that the Registrar is allowing a further 2 days to comply with the requisition after which the document will be rejected (see paragraph 1.14.7).

From 1 September 2015 For all land transaction documents, with the exception of caveats requiring a statutory declaration (see above), a Requisition Notice under s.192 of the TLA will be sent out to the lodging party giving 21 days to satisfy the requisition. If the requisition has not been satisfied within the 21 day period, Landgate will then send a Requisition Warning Notice informing the lodging party and all the preparing parties of documents in the case being requisitioned that the Registrar is allowing a further two days to comply with the requisition after which the document will be rejected (see paragraph 1.14.7). 

Note: The Registrar of Titles is able to grant an extension of time for a Requisitions Notice issued under s.192 of the TLA). Requests for an extension of time must be submitted in writing and will only be granted in the most exceptional circumstances.

The above provisions will remain in place until the requisitions process is reviewed - expected in the first quarter of 2016. Information about any such changes will be communicated through the usual channels and after further consultation with affected stakeholders.

1.14.3.3

Role of the lodging party

Under section 192B of the TLA, the lodging party has certain responsibilities that the Registrar of Titles is entitled to assume. This includes receiving Requisition Notices. Consequently, the lodging party is expected to communicate with the relevant preparing party or other party responsible for the matters addressed in Requisition Notices. Preparing and responsible parties are able to then deal directly with Landgate to rectify the documents and pay the requisition fees.

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Consequently, the expected usual communication channels will be as follows: 1.

Landgate sends Requisition Notice to lodging party only.

2.

Lodging party attends to the requisition if it is responsible for the required fixes.

3.

Lodging party forwards the Requisition Notice to the preparing party or other relevant party responsible for the required fixes.

4.

The relevant party responsible for the required fixes engages directly with Landgate to rectify the documents and pay the requisition fees.

1.14.4

Uplifting Requisitioned (Stopped) Documents

Sometimes it is not possible to fix a document by sending Landgate a letter requesting an amendment. For example a document may need to be executed by one of the parties. In this circumstance it is possible for the lodging party to uplift the defective document and take it away to have it fixed. To uplift a document that has been stopped the lodging party must make a request in writing to the Registrar of Titles. A photocopy of the document is made and the original is handed to the lodging party to be fixed. A period of 72 hours is usually given to fix and return a document. If an uplifted document is not returned within the time frame given, it may be rejected.

1.14.4.1

Uplifting

Documents requiring uplifting may be collected at: •

Midland office (in person or by courier) or

•

Posted to lodging party or authorised person.



Note: Documents cannot be uplifted via the Perth (Cloisters) office.

Request to uplift documents must: •

be on a company letterhead

•

signed personally by the principal or an authorised person of the lodging party

•

contain document reference number and name of the Landgate document Examiner and

•

identify the person uplifting the document, if a courier company the name of the courier company.

To ensure that the documents that are to be collected in person or by courier are correctly prepared for collection, a faxed copy of the uplift authority letter should be sent to the document Examiner at least one (1) day before collecting the uplifted documents. To assist the courier company when they collect the documents please provide them with the full details of the documents to be collected (i.e. document number, examiners’ name and telephone number). The person who authorises the uplifting of the document(s) must take full responsibility for the return of the document to Landgate within three working days (72 hours). Documents not returned within three working days (72 hours) may be rejected.

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1.14.4.2

Returning Uplifted Documents

Uplifted documents can be returned to Landgate: •

by post to the Midland office or

•

by hand (in person) at Midland or Perth (Cloisters) offices.

Corrected documents should be placed inside a sealed envelope addressed to the Landgate Examiner by name, including the examination group number and document number. Conveyancers should advise the Landgate document Examiner when returning documents via the Perth (Cloisters) office, as in most instances the documents will not reach the Examiner until the next working day.

1.14.5

Fixing Stopped Documents

Where requisitions are raised by Landgate on documents lodged for registration and amendments are required to those documents, such amendments must be authorised. The most emphatic authorisation is the initials of the parties to that document and their witnesses. However, Landgate will also accept letters authorising the Registrar to amend the document on behalf of the parties to the document. Such letters may come from either the party or parties affected by the amendment, or the solicitor or settlement agent acting on behalf of and authorised by the party affected. Letters requesting amendments should contain the following information: •

Details of the document to be amended

•

State the authority under which the request is made and

•

Clearly express the amendment to be made.

Where the request is made by a solicitor or settlement agent acting on behalf of their client, the request is to be made on a letter head and is to addressed to the Registrar of Titles. The letter is to be in the following form: I . . . (insert full name) . . . am the (solicitor / settlement agent) for the transferee / transferor / etc). I have made or authorised and I have authority to make and to authorise on behalf of such person(s) the amendments(s) (hereon / on the reverse hereof) countersigned by me. Signed: . . . . . . . . . . . . . . . . . Witnessed: . . . . . . . . . . . . . . . . . . . . Dated: . . . . . . . . . . . . . .

1.14.6

Withdrawal of Documents from Registration

Before 1 September 2015 If, within the time allowed for correction of an error in a document, the lodging party by written request, withdraws the document from registration the document will be returned and a fee per document retained. In order to retain continuity in the filing system, the covers of documents rejected or withdrawn are photocopied and the copy filed in place of the original document so rejected or withdrawn. Records of the requisitions made, the action taken by the parties (or lack of it) and financial details of the partial fee refund, are also made.

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From 1 September 2015 Landgate will no longer return case documentation to the lodging party, but a lodging party can request that a document that is to be withdrawn from registration be returned to them. Where the parties to a transaction wish to withdraw from registration a perfectly correct document, the letter from the lodging party requesting withdrawal from registration must give an acceptable reason. Letters requesting the withdrawal must also be signed by all parties to the document and by all parties that could be affected by withdrawal of the document. For example, in the case of a discharge of mortgage, letters to withdraw would need to come from the Lodging Party, the Mortgagee and the Registered Proprietors.

1.14.7

Rejection of Documents

Before 1 September 2015 Where an erroneous or defective instrument had not been corrected within the time allowed, the Registrar may reject the instrument and 75% of the fees paid are forfeited as a penalty (s.192 of the TLA). The rejected documents were returned to the lodging party upon payment of requisition fees.

From 1 September 2015 Landgate will no longer return case documentation to the lodging party, but when a document is rejected the lodging party can request, in writing, that the original document be returned to them.

1.15

Rectification in the Register and on Instruments (after Registration)

1.15.1

General

Under s.188 (2) of the TLA the Commissioner of Titles may direct the Registrar of Titles to correct an error made in the Register (including graphics associated with the certificate of title) or on entries made on Duplicate paper Titles or Instruments. These are errors or omissions identified or detected after the registration of an instrument or other dealing. On a paper title (including the duplicate title), critical errors amended by direction of the Commissioner and minor or simple clerical errors amended by Assistant Registrars of Title are made by merely striking through the error and adding the correct or omitted information. Under SmartRegister however, all changes to a digital title must be effected by the lodgement of a document. Sundry Document type XA has been developed to facilitate the rectification of all errors and/or omissions that occur in the case of a Digital title. Rectification of an error or omission on a Digital title will create (by using the Sundry Document) a new version of the Register and if the duplicate title has been produced, a new edition of that duplicate will be created. If the duplicate title has not been produced, any statement made on the Title Record will be identified by an asterisk (*) that will immediately precede the statement. This will indicate that the statement is not in the current Edition of the duplicate certificate of title. Where an error or omission requires rectification in an instrument (but does not effect a change on the current status of a digital title) Sundry Document type XE is to be used for directions to amend and by Assistant Registrar’s. Sundry Document type XE enables registration of the rectification in the Historical Database without affecting the current status of the digital title for the land.

1.15.2

Street Address and Local Government Statements

Street address and Local Government statements contained on a digital title are held in separate databases from SmartRegister. The digital title is populated with this information from databases under the responsibility of Location Products and Services and Registrations respectively. Any rectification of an error or omission in these databases can only occur, after investigation by officers within those business units.

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1.16

Issue of Instruments after Registration

1.16.1

General

Documents of which there is only one copy, eg: transfers and discharges of mortgages, are retained by Landgate. The duplicate certificate of title (if any), Crown lease under the Land Act 1933 or leases of Crown Land under the LAA and duplicate copies of any other document are returned to the lodging party through a system of issuing boxes similar to Post Office Boxes. Regular customers are allocated a numbered box in the Perth and Midland Offices and issued a key to it. Documents to issue to private customers are held in a series of alphabetically labelled boxes under staff supervision for collection by the customer. The customer must produce either the document receipt or some other form of proof of identity such as a driver’s licence before the documents are handed over. A computer record of the party receiving the document is maintained, (see paragraph 1.16.2 below). Where the documents are to issue to a person other than the person designated at the time of lodgement, an authority is required signed by the person entitled to receive the document or certificate giving specific instructions as to delivery. Documents and certificates may be issued by ordinary mail if a request is made at the time the document is lodged. A full postal address for the addressee must be supplied.

1.16.2

Issuing Receipts

1.16.2.1

1897 to 1963

In the period 1897 to December, 1963 whenever a duplicate title was issued a receipt number was written on the original title on the front top left hand corner. If the duplicate title was issued more than once over a series of years a new number was added each time. The numbers consisted of a number and year, eg: 1234/45. Receipt books completed in the receipt number order are still held by Landgate in a secondary storage warehouse and access to the books or the information can be arranged by contact with the Land Registration Centre in the Landgate building in Midland or by telephone on (08) 9273 7314.

1.16.2.2

1964 to 1969

In the period 1964 to 1969 at the completion of the registration of a document a receipt number was stamped on the front of it (the document) to create a record of the issuing of the title. Receipt books completed in the receipt order number are still held by Landgate in secondary storage warehouse and a microfilm copy of the books is also kept. A print of the information can be obtained by arrangement with the Land Registration Centre.

1.16.2.3

1970 to 30 April 1984

In the period 1970 to 30 April, 1984 a separate issuing card was created for each duplicate title issued (and other items such as Grants of Probate and duplicate documents). The cards were allocated the same number as the number of the document with which the duplicate title was produced and microfilm records were made of the cards and the cards destroyed. A print of the information held on microfiche can be obtained by arrangement with the Land Registration Centre.

1.16.2.4

1 May 1984 to 22 March 1992

In the period 1 May, 1984 to 22 March, 1992 a separate issuing card was created for each duplicate title (and other items) issued. Issuing cards for items issued between this period of time were not microfilmed. After a period (usually 12 months) the cards were destroyed and the titles are deemed to have been issued in accordance with the issuing instructions made on the document at the time of lodgement.

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1.16.2.5

23 March 1992 to 13 August 1993

In the period 23 March, 1992 to 13 August, 1993 a separate issuing card was created for each duplicate title (and other items) issued. The cards were allocated the same number as the number of the document with which the duplicate was produced and microfilm records were made of the cards and the cards destroyed. A print of the information held on microfiche can be obtained by arrangement with the Land Registration Centre.

1.16.2.6

14 August 1993 to 22 October 1993

In the period 14 August, 1993 to 22 October, 1993 no separate issuing records were created and duplicate titles (and other items) issued are deemed to have been issued in accordance with the issuing instructions made on the document at the time of lodgement.

1.16.2.7

25 October 1993 to 17 January 1995

From 25 October, 1993 to 17 January, 1995 at the completion of the registration of a document a record was made of the issuing party to whom the duplicate title was issued. The duplicate title and a computer record printout showing the title number and recipient was placed in the appropriate customer’s locked issuing box. If the customer collected the document from the box and left the Landgate premises without reference to the staff, the duplicate title was deemed to have been issued in accordance with the computer record. Access to the information held on record can be arranged by contact with the Land Registration Centre in the Landgate building in Midland or by telephone on (08) 9273 7314.

1.16.2.8

18 January 1995 to present

On 18 January, 1995 the present Document Issuing System (DIS) was introduced. The main features of the new system are: •

a computer record of all items issued back to the Client from 18 January, 1995;

•

the production of Issuing Lists for signing by the Client detailing any items which have been collected ; and

•

free on-line enquiry facilities for My Landgate subscribers.

The Issuing Lists are uniquely numbered and produced in duplicate. Both copies of the Issuing List are placed in the Client’s issuing box with the items being issued. Clients are required to check that the items noted on the Issuing List have been received, then sign and date the Landgate copy and place it in the collection box located at the Issuing Counter. The Client retains their copy of the Issuing List for their records. All Landgate copies of the Issuing Lists, signed and returned by the Client are then flagged on the computer system to verify that Clients have taken possession of the issuing items.

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1.17

Service of Court Orders upon the Registrar

1.17.1

General

Where a Court Order affects land, the Registrar of Titles should be joined as a party to the action. Court Orders must be served on the Registrar at Landgate’s Midland office in accordance with the Rules of the Supreme Court. The sealed copy of any Court Orders must be sighted by a responsible officer in the Title Dealings Section of Landgate at the time of service. Court Orders that are faxed to Landgate do not constitute proper service upon the Registrar, unless the order itself specifically authorises service by facsimile to the Complex Dealings Section at Landgate and quotes the relevant fax number.

1.17.2

Registrar’s Packets

A Registrar’s Packet is an administrative mechanism that enables the Registrar of Titles to remove a paper certificate of title from the normal storage area to ensure that documents lodged in respect of that certificate of title are carefully considered by one of Landgate’s legal officers prior to registration. In the case a digital title, the title cannot be physically removed from file and held inside the Registrar’s Packet. These titles are merely marked subject to the Registrar’s packet and will result in a search of the Register watermarked with Subject to Dealing or Other Action. Registrar’s Packets involving digital titles are created by Sundry Document type XP. The most common reasons for creating a Registrar’s Packet are: •

that the Registrar of Titles has been served with copies of court proceedings, court orders or injunctions relating to land in a particular certificate of title or

•

the Registrar is put on notice that there may be defective or potentially defective documents that have been registered, lodged and not yet registered or that may be lodged in the future.

By way of example, the need for a Registrar’s Packet arises in the situation where an injunction has been served upon the Registrar of Titles. The Transfer of Land Act contains no provision for an injunction to be recorded on the register. It is therefore necessary to give notice of the injunction by removing the certificate of title from the normal storage area. If this is not done, dealings may be lodged and subsequently registered in breach of the injunction. The creation of a Registrar’s Packet does not, of itself, prevent lodgement of documents nor changes to the Register. It is possible to obtain information about a Registrar’s Packet that has been created by ordering a Status Report from Landgate’s Customer Centre. 

Note: For more information on Status Reports, see paragraph 1.17.3 below.

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1.17.3

Status Reports (on Registrar’s Packets)

Freedom of information legislation limits access to information connected with any court action or other matters that are the subject of a Registrar’s Packet. A Status Report is the mechanism by which all clients of Landgate can obtain identical information pertaining to a particular Registrar’s Packet. This will assist clients to make informed decisions pertaining to the conduct of settlements in land. A Status Report will be signed and dated by an Assistant Registrar of Titles and will contain the following information: •

a list of all certificates of title, crown leases, dealings and surveys held in or subject to the Registrar’s Packet

•

the reason for the creation and/or continuation of the Registrar’s Packet

•

where court orders are involved, the Court Action number, the parties to the action, the solicitors acting for the parties and a general description of the orders sought will be provided and

•

Landgate’s requirements for disbanding the Registrar’s Packet.

A Status Report can be ordered from Customer Services Contact Centre upon payment of the prescribed fee.

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2.

Dealings: Transfers, Mortgages, Leases, Charges, Profits a’ Prendre, Carbon Rights, Carbon Covenants and Tree Plantation Agreements

This chapter contains information relating to documents and evidence in support of transfers, mortgages, leases, charges, profits a prendre, carbon rights, carbon covenants and tree plantation agreements. Landgate has created a number of specific forms.

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2.1

Transfers

This document is subject to the Verification of Identity Practice issued jointly by the Western Australian Registrar of Titles and Commissioner of Titles. Please refer to Chapter 14.

2.1.1

General

The proprietor of any land, lease, mortgage or charge may transfer the same by executing a transfer in one of the forms approved by the Registrar (see 15.1 List of Freehold Land Registration Forms). Such a form, when completed and registered, is the statutory instrument required to effect changes of ownership in the Register. The form of transfer in use provides that the information required to complete the form be placed in panels in a set pattern. It is important to realise that the marginal heading adjacent to each panel and the accompanying notes on how to complete the form are an integral part of the form. The forms are designed for ease of preparation and for ease of examination. Repetition is kept to an absolute minimum.

2.1.2

Choose the Correct Form

2.1.2.1

T1, T2 and T4 Transfer Forms

It is essential that the correct form is used to achieve the desired change to the register (Certificate of Title). A transfer by a mortgagee exercising a power to sell will not be registered in any other form than on a Form T4 transfer. Conveyancers should be similarly careful not to choose the wrong form when preparing a survivorship application, or a transmission application, for the same reason. A transfer Form T2 must be used in all cases where the parties desire not only to transfer land but also to create at the same time reservations or grants of easements, or restrictive covenants. This form type should also be used where there are many endorsements in the Second Schedule. While a transfer of freehold land is prepared on either a Form T1 or Form T2, a transfer of a lease must be prepared on a Form T3. Since it appears to be usual practice for the transferee/buyers’ agent to choose which form to use, it is clear that now it will be important for this agent to decide, with the agent acting on behalf of the transferor/seller, as early in the transaction as practicable, which way they will go so that the correct form is used. 

Note: Landgate introduced the ability to lodge Transfers electronically in May 2015. See paragraph 1.13.15.

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2.1.2.2

T1A, T2A and T4A Transfer Forms

Landgate introduced the T1A, T2A and T4A Transfer Forms in June 2013. These new form types had two significant differences to the T1, T2 and T4: 1.

Verification of Identity Statement incorporated into the form With respect to the Verification of Identity Statement incorporated into the form, there are some limitations with respect to its use and therefore the use of the new forms. These limitations are as follows:

2.

o

For use only where multiple transferors, whether corporations or natural persons, are represented by the same lawyer or licensed settlement agent. In other words, the Verification of Identity Statement cannot be used where multiple transferors are represented separately.

o

The new T1A and T2A forms cannot be used by a self-represented party, because the self-represented party does not make the Verification of Identity Statement.

o

The T4A Transfer by Mortgagee pursuant to power of sale form can only be used if a lawyer acts for the mortgagee and signs the Verification of Identity Statement.

o

It is not acceptable to strike through the VOI Statement that has been integrated within the new T1A and T2A forms. You must use the existing T1 or T2 forms if you are providing a VOI Statement on a separate sheet.

The Limitations, Interests, Encumbrance and Notifications panel has been removed. As the Limitations, Interests, Encumbrance and Notifications panel has been removed from these forms, the current practice for the removal of restrictive covenants, which have expired due to a time limit within the restrictive covenant, can no longer continue.



Note: The use of the new forms is optional subject to your operational requirements.

2.1.2.3

Landgate Updated the T1 and T2 Transfer Forms in April 2016

Landgate’s current suite of approved land registry forms are being rationalised in the interest of making land transactions as simple and efficient as possible. Updated versions of the standard T1 and T2 forms are now available. These forms have had the ‘Limitations, Interests, Encumbrances and Notifications’ panel removed, with the operative clause updated accordingly. There continues to be no Verification of Identity (VOI) Statement incorporated into the T1 and T2.

Cessation of use for Out-of-Date T1 and T2 Forms To assist our customers in their transition to the updated T1 and T2 forms, existing approved forms will continue to be accepted for lodgement to the end of July 2016. From 1 August 2016, all Transfer of Land forms which contain the ‘Limitations, Interests, Encumbrance and Notifications’ panel will no longer be accepted for lodgement by Landgate. Forms containing an execution date that is prior to 1 August 2016 will be considered for lodgement on a case by case basis.

2.1.3

Describe the Land Being Transferred

This should be a full description with reference to either the location, or lot and plan or diagram and whether it is the whole or part of a certificate of title (volume and folio reference), Crown land title (volume and folio reference) or Crown Lease number.

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2.1.4

Describe the Estate or Interest Being Transferred

The words fee simple should be used where the land is freehold and the word leasehold where the land is leasehold. Where the land transferred is both fee simple and leasehold the fee simple lands should be grouped as firstly and the leasehold grouped as secondly in the Land being transferred panel. The estate or interest panel should then read fee simple in the land firstly above described and leasehold in the land secondly above described. An undivided half share or other interest should also be indicated in this panel, i.e.: one undivided half share of the fee simple.

2.1.5

Set Out Limitations, Interests, Encumbrances and Notifications

Any limitation, interest, encumbrance or notification to which the land is subject to (burdened) must be note, if the form selected has this panel (see also paragraph 1.3.4). The documents shown are to be identified by nature and number. The plan/deposited plan/diagram encumbrances shown are to be identified by nature and relevant plan/deposited plan/diagram. Strata/survey strata plan encumbrances are to be described as Interests notified on strata/survey strata plan (state the number). If none, show NIL. For example, an encumbrance such as a mortgage or lease should be shown as Mortgage B12121 or Lease B12122. An encumbrance such as an easement or a restrictive covenant contained in a transfer (that burdens the land) should be shown as Transfer B12123. The endorsement This Edition Was Issued Pursuant to s.75 of the TLA is not required to be shown. For the removal of time expired restrictive covenants created under s.120A and s.129B of the TLA, refer to paragraph 7.5.1.

2.1.6

Describe the Transferor(s)

This is usually the registered proprietor but in some cases can be the Sheriff selling land taken in execution under a writ, or a mortgagee exercising a power of sale. The name of the registered proprietor must be identical to that shown on the title. It is not necessary to show the address of the transferor. Where the name of the proprietor differs on the transfer and certificates of title (see paragraph 3.5.10). Tenancy should not be shown in the transferor panel.

2.1.7

Show the True Consideration

If the consideration for the transfer is a sum of money then the amount should be shown in figures. If the consideration for the transfer is not a sum of money then the true consideration must be stated concisely. NIL is not an acceptable consideration but GIFT is. If a group of proprietors are adjusting the shares held between them, or selling a share to new partners, the consideration must specify who is paying the consideration, and to whom. If the statement of the true consideration involves a reference to a document (e.g. an agreement or court order) the document must be clearly identified by making reference to the date it was made or executed. Unless the document referred to is a Will or a Deed of Family Arrangement, (varying the terms of a Will or the terms of the Administration Act) it need not be lodged with the transfer for registration. However, if the details of the document do not match to details shown by the Office of State Revenue (Stamp Duties Division), Landgate will require the document to be produced. If the document is a court order, a sealed copy or a Landgate sighted copy of it is required.

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2.1.8

Describe the Transferee(s)

The full name and address of the transferee must be shown. As the address given is the one to which any notices will be sent in the future, care should be taken in the choice of address shown. If the transferee is intending to change residence to the property purchased, consideration should be given to showing the new address in the transfer. Refer to paragraph 1.7.5 for address requirements for Western Australia’s land registry forms. Where there is more than one transferee an expression of the manner in which they hold the land must be given, eg: as joint tenants or as tenants in common in equal shares or as the case requires. Where no tenancy is stated on a title, with respect to the registered proprietors, there is a presumption of a joint tenancy (s.60 of the TLA). Trusts are not to be disclosed (s.55 of the TLA) ie: a transferee may not be shown as executor of a Will or as Trustee of a Family Trust, or as trustee of a Superannuation Fund.

2.1.9

Attestation

The transferor and transferee must sign the instrument in the spaces provided in the presence of (in Australia) an adult witness who is not a party to the document. Witnesses are required to add their address and occupation to the document. For further information see paragraph 1.8.

2.1.10

Straightforward Transfer of Land

A specimen form of transfer, [see Land Titles Registration Practice Manual (LTRPM) List of Form Examples] shows the simplest type of transaction- a transfer by a sole proprietor to a sole purchaser of an estate in fee simple of the whole of the land in a single title free from any limitations, interests, encumbrances or notifications.

2.1.11

Transfer - Where Land is Encumbered

Where land is sold encumbered by an existing mortgage lease or other encumbrance a concise entry should be made in the Limitation, Interest, Encumbrance and Notification panel, where there is one, (see paragraph 1.9.4). For example: •

Where the encumbrance is a mortgage the consideration in the transfer should be expanded either to include or exclude the amount of money owing under the mortgage, eg: Four thousand dollars inclusive (or exclusive) of the principal and interest owing under Mortgage F323654.

•

Where land is encumbered by a lease the term of which (inclusive of any option to renew or extend the term) has expired no reference to the lease as an encumbrance need be made. If the lease is still current or has been extended and such extension registered, then the lease (not the extension) must be noted as an encumbrance.

2.1.12

Transfers to Joint Tenants

The transferee panel containing the names and addresses of the transferees must contain in addition the words as joint tenants. Although there is a presumption of a joint tenancy where no tenancy is stated (see s.60 of the TLA), Landgate requires tenancy to be stated in a transfer that is lodged for registration to avoid any doubt as to the intention of the transferees.

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2.1.13

Transfers to Tenants in Common

A tenancy in common does not arise by implication or presumption and must be expressly set out in a transfer. The correct place to show a tenancy in common is in the transferee panel of a transfer form following a description of the transferees. The panel should be completed as set out in the following examples: •

Where the shares are equal: William Brown of 5 Gray Street PERTH WA 6001 of one undivided half share and Graham Jones of 10 White Avenue FREMANTLE WA 6158 of one undivided half share as tenants in common, or William Brown of 5 Gray Street PERTH WA 6001 and Graham Jones of 10 White Avenue FREMANTLE WA 6158 as tenants in common in equal shares.

•

Where the shares are unequal: A of etc of two undivided third shares and B of etc of one undivided third share as tenants in common.

2.1.14

Transfer - Tenants in Common and Joint Tenants

Where persons desire to hold land as tenants in common but some of them, between themselves, desire to create a joint tenancy as to their share, the transferee panel should show: James Smith, and Mary Smith, both of 10 Kew Street PERTH WA 6001, as joint tenants of one undivided half share and Thomas Jones of 5 Timm Street BALGA WA 6061, of one undivided half share, as tenants in common. or James Smith, and Mary Smith, both of 10 Kew Street PERTH WA 6001, as joint tenants, of one undivided half share and Thomas Jones, and Jane Jones, both of 5 Timm Street BALGA WA 6061, as joint tenants, of one undivided half share, as tenants in common. or James Smith and Mary Smith, both of 10 Kew Street PERTH WA 6001, as joint tenants of two undivided fourth shares, Thomas Jones of one undivided fourth share and Jane Jones of one undivided fourth share, both of 5 Timm Street BALGA WA 6061, as tenants in common. In the case of a digital title, tenants in common will only receive one duplicate certificate of title showing all their shares noted on that one duplicate certificate of title. If a separate duplicate certificate of title is required for each tenant in common’s share, separate paper titles can be created and registered for the respective shares of the transferees. The request should be typed or written on the transfer form and signed by each new transferee or by the transferee’s solicitor or agent. A further fee is payable for each additional certificate created (click on this link for a current list of Search and lodgement fees).

2.1.15

Purple Title

The sketch on a paper title created and registered for an undivided share used to be coloured purple to distinguish it from certificates covering entire interests, which is the origin of the term purple title. No colour has been shown on any title created and registered after 1987.

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2.1.16

Transfer by a Tenant in Common of His or Her Entire Interest to a Stranger

In this case the estate or interest panel should read fee simple as to one undivided half share or whatever share represents the entire interest of the transferor. Unless the creation of separate (paper) titles is requested, the digital title will show all the current owners, and their share entitlement. Another way of achieving this result is for all the present proprietors to transfer the entire interest in the land to the continuing proprietors and the stranger as tenants in common in the appropriate shares.

2.1.17

Transfer by a Proprietor to Himself

Transfers where the transferor and the transferee are one and the same are sometimes prepared in an attempt to give effect to a change in the beneficial ownership of land. Landgate will not however accept these types of transfer for registration even though s.44 of the Property Law Act 1969 (the PLA) appears to provide for this. Section 44 of the PLA is inconsistent with s.84 of the TLA. Section 84 of the TLA states that it shall be lawful for a proprietor to make a transfer directly to himself and another person or jointly with any other person to himself alone. This means that a proprietor cannot transfer from himself solely to himself solely. When there is inconsistency between the PLA and the TLA, s.6 of the PLA states that the PLA does not apply. Therefore s.84 of the TLA takes precedence over s.44 of the PLA. Transfers lodged to change the beneficial ownership of interest in land where there is no change in the legal ownership cannot be registered as they are in breach of s.84 of the TLA. Where the beneficial interest in land has changed, the lodgement of a deed of trust may be appropriate (see paragraph 5.4).

2.1.18

Transfer by a Tenant in Common of Part of His or Her Interest to a Stranger or Strangers

It is necessary in transfers of this type that there be no ambiguity in stating what part of the interest of a tenant in common is being transferred. It is considered that the most effective and direct method is to translate the interest of the transferor being transferred to a proportion of the entirety. For example, where a tenant in common is registered as proprietor of a one undivided fourth share and wishes to sell a one fourth share of that interest, the estate or interest panel should read fee simple in one undivided sixteenth share. One undivided sixteenth share in the entirety is what the transferor sells and one undivided sixteenth share in the entirety is what the transferee purchases. No objection would be taken if the estate or interest panel reads fee simple in one of the transferor’s four undivided sixteenth shares. Where there is more than one transferee (with equal share, the tenancy between them may be shown in the transferee panel by the words: “joint tenants, as tenants in common in equal shares.” Where the tenants in common hold unequal shares, eg: two thirds, one third, (the tenancy between them may be shown in the transferee panel by the words: “A of etc of two undivided forty-eighth shares and C of etc of one undivided fortyeighth share, as tenants in common.” (3/48 being equal to 1/16 share). The title, on the registration of the transfer will show all the current owners, and their share entitlement.

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2.1.19

Transfer by a Tenant in Common of the Whole of His or Her Interest to the Other Co-Tenant or Co-Tenants

In transfers of this nature the appropriate panel of the form should read: Estate or interest

fee simple in one undivided half share (or as the case may be)

Consideration

X dollars.

The title, on the registration of the transfer will show all the current owners, and their share entitlement.

2.1.20

Transfer by a Tenant In Common of Part of His or Her Interest to a CoTenant

Transfers of this nature may be prepared in either of two ways: 1.

2.

The person disposing of part of his or her undivided share is joined by all the remaining proprietors and together they dispose of the entire interest in the land to the transferees. As an example, where a person is transferring one half of his or her third share to the other tenants the appropriate panels of the form should read: Estate or interest

fee simple

Transferor

A, B and C

Consideration

X dollars paid to A by B and C

Transferee

A of etc. of two undivided twelfth shares, B of etc. of five twelfth shares and C of etc. of five undivided twelfth shares as tenants in common.

The person disposing of part of his or her undivided share is the sole transferor. Using the previous example the appropriate panels of the form should read: Estate or interest

fee simple in two undivided twelfth shares

Transferor

A

Consideration

X dollars

Transferee

B of etc. and C of etc. as tenants in common.

In both cases above, after the transfer is registered, the Title will show all the current owners, and their share entitlement.

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2.1.21

Transfer by One Joint Tenant to a Stranger

The estate or interest panel should read in fee simple in (name of transferor’s) interest as joint tenant with (name of the other joint tenant or tenants). Such a transfer severs the joint tenancy formerly existing and creates a tenancy in common in respect of the interest transferred. In the case where A, B and C are registered proprietors as joint tenants, and A transfers all his or her estate and interest to D in the above manner the result will be that B and C will remain joint tenants between themselves in two undivided third shares and D will be the registered proprietor of the remaining undivided third share. Between B and C, as to their interest, and D, as to his or her interest, a tenancy in common is created. On registration of the transfer, the title will show all the current owners, their share entitlement, and tenancies. Where it is intended that the transferee and the remaining joint tenants shall hold as joint tenants, then all the registered joint tenants must join in the transfer. For example if A, B and C are joint tenants and C wishes to transfer to D so that A, B and D will be joint tenants the appropriate panels of the transfer should read: Estate

fee simple

Transferor

A, B and C

Consideration

X dollars paid to C by D

Transferee

A of etc., B of etc., D of etc. as joint tenants.

2.1.22

Transfers Between Joint Tenants

Where A, B and C are joint tenants and C sells his or her interest to B, the sale may be effected by a transfer from C to B. The appropriate panels of the transfer should read: Estate or interest

fee simple in the interest of C as joint tenant with A and B

Transferor

C

Consideration

X dollars

Transferee

B of etc.

On registration of the transfer, the title will show all the current owners, their share entitlement and tenancies. Note that where A, B and C are joint tenants and B and C wish to sever the joint tenancy but A does not, B and C may achieve their purpose by each transferring their estate or interest to the other. Registration of the two transfers will result in A, B and C holding the land as tenants in common in equal shares (Wright v Gibbons (1949) 78 C.L.R. 313).

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2.1.23

Transfer to Effect a Partition of Land

Where two or more proprietors hold land and desire to partition their land so that each holds a separate lot, location or subdivided part in severalty as their share of the land, the desired effect is obtained by mutual transfers lodged together. In the case of two proprietors owning Wellington Location 1 and 2 the appropriate panels of the first transfer should read: Land

Wellington Location 1 being part of the land in Certificate of Title Volume 1600 Folio 400

Estate

fee simple

Transferor

A and B

Consideration

in pursuance of an agreement for partition of the land in the above certificate of title whereby A takes Location 1 and B takes Location 2 (no money passing) (X dollars paid) by way of equality of exchange;

Transferee

A of etc.

The second transfer should be identical with the exception that the land description is changed to suit the case (i.e.: Location 2) and the transferee is shown as the second person (i.e.: B in the example above).

2.1.24

Transfer to Effect a Change of Tenancy

Where persons registered as tenants in common wish to hold as joint tenants the change is effected by transfer. The appropriate panels of the transfer should read: Estate

fee simple;

Transferor

A and B;

Consideration

the desire of the registered proprietors to hold the land as joint tenants;

Transferee

A of etc. and B of etc. as joint tenants.

The reverse situation, joint tenants to tenants in common, is achieved in the same manner.

2.1.25

Transfer by Direction

Where there has been a series of sales of one piece of land and it is desired to transfer the land to the ultimate purchaser the appropriate panels of the form should read: Estate

fee simple;

Transferor

A (i.e.: the registered proprietor) by direction of B

Consideration

(1) X dollars paid by B to A and (2) Y dollars on a resale paid by the transferee to B

Transferee

C of etc.

Although the execution of a transfer by a directing party may be desirable from the point of view of the transferee, the Registrar is not concerned to obtain the signature of the directing party.

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2.1.26

Transfer Reciting an Assignment

Where an interest in an agreement to purchase land has been assigned prior to the purchase being completed, the subsequent transfer is not a direction transfer. Transfers of this nature may be prepared in various ways. Two examples follow: Estate

fee simple

Transferor

A

Consideration

first, the terms of an agreement dated (date) between the transferor as vendor and B of etc as purchaser and secondly an assignment dated (date) whereby the said B assigned the purchasers interest to the transferee

Transferee

C of etc.

Estate

fee simple

Transferor

A

Consideration

(1) X dollars agreed to be paid to the transferor by B of etc and (2) Y dollars paid to B by the transferee on assignment of B’s purchasers interest;

Transferee

C of etc.

The Registrar is not concerned to obtain the signature of the assignor.

2.1.27

Creation of Life Estates and Estates in Remainder

Estates for life and estates in remainder must be created by transfer. Where the proprietor of any land desires to either create in himself or herself or, another, a life estate and an estate in fee simple in remainder in another or himself or herself the preferred method is that the required effect be accomplished in the one document. A transfer transferring an estate for life, or remarriage, to a person with an estate in remainder expectant upon the death or remarriage of that person to another, is registrable. The appropriate panels of such transfers would show: Estate

fee simple

Transferor

A

Consideration

as the case requires

Transferee

A of etc. an estate for life and B of etc. an estate in fee simple in remainder expectant upon the death of A; or

Transferee

B of etc. an estate for life and A of etc. an estate in fee simple in remainder expectant upon the death of B.

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Such estates may also be created at the request of purchasers, one of whom is to be the life tenant and the other is to be the remainderman. The appropriate panels of such a transfer would show: Estate

fee simple

Transferor

A

Consideration


Transferee

(1) B of etc. an estate for life and (2) C of etc. an estate in fee simple in remainder expectant upon the death of B.

It is possible to transfer an estate for life or an estate in fee simple in remainder. The appropriate panels of such transfers would read: Estate

an estate for the life of B; or fee simple in remainder expectant upon the death of A

Transferor

A

Consideration


Transferee

B of etc.

On registration of the transfer the title will show all the proprietors, and their various estates and tenancies. Successive life estates may also be created, for example: a life estate to A and on A’s death, a life estate to B with an estate in fee simple in remainder expectant upon the death of the Survivor of A and B to C. The registered proprietor may also transfer a life estate to one person to be held during the life of a second person (estate pur autre vie). The appropriate panel of such a transfer would read: Estate

an estate for the life of C

Transferor

A

Consideration


Transferee

B of etc.

Where possible, it is office practice to retain the life estate and estate in remainder in one title, but if requested, a separate paper title for each interest will be created and registered.

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2.1.28

Transfer by Life Tenants

The life tenant may transfer his or her interest to another person. However, as the interest being transferred is limited to the life of the life tenant, the interest of the purchaser or transferee is again an estate pur autre vie. On the death of the first life tenant the interest of the registered proprietor of the life estate ceases. In a transfer of this nature the appropriate panels should read: Estate

an estate for life of A

Transferor

A

Consideration


Transferee

C of etc.

2.1.29

Transfer by Remainderman

The interest of a remainderman may be transferred without disturbing the interest of the life tenant. In a transfer of this nature the appropriate panels should read: Estate

an estate in fee simple in remainder expectant upon the death of C

Transferor

A

Consideration


Transferee

B of etc.

2.1.30

Transfer to a Personal Representative (Executor or Administrator)

This document is subject to the Verification of Identity Practice issued jointly by the Western Australian Registrar of Titles and Commissioner of Titles. Please refer to Chapter 14. Where land is transferred to the personal representative of a deceased person, eg: on completion of a contract entered into by the deceased during his or her lifetime, no mention should be made in the transferee panel of the transferee’s capacity as personal representative. Such a transfer should be prepared, using a transfer Form T2 Transfer of Land (Double Sheet), with the consideration panel showing see page 2 Under a heading consideration on page 2, the following should be recited (for the case given): •

the details of the contract;

•

the death of the purchaser; and

•

the Grant of Probate or Letters of Administration to the personal representative.

To support the above recital an office copy or original Grant of Probate or Letters of Administration should be produced. The resultant endorsement on the title would show the transferee as the absolute owner. The Commissioner, when it is considered necessary, will instruct the lodgement of a caveat to protect the interest of the persons entitled under the will or estate of the deceased. The purpose of the caveat is to give notice that the executor holds the land in trust, and on the presentation of a transfer, either to carry out the terms of the Will, or in exercise of the powers granted to the executor by statute, the caveat will be withdrawn, by the internal procedures of Landgate.

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2.1.31

Transfers by Executors and Administrators With the Will Annexed

The personal representative, having entered transmission (see paragraph 3.3.1), is the registered proprietor of the land forming part of the deceased person’s estate. There are some cases where the personal representative is given a Grant of Probate subject to some limitations. This limitation is embodied in the memorandum shown on a title when transmission is entered. Where an executor, subject to such a limitation, proposes to transfer or deal with the land, evidence is required that the limitation has not affected the right to dispose of the land. The most common of these limitations is a Grant of Probate to one or more persons reserving to another person or persons the right to come in and prove the will. A search of the Probate Office must be made in such a case and a statutory declaration made to the effect that the person to whom leave was reserved to come in and prove has not done so. The search and declaration should be made on the day of registration of the dealing (see LTRPM Form Examples- Example 11). A personal representative normally has a power of sale, but may not transfer land free of charge. Where the will restricts the normal power of the personal representative it is office practice to lodge a Registrar’s Caveat at the time transmission is entered. The consents of beneficiaries, if of age, will be required before the Registrar’s Caveat will be withdrawn. If the beneficiaries are minors, evidence of the consent of the Courts to the transaction may be required before the caveat is lifted. A personal representative may not, as a general rule sell land to himself or herself (see paragraph 2.2.4). Where the consideration in a transfer is the terms of the will of the said deceased the will must be produced with the transfer. The appropriate panels of a transfer by a personal representative, who is shown on a certificate of title as such, should read: Transferor

A as executor of the will of B deceased or A as administrator with the will annexed of B deceased

Consideration

terms of the will of the said deceased; or if a sale, X dollars.

2.1.32

Transfer by Attorney Under EPA or by Administrator Under Board Order to Self or Family Member

2.1.32.1

Transfer of a Donors Property to a Single Enduring Attorney

A transfer of the Donor’s property by an Attorney appointed under an Enduring Power of Attorney to him/herself or to a member of the Attorney’s family is prohibited because it is in breach of the fiduciary duties of the Attorney. However, the transfer may be registrable if the Attorney provides a statutory declaration advising all of the following: •

The reason for the transfer, e.g. request or wishes of Donor

•

Demonstrates that the transfer is in the best interests of the Donor

•

Evidence of payment of the consideration to the account of the Donor

•

There is evidence that the Attorney or the family member has paid full market value for the property

•

Annexes a sworn valuation of the property made by an independent valuer.

If the transfer from the Attorney to himself has been made under either an Order of the Board or of a Court then this may be registered subject to a copy of the extracted order being lodged with the transfer.

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2.1.32.2

Transfer of the Donors property to one of two Enduring Attorney’s

Where two or more Attorneys have been appointed by a Donor, a transfer of the Donor’s property to one Attorney appointed under an Enduring Power of Attorney may be registrable if both Attorneys agree and provided that the Attorneys provide a statutory declaration advising all of the following: •


•


•


•

There is evidence that the Attorney has paid full market value for the property

•


2.1.32.3

Gift of Donors Property

Where the Attorney seeks to transfer the Donor’s property to himself or herself or to a member of the Attorney’s family via a gift then, this is not register able as it is a breach of the fiduciary duties of the Attorney. However, if the Attorney can provide an order made by the Board or other court order giving effect to the gift then the transfer may be registered.

2.1.32.4

Transfer of Donors Property to Appointed Administrator

A transfer of the Donor’s property to the Administrator appointed by the Guardianship and Administration Board to him/herself or to a member of the Administrator’s family is prohibited because it is a breach of the fiduciary duties of the Administrator. However, the transfer may be registered if the Administrator provides either: •

an Order from the Board authorising that particular transfer or

•

the powers conferred by the order authorise a transfer and the Administrator provides a statutory declaration advising all of the following: o


o


o


o

There is evidence that the Administrator or the family member has paid full market value for the property

o


o

That the incapacity still existed, the incapable person was still alive and the appointment had not been revoked, at the time of signing the instrument.(refer to paragraph 1.12.3).

2.2

Transfers by an Administrator


2.2.1

General

Where a registered proprietor dies intestate and Letters of Administration are granted to an administrator, the administrator, after entering transmission (see paragraph 3.3.1), is the registered proprietor of the land of the intestate deceased.

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2.2.2

Transfer by Way of Sale

Where an administrator disposes of land by way of sale no requisition of the right to sell will be made (see paragraph 3.3.1).

2.2.3

Transfer by Way of Distribution or Appropriation

In all cases of transfer by way of distribution or appropriation, the administrator will be required to lodge with the transfer a statutory declaration stating the persons who are entitled in distribution under the Administration Act 1903, and their relationship to the deceased. Where an administrator disposes of land by way of distribution to persons entitled under the above Act those persons are determined arbitrarily by that statute. The above Act has been successively amended from time to time with the amount to which a widow or widower is entitled becoming progressively larger. The date of death of the intestate deceased is the determining factor in establishing what amounts of money the persons entitled in distribution are to receive. A table of entitlements as they were varied over the years is set out in the 4th Schedule of the Act, published as a reprinted Act in 1980. Further amendments were made to that schedule by Act 48 of 1982 (Operative where death occurred after 24th October, 1984). Act 72 of 1984 (Operative 26th November, 1984) set out provisions for the disposition of the estates of insolvent persons. Where an administrator is appropriating certain lands as part of the entitlement of a particular person the provision of the Trustees Act 1962 s.30(l)(k) and 30(3) must be complied with. In addition to the declaration previously referred to, the administrator is required to supply, as an annexure to a declaration, a copy of the notice of intention to appropriate. The notice must be sent to each of the other persons of full age entitled in distribution or to the parent or guardian of any infant. Where the administrator is also the guardian of infants who are entitled in distribution, and where the appropriation would involve the sending of a notice to himself or herself in his or her capacity as guardian or in any other capacity, a Court Order permitting the appropriation must be obtained and lodged with the transfer. As an alternative a transfer, together with the consent of all the persons set out in the declaration, if of age, will be sufficient to permit registration. The above Act also sets out the right of widows or widowers to elect to have the matrimonial home appropriated as part of their share. Where an administrator is appropriating the matrimonial home to a widow or widower, the declaration previously referred to should also incorporate, as an annexure, a copy of the election by the widow or widower requiring the appropriation of the matrimonial home. The notice of election must be made within the time allowed and in the manner provided in the 4th Schedule to the Administration Act 1903. Where the persons entitled in distribution (being all of age) and the administrator have entered into a Deed of Family Arrangement, in which they have agreed to vary the statutory provisions for distribution, a stamped copy of the Deed of Family Arrangement must be lodged with the transfer. No declaration is required in this case if the Deed itself gives full particulars of each beneficiary, and negates the existence of other beneficiaries. 

Note: Deed of family arrangements are retained by Landgate and filed inside the relevant transfer.

The appropriate panels of a transfer by an administrator who is shown on a certificate of title as such should read:

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Where the administrator is distributing: Transferor

as administrator of the estate of B deceased

Consideration

the terms of the Administration Act 1903

Where the administrator is appropriating: Transferor

as before

Consideration

to appropriate the above described land as part of the transferee’s entitlement in the estate of the said deceased

Where there is a Deed of Family Arrangement: Transferor

as before

Consideration

the terms of the Administration Act 1903 and a Deed of Family Arrangement dated (date).

2.2.4

Transfer by Personal Representatives to Themselves or One of Them

A transfer by personal representatives to themselves, or to one of themselves, will not be registered without justification, because it is prima facie a breach of trust and voidable at the instance of a beneficiary. The Registrar‘s power to refuse such a transfer is illustrated by Templeton v Leviathan Proprietary Ltd. (1921) 30 C.L.R. 34. A personal representative may transfer to himself or herself where: •

the will contains an express provision to that effect

•

the transfer is to give effect to a contract of sale made during the lifetime of the deceased

•

all the beneficiaries being of age, consent to the sale or

•

a Court Order is obtained permitting the transfer.

2.2.5

Transfer by Mortgagee Exercising Power of Sale

Transfer Form T4 Transfer of Land by Mortgage (Power of Sale) (see LTRPM Model Form ExamplesExample 24) is a special form printed for this purpose. The mortgagee may exercise the power to sell, where the mortgagor defaults in payment or the observance of the covenants of the mortgage. The sale may be the whole or part of the land, by public auction or private treaty, with power in the mortgagee to subdivide and/or create easements. A mortgagee’s power to sell arises as a consequence of an expressed or implied right to do so by virtue of: •

s.57(1)(a) of the Property Law Act 1969, where the mortgage, which must be a deed, has not been registered under the TLA (ie: may have been registered in the Deeds Office); or

•

s.108 of the TLA, where the mortgagor has defaulted in payment of the principal sum and/or interest or has defaulted in the performance or observance of any covenant, express or implied, in a mortgage that has been registered under the TLA.

A condition precedent to a valid exercise by a mortgagee of the power to sell is the service of a notice on the mortgagor. This notice must clearly specify the default complained of and provide the mortgagor with an opportunity to remedy the default within the specified time of one month as required by s.108 of the TLA, or such other period as may be provided for in the mortgage.

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The TLA also provides for a second form of notice to be served on the mortgagor in relation to on demand mortgages. There are two distinctly specific types of on demand mortgages: •

where the mortgage requires monies to be payable within a specific period. Failure to pay the monies within that period converts the mortgage into a demand mortgage where monies then become payable on demand; and

•

where the mortgage is a demand mortgage in the first instance and monies are payable on demand. In such a case, the mortgage usually requires that if the mortgagor pays within a specific period, the mortgagee will refrain from issuing a demand notice calling up the principal sum and any interest outstanding. Alternatively a demand mortgage may contain provisions requiring no repayment of either principal or interest until demand is made.

In both cases s.107 of the TLA provides that a demand in writing pursuant to the mortgage requiring all monies to be paid immediately, is equivalent to a notice in writing. The legal position is as follows: Where: a notice of default (issued pursuant to s.106 of the TLA for a fixed term mortgage which provides for a specific period before default has occurred), or a written demand (issued pursuant to a s.107 demand mortgage which requires that the principal and interest owing by the mortgagor are payable immediately) and the mortgagor has failed to pay the sum demanded or rectified the default specified; either after the end of the period specified under s.106 (being one month or such other period specified in the mortgage) or after the demand has been made under s.107 then: the mortgagee is entitled to exercise the power to sell under s.108 of the TLA. It must also be noted that, although many demand mortgages call for payment immediately or forthwith, in practice a period of at least one day must be allowed before a mortgagee exercises its power of sale. This period of at least one day need not be specified in the notice. However to enable the Registrar of Titles to be satisfied that s.106 and 107 of the TLA have been complied with, the Registrar requires that a minimum period of at least one day elapses before a mortgagee exercises its power of sale pursuant to the demand notice. The required notice may be served: •

by personal delivery on the mortgagor(s);

•

by registered post sent to the address of the mortgagor(s) in the Register. It is Office practice to accept a later address if it is included in the mortgage (as part of the Register). Where there is more than one mortgagor separate notices to each must be sent. (Irving v Commissioner of Titles 1963 W.A.L.R. 67). Where the mortgagor is a corporation in liquidation, service of the default notice may be made on the Liquidator at the registered office of the Liquidator;

•

by registered post sent to the current address of the mortgagor(s);

•

by sending it to a facsimile number specified to the mortgagee by the mortgagor(s) in writing as being an address for the service of notices issued under this section; or

•

by leaving the notice on some conspicuous part of the mortgaged premises.

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

Note: If the mortgagor is a defunct company registered under the Corporations Act 2001, the default notice must be sent to the Australian Securities and Investment Commission (ASIC). Section 601AD of the above-mentioned Act states that a company ceases to exist on de-registration and all of the companies property assets vest in ASIC.

When the mortgagee’s transfer is lodged, it must be supported by a statutory declaration providing proof to the Registrar that the sale has occurred in strict compliance both with the terms of the mortgage, and the provisions of the TLA. The statutory declaration is best made by the registered mortgagee, but may be made by the mortgagee’s solicitor or agent who must then declare his or her means of knowledge for the statements made in the declaration to the satisfaction of the Registrar. If the mortgage is granted to a number of mortgagees, the statutory declaration must be made by each of the mortgagees. If the mortgage is made to a bank or a corporate body, the statutory declaration must be made by a responsible officer for and on behalf of that bank or corporate body, who must declare that proper authority exists to make the statutory declaration on behalf of the bank or corporate body and that the declarant has a proper means of knowledge. The statutory declaration must state: •

The identity, authority and means of knowledge of the declarant.

•

That a default (clearly specified in the notice or demand in writing) under the terms of mortgage has occurred, i.e.: o

default in the payment of principal or interest (or both) and the date of default; and/or

o

failure to perform or observe the mortgagor’s covenants in the mortgage setting out the default complained of and the date of default.

•

That, in accordance with the terms of the mortgage, notice to remedy the default or demand to repay the monies secured was made on (date) and the default complained of has continued for one month or such other period specified in accordance s.106 of the TLA after the service of a notice of the default.

•

That the notice stated that unless the default was remedied within the time referred to above, that the mortgagee may exercise the mortgagee’s power of sale.

•

That the default complained of continued up to and including the date of sale. (the date of sale is defined as the date on which an unconditional and binding contract for sale came into effect).

•

That the default notice or demand in writing had been properly served in accordance with s.106 of the TLA by ................... (insert the specific mode of service used, as authorised under s.106).

•

That the mortgage is not affected by the National Consumer Credit Protection Act 2009 or the Consumer Credit Code.

It should be clear from the statutory declaration that the notice to the mortgagor clearly sets out the nature of the obligation imposed by the mortgage and the consequences of not complying with these obligations. If the statutory declaration does not clearly include the above, evidence supporting that statutory declaration will be requested. This evidence may include copies of the demand in writing or default notice and evidence of service in accordance with s.106 of the TLA. It is not necessary to produce any other proof as to the manner in which the statutory notice is given but care should be taken to ensure that proper procedures are carried out and the evidence preserved. Where an application is made for an Order for Foreclosure, strict proof of service of notice is a necessary part of the application.

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The effect of registration of a transfer by way of a mortgagee’s sale is to remove any encumbrance notified on the certificate of title to the land sold which was lodged after the mortgage under which the power of sale was exercised. The following are exceptions to the above general rule: •

absolute Caveats (subject to claim caveats may be shown as an encumbrance);

•

memorials lodged pursuant to certain statutory provisions prohibiting dealing with the estate and interest of the registered proprietor. See Chapter 11 for a detailed list of Statutes;

•

leases and easements to which the mortgagee has given an unqualified consent (s.110); and

•

notice of intention to take under the LAA.

Caveats must be withdrawn, or removed pursuant to Sections 138, 138B or 141A of the TLA. Memorials must be withdrawn or the consent in writing of the body lodging the memorial obtained as an endorsement on the document itself. Where a consent is obtained, the memorial must be noted as an encumbrance. The leases and easement referred to above must be noted as encumbrances in common with encumbrances lodged prior to the mortgage under which the power of sale was exercised. The consent of the taking authority or its delegate is required in cases where the land is encumbered by a Notice of Intention to Take. Where the mortgagee sells parts of the mortgaged land and registers transfers at different times, a statutory declaration containing statements similar to those set out above must be produced with each transfer. Where mortgagees sell land on the authority of a double interest mortgage (see paragraph 2.6.10), separate transfers for each interest will be required. The mortgagee must not include any further consideration in the transfer, eg: by direction to another person or by love and affection etc. The power of the mortgagee to transfer is limited to the estate or interest of the mortgagor and does not extend to any further transaction. A further sale must be by separate transfer. Where the defaulting mortgagor is one of two or more joint tenants, the exercise of the power of sale of the mortgagee would sever the joint tenancy and result in the issue of a separate title for the transferee for the share of the former proprietor converted to a tenancy in common with the remaining tenant(s). The mortgagee may not be the purchaser in pursuance of a power of sale. The right to buy in at auction afforded by the TLA is only designed to protect the mortgagee at auction sales where the sale price might be too low to cover the mortgage debt. Should the mortgagee be unable to sell the land by public auction and default continues for six months, the mortgagee is entitled to apply to the Commissioner for an Order for Foreclosure. It is recommended that a mortgagee’s sale be by public auction and if that sale is unsuccessful the auctioneer’s certificate should be obtained at that time. 

Note: Where a mortgage has been registered under the TLA, the use of the power of attorney provisions in the mortgage by the mortgagee to appoint an attorney (when default has occurred) to sell the land is discouraged. The Registrar of Titles will only register a transfer by a mortgagee exercising a power of sale in strict accordance with the processes of the TLA. If the mortgagees power of sale is in relation to a mortgage under the National Credit Code, see paragraph 2.2.6 below.

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2.2.6

Transfer by Mortgagee Exercising Power of Sale for Mortgages under the National Credit Code

Section 3 of the National Consumer Credit Protection Act 2009 (the Act) enacts the Consumer Credit (Western Australia) Code (the Code). Mortgages lodged under the Code are dealt with in paragraph 2.6.2.

2.2.6.1

Default notices under the Code

The effect of the Code is that, if a mortgagee wishes to exercise power of sale under the mortgage and the Code then, except in limited circumstances outlined below, the mortgagee must send to the mortgagor a default notice in the terms required by the Act and the Code. That default notice must have a period of not less than 30 days. Sections 88 and 93 of the Code set out what is required to be included in the default notice.

2.2.6.2

Default notices under the TLA

The effect of the Code is that it does not exclude the requirement to send a default notice under s.106 of the TLA to the mortgagor. However, it is possible to combine both notices into the one default notice.

2.2.6.3

Methods of service of notice

The service of notice provisions under the Code differ from the service of notice provisions under the TLA. Although there are some differences, there are also overlapping service requirements. Legal advice should be sought as to the appropriate methods of service of notices, under the Code and the TLA, in respect of any overlapping methods of service. It is suggested that a combined notice forwarded to a defaulting mortgagor may be served, under both the Code and the TLA, by the following methods: •

delivered personally to the mortgagor;

•

sent by Registered Mail to: (i)

the address of the mortgagor as shown on the Register but only if this address is nominated in writing by the mortgagor to the mortgagee as the address for service; or

(ii)

if there is no such nomination, the address of the place of residence of the mortgagor last known to the mortgagee;

or •

facsimile transmission to the mortgagor, if the mortgagor nominates in writing to the mortgagee such a fax number as a nominated address for service.

2.2.6.4

Notices to joint mortgagors

Where there is more than one mortgagor under a mortgage, then the default notice must be sent to each mortgagor.

2.2.6.5

Power of sale transfer

After the notices under both the TLA and Code have expired and the default has not been remedied, the power of sale arises under s.88(2) of the Code and s.108 of the TLA. When the mortgagee has exercised power of sale, a Transfer document (Form T4 Transfer of Land by Mortgage [Power of Sale]) is required to be lodged at Landgate. This transfer document is the same as that used for mortgages that are not under the Code.

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2.2.6.6

Statutory Declaration

In addition to the power of sale transfer, a supporting statutory declaration must also be lodged at Landgate. The statutory declaration must be made either by the lender, the lender’s employee’s or the lender’s solicitors if they are personally acquainted with the facts. The matters deposed to in the statutory declaration are similar to but different from those matters deposed to in a statutory declaration supporting a power of sale transfer under the TLA. The following is a list of all the matters which must be deposed to in the statutory declaration: •

The identity, authority and means of knowledge of the declarant.

•

The particulars of the mortgage such as the document number and the name of the mortgagee,

•

That the mortgage is affected by the Act and/or Code;

•

That a default (clearly specified in the notice or demand in writing) under the terms of the mortgage and the Code has occurred, ie: o

default in the payment of principal or interest (or both) and the date of default; and/or

o

failure to perform or observe the mortgagor’s covenants in the mortgage, setting out the default complained of and the date of default.

•

That, in accordance with the terms of the mortgage, the Code and the Regulations to the Code, notice to remedy or demand to repay the monies secured was made on ......... (date) and the default complained of has continued for 30 days after the service of a notice of the default.

•

That the notice stated that unless the default was remedied within the time referred to above, that the mortgagee may exercise the mortgagee’s power of sale.

•

That the default complained of continued up to and including the date of sale (the date of sale is defined as the date on which an unconditional and binding contract for sale came into effect).

•

That in the case of an accelerator clause in the Mortgage (see s.93 of the Code), the notice has stated the manner in which the mortgagor’s liability is affected by the operation of the accelerator clause and the amount required to discharge the accelerated mortgage.

•

That the default notice or demand in writing had been properly served in accordance with s.106 of the TLA and s.195 of the Code by . . . . . . . . . . (insert the specific mode of service used as authorised under s.106 of the TLA and s.195 of the Code).

It is not necessary to produce any other proof as to the manner in which the statutory notice is given but care should be taken to ensure that proper procedures are carried out and the evidence preserved. Where an application is made for an Order for Foreclosure, strict proof of service of notice is a necessary part of the application. Whilst the Regulation to the Code establishes that the default notice issued under the Code should be in a print of not less than 10 point, Landgate will not require a copy of the notice to ensure that it complies with the requirements for print size. All that Landgate will require is that the statutory declaration deposed to the fact that the notice complies with the Code.

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2.2.6.7

Default notice not required in limited circumstances

The Code also provides that there are some circumstances in which a default notice is not required under the Code. These are where: •

The credit provider believes, on reasonable grounds, that the mortgage was induced by the fraud of the debtor or mortgagor.

•

The credit provider has made reasonable attempts to locate the mortgagor without success.

•

The Court authorises the credit provider to begin the enforcement proceedings.

•

The credit provider believes, on reasonable grounds that:



o

the debtor or mortgagor has removed or disposed of the mortgaged goods under a mortgage related to the credit contract;

o

the debtor or mortgagor intends to remove or dispose of the mortgaged goods without the credit provider’s permission; or

o

urgent action is required to protect the mortgaged property.

Note: The above would only apply to mortgages over land if that mortgage secures the advance to purchase the goods.

The above situations, that entitle no notice to be issued under the Code, will be rare but they do not remove the need to issue notices under the TLA. However, if they do arise, then Landgate will require a statutory declaration to be lodged with the transfer document (Form T4 Transfer of Land by Mortgage [Power of Sale]).

2.2.6.8

Additional matters to be deposed to in statutory declaration where default notice not required under the code

The declaration is to be made by the lender or an employee of the lender who is personally authorised to swear the declaration on behalf of the lender or the solicitor of the lender if the solicitor is personally acquainted with the facts. In all of the above cases in which the default notice is not required, Landgate requires the declarant to depose to the following, in addition to the matters required for notices issued under the TLA: 1.

2.

In the case of fraud: o

all the circumstances surrounding the fraud; and

o

a report from the police indicating that the mortgagor has been fraudulent or a submission based on case law that supports the position that the mortgagor has been fraudulent within the meaning of the Code.

In the case of an inability to locate the mortgagor: o

all the attempts that have been made to locate the mortgagor which would, as a minimum, include attendance at the mortgagor’s last known address both during and after business hours

o

letters sent by registered mail and receipts showing non receipt and

o

notes of telephone calls over a period of at least one month after the default of the mortgagor.

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3.

4.

5.

6.

In the case of Court authorisation: o

the terms of the order annexing a service copy of the order; and

o

a submission as to the effect of the order.

In the case of removal or disposal of the mortgaged goods under a land mortgage which secures the money advanced under the credit contract: o

the full circumstances surrounding the removal or disposal of the mortgaged goods; and

o

permission of the credit provider not being obtained by the mortgagor; and

o

a statement that the mortgage secures advances made under the credit contract in respect of the goods sought to be removed or disposed.

In the case of the mortgagor’s intention to remove or dispose of the mortgaged goods, without the credit provider’s permission: o

the full circumstances of the mortgagee credit provider’s belief that the mortgagor intends to remove mortgaged goods;

o

permission of the mortgagee credit provider has not and would not be given to such action; and

o

a statement that the mortgage secures advances made under the credit contract in respect of the goods intended to be removed or disposed.

In the case where urgent action is required to protect the mortgaged property: o

then the declarant should depose to the full circumstances surrounding the need for urgent action to be taken; and

o

it must be a substantially urgent need.

The contents of this paragraph should be read in conjunction with paragraph 2.2.5.

2.2.7

Transfer by a Debenture Holder

Not all security documents are registered at Landgate. Floating charges and Debentures are registered with the Australian Securities & Investments Commission, and may be used, (where default occurs) to sell the land of the borrower (mortgagor) to repay the debt. Part VI (Mortgages) of the Property Law Act 1969 contains a series of provisions setting out the various rights of the parties, and, as in the TLA, the right to sell is dependent upon notice to the mortgagor to remedy the default. A subsequent sale of the land would be conducted by a Receiver appointed under the terms of the charge or debenture, and, in accordance with the Property Law Act 1969 the appointment of a receiver is conditional upon the mortgagee becoming entitled to exercise the power of sale. Where the transfer exercising the power of sale is executed by a receiver (see paragraph 1.10.12), Landgate requires only proof of the receiver’s appointment, and subsequent registration of that appointment with the Australian Securities & Investments Commission. On occasions the mortgagee prefers to use the power of attorney provisions of a charge or debenture to effect a sale. To ensure that the mortgagee has the right to sell the land, at the time of the registration of a copy of the charge or debenture as a Power of Attorney, proof of the service of notice to remedy default must be lodged. This requirement of Landgate may not be avoided even if the terms of the charge or debenture do not require default to occur for the Power of Attorney claim to become operative. The Registrar of Titles is concerned that before any proprietor is deprived of land by a forced (mortgagee’s) sale that an opportunity to remedy the default has been given.

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2.2.8

Transfer by Annuitant (Chargee)

The same principles apply as for a transfer by a mortgagee. The manner in which the proceeds of sale are dealt with differ (s.109 of the TLA). After payment of the expenses of the sale and the arrears of the annuity to the annuitant, the residue is deposited in a bank in the joint names of the annuitant and the Registrar. As payments under the charge accrue they are met. On the death of the annuitant or other termination for the annuity the balance of the money, if any, is held for the benefit of the parties who may then be entitled.

2.2.9

Transfers by Sale for Rates (Local Government Act 1995)

There is a specific Transfer (Form T5 Transfer of Land [Sales for Rates]) printed for this purpose. The rates for land levied under the Local Government Act 1995 (the Act) are a charge against the land upon which they are levied (s.6.43 of the Act) (see also paragraph 11.4.18). Where rates have been unpaid for three years or more the Council of the Local Government is empowered by Part 6 Division 6 Subdivision 6 of the Act: •

to sell the land

•

transfer the land to the Local Government or the Crown in right of the State of Western Australia (s.6.71) or

•

have the land revested in the Crown in right of the State of Western Australia (s.6.74).

The notice of intention to sell is, after publication, registered in the Office as a Memorial of Advertisement and is endorsed on each certificate of title affected thereby. The memorial remains in force for twelve months from the date of registration and acts as an absolute caveat until it is withdrawn or expires. A transfer (Form T5 Transfer of Land [Sales for Rates]), executed by a Local Government, using its common seal, effectively disposes of the interest of the registered proprietor in favour of the transferee for an indefeasible estate in fee simple but subject to the statutory exceptions as set out in Sections 6.75. (1) (c) (d) and (e) and Schedule 6.3 clause 4. (1) (b) of the Act. The transfer may only be registered in the period that a memorial of advertisement is in force on the title. In the circumstances where there is a duplicate certificate of title, it is not required to be produced but the Registrar has power to make orders or require advertisement. Where a paper title is in existence, a new title is created and registered in the name of the transferee free from encumbrances except those referred to in s.6.75 of the Act. In the case of a digital title, a new version of the digital title is created and registered. Included in the encumbrances referred to in s.6.75 of the Act are Memorials lodged by State or Commonwealth Instrumentalities, and these (depending on their nature) may be shown as encumbrances, or withdrawn to permit the registration of the transfer, then re-lodged. Other encumbrances such as mortgages are removed by the act of registration of the transfer, and no longer affect the land. Where the land is offered for sale, but at the expiration of 12 months it remains unsold, s.6.71 of the Act states that the local Government can transfer the land to itself or to the State of Western Australia. The transfer (Form T5) must be supported by a statutory declaration made by the Shire or Town Clerk, proving compliance with the provisions of Part 6 Division 6, Subdivision 6 of the Act. The transfer attracts no fee or duty. This section of the Act allows land that is encumbered to be transferred to the State of Western Australia free of any encumbrances.

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Where rates and charges have been outstanding for a period of 3 years, s.6.74 of the Act allows the Local Government to have the land revested in the State of Western Australia. There is no requirement under this section for a local government to have attempted to sell the land. Revestment is achieved by the lodgement of a transfer on Form T9 Transfer of Land (Revestment for Non Payment of Rates). The transfer attracts no fee or duty. Land that is encumbered cannot be revested in the State of Western Australia.

2.2.10

Transfer Pursuant to a Property (Seizure and Sale) Order

Under the TLA the land or interest in land of a registered proprietor may be seized and sold to satisfy a judgment made in the Magistrates, District or Supreme court. The appropriate means is to lodge a Property (Seizure and Sale) Order (see paragraph 4.6.1). Before a transfer executed by the Sheriff or Deputy Sheriff can be registered, the Property (Seizure and Sale) Order must be lodged at Landgate and the sale period must still be current. A transfer must be on a: Form T7 Transfer of Land under Writ or Warrant or T8 Transfer of Mortgage, Charge or Freehold Lease under Writ or Warrant and is effective as if made by the registered proprietor. The registration of such a transfer may be prevented or delayed by the presence on the Register of caveats and memorials prohibiting dealings. The effect of these documents is discussed separately below.

2.2.10.1 •

Effect on caveats

when lodged prior to the Property (Seizure and Sale) Order: an absolute caveat must be withdrawn. Subject to claim caveats may be withdrawn or they may be noted as encumbrances on the transfer;

•

when lodged subsequent to the Property (Seizure and Sale) Order and without the consent of the Sheriff: a caveat lodged specifically to prevent the sale will delay registration until withdrawn, removed or lapsed. All other caveats are automatically removed.

•

when lodged subsequent to the Property (Seizure and Sale) Order and with the consent of the Sheriff: an absolute caveat must be withdrawn. Subject to claim caveats may be withdrawn or they may be noted as encumbrances on the transfer.

2.2.10.2

Effect on Memorials

Memorials can be lodged pursuant to certain statutory provisions prohibiting dealings with the estate and interest of the registered proprietor. See Chapter 11 for a detailed list of Statutes. The prohibition against dealing imposed by such memorials is effective irrespective of whether the memorial was lodged before or after the Property (Seizure and Sale) Order under which the power of sale is being exercised. Memorials must be withdrawn or the consent of the lodging authority obtained in writing on the transfer. Where a consent is obtained, the memorial must be shown in the Limitations, Interests, Encumbrances and Notifications panel of the transfer.

2.2.10.3

Effect on notifications

Notifications can be lodged against land pursuant to certain statutory provisions. See Chapter 11 for a detailed list of Statutes. The notification has effect irrespective of whether it was lodged before or after the Property (Seizure and Sale) Order under which the power of sale is being exercised. The notification must be shown in the Limitations, Interests, Encumbrances and Notifications panel of the transfer.

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2.2.10.4

Duplicate Title

The duplicate certificate of title (if any) should be produced for a transfer pursuant to a Property (Seizure and Sale) Order. If this is not done, the Registrar may order its production from the person holding it or require an advertisement to be made in a newspaper published in the City of Perth or circulating in the neighbourhood of the land, indicating the intention to register a transfer notwithstanding the non-production of the duplicate certificate of title. Where a paper title is in existence, a new title is created and registered for a sale under a Property (seizure and Sale) Order. In the case of a digital title, a new version of the digital title is created and registered.

2.3

Transfer: Land of Deregistered Company

2.3.1

Companies Deregistered Prior to 1 January, 1991 (Representative Provisions)

Where, after a company has been deregistered or dissolved, it is proved to the satisfaction of the Australian Securities & Investments Commission that such company, if it still existed, would be bound to give effect to some dealing and some purely administrative act is required to complete that dealing, then the Commission, as representing the company or its liquidator, is empowered by s.460 of the Companies (Western Australia) Code to complete the dealing. Use of the provisions of the Code is made valid by s.85(1) of the Corporations (Western Australia) Act 1989 which provided that matters arising before the Corporations Law 1989 would continue under the earlier legislation. The situation remains the same whether the events occurred before or after the introduction of Companies (Western Australia) Code which took effect on 1 July 1981. The Transferor panel of such a transfer should (with amendments to suit the particular transaction) read either: Australian Securities & Investments Commission acting pursuant to s.66 of the Corporations (Western Australia) Act 1989 and s.460 of the Companies (Western Australia) Code for and on behalf of D. Registered Co Pty Ltd, a company that was deregistered on 12th May, 1980 or Australian Securities & Investments Commission acting pursuant to s.66 of the Corporations (Western Australia) Act 1989 and s.460 of the Companies (Western Australia) Code for and on behalf of Ikan Addup, the liquidator of D. Solved Co Pty Ltd, a company that was dissolved on 12th May, 1980. The Consideration panel of such a transfer should read see page 2 and on the second page of the Form T2 Transfer of Land with Additional Pages, under the heading Consideration should appear: •

on the (date) (Company Name) did by contract for sale sell to (Transferee) the above land, for the sum of (consideration)

•

(Company Name) was dissolved/deregistered on the (date)

•

(Transferee) has paid the full purchase price to (Company Name) and

•

the Australian Securities & Investments Commission is satisfied that the purchase price has been paid in full, and that (Company Name), if still existing, would be bound at law or in equity to execute a transfer of the above land to the Transferee.

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2.3.2

Companies Deregistered Prior to 1 January, 1991(Disposal Provisions)

Where after a company has been dissolved prior to 1st January, 1991 and there remains some asset of the company not dealt with by the liquidator such asset is vested in the Australian Securities & Investments Commission. The Commission is empowered to sell the land by virtue of Sections 461 and 462 of the Companies (Western Australia) Code. Use of the provisions of the Code is made valid by s.85(1) of the Corporations (Western Australia) Act 1989 which provided that matters arising before the Corporations Law 1989 would continue under the previous legislation. The situation remains the same whether the company was dissolved or deregistered before or after the introduction of the Companies (Western Australia) Code which came into operation on 1 July 1981. The Commission is not required to apply to have the land vested in it before dealing with it. The Transferor panel of such a transfer should read: Australian Securities & Investments Commission acting pursuant to s.66 of the Corporations (Western Australia) Act 1989 and s.461 of the Companies (Western Australia) Code, in relation to the property of D. Registered Co Pty Ltd, a company that was deregistered on 12 May, 1980. The Consideration panel of such a transfer should read see page 2 and on the second page of Form T2 under the heading Consideration should appear: •

the above land is registered in the name of (Company Name) which company was dissolved on the (date)

•

the Transferee has paid the sum of (number in words) dollars to the (insert whichever is appropriate from (Commissioner for Corporate Affairs, National Companies and Securities Commission or Australian Securities & Investments Commission) and

•

and in exercise of the power to sell the said land under s.462 of the Companies (Western Australia) Code.

2.3.3

Execution by the Australian Securities & Investments Commission

The Australian Securities & Investments Commission, may by virtue of s.102 of the Australian Securities Commission Act 1989 delegate its powers, with the intent of providing authority to act for the Commission and provide a decentralised service. Acting under that authority, the Commission has made a delegation to the position of Executive Director, Corporate Regulations to act in these (and other) circumstances, and to execute documents on behalf of the Commission. The form of attestation used is: Australian Securities & Investments Commission

)

By its Delegate

)(Signature of Delegate)

(name of delegate), the

)

Executive Director Corporate

)

Regulation in the presence of

)


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2.3.4

Evidence to Support the Transfer Referred to in Chapter 2.3.1 and 2.3.2

Where the duplicate certificate of title for the land in the transfer is lodged with the dealing no further evidence is required by the Registrar, as the authority for the sale is quoted in the transferor panel and restated in the consideration, and the possession of the duplicate title is held to be significant. Where the duplicate certificate of title has been lost, the transfer can still be registered using s.74 of the TLA. A statutory declaration should be filed with the transfer, and in addition to statements negating the deposit of the duplicate title for security for a lien, it should confirm the circumstances of the deregistration of the company and the disposition of the land by reciting the facts of the matter. The declarant must declare that proper authority exists for the declaration to be made and that the declarant has the necessary means of knowledge. In cases where the paper title is partially cancelled, a similar statutory declaration is required, but it need only recite the authority of the declarant to make the declaration, the means of knowledge to make the statements, and a recitation of the circumstances of the deregistration of the company and disposition of the land.

2.3.5

Companies Deregistered on or After 1 January, 1991 (Representative Provisions)

Where, after a company has been deregistered or dissolved, on or after 1 January, 1991, it is proved to the satisfaction of the Australian Securities & Investments Commission (ASIC) that such company, if it still existed, would be bound to give effect to some dealing and some purely administrative act is required to complete that dealing, then ASIC, as representing the company or its liquidator, is empowered by s.601AF of the Corporations Law 2001 to complete the dealing. The Transferor panel of such a transfer should (with amendments to suit the particular transaction) read either: Australian Securities and Investments Commission acting pursuant to s.601AF of the Corporations Law 2001 for and on behalf of D. Registered Co Pty Ltd, a company that was deregistered on 12th May, 1991; or Australian Securities and Investments Commission acting pursuant to s.601AF of the Corporations Law 2001 for and on behalf of Ikan Addup, the liquidator of I.N. Solvent Co Pty Ltd, a company that was dissolved on 12th May, 1991. The Consideration panel of such a transfer should read see page 2 and on the second page of the Form T2, under the heading Consideration should appear: •

on the (date) (Company Name) did by contract for sale sell to (Transferee) the above land, for the sum of (consideration)

•

(Company Name) was dissolved/deregistered on the (date)

•

(Transferee) has paid the full purchase price to (Company Name) and

•

the Australian Securities and Investments Commission is satisfied that the purchase price has been paid in full, and that (Company Name), if still existing, would be bound at law or in equity to execute a transfer of the above land to the Transferee.

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2.3.6

Companies Deregistered on or After 1 January, 1991 (Disposal Provisions)

Where after a company has been dissolved on or after 1 January, 1991 and there remains some asset (which includes land) of the company not dealt with by the liquidator such asset is vested in the Australian Securities and Investments Commission (ASIC). ASIC is empowered to sell the land by virtue of s.601AE of the Corporations Law 2001. The Commission is not required to apply to have the land vested in it before dealing with it. The Transferor panel of such a transfer should read: Australian Securities and Investments Commission acting pursuant to s.601AE of the Corporation Law 2001 in relation to the property of D. Registered Co Pty Ltd, a company that was deregistered on 12 May 1991. The Consideration panel of such a transfer should read see page 2 and on the second page of the Form T2 under the heading Consideration should appear: •

the above land is registered in the name of (Company Name) which company was dissolved on the (date)

•

the Transferee has paid the sum of (number in words) dollars to the Australian Securities and Investments Commission and

•

and in exercise of the power to sell the said land under s.601AE of the Corporations Law 2001.

2.3.7

Attestation and Supporting Evidence

The procedures set out in paragraphs 2.3.2 and 2.3.3 also apply to documents prepared in the circumstances set out in this paragraph.

2.3.8

Distribution in Specie

A Liquidator, when appointed to wind up a corporation, must convert the assets of the corporation to pay its debts. If, when all debts are paid, there are still assets left, the Liquidator may still wind up the corporation and transfer the remaining assets to the shareholders, in the same ratio as their shareholding. Should the remaining assets include or consist of land which has been vested in the liquidator by a Court Order the liquidator may apply under s.234 of the TLA to be registered as the proprietor of the land, then transfer it to the shareholders. The transfer form would show: •

the liquidator as transferor

•

as a consideration The entitlement of the transferees to the above land by virtue of a distribution of the assets of (name of liquidated company) in specie and

•

the transferees as tenants in common in the same ratios of shares as their shareholding in the company.

The form of attestation by the liquidator is shown in paragraph 1.10.10 and the requirements for the application by the liquidator to become registered as the proprietor of the land are similar to those shown in paragraph 3.4.5.

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A transfer effecting a distribution in specie must be supported by a statutory declaration by the liquidator declaring •

the facts of the appointment

•

that the appointment is still current

•

all the debts of the corporation have been paid, leaving the land the subject of the transfer as a remaining asset and

•

the transferees being all the shareholders of the company are entitled to the land in the shares set out in the transfer.

If the land has not been vested in the Liquidator by a Court Order, the above practice would still apply, except that the transfer would be made in the name of the company, followed by the words in Liquidation

2.3.9

Beneficiaries

Where the registered proprietor is holding the land in trust for another person (although of course, this would not appear on the Register) and the event has occurred upon which that person is entitled to be registered as proprietor or where the registered proprietor has deposited a declaration of trust with the Registrar and is now desirous of giving effect to the declared trusts, the following procedures apply. In any transfer by the trustee, appearing therein to be the registered proprietor, the consideration in the first instance should read: “the transferee being entitled in equity to become the registered proprietor of the above described land” or “the transferor having held the above described land in trust for the transferee and in order to give effect to such trust” and in the second instance: “pursuant to the terms of Declaration of Trust F126414 and in order to give effect to it.” Where the declaration of trust is not deposited at Landgate the consideration panel in the transfer should read: “pursuant to the terms of a Declaration of Trust dated 10th September, 1993 and in order to give effect to it.”

2.3.10

Transfers of a Lot on a Strata/Survey-Strata Plan

On registration of a strata/survey-strata plan a separate title is created and registered for each of the lots on that plan including lots vested under the Planning and Development Act 2005. In a transfer of a strata lot the three sections of the land being transferred panel should (with amendments to suit the particular case) read: ‘Lot 2 on Strata / Survey-Strata Plan 2000’ ‘whole’ and ‘1600 200’ Where the transfer is prepared before the strata/survey-strata plan is registered or before the new title numbers are known then the volume and folio reference may be left blank, but the lot number and the strata plan number must be shown, as must the indication that the whole of the land in the title is disposed of.

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The reference to the unit entitlement for the lot may be included or left out. The lot automatically carries with it the unit entitlement applicable to that lot and any transfer of a lot effects a transfer of the unit entitlement. The STA as amended, provides for the creation of statutory easements and rights upon registration of a strata/survey-strata plan and each certificate of title created and registered under the provisions of that Act is automatically encumbered by those easements and benefited by those rights. Any change in common property, amendment to by-laws or any encumbrances over the common property made subsequent to registration of the strata/survey-strata plan are matters affecting the title, but are only endorsed on the strata/survey-strata plan. Accordingly each transfer or instrument dealing with strata lots must include in the Limitations, Interests, Encumbrances and Notifications panel the following: “Interests notified on the strata/survey-strata plan and any amendments to lots or common property notified thereon by virtue of the provisions of the Strata Titles Act, 1985 as amended.” or more concisely: “Interests notified on strata/survey-strata plan (followed by its number).”

2.3.11

Transfer of Part of The Common Property of a Strata/Survey-Strata Plan

The common property of a strata/survey-strata plan is held by the registered proprietors of the lots as tenants in common in proportion to the unit entitlement of their lots. The STA as amended, provides that the proprietors of the lots on a strata/survey-strata plan may, by a resolution without dissent (or unanimous resolution in the case of a two-lot scheme), direct the strata company formed on registration of a strata/survey-strata plan, through its council to execute a transfer of part of the common property (see paragraph 6.7.1). A Form 14 Certificate of Strata Company of the STGR, must be submitted with the transfer. The portion of common property being transferred must either be the subject of a strata/survey-strata plan of re-subdivision or be part of a plan or diagram of subdivision (under the T.P.&D. Act) for which the approval of the Western Australian Planning Commission has been given. In the situation where a portion of the common property is to be amalgamated with land outside the strata/survey-strata scheme, the transfer must be accompanied by an application (Form A6) to include the land in the deposited plan of subdivision in the new title which is created and registered on the transfer. 

Note: If the portion of the common property being transferred out of the strata/survey-strata scheme is not to be amalgamated with any adjoining land, the above mentioned application is not required to accompany the transfer.

2.3.12

Transfers Creating Easements and Covenants

An easement may be created by a separate document prepared solely for that purpose. These documents are treated as transfers and are referred to as such. A transfer may contain additional words creating an easement. Such an easement may be said to be created: •

by grant; where the easement is for the benefit of the transferee and burdening the appurtenant land of the transferor in the same or another certificate of title or

•

by reservation; where the easement burdens the land being transferred for the benefit of the appurtenant land of the transferor in the same or another certificate of title.

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In both cases where the land, whether burdened or benefited, is held in another title the duplicate certificate of title (if any) must be produced for the purpose of endorsement. Where an easement is created by grant or reservation simultaneously with a transfer of land then a transfer Form T2 should be used. The words creating the easement should follow the operative words of the transfer (page 2 of the form) and an Easement Only Deposited Plan should be prepared by a licensed surveyor where the land the subject of the easement is not defined as a lot on a plan or is not the whole of the land in a certificate of title. 

Note: A simple bore easement between neighbours does not require the preparation and lodgement of a Deposited Plan. A suitable sketch can be filed with the document to identify the land (see paragraph 1.9.3).

The words ‘together with a right of carriageway over’ followed by a description of the land over which the easement is to be granted, have the same meaning as if all the words contained in the Ninth Schedule of the Act had been used (s.65 of the TLA). There is no special form to create an easement by document instead of creating it in a transfer. The form to use is blank instrument Form B2 and the easement should be created by recital. Restrictive covenants are usually created by adding the required words to a transfer Form T2. These covenants must be negative in their nature and must be capable of running with the land (s.129A of the TLA). Easements and covenants are dealt with more comprehensively in Chapter 7.

2.4

Transfer of Mortgage, Charge or Lease

2.4.1

General

There are special forms printed for these purposes. A Form T3 Transfer of Mortgage Charge or Freehold Lease is used where freehold land is affected. A Form T3C is used where Crown land is affected. While the whole, or a share of the interest of a mortgage, charge or lease may be transferred, all of the land secured by the instrument must be included in the transfer. A transfer reciting only one of two or more properties secured will not be registered as such a transfer would create uncertainty as to repayments due under the instrument, and the circumstances that would constitute default. In general, encumbrances registered against the title of the mortgagor, chargor or lessor do not prevent dealings by the mortgagee, chargee or lessee. Encumbrances lodged against the mortgage, charge or lease (i.e.: against the mortgagee, chargee or lessee) must be either removed or shown as encumbrances on the transfer. In some cases the consent of the person or corporation that lodged the encumbrance must be endorsed on the form in addition to the noting of the encumbrance. For transactions over Crown land, s.18 of the LAA consent of the Minister for Lands is also required unless the Crown land is vested for purposes of another Act (see paragraph 12.1.7). Transactions over a Pastoral Lease additionally require s.134 of the LAA consent. In the case of freehold land, production of the duplicate certificate of title (if any) is desirable but will not be insisted upon for these transfers.

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2.4.2

Transfer of Mortgage

It is desirable that the tenancy between the transferees be expressed, as in the absence of an expressed tenancy a joint tenancy is presumed. Where the consideration for the transfer is a Deed of Defeasance, i.e. a mortgage of a mortgage, the consideration panel should not recite the deed but simply state: “the transferee being entitled in equity to become the registered proprietor of the mortgage “ The same consideration should be used when the mortgage is being retransferred to the original mortgagee. This form of consideration should also be used where the transfer of mortgage is for the purpose of security. The TLA does not contain provisions permitting the registration of a submortgage.

2.4.3

Transfer of Charge

A transfer of charge (or annuity) has the effect of passing the responsibility for the payment of the annuity to the transferee during the lifetime of the transferor or for the balance of the term of the annuity. On the death of the transferor or the end of the term, the annuity ceases. The charge remains an encumbrance until discharged or removed by application even though its term has expired or the annuitant is dead (see paragraph 2.7.2).

2.4.4

Transfer of Lease

The registered lease may contain provisions which affect the rights of a lessee to assign or otherwise dispose of his or her interest and/or possession of the leased premises. These provisions may result in a requirement that a transfer of lease would not be registrable without the consent of the lessor. It is preferable that the consent be endorsed on the transfer of lease, but other forms of consent may be accepted by the Registrar, so long as the intention of the lessor to consent to the transfer presented was clear. If the terms of a lease demand the unqualified consent of the lessor to any assignment, a transfer of the lease without consent will not be registered. If the terms of the lease require a qualified consent (eg: subject to the proposed new lessee being acceptable to the lessor, the transfer of lease should be accompanied by proof of that consent. A requisition will issue if the consent is not present, to give the transferor an opportunity to obtain it, but the transfer may still be registered at the lodging parties request, without it. In such cases the parties to the transaction still have the option of taking Court action to have the assignment approved on the grounds of the withholding of the consent was unreasonable. The lessee’s copy of a lease is not required to be produced with a transfer of a lease. For an example of how to fill out the document (see LTRPM Form Examples- Example 23) 

Note: A transfer of a lease and a transfer of freehold land are not to be included in the same form.

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2.5

Transfers to and from the State of Western Australia

2.5.1

Transfer and Surrender of Fee Simple Land to State of Western Australia

Land alienated from the Crown in fee simple, may be surrendered to the State. Upon surrender the land becomes unallocated lands of the State and may be dealt with by the State under the LAA. The appropriate means is by amended transfer Form T1 Transfer of Land or T2 Transfer of Land with Additional Pages. A transfer to the State of Western Australia of fee simple land requires acceptance by the Minister for Lands on behalf of the State. The normal transfer form is used with the addition of the words and surrenders in the operative words of the transfer, which would then read: “...hereby transfers and surrenders to the transferee....” While a transfer to the State of Western Australia may be shown to be subject to any encumbrances on the title, those encumbrances must be approved by the Minister for Lands before the land is surrendered to the State. The duplicate title (if any) must be produced with the transfer and surrender. If it is lost, action under s.74 of the TLA can be taken to dispense with its production.

2.5.2

Leasehold Land

A Crown Lease under the Land Act 1933 or a lease of Crown land under the LAA may be surrendered to the State of Western Australia by completing a Form S3. The surrender may only be registered when the lease is free from encumbrances (see paragraph 2.8.10).

2.5.3

Transfer of Crown Land to Fee Simple Land

The general power to dispose of a fee simple interest in Crown land under the Land Act 1933 was by way of a Crown grant by the Governor. The LAA simplified the process to purchase fee simple interests in Crown land by using conventional freehold conveyancing processes. A person now purchases a fee simple interest in Crown land by entering into a contract of sale by offer and acceptance for its purchase and then registering a transfer that conveys that fee simple interest into freehold. Before any transfer to freehold can be registered, a Crown Land Title (CLT) must exist. Where the existing Crown title is a Qualified Crown Land Title (QCLT), an application document with supporting statement as to interests must be lodged by the Department of Lands to enable the Crown title to be converted from a QCLT to a CLT. The deposited plan that supports the CLT must also be suitable to allow a transfer to freehold. The deposited plan or CLT must not state that it is Subject to Survey and no portions of land should previously have been excluded from the lot. To transfer to freehold a standard Form T1 or Form T2 can be used. On registration the Crown title Volume and Folio number is replaced with a freehold title Volume and Folio number. The lot and deposited plan numbers remain the same. Where the State of Western Australia is transferring a fee simple interest to a current lessee of Crown land, the transfer of land document must include a request for the lease to be merged and extinguished. The request to merge and extinguish the lease should be endorsed on the Transfer form itself and signed by the lessee or the lessee’s agent. Suitable words for the request are: ‘the transferee requests that Lease H987654 be merged and extinguished in the fee simple on this transfer.’ Unlike the merger of freehold leases, the merger of a lease of Crown land may be effected while the lease is encumbered or subject to a caveat. Any encumbrances on the lease that have not been removed will be carried forward to the certificate of title.

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This process will only apply where the entire lease is being converted to freehold. Where only part of the lease is to be transferred into freehold, a partial surrender of the lease must precede the transfer of land document. Crown land may also be transferred into the fee simple subject to conditions in accordance with s.75 of the LAA. This land is known as conditional tenure land (see paragraph 12.1.14).

2.6

Mortgages and Discharges

A Mortgage document is subject to the Verification of Identity Practice issued jointly by the Western Australian Registrar of Titles and Commissioner of Titles. Refer to Chapter 14.

2.6.1

Mortgage Forms

2.6.1.1

General

Section 105(1) of the TLA provides that “…the proprietor of any land under the operation of this Act may mortgage the same....” The manner in which this can be achieved is by the preparation of a statutory mortgage on a Form M1 Mortgage and the registration of that mortgage. The duplicate certificate of title (if any) must be produced. A mortgage under TLA operates as a charge against the land and not as a transfer, and a mortgagee has an interest in the land and not an estate in it. For convenience the mortgage may be viewed in two parts. An operative conveyancing part and the contractual part. 1.

The operative conveyancing part is the part of a mortgage form necessary to permit registration. It contains all of the following information: o

a description of the land

o

the estate or interest in the land

o

the Limitations. Interests, Encumbrances and Notifications affecting the land, if any

o

the name of the registered proprietor

o

the name and address of the mortgagee and tenancy if more than one

o

detail of repayments and interest

o

the operative mortgaging part, which must contain the word mortgages

o

the date of the document

o

the signature of the mortgagor and

o

the signature, address and occupation of the witness.

Prior to 1 August 2016 Providing the address of the mortgagor was necessary to permit registration. From Monday 1 August 2016 Addresses will no longer be required in the mortgagor panel of mortgage forms lodged in paper. However, where addresses are provided they will be accepted in any format on these forms. Mortgage documents will not then be sufficient to effect a change of the registered proprietor’s address on a certificate of title. Clients are to be directed to the appropriate form, generally a Form NA1, where necessary.

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2.

The contractual part of the document consists of the covenants between the mortgagee and mortgagor and it is here that there is freedom between the parties to determine their several rights and liabilities. Generally the Registrar is not concerned with the covenants beyond ensuring that any blanks in the covenants are filled and that the pages are numbered consecutively. However, the terms of the mortgage cannot be in conflict with the provisions of the Act, and care must be taken by conveyancers to ensure that the statutory rights of the mortgagee, especially as regards to default and notice, are not removed. Mortgages containing such clauses will not be registered. Banks, Financial Institutions and any other party lodging a large volume of mortgages in a standard form are requested to lodge the contractual details as a Memorandum of Common Provisions at Landgate. Each new mortgage could then be completed as a short form containing the operative part and conveyancing detail, and a reference to the memorialised contractual details. Amendments to the contractual details can only be made by inclusion in the short form mortgage or by registering a new memorandum of common provisions. The parties may modify any of the implied covenants in any mortgage. The implied covenants (s.113 of the TLA) are: o

to repay the principal sum

o

to pay interest on that sum in the manner provided

o

to repair and keep in repair buildings on the land

o

and

o

at reasonable times, to permit inspection of the mortgaged premises by the mortgagee.

Should the covenants to be inserted require more than the space provided in a Form M1 then additional sheets may be added and stapled into the mortgage form prior to signing by the mortgagor. The pages should be numbered consecutively. Inserts of a lesser size than full page are not permitted (see regulation 3 to the TLA). The form requires that only the mortgagor is to sign the mortgage in the presence of an adult witness who is not a party to the document, but there are occasions where the mortgagee must also sign. Where any alteration, to the detriment of the mortgagee, is made to a mortgage the mortgagee is required to initial the alteration and sign the mortgage in the presence of a witness. Two specific instances would be: •

where the principal sum is reduced

•

the interest rate lowered.

2.6.1.2

Landgate Updated the M1 Mortgage Form in April 2016

Landgate’s current suite of approved land registry forms are being rationalised in the interest of making land transactions as simple and efficient as possible. An updated version of the standard M1 Form is now available. This form has had the ‘Limitations, Interests, Encumbrances and Notifications’ panel removed, with the operative clause updated accordingly. There continues to be no Verification of Identity (VOI) Statement incorporated into the M1.

Cessation of Use for Out-of-Date M1 forms To assist our customers in their transition to the updated M1 form, existing approved forms will continue to be accepted for lodgement to the end of July 2016. From 1 August 2016, all Mortgage forms which contain the ‘Limitations, Interests, Encumbrance and Notifications’ panel will no longer be accepted for lodgement by Landgate. Forms containing an execution date that is prior to 1 August 2016 will be considered for lodgement on a case by case basis.

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2.6.1.3

M1A and M1B Mortgage Forms

In June 2013 Landgate increased the number of Mortgage forms available by two with the introduction of the M1A and M1B: •

the Form M1A incorporates the mortgagee’s execution of verification of identity and authority to deal statement and

•

the Form M1B incorporates the mortgagee’s execution of verification of identity and authority to deal statement by a lawyer acting for the mortgagee

These new forms had two significant differences to the M1: 1.

Verification of Identity Statement is incorporated into the form With respect to the Verification of Identity Statement incorporated into the forms, there are some limitations with respect to its use and therefore the use of the new forms. Such limitations include:

2.

o

For use only where multiple mortgagees, whether corporations or natural persons, are represented by the same lawyer.

o

It is not acceptable to strike through the VOI Statement that has been integrated within the new M1A and M1B forms. You must use the existing M1 form if you are providing a VOI Statement on a separate sheet.

The Limitations, Interests, Encumbrance and Notifications panel has been removed. As the Limitations, Interests, Encumbrance and Notifications panel has been removed from these forms, the current practice for the removal of restrictive covenants, which have expired due to a time limit within the restrictive covenant, can no longer continue. See paragraph 7.5.1.



Note: The use of the new forms is optional subject to your operational requirements.

2.6.1.4

Electronic Lodgement of Mortgages introduced

Landgate introduced the ability to lodge mortgages electronically in June 2014. See paragraphs 1.13.15 and 1.5.4.2.

2.6.1.5

Electronic Lodgement of Stand Alone Mortgages effective 1 August 2016

Industry bodies were notified of Landgate’s intention to introduce changes to the lodgement process for mortgages which will affect mortgagees, conveyancers, lawyers and lodging agents commencing the 1st August 2016.

What is Changing All stand-alone residential mortgages (mortgages to which the National Credit Code applies) must be lodged through an Electronic Lodgement Network (ELN) such as Property Exchange Australia (PEXA) ,if the mortgagee is an authorised deposit-taking institution (ADI). This requirement would not apply if the ELN is unavailable for one business day. Landgate’s definition of a stand-alone mortgage is any mortgage that is not lodged with a transfer of land, mortgage or any other document for the same Certificate of Title.

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Why these Changes are being Introduced The changes introduced will enhance efficiencies within an electronic conveyancing ecosystem. Landgate supports the Council of Australian Governments (COAG) initiative of a ‘National Digital Seamless Economy’. As a member of the Australian Registrars National Electronic Conveyancing Council (ARNECC), Landgate is aligned with other Australian jurisdictions in supporting the accelerated take-up of electronic conveyancing because it provides a more secure and robust environment for all transactions. A significant national consultation process including bodies such as ARNECC, the Australian Bankers Association and the Customer Owned Banking Association, has been led by Land Victoria. This consultation revealed a national appetite for digital transformation within a 2016 timeframe. To maintain consistency and continuity for reform, Landgate is aligning with the Land Victoria approach (leveraging the consultation scope) with an implementation date of 1 August 2016.

Preparing for the Change Landgate recommends that all ADIs, their conveyancers, lawyers or lodging agents apply as soon as is practical to become registered users of the PEXA system. Please refer to www.pexa.com.au for details. For further information, please contact Landgate’s Customer Service team on +61 (0)8 9273 7373 or email [email protected] .

2.6.1.6

Mortgage of Lease

The document Form M1 is used for the purpose of a mortgage of a lease of Crown or freehold land. In general, encumbrances registered against the title of the lessor do not prevent dealings by the lessee. Leases often state in the lease that consent in writing of the lessor is required to encumber the lease. In these instances, the lessors consent must be attached or endorsed on the form. For transactions over Crown land, s.18 of the LAA consent of the Minister for Lands is also required unless the Crown land is vested for purposes of another Act (see paragraph 12.1.7). The lessee’s copy of a lease is not required to be produced with a mortgage of a lease. A lease of Crown land by the State of Western Australia created under s.48 of the LAA over an unmanaged reserve for a purpose different to the reserve purpose cannot be mortgaged. A lease of Crown land by the State of Western Australia created under s.47 of the LAA over an unmanaged reserve for a purpose in accordance with the reserve purpose can be mortgaged. 

Note: The land description of the mortgage must additionally refer to the lease being mortgaged. For example: ‘As to Lease H123456 only’ or where the lease and mortgage are lodged together: ‘As to Lease . . . . . . . . dated 0.0.2005 made between AB (lessor) and the mortgagor only’

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2.6.2

Mortgages under the National Credit Code

The National Consumer Credit Protection Act 2009 (the Act) came fully into operation on 1st January 2011. Section 3 of the Act enacts the National Credit Code (the Code). The Code is contained in Schedule 1 to the Act.

Application of the Code Section 3 of the Code defines credit. Section 4 defines the meaning of credit contract as “a contract under which credit is or may be provided …”. Section 5 sets out the applicability of the Code. It applies to the provisions of credit and sets out the circumstances relevant to applicability. This includes mortgages registered under the TLA Under s.5 of the Code, the Code applies to credit contracts if, when the contract is entered into or is proposed to be entered into: •

The debtor is a natural person or a strata corporation.

•

The credit is wholly or predominantly: (i)

for personal, domestic or household or

(ii)

to purchase, renovate or improve residential property for investment purposes or

(iii)

to refinance credit that has been approved wholly or predominantly to purchase, renovate or improve residential property for investment purposes.

•

A charge is or may be made for providing the credit.

•

The credit provider is in the business of providing credit or even where the credit provider provides credit as part of or incidental to any other business of the credit provider.

The application of the Code to mortgages is specifically dealt with by s.7. Section 7(1) provides that the Code applies to a mortgage if: •

it secures obligations under a credit contract or a related guarantee and

•

the mortgagor is a natural person or a strata corporation.

Paragraph 2.2.6 deal with the procedures for exercising mortgagee’s power of sale in relation to Code mortgages.

2.6.3

Tenancy of the Mortgagees

Following the enactment of the Property Law Act 1969, there are two dates to consider in dealing with the interest of mortgagees.

2.6.3.1

Before 1 August 1969

Where no tenancy is expressed between the mortgagees in a mortgage lodged for registration prior to August, 1969 and the money is not stated to be advanced in particular shares, then such mortgagees were presumed to have advanced the moneys as tenants in common. Where mortgagees are expressed to be tenants in common or provided the mortgage money is expressed in shares no problem arises. Where there is a joint account clause stating that the mortgagees have advanced the money on a joint account both in equity and at law, then there is a joint tenancy and the right of survivorship is available to a survivor.

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2.6.3.2

After 1 August 1969

Where no tenancy is expressed between the mortgagees in a mortgage lodged after 1 August, 1969 the Property Law Act 1969, (s.67), provides that, unless a contrary intention is expressed, the mortgagees are presumed to be joint tenants with the attendant right of survivorship. A definition of the term mortgagee in a mortgage in a manner which indicates that survivorship is not contemplated is accepted as an expression of a contrary intention. Where there is an expressed tenancy in common or where the mortgage money is provided by the mortgagees proportionately or in express amounts, then there is a tenancy in common. The tenancy between the mortgagees is not so important while the mortgagees are alive and available to give a discharge, but difficulties, caused by poor drafting of mortgages, often arise on the death of a mortgagee, ie: in determining whether a transmission or a survivorship application is required.

2.6.4

Mortgage by a Tenant in Common of that Interest

The estate and interest being mortgaged panel should read fee simple as to one undivided half share or whatever share of the entirety the mortgagor is dealing with.

2.6.5

Mortgage by a Joint Tenant of that Interest

The estate and interest being mortgaged panel should read fee simple as to the interest of A as joint tenant with B. It should be noted that a mortgage of one joint tenant’s interest, being a charge only, does not sever the tenancy. The mortgagee’s interest in the land may die with the mortgagor should the mortgagor fail to survive the other joint tenant, but this is not certain (see FrancisMortgages and Securities 2nd Edition (1975) pages 56 and 57 and Lyons v Lyons (1967) VR169). In the event that such a mortgage is registered, and the mortgagor dies before the other joint tenant, a discharge of mortgage is required to clear the title. The exercise of a power of sale by a mortgagee in these circumstances would sever the joint tenancy.

2.6.6

Mortgage by a Life Tenant

A life tenant, having an estate and interest in land, may mortgage that estate or interest. The estate or interest being mortgaged panel of the form should read an estate for the life of A . However the life estate, being terminable, would cease on the death of the life tenant, and, with it the interest of the mortgagee. In the event that such a mortgage is registered and the mortgagor dies, on an application by the remainderman to merge the two estates, a discharge of mortgage is required to clear the title.

2.6.7

Mortgage by a Remainderman

The remainderman also has an estate or interest in land capable of being mortgaged. The estate or interest being mortgaged panel of the form should read the estate in fee simple in remainder of A expectant upon the death of B. On the death of the life tenant the interest of the mortgagee enlarges to cover the fee simple in possession.

2.6.8

Mortgage by Life Tenant and Remainderman Together

This mortgage is of the entire interest in the land being mortgaged and no special words are required in the estate or interest being mortgaged panel beyond the words fee simple and the mortgagor panel need only show the names and addresses of the registered proprietors without special reference to their being life tenant and remainderman.

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2.6.9

Mortgage by Personal Representative

Where, on the death of a registered proprietor, an executor or administrator has entered transmission and became registered as proprietor of the land to be mortgaged, such executor or administrator may mortgage the land: •

For the purpose of administration (s.10(3) of the Administration Act 1903). A statutory declaration setting out the circumstances is required.

•

Where power to mortgage is given in the will. Production of an office copy of the Grant of Probate is the only evidence required.

•

With the consent of all the beneficiaries where no power to mortgage is given in the will. A statutory declaration identifying the beneficiaries is required where the beneficiaries are not named in the will. and

•

Pursuant to the Trustees Act 1962. s.30(1)(a)(c)(d)(e)(h) and 43 permits a trustee (executor or administrator) to mortgage under the circumstances set out therein. A statutory declaration setting out the circumstances is required.

For mortgages by an executor or administrator who is described as such on the certificate of title the mortgagor panel of the form should read: A of address as executor of the Will of B deceased or A of etc as administrator of the estate of B deceased.

2.6.10

Mortgages - Double Interest

Provided there is only one principal sum, that is, one amount of money lent to the mortgagors, then one mortgage may be registered on the joint and/or separate lands of the mortgagors. Successful registration of this type of mortgage depends not only upon accurate description but also upon careful separation of the lands being mortgaged and the inclusion of separate mortgaging parts for each interest mortgaged. In a case where A and B own separate pieces of land and are obtaining a joint advance from a mortgagee in one mortgage the appropriate panels of three sections of the Land Being Mortgaged panel should (with amendments to suit the particular case), read: “Description of land being mortgaged: Firstly:

‘Lot 10 on Plan 12345’ ‘whole’ and ‘606 69’;

Secondly:

‘Lot 11 on Plan 12345’ ‘whole’ and ‘606 66’;

Mortgagor: as to the land firstly above described A of address; as to the land secondly above described B of address” The printed operative mortgaging part should be deleted and initialled by the parties and the following operative mortgaging part drawn on an annexure sheet or on a page forming part of the mortgage where space permits: “For the purpose of securing the payment in the manner aforesaid of the principal and interest the said A mortgages to the mortgagee the estate and interest herein specified in the land firstly above described subject to the encumbrances as shown hereon and the said B mortgages to the mortgagee the estate and interest herein specified in the land secondly above described subject however to the encumbrances as shown hereon.”

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The same considerations apply where the mortgagor is two persons and part of the subject land is held by them as joint proprietors and part by one of them in his or her own right. The form is the same with appropriate changes in detail.

2.6.11

Mortgage to a Trustee

Where the mortgagee is a trustee, no reference to the trust should appear in the mortgagee panel. However the trust may be referred to in the contractual part of the document, as this will not be reflected in the entry made upon the Register.

2.6.12

Up Stamping a Mortgage

Many mortgages contained provisions permitting an increase in the amount advanced to the mortgagor. The mortgage secured the amount protected by the payment of stamp duty at the time of registration. Any further advances in excess of that amount were deemed to be a new and separate instrument of security and were protected by resubmitting a duplicate of the registered mortgage to the Office of State Revenue (Stamp Duties Division) for payment of the additional duty. (or, for those corporations so authorised, updating the duty using the procedures set out in Sec. 112V of the Stamp Act). In accordance with s.83(7) of the Stamp Act, the payment of additional stamp duty on the duplicate mortgage has the same effect as if the original registered mortgage held at Landgate was up stamped. The practice was known as Up Stamping a mortgage. Although the payment of the additional stamp duty maintains the duplicate mortgage as a valid and enforceable security document for the new, increased amount, the mortgage registered in the Titles Register remained unchanged (i.e. showing the stated principal sum). The common law rules of equity decide the circumstances in which the increased amount will have the same priority as the first mortgage against any later mortgages. (The rule of Hopkinson v Rolt).

2.6.13

Extension of Mortgage

In any extension of mortgage there is a special printed Form E1 Extension of Mortgage (see LTRPM Form Examples- Example 17). The duplicate certificate of title (if any) must be produced. The TLA, s.105A, provides that a mortgage may be extended. In any extension of a mortgage: •

the term of the mortgage must be extended by a least one day

•

there cannot be any increase in the principal sum of the mortgage. A further mortgage is required if the principal sum is to be increased

•

where the extension pertains to a demand mortgage a finishing date is required to be stated

•

where the extension indicates that part of the principal sum has been repaid, then the extension must be preceded by a partial discharge of the mortgage as to the amount repaid

•

a variation of the interest rates and other terms may be incorporated in the extension provided some extension of the time period is made. A variation of mortgage by itself is not permitted

•

being an instrument defined under the TLA registration of the extension is prevented by absolute caveats, property (seizure and sale) orders and certain memorials until removed and

•

both mortgagee and mortgagor must sign in the presence of an adult witness and the address and occupation of the witness must be shown.

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A person lodging an extension of mortgage should obtain the consent in writing of the proprietor of any mortgage or encumbrance lodged after the mortgage being extended [s.105A(3)]. Registration of the extension will not be refused if such consent is not obtained though it is practice to advise the lodging party that the consent is desirable. Where a subject to claim caveat has been lodged against the land and it is not being removed, there must appear in the body of the document (above the signatures) a statement to the effect that: “This instrument is subject to the claim of the caveator in Caveat........, otherwise the extension will not be registered.”

2.6.14

Discharge of Mortgage

2.6.14.1

Discharge or mortgage form

There is a printed form of Discharge, Form D1 for use in most cases. If only some of the Mortgagees are discharging, a Form D3 Discharge of Mortgage should be used. This is an alternative to lodging a transfer of mortgage. This type of discharge (FormD3) must be assessed for stamp duty prior to registration. A discharge may be: •

total as to both land and money, see LTRPM Model Form Examples- Example 13

•

partial as to money over the whole of the land i.e.: the principal sum is reduced, see LTRPM Model Form Examples- Example 14

•

partial as to land from the whole of the money i.e.: the security is reduced, see LTRPM Model Form Examples- Example 15 and

•

partial as to money over the whole of the land by some of the Mortgagees ie: the number of Mortgagees is being reduced, see LTRPM Model Form Examples- Example 16.

A discharge may not be partial as to land and partial as to money for the reason that no particular piece of land would be entirely released from the mortgage. The land to be discharged must be properly identified, and discharged from the whole of the money. The form does not provide for a consideration but should it be desired to show a consideration for the release of any land from the mortgage the space to use is immediately below the panel ‘If portion only of the money being discharged’ as shown in LTRPM Model Form Examples- Example 14. All mortgagees must join in and sign a discharge (Drake v Templeton 1913 16 CLR P153 at 158). Where one of the mortgagees as a tenant in common is dead then the executor or administrator must enter transmission and join in the discharge in that capacity. If the deceased mortgagee was a joint tenant then the other tenants must apply to be entered by survivorship as the proprietors of the mortgage before a discharge by the survivors may be accepted. It is desirable but not essential that the duplicate title (if any) be produced when a Discharge of Mortgage is registered, and it becomes even more desirable when the mortgage being discharged is the only remaining mortgage on the land. 

Note Where the duplicate of a digital title has been produced with the discharge, the Registrar will cancel it and create and register a new edition of the duplicate title. Where the duplicate of a paper title has been produced with the discharge, the Registrar will endorse the discharge on that duplicate title.

Landgate introduced the ability to electronically lodge a Discharge of Mortgage in June 2014. See paragraph 1.13.15.

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2.6.14.2

Electronic lodgement of Stand Alone Discharges of Mortgages effective 1st August 2016

Industry bodies were notified of Landgate’s intention to introduce changes to the lodgement process for discharges of mortgages which will affect mortgagees, conveyancers, lawyers and lodging agents commencing the 1st August 2016.

What is Changing A discharging mortgagee, their conveyancer, lawyer or lodging agent must lodge all stand-alone discharges of mortgages with Landgate. The practice of providing discharges of mortgages to registered proprietors to lodge will no longer be acceptable. If the mortgagee is an authorised deposit-taking institution (ADI), all stand-alone discharges of mortgage must be lodged through an Electronic Lodgement Network (ELN) such as Property Exchange Australia (PEXA). This requirement would not apply if the ELN is unavailable for one business day. Landgate’s definition of a stand-alone discharge of mortgage is: any discharge of mortgage that is not lodged with a transfer of land, mortgage or any other document for the same Certificate of Title.

Why the Changes are being introduced The changes introduced will enhance efficiencies within an electronic conveyancing ecosystem. As a member of the Australian Registrars National Electronic Conveyancing Council (ARNECC), Landgate is aligned with other Australian jurisdictions in supporting the accelerated take-up of electronic conveyancing because it provides a more secure and robust environment for all transactions. A significant national consultation process including bodies such as ARNECC, the Australian Bankers Association and the Customer Owned Banking Association, has been led by Land Victoria. This consultation revealed a national appetite for digital transformation within a 2016 timeframe. To maintain consistency and continuity for reform, Landgate is aligning with the Land Victoria approach (leveraging the consultation scope) with an implementation date of 1 August 2016.

Preparing for the Change Landgate recommends that all ADIs, their conveyancers, lawyers or lodging agents apply as soon as is practical to become registered users of the PEXA system. Please refer to http://www.pexa.com.au for details. For further information, please contact Landgate’s Customer Service team on +61 (0)8 9273 7373 or email [email protected] .

2.6.15

Discharge - Where Mortgagee Absent from WA

Where a registered proprietor wishes to repay the mortgage and the mortgagee is absent from Western Australia and there is no one authorised to give a receipt for the mortgage money at or after the date appointed for payment, then the mortgage money and interest to date may be paid to the Treasurer of the State and upon production of the receipt of the Treasurer, the Commissioner, on being satisfied that the correct amount has been paid, will direct the Registrar to remove the mortgage as an encumbrance (s.126(1)). The document by which this procedure is achieved is an Application by the registered proprietor applying to remove the mortgage as an encumbrance from the certificate of title. It is not strictly a discharge but has the same effect. The application must be accompanied by a statutory declaration of the registered proprietor in which is set out an accounting of the amount owing to the mortgagee at a given date. As an annexure to the declaration there must be a receipt of the Treasurer.

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The following is an example of a suitable form: Received from ......... as Solicitors and Agents for A of etc. the registered proprietor of the land hereinafter described the sum of ........ being the principal sum secured by Mortgage No. ........ together with the sum of ......... being interest to the date hereof which sum is paid in satisfaction of all moneys due under the said mortgage to C of etc. the said C being unable to give a discharge of the said mortgage the said C being absent from Western Australia. The sums are paid under the provisions of s.126 of the Transfer of Land Act 1893. The said A is registered as proprietor of all that piece of land being (correct land description). Dated this day of _____ 20____. Treasurer 

Note: Where the duplicate of a digital title has been produced with the application, the Registrar will cancel it and create and register a new edition of the duplicate title. Where the duplicate of a paper title has been produced with the application, the Registrar will make an appropriate entry on that duplicate title.

2.6.16

Discharge - Payment to Absent Mortgagee

Where money paid on behalf of an absent mortgagee to the Treasurer of WA is claimed by the mortgagee and upon receiving a request in writing, the Registrar will make a request to the Treasurer in the following form: The Honourable Treasurer In the terms of s.126(1) of the Transfer of Land Act 1893 I hereby require you to pay to A of etc. (the mortgagee) or (to I M Legal & Co the mortgagee’s solicitors) the sum of (the amount paid to the Treasurer) together with any interest accrued thereon paid to you on the (date of payment) on account of principal and interest due under Mortgage 12121/1966 given by C of etc. (the mortgagor) to the said A which said moneys were paid to you by Messrs Law Book & Co, Solicitors of Perth solicitors for the said C. Dated this ____day of ______ 20 ____. Registrar of Titles

2.6.17

Discharge - Where the Mortgage Money has Been Paid and the Mortgagee is Dead or Absent from the State or Cannot Be Found

Again this document is an Application and strictly, not a discharge, although it has that effect. The application, to have an entry made on the title discharging mortgage (Number) pursuant to the provisions of s.126(2), is made by the registered proprietor on a Form A5 Application. Where the registered proprietor has paid the mortgage debt and is unable to obtain a discharge, because the mortgagee is dead and there is no personal representative or the mortgagee is absent from the State or cannot be found and there is no person authorised to sign a discharge of the mortgage the registered proprietor may make an application to the Commissioner for the mortgage to be removed as an encumbrance. Very strict proof of payment of the money is required by the Commissioner before granting such an application. The statutory declaration of the registered proprietor should set out a strict accounting of the payments of principal and interest and be accompanied by proof of payment, by way of annexures to the declaration, of receipts, cheque butts, bank statements, etc. Other supporting declarations by agents, bank managers or accountants from whom further proof of payment can be obtained, should be supplied.

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When satisfied that the money has been paid in full and that the provisions of s.126(2) have been met the Commissioner directs the Registrar to discharge the mortgage as an encumbrance. 


2.6.18

Mortgage - Merger of Mortgage

Where land is transferred to a person who is the mortgagee of that land there is a merger at law. However it is not the practice to merge the mortgage automatically. The mortgagee/transferee will be asked to request a merger of the mortgage. This request should be endorsed on the transfer and signed by the transferee or the transferee’s agent as follows: “The transferee requests that mortgage F345678 be merged and extinguished in the fee simple.” When the transfer of land is registered, the mortgage ceases to have any effect.

2.6.19

Discharge by a Company or Incorporated Body

In the case of a company the discharge must be under the Common Seal of the company or its registered attorney and be properly attested. In the case of a body under the Associations Incorporation Act 1987 the discharge must be under the Seal of the Body and be accompanied by a statutory declaration by the seal holders (see paragraph 1.10.14).

2.6.20

Discharge by a Friendly Society

The discharge must be attested by a majority of the trustees for the time being. A registered certificate of trustees should be available at Landgate, and recorded on the internal information system known as Ditbook. If not available, such a certificate should be obtained from the Registrar of Co-operative and Financial Institutions and registered at Landgate.

2.7

Charges and Discharges

2.7.1

Charge

Section 105(1) of the TLA provides that “the proprietor of any land under the operation of this Act ..... may charge the same with the payment of an annuity.” The manner in which this can be achieved is by the preparation of a statutory charge on a Form M2 Charge and the registration of that charge. The duplicate certificate of title (If any) must be produced. A charge is defined in s.4 of the TLA as: “the instrument creating and charging an annuity.” An annuity is defined as: “a sum of money payable periodically and charged on land under the operation of the TLA by an instrument there under.” A charge, therefore, is a security for a sum of money paid periodically for the life of the chargee or some shorter defined period. It should have either a commencement date or a date for the payment of the annuity in each year. A charge cannot be for a fixed amount of money. A mortgage is the appropriate security in such a case. A charge does not operate as a transfer and is treated in much the same fashion as a mortgage. It may be discharged on production of a discharge signed by the chargee or the chargee’s personal representative after transmission.

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A survivorship application is used in the case of joint annuitants where one is dead. Where all are dead a survivorship application is required to precede a transmission application by the personal representative of the last surviving annuitant. The form to use is Form A4 Application By Survivor to be the Registered Proprietor of a Mortgage Charge or Freehold Lease as shown in LTRPM Form Examples- Example 6, with the recital modified as shown in LTRPM Form Examples- Example 3.

2.7.2

Discharge of Charge

There is a printed Form D2 Discharge of Charge for this purpose. A discharge of charge may be: •

total as to annuity and land

•

partial as to land, total as to annuity and

•

partial as to annuity, total as to land.

The examples given as a guide for discharges of mortgage may be use to assist in the preparation of discharges of charge.

2.7.3

Discharge - Where Annuitant is Dead and there is No Personal Representative

The document by which this is achieved is an application on a Form A5 Application with the effect of a discharge. Application may be made to the Commissioner under s.125 of the TLA to remove the charge as an encumbrance. Proof to the satisfaction of the Commissioner, is required as to the death of the annuitant or the occurrence of the event by which the annuity ceases to be payable and as to the payment of the annuity during the lifetime of the annuitant and up to the date of death, before a charge may be removed as an encumbrance. A charge remains an encumbrance on the land until discharged or removed. 


2.7.4

Extension of Charge

The term of an annuity may be extended by the registration of an Extension of Charge using printed Form E1 Extension of Mortgage adapted for the purpose.

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2.8

Leases of Land

2.8.1

Form

The TLA provides for the registration of a lease under the operation of the TLA for any term (excluding options to renew) exceeding three years for freehold land or exceeding 12 months for Crown land. Where a lease is lodged in respect of a digital title, the digital title is the Register for the lease and any interests registered against the lease. Where a lease is lodged in respect of a paper title, the lease remains the Register for any interests registered against the lease. A duplicate copy of a lease may be lodged for registration along with the original. If the duplicate lease is produced for a dealing to be lodged against the lease, the duplicate lease will be endorsed (and if necessary updated) to show all the relevant interests registered against the lease. The duplicate certificate of title (if any) must be produced when a lease is lodged for registration. The consent of any mortgagee or annuitant registered in priority to the lease is required (s.91 of the TLA). A lease must be prepared on a: •

Form L1 Lease for a lease of freehold land or

•

Form L1C Lease of Crown Land for Crown land.

The lessor (registered proprietor or management body of the land) and the lessee must both sign the form before adult witnesses and the duplicate certificate of title (if any) must be produced. Where the lease relates to portion of a Lot or Location, it must have a Land Description that is defined by a sketch or an Interest Only Deposited Plan. A lease of part of a building may have a narrative land description (see paragraph 2.8.4). A lease by the State of Western Australia as lessor that is as to a part of a Lot must be supported by an Interest Only Deposited Plan with a CSD File that is capable of being shown on SmartPlan. A CSD File is not compulsorily for a lease over a portion of a building. The term of the lease must be clearly defined, i.e.: must have a commencement date (which may be a past date or up to 21 years in the future) and either a finish date or a finite term. Unless a lease of freehold land is of a whole lot or lots the consent of the Western Australian Planning Commission is required where: •

the term of the lease, including any option to renew, exceeds twenty years and

•

the terms of a lease, in the aggregate, exceed twenty years including any option to renew.

A lot as defined in the Planning and Development Act 2005, includes the whole of the land in a certificate of title (see s.4 and 136). Leases of Crown land over a part of a Lot do not require Western Australian Planning Commission consent. A lease of Crown land by the State of Western Australia is acceptable over an unmanaged reserve. Section 47 of the LAA allows for a lease for a purpose in accordance with the reserve purpose and s.48 of the LAA allows for a lease for a purpose different to the reserve purpose but compatible with a future intended purpose. Leases created under s.47 may be mortgaged while a s.48 lease cannot be mortgaged.

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A lease of Crown land by the State of Western Australia cannot be registered over a managed reserve. A lease required over a managed reserve should be created by the management body where they have the power to lease. 

Note: In the case of a digital title it is not necessary to search the original lease to find out if any interests have been registered against the lease. All current registered interests have been brought forward onto the digital title as part of the conversion and back capture of paper titles (see paragraph 1.3.14).

2.8.2

Options to Renew a Lease

A lessee’s right arising from an option or series of options to renew the lease are protected by registration. Any further instruments lodged on the lessors title after the expiry of the initial term, but within the period of an option, must either show the lease as an encumbrance or provide evidence that the options were not exercised. Conveyancers searching a lease to ascertain whether it has expired should also consider the effect of s.13 of the Commercial Tenancy (Retail Shop) Agreements Act 1985. The best evidence would be a statutory declaration by the lessee that the option was not exercised, and that neither the lessee or any transferees or assignees of the lessee are in possession of the premises. A declaration in similar terms by the lessor but including details of the lack of availability of the lessee to make the declaration previously referred to will be considered on its merits. Registration will only protect options to renew the lease of the original premises, and options to extend the lease to additional premises are better protected by caveat (as to the area of the extension). Prior to 1991 the endorsement of the lease on a certificate of title only showed the initial term of the lease, and the existence and details of options to renew the lease could only be ascertained by searching the original document. From September 1991 this practice was changed to endorse the commencement date of the initial term, and if the lease contains options for renewal the endorsement contains the words: “....... together with an option for renewal”...... In the case or a digital title, the endorsement will only contain the proprietorship of the lease.

2.8.3

Option to Purchase

A lease may contain a provision granting the lessee the right in certain circumstances to purchase the fee simple of the leased premises from the lessor. The registration of that lease does not protect the lessee, although the lodgement of a caveat claiming an interest based on the option to purchase supported by the lease would.

2.8.4

Narrative Description of Buildings

A lease of part of a building may have a land description defined by sketch, or by words referring to permanent walls. Care should be taken that in referring to parts of a building that any areas outside the building also included in the lease (such as parking or storage areas) are not forgotten. For example, a lease with a land description panel reading: “The first floor of the CSA Centre, erected upon Lot 16 on Plan 13455, the whole of the land in Certificate of Title Volume 99 Folio 100” can be registered without requiring a sketch showing the measurements of the leased area, of the building in relation to the boundaries of the land parcel (Lot 16).

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2.8.5

Covenants by the Lessee

Section 92 of the TLA sets out implied covenants which apply, whether written into the lease or not, unless expressly negatived. Briefly, these are: •

to pay the rent and rates and taxes and

•

to keep the property in good repair and yield up the property on termination of the lease.

2.8.6

Powers of the Lessor

Section 93 of the TLA sets out implied powers of the lessor. Briefly, these are: •

to inspect the leased premises at reasonable times and

•

where the rent is in arrears for one month, to re-enter upon the premises and take possession thereof.

2.8.7

Short Form of Covenants

Section 94 of the TLA provides for the use of short forms of covenants in the drafting of any lease. The Twelfth Schedule to the TLA sets out the short and long forms of covenants. Where the short form of covenant is used the lease is construed as if the long form of covenant had been used. Exceptions and qualifications may be added to the short form of covenant with a similar effect on the long form of covenant.

2.8.8

Memorandum of Common Provisions

A Memorandum of Common Provisions, containing the covenants and contractual obligations of the parties to the lease may be lodged at Landgate in the same manner as a Memorandum of Common Provisions of a Mortgage (see paragraph 2.6.1).

2.8.9

Transfer of Lease

See paragraph 2.4.4.

2.8.10

Surrender of Lease

There is a printed Form S1 Surrender of a Lease for the surrender of a lease of freehold land (see LTRPM Form Examples- Example 21) and a Form S3 Surrender of Lease for the surrender of Crown land. The surrender of a Freehold lease or a lease of Crown Land by a Management Body may only be registered when the lease is free from encumbrances, however encumbrances against the land continue. On the surrender of a lease of Crown Land by the State of Western Australia, any sub-lease under that lease and any interest or caveat affecting the sub-lease may continue to subsist, whereas all other encumbrances affecting the lease must be removed (refer to s.81 of the LAA). It is not necessary to produce the duplicate certificate of title (if any). Alternatively, the lessee’s copy of the lease may be produced, endorsed with the word SURRENDERED, together with the date and properly attested signatures of the lessee and lessor. This will be accepted as a surrender of the lease in lieu of the printed form specified above. Where the lease to be surrendered is followed by a concurrent lease, the surrender must be made between the lessee and the concurrent lessee.

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2.8.11

Recovery of Possession by Lessor (Section 96)

Where the lessor has recovered possession of the leased land from the lessee by Court order application may be made to the Commissioner to have the lease determined. Upon satisfactory proof the Commissioner may direct that an entry be made on the Register determining the lease. The application is made on a Form A5, with the Court Order as evidence supported by a statutory declaration reciting the facts and explaining any differences in the details of the lease shown on the title and the details shown in the Order.

2.8.12

Re-Entry by Lessor or Sub-Lessor (Section 104)

Where it can be proved to the satisfaction of the Commissioner that the lessor or sub-lessor has reentered into possession of the leased premises in strict conformity with the provisions of re-entry contained in the lease or sub-lease or that the lessee has abandoned the leased premises and the lease and the lessor has re-entered undisturbed, the Commissioner may direct the Registrar: •

in the case of a lease, to make an entry on the certificate of title for the land the subject of the lease

•

in the case of a sub-lease of land that is the subject of a digital title, to make an entry on that certificate of title or

•

in the case of a sub-lease of land that is the subject of a paper title, to make an entry on the sub-lease.

The application is made on a Form A5, with supporting evidence such as notices introduced by a statutory declaration setting out the circumstances of the re-entry. The documents in the preceding two paragraphs are Applications but as they are exclusive to Leases they are included in this chapter.

2.8.13

Merger of Lease

Where the lessee of freehold land purchases the fee simple of the land being leased, it is office practice not to effect a merger unless requested. The request to merge should be endorsed on the transfer to the lessee and signed by the lessee or the lessee’s agent. Suitable words for the request are: “The transferee requests that Lease F987654 be merged and extinguished in the fee simple on this transfer. A memorandum to that effect is endorsed both on the certificate of title and the lease.” The lessee’s copy of a lease is not required to be produced with the transfer. The merger may not be effected while the lease is encumbered or subject to a caveat. The encumbrance or caveat must be removed.

2.8.14

Sub-Lease

A lease of a lease (sub-lease) may be registered and there is a printed Form L2 for a sub-lease of freehold land and a Form L2C for a sub-lease of a lease of Crown. The sub-lease may be for any part, not less than three years for a sub-lease of a lease of freehold land and not less than 12 months for a sub-lease of a lease of Crown land, or all of the term of the lease less one day. A sub-lease for the whole period of the lease would operate as a transfer of the lease and for that reason is unacceptable as a sub-lease. Any consents required by the terms of the lease must be endorsed on the sub-lease. For transactions over Crown land, s.18 of the LAA consent of the Minister for Lands is also required unless the Crown land is vested for purposes of another Act (see paragraph 12.1.7).

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In general, encumbrances registered against the title of the lessor do not prevent dealings by the lessee. Encumbrances lodged against the lease must either be removed or shown as encumbrances on the sub-lease form. The lessee’s copy of a lease is not required to be produced with a sub-lease of a lease. A sub-lease lodged after an existing mortgage on the head lease should include consent of the mortgagee to prevent any removal of the sub-lease on any default of the mortgage. A sub-lease lodged before any new mortgage on the head lease is not wiped on any default of that mortgage. Consent by the sub-lessee is not required for any mortgage or caveat by the sub-lessor unless it is expressed in the sub-lease. A sub-lease may include variations of the lease, however, any variations included cannot alter the lease area or the term of the lease. A duplicate copy of a sub-lease may be lodged for registration along with the original. In the case of a sub-lease of land which is the subject of a paper title, the memorandum of the sublease is endorsed on the original registered lease. It is not shown on the relevant certificate of title. In the case of a sub-lease of land which is the subject of a digital title, the memorandum of the sublease is endorsed on the relevant certificate of title. It is not shown on the original registered lease. It is desirable but not essential that the duplicate title (if any) be produced when a Sub-Lease is registered.

2.8.15

Concurrent Leases

After a lease has been granted, another lease for the same land or building may be granted, for a term beginning before the expiration of the first lease. The second lease, known as a concurrent lease, may end either before or after the first lease. For example, the owner of a shopping centre may lease out several or all of the shopping units in the centre for a variety of terms, then lease again the whole centre to another party. To create a valid, registrable concurrent lease the conveyancer must ensure all of the following: •

specify that the lease is a concurrent lease, and that it has been granted subject to the existing leases

•

ensure the concurrent lessee is a different person or corporation from the prior lessee(s) (if the concurrent lessee is also a prior lessee, the prior lease must be surrendered)

•

specify a term that must commence within the term(s) of the lease(s) already lodged, and may extend beyond the expiry date of the earlier lease(s)

•

show the existing lease(s) as an encumbrance.

A concurrent lease may be mortgaged, and the terms of the lease (if any) or the terms of the prior leases will set out the nature of any consents required before the lessee can do so.

2.8.16

Extension of Lease

The term of a registered lease may be extended by the registration of an extension of lease using printed Form E2 Extension of Lease adapted for the purpose (see LTRPM Form Examples- Example 18). The Form E2 can be used for an extension of lease of freehold or Crown land. The lessee’s copy of a lease is not required for an extension of a lease. The duplicate freehold title (if any) must be produced with an extension of freehold lease. As the extension is an instrument, encumbrances affecting the leased land recorded after the lease must be shown on the form, and the consents (if any) required by the terms of the lease obtained. For transactions over Crown land, s.18 of the LAA consent of the Minister is also required unless the Crown land is vested for purposes of another Act (see paragraph 12.1.7). An extension of lease may include variations of the lease, however, any variations cannot alter the leased area.

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2.8.17

Variation of Lease

A Form V3 Variation Lease is to be used for a variation of a lease of Crown land. This form can be downloaded from Landgate’s corporate website at Forms and Fees/ Land titling forms/ Crown land titling forms. A variation of lease cannot alter the leased area or the term of the lease. The lessee’s copy of a lease is not required for a variation of lease. Where the term of a lease is to be increased, an extension of lease form should be used. Where the parties are to be varied, a transfer of lease form should be used. An extension or transfer of lease form can include variations to the lease. Where the area of the leased premises is to be varied, a surrender of lease form should be used where the leased premises are being decreased and a new lease granting the additional area of land is to be prepared where the leased premises are being increased. 

Note: A variation document of a freehold lease cannot be accepted for registration, however, variations to a freehold lease can be included in an extension of lease, sub-lease or transfer of lease document.

2.8.18

Removal of Expired Term Lease of Crown Land

There is no legislative means to deal with the administrative need to remove Crown leases that have expired from the nominal index database or digital Crown register. If the information relating to an expired Crown lease is not removed from the database or register, incorrect information for searching purposes will be shown in the database and on the register. Since the proclamation of the LAA, Landgate commenced the collection of Crown lessee details on its nominal index database to enable the searching of registered leases (granted by both the State of Western Australia and management bodies/agencies) over Crown land. The information in the nominal index database and digital Crown register is document driven and as such requires both a document to enter information and to remove it. To overcome this problem, a procedure was developed that enables the use of an existing power of the Commissioner for Titles under s.184 of the TLA (to remove certain encumbrances from the register that have ceased to affect the title). Under s.184 of the TLA, the Commissioner must be satisfied that any rights or interests notified as an encumbrance on the certificate of title have been fully satisfied, extinguished or otherwise determined and no longer affect the land. Where a lease granted over Crown land has expired, the management body (lessor) or sub lessor for a sub-lease, must apply to the Commissioner for Titles to remove the expired lease. This is done by lodging a Removal of Expired Term Lease document Form E3 Removal of Expired Lease completed by the management body. Lessors must be aware that no registered interests or encumbrances relating to an expired Crown lease can be carried forward to a new lease. If any registered interest or encumbrance holder continues to have a valid claim against the leasehold interest, with the agreement of the lessor, the lessor should arrange for a new interest or encumbrance to be prepared and registered against the new lease. The Removal of Expired Term Lease document is usually accompanied by a statutory declaration that clarifies the current status of the land, confirms that the term of the lease has expired and advises that any persons with interests or encumbrances affecting the leasehold interest endorsed against the land are aware that their interest or security in the leasehold interest has ceased to exist. A number of alternative scenarios in relation to the removal of expired Crown leases from the Register are provided below.

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When a Removal of Expired Term Lease document is lodged: 1.

simultaneously with a new Lease to the same lessee and no encumbrances exists, then no further evidence is required.

2.

separately and a new Lease to the same lessee is to be lodged later and no encumbrances exists, then a Declaration in support is required from the lessor stating that the lessee is: o

still in occupation of the land

o

aware and has been advised that the lease has expired and a new lease is currently being negotiated with the lessee, and

o 3.

free of encumbrances or interests (see LTRPM Form Examples- Example 26).

where the Lease is subject to encumbrances or interests (mortgage, caveat or other interest): o

The lessor must give the interest holder 21 days’ notice that the Commissioner is to be requested to remove the expired leasehold interest from the Register. and

4.

5.

o

Upon removal, any encumbrance or interests against the lease will be removed as well (see LTRPM Form Examples- Example 27).

o

A Declaration in support is required from lessor stating who is in occupation of the land, the lessee is aware and has been advised that the lease has expired and a new lease is currently being negotiated with the lessee or that the lessee no longer has a leasehold interest, the encumbrances or interests that are against the lease, details of the notices sent including whom and what date, and what replies, if any, to the notices have been (see LTRPM Form Examples- Example 28).

o

A copy of all notices and any replies must be attached to the declaration.

o

The Commissioner requires some form of acknowledgement from a mortgagee or caveator as to their awareness that their interest ceases to exist, whether they agree with the removal of the expired lease and whether their interest is intended to be renewed against a new replacement lease lodged simultaneously with the removal of the expired lease.

and a former lessee no longer occupies the land: o

A Declaration in support is required from lessor stating lessee is no longer in occupation of the land and has no ongoing tenancy arrangement, and the lessor is no longer collecting rent from the lessee.

o

Where encumbrances exist the same notice provisions and additional declaration statements as above apply.

and a lessee option to renew is not exercised the standard requirements as above apply as if the lease has expired. Copies of any evidence that the lessee has not exercised their option to renew are to be attached to the declaration. This may include evidence of a new tenant in occupation of the premises.

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6.

where the Lease includes a termination of lease upon death clause proof of death of the lessee is required by either certified copy of the death certificate or probate being produced. o

A Declaration of identity is required and should state the land, lease, lessee, date of death and that the person shown on the death certificate is one and the same as the lessee.

o

Where encumbrances exist the same notice provisions and additional declaration statements as above apply.

o

There is no document registration fee payable for the lodgement of a Removal of Expired Term Lease document.

2.8.19

Forfeiture of Lease of Crown Land

Where a lessee of a lease of Crown land created by the State of Western Australia is in breach of the lease conditions, the Minister must give the lessee notice of the nature of that breach if it is intended to forfeit the lease. On expiration of the appeals period or on determination of any appeals the Minister may lodge a Forfeiture Order to forfeit the lease. The Forfeiture Order removes the lease from the register, however, may allow an existing sub lease or caveat to continue despite the forfeiture of the lease. Production of the duplicate lease is not compulsory. Where a mortgage of the lease or where an existing sub-lease has not been identified to continue, the Registrar of Titles pursuant to s.81F of the TLA will delay the registration of the forfeiture order until notice of the proposed forfeiture has been given to the mortgagee and/or sub-lessee of the land. The mortgagee or sub-lessee then has the option to complete the outstanding requirements and/or pay the outstanding rent, to preserve the lease as a security, and apply to the Minister to waive the forfeiture.

2.8.20

Pastoral Leases

Pastoral leases under the Land Act 1933 and the LAA generally have a fifty year term and cannot be converted to freehold. All current pastoral leases under the Land Act 1933 expired in the year 2015. Pastoral lessees of LAA leases are able to apply for a renewal of their pastoral lease during the period 12 months before the date 10 years before the expiry of a pastoral lease.

Temporary Care, Control and Management of Pastoral Lease If the Pastoral Lands Board is of the opinion that a pastoral lease has been abandoned, or otherwise left without proper care, control and management, it may recommend to the Minister that the Board be authorised to assume temporary care, control and management of the lease. Where a Temporary Care, Control and Management Authorisation document is registered against the lease it takes priority over all other charges against the lease. The Pastoral Lands Board consent is required for any further encumbrances against the lease and the Authorisation document must be removed prior to any Transfer or Surrender of the lease. The Authorisation document does not remain on the Crown title upon forfeiture or expiration of the lease.

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2.8.21

Removal of Expired Freehold Lease

An expired Lease of freehold land can be removed by Surrender of Lease, (see paragraph 2.8.10 and Form S1) or the registered proprietor/lessor of the land in a title can apply on Form A5 Application, for the removal of the expired Lease on the grounds that the term of the lease, any extensions and/or options to renew have expired. The application should be supported by a statutory declaration made by the proprietor/lessor that: •

recites his or her ownership of the relevant land;

•

quotes the lease registration number;

•

refers to the term of the Lease by reference to the details or clauses in it, and thus the expiration of that term;

•

refers to any provisions in it for its extension, and whether it was so extended;

•

refers to the expiration of any such extension and negates any other form of condition of the Lease; and

•

requests the removal of the Lease as an encumbrance on the title.

The duplicate certificate title (if any) is required to be produced where an application is made under s.184 of the TLA.

For Removal of Expired Term Lease of Crown Land see paragraph 2.8.18. Lessors must be aware that no registered interests or encumbrances relating to an expired lease can be carried forward to a new lease. If any registered interest or encumbrance holder continues to have a valid claim against the leasehold interest, with the agreement of the lessor, the lessor should arrange for a new interest or encumbrance to be prepared and registered against the new lease.

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2.9

Profits a’ Prendre

2.9.1

General

A profit a’ prendre is a profit sharing arrangement whereby a registered proprietor of land allows another person to take naturally occurring produce or part of the soil from the land in return for a share of the profits from such produce or soil. Naturally occurring produce does not include crops produced by human labour or manufactured produce. The TLA does not specifically allow for the registration of profits a’ prendre over freehold land and so they have not, as a general rule, been accepted for registration. However, profits a’ prendre lodged under s.34B of the Conservation and Land Management Act 1984 and under s.52 of the Forest Products Act 2000 will be accepted for registration (see paragraph 2.9.2 and paragraph 2.9.3 below). Section 81R of the TLA allows for the registration of profits a’ prendre granted under s.91(1) of the LAA in respect of Crown land (see paragraph 2.9.5).

2.9.2

Profits a’ Prendre under the Conservation and Land Management Act 1984

Section 34B of the Conservation and Land Management Act 1984 (the Act) gives the CEO of the Department of Parks and Wildlife (DPaW) the power to enter into a timber share farming agreement in respect of any land with the owner of that land. A timber share farming agreement under the Act is an agreement by which the right to establish, maintain and harvest, or the right to maintain and harvest, or the right to harvest, a crop of trees on land is acquired by: •

the CEO of DPaW

•

another person through the CEO of DPaW acting as an agent or

•

the CEO of DPaW and by another person through the CEO of DPaW acting as an agent.

The timber share farming agreement provides for rights, obligations and powers relating to: •

payment of money or the giving of other consideration by, or the division of the crop or the proceeds of the crop between, the parties to the agreement

•

access to the land and, where appropriate, the undertaking of work or the provision of facilities thereon by those parties and

•

other matters.

The CEO of DPaW cannot enter into a timber share farming agreement with the lessee or licensee of any land unless the registered proprietor of the land, and any person occupying the land with the consent of the registered proprietor, has given approval in writing to the agreement. A timber share farming agreement is not a lease or licence to which s.136 of the P&D Act applies therefore the consent of the Western Australian Planning Commission is not required. A timber share farming agreement may be registered under the TLA as a profit a’ Prendre and it is assignable (transferable). 

Note: Pursuant to clause 51 of the Conservation and Land Management Amendment Act 2000, the rights, obligations or powers held by CEO of DPaW with regard to profits a’ prendre have been transferred to the Forest Products Commission.

For profits a’ prendre lodged under the Forrest Products Act 2000, see paragraph 2.9.3 below.

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2.9.3

Profits a’ Prendre under the Forest Products Act 2000

Section 52 of the Forest Products Act 2000 (the Act) gives the Forest Products Commission (FPC ) the power to enter into a timber share farming agreement in respect of any land with the owner of that land. A timber share farming agreement under the Act is an agreement by which the right to establish, maintain and harvest, or the right to maintain and harvest, or the right to harvest, a crop of trees on land is acquired by: •

the FPC

•

another person through the FPC acting as an agent or

•

the FPC and by another person through the FPC acting as an agent.

The timber share farming agreement provides for rights, obligations and powers relating to: •

payment of money or the giving of other consideration by, or the division of the crop or the proceeds of the crop between, the parties to the agreement

•

access to the land and, where appropriate, the undertaking of work or the provision of facilities thereon by those parties and

•

other matters.

The FPC cannot enter into a timber share farming agreement with the lessee or licensee of any land unless the registered proprietor of the land, and any person occupying the land with the consent of the registered proprietor, has given approval in writing to the agreement. A timber share farming agreement is not a lease or licence to which s.136 of the P&D Act applies therefore the consent of the Western Australian Planning Commission is not required. A timber share farming agreement may be registered under the TLA as a profit a’ prendre and it is assignable (transferable).

2.9.3.1

Lodgement

Profits a’ Prendre may be lodged at Landgate on payment of the prescribed fee (see Forms and fees/Search and lodgement fees/ Form Lodgement fees). The duplicate certificate of title (if any) must be produced before a profits a’ prendre can be registered. If the land being burdened by the profit a’ prendre cannot be satisfactorily described in writing an Interest Only Deposited Plan must be prepared by a licensed surveyor and lodged at Landgate. If the grantee of a profit a’ prendre is the FPC, the document is drawn in the name of the grantee and executed by the grantee under common seal. If the grantee of a profit a’ prendre is a person or organisation acting through the FPC as its agent, the document is drawn in the name of the grantee but is executed by the FPC as their attorney. 

Note: A current Power of Attorney should be deposited between the FPC and the grantee.

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2.9.3.2

Effect as an encumbrance

A profit a’ prendre registered under the TLA will run with the land and will not be removed on exercise of a mortgagees power of sale provided the mortgagees consent is endorsed thereon. Profits a’ prendre are considered to be interests in land and therefore transfers, mortgages, surrenders, caveats and warrants etc. may be lodged in respect of such profits a’ prendre. 

Note: Most timber share farming agreements registered as a profit a’ prendre contain a clause preventing the registered proprietor from selling, leasing, mortgaging or otherwise encumbering the land without the written consent of the grantee.

2.9.4

Transfer of Profits a’ Prendre under the Conservation and Land Management Act 1984 and the Forest Products Act 2000

A profit a’ prendre can be assigned (transferred) to another person or organisation without the necessity for the Forests Products Commission to act as an agent. Transfers of profits a’ prendre are to be prepared using a Form T6 Transfer of Profit a Prendre and may be lodged at Landgate on payment of the prescribed fee. They will be endorsed on the relevant title. Before it is lodged, it must be stamped at the Office of State Revenue (Stamp Duties Division). The duplicate (grantees copy) of the profit a’ prendre (if any) must be produced with the transfer. 

Note: This requirement would only apply to profits a’ prendre lodged before 13th January 1997. From this date no duplicate profits a’ prendre have been accepted for registration.

2.9.5

Surrender of Profits a’ Prendre under the Conservation and Land Management Act 1984 and the Forest Products Act 2000

Before the expiry of its term, a profit a’ prendre can be surrendered by the grantee. If the grantee is the CEO of DPaW (see paragraph 2.9.2) the profit a’ prendre is now surrendered by the Forest Products Commission pursuant to the transitional provisions of the Conservation and Land Management Amendment Act 2000. The Forest Products Commission has created a Surrender of Profit a’ Prendre form to be lodged at Landgate to effect the surrender. Alternatively the surrender could be prepared on a Form B2 Blank Instrument Form in a manner similar to a surrender of easement (see paragraph 7.2.1) or by using a Surrender Form S1, modified by substituting the references to a lease to a Profit a’ Prendre. Surrender of a Profit a’ Prendre as to part of a lot is required to be supported by a new Interest Only Deposited Plan prepared by a licensed surveyor. Before the surrender is lodged, it must be stamped at the Office of State Revenue (Stamp Duties Division). Lodgement Fees are payable upon lodgement of the surrender at Landgate. The duplicate copy of the Profit a’ Prendre (if any) should be produced, as it can be used as an instrument of security. If it cannot be located, the registered proprietor should provide a statutory declaration (similar to that needed to support an application to replace a lost title (see paragraph 3.10.2) negating its deposit as a security. It is preferable, but not essential, that the duplicate title is produced. 

Note: This requirement would only apply to profits a’ prendre lodged before 13th January 1997. From this date no duplicate profits a’ prendre have been accepted for registration.

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Where the term in the Profits a’ Prendre has been extended by the lodgement of a caveat and that term is still current, the Profit a’ Prendre may be surrendered in the manner set out above, with the additional requirement that any caveat lodged to protect the extension should be withdrawn at the same time. Where the term in the Profits a’ Prendre (including any extensions by the lodgement of a caveat) has expired and a dealing has been lodged for registration, a surrender cannot be lodged because the term in the Profits a’ Prendre is not still running. Under the new digital title registration system, the registration of any dealing should trigger a review of the encumbrances, including a Profit a’ Prendre, and the removal of any expired interests by Sundry Document type AE. But any caveat lodged to protect an extension of a Profit a’ Prendre would not be removed by this process. A separate Withdrawal of Caveat form would need to be lodged at Landgate in this situation. However if a withdrawal of such a caveat were lodged at Landgate on its own and the term of the Profit a’ Prendre had expired, then the Profit a’ Prendre would also need to be removed from the certificate of title. The withdrawal of caveat should have filed with it a letter from the grantee (Caveator) to the Registrar of Titles requesting the removal of the Profit a’ Prendre on the grounds of the expiry of both the original term and the extension. It should be noted however that in this situation the Profit a’ Prendre would only be removed from the original certificate of title. The duplicate certificate of title (if any) would be updated when it is next produced to Landgate for a dealing or specifically for that purpose. Removal under s.184 of the TLA where the term in the Profits a’ Prendre has expired (no dealing has been lodged for registration). The registered proprietor of the land in a title can apply on Form A5 Application, for the removal of a Profit a’ Prendre on the grounds that it has expired. The application should be supported by a statutory declaration made by the proprietor that: •

Recites his or hers ownership of the relevant land.

•

Quotes the Profit a’ Prendre registration number.

•

Refers to the term of the Profit a’ Prendre by reference to the details or clauses in it, and thus the expiration of that term.

•

Refers to any provisions in it for its extension, and whether it was so extended.

•

Refers to the expiration of any such extension and negates any other form of condition of the Profit a’ Prendre (eg. as a result of a relevant management plan created under Part V of the Conservation and Land Management Act 1984). and

•

Requests the removal of the Profit a’ Prendre as an encumbrance on the title.

A letter from the Forests Product Commission, as assignees in law of the benefit of the Profit a’ Prendre, confirming its expiration would assist the applicant in establishing his or hers claim to have it removed. The duplicate certificate title (if any) is required to be produced where an application is made under s.184 of the TLA.

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2.9.6

Profits a’ Prendre Under the LAA in Respect of Crown Land

Section 81R of the TLA permits the Registrar of Titles to register on a certificate of Crown land title or qualified certificate of Crown land title, a profit a’ prendre granted by the Minister for Lands ( the Minister ) under s.91(1) of the LAA in respect of Crown land. With regard to profits a’ prendre, the Minister may: •

grant a profit a’ prendre for any purpose

•

fix or extend the duration of them

•

determine fees and conditions in respect of them

•

review them or

•

with the consent of the grantee, amend the provisions of them.

Under certain circumstances it is possible for the co-existence, on the same area of Crown land, of a profit a’ prendre and a mining or petroleum right (see s.91 (5) of the LAA).

2.9.6.1

Preparation of the Document

When approval is given, the Deed of Grant of a Profit a’ Prendre ( the Deed ) will be prepared by the Department of Lands upon payment of a prescribed fee. The Deed will then be forwarded to the client (the grantee) for signing and the payment of stamp duty at the Office of State Revenue (Stamp Duties Division). When the Deed is returned to the Department of Lands it will be signed on behalf of the Minister (as the grantor).

2.9.6.2

Lodgement

Upon payment of the prescribed fee, the Department of Lands will lodge the Deed at the Document Acceptance counter, where it will be allocated a document number, receive a registration date and time and then processed for registration.

2.9.6.3

After Registration

While a profit a’ prendre is shown as an encumbrance on a certificate of Crown land title or qualified certificate of Crown land title, the Registrar of Titles may accept for registration a deed to amend, extend or surrender the profit a’ prendre. Where a certificate of title is created and registered in respect of Crown land that is encumbered by a profit a’ prendre, the profit a’ prendre continues until it is surrendered or it expires. The grantee(s) of a profit a’ prendre is not permitted to assign (transfer) their interest to a third party. The grantee(s) of a profit a’ prendre may surrender it as to the whole or any part of it.

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2.10

Carbon Rights

2.10.1

General

The establishment of Greenhouse gas targets (as contemplated under the Kyoto Protocol) are complemented by the establishment of, and trade in, carbon credits. A carbon right is the right to the benefits and risks arising from carbon sequestration and release on a specified parcel of land. 

Note: Carbon sequestration in this instance means the absorption from the atmosphere of carbon dioxide by vegetation and soils and the storage of carbon dioxide in vegetation and soils. Carbon release can occur where vegetation is cleared or soil is cultivated.

2.10.2

Carbon Rights Act 2003

The Carbon Rights Act 2003 establishes a statutory basis for the ownership and protection of carbon rights. It enables a carbon right to be registered on the certificate of title to land. A carbon right can apply to either freehold or Crown land and will remain on the title until such time as it is surrendered. Once a carbon right has been registered on title, those rights exist at law and have the benefit of priority and indefeasibility under the TLA. 

Note: Even though the existence of these rights is guaranteed, their value is not and the State has no involvement in determining their value. Their value will be determined by the market, in the same way that the values of other interests in land are determined under the TLA.

The creation of carbon rights will provide: •

legal certainty as to the nature of the right, which will value add to carbon rights and increase use of the proposed international carbon accounting system and

•

a reporting mechanism to Government for the amount of carbon sequestration on affected land, for the purposes of national accounting by Australia in respect if its obligations under the Kyoto Protocol.

2.10.3

Creation of a Carbon Right

A carbon right interest in land is created when a carbon right, in a form approved by the Registrar of Titles, is registered under the TLA in favour of a legal entity. A Form CR1 Carbon Right has been created for this purpose. A carbon right interest in land may be created by the registered proprietor of: •

land

•

a lessees interest in freehold or Crown land

•

a grantees interest in a Profit a’ Prendre under the LAA

•

a grantees interest in a Timber Share-farming Agreement under the CALM Act or

•

Crown land.

It is not essential that a carbon right interest in land relates to a plantation of trees, it may relate to grazing or agricultural land etc. 

Note: The proprietor of a carbon right does not have ownership of the carbon in or on the land.

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2.10.4

Registration of a Carbon Right

2.10.4.1

Lodging the CR1

To create a carbon right, a Form CR1, must be lodged for registration at Landgate upon payment of the prescribed registration fee. No stamp duty is payable on the creation of a carbon right, but any subsequent transfers or other dealing will be subject to stamp duty in the normal way. A carbon right must specify a term, which may be in perpetuity. The duplicate title (if any) must be produced with the document. 

Note: It is possible for the holder of a carbon right to lodge a caveat prior to its registration

2.10.4.2

Creating a Deposited Plan - if required

If the land the subject of the carbon right is only part of the land contained in the certificate of title, a Deposited Plan having as the purpose Interest Only may need to be prepared and lodged by a licensed surveyor. There is a need to accurately define the area of land affected as only one carbon right can be registered over any particular piece of land. Carbon rights cannot overlap each other.

2.10.4.3

Consents

A carbon right will not be registered unless it has the written consent of all persons who have a registered interest in the land in respect of which the carbon right is created. 

Note: If a carbon right is in respect of Crown land, it shall not be registered unless there is compliance with s.18 of the LAA.

2.10.4.4

Additional comments

A Carbon right will be endorsed in the second schedule of the title as a SMR Primary Interest in the land. A carbon right is a registered interest in land. It can be dealt with in ways similar to other interests in land. It can be extended (see paragraph 2.10.5), transferred (see paragraph 2.10.6), mortgaged (see paragraph 2.10.7) or surrendered (see paragraph 2.10.8). It can also be devised under a Will and be the subject of a Property (Seizure and Sale) Order. However, it cannot be varied once registered.

2.10.5

Extension of a Carbon Right

2.10.5.1

Registering an extension

A carbon right may be extended by the registration of a Form E4 Extension of Carbon Right upon payment of the prescribed registration fee. This can be downloaded from the Landgate website in Quick Links/ Forms and Fees/ Freehold Land Registration Forms. The duplicate title (if any) must be produced with the extension.

2.10.5.2

Consents

An extension of a carbon right will not be registered unless it has the written consent of each person who has a registered interest in: •

the affected land and

•

the carbon right.



Note: If a carbon right is in respect of Crown land, an extension of the carbon right shall not be registered unless there is compliance with s.18 of the LAA.

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2.10.6

Transfer of a Carbon Right

A carbon right may be transferred by the registration of a Form T11 Transfer of Carbon Right upon payment of the prescribed registration fee. This can be downloaded from the Landgate website in Quick Links/ Forms and Fees/ Freehold Land Registration Forms. 

Note: A carbon right can only be transferred in relation to the whole of the area of the affected land.

The duplicate title (if any) does not need to be produced with the transfer. If the proprietor of the carbon right is also the proprietor of a carbon covenant entered into in relation to that carbon right, a transfer of the carbon right shall not be registered unless it is accompanied by a transfer of the proprietors interest in the carbon covenant. In other words the proprietor of a carbon right must at all times be the proprietor of the relevant carbon covenant (if any). It is possible to transfer the proprietors’ interest in the carbon right and the carbon covenant in the one document using a Form T12 Transfer of Carbon Right and Carbon Covenant. This can be downloaded from the Landgate website in Quick Links/ Forms and Fees/ Freehold Land Registration Forms. 

Note: If a carbon right is in respect of Crown land, a transfer of the carbon right shall not be registered unless there is compliance with s.18 of the LAA.

2.10.7

Mortgage of a Carbon Right

A carbon right interest in land can be mortgaged using the standard Form M1 Mortgage. This can be downloaded from the Landgate website in Quick Links/ Forms and Fees/ Freehold Land Registration Forms. The mortgage must clearly identify in the Land Description panel the number and nature of the interest being mortgaged. For example: “As to Carbon Right J123456 over Lot 1 on Deposited Plan 45678.” The duplicate title (if any) must be produced with the mortgage. 

Note: If a carbon right is in respect of Crown land, a mortgage of the carbon right shall not be registered unless there is compliance with s.18 of the LAA.

2.10.8

Surrender of a Carbon Right

A carbon right may be wholly or partially surrendered by the registration of a Form S5 Surrender of Carbon Right upon payment of the prescribed registration fee. This can be downloaded from the Landgate website in Quick Links/ Forms and Fees/ Freehold Land Registration Forms. The surrender will not be registered unless the following, if applicable, has occurred: •

Each registered interest in the carbon right or part of the carbon right has been discharged or surrendered.

•

Any carbon covenant that is registered in respect of the carbon right or part of the carbon right has been surrendered. and

•

Any caveat lodged in respect of the carbon right or part of the carbon right has been withdrawn.

The duplicate title (if any) must be produced with the surrender. 

Note: If a carbon right is in respect of Crown land, a surrender of the carbon right shall not be registered unless there is compliance with s.18 of the LAA.

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2.11

Carbon Covenants

2.11.1

General

A carbon covenant sets out the covenants (positive and negative) on which: •

other interests in land can be exercised or

•

land can be used.

Carbon covenants are the terms by which the carbon in the land is effectively protected for the benefit of the proprietor (holder) of the carbon right (see paragraphs 2.10.1 to 2.10.4). They are used as a control mechanism to ensure the continuation of the trees or other land-based resources underlying or providing the carbon sequestration (i.e. to maintain and protect trees, not to diminish water supply, not to cut timber etc.). The burden of the carbon covenants may affect adjoining landowners and /or proprietors of other interests in land affected by a carbon right e.g. the registered proprietor of the land itself, a lessee, mortgagees, grantee of a profit a’ prendre etc. who agree to give a carbon covenant in favour of the holder of the carbon right). 

Note: It is possible to have a carbon right without a carbon covenant, but it is not possible to have a carbon covenant without the creation of a carbon right.

2.11.2

Carbon Rights Act 2003

The Carbon Rights Act 2003 establishes a statutory basis for the creation of carbon covenants. It enables a carbon covenant to be registered on the certificate of title to land. A carbon covenant can apply to either freehold or Crown land and will remain on the title until such time as it is surrendered.

2.11.3

Creation of a Carbon Covenant

A carbon covenant interest in land is created when a carbon covenant, in a form approved by the Registrar of Titles, is registered under the TLA in favour of a legal entity. A Form CC1 Carbon Covenant has been created for this purpose and can be downloaded from the Landgate website (www.landgate.wa.gov.au). From this home page, go to Quick Links/ Forms and Fees/ Freehold Land Registration Forms. The proprietor of the carbon rights must at all times be the proprietor of the relevant carbon covenant. The proprietor of a carbon covenant may also be the person burdened by the covenants A carbon covenant need not be given over the same land as the carbon right. There can be multiple carbon covenants created with regard to a carbon right. For example, the land owner might enter into one covenant with the holder of the carbon right and then later a mortgagee of the land might also enter into a second covenant in favour of the holder of the carbon right.

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2.11.4

Registration of a Carbon Covenant

2.11.4.1

Lodging the CC1

To create a carbon covenant, a Form CC1 Carbon Covenant must be lodged for registration at Landgate upon payment of the prescribed registration fee. No stamp duty is payable on the creation of a carbon covenant, but any subsequent transfers or other dealing will be subject to stamp duty in the normal way. The Form CC1 must specify the day on which the carbon covenant is to commence. This cannot be before the relevant carbon right is created and it cannot be longer than the term of the relevant carbon right. The duplicate title (if any) must be produced with the document. 

Note: It is possible for the holder of a carbon covenant to lodge a caveat prior to its registration.

2.11.4.2

Creating a Deposited Plan- if required

If the land the subject of the carbon covenant (the burdened land) is only part of the land contained in the certificate of title, a Deposited Plan having as the purpose Interest Only may need to be prepared and lodged by a licensed surveyor.

2.11.4.3

Consents

A carbon covenant will not be registered unless it has the written consent of each person who has a registered interest in: •

the land to be burdened by the proposed carbon covenant and

•

the relevant carbon right.



Note: If a carbon covenant is in respect of Crown land, it shall not be registered unless there is compliance with s.18 of the LAA.

2.11.4.4

Additional comments

A Carbon Covenant will be endorsed in the second schedule of the title as a SMR Subsidiary Interest to the relevant carbon right. A carbon covenant is a registered interest in land. It can be dealt with in ways similar to other interests in land. It can be extended (see paragraph 2.11.5), varied (see paragraph 2.11.6) transferred (see paragraph 2.11.7), mortgaged (see paragraph 2.11.8) or surrendered (see paragraph 2.11.9). It can also be devised under a Will and be the subject of a Property (Seizure and Sale) Order.

2.11.5

Extension of a Carbon Covenant

2.11.5.1

Registering an Extension

A carbon covenant may be extended by the registration of a Form E5 Extension of Carbon Covenant upon payment of the prescribed registration fee. This can be downloaded from the Landgate website in Quick Links/ Forms and Fees/ Freehold Land Registration Forms. The term of the extension cannot be longer than the term of the relevant carbon right.

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An extension of a carbon covenant may be used to vary the provisions of the carbon covenant. However it shall not be used to effect a change to: •

the proprietors of the carbon covenant or the burdened land or

•

the area of the burdened land to which the covenant applies.

The duplicate title (if any) must be produced with the extension.

2.11.5.2

Consents

An extension of a carbon covenant will not be registered unless it has the written consent of each person who has a registered interest in: •

the carbon covenant

•

the burdened land

•




Note: If a carbon covenant is in respect of Crown land, an extension of the carbon covenant shall not be registered unless there is compliance with s.18 of the LAA.

2.11.6

Variation of a Carbon Covenant

2.11.6.1

Registering a Variation

The provisions of a carbon covenant may be varied by the registration of a Form V2 Variation of Carbon Covenant upon payment of the prescribed registration fee. This can be downloaded from the Landgate (www.landgate.wa.gov.au/corporate.nsf). From this home page, go to Quick Links/ Forms and Fees/ Freehold Land Registration Forms. A Variation of Carbon Covenant may be used to vary the provisions of the carbon covenant. However it shall not be used to effect any of the following: •

A change to the proprietors of the carbon covenant or the burdened land.

•

A change to the area of the burdened land to which the covenant applies.

•

An extension or other change to the term of the carbon covenant.

2.11.6.2

Consents

A variation of a carbon covenant will not be registered unless it has the written consent of each person who has a registered interest in: •

the carbon covenant

•

the burdened land

•




Note: If a carbon covenant is in respect of Crown land, a variation of the carbon covenant shall not be registered unless there is compliance with s.18 of the LAA.

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2.11.7

Transfer of Benefits under a Carbon Covenant

A carbon covenant may be transferred by the registration of a Form T12 Transfer of Carbon Right and Carbon Covenant upon payment of the prescribed registration fee. This can be downloaded from the Landgate website in Quick Links/ Forms and Fees/ Freehold Land Registration Forms. A carbon right can only be transferred in relation to the whole of the area of the land in respect of which the relevant carbon right is registered and in respect of which the covenant applies. A transfer of a carbon covenant shall not be registered unless it is accompanied by a transfer of the proprietor’s interest in the relevant carbon right. In other words the proprietor of a carbon right must at all times be the proprietor of the relevant carbon covenant. The duplicate title (if any) does not need to be produced with the transfer. 

Note: If a carbon right is in respect of Crown land, a transfer of the carbon covenant shall not be registered unless there is compliance with section 18 of the LAA.

2.11.8

Mortgage of a Carbon Covenant

A carbon covenant interest in land can be mortgaged using the standard Form M1 Mortgage. A person shall not be a mortgagee of a carbon covenant unless the person is also the mortgagee of the relevant carbon right. The mortgage must clearly identify in the Land Description panel the number and nature of the interest being mortgaged. For example: As to Carbon Right J123456 and Carbon Covenant J345678 over Lot 1 on Deposited Plan 45678. The duplicate title (if any) must be produced with the mortgage. If a carbon right is in respect of Crown land, a mortgage of the carbon covenant shall not be registered unless there is compliance with s.18 of the LAA.

2.11.9

Surrender of a Carbon Covenant

A carbon covenant may be wholly or partially surrendered by the registration of a Form S6 Surrender of Carbon Covenant upon payment of the prescribed registration fee. This can be downloaded from the Landgate website in Quick Links/ Forms and Fees/ Freehold Land Registration Forms. The surrender will not be registered unless the following, if applicable, has occurred: •

Each registered interest in the carbon covenant or part of the carbon covenant has been discharged or surrendered.

•

Any caveat lodged in respect of the carbon covenant or part of the carbon covenant has been withdrawn.

The duplicate title (if any) must be produced with the surrender. 

Note: If a carbon covenant is in respect of Crown land, a surrender of the carbon covenant shall not be registered unless there is compliance with s.18 of the LAA.

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2.12

Tree Plantation Agreements

2.12.1

General

A Tree Plantation Agreement is an agreement that allows a person to establish, maintain and / or harvest a tree plantation. The proprietor of the plantation interest owns the trees separate from the land. This means that investors can enter into written agreements with landholders and be assured that they have the right to plant, manage and harvest trees and their products with more confidence. They can invest in tree planting on land, without the expense of also having to buy the land, or worry about managing surrounding land. A Tree Plantation Agreement fills the gap between Timber Share-farming Agreements under the Conservation and Land Management Act 1984 and Profits a’ Prendre at common law.

2.12.2

Tree Plantation Agreements Act 2003

The Tree Plantation Agreements Act 2003 creates a statutory interest in land (a Plantation Interest ) that is created by an agreement known as a Tree Plantation Agreement . It enables a tree plantation agreement to be registered on the certificate of title to land. The legislation provides a secure form of share-farming specifically for planted trees. Agreements can apply both trees already in the ground or yet to be planted. It does not apply to other vegetation such as native forests or bush.

2.12.3

Creation of a Plantation Interest

A plantation interest in land is created when a tree plantation agreement, in a form approved by the Registrar of Titles, is registered under the TLA in favour of a legal entity who agrees to: •

Establish a plantation

•

Maintain a plantation or

•

Harvest products from a plantation.

A Form TP1 Tree Plantation Agreement has been created for this purpose and can be downloaded from the Landgate website in Quick Links/ Forms and Fees/ Freehold Land Registration Forms. A plantation interest in land may be created in relation to: •

freehold land

•

a lease of freehold land or

•

a lease of Crown land.



Note: A tree plantation agreement can give a right of exclusive possession.

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2.12.4

Registration of a Tree Plantation Agreement

2.12.4.1

Lodging a TP1

To create a plantation interest in land, a Form TP1 Tree Plantation Agreement must be lodged for registration at Landgate upon payment of the prescribed registration fee. No stamp duty is payable on the creation of a tree plantation agreement, but any subsequent transfers or other dealing will be subject to stamp duty in the normal way. A tree plantation agreement must state the term of the agreement and the day on which it commences. The term must be limited (i.e. it cannot be in perpetuity). The duplicate title (if any) must be produced with the document. 

Note: It is possible for the holder of a tree plantation agreement to lodge a caveat prior to its registration.

2.12.4.2

Creating a Deposited Plan- if required

If the land the subject of the tree plantation agreement is only part of the land contained in the certificate of title, a Deposited Plan having as the purpose Interest Only may need to be prepared and lodged by a licensed surveyor.

2.12.4.3

Consents

A tree plantation agreement will not be registered unless it has the written consent of each person who has a registered interest in the land the subject of the agreement. If the agreement is entered into by a lessee of freehold land or Crown land, the written consent of each person who has a registered interest in the land subject to the lease is required. 

Note: If the agreement is in respect of Crown land, it shall not be registered unless there is compliance with s.18 of the LAA.

2.12.4.4

Additional comments

A tree plantation agreement will be endorsed in the second schedule of the title as a SMR Primary Interest in the land. Where the plantation interest is over a lessee’s interest in freehold or Crown land it will be shown as a SMR Subsidiary Interest in the land. A plantation interest is a registered interest in land. It can be dealt with in ways similar to other interests in land. It can be extended (see paragraph 2.12.5), varied (see paragraph 2.12.6) transferred (see paragraph 2.12.7), mortgaged (see paragraph 2.12.8) or surrendered (see paragraph 2.12.9). It can also be devised under a Will and be the subject of a Property (Seizure and Sale) Order.

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2.12.5

Extension of a Plantation Interest

2.12.5.1

Registering an Extension

A plantation interest may be extended by the registration of an Form E6 Extension of Plantation Interest upon payment of the prescribed registration fee. This can be downloaded from the Landgate website in Quick Links/ Forms and Fees/ Freehold Land Registration Forms. An extension of a plantation interest may be used to vary the provisions of the relevant tree plantation agreement. However it shall not be used to effect a change to: •

the proprietors of the plantation interest or the land the subject of the relevant agreement or

•

the area of the land to which the plantation interest applies.

The duplicate title (if any) must be produced with the extension.

2.12.5.2

Consents

An extension of a plantation interest will not be registered unless it has the written consent of each person who has a registered interest in the land the subject of the tree plantation agreement. If the agreement is entered into by a lessee of freehold land or Crown land, the written consent of: •

each person who is a proprietor of the freehold land or Crown land that is the subject of the lease and

•

each person who has a registered interest in the land subject to the lease that was registered subsequent to the registration of the relevant agreement is required.



Note: If a tree plantation agreement is entered into by a lessee of Crown land, an extension of the plantation interest shall not be registered unless there is compliance with s.18 of the LAA.

2.12.6

Variation of a Tree Plantation Agreement

2.12.6.1

Registering a Variation

The provisions of a tree plantation agreement may be varied by the registration of a Form V1 Variation of Tree Plantation Agreement upon payment of the prescribed registration fee. This can be downloaded from the Landgate website in Quick Links/ Forms and Fees/ Freehold Land Registration Forms. A Variation of Tree Plantation Agreement may be used to vary the provisions of the tree plantation agreement. However it shall not be used to effect: •

A change to the proprietors of a plantation interest or the relevant agreement land.

•

A change to the area of the agreement land to which the plantation interest applies.

•

An extension or other change to the term of a plantation interest.

2.12.6.2

Consents

A variation of a tree plantation agreement will not be registered unless it has the written consent of each person who has: •

a registered interest in the land the subject of the tree plantation agreement and

•

a registered interest in the plantation interest that is the subject of the agreement.

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If the agreement is entered into by a lessee of freehold land or Crown land, the written consent of: •

each person who is a proprietor of the freehold land or Crown land that is the subject of the lease and

•

each person who has a registered interest in the land subject to the lease that was registered subsequent to the registration of the relevant agreement is required.



Note: If a tree plantation agreement is entered into by a lessee of Crown land, a variation of the tree plantation agreement shall not be registered unless there is compliance with s.18 of the LAA.

2.12.7

Transfer of a Plantation Interest

A plantation interest may be transferred by the registration of a Form T10 Transfer of Plantation Interest upon payment of the prescribed registration fee. This can be downloaded from the Landgate website in Quick Links/ Forms and Fees/ Freehold Land Registration Forms. A plantation interest can only be transferred in relation to the whole of the area of the land the subject of a tree plantation agreement. The duplicate title (if any) does not need to be produced with the transfer. If a plantation interest is registered in respect of Crown land, a transfer of the plantation interest shall not be registered unless there is compliance with s.18 of the LAA.

2.12.8

Mortgage of a Plantation Interest

A plantation interest in land can be mortgaged using the standard Form M1 Mortgage. The mortgage must clearly identify in the Land Description panel the number and nature of the interest being mortgaged. For example: ‘As to the plantation interest in J123456 over Lot 1 on Deposited Plan 45678.’ The duplicate title (if any) must be produced with the mortgage. If a plantation interest is registered in respect of Crown land, a mortgage of the plantation interest shall not be registered unless there is compliance with s.18 of the LAA.

2.12.9

Surrender of a Plantation Interest

A plantation interest may be wholly or partially surrendered by the registration of a Form S4 Surrender of Plantation Interest upon payment of the prescribed registration fee. This can be downloaded from the Landgate website in Quick Links/ Forms and Fees/ Freehold Land Registration Forms. The surrender will not be registered unless the following, if applicable, has occurred: •

each registered interest in the plantation interest or part of the plantation interest has been discharged or surrendered and

•

any caveat lodged in respect of the plantation interest or part of the plantation interest has been withdrawn.

The duplicate title (if any) must be produced with the surrender. If a tree plantation agreement is entered into by a lessee of Crown land, a surrender of the tree plantation interest shall not be registered unless there is compliance with s.18 of the LAA.

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3.

Applications

In this chapter we look at the different types of applications and the evidential requirements to be lodged in support. Landgate has created a number of specific applications forms which are required to be used accordingly.

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3.1

Applications

3.1.1

General

The applications dealt with in this chapter exclude applications for new, balance or separate certificates of title. Applications to bring land under the operation of the TLA and applications for title by possession to land already under the TLA are the subject of a separate chapter. Other applications mentioned herein are dealt with in detail in other sections of the manual and are cross referenced in the index. An application is merely a request, addressed to the Commissioner or Registrar, asking that some desired discretion be exercised. An application, by itself, is of little value. It is the evidence supplied, either by statutory declaration setting out the facts, or by being produced with, or as annexures to a statutory declaration, which determines whether or not the application will be successful. An application must be signed by the applicant or each of them if more than one. A witness to the signature/s of the applicant/s is required.

3.1.2

Effect of Applications

An application is made usually to effect some change in the Register. The duplicate certificate of title (if any) must be produced where land is concerned. In other cases, eg: an application to amend a mortgage or lease, production of the duplicate certificate of title (if any) is not essential although it is desirable. After examination of the application and compliance with any requisitions made, the necessary changes are made in the Register.

3.1.3

Forms

There are special printed application forms available for use, they are: •

Form A1 Transmission Application- also see LTRPM Form Examples- Example 1

•

Form A2 Survivorship Application- also see LTRPM Form Examples- Example 2

•

Form A3 Transmission of a Mortgage, Charge or Freehold Lease- also see LTRPM Form Examples- Example 5

•

Form A4 Survivorship of a Mortgage, Charge or Freehold Lease- also see LTRPM Model Form Examples Example 6

•

Form A5 Application (Multipurpose) (for use with most other types of application)

•

Form A6 Application for a New or Balance Title (for use in other applications for new title)- also see LTRPM Form Examples- Example 7

•

Form NA1 Notification of Change of Address of Registered Proprietor- also see LTRPM Form Examples- Example 19.

3.1.4

General Requirements

Each application submitted for approval must show: •

a full, correct description of the land sought to be affected

•

a full, correct name and address of the applicant and, where necessary, the capacity in which he or she is acting and

•

where a blank application Form A5 is being used the nature of the application set out concisely. The change required should be set out showing the current information on the title, and the new information. For example, an application to amend a name should be set out as to have the name, shown on the title to the above land as Allan Smith amended to show Alan Frederick Smith.

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3.1.5

Presentation of Evidence

All statements supplied in support of an application must be in the form of a statutory declaration made under the provisions of the Oaths, Affidavits and Statutory Declarations Act 2005 (WA) (OASD Act). Statements presented in the form of an affidavit are not acceptable.

3.2

Statutory Declarations

3.2.1

Declarations Made for the Purposes of the TLA

Unless another written law provides otherwise, a statutory declaration made for the purposes of the TLA must be made in accordance with s.12 of the Oaths, Affidavits and Statutory Declarations Act 2005 (OASD Act). Section 12(2) of the above Act specifies that the statutory declaration must be in the form of Schedule 1 of that Act (see Chapter 3.2.2 below). Statutory Declarations lodged with the Registrar of Titles may be made on a Form B3 Statutory Declaration. This form may be downloaded from Landgate’s website in Quick Links/ Forms and Fees/ Freehold Land Registration Forms). If a statutory declaration is lodged with the Registrar of Titles for the purposes of the TLA that is not made in accordance with s.12 of the OASD Act, it will need to be considered on a case by case basis to determine whether or not it will be acceptable (for the purposes for which it was lodged).

3.2.2

Form

Schedule 1 of the OASD Act, prescribes a form to be used when a statutory declaration is being made, as follows: I, (name, address and occupation of person making the declaration) sincerely declare as follows – (insert content of the statutory declaration; use numbered paragraphs if content is long) This declaration is true and I know that it is an offence to make a declaration knowing that is false in a material particular. This declaration is made under the Oaths, Affidavits and Statutory Declarations Act 2005 at (place) on (date) by(Signature of person making the declaration) in the presence of – (Signature of authorised witness) (Full name, address and qualification of authorised witness) There is a printed Form B3 available for statutory declarations (see LTRPM Form Examples- Example 11). It is recommended that the printed form be used for short declarations. Where the content is likely to exceed one page, the declaration should be prepared on plain good quality bond paper. In these cases the formal attestation should appear on the last page. Other pages should be signed at the foot by the declarant and the authorised witness.

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3.2.3

Witnessing Statutory Declarations

Section 12 of the OASD Act outlines a procedure to be followed by the person making the statutory declaration and the authorised witness. The person who is making the statutory declaration must in the presence of an authorised witness declare orally: •

that he or she is the person named as the maker of the statutory declaration

•

that the contents of the statutory declaration are true and

•

that the signature or mark is his or hers; and if necessary, that any attachment to the statutory declaration is the attachment referred to in it.

After the maker of the statutory declaration has complied with the above, the authorised witness must: •

sign or personally mark the statutory declaration

•

sign or initial any alteration in the statutory declaration that has been signed or initialled by the maker and

•

imprint or clearly write his or her full name, address and qualification as an authorised witness.

3.2.4

Authorised Witnesses Inside Western Australia

An authorised witness for a statutory declaration that is made at a place in Western Australia is: •

any person described in the second column of Schedule 2 of the OASD Act or

•

any person before whom, under the Commonwealth Statutory Declarations Act 1959, a statutory declaration may be made.

The informal description of persons described in Schedule 2 of the OASD Act are listed below:

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Authorised Witnesses Academic (post-secondary institution) Accountant Architect Australian Consular Officer Australian Diplomatic Officer Bailiff Bank manager Chartered secretary Chemist Chiropractor Company auditor or liquidator Court officer Defence force officer Dentist Doctor Electorate officer of a member of State Parliament Engineer Industrial organisation secretary Insurance broker Justices of the Peace Landgate officer Lawyer 

Local government CEO or deputy CEO Local government councillor Loss adjuster Marriage celebrant Member of Parliament Minister of religion Nurse Optometrist Patent attorney Physiotherapist Podiatrist Police officer Post office manager Psychologist Public notary Public servant (Commonwealth and State) Real estate agent Settlement agent Sheriff or Deputy Sheriff Surveyor Teacher Tribunal officer Veterinary surgeon

Note For the full formal description of authorised witnesses for statutory declarations refer to Schedule 2 of the Oaths, Affidavits and Statutory Declarations Act 2005.

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3.2.5

Authorised Witnesses Outside Western Australia

An authorised witness for a statutory declaration made under the OASD Act is specified in s.12(6) of that Act. If the statutory declaration is made at a place outside Western Australia, but within Australia then an authorised witness is: •

any person who, under the law of that place, has authority to take or receive a statutory, solemn or other declaration; or

•

any person before whom, under the Commonwealth Statutory Declarations Act 1959 a statutory declaration may be made.

If the statutory declaration is made outside Australia then an authorised witness is: •

a prescribed consular official who is performing official functions at that place

•

a person who is a justice or notary public under the law of that place or

•

a person who has authority under the law of that place to administer an oath to another person or to take, receive or witness a statutory, solemn or other declaration.

A prescribed consular official means: •

an Australian Consular Officer, or an Australian Diplomatic Officer, within the meaning of the Commonwealth Consular Fees Act 1955;

•

a British consul or vice consul or

•

an official prescribed by the regulations to be a prescribed consular official.

3.2.6

Content

The person making the statutory declaration should state his or her full name, address and occupation and, following the form provided in Schedule 1 of the OASD Act should state: •

the capacity in which the declaration is made i.e. as registered proprietor, as trustee, etc

•

where the declarant is not a party to the document, the means of knowledge for the statements made

•

the volume and folio reference to the land in all cases and, where a mortgage, charge or lease is dealt with, the number of the instrument to which the declaration refers

•

the facts applicable to the matters being declared

•

any further information pertinent to the matters declared

•

what evidence is produced or attached

•

an identifying description such as a letter or number for each attachments (and that identifying description should be marked on each attachment) and

•

where the declaration is in support of a caveat, it must give precise details of the estate and interest claimed in the land (see Chapter 4).

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3.2.7

Declarations by Two or More Persons

Where a declaration is made by two or more persons, they should declare jointly and severally and there should be a separate execution and attestation for each person.

3.2.8

Amendments to a Declaration

3.2.8.1

Before first execution

Where errors are noticed prior to first execution the offending words should be struck out and, if necessary, substitution made. The person making the declaration and the authorised witness must initial such amendments and then complete the formal attestation.

3.2.8.2

After first execution

Very simple errors may be amended and initialled by the person making the statutory declaration and having it re-declared before the same or another authorised witness. Major amendments should be made by preparing and executing a new statutory declaration.

3.2.9

Evidence Produced

As the evidence listed below is returned to the lodging party when the registration process is completed, it need not be formally attached to a declaration, but must be specifically referred to in the declaration (e.g. Produced herewith is a certified copy of my marriage certificate). Landgate requests that when lodging evidence that a photocopy of single sheet evidence, such as marriage and birth certificates, and the original documents, be presented to enable the photocopy to be certified ‘Original Sighted” by a Landgate Officer, with the original item being returned to the lodging party. Death Certificates

Birth Certificates

Marriage Certificates

Advice of Bankruptcy

Change of Name Certificates

Grants of Probate

Appointment of Liquidator

Trustee Certificate

Letters of Administration Evidence originating from outside of Australia which is not in English script is required to be accompanied by a translation of that document.

Certification of Evidence By Australia Post The Registrar of Titles has now authorised Australia Post to certify original documents that are required as evidence to support documents lodged at Landgate. The rules pertaining to the types of evidence required by Landgate have not changed. Anyone who is required to produce original documents that are needed as evidence to support a “Landgate transaction” may now take their original documents to an authorised “Australia Post” outlet for certification. Australia Post will: •

Ensure that the document is an authentic original or certified copy issued from the correct relevant authority.

•

Make a photocopy of the original (all pages)

•

Certify that it is a true copy of an original document sighted by Australia Post.

•

Every page of the evidence must be certified.

•

Australia Post will then return the Original and the “Australia Post certified copy” to the Client.

Australia Post will not send anything to Landgate. It will be up to the client to pass the certified copies onto their Lawyer or Settlement Agent or to include the certified copy when lodging their documents at Landgate.

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Landgate will not accept any certified copies of evidence, unless; •

The certified copies are included within the documents that need them when they are lodged at Landgate or

•

The certified copy is required for an existing document that has already been lodged at Landgate. In this instance the client must always provide a current (active) Landgate document reference number before it can be accepted.



Note This service will not be available at all Australia Post outlets and a fee will be charged for the service. See the Australia Post website for details.

3.2.10

Attachments

Attachments should be identified by letter or number and referred to as such in the declaration. Sequential numbering or lettering of the attachments is required where more than one is attached. The identifying description (letter or number) should also be marked on each document. Attachments are part of the statutory declaration and will therefore be retained by Landgate.

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3.3

Transmission Applications (Section 219 of the TLA)


3.3.1

On Death of Registered Proprietor

A transmission application is required from the executor or administrator of a deceased registered proprietor in order that such executor or administrator may be entered on the Register as the proprietor of the estate or interest of the deceased proprietor. The effect of the application is to place the executor or administrator on the Register as if he or she was a transferee and the absolute proprietor of the estate or interest being dealt with. Where the name of an executor or administrator shown in a Grant of Probate or Letters of Administration differs to that shown in a transmission application a new or amended Grant of Probate or Letters of Administration will be required from the Probate Office. Where a formal change of name is made after the date of the grant, proof will be required as to the correct name and the reason for the error in the grant before an application for transmission can be entered. The executor or administrator holds the land subject to the same equities upon which the deceased held the land. In support of a Transmission Application (see LTRPM Form Examples- Example 1) the following must be produced: 1.

2.

An office copy or the original Grant of Probate or Letters of Administration as issued by the Probate Office or a Landgate Sighted copy. Present practice is to return such original copies to the lodging party. Office copies of Grants of Probate should be re-lodged with any subsequent dealing by the executor, other than a sale: o

A copy of a Grant of Probate or Letters of Administration certified by a Justice of the Peace is not acceptable.

o

A Grant of Probate or Letters of Administration granted in another jurisdiction (i.e. interstate or overseas) must be re-sealed by the Western Australian Probate Office.

A statutory declaration, identifying the deceased if the name and addition as shown on the office copy of the Grant of Probate or Letters of Administration differ in any way from those shown in the Register, (but if the Grant of Probate correctly identifies the proprietor as the deceased or the details on the title and the Will agree, no further proof is required). This statutory declaration is made by the executor or administrator. Where two or more executors or administrators are appointed, only one of them needs to make the declaration.

3.

The duplicate certificate of title (if any). Where the interest of a mortgagee is being dealt with the production of the relative duplicate certificate of title (if any) is not essential but it is desirable.



Note: This type of application is not suitable where the land is a trust property as the land does not form part of the estate of the deceased proprietor and cannot be dealt with by the executor or administrator. See also paragraph 2.1.31 - Transfers by Executors and Administrators with the Will Annexed.

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3.3.2

Who May Apply

The following persons can apply to be registered as proprietor by transmission: •

the executor or executors named in a Grant of Probate

•

the administrator or administrators named in a Grant of Letters of Administration

•

the survivor or survivors of those set out in the preceding two points

•

the executor or executors of a deceased sole or surviving executor and

•

the administrator named in a Grant of Letters of Administration with the will annexed.

All the persons (executors or administrators) entitled to apply must join in the application and sign the form.

3.3.3

Who May Not Apply

The following persons cannot apply to be registered as proprietor by transmission: •

the administrator of a deceased executor

•

the administrator or executor of a deceased administrator with the will annexed and

•

the administrator or executor of a deceased administrator.

They have, however a power to appoint a new trustee under s.7 of the Trustees Act 1962, see paragraph 3.7.1. Alternatively a new application at the Court can be made for a Grant of Letters of Administration for the original estate.

3.4

Survivorship Applications (Section 227 of the TLA)


3.4.1

On Death of a Joint Tenant

Where any person registered with another as a joint tenant dies, the surviving joint tenant must apply to be registered as the surviving proprietor on the Register. Although the interest of a joint tenant ceases immediately on death and the surviving joint tenant’s interest is immediately enlarged, the legal estate does not change until the required application is made and the Register amended.

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In support of a Survivorship Application (see LTRPM Form Examples- Example 2) the following must be produced: 1.

A copy of evidence of death certified by the Registrar General, or an office copy of a grant of probate or letters of administration of the deceased. and

2.

A statutory declaration by the surviving joint tenant or his or her personal representative or by one or more of the surviving joint tenants if more than one. This declaration should: (i)

identify the declarant

(ii)

identify the land being dealt with by its volume and folio reference in all cases, and where a mortgage, charge or lease of land is being dealt with, the number of that instrument

(iii)

contain the statement

“ I am (we are) registered as a joint tenant of the land, (lease, charge, mortgage) described above”. (iv)

identify the deceased joint tenant as being one and the same as the person shown on the certified copy of the death certificate (quoting the registration number of the death certificate), or other evidence of death produced. Any differences in name or address of the deceased or the surviving joint tenant(s) must be explained. It is not necessary to apply to amend the name of the deceased but an application to amend may be required where the surviving applicant’s name differs in any way from that shown on the Register, or the survivorship application form amended to show the correct name of the survivor (see LTRPM Form Examples- Example 4).

(v)

3.4.2

refer to the certified copy of the death certificate or other evidence mentioned above.

Who May Apply

The following persons may apply to be registered as proprietor by survivorship: 1.

all the surviving joint tenants

2.

the sole surviving joint tenant

3.

where all joint tenants are deceased the executor or administrator of the last surviving joint tenant on behalf of that joint tenant

4.

the surviving executor or administrator when registered as proprietor with a deceased coexecutor or co-administrator

5.

the surviving joint tenant when registered as joint tenants with a corporation that has been liquidated and

6.

a corporation when registered as joint tenant with a person who has died.

The survivorship application form for the third scenario set out above is completed as shown in (see LTRPM Form Examples- Example 3) This form of survivorship must be followed by a transmission application of the estate of the last surviving joint tenant. The Attorney of the surviving joint tenant may execute a survivorship application form on behalf of the donor of the power of attorney, and may (in the attorney’s name) provide the declaration in support. The declaration must include the means of knowledge for the statements made.

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3.4.3

Bars to Survivorship

Where joint tenants die in circumstances that give rise to reasonable doubt as to which of them survived the other the Property Law Act 1969, s.120, provides that the property shall devolve as if it were owned by them as tenants in common. Separate transmission applications are required for the interest of each deceased proprietor. Where a caveat lodged against the land is lodged specifically to prevent the application for survivorship, or indicates the existence of an unregistered but registrable transfer or an unregistered but registrable mortgage of the land, a survivorship application will not be accepted. Where a joint tenancy is severed in equity by a court order see paragraph 3.9.1.

3.4.4

On Death of a Life Tenant

Where any person registered as proprietor of an estate for life dies, the person or persons registered as proprietors of the estate in remainder must apply to be registered as proprietors of the estate in fee simple in possession, i.e. the whole interest in the land. Although the interest of the life tenant in the land ceases immediately on death and the interest of the remainderman is immediately enlarged, the legal estate does not change until the required application is made and the Register amended. The form to be used is a blank application Form A5 and the application is made by the remainderman or remaindermen. The correct words to be used in the third section on the Form A5 are: “to be registered as the proprietor (or proprietors) of an estate in fee simple in possession, the life tenant (name) having died on (date of death).” In support of the application the following should be supplied: 1.

A certified copy of the certificate of death of the deceased life tenant as issued by the Registrar General or an office copy of a Grant of Probate or Letters of Administration. and

2.

A statutory declaration of the remainderman or one of them if more than one. This declaration should: (i)

identify the declarant

(ii)

identify the land being dealt with by reference to its volume and folio numbers in all cases, and where a mortgage, charge or lease of land is being dealt with, also by the number of that instrument

(iii)

introduce the certified copy of the certificate of death or Grant of Probate produced as evidence of death and

(iv)

identify the deceased life tenant with the person shown on the evidence of death produced. Any differences of name, address or occupation must be explained.

The duplicate certificate of title containing the life estate must be produced. Where the life estate is held in a separate certificate of title it must be produced for cancellation. The duplicate certificate of title containing the estate in remainder or the duplicate certificate of title with both estates is suitably endorsed with a memorandum of the application or where required, a new title is created and registered.

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3.4.5

Application by a Trustee in Bankruptcy (Section 234 of the TLA)

The Bankruptcy Act 1966 as amended (in this section called the Act) is a Commonwealth Act that (inter alia) provides for the appointment of Government officials to the statutory position of Official Trustee in Bankruptcy. The Act also authorises the appointment of suitably qualified persons in private practice as registered trustees to deal with bankrupt estates (Trustees in Bankruptcy). Every person who, as trustee, assignee, or by any other name is the representative of a bankrupt or insolvent estate is entitled to be registered as proprietor of any land under the TLA, in the place of the bankrupt or insolvent proprietor. Under the Act the trustees of a particular estate may be appointed or removed in a variety of circumstances, so the Registrar of Titles has an interest in ensuring that a bankrupt registered proprietor is only displaced by a trustee whose appointment is current. Although the interest of the bankrupt person is taken from him or her at the instance of bankruptcy, the legal interest in the land does not vest in the trustee until lodgement of the application. Bona fide dealings (dealings not intended to defeat creditors) by a bankrupt proprietor registered before an application (or caveat) by a trustee in bankruptcy is lodged, are valid. The application is made on a Form A5, describing the land involved, the name of the Trustee, and showing on the operative part of the form the words: “to be registered as the proprietor of the above land as the Trustee in Bankruptcy/Official Trustee in Bankruptcy (whichever is appropriate) of (name of the registered proprietor).” A computer register of insolvent or bankrupt persons, and the trustees appointed to administer those estates is maintained by the Commonwealth Government, in the offices named the Insolvency and Trustee Service Australia. The computer register is called the National Personal Insolvency Index (NPII).

3.4.5.1

Application by the Official Trustee in Bankruptcy

The application must be supported by a statutory declaration by the trustee who identifies: •

the applicant as the trustee

•

the land the subject of the application

•

the registered proprietor (or at least one of them, if more than one) as the bankrupt and

•

state that the appointment of the trustee is still current.

3.4.5.2

Application by a Trustee in Bankruptcy

An application by a Trustee in Bankruptcy must also be supported by an extract of the National Personal Insolvency Index (NPII) and a statutory declaration. The declaration must cover the same issues as the declaration previously mentioned in this paragraph.

3.4.5.3

Appointment of a Trustee under Part X of the Bankruptcy Act 1966

If the Trustee has been appointed under Part X of the Act, evidence that the proprietor is entered in the National Personal Insolvency Index (NPII) must be filed with the application, together with a statutory declaration that the appointment is still current, and if necessary, identifying the registered proprietor as one and the same person as the bankrupt. Once registered, the trustee may deal with the property as the registered proprietor and must sign the document as such proprietor using the normal clause. It is not necessary to show in the attestation clause the trustee as (Name) the trustee in bankruptcy of the bankrupt estate of (Name of Bankrupt).

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3.5

Amendment of Name

3.5.1

General

Where a registered proprietor is shown in the Register by other than his or her full true and correct name then, as a general rule (for exceptions see paragraph below under that heading) the Register must be amended to show the proprietor’s correct name. Similarly, if a female proprietor adopts a new surname after a marriage occurring after becoming registered as proprietor or where a name was changed by Licence to Change Name or by Deed Poll, the Register should be amended. Where the address of a registered proprietor is shown incorrectly on the Register an application to amend will be accepted. If the address is not amended identification of the proprietor may be satisfactorily established in later instruments dealing with the land by stating a new address followed by the words formerly of and then stating the old address. Where the applicant does not request a change of address and where the evidence supplied indicates such a change, it is practice to bring the Register up to date by quoting in the memorandum for the application the new address of the applicant.

3.5.2

Married Women

There is no obligation on any woman to adopt her husband’s surname or on any man to adopt his wife’s surname on marriage. Both partners in a marriage may join their surnames in any order to form a hyphenated surname. The law is however concerned that whatever name is adopted is the only one used for all purposes. If a new (or former) name is subsequently adopted then it must then be used for all purposes. Married women may at any time revert to the use of their maiden name. In such cases, an application to amend a name on a title would need a statutory declaration by the applicant together with a certified copy of their birth certificate as evidence. The applicant would however be better advised to formally change their name by registration of that name at the office of the Registrar of Births, Deaths and Marriages and receive a certificate issued under s.57 of the Births, Deaths and Marriages Act 1998, because other authorities (eg: the Passport Office) may require documentary proof of the person’s correct name.

3.5.3

Form

The form to be used is a Form A5. The land being dealt with must, in all cases, be fully described and, where necessary, the number of any mortgage, charge or lease of land must be shown. It must be signed by the applicant and must, accurately and concisely, set out the required change to be made in the Register (see paragraph 3.1.4). The duplicate certificate of title (if any) must be produced with the application if the name of the registered proprietor of the land is being amended.

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3.5.4

Evidence Required for Simple Amendment of Name in Case of Error

A simple error is one where an existing registered proprietor’s name is being amended on a certificate of title due to an error or omission made on the original instrument or document by lodging an Application to Amend Name. Examples of a simple error include: •

Where an application is lodged because a proprietor’s name has been incorrectly spelt on the original conveyance (e.g. Steven being incorrectly shown as Steve, Ralph being incorrectly shown as Rolph, Maree being incorrectly shown as Marie or White being incorrectly shown as Whyte).

•

Where an application is lodged to change the order of names (e.g. Jeffery Robert Brown being changed to Robert Jeffery Brown, or Nguyen Minh Thi being changed to Minh Thi Nguyen.

•

Where an application is lodged to add an addition Christian name (e.g. Brendan Jones being changed to Brendan Phillip Jones or Anne Smith being changes to Anne Joy Smith)..

Where a registered proprietor is seeking to amend their full, true and correct name to correct an error, this is considered to be a simple error, a Statutory Declaration setting out the facts of the error or omission is required. The Statutory Declaration must state the following: •

their true and correct name and address

•

sufficient identification of the land being dealt with and, where applicable, the number of the mortgage, charge or lease of land

•

how the error or omission occurred (to the best of the applicant’s knowledge)

•

that the declarant is identical with and one and the same person as the present registered proprietor.

3.5.5

Evidence Required for Amendment of Name by Marriage

The applicant must provide a statutory declaration stating: •

the true and correct name of the applicant

•


•

to whom the applicant was married and when and

•

that the declarant is identical with and one and the same person as the present registered proprietor

and produce a certified copy of the Certificate of Marriage issued by the Registrar of Birth, Deaths and Marriages or the equivalent from another jurisdiction of origin. If the applicant is reluctant to leave the certificate with the dealing, the applicant (or the applicant’s agent) may attend at Landgate and request the staff to photocopy the original document and file the Landgate Sighted copy in the application. Photocopies produced outside Landgate will not be accepted. There is no fee for the service. 

Note: On and after 11 November 2013 the original certificate issued by a Marriage Celebrant (Bridal Copy) will no longer be accepted as evidence. A copy of a marriage certificate certified by a Justice of the Peace is not acceptable.

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3.5.6

Evidence Required for Amendment of Name by Licence to Change Name or Deed Poll

The applicant must provide a statutory declaration stating: •

their true and correct name

•

sufficient identification of the land being dealt with and, where applicable, the number of the mortgage, charge or lease of freehold land

•

the registration number in the Deeds Office or the Registrar General’s Office of the Licence to Change Name or Deed Poll and quoting the old name and the new name and

•


and produce a certified copy of the licence to change name or deed poll held in the Registrar General’s Office or production of the Clients copy for sighting. 

Note: Because of the repeal of the Change of Names Regulation Act 1923 on 14 April 1999, a person no longer needs to formally change his or her name by deed poll or licence. They can now assume a new name if they can show that the new name was established by repute or usage (see paragraph 3.5.7 below). From the above-mentioned date, the Registrar of Births, Deaths and Marriages will not accept deed polls and licences for registration. However, it is possible to formally change a name by registration of that name at the office of the Registrar of Births, Deaths and Marriages and receive a certificate issued under s.57 of the Birth, Deaths and Marriages Act 1998. This may be advisable at times because other authorities (eg: the Passport Office) may require documentary proof of the person’s correct name.

3.5.7

Evidence Required for Amendment of Name by Repute or Usage.

Under s.36 of the Birth, Deaths and Marriages Act 1998 (referred to as the Act in this section) a person is not prevented from establishing a change of name by repute or usage where the change is made after the commencement of the Act. This Act was proclaimed on 14 April 1999. Where a person seeks to change his or her name on the Register maintained by the Registrar of Titles and is domiciled (i.e. permanently residing) within Western Australia, a supporting statutory declaration must be lodged by the applicant stating; •

the reason(s) for the name change and setting out evidence of the use of the previous name and the circumstances that clearly establish that the new name has been acquired by repute or usage

•

sufficient identification of the land being dealt with and, where applicable, the number of the mortgage, charge or lease of land and

•


In support of the above-mentioned statutory declaration, sufficient documentary evidence must be produced to satisfy the Registrar of Titles that the name has been changed by repute or usage.

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Such documentary evidence should include: •

statutory declarations from at least two persons who can normally witness a statutory declaration made in Western Australia as set out in the Oaths, Affidavits and Statutory Declarations Act 2005 (see paragraph 3.2.2) verifying that the applicant is known to that person and that person has known the applicant both before and after his or her change of name and

•

documentary evidence to satisfy the Registrar of Titles that the new name has been accepted and used over a reasonable period of time in at least two of the following cases: o

statements from rating authorities, financial bodies or public utilities

o

identification card(s) issued by the Commonwealth, State or Territory as evidence of the person’s changed name or

o

licences or permits issued under a written law.

Where the applicant is domiciled (i.e. residing permanently) outside Western Australia, the laws of the applicant’s State (if within Australia) or country of domicile dealing with changes of names will need to be complied with. Applicants who are permanently residing in Western Australia may prefer to obtain a certificate from the Registrar of Births, Deaths and Marriages certifying the change of name for multiple purposes rather than providing the necessary statutory declarations and documentary evidence set our above to satisfy the Registrar of Titles of the change of name.

3.5.8

Evidence Required for Amendment of Name by a Certificate Issued by the Registrar of Births, Deaths and Marriages

From the 14 April 1999 it is possible to change a name by registration of that name at the office of the Registrar of Births, Deaths and Marriages and receive a certificate issued under s.57 of the Birth, Deaths and Marriages Act 1998 (see also paragraph 10.2.3). Where a person seeks to change his or her name on the Register maintained by the Registrar of Titles and has obtained the above-mentioned certificate, a supporting statutory declaration must be lodged by the applicant stating: •

the true and correct name

•


•

the registration number of the certificate issued by the Registrar of Births, Deaths and Marriages and quoting the old name and the new name; and

•


A certified copy of the certificate of change of name held in the Office of the Registrar of Births, Deaths and Marriages must be produce with the above-mentioned statutory declaration.

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3.5.9

Evidence Required for Amendment of Name by a Corporation

The application (Form A5) must be accompanied by a certificate issued by the Australian Securities & Investments Commission giving evidence of the change of name of the corporation. A photocopy of a certificate is not acceptable. The application form should be signed by either a Director of the corporation or its duly appointed Secretary. 

Note: A statutory declaration by an officer of the corporation is NOT required.

3.5.10

Exception to the General Rule

An application to amend name will not be required when the whole of the estate or interest of a proprietor (including corporations) is: •

being dealt with by survivorship, transmission, transfer, vesting application or discharge of mortgage or

•

being included in a new title or titles created and registered in place of the present title. This could be by an application for a title the subject of a subdivision or an application to replace a present title.

For example, if in one of the documents mentioned above, the whole of the estate or interest of the proprietor is being dealt with and the name at that time differs in some way from that shown on the title or mortgage, then it will be sufficient if evidence of the change is supplied and the change is noted on the document. The evidence of the change (a statutory declaration and any other relevant documentary evidence) should be the same as that now required for an application to amend. The method of noting the change in the document will be by appropriately referring to new and old names in the relative panel of the document, eg: in a transfer the transferor panel would appear as: ‘A of etc formerly known as B of etc.’ In a transmission or survivorship application, application for new title or discharge of mortgage the appropriate note would be made in the deceased proprietor, applicant or mortgagee panel respectively. If part of the estate or interest of the proprietor remains in the title or mortgage after one of the above transfers, applications or discharges then an application to amend will still be required to precede the transfer, application or discharge. It should be noted that this procedure applies only to transfers, applications and discharges dealing with the whole of the estate or interest of the proprietor whose name has changed and includes (for transfers) the case where one of the transferees is also a transferor.

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3.5.11

Amending the Address of the Registered Proprietor

A registered proprietor is able to amend their address for service of notices as shown on the certificate of title by lodging a Notification to Amend Address of Registered Proprietor (Form NA1 Notification of Change of Address of Registered Proprietor). The Notification to Amend Address (Form NA1) which incorporates a statutory declaration may only be used by one person. If more than one registered proprietor wants to change their address, separate Notification forms will need to be used. It is desirable, but not essential that the duplicate title (if any) be produced with a Notification. Where the land is encumbered by a registered mortgage or charge and the duplicate title will not be produced with the Notification, the registered proprietor must notify the mortgagee or chargee of their intention to lodge the Notification and inform them of what the new address for service of notices will be. For an example of how to fill out this form, see LTRPM Form Examples- Example 19. There are no document registration fees for the lodgement of a Notification. Refer to paragraph 1.7.5 for address requirements for Western Australia’s land registry forms.

3.6

Foreclosure (Section 121 of the TLA)

3.6.1

General

The TLA provides the machinery whereby a mortgagee may foreclose a mortgage and become the registered proprietor of the land formerly mortgaged. This procedure is a last resort by the mortgagee to protect an investment after having been unsuccessful in the attempts to sell the land. 

Note: Part of the procedure leading to a foreclosure is the offer for sale, by Landgate, of the subject land. For this reason, where a mortgagee is both first and second mortgagee, action to apply for a foreclosure order should be taken on the second mortgage. If action is taken on the first mortgage and an offer to purchase, sufficient to cover the debt, interest and expenses of that mortgage is received, then the moneys owing under the second mortgage could not be recovered and would be lost to the mortgagee.

3.6.2

How to Apply

The application is made by the mortgagee on a blank Form A5 Application setting out the land affected and asking that an Order of the Commissioner of Titles, foreclosing the interest of the mortgagor in a specified mortgage, be granted.

3.6.3

Requirements

Before a foreclosure order may be granted it must be proved that: •

default had occurred and continued for a period of six months after the time for payment of the mortgage

•

the land had been offered for sale at public auction and no bid or an insufficient bid (state the highest amount) had been received

•

notice of the intention to apply for a foreclosure order had been served on the mortgagor (registered proprietor) and

•

notice of intention to apply for a foreclosure order had been served on every encumbrancer subsequent to the mortgage the subject of the application and, in the case of memorials, that these have either been withdrawn or the written consent of the body lodging the memorial has been obtained.

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3.6.4

Notice of Default

Notice of default in the payment of interest or principal by the mortgagor must be made as set out in s.106. These matters are fully covered in paragraph 2.2.5 and are the same as those required where a mortgagee has exercised the power to sell. The mortgagee must declare that: •

notice of default was sent and when

•

default had continued for six months

•

the attempt to sell at public auction was unsuccessful

•

notice of intention to apply for a foreclosure order had been served on the mortgagor

•

notice of intention to apply for a foreclosure order had been served on all subsequent encumbrancers or if there are none, that there is no subsequent encumbrancer and

•

at the date of the application for a foreclosure order the mortgagee had not received full and sufficient payment from the mortgagor, i.e.: that default under the mortgage still continued.

3.6.5

Evidence Required

The following evidence must be supplied as annexures to a statutory declaration by the person or persons sending the notices of default and intention to apply for a foreclosure order: •

a copy of the notice of default

•

proof of service of the default notice eg: a Post Office receipt, which should show the full names of the mortgagor and the full address (refer to paragraph 1.7.5 for address requirements for Western Australia’s land registry forms.

•

a copy of the notice (to the mortgagor) of intention to apply for a foreclosure order

•

proof of service of the notice (to the mortgagor) of the mortgagee’s intention to apply for foreclosure

•

a copy of the notice (to subsequent encumbrancers (if any)) of intention to apply for a foreclosure order and

•

proof of service of the notice to subsequent encumbrancers.

3.6.6

Certificate of Auctioneer

This certificate in the form of a statutory declaration made by the auctioneer should state that: •

the auctioneer is a licensed auctioneer

•

the auction of the mortgaged land was held at a specific place, date and time and

•

no bid was received or that the highest bid received (to be stated) was insufficient to cover the mortgage debt and costs incidental to the mortgagee’s exercise of power of sale.

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3.6.7

Conditions of Sale

The conditions of sale under which the auction was held must also be produced as an annexure to the declaration by the auctioneer.

3.6.8

Copies of Advertisements

Full pages of the newspapers in which the notice of intention to sell by auction appear must be produced as annexures to a statutory declaration either by the solicitor for the applicant or by the applicant. Such advertisements should contain: •

a description of land by its local situation (ie: number in a certain street and its town)

•

a reference to the lot, plan and certificate of title number, and area

•

sufficient detail to make the property attractive to a prospective purchaser

•

an allowance of sufficient time for inspection by a prospective purchaser and

•

a statement that it is a mortgagee’s sale.

In general the advertisements should properly identify the property, permit time for inspection, and contain nothing calculated to deter a prospective purchaser from buying. The onus is on the mortgagee to obtain the best price possible when exercising a power of sale. Failure to advertise the sale to the satisfaction of the Commissioner could result in the advertising and the sale having to be conducted for a second time.

3.6.9

Attempt to Sell by Landgate

Before the order is granted the land the subject of the mortgage is again offered for sale by the Commissioner. An advertisement, at the expense of the mortgagee, is placed in three consecutive weekly issues of a newspaper circulating in the City of Perth offering the land for sale and setting a time, being not less than one month from the first advertisement, after which an Order for Foreclosure would be issued.

3.6.10

Final Declaration of Mortgagee

Upon the Commissioner being satisfied that the requirements of the TLA have been fulfilled and before the Foreclosure Order is made, a statutory declaration by the mortgagee is required, referring to the application, and declaring that no sufficient payment had been received from the mortgagor nor had the mortgagee’s solicitors received such payment up to the date of the declaration.

3.6.11

Preparation, Stamping and Processing of the Order

The order is then prepared in Landgate and signed by the Commissioner of Titles. The order may then be collected from Landgate by the applicant or the solicitor for the applicant and submitted to the Office of State Revenue (Stamp Duties Division) for assessment of stamp duty. Once stamped the order is returned to the Landgate staff, who arrange for its lodgement as a document, and processing.

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3.6.12

Effect of Order

On completion of the processing of the order the estate and interest of the registered proprietor/mortgagor is vested in the mortgagee and the right of the mortgagor to redeem the land is foreclosed. Any encumbrances subsequent to the mortgage under which the order is made are removed and no longer affect the land and the new certificate of title which is created and registered is subject only to prior encumbrances and to those encumbrances (easements and leases) to which the mortgagee had given an unqualified consent. Memorials which encumber the land continue as encumbrances if the consent of the statutory body which lodged them is obtained.

3.7

Vesting Orders (Section 182 of the TLA)

3.7.1

General

Where land is held in trust by the registered proprietor, any person entitled to be registered may make an application (Form A5) describing the land being dealt with, or if applicable, the mortgage charge or lease, requesting the issue of an order vesting it in the applicant. If the desired result can be achieved by transfer a vesting order will not be granted. The facts relied upon to establish the applicant’s claim must be set out by statutory declaration and such documentary evidence as is necessary to support the claim should be made annexures to the declaration. It is necessary to produce the duplicate certificate of title (if any) but if this is not possible, production of the duplicate certificate may be dispensed with under s.74 of the TLA and the intention of the Commissioner to make the order applied for will be advertised in a newspaper published in the City of Perth. This type of application is particularly useful when an administrator breaks the chain of executorship as the administrator cannot apply for transmission in the ordinary way. It is also available to the personal representative of the last surviving trustee. The term personal representative in this case includes executors and administrators. The personal representative of the last surviving trustee has a power of appointment of new trustees under s.7 of the Trustees Act 1962. The power of appointment is required to be exercised in writing and the appointor may appoint the appointor, or another person to be the trustee of the land, mortgage lease or charge being dealt with. The new trustee so appointed may then apply for the issue of a vesting order. The form to use is blank application (Form A5) describing the land affected in every case, and, if a mortgage, lease or charge is involved, the number of that instrument and requesting the granting of a Vesting Order under s.182 of the TLA.

3.7.2

Evidence Required

In support of such an application the following evidence is required: •

a statutory declaration of the applicant, the new trustee, setting out the facts showing how that status was obtained. The declaration should also contain a statement, to the best of the declarant’s knowledge, that the person through whom the declarant claims (the most recently deceased personal representative) had completed the duties as executor or administrator and had continued to hold the land or interest being dealt with as mere trustee

•

an office copy of any Grant of Probate or Letters of Administration forming evidence of the appointers power to appoint a new trustee and

•

the Deed of Appointment of New Trustee referred to above.

The duplicate certificate of title (if any) must be produced.

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3.7.3

Preparation, Stamping and Processing of the Order

The Commissioner then instructs Landgate staff to prepare the order and signs it when prepared. The order may then be collected from Landgate by the applicant, or the solicitor for the applicant, and submitted to the Office of State Revenue (Stamp Duties Division) for assessment of stamp duty. Once stamped the order is returned to Landgate staff, who arrange for its lodgement as a document, and processing. The procedure is then completed by entering the name of the applicant on the relevant certificate of title (without showing the nature of the trust if such is the case). The interests of persons entitled under the will or intestacy may be protected by a Registrar’s Caveat. Where the land is the subject of a paper title, the Registrar will record the vesting on both the original and duplicate certificate of title (if any). Where the land is the subject of a digital title, the Registrar will record the vesting in the digital register and cancel the duplicate title (if any) and create a new edition of the duplicate title.

3.8


3.8.1

General

Where a person has purchased land from the registered proprietor, completed payment, and has entered into possession with the consent of the vendor and no transfer has been executed because the vendor is dead or is residing out of the State or cannot be found, an application for a Vesting Order may be made by the purchaser. An application on the blank Form A5 describing the land and requesting the issue of a vesting order under the section should be made. The duplicate certificate of title (if any) should be produced or, if not produced, its production may be dispensed with under s.74 of the TLA. Proof of each of the necessary elements set out in the section must be supplied. In particular proof of payment of the purchase price and interest (if any) in the contract of sale or other document of purchase is required. This should take the form of receipts, cheque butts or bank statements and must cover the entire purchase price.

3.8.2

Evidence Required

A statutory declaration by the applicant stating the facts with the above proof as annexures is required. The Commissioner then instructs Landgate staff to prepare the order and signs it when prepared. The order may then be collected from Landgate by the applicant, or the solicitor for the applicant, and submitted to the Office of State Revenue (Stamp Duties Division) for assessment of stamp duty. Once stamped the order is returned to Landgate staff, who arrange for its lodgement as a document, and processing. The procedure is then completed by having the name of the applicant endorsed on the first schedule of the relevant certificate of title.

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3.9


3.9.1

General

Where the Family Court or other Court has made an order that: •

land jointly owned be vested in one of the parties or

•

land owned by one of the parties be vested in the other party or

•

expressly or impliedly severs a joint tenancy

then both parties are bound to give effect to the order i.e.; the necessary documents to give effect to the Order, whether the Order uses the term vest or transfers, must be signed by the parties. In other words, it is anticipated that in most instances a Order of the Court vesting land will form the basis of the consideration of a transfer of the land. In those cases where one of the parties is unable to, or refuses to execute a transfer, or cannot be found, or if for any other reason a transfer cannot be obtained within a reasonable time, an application to have the land registered in the name of the other party under s.242 (1)(b) of the TLA will be accepted. The operative part of the Application, on a Form A5, should read: “The Applicant hereby applies to the Registrar of Titles to give effect (pursuant to s.242 of the Transfer of Land Act 1893) to the Order made in the Family Court of Western Australia on the ……..day of ………… 20…… in matter No. of 19 on the ground that (Here state nature of grounds).” Where a court order severs a joint tenancy (e.g. there is an order that the joint tenancy property be sold and net proceeds divided between the proprietors) and one of the registered proprietors dies, then either the other proprietor(s) can lodge an application under s.242 of the TLA or the personal representative of the deceased proprietor can lodge a Transmission Application (instead of an Application under s.242 of the TLA). Where a Transmission Application is lodged, the normal requirements for transmission applications and the requirements of paragraph 3.9.2 will need to be met. If there is a simple severance with no other orders applying to the property, than no other documents need to be lodged. However, if as is more likely, there is an order that a joint tenancy property be sold and net proceeds divided between the proprietors, then a Registrar’s Caveat will normally be lodged following a transfer or transmission application severing the joint tenancy on the register. If the order indicates that the land is to be held in other than equal shares, then where a transmission application is lodged it must be followed by a transfer or an application under s.242 of the TLA so as to give effect to the order.

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3.9.2

Evidence Required

A Statutory Declaration establishing the existence of the ground referred to in the Application must be filed with the application. In respect of orders that state that the property vests or is transferred subject to or conditional upon the vestee indemnifying the divested person against any ongoing liability, the lodging party must file with the application a stamped copy of a Deed of Indemnity in the terms of the Order. For example, a deed is required if the Order is worded: “Subject to the wife indemnifying the husband from all outgoings, the property vests in the wife.” A Deed of Indemnity is not required if the vesting order is made subject to a precondition (eg: payment of a sum of money), but a statutory declaration with appropriate evidence of the satisfaction of the precondition will be necessary. For example a deed is not required, but evidence of payment is if the Order is worded: “Subject to the wife paying $20,000 to the husband, the property vests in the wife.” A deed is not required when the Order sets out in a separate paragraph that the vested is to indemnify the divested person from ongoing liabilities and does not limit the order vesting the property. For example, where the paragraphs of the Order are so arranged to show: paragraph (X) The property vests in the wife; and paragraph (Y) The wife shall indemnify the husband from outgoings on the property; a deed of indemnity is not required by the Registrar.

3.10

New Duplicate Certificate of Title (Section 75 of the TLA)

This document is subject to the Verification of Identity Practice issued jointly by the Western Australian Registrar of Titles and Commissioner of Titles. Please refer to Chapter 14. 3.10.1

General

Where a duplicate certificate of title or a lease for Crown Land by the State of Western Australia has been lost or destroyed, an application may be made for the creation and registration of a new duplicate certificate of title, or state lease of Crown land. Where a duplicate Management Body lease has been lost, a statutory declaration as per paragraph 3.10.2 below is required for a dealing without production of a duplicate lease pursuant to s.74 of the TLA. 

Note: It is desirable that all of the registered proprietors make a joint application. However applications that are not made by all of the registered proprietors or by someone other than the registered proprietors(s) (eg mortgagees) may be acceptable under certain circumstances.

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In the case of a paper title, the loss or destruction of the duplicate title will result in the creation and registration of a new certificate of title. In the case of a digital title, the loss or destruction of the duplicate title will result in the creation of a new edition of that duplicate title. A new title will not be created and registered. In the case of a lease of Crown land by the State of Western Australia, the loss or destruction of the duplicate lease will result in the creation and registration of a new state lease of Crown land with the term and conditions remaining the same. Where the registered proprietor is deceased an application of this nature must be preceded by a transmission application. The application for the special certificate will then be made in the name of the executor or administrator. Where one of two or more proprietors registered as joint tenants is deceased, a survivorship application must precede the application for a new or special title. The latter application will then be made in the name of the survivor, or survivors. In the case of a paper title the application should be made on a blank application Form A6 and must describe the land affected and request the creation and registration of a new certificate of title and the issue of a new duplicate certificate of title in lieu of that lost or destroyed. In the case of a digital title the application should be made on a blank application Form A5 and must describe the land affected and request the issue of a new edition of the duplicate certificate to replace the one that is lost or destroyed.

3.10.2

Declaration in Support

The applicant is required to make a Statutory Declaration on a Form B3, detailing the history of the duplicate certificate as far as it is known. All applicants (and any other person who may have any knowledge of the history of the duplicate title) must provide a statutory declaration. It is important to note the Commissioner of Titles can only consider the issuing of a replacement duplicate title, based on the evidence and the facts set out in the statutory declaration/s provided with the application document. Where one page of a statutory declaration is not sufficient to include all the facts, it is acceptable to complete a second or third separate statutory declaration page (as many separate pages required to state the facts). However the clauses should be numbered in sequence and all pages comprising the statutory declaration will need to be separately signed and witnessed. The statutory declaration must provide a statement for each and every dot point shown below: •

Identify the person who is making the declaration (for example ... 'I am one of the registered proprietors/owners');

•

If the declaration is being made by someone other than the registered proprietor/owner, state the authority of the person making the declaration (for example ... 'I am a director of XXX company who is registered as the proprietor of ...');

•

Identification of the property by its volume/folio reference or the lease number where a lease has been lost or destroyed;

•

The name of the registered proprietor Is (owner/s) of the property;

•

If the duplicate title was held by the applicant, how and when it came into the applicant's possession;

•

If the duplicate title was not held by the applicant, the name of the person or body that did hold it, how and when it came into

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•

their possession and the reason that person or body cannot now produce the title (the person or an officer of the body formerly in possession of the duplicate title must, by statutory declaration, confirm the facts recited and include what searches were made for the duplicate and negate its deposit for security);

•

The name of the person presently in possession of the property and the nature of the occupancy;

•

Where the duplicate title was usually kept and who apart from the applicant/s had access to that place. Any other person/s having access will also need to complete a statutory declaration providing their knowledge of the duplicate title and negate its deposit by way of lien or security from any form of loan or business agreement;

•

That there is no person known to have or is likely to have the said duplicate title in their possession;

•

What searches for the duplicate title were made and the result of those searches. A statement that "all reasonable enquiries" have been made is not sufficient;

•

What enquiries were made of banks, accountants or other institutions and with what result. The original of any replies received must be produced with the declaration;

•

That the duplicate title had not been deposited with any bank, firm or person by way of security for any lien or loan or for any other purpose;

•

Where the land has been sold under contract of sale or where money has been borrowed on its security and there is a caveat protecting such contract or loan (on the original title held by Landgate) a declaration from the caveator/sis required as to their knowledge of the duplicate title;

•

Depending on the facts and circumstances of each case, additional statutory declarations may be required from third parties to establish some of the facts;

•

A reference to the current original land rate notice or letter from the local government, produced with the declaration which identifies the property and indicates in whose name/s the property land is currently rated. (If it is not rated in the exact names of the registered proprietor is (as shown on the original title held by Landgate), then an explanation clause must be inserted explaining the anomaly);

•

Where the duplicate title is known to have been destroyed by fire, a reference to the letter of confirmation from Department of Fire and Emergency Services (DFES) (or fire authority if outside Western Australia] as to the facts;

•

Where the duplicate title is known to be stolen, the declaration should state the Incident Number of the theft as record by the Western Australia Police.



Note: The application will not be accepted unless each of the above dot points have been adequately addressed in the statutory declaration.

If the application is made by a registered mortgagee, it is essential that the mortgagee's supporting statutory declaration includes the following information, in addition to the above points: •

It is clear that the mortgagee held the duplicate certificate of title until it was lost;

•

It is clear that the duplicate certificate of title was lost by the mortgagee;

•

The duplicate certificate was never sent to the mortgagor or to anyone else on the mortgagor's behalf, such as their solicitor or settlement agent;

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•

The mortgagee has informed the registered proprietor/s that the duplicate certificate has been lost and a true copy of the mortgagee's Letter (not email) to the registered proprietor/s should be annexed to the statutory declaration;

•

The registered proprietor/s confirms, in writing that they have never held the duplicate certificate. The original letter from the registered proprietor/s (not email) should be annexed to the mortgagee's statutory declaration.

•

Although in these circumstances, a statutory declaration from each registered proprietor may be dispensed with, Verification of Identity must be conducted in respect of the mortgagee applicant and each registered proprietor.

3.10.3

Evidence Required

In addition to the statutory declarations referred to in the preceding paragraph the applicant must produce the original notices or letters referred to in the declarations. It is irrelevant whether the rates have been paid, as the notice serves to supply corroborative evidence of ownership and occupation.

3.10.4

Advertising of Application (Paper Title, Crown Lease and Lease of Crown Land only)

When the Commissioner is satisfied that the duplicate certificate of a paper title, Crown lease or lease of Crown land has been lost or destroyed, a notice of intention to create a new duplicate is advertised in a newspaper published in the City of Perth or in the neighbourhood of the land. The period of advertising is the statutory minimum of fourteen days after which a new certificate of title will be created and a new duplicate issued. Where the duplicate certificate of a digital title has been lost or destroyed no advertising period is necessary unless required by the Commissioner of Titles. If the former duplicate title, Crown lease or lease of Crown land that was lost, is found after the creation and issuance of a replacement, it should be returned to Landgate for cancellation. No fee or penalty will be charged.

3.11

Removal of Caveats (Section 138B of the TLA)

The registered proprietor(s) of the land in respect of which a caveat is lodged, or the judgment creditor named in a property (seizure and sale) order registered in respect of the judgment debtor’s saleable interest in such land, may make application for the removal of a caveat under s.138B of the TLA. This section requires the caveator to take legal action and obtain a Supreme Court Order substantiating the estate or interest claimed in the caveat within 21 days of the service of notice. An application under s.138B of the TLA cannot be lodged on the following types of caveat: •

Caveats lodged under Sections 30, 176 or 223A of the TLA.

•

Caveats under any other written law which specifically provides for the lodgement of a caveat.

•

Caveats lodged by virtue of a Court Order.

•

Caveats protecting beneficiaries under a will or settlement.

•

Caveats lodged by or on behalf, or with the consent of the Minister for Lands.

•

Caveats lodged under any Commonwealth Act.

•

Caveats lodged by the Registrar of Titles.

The application must be made on a Form AW describing the land affected, the number of the caveat required to be removed and requesting that 21 days notice be sent to the caveator under s.138B of the TLA.

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All of the registered proprietors affected by the caveat must be shown as applicants in the application and they must all execute the application in the presence of a witness. If the applicant is a corporation, the application must be formally executed in accordance with the Constitution for that corporation. No evidence in support of the application is necessary. Upon lodgement and examination of the application, the caveator is served (at the address shown in the caveat) with a notice requiring that the caveator, within 21 days, obtain from the Supreme Court an order extending the operation of the caveat. If the caveator fails to obtain a Court Order extending the caveat within the 21 days notice period, the caveat will lapse and an entry will be made in the Register removing the caveat. If a withdrawal of caveat is lodged after the 21 days notice has been sent, but before the lapse date shown in the notice has expired, the notice period is terminated and the proprietor can deal with the land immediately. The caveator will not be able to re-lodge a caveat that has been removed under s.138B of the TLA by virtue of •

the lapsing of the caveat, by either the expiration of the 21 days or as a result of legal action or

•

upon the withdrawal of the caveat by the caveator upon receiving the notice from the Registrar;

unless the caveator has leave of the Court or the consent of the registered proprietor. If the caveator obtains from the Supreme Court an order extending the operation of the caveat, a copy of the order must be served on the Registrar of Titles within the 21 day period. (See paragraph 1.17.1). 

Note: The removal of caveats under this s.138B of the TLA is separate and distinct from the processes under Sections 137, 138 and 141A. Once Landgate has sent the 21-day notice or notices under s.138B of the TLA, it is not possible for the applicant to withdraw the application from registration. This type of application is limited to only one caveat (per application) and it must refer to all the land in the caveat.

Application Lodged by Mortgagee The application must be made in the name of the registered proprietor of the land affected by the caveat, but signed by the mortgagee under its power to dispose of ownership pursuant to s.108 of the TLA. The application is to be accompanied by a statutory declaration stating that: •

default under the mortgage has occurred

•

default notices have been sent to the mortgagor (indicating when they were sent)

•

default period provided in the mortgage has expired and

•

default still continues at the time of the lodging of the application.

Where such an application is lodged, a copy of the notice sent to the caveator will also be sent to the registered proprietor.

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3.12

Removal of Caveats (Section 141A of the TLA)

A registered proprietor or any person claiming an interest in the land may make application for the removal of a caveat on the grounds that the estate or interest of the caveator has ceased to exist. The application must be made on a blank application Form A5 describing the land affected, the number of the caveat required to be removed and requesting that 14 days notice be sent to the caveator under s.141A of the TLA. Evidence must be supplied by way of statutory declaration setting out the facts by which the registered proprietor claims that the interest of the caveator has ceased. Any documentary evidence produced must be annexed to the declaration. As each case is treated strictly on its merits, no guidance as to the evidence required can be given. This type of relief is rarely given where a purchaser’s caveat is concerned. Where the Commissioner is satisfied that the caveator’s claim has ceased to exist, the caveator is given, at the address or the number for a facsimile machine shown in the caveat for service of notice, 14 days in which to withdraw the caveat or commence proceedings in Court to substantiate his claim. After the 14 days have expired without any action by the caveator, a second notice is sent to the caveator advising that the caveat has ceased to affect the land. The Commissioner then directs that an entry be made in the Register removing the caveat from the title. Should the caveator take action to protect his or her claim he or she must join as parties the Registrar, or an Assistant Registrar, by name, and the registered proprietor, and any other person affected by the caveat. Once the caveator has commenced proceedings to substantiate the claim the caveat will remain on the title pending the resolution of the Court Action. If successful, the caveat will remain on the title and the application will be withdrawn or rejected, with a partial refund of fees. It should be noted that an application to remove a caveat using the provisions of s.141A of the TLA will not succeed if the applicant contends that the caveator’s claim was non-existent in the first place. A mortgagee who wishes to lodge a transfer to exercise a power of sale, and is prevented from doing so by a caveat lodged subsequent to the mortgage, may in certain circumstances successfully apply under this section (see paragraph 2.2.5). 

Note: An application under s.141A of the TLA will not be considered where the same outcome can be achieved by making an application under s.138B of the TLA.

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3.13

Search Certificates (s.146 and 147 of the TLA)

3.13.1

General

Where a person wishes to deal with the registered proprietor and desires information as to any caveat, instrument lodged for registration, order or injunction not noted on the title, application may be made for a search certificate. The application is made on a Form SC Search Certificate, and the prescribed fee must be paid. The Registrar causes the necessary searches to be made and signs and dates the Form SC referred to above. This certificate does not absolve the applicant from making a search of title. The applicant is deemed to know that which a search of the certificate of title would reveal. The certificate is issued as correct at 8am on the day of issue. 

Note: The applicant in a Search Certificate is any person who wishes to deal with any interest in land of a registered proprietor. The applicant or his authorised agent may sign the application.

3.13.2

Stay Orders (Section 148 of the TLA)

Where a person proposes to deal for value with a registered proprietor an application for a search certificate and stay order may be made with the consent of the proprietor or the proprietor’s agent. The application is made on a Form SO Stay Order Should the Search Certificate show that the registered proprietor is free to deal with the land, the order prepared in the Form SO referred to above is signed and dated by the Registrar, staying the registration of any other instrument affecting the land for forty eight hours from 8.30am on the day of issue of the order. The proposed dealing has priority over any other dealing for the time stated (s.149 of the TLA). If the proposed dealing is not lodged within the time covered by the Stay Order any other dealings lodged within that time are dealt with according to their priorities (s.150 of the TLA). 

Note: The applicant in a Stay Order is any person who wishes to deal for value with any interest in land of a registered proprietor. The application must be signed by the applicant and the registered proprietor or the registered proprietor’s authorised agent.

3.14

Amendment of Boundaries, Area or Position

Part IX of the (s.s170 to 179 of the TLA) sets out the manner whereby a proprietor of land may apply to have their certificate of title amended or a relevant graphic for the land amended or replaced where the land bona fide occupied differs from that described in the certificate of title or on a relevant graphic for the land. The application is required to be in one of the appropriate forms shown in the Twenty fourth Schedule to the TLA. It is recommended that a blank instrument Form B2 be used. The application is examined by the Commissioner and the intention to grant the application advertised in the manner directed. Persons having an interest in the land affected are notified and any person having an objection to the application may lodge a caveat forbidding the granting of the application (see paragraph 4.2.8).

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3.15

Vesting under Section 197 of the Planning and Development Act 2005 (P&D Act)

Where any land held, taken, resumed or otherwise acquired under any Act, for any public work, is in the opinion of the Governor not required for that work and is required for the purposes or likely purposes of a region planning scheme, the Governor, despite Part 9 Division 5 of the LAA, may declare by notice published in the Gazette that the land is to be held and may be used for the purposes of the region planning scheme. From the date of the publication of the notice, the land described in the notice vests in the Western Australian Planning Commission (WAPC) for the purpose of the region planning scheme. The WAPC is to ensure that notice of the vesting is lodged with the Registrar of Titles as soon as practicable after the land is vested. This is achieved by the lodgement of an Application Form A5 together with a copy of the notice published in the Gazette in respect of the relevant land.

3.16

Name Suppression

Name Suppression is available to eligible people to apply to the Registrar of Titles to have their details suppressed from Landgate’s searching indexes and data extracts. This is contained in the Transfer of Land Regulations 2004. The Name Suppression service is available only to people who can prove they are at risk of personal harm should their details be easily discoverable. The land titles register is an open, public searchable register created under the Transfer of Land Act 1893. The land titles index enables the public and professionals to search the register and obtain information about property owned by individuals. This information is often an indication of where people live and discovery may place some property owners at risk. A successful Name Suppression application will not change a record in the land titles register. It will however, remove the details associated with a suppressed name from name searching indices and from datasets/data extracts administered by Landgate. Name Suppression prevents enquirers from using a suppressed name as a starting point from which to discover an address. It will not completely prevent a Name Suppression applicant’s details from being discovered, because a suppressed name (and address) may still be discovered by using other search criteria such as an address, undertaking a title search or a lot on plan search. Registration fees are payable (see Search and lodgement fees)

3.16.1

Eligibility for Name Suppression

People who are eligible for Name Suppression are people (and/or their family members) who have been subjected to direct threats of violence. However, if you can prove that you have become a silent elector then this will remove the need to establish to the Registrar of Titles that you have been subject to direct threats of violence. Applicants are eligible if they: •

own a property

•

hold an interest in property

•

have lodged a purchaser’s caveat over property or

•

are a donor or donee of a Power of Attorney lodged with Landgate.

All applicants must provide evidence of their eligibility. For applicants who are a silent elector registered with the Western Australian Electoral Commission, production of proof of Silent Elector Status is sufficient that a threat exists. The nature of an applicant’s occupation does not itself give rise to a right to have that person’s name suppressed under the requirements for having their name suppressed.

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3.16.2

How to Apply for Name Suppression

To apply you will need a Name Suppression application pack which can be obtained: •

online at http://www0.landgate.wa.gov.au/

•

by email request to [email protected]

•

by telephone request on 9273 5900 or

•

at one of Landgate offices.

If you are a silent elector registered with the Electoral Commission, you will need to complete and submit all the forms in the application pack. This includes the Statutory Declaration to verify your identity in relation the Certificate of Title or any other document to which you wish the suppression to apply, and to confirm that you are the same person as identified in your silent elector letter from the Western Australian Electoral Commission. You will need to sign the Statutory Declaration in the presence of an authorised witness. (see paragraph 3.2.3) If you are not a silent elector you will need to state why you believe that you or your family are at risk of harm and provide evidence to substantiate your claim. You will need to complete and submit all the forms in the application pack. This includes the Statutory Declaration to verify your identity in relation to the Certificate of Title or any other document to which you wish the suppression to apply. You will need to sign the Statutory Declaration in the presence of an authorised witness. (see paragraph 3.2.3) Your application will be considered by a delegate of the Registrar of Titles.

3.16.3

How to Submit your Name Suppression Application

You will need two (2) envelopes, one smaller than the other (recommend DL and DLX sizes as a minimum) containing the following information on the reverse side of the smaller envelope: •

type of application

•

Certificate of Title volume and folio details and/or address of each subject property.

•

Power of Attorney document number (if applicable).

•

type of evidence enclosed (i.e. Statutory Declaration, silent elector letter, etc).

Your application and all related documents must be placed inside the smaller envelope, sealed, and then placed inside the larger envelope. Seal the larger envelope and address it to: ‘CONFIDENTIAL’ Landgate Name Suppression Officer PO Box 2222 MIDLAND DC 6936 To ensure confidentiality do not put your name on either envelope. Your name should appear only on the application form and on any supporting documentation. You may hand deliver your application and supporting documentation to Landgate’s Perth or Midland office where you will be provide with a secure lodgement envelope.

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3.16.4

Extent of Name Suppression

A suppressed name will remain suppressed until a formal Withdrawal of Suppression request has been completed by the applicant and processed by Landgate. Applicants of a Withdrawal of Suppression will need to provide evidence to satisfy a 100 point identification check. The acquisition of a new property or interest by a successful applicant will require a further Name Suppression application. There is no registration fee payable for the removal of a Name Suppression.

3.17

Other Applications Dealt with Elsewhere

The following procedures are all applications but for convenience they are dealt with in the paragraphs indicated: Removal of Easements (where mortgagee is absent)

see paragraphs 7.2.2 to 7.2.6

Removal of Mortgages (where mortgagee is absent)

see paragraph 2.6.15

Removal of Mortgages (where payment is complete)


Removal of Charges

see paragraph 2.7.3

Re-entry by Lessor


Removal of Leases


Removal of Writs or Warrants

see paragraph 4.5.1

Amendment of Caveator’s Address for Service of Notice s.240A of the TLA


Removal or Modification of Covenants

see paragraph 7.5.2

Removal of Health Act Charge


Strata Titles Act 1985

see Chapter 6

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4.

Caveats, Writs and Warrants, Property (Seizure and Sale) Orders

In this chapter we look at the different types of caveats and property (seizure and sale) orders and the evidential requirements to be lodged in support. Landgate has created a number of specific forms to be used accordingly.

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4.1

Caveats

4.1.1

General

The word caveat is not expressly defined in the TLA, but means generally a caution or warning. Caveats lodged under the TLA have a twofold effect until removed. These are: a warning to a person searching the Register of an outstanding equity claimed by the caveator against any land lease mortgage or charge; and a caveat acts as a statutory injunction preventing the Registrar from registering any instrument either absolutely, or until after notice of the intended registration or dealing be given to the caveator, or unless such instrument be expressed to be subject to the claim of the caveator (the latter being commonly called a subject to claim caveat).

4.1.2

Purpose

A caveat confers no proprietary interest itself. Its purpose and function is to preserve and protect the rights of a caveator. It prohibits the caveator’s interest from being defeated by the registration of a dealing without the caveator having first had the opportunity to invoke the assistance of a Court to give effect to the interest. The interest may arise through the application of legal rules and principles or it may arise because a specific equitable remedy exists to protect it.

4.1.3

Entry of a Caveat

Provided a caveat is substantially in a form approved by the Registrar (see paragraph 4.1.12), sufficiently identifies the land sought to be affected and claims an estate or interest in land, entry on the Register is almost automatic. A caveat is effective from the time of its lodgement. A memorandum of a caveat is not entered on the duplicate certificate of title.

4.1.4

Improper Entry of Caveat

Under s.138 of the TLA the registered proprietor may summon the caveator to appear before the Supreme Court or a Judge in chambers to show cause why the caveat should not be withdrawn. Section 140 of the TLA provides that a caveator lodging a caveat without reasonable cause shall be liable to pay such compensation for damage caused as a Judge on a summons in chambers may order.

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4.1.5

Interest in Land Capable of Supporting a Caveat

The grounds upon which a caveat may be lodged are many and complex. Many cases have been argued before the Courts, and much of the law on caveats is based on decisions of the Court rather than laid out in a statute. In such circumstances the law is subject to change as new decisions extend, modify or further explain the grounds on which a caveat may (or may not!) be maintained on the register. Despite the fact that the interest claimed is not one (yet) decided by the Courts, a caveat that is procedurally correct and expressly sets out the nature of the estate or interest claimed will be accepted by the Registrar. However, caveators will be required to complete a statutory declaration that clearly and concisely states the estate or interest claimed and the facts on which that claim is based. It will then be for the Courts to determine whether or not the particular estate or interest is a caveatable interest in land. The Registrar will not reject a caveat that complies with the statutory requirement merely because the Registrar considers that the claimed estate or interest is not caveatable or is inadequately described. If there are defects in these areas, then the registered proprietor has a remedy under s.140 of the TLA for damages or compensation from the caveator. As a general rule, a caveator’s claim should arise through some dealing with the registered proprietor. Where the caveator is not dealing directly with the registered proprietor the caveat must clearly recite the step by step events which tie the caveator to the registered proprietor Where the claim arises out of rights under an easement or restrictive covenant, such claim must be made by or through the proprietor of land appurtenant to the land against which the caveat is lodged. The document by virtue of which a caveat is lodged must normally be signed by the registered proprietor of the land against which the caveat is lodged or by his or their duly appointed representative. However, where such document is a contract of sale, it may be signed by the solicitor or a licensed estate agent on behalf of the vendor. Contracts by a married couple signed by one party both personally and on behalf of his or her partner, are also acceptable.

4.1.6

Registered Proprietor’s Caveat

The registered proprietor of land may lodge a caveat against land registered in his or her name. Such caveats are usually lodged in the following circumstances: •

the caveator/registered proprietor has lost possession of the duplicate certificate of title either by fraud, theft or misplacement or

•

the caveator/registered proprietor has revoked a power of attorney but has been unable to contact the attorney to give advice of the revocation or

•

the caveator has lost possession of a signed instrument e.g. transfer of land, and has not been paid.

The evidence to support such a caveat would be a statutory declaration by the caveator setting out the facts and repeating the claim of the caveator. A caveat, correct as to form by a registered proprietor against his or her land would be accepted by the Registrar.

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4.1.7

Caveat to Prevent Improper Dealings

In order to reduce the risk to WA Landowners from being the subject of improper dealings on their property a Caveat (Improper Dealings) can now be lodged with Landgate. The Caveat once lodged will stop the registration of any instruments or documents that would ordinarily need to be signed by the owner. The Form C4 Caveat (Improper Dealings) must be made in the name of all registered proprietors. If one registered proprietor does not want to be part of the Caveat then the document cannot be lodged. The Caveat can be signed and lodged with Landgate by the registered proprietors themselves or a Solicitor acting on their behalf of all the registered proprietors. A Licensed Settlement Agent does not currently have authority under the Settlements Agents Regulations 1982 to sign and lodge a Caveat to prevent improper dealings on behalf of land owners. Please note that registered proprietors who have mortgaged properties should review their Mortgage terms and consult with their lending institution before lodging a Caveat (Improper Dealings) as the terms and conditions of the Mortgage may prevent the lodgement of any Caveat without the consent of the Mortgagee. The registering and removing of this document type from the Certificate of Title would be processed by a team member of Complex Dealings.

4.1.8

Traditional Interests that Support a Caveat

To assist caveators the following forms of interests have been accepted by the Courts as caveatable interests and may be used as a guide: •

a purchaser under an agreement for the sale of land

•

a person having an option to purchase the land

•

the grantee of an easement

•

a mortgagee

•

an equitable mortgagee

•

as chargee

•

a lessee of a lease of land

•

the beneficiary of a trust, against land held by a trustee for the trust

•

the holder of an unregistered instrument

•

a person who is to receive portion of the proceeds of land upon a sale

•

a person entitled to an annuity charged on the land

•

the grantee of a right to take from the land some natural product of it, such as peat, stone, or timber, or to shoot game thereon, and to take it away for the grantee’s own benefit

•

a person having the right to a restrictive covenant running with the land and

•

a claimant who bases his or her claim upon the doctrine of resulting trusts.

In addition, s.6 of the Chattels Securities Act 1987 creates a securable interest over goods attached to land owned by a third party. The interest will support a caveat.

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Section 19 of the Imperial Judgments Act 1838 (I and II Victoria) provides for the recording in the Supreme Court of Judgments created in Superior and other Courts, which then, by virtue of s.13 of the same Act, operate as a charge against land. The charge has, in the past, been protected by a caveat claiming an estate or interest as chargee by virtue of a judgment of the (Name of Court) made on the (date of order) in action/plaint (number of plaint) and entered up in the Supreme Court of Western Australia pursuant to s.19 of the Imperial Judgments Act 1838 on the (date of entry in the Supreme Court). However, in the case of Bank of Western Australia vs Connell (Supreme Court Library No 960433) His Honour Owen J decided that the scheme for execution, introduced by s.133 of the TLA, could not stand together with Sections 13 and 19 of the Imperial Judgements Act 1838. According to this decision, the Judgments Act does not apply to land under the TLA. Therefore, judgment creditors, their solicitors and agents should consider the effect of this decision and the implications of lodging a caveat without reasonable cause. Acceptance of caveats based on claims under the Imperial Judgments Act does not signify that Landgate is expressing a view as to whether or not they will be upheld in court proceedings. It should be noted that the Imperial Judgments Act 1838 was repealed by the Courts Legislation and Repeal Act 2004 which came into effect on 1 May 2005. It will therefore no longer be possible to enter a judgment in the Supreme Court pursuant to s.19 of the Imperial Judgments Act 1838 in order to protect a charge by caveat claiming an estate or interest as chargee by virtue of that provision. Other interests have been listed in legal texts such as The Principles of the Australian Land Titles (Torrens) System by Donald Kerr. Conveyancers are also referred to a very informative paper on caveatable interests, by Mrs S Boyle LLB, called Caveatable Interests, The Common Lore Distinguished which was delivered to the Equity and The Transfer of Land Act seminar held by the Law Society of Western Australia on 22nd June, 1993 and published in the Murdoch Law Review 1993. Another useful publication is Caveats Against Dealings in Australia and New Zealand by Shannon Lindsay.

4.1.9

Nature of the Caveator’s Claim

A caveator can restrict dealings by a registered proprietor with three types of claim; which are outlined below.

4.1.9.1

Absolutely

An absolute caveat bars the registration of any instrument affecting the estate and interest, except a property (seizure and sale) order and as provided in s.142. Parties to a transaction wishing to register an instrument must either negotiate its withdrawal or have it removed by initiating action by the Registrar under Sections 138 or 138B of the TLA, or action by the Commissioner under s.141A, or action by the Courts under Sections 138 or 138B.

4.1.9.2

Until after notice of any intended registration or dealing to be given to the caveator

Caveats in this form are useful for those caveators whose claim will not be defeated by the registration of any change of interest in the land, and who merely wish to be informed of any change in interest occurring on the title. If the change in interest is detrimental to the caveator the caveator may choose to negotiate with the parties or obtain an injunction to prevent the registration of the instrument. These caveats may be shown in the Limitations, Interests, Encumbrances and Notifications panel, where there is one, of any instrument dealing with the land in the title affected by the caveat. Before an instrument is lodged against land affected by such a caveat, notice must be given to the caveator.

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The notice must: 1.

Be addressed to the caveator, and if more than one caveator, be separately addressed.

2.

Refer to the caveator, and the caveat number.

3.

Give the particulars of the instrument(s) to be lodged subject to the caveat by reference to: o

the nature of the instrument

o

the parties to the instrument

o

the date of the instrument.

and 4.

State the intention to register the instrument at the expiration of the 14 days notice period.

Conveyancers should refer to s.240(4) of the TLA when calculating the expiry date of the notice period. The documents or instruments may then be lodged with the Registrar at the end of the notice period. Proof of compliance with the above in the form of a statutory declaration setting out the action taken, and annexing a copy of the notice must accompany the dealing. The dealing must be lodged as soon as possible after the expiry of the notice period or the process of serving notice must be repeated. If the parties to the transaction do not wish to register their instrument subject to the caveators claim they must either negotiate its withdrawal or have it removed by initiating action by the Registrar under s.138 or 138B of the TLA, action by the Commissioner under s.141A, or action in the Courts under s.138 or 138B.

4.1.9.3

Unless such instrument be expressed to be subject to the caveator’s claim.

Instruments showing the caveat as an interest may be registered. If the parties to the transaction do not wish to register their instrument subject to the caveators claim they must either negotiate its withdrawal or have it removed by initiating action by the Registrar under Sections 138 or 138B of the TLA of the, action by the Commissioner under s.141A, or action in the Courts under s.138 or 138B. It should be noted that while the Registrar of Titles may not question the type of claim made by the caveator, the Courts may do so. In general terms a claim based on an interest in fee simple, such as a purchaser’s caveat, may be absolute, and caveats based on a lesser interest, such as an equitable mortgage, should be made subject to claim .

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4.1.10

Registrar’s Role

It is not the Registrar’s duty to determine the validity of a claim. The Registrar does not determine whether or not the particular claim made is a caveatable interest or that the evidence offered in support is sufficient to support that claim, or that the nature of the caveator’s claim is appropriate. The correctness and validity of a caveator’s claim is for the caveator and, in appropriate cases, a Court to decide. The Registrar’s role is merely to: •

be satisfied that a caveat meets the requirements of form

•

ensure that other statutory requirements (eg: stamp duty) are met

•

in appropriate cases, draw attention to perceived defects in the substance of the claim made or of the sufficiency of evidence and of the risks being run by the caveator

•

record the caveat and

•

give notice of the caveat to the registered proprietor or the judgment creditor named in any property (Seizure and Sale) order registered in respect of the judgment debtor’s saleable interest in such land.

4.1.11

Types of Caveats

Caveats may be lodged under the provisions of the following sections of the TLA: •

s.137- the most common type. A caveat lodged by any beneficiary or other person claiming an estate or interest in land under the TLA or in any lease, mortgage or charge

•

s.30 - a caveat forbidding the bringing of land under the TLA

•

s.176 - a caveat against the granting of an application to rectify the boundaries or area of a certificate of title

•

s.223A - a caveat against the granting of an application to be registered as the proprietor by adverse possession of land already under the TLA and

•

s.188(7) - a caveat lodged by the Registrar.

4.1.12

Forms to Use

Caveats under s.137 must be prepared on a form approved by the Registrar. There is a printed form of caveat, designated Form C1 available for this purpose. This form can be used for caveats over freehold or Crown land. The Form C4 is available for Caveats (Improper Dealings). Caveats under s.30 must be prepared on a form approved by the Registrar. There is a printed form of Caveat, designated Form C3 Caveat [under s.30 and 223A of the TLA], available for this purpose. Caveats under s.176 and 223A must be prepared on a form approved by the Registrar. There is a printed form of Caveat, designated Form C3, available for this purpose. 

Note: Landgate introduced the ability to lodge Caveats electronically in May 2015. See paragraph 1.13.15.

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4.2

Caveats Lodged under Section 137 of the TLA and Section 20 of the LAA

4.2.1

Who May Lodge a Caveat Over Freehold Land

Any person or corporate body capable of taking a registered interest in land, a mortgage, a lease or a charge may lodge a caveat. Unincorporated bodies must caveat by their trustees personally and business associates or firms by all the individual members of the business or firm in their personal capacity. Identification of the trustees as trustees of ... or members of a firm trading as ... is permitted. Certain persons with statutory authority may lodge caveats. Minors can lodge a caveat but a Court Order will be required if the caveat is to be withdrawn before the minor attains full age.

4.2.2

Who May Lodge a Caveat Over Crown Land

All persons, corporate bodies, trustees and minors in the same capacities as set out in s.137 of the TLA, may caveat as to an interest in Crown land (see Chapter 4.2.1 above). A caveat over Crown land can only be lodged under s.20 of the LAA in respect to: •

A registered interest or an interest approved by the Minister for Lands under s.18 of the LAA but not registered. or

•

An unregistered interest created pursuant to a management order or vesting where the management order or vesting is created or vested for purposes of another Act.

The registered proprietor panel of the caveat form should show the party to whom the caveat is lodged against. State of Western Australia is shown where they are the only one shown on the Crown title or there is a management order or lease on the Crown title but the caveat evidence is based on an agreement (eg. easement) between the State of Western Australia and the caveator. The management body is shown in the registered proprietor panel for evidence (eg. leases) based on a management order or vesting. The lessee is shown in the registered proprietor panel for evidence (eg. mortgages) based on a lease.

4.2.3

How the Claim is Stated

The claim of the caveator must be set out clearly in the caveat. It is very important that any options to renew the lease, or an option in the lease to purchase the fee simple be protected by including details of the options in the fifth and sixth panels of the caveat.

4.2.3.1

Where the caveator is claiming an estate in fee simple

Where the caveator is claiming an estate in fee simple he or she must also show how the claim arises. A simple example of a claim arising out of a contract of sale is: “claims an equitable estate or interest as purchaser of the fee simple ……. by virtue of a contract of sale dated 5 January, 1994 made between the registered proprietor as vendor and the caveator as purchaser.”

4.2.3.2

Where the caveator is claiming as equitable mortgagee

Where the caveator is claiming as equitable mortgagee an example of the claim would be: “claims an interest as equitable mortgagee ……. by virtue of a mortgage dated 5th January, 1994 made between the registered proprietor as mortgagor and the caveator as mortgagee.” It should be noted that the words fee simple are omitted, as a mortgagee’s claim is in equity and not the fee simple.

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4.2.3.3

Where the caveator is claiming as lessee

Where the caveator is claiming as lessee an example of the claim would be: “claims an estate or interest in leasehold as lessee …... by virtue of a lease dated 5 January, 1994 made between the registered proprietor as lessor and the caveator as lessee.”

4.2.4

Supporting Documentary Evidence

Where a claim is alleged to arise out of a document, (unless the document, or an appropriate letter from or endorsed photocopy of the document from the Office of State Revenue (Stamp Duties Division), or a statutory declaration stating that the documents have been lodged with the Commissioner of State Taxation for stamping, is produced) that document must be lodged with the caveat. If a caveat is lodged which requires the production of a document or stamped agreement, and the document or agreement is not lodged, a requisition will be issued under s.192 of the TLA. Failure to comply with the requisition within seven days from the date of the requisition can lead to rejection of the caveat. Some conveyancers have lodged caveats and then on requisition produced evidence stamped after the date of lodgement. That practice is considered to be contrary to s.278(2) of the Duties Act 2008. In this circumstance the caveator (or the lodging party) will need to authorise the Registrar of Titles to re-lodge the caveat at a date and time after the date of stamping. 

Note: Electronically lodged caveats are subject to Certification by the Subscriber. See paragraph 1.10.15.5 and 1.10.15.7.

4.2.5

Supporting Statutory Declarations

Where the estate or interest has not been created by a document, a statutory declaration will be required setting out the nature of the claim and how it arose in a manner that complies with the requirements of s.137 of the TLA. That is, the declaration must state the nature of the estate or interest claimed and the title thereto. If no such declaration is lodged with the caveat, a notice will be sent to the caveator requiring production of the declaration. Failure to comply within seven days from the date of requisition makes the caveat absolutely null and void (s.137 of the TLA). Declarants are required to state in their statutory declaration: The nature of the estate or interest claimed is ...” “The title to the estate or interest claimed arises by virtue of ....” If the declaration provided fails to meet the above requirements, the caveat will, on the expiration of the 7 days set out in the notice, be endorsed null and void without further reference to the lodging party.

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4.2.6

Land

The land must be accurately described in the Description of Land being Caveated panel of the caveat form. The land must still be defined where the interest claimed is against a mortgage, lease or charge but appropriate qualifying words must be added. For example, in the case of a mortgage, the following words must precede the land description: “As to mortgage F123456” Where portion of the land in a certificate of title is caveated against and it is desired to make an absolute claim, such portion must be defined by a sketch bearing sufficient measurements to enable the land affected to be accurately plotted (see paragraph 1.9.3). The sketch should be drawn on or fixed to an additional sheet stapled to the caveat. Where portion of the land in a title is involved that is not the whole of a lot or part lot in that title, then care is needed in its description. There is a need to ensure that no more land is caveated than is necessary. It is therefore desirable that the land description be supported by a sketch that identifies the land being caveated. That sketch should be certified correct by the caveator and, if time permits, referred to the Survey Advice Officer in the Land Registration Centre in the Landgate building in Midland (see paragraph 1.9.3 and LTRPM Form Examples- Example 12). It is not necessary for the sketch to be the same standard as required for registered documents. If the land in a title is Lot 1 on Plan 1 and the caveat refers to portion of Lot 1 on Plan 1 with no further description, then that caveat has in the past been accepted with reluctance. However, caveators (and their conveyancers) need to be aware that certain problems can flow from this practice, which may result in a claim against them for compensation under s.140 of the TLA. Having no way of determining what part of the land the caveat applies to, the Registrar has no alternative but to deal with it as if it binds the whole land. In a subdivision of land (which in this case does not include a strata/survey-strata scheme - see paragraph 6.4.1): •

the caveat will carry forward onto part of every lot

•

if part of the land in the lot is to vest in the Crown under s.152 of the P&D Act (formerly s.20A of the TP&D Act) or otherwise, then it will be necessary for the caveat to be withdrawn as to that portion and

•

if it is unclear as to which portion of land a caveat affects, it may create difficulties for or prevent the registered proprietor dealing with other parts of the land.

As the Registrar does not know which part of the land is affected, a withdrawal of the caveat from the portion of the land being dealt on may be insisted upon. Since comments by Malcolm C J and Rowland J in Kuper & Keywest Construction Pty Ltd (1990) 3 WAR 419, the Registrar has requested the caveator to accurately and clearly define the land being caveated. This has been interpreted by many conveyancers as a requirement that surveyed measurements be provided. That is not the case! The Registrar will accept lines and measurements on a photocopy of an architect’s plan or of a sketch on the certificate of title. What is being asked for is an accurate description of the land to be affected by the caveat. That need not necessarily be the same as the land the subject of the claimed estate or interest. All that is required is that sufficient dimensions or descriptions be provided to enable the Registrar and searchers of a caveat to ascertain the land affected by the caveat. If that is done, then the Registrar is not concerned as to whether or not the stated dimensions accurately define the boundaries and location of the claimed estate or interest.

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The degree of accuracy provided is a matter of judgment for the conveyancer and the caveator. That judgment no doubt will be affected by available time, cost, and purpose of lodging the caveat and concerns as to caveating the wrong land or too much or too little land. It is suggested that in many cases, the purpose of lodging a caveat will be achieved if the land to be caveated is less than the area the subject of the claimed estate or interest. In many cases, a client may prefer to personally make the measurements, allow for a margin of error and nominate a lesser area for protection by caveat so as to facilitate early lodgement of a caveat and to avoid survey costs. A statement could be made in the caveat that the land caveated may be less than the area, the subject of the claimed estate or interest. For example, in a purchaser’s caveat in the section setting out the grounds of the claim it might be stated: “… by virtue of a contract of sale dated 1st January, 1993 made between the registered proprietor as vendor and the caveator as purchaser in respect of land that comprises or includes the land being caveated “ That is, the land the subject of the claimed estate or interest comprises or includes the caveated land.

4.2.7

Who May Sign Caveats

Caveats may be signed by: •

the caveator or caveators personally

•

the caveator’s solicitor, signing as his or her solicitor and agent

•

a licensed estate agent, signing as agent for the caveator

•

a principal of a settlement service, signing as agent for the caveator

•

a responsible officer of a caveator company, ie: director, secretary or manager

•

the attorney or senior securities officer of a bank being a caveator or

•

the attorney for the caveator.

4.2.8

Notice to Registered Proprietors

The Registrar is required by s.138 of the TLA to give notice of the lodgement of a caveat to the registered proprietor. If a caveat is lodged against the proprietor of the fee simple or other interest that is encumbered by a PSSO, notice that a caveat has been lodged must also be served on the judgment creditor. The notice consists of a memorandum containing the essential details of the caveat sent by ordinary mail to the address of the registered proprietor shown in the Register. Notice will also be sent by ordinary mail to any other later address of which the Registrar has knowledge. Section 31 of the TLA requires the Registrar to notify a person applying to bring land under the TLA that a caveat has been lodged prohibiting the Registrar from proceeding with the application. Applicants are also notified of caveats lodged against applications under s.s 176 and 223A of the TLA.

4.2.9

Address for Service of Notice

Each caveator must state either an address or a fax number (one or the other, not both), within Australia, where notices relating to the caveat may be served. Refer to paragraph 1.7.5 for address requirements for Western Australia’s land registry forms.

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4.2.10

Change of Address for Service of Notice

The caveator may make application under s.240A of the TLA to change the address or fax number given on a caveat for service of notice. The application must be made on an application Form A5 and contain: •

a description of the land caveated

•

the name and address of the caveator

•

the document number of the caveat

•

a request to amend the address or the number for a facsimile machine for service of notices from the old address or facsimile number to the new address or facsimile number and

•

the date and signature of the caveator.

The address for service of notices to the caveator is most important. Caveators and persons acting on their behalf should ensure that such address is kept current. The caveators responsibility for the caveat does not end when the caveat is lodged. Caveators must deal with any statutory notice sent to them, as their rights will always be affected. If they do not understand the nature or effect of the notice, they should immediately seek legal advice.

4.2.11

Caveat against Applications to Bring Land under the Operation of the TLA (Section 30)

Following the advertisement of the intention of the Registrar to bring land under the operation of the TLA, any person claiming an estate or interest in the land may lodge a caveat forbidding the bringing of such land under the TLA. Such caveat must be on a form approved by the Registrar. There is a printed form of Caveat, designated Form C3 Caveat [under s.30 and 223A of the TLA], available for this purpose. The estate or interest claimed must be particularised and, if required by the Registrar, must be supported by the statutory declaration of the caveator. This declaration must be supplied within seven days of the Registrar’s requisition, failing which the caveat will become null and void. The Registrar may also require a perfect abstract of title setting out the estate or interest claimed. An address or fax number, within Australia, for service of notices to the caveator must be supplied. The caveat has the effect of suspending action on the application until: •

the caveat is withdrawn

•

the caveat has lapsed or

•

an order of the Court is obtained and served on the Registrar.

The caveat will lapse after thirty days from the date of lodgement if the caveator has not taken proceedings in Court to substantiate his or her claim and served on the Registrar an injunction of the Court restraining the Registrar from bringing the land under the TLA.

4.2.12

Caveat against an Application to Rectify the Boundaries or Area of the Relevant Graphic for a Title (Section 176 of the TLA)

The provisions of s.176 of the TLA, with the necessary changes in detail, are similar to those set out in paragraph 4.2.11 above.

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4.2.13

Caveat against an Application by Possession of Land Already under The TLA (Section 223A)

The provisions of s.223A, with the necessary changes in detail, are similar to those set out in paragraph 4.2.11 above.

4.3

Removal of Caveats

4.3.1

By Withdrawal

A caveat may be withdrawn by lodgement of a Form W1 Withdrawal of Caveat which should show: •

the land affected

•

the caveat being withdrawn, by its number

•

whether the withdrawal is total or partial and

•

the signature of the caveator (see note below) witnessed by an adult person who must show his or her address and occupation.

For an example of how to fill out the document, (see LTRPM Form Examples - Example 25). Where a caveat has been lodged by a purchaser pursuant to a sale of land on terms and a transfer of the same land to the caveator is being lodged, it is permissible for the solicitor lodging the transfer to sign the withdrawal on behalf of the caveator, provided the transfer and withdrawal of caveat are lodged together. In these cases the withdrawal should be drawn in the name of the caveator and the attestation should indicate that the solicitor signs as solicitor for the caveator eg: A (the caveator) by his solicitor B or A (the caveator) by his solicitors B Legal & Co per B (a member of the firm). The signature of the solicitor must be witnessed in the usual manner. 

Note: Landgate introduced the ability to lodge a Withdrawal of Caveat electronically in May 2015. See Paragraph 1.13.15.

4.3.2

By Lapse under Section 138 of the TLA (14 Days Notice)

On the presentation for registration of an instrument and on written request signed by: •

a party to the instrument

•

a solicitor for the party to the instrument or, if a firm of solicitors, a member of that firm

•

a licensed settlement agent, on the letterhead of his or her firm

•

a licensed estate agent on the letterhead of his or her firm or

•

the senior security officer of a bank on a bank letterhead;

and on payment of the prescribed fee, fourteen days notice will be sent by the Registrar to the caveator at the address or the number for a facsimile machine for service of notice given in the caveat. The notice will require the caveator to take action in Court to substantiate his or her claim, failing which the caveat will lapse and the instrument will be registered. It should be noted that a caveat lapses only to the extent necessary to permit the registration of the instrument under which the notice was sent. In the case of a paper title, a transfer of one lot out of several in the title results in the lapse of a caveat as to that one lot only. Notice may not be sent on caveats lodged by the Registrar or caveats lodged by a beneficiary under a will or trust.

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4.3.3

Caveat (Improper Dealings)

In order to remove a Caveat (Improper Dealings) all the registered proprietor(s) must present themselves in person at the same time at Landgate’s Midland office and satisfy as a minimum the requirements of a 100 point check using original documents (copies are not allowed). Only the registered proprietor(s) of the property can remove the Caveat in person. A Withdrawal of Caveat (Improper Dealings) can only be lodged at the time of witnessing. A Power of Attorney cannot be used to withdraw the Caveat. Due to the operation of law the Caveat (Improper Dealings) will not prevent the following, including but not limited to: •

Mortgagee exercising a power of sale would be able to use s.138B of the TLA as the application is not being signed by the registered proprietor(s).

•

Sale of the property by a Local Government for non-payment of rates.

•

Sale by the Sheriff under a Property (Seizure and Sale) Order.

•

In the case of deceased owner(s) Survivorship and Transmission. and

•

Sale under the Criminal Confiscation Act 2000

4.3.4

By Taking or Acquisition

Any caveat lodged over land taken under the LAA or compulsorily acquired by the Commonwealth under the LAA, is automatically removed. The caveator’s claim is converted into a right to claim for compensation.

4.3.5

By Order of the Court

On the motion of the registered proprietor, a Judge or the Court may make an order removing a caveat from the register. On receipt of an office copy of the order with an application (Form A5) and the payment of the required fee, the caveat is removed from the title.

4.3.6

By Sale For Rates

With the exception of caveats by the Commissioner for State Taxation, which must be withdrawn, all caveats are automatically removed on the exercise by a Local Government of its power to sell land for non-payment of rates under the Local Government Act, 1995.

4.3.7

By the Application of the Registered Proprietor under Section 138B

See paragraph 3.11.

4.3.8

By the Application of the Registered Proprietor or Any Person Claiming an Interest in the Land under Section 141A

See paragraph 3.12.

4.3.9

By a Sale under a Property (Seizure and Sale) Order

Where a transfer is registered giving effect to a sale by the Sheriff under a Property (Seizure and Sale) Order, any caveat lodged subsequent to the Property (Seizure and Sale) Order and without the consent of the Sheriff is automatically removed. A caveat lodged specifically to prevent the sale will delay registration until withdrawn, removed or lapsed.

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4.4

Writs of Fieri Facias and Warrants of Execution

4.4.1

General

Writs and warrants, although issuing from different Courts, had the same effect when lodged against land registered under the TLA or any lease, mortgage or charge and for convenience are dealt with together. Writs were issued out of the Supreme Court and District Court and Warrants were issued out of the Local Court. Writs and warrants had a life of twelve months and could be extended, prior to their expiry, by a Judge or Magistrate. The original writ or warrant was lodged with the Sheriff or Bailiff, and the Registrar was served with a certified copy (in practice they were simply lodged). Most writs and warrants were lodged by either natural persons or incorporated bodies, but under the Supreme Court Rules legal firms could successfully apply for the issue of a writ or warrant in the name of the legal firm or partnership. Although this did not cause any problems at lodgement, care needed to be taken when withdrawing it from the title.

4.4.2

How Lodged

Where a judgment creditor desired to execute a writ or warrant against any land, lease, mortgage or charge registered in the name of the judgment debtor, he or she had to comply with the provisions of s.133 of the TLA. Service on the Registrar was effected by lodging a certified copy of a writ issued out of the Supreme Court or the District Court or a certified copy of a Warrant issued out of the Local Court. The authority to treat warrants in the same manner as Writs of Fieri Facias was contained in s.125 of the Local Courts Act 1904. Each copy of a writ or warrant lodged must have had endorsed on it a statement in the following form: To the Registrar of Titles, The land sought to be affected by the within Writ of Fieri Facias (or Warrant of Execution) is all that piece of land being (then follows correct land description) standing in the Register in the name of A of etc. Signed A B Legal & Co per Solicitor for the Judgment Creditor Where there was more than one registered proprietor and only one is the judgment debtor, the above statement must have been limited to the interest of the named judgment debtor. The identity of the judgment debtor with the registered proprietor must have been properly established. Any difference shown in the writ or warrant of name, address or occupation with those shown in the Register must have been explained by statutory declaration. The declarant must have stated the means of knowledge. The declaration must have positively identified the registered proprietor of the land as the defendant in the action. 

Note: With the introduction of the Civil Judgments Enforcement Act 2004, which came into operation on 1 May 2005, writs and warrants have been replaced with an enforcement process known as a Property (Seizure and Sale) Order (See paragraph 4.6.1).

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4.4.3

Effect of Lodgement

A writ or warrant remained in effect on the Register for a period of four months from the date of lodgement unless it was withdrawn. Within the twelve months life of the writ or warrant or any extension thereof (see paragraph 4.4.1 above) a further copy of the writ or warrant could be lodged during or after the expiry of any previous four month period. While current, a writ or warrant had the same effect as an absolute caveat. If a transfer by way of sale under the writ or warrant was presented for registration, it must have been presented during the period in which the writ or warrant was current. If the latest four month period had expired, a further copy of the writ or warrant must have been lodged before registration of the transfer could take place (s.90 of the TLA- deleted by No. 59 of 2004’s 140). When the time (4 months) was calculated- the day of lodgement was not counted and no account was taken of the time of lodgement in calculating the expiry as expiry occurs at the end of the last day. 

Note: With the introduction of the Civil Judgments Enforcement Act 2004, which came into operation on 1 May 2005, writs and warrants have been replaced with an enforcement process known as a Property (Seizure and Sale) Order (See paragraph 4.6.1). Any writ or warrant endorsed on a title that was still current as at 1 May 2005 was deemed to be a Property (Seizure and Sale) Order and automatically bound the title for 6 months from the date of its lodgement.

4.4.4

Interests in Land Protected Against Execution

Certain interests in land were protected against execution. These were: •

land held by a person or trustee (unless the person was named as execution debtor in his or her capacity as trustee)

•

a lease of a homestead farm (s.66(3) of the Land Act 1933)

•

land subject to a State Housing Commission mortgage granted under the State Housing Act of 1946-75 which could not be sold except with the consent of the Commission (no consent was required for similar mortgages issued under the Housing Act) and

•

land subject to a mortgage under the Defence Service Homes Act 1918 which could not be taken in execution without the consent in writing of the Defence Service Homes Corporation.

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4.5

Removal of Writs and Warrants

4.5.1

By Application

A judgement creditor can have a writ or warrant removed as an encumbrance by lodging a completed Form A5. Details included on the form could be: •

specifying the land

•

identifying the writ or warrant by its number

•

requesting that the writ or warrant be removed as an encumbrance and

•

dated and signed by the judgment creditor.

The application may be signed by the solicitor acting for the judgement creditor where the writ or warrant is being withdrawn from the whole of the land specified therein and the form states that the writ or warrant has been fully paid and satisfied. Where the application is to withdraw the writ or warrant from part only of the land the application must be signed by the judgment creditor. Incorporated bodies must sign the application by use of their common seal provisions, or by their authorised and noted attorney. Where the judgment creditor is a firm of legal practitioners, a withdrawal signed by a majority of the partners will be accepted. A declaration by one of the partners identifying the signatures as a majority of the partners will be required to support the application.

4.5.2

By the Commissioner of Titles

Under s.185 of the TLA, the Commissioner could remove a writ or warrant from the Register upon proof that the judgment had been satisfied. The application on a Form A5 was usually (not necessarily always) made by the registered proprietor and supported by a statutory declaration annexing or introducing proof of satisfaction (payment) of the debt. 

Note: This section has now been repealed.

4.5.3

By Expiry of the Four Month Period

If the writ or warrant was not renewed within the four month period specified in s.133, then the writ or warrant was no longer effective. It was not removed from the Register but in practice it is ignored as an encumbrance.

4.5.4

By Taking or Acquisition

Where land subject to a writ or warrant was taken under the LAA or compulsorily acquired by the Commonwealth under the LAA, the writ or warrant ceased to have any effect. By Exercise of a Mortgagee’s Power of Sale Where a mortgagee exercised his or her power of sale under a mortgage and transferred the land to a purchaser, any writ or warrant lodged subsequent to the mortgage was removed as an encumbrance.

4.5.5

By Sale For Rates

Where a local Government exercises its power to sell land for non-payment of rates and lodged a transfer to give effect to such sale, any writ or warrant against the land was removed as an encumbrance.

4.5.6

By Transfer by the Sheriff, Bailiff or Magistrate

A writ or warrant was removed as an encumbrance on the registration of a transfer, by way of sale by the sheriff, bailiff or magistrate.

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4.6

Property (Seizure and Sale) Orders (PSSO)

4.6.1

General

The Civil Judgments Enforcement Act 2004 (the Act) was proclaimed on 22 December 2004 and came into operation on 1 May 2005. The object of this Act is to provide for the enforcement of Judgments given in the civil jurisdiction of the Supreme, District, Federal and Magistrates Courts (the Court) and for related matters. This Act introduces an enforcement process known as a Property (Seizure and Sale) Order (PSSO). A PSSO replaces a Warrant of Execution (Warrant) and a Writ of Fieri Facias (Fi-Fa) (see paragraph 4.4.1). Parts 3 and 24 of the Acts Amendment (Justice) Act 2007 became operative on 30 September 2008 and amended sections 133, 138 and 139 of the TLA in relation to Property (Seizure and Sale) Order (PSSO) under the Civil Judgments Enforcement Act 2004. Regulations 37 and 41 of the Civil Judgments Enforcement Regulations 2005 have also been amended. A PSSO can be issued out of any of the above-mentioned courts and has a life of 12 Months. An Application can be made to the court to extend the life of a PSSO beyond the initial 12 months period. When the Court issues a PSSO it is given to the Sheriff. The Sheriff records receipt of the PSSO and sends a certified copy of it to the Judgment creditor.

4.6.2

How Lodged

To register a PSSO, a copy certified by the Sheriff or a Deputy Sheriff, must be attached to a Form A10 Application to Register Property (Seizure and Sale) Order. The Form A10 can also be downloaded from Landgate’s corporate website at: Titles and surveys/Forms and fees/Land titling fees. A PSSO can be registered against the registered interests of: •

the proprietor of the fee simple or

•

a mortgagee \ chargee \ lessee etc.

4.6.2.1

Against the Fee Simple

If the PSSO is to be registered against the proprietor of the fee simple, Fee Simple is to be inserted under the words Description (Note 1) in the Saleable Interest panel of the application.

4.6.2.2

Against Other Interests

A PSSO can be registered against a mortgage, charge or lease etc. If the PSSO is to be lodged against, for example a mortgagee’s interest, Mortgage is to be inserted under the words Description (Note 1) and the Mortgage number inserted under the words Registration Number (Note 2).

4.6.2.3

Execution

An Form A10 Application to Register a Property (Seizure and Sale) Order incorporates a statutory declaration to declare that the judgment debtor as shown in the PSSO is one and the same person as the proprietor of the saleable interest referred to on the certificate of title. A person qualified to take statutory declarations must witness the document. 

Note: The statutory declaration is part of the form and is to be made even if there are no discrepancies in the names or address.

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4.6.2.4

Suspension Order

Before the application to register the PSSO is lodged, the court may have granted a Suspension Order. Therefore an application to register a PSSO has the following question that must be answered: Has a Suspension Order been made? YES / NO If a suspension order has been made an original sealed copy of it must also accompany the application. No reference to a Suspension Order is necessary when the PSSO is endorsed on the title. However, on the rare occasion that a suspension order is lodged with an application to register a PSSO, it will be referred to the Lead Consultant Complex Dealings to determine (on a case by case basis) whether a special endorsement is required. 

Note: If a suspension order is obtained after the PSSO has been registered, there is no provision or requirement that it be served on the Registrar of Titles.

The Sheriff will not sell the land while a PSSO is subject to a suspension order.

4.6.3

Effect of Registration

An Application to register a Property (Seizure and Sale) Order Form A10 binds the land for 6 months (the sale period) from the date of its registration. If the court grants an order extending the sale period, an application to register an order extending the sale period (see paragraph 4.6.4) must be lodged before the 6 months period has expired. If a PSSO endorsed on the title has expired, it no longer binds the register. However, before any instruments (e.g. Transfers, Mortgages and Leases etc.) can be registered, an Application to Register a Discharge of a Property (Seizure and Sale) Order (see paragraph 4.7.2) must be lodged. When a PSSO is registered against land and is current, it is a bar to the registration of subsequent instruments (other than another PSSO or an order or notice given under the Land Administration Act 1997 by the Minister in relation to crown land), unless the written consent of the Sheriff or Deputy Sheriff is endorsed on or filed with the document to be lodged. If a caveat is lodged against the proprietor of the fee simple or other interest that is encumbered by a PSSO, notice that a caveat has been lodged must be served on the judgment creditor. The judgment creditor can take action to remove the caveat under s.138B of the TLA.

4.6.4

Application to Register an Order Extending the Sale Period in a Property (Seizure and Sale) Order

When a PSSO has been registered it binds the land for 6 months (called the sale period). It may be possible to obtain an order extending the sale period in a PSSO. The court may extend it for any specified time period that is not greater than 6 months. To register an order extending the sale period in a PSSO, an original sealed copy of the order must be attached to a Form A11 Application to Register an Order Extending the Sale period in a Property (Seizure and Sale) Order. A Form A11 to register an order to extending the sale period must the lodged before the expiry of the PSSO. The Form A11 can also be downloaded from Landgate’s corporate website at: Titles and surveys/Forms and fees/Land titling fees.

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4.7

Removal of Property (Seizure and Sale) Orders

A Property (Seizure and Sale) Order (PSSO) lodged against land will prevent the registration of any instruments (e.g. transfers, mortgages and leases etc) without the written consent of the Sheriff. If the registered proprietor wants to deal with the land, the PSSO (whether current or lapsed) must be removed from the relevant certificate of title. Removal of a PSSO is achieved in the following ways: 1.

Application to Register a Discharge of a Property (Seizure and Sale) Order An expired PSSO must be removed from the certificate of title before dealing with the land (i.e. selling or mortgaging etc.). Form A12 Application to Register a Discharge of a Property (Seizure and Sale) Order has been created for this purpose. This form can also be downloaded from Landgate’s corporate website at Titles and surveys/Forms and fees/Land titling fees. The application to discharge a PSSO has a Reason Panel giving 4 options. Three of the options need to be deleted leaving the one that suits the circumstance. To register a discharge of a PSSO, the application can be made by: o

the judgment creditor using Option 1 (no evidence is required)

o

by any person using Option 4 if the sale period has expired (no evidence is required) or

o

2.

by any person using Options 2 or 3 if the judgment to which the order relates has been satisfied or the order has been cancelled (evidence must be produced– see Instruction 2 on the document).

By Exercise of a Mortgagee’s Power of Sale A PSSO that is still current is removed as an encumbrance on the registration of a mortgagee’s power of sale transfer, if the written consent of the Sheriff is obtained and filed with the transfer. The following are exceptions to the general rule: o

absolute Caveats (subject to claim caveats may be shown as an encumbrance)

o

memorials lodged pursuant to certain statutory provisions prohibiting dealing with the estate and interest of the registered proprietor. See Chapter 11 for a detailed list of Statutes

o

leases and easements to which the mortgagee has given an unqualified consent (s.110)

o

notice of intention to take under the LAA.

Caveats must be withdrawn, or removed pursuant to sections 138, 138B or 141A of the TLA. If the sale period of a PSSO has expired, an Application to Register a Discharge of Property (Seizure and Sale) Order must be lodged with the transfer (see paragraph 4.7.2). 3.

By Transfer by the Sheriff A PSSO is automatically removed as an encumbrance on the registration of a transfer, by way of sale by the Sheriff. (see paragraph 2.2.10)

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5.

Powers of Attorney and Declarations of Trust

This chapter contains information relating to Powers of Attorney, Enduring Powers of Attorney and their subsequent revocation, Declarations of Trust and the supporting evidence required to be lodged at Landgate.

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5.1

Powers of Attorney

A Power of Attorney document under the TLA is subject to the Verification of Identity Practice issued jointly by the Western Australian Registrar of Titles and Commissioner of Titles. Please refer to Chapter 14. 5.1.1

General

Powers of attorney, once recorded under the TLA, remain in force until revoked or until the purpose or time for which they were created has passed. The powers given to the donee of a power of attorney must be stated specifically and not left to general words in the power. It is an invariable rule that by such general words the donor must be held to confer on the donee only such other powers, not specifically mentioned, as are absolutely necessary for the effective doing of the act for which the power was primarily given. Where more than one (1) donee has been appointed they must state the capacity in which they act (e.g. Jointly or Jointly and Severally).

5.1.2

Noting and Filing

A power of attorney may be presented for noting and filing either: •

in schedule form (Nineteenth Schedule to the TLA, Form P1 Power of Attorney); or

•

in recital form as a deed, provided that some powers under the TLA are given.

When a power of attorney is lodged it is retained by Landgate. If a power is required to deal with other matters in addition to land, consideration might be given to the preparation of separate powers. One could be in schedule form, with variations or additions as required and could be lodged for filing and noting by Landgate. The other, in customary form, could contain the other powers required and be retained by the parties for general use. Alternatively, two signed copies of the power of attorney document should be lodged, one of which will be retained as part of the Landgate records, and the other identified as the ‘Client Original’ will be returned to the lodging party once recorded. An original power of attorney, a properly attested duplicate power of attorney or a copy of a power of attorney certified by the Australian Securities & Investments Commission may be lodged on payment of the prescribed fee. Where a power of attorney is dated more than three months before the date on which it is presented for recording then proof must be supplied, to the satisfaction of the Registrar, that the power has not been revoked. Such proof is normally supplied in the form of a statutory declaration made by the donee(s) of the power of attorney, including any substitute donee(s). In that declaration the donee should: •

identify the declarant as the donee

•

identify the power of attorney by reference to the donor and the date of execution

•

state that the donor is still alive

•

state that the power of attorney has not been revoked and

•

state when and how the donee last saw or communicated with the donor.

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Alternately, a statutory declaration made by the donor(s) of the power of attorney. In that declaration the donor should: •

identify the declarant as the donor

•

identify the power of attorney by reference to the donee(s) and the date of execution

•

state that the donee(s) is / are still alive

•

state that the power of attorney has not been revoked and

•

state when and how the donor last saw or communicated with the donee(s).

If a Power of Attorney has a limited life between the donor and the donee, then it can only be lodged during the currency of that life, e.g. a power limited to a defined period of absence from the State of the donor can only be lodged before or during that period. The design of the computerised power of attorney register does not limit the number of donors in any one document. It is recommended that preparing parties show restraint in the number of donors appointed, and impose the same requirement on the number of attorneys in one document.

5.1.3

Production For Sighting

There are occasions where a power of attorney need only be produced for sighting and not lodged. Where the attorney is signing as transferee of a transfer of land on behalf of the donor, and the power of attorney has not previously noted and filed, production for sighting is all that is required. The power of attorney will be noted and filed if requested but it is not strictly necessary. However it is important that the power of attorney when presented conforms with the standards required for registration. The power of attorney must be: •

properly executed and attested

•

dated within the three month period previously mentioned and

•

contain the power necessary to perform the act for which it is produced.

5.1.4

Schedule Form

The Western Australian Supreme Court case of Clazy v Registrar of Titles (1902) 4 WALR 113 emphasised that a power of attorney created for noting and filing under the TLA in Western Australia must be in the form of, or substantially in the form of, the form set out in the Nineteenth schedule of the TLA. An examination of the form reveals the following features: •

the donee must be a natural person or a corporation

•

the attorney must be given a power or powers to deal in land registered under the TLA

•

after listing a comprehensive set of powers to deal in land registered under the Act, the form provides for the insertion of express words that restrict those comprehensive powers to those inserted in this section (see LTRPM Form Examples - Example 20) and

•

the attorney is then given the power to sign the documents and do the acts necessary to carry out the powers listed, and preserve the rights and assets of the donor.

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Powers of attorney to be noted and filed, whether on a printed form or on a typed form, must contain the same elements: •

The attorney may be the person holding a particular position. As an example, a financial institution may appoint the person holding the position of Loans Manager as an attorney to lodge and withdraw caveats. In cases such as this, the preferred form of attestation would be: Signed by (Name of Attorney) the

)

Loans Manager of (Name of Donor) as

)

(Signature of Attorney)

attorney for (Name of Donor) in

)

P/A Number (insert number)

the presence of

)

Witness Full Name, Address and Occupation •

The power of attorney document must name a person, or may appoint a position where the above described conditions are met. The power of attorney document may also qualify the appointment of a named person by naming the position held by that person (in which case the person would only remain the attorney during the period the stated position was held).

•

The power of attorney document must expressly or by necessary implication refer to real property in Western Australia, e.g. the appointment, by a donor from outside Western Australia, of a Western Australian Attorney will constitute necessary implication; and,

•

The power of attorney document must give both the power to deal in land in very specific terms (eg: to sell, to mortgage, to lease, etc) and then the authority to carry out those specific powers (giving the power to sign a transfer, mortgage or lease, etc).

5.1.5

Power of Attorney by a Corporation

A corporation may appoint an attorney by executing a power of attorney under its common seal. The authority for a corporation to act by an attorney is contained in s.88 of the Property Law Act 1969 and s.129 of the Corporations Act 2001 (Cwlth). The Registrar of Titles is prepared to accept the appointment of a named position within a corporation where a clause to the following effect is included in such powers of attorney documents. ”Any person including the Registrar of Titles of Western Australia or any other registration authority in Australia or elsewhere, dealing with the attorney or a person purporting to be an attorney under this power, is: (a)

Entitled to rely on execution of any document by that person as conclusive evidence that: o

the person holds the office set out in the power;

o

the power of attorney has come into effect;

o

the power of attorney has not been revoked;

the right or power being exercised or being purported to be exercised is properly exercised and that the circumstances have arisen to authorise the exercise of that right and power. (b)

Not required to make any inquiries in respect of any of the above matters.”

The Registrar of Titles is also prepared to accept the appointment of attorneys identified as a Category of Officer within the corporation if all the powers to be exercised are common to each category of officer. This means that it is possible to authorise an officer in Category 1 and an officer in Category 2 acting jointly to exercise all the powers in the power of attorney.

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However, it is not possible to deposit a power of attorney where different powers are to be given to different categories of officer. The following indemnity clause must be contained in each power of attorney document as follows: “Any person including the Registrar of Titles of Western Australia or any other registration authority in Australia or elsewhere, dealing with the attorney or a person purporting to be an attorney under this power, is: (a)


the person is an Officer of the Category set out in the power;

o


o


the right or power being exercised or being purported to be exercised is properly exercised and that the circumstances have arisen to authorise the exercise of that right and power. (b)


Suggested execution clause may be: Signed by (Name of Attorney) the Category (number or level) officer of the (Name of Donor or

) )

another corporation if applicable) as attorney for (Name of Donor)

) (Signature of Attorney)

Power of Attorney number (insert P/A number)

)

In the presence of:

)

Signature of Witness Full Name, Address and Occupation of Witness

5.1.6

Power of Attorney by Trustee

Trustees may appoint an attorney to act in their place under the provisions of s.54 of the Trustees Act 1962 (referred to as the Act in this section). Where trustees are: •

incapacitated by reason of ill health

•

absent from the State or

•

a member of the armed forces;

they may execute a power of attorney which, if in required form, may be recorded under the TLA. The donee of such a power may not be the only other co-trustee unless that co-trustee is a trustee corporation. Where the trustee is not the sole trustee, the consent of all other trustees must be obtained to the power of attorney before noting and filing.

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Every dealing by the attorney for a trustee must be accompanied by a statutory declaration to the effect that at the date of the exercise of the power the donor was still either: •

incapacitated

•

absent from the State or

•

a member of the armed forces.

A power of attorney under s.54 of the Act is revoked by the subsequent recovery from incapacity of the donor, his or her return to the State or discharge from the armed forces. A power revoked in these circumstances is not revived by a subsequent occurrence of the condition which enabled the power to be granted, eg: a further absence from the State. Where s.54 of the Act does not apply but the trust deed empowers the Trustee to delegate the exercise of the trusts, the Trustee may execute a power of attorney which, if in required form, may be recorded under the TLA. However, as the Register under the TLA is based on the legal proprietorship and does not note trusts on the register, any power of attorney lodged with the Registrar of Titles must enable the Registrar to register transactions on properties registered or otherwise held in the name of the grantor without reference to the terms of any trust. If the attorney executes a document that affects the grantor in some capacity other than that in respect of which the attorney is authorised to act, that should be an issue solely between the grantor and the attorney. For a Power of Attorney to be registered under the TLA, it is essential that the grantor, whether in the grantor’s own right, as trustee of a particular fund or in any other capacity be bound by such document and that the Registrar of Titles and others not be bound to inquire whether the attorney or purported attorney has acted within power. If the grant of the power of attorney is restricted, as between the grantor and the grantee, to the grantor’s powers as a trustee then a clause to the following effect is to be included in such powers of attorney documents: “Any person including the Registrar of Titles of Western Australia or any other registration authority in Australia or elsewhere, dealing with the attorney or a person purporting to be an attorney under this power, is: (a)

(b)


the person is authorised to execute the document under the power of attorney on behalf of the donor in the donor’s capacity as trustee as set out in the power of attorney;

o


o


o

the right or power being exercised or being purported to be exercised is properly exercised and that the circumstances have arisen to authorise the exercise of that right and power.


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5.1.7

Powers of Attorney in a General Lien, etc.

Commercial documents in the nature of a mortgage, such as General Liens, Equitable Charges and Debentures, usually contain a power for the lender, on default by the borrower, to appoint a receiver or a receiver and manager. It is usual also for the document to create the appointed receiver the attorney of the borrower with all the powers set out in the document. Provided the document creates a power of attorney and it is properly witnessed as set out in s.145 of the TLA, it may be registered as a power of attorney. Registration depends on the evidence provided in support, which should take the form of a statutory declaration by the receiver declaring that: •

default has occurred on a specified date in the payment of moneys owing under the document of loan (to be identified);

•

notice to remedy the default has been given to the borrower, but the default was not remedied within the notice period;

•

the declarant has been appointed a receiver of the borrower by the lender and that such appointment is still current (a copy of the notice of appointment, as lodged with the Australian Securities & Investments Commission and certified correct by the Commission must be produced with the declaration);

•

the declarant is the attorney for the borrower under the terms of the loan document;

•

default has continued to the date of sale; and,

•

the land being dealt with is land to which the loan document applied.

Powers of attorney of this nature are usually deposited at the same time as a transfer of the land affected is presented for registration.

5.1.8

Limited Powers of Attorney

Powers of attorney may be deposited where the scope or extent of the attorney’s power to act on behalf of the donor is limited. Where a power of attorney is given to the donee to act during the donor’s absence from the State, before any dealing executed by the attorney may be registered, a statutory declaration is required to the effect that the donor is outside the State. A power of attorney may also be limited to the performance of a single act, e.g. the sale or purchase of a specified piece of land or the mortgage thereof. A power of attorney can be given for a limited period of time, eg: for twelve months from the date of signing.

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5.1.9

Irrevocable Power of Attorney

The Property Law Act 1969 at Part V111 permits the creation of an irrevocable power for valuable consideration (s.86) or an irrevocable power for a fixed time (s.87). To be filed under the TLA an irrevocable power for valuable consideration would have to meet the normal requirements of form (i.e. be substantially in the form of the Nineteenth Schedule to the TLA) in addition to disclosing the fact that the power was given for valuable consideration, and confirmation of the parties intention that the power be irrevocable. It is not necessary for the precise amount of consideration to be shown in the power of attorney. A purchaser obtaining land in an instrument signed by such an attorney gains a valid title despite any lack of consent of the donor to the transaction, or the death, mental incapacity or bankruptcy of the donor. To be filed under the TLA an irrevocable power of attorney for a fixed time (not exceeding two years) would also have to meet the normal requirements of form, in addition to disclosing whether or not a valuable consideration was involved, and confirmation of the parties intention that the power be irrevocable for a specific term. A purchaser obtaining land in as instrument signed by an attorney in these circumstances is protected in a similar manner.

5.1.10

Powers Contained in Leases, Contracts, etc.

Leases, contracts for sale and other contracts such as strata management agreements and retirement village agreements often contain clauses appointing the vendor or lessor the attorney of the purchaser or lessee for the purpose of withdrawing caveats or signing transfers. A signed copy of the lease or contract can be filed with the Registrar as a valid power of attorney so long as the relevant clauses of the document are substantially in the form of the Nineteenth Schedule to the TLA. Where the power of attorney is activated by a specific event (eg: refusal to withdraw a caveat) then at the time the power is filed a statutory declaration will be required proving that the conditions precedent to the power becoming operative have occurred. The declaration will usually also have to meet the requirement of the Registrar for proof of non revocation for powers dated more than three months prior to filing. Where the power arises from a donor living in a retirement village the declarant must also include a reference to the capacity of the donor to understand the nature of the demand made (e.g. to sign a withdrawal or transfer) to obtain compliance with the conditions precedent to the activation of the power.

5.1.11

Powers Contained in Mortgages

Mortgages usually contain a clause appointing the mortgagee or an officer to be later designated, as attorney for the mortgagor. To be effective the powers must be expressed substantially in the form of the Nineteenth Schedule to the TLA, and the powers are only noted by the Registrar when a signed copy of the mortgage is filed as a power of attorney document. Where the power of attorney is activated by a specific event (such as default) then at the time the power is filed a statutory declaration will be required proving that the conditions precedent to the power have been met. The declaration will also usually have to meet the requirements of the Registrar for proof of non-revocation for powers dated more than three months prior to filing. Where the mortgage is a short form mortgage linked to a Memorandum of Common Provisions, a signed copy of the short form mortgage will be accepted for filing. Conveyancers are advised that the Registrar will not register transfers by the mortgagee as attorney for a Mortgagor as an alternative to exercising a power of sale, and registering the transfer form designed for that purpose (ie: T4 Transfer form).

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5.1.12

Limit of Attorney’s Power

Unless expressly authorised by the power of attorney the donee of a power may not transfer land of the donor to himself or herself, nor may he or she discharge in the donor’s name a mortgage given to the donor by himself or herself, nor may he or she make a gift of land in the donor’s name.

5.1.13

Execution of Documents by Attorney

A proper form of execution of a document by an attorney is as follows: Signed by (Name of Attorney)

)

as attorney for (Name of Donor)

)


in the presence of

)

P/A (insert number)

Witness (Full Name, Address and Occupation) Variations of this form will be accepted provided it is clear that the person executing the document does so as an attorney.

5.2

Enduring Powers of Attorney

5.2.1

General

The Guardianship and Administration Act 1990 (GA Act) created a new, general power of attorney form, authorising the donee(s) to do anything that the donor could legally do except appoint a substitute. The form is designed for and survives any subsequent legal incapacity of the donor. An enduring power of attorney is effective for the purposes of the TLA (and Property Law Act 1969) as if it were in the form provided for by s.143 of the TLA. An enduring power of attorney must be substantially in the form set out in the third schedule of the GA Act, and has three features that very clearly distinguishes it from the TLA format, being: •

a general power for the donee(s) to do anything the donor can lawfully do

•

an optional choice section where the power may be activated immediately on execution, or at a later date on the occurrence of the incapacity of the donor as certified by the State Administrative Tribunal or

•

a formal acceptance by the donee(s) of the power of attorney, with an acknowledgment of the conditions to apply.

A maximum of two (2) donees may be appointed in an enduring power of attorney (see the decision of the Supreme Court in Ricetti –v- Registrar of Titles CIV 1587 of 1999). Where more than one (1) donee has been appointed they must state the capacity in which they act. (e.g. Jointly or Jointly and Severally). An enduring power of attorney in the form of the third schedule of the GA Act may include restrictions on the general powers granted. Where a donor includes express powers in an enduring power of attorney the Registrar will interpret those provisions as limiting or restricting the plenary powers of the attorney. An enduring power of attorney cannot provide for alternate appointments of attorneys upon certain conditions. An example of such improper appointment of attorneys is where a donor has appointed two attorneys in clause 1 of the schedule form and then clause 3 of the schedule form sets out conditions upon which the second attorney may exercise the powers granted to that attorney.

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Specifying powers that the donee is authorised to exercise, (including conflict of interest clauses that grant transactions between the donor and the donee, including family members), in clause 3 of the enduring power of attorney is not acceptable (see paragraph 3.6 Conditions and Restrictions page 7 of A Guide to Enduring Power of Attorney in Western Australia ). For Transfer by an Attorney under Enduring Power of Attorney or by an Administrator under Board Order to them self or a family member, see paragraph 2.1.32

5.2.2

Appointment of Substitutes

As from 4th December 2000 sections 102 and 104 of the GA Act were amended to allow for the appointment of a person to be a substitute donee of the power only on, or during, the occurrence of events or circumstances specified in the enduring power of attorney. The form set out in the Third Schedule of the GA Act has been amended to allow for the appointment of either one or two substitute attorneys. When the substitute donee(s) execute a document lodged for registration at Landgate, the document must be accompanied by a statutory declaration made by the substitute donee(s) stating that the events or circumstances specified in the enduring power of attorney have occurred. 

Note: Section 21 of the GA Act retrospectively validates, subject to certain exceptions contained in s.21 (2), the appointment of a person who was incorrectly appointed as a substitute donee before the 4th December 2000.

5.2.3

Duration

The duration of an enduring power of attorney cannot be limited to only operate for a certain period of time, e.g. for a period of 12 months commencing on 1st January 2000. The GA Act does not provide for a time limitation and it would create a conflict or inconsistency between the power of attorney and s.107(c) of the Act which states that the attorney cannot renounce his appointment during the incapacity of the donor. This means that if the donor became incapacitated before an expiry date shown in the power of attorney, the appointment of the attorney could not cease on the date shown for expiry.

5.2.4

Noting and Filing

If the attorney(s) wishes to deal in the land of the donor, a signed copy of the power of attorney (not a photocopy) must be lodged with the Registrar of Titles, who will retain it as part of the permanent records of Landgate justifying the registration of dealings signed by the Attorney. Where the power of attorney document to be lodged is dated more than three months previous to the registration date, a statutory declaration of non-revocation or variation made by the donee(s) including any substitute donee(s), and must be lodged with the power of attorney. The declaration of nonrevocation or variation must state the following: •

identify himself / herself as the donee

•

identify the enduring power of attorney by reference to the donor and date of execution

•

that the donor is still alive

•

when and how the donee last saw or communicated with the donor (within the last 7 days)

•

that the enduring power of attorney has not been revoked by the donor

•

that the State Administrative Tribunal or an appointed Administrator has not varied or revoked the enduring power of attorney and

•

that a substitute donee has not been appointed by the State Administrative Tribunal (SAT).

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Alternately, a statutory declaration made by the donor of the power of attorney. In that declaration the donor should: •

identify himself / herself as the donor;

•

identify the enduring power of attorney by reference to the donee(s) and date of execution

•

that the donee(s) is / are still alive

•

when and how the donor last saw or communicated with the donee(s) (within the last 7 days)

•

that the enduring power of attorney has not been revoked by the donor

•

that the State Administrative Tribunal or an appointed Administrator has not varied or revoked the enduring power of attorney and

•

that a substitute donee has not been appointed by the State Administrative Tribunal (SAT).

Where an enduring power of attorney is conditional upon a loss of legal capacity of the donor, as certified by an order of the SAT, a copy of the order must be lodged with each instrument signed by the attorney on behalf of the donor. The instrument must comply with any terms or conditions listed in the order of the SAT. Enduring powers of attorney created under the provisions of legislation in other States, Territories and Countries may be deposited at Landgate if they are accompanied by an Order of the SAT under s.104A of the GA Act as amended. In this case, the donee, when dealing with land under the power of attorney must provide a statutory declaration deposing that the SAT has not revoked the order giving recognition to the out of State power of attorney.

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5.2.5

Witnessing Requirements

Section 104(2)(a) of the GA Act states that there must be two (2) attesting witnesses to the enduring power of attorney, both of whom are 18 years of age or older, and at least one of whom is authorised by law to take declarations. Neither of the two witnesses are a person who is being appointed as an attorney or substitute attorney, and must state their full name, address and occupation. For a list of who can witness a statutory declaration in Western Australia, see paragraph 3.2.4. An enduring power of attorney can be executed outside Western Australia. Where it is executed in another State of Australia (i.e. outside Western Australia), the following persons may witness the document: •

any person who, under the law of that place, has authority to take or receive a statutory, solemn or other declaration or

•

any person before whom, under the Commonwealth Statutory Declarations Act 1959, a statutory declaration may be made.

If an enduring power of attorney is executed in any other place, the following persons may witness the document: •

A prescribed consular official who is performing official functions at that place.

•

A person who is a justice or notary public under the law of that place.

•

A person who has authority under the law of that place to administer an oath to another person or to take, receive or witness a statutory, solemn or other declaration.

A prescribed consular official means: •

an Australian Consular Officer, or an Australian Diplomatic Officer, within the meaning of the Consular Fees Act 1955 of the Commonwealth

•

a British consul or vice consul or

•

an official prescribed by the regulations to be a prescribed consular official.

As one signed copy is retained, it is recommended that two signed copies be created on each occasion so that following lodgement, an authenticated and recorded document identified as the ‘Client Original’ will be returned to the lodging party to produce with other institutions.

5.2.6

Execution of Documents by Attorney

A proper form of execution of a document by an attorney is as follows: Signed by (Name of Attorney)

)

as attorney for (Name of Donor)

)


in the presence of

)

EPA (insert number)

Witness (Full Name, Address and Occupation) Variations of this form will be accepted provided it is clear that the person executing the document does so as an attorney.

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5.3

Revocation

5.3.1

Revocation of (TLA) Power of Attorney

A power of attorney may be revoked by depositing with the Registrar the original power of attorney with the word REVOKED endorsed thereon together with the properly attested signature of the donor and the date of execution. A formal revocation, as a deed, may be prepared using a Form B2 Blank Instrument Form and deposited with the Registrar. The power of attorney being revoked should be properly identified by reference to the donee(s), its date and its registered number. The prescribed fee is payable for each power of attorney revoked. A revocation may also be deposited before the power of attorney which it revokes has been deposited for registration. The indexing system would reveal the revocation when an attempt to register the power of attorney is made. Revocation occurs in the following cases: 1.

Determination by the act of either party: o

by revocation by the donor of the power or

o 2.

by renunciation of the power by the attorney.

Determination by operation of law: o

by expiration of the time limited for the exercise of the authority

o

by a change in the condition of either party, eg: lunacy or bankruptcy (but it must be noted that a change in the legal capacity of the donor of an enduring power of attorney under the GA Act will not affect the power)

o

by the death of either party

o

where the purpose for which the power created is fulfilled or

o 3.

(in the case of an enduring power of attorney made under the GA Act ) by an order of the State Administrative Tribunal; and,

Where a substitute attorney has been appointed by an attorney, a revocation of the head power of attorney operates to revoke the appointment of any substitute attorney.

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5.3.2

Revocation of an Enduring Power of Attorney

An enduring power of attorney made under the GA Act may be revoked in a similar manner to any other power of attorney. It may be revoked by lodging a signed copy endorsed with the word revoked and a date supported by the signatures of the donor and a witness (who must state their full name, address and occupation). Revocation of an enduring power of attorney is also achieved by lodging with the Registrar a simple document (see paragraph 5.3.1 above) signed by the donor (and witnessed). The State Administrative Tribunal may also, on the application of an interested person, order the amendment or revocation of an enduring power of attorney. Having obtained the order, (and if the power is recorded in Landgate) the interested person should then apply on a Form A5 to have the Landgate records altered in accordance with the terms of the order. The first panel of the Form A5 would show the registration number of the power of attorney; the second panel would show the name and address of the interested person; and the third part of the form should request the amendment of the records to comply with the terms of the order (which must be produced).

5.3.3

Notification of Death of the Donor

When the donor of either a normal TLA power of attorney or an enduring power of attorney dies, the power of attorney is terminated and can no longer be used. Where the power of attorney has been deposited at Landgate it is prudent to inform Landgate that the donor has died so that the power of attorney can be formally revoked. This will ensure that those searching Landgate’s Power of Attorney Index will know that the power of attorney is no longer valid. Landgate will revoke the power of attorney if a statutory declaration is made by one of the following persons: •

the donee (or one of the donees if there are more than one) of the power of attorney

•

a substitute donee in the case of an enduring power of attorney

•

an executor or administrator of the deceased donor or

•

a solicitor acting for the donee or the executor of the deceased donor.

The content of the statutory declaration must be similar to a survivorship application (see paragraph 3.4.1) and the following must be produced: •

a copy of evidence of death certified by the Registrar General or

•

an office copy of a grant of probate or letters of administration.

Lodging a statutory declaration does not incur a fee. It must be accompanied by proof of death and may be lodged at the Document Acceptance Counter of any Landgate office or posted to: Lead Consultant, Dealings Registrations Landgate PO Box 2222, MIDLAND WA 6936

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5.4

Declarations of Trust (Section 55 of the TLA)

The Registrar cannot enter trusts on a certificate of title but declarations of trust may be deposited with the Registrar under s.55 of the TLA. The original or a duplicate may be deposited and a Registrar’s Caveat is lodged to protect the interests of the beneficiaries under the trust deed. There is no special form to be used, but any form used is to be duly stamped by the Office of State Revenue and it must contain: •

the name and address of the registered proprietor (the trustee)

•

the name and address of the beneficiary

•

an accurate description of the land

•

a declaration by the trustee that the land specified is held in trust for the beneficiary and

•

any special limitation, or condition on the powers of the trustee; and must be dated and signed by the trustee in the presence of an adult witness.

In the case of family trusts or settlements it is necessary to produce and file with a declaration of trust a copy of the family trust or settlement deed. Later declarations of trust in the same family trust or settlement should contain a reference to the number of the first declaration of trust in which the copy is filed. This is necessary because the Registrar must know who is to be protected and what powers, other than those in the Trustees Act 1962, the trustee has to deal with the land.

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6.

Subdivision and Strata/Survey Strata Plans

This chapter contains information relating to the subdivision of land, including the approval process for deposited plans and strata/survey strata plans. Landgate has created specific application forms which are required to be used for the issue of new certificate(s) of title the subject of a survey plan.

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6.1

Subdivision

6.1.1

General

The subdivision of land in its earlier stages involves the owner of the land to be subdivided with the Local Government, Government Instrumentality’s and the Western Australian Planning Commission (WAPC). All proposals by a landowner to subdivide land are first submitted to the WAPC. This Department acts as a referral office and central clearing house referring proposals to the Local Government and government instrumentality’s such as the Water Corporation, Western Power and Gas Corporation, who have an interest in the orderly development of land and provision of services. Where an agency consents to the subdivision subject to certain conditions (eg: the Local Government may agree subject to the construction of satisfactory roads and footpaths). The WAPC ensures that those roads and footpaths have been constructed to the satisfaction of the Local Government before the final consent of the WAPC is endorsed on the survey. Prior to July 2000 a small survey (up to 12 lots) was drafted on an A3 survey diagram (the diagram) form and a large survey (either more than 12 lots or a complex subdivision) was drafted on an A2 survey plan (the plan) form. As from 1st July 2000 all freehold subdivisional plans (A2 and A3) are referred to as Deposited Plans. For convenience plans, diagrams and deposited plans are called plans in this chapter.

6.1.2

Lodgement of Plans

The registration system permits the surveyor to choose to lodge the new plan at Landgate before the completion of the roads and footpaths and before the final consent of the Western Australian Planning Commission is obtained. Landgate uses this time to make a mathematical and legal check of the plan. Any boundary and area amendments required can then be pointed out to the surveyor for amendment and conveyancers may have early notice of any complications requiring conveyancing action before separate titles for the new lots can be created and registered. No dealings on the plan can be accepted until the surveyor obtains the final clearances for the construction work and the formal approval of the Western Australian Planning Commission is endorsed on the plan. Delays in obtaining these clearances will of course delay the approval of the plan.

6.1.3

Lot Synchronisation for New Subdivisions

From 1 June 2010, after a successful trial period, Landgate customers commenced lodging deposited Plans and/or Strata/Survey-Strata Plans together with the documents required to issue new certificates of title. Known as Lot Synchronisation (Lot Sync), this initiative reduces the processing time required to issue new certificates of title. Earlier document lodgement will allow parallel processing and different timing points when auditing the Plan and examining the documents. This provides an opportunity to all developers with Landgate also including into the process Plans not requiring Western Australian Planning Commission (WAPC) endorsement. Using the Lot Sync process to lodge a Plan ensures certificates of title will be issued as close as possible to the WAPC endorsement date for the plan of subdivision, or the ‘In Order For Dealings’ date for Plans that do not need WAPC endorsement. Lot Sync is voluntary and is intended as an alternative method for parties to lodge Plans and documents, it does not replace the current lodgement process. However, under reforms being introduced Landgate may at some time in the future only allow the Lot Sync process for the lodgement of subdivisional Plans.

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6.1.3.1

Lot Sync Business Process

When lodging Plans using Lot Sync, all registration documents (except for the production of the duplicate certificate of title/letter of consent to subsequent lodgement) must be lodged within five (5) working days of lodging the Plan. The duplicate certificate of title/letter of consent to subsequent lodgement must be produced prior to the Plan being placed ‘In Order For Dealings’. If there is any non-compliance with the Lot Sync Rules the Plan will be removed from the Lot Sync process and the documents will not be examined until the Plan is ‘In Order For Dealings’.

6.1.3.2

Lot Sync Rules

Lodgement of Plans •

“Lot Sync” must be noted in the email subject heading when lodging the Plan and Surveyors Report.

•

When a Strata/Survey-Strata Plan is lodged, strata forms 3, 7 and 26 must also be submitted at plan lodgement.

Lodgement of Documents •

All required registration documents, including the Application for Title, that are required to complete the issue of certificates of title by the Registrar of Titles must be lodged at Landgate within five (5) working days of the Plan lodgement. If the registration documents are not lodged at Landgate within this time, the Plan and document(s) will not be processed as Lot Sync.

•

“Lot Sync” does not need to be noted on the documents.

•

The lodging party must also submit a signed letter requesting that the lodgement date of the registration documents be amended to the same date that the Plan was placed ‘In Order For Dealing’.

Fees •

Under Lot Sync the normal lodgement fees for both Plans and registration documents apply.

•

Any Plan and registration document errors will be subject to the normal requisition fees.

6.1.4

Plans Marked Subject to Examination

On payment of the required fee, a new plan or diagram is allocated a number and the following procedures are initiated: •

a copy of the plan, marked subject to examination is scanned on the Register 2000 image system and made available for searching. Persons searching these plans are cautioned that the plans may be altered during the examination process and

•

all affected titles and location or town lot indexes are noted with the plan type and number.

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6.1.5

The Plan Examination Process

The plan is then examined for mathematical correctness, and legal correctness arising from the legal requirements of: •

the TLA and the Regulations for the Guidance of Surveyors practising under the Licensed Surveyors Act 1909

•

the P&D Act

•

the LAA;

•

the Local Government (Miscellaneous Provisions) Act 1960 and

•

the Local Government Act 1995

Following the examination, the Inspector of Plans and Surveys may either: •

approve the plan if the approval by the Western Australian Planning Commission is required and has been obtained

•

endorse the plan In order for dealings if the approval by the Western Australian Planning Commission has been obtained

•

endorse the plan certified correct in which case the approval by the Western Australian Planning Commission is still to be obtained or

•

decline to endorse the plan as above and issue requisitions to the surveyor to take some remedial action in a process very similar to the stopped document process for dealings.

6.1.6

Plan Approval

The formal approval of a plan by the Inspector of Plans and Surveys is the point where the subdivision itself changes from a proposal or action into a legal reality. Unfortunately, occasions have arisen in the past that a plan has been approved, creating the new lots, but the titles have for a variety of reasons, remained unchanged. For example, it has not been unusual for two lots to be consolidated by the registration and approval of a plan, but the titles have remained unchanged, causing later problems, especially where a building has been constructed across the former boundary. To resolve these problems the Inspector of Plans and Surveys has laid down a policy that plans will not be approved until the documents required to have the titles for the land amended to reflect the new boundaries have been lodged. Until that time, a plan, which is in all respects correct, will be marked In order for dealings . Formal approval thus occurs when the Form A6 Application for a New or Balanced Title is lodged at Landgate for the creation and registration of the new titles for the lots on the plan. Until a plan is formally approved by the Inspector of Plans and Surveys, the new lots have no legal status, however the various rating authorities may commence to levy rates (charges) on the new lots from the time that final approval of the Western Australian Planning Commission has been given. Once a plan has been approved by the WAPC, the application for new titles must be made within a prescribed period of time (see the more comprehensive note at the foot of paragraph 6.2.1).

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6.1.7

Where a Plan is Shown Certified Correct

This notation indicates that the plan has been examined for correctness but the consent of the Western Australian Planning Commission (WAPC) has yet to be endorsed on it. The consent of the WAPC may be conditional upon the completion of the roads, drains and services by the developer and conveyancers should make their enquiries from the surveyor, not Landgate, to ascertain when the approval will be obtained.

6.1.8

Where a Plan is Shown In Order for Dealings

When a plan is placed In Order for Dealings the conveyancer should make a careful inspection of it, (or a search of it) to see what notes the auditor has made, either somewhere close to the graphics (sketch), or in the relevant panels on the form. If no comments have been made, the plan is unconditional, and subject to paragraph 6.2.1 (New Titles for Subdivisions) merely requires an application by the land owner on a Form A6, together with the production of the former duplicate titles, for new titles to be created and registered. On the creation and registration of the titles the status of the plan is changed from In order for dealings to approved, with an operative date being the same date that the application for new titles was lodged. If comments are made by a plan auditor, they will fall into two categories: •

comments with internal impact that are an indication that on lodgement of a dealing, and formal approval of the plan, certain legal changes will occur, and action to record those changes will be made by Landgate staff or

•

comments with external impact that give notice to conveyancers that certain conditions must be met, usually by the lodgement of additional dealings.

6.1.9

Where a Plan is Shown Expired

Section 146 of the Planning and Development Act 2005 places limits on the Registrar of Titles for the issue of new certificates of title, following approval of a Deposited Plan by the Western Australian Planning Commission (WAPC). Owners of land the subject of plans that were endorsed with the approval of WAPC before the Planning and Development Act 2005 came into operation on 9 April 2006 will have 5 years after that day in which to lodge an application for new titles. Owners of land the subject of plans that are endorsed with the approval of WAPC on or after the 9 April 2006 will have 2 years from the endorsed date in which to lodge an application for new titles.

6.1.9.1

Landgate’s SmartPlan System Status Change

For deposited plans that have been endorsed by the WAPC (i.e. status of WAPC Approved) that have not been dealt on within the required time frames as stated above, SmartPlan will automatically update their status to “EXPIRED” (this does not apply to strata/survey-strata plans).

6.1.9.2

Status of Expired Deposited Plan

If a plan has the “expired” status and the registered proprietor still wishes to proceed with the subdivision, then the owner will seek a new subdivisional approval from WAPC.

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6.1.9.3

For Surveys Endorsed Before 9 April 2008

The owner has until 8 April 2011 to apply for new titles. After that date the survey’s status will be “expired” and if the owner wishes to proceed with the subdivision, a new application approval must be sought from WAPC. The normal subdivisional process will apply and the previously approved survey will be cancelled.

6.1.10

Comments with Internal Impact

6.1.10.1

Section 168 (1) (2) of the P&D Act

Where a plan creates new roads, s.168 (1) & (2) of the P&D Act provides a method of automatic transfer of the land in the road to the Crown, and dedication of the land for use as a legal, public road. This occurs on the formal approval of the plan by the Inspector of Plans and Surveys. Notice to conveyancers that the action will be taken on approval is given by noting on the plan Subject to s.168 (1) (2) of the P&D Act 

Note: Prior to the proclamation of the P&D Act on 9 April 2006 the above-mentioned provisions were set out in s.295(5) of the Local Government (Miscellaneous Provisions) Act 1960.

6.1.10.2

Section 167 of the P&D Act

Where a condition of approval to subdivide land is that easements be granted to either of the Local Government, the Water Corporation, Western Power or Gas Corporation then such easements may be set out on the new plan. On approval of the plan by the Inspector of Plans and Surveys, easements in gross are created in accordance with the terms set out in the Town Planning and Development (Easement) Regulations 1983. No consents are required from any mortgagee or other encumbrancer and the easement is created and shown on the new title created and registered for the separate lots on the subdivision. If the easement later becomes unnecessary it may be removed by application of the grantee (see paragraph 7.2.6). 

Note: Prior to the proclamation of the P&D Act on 9 April 2006 the above-mentioned provisions were set out in s.27A of the TP&D Act.

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6.1.11

Comments with External Impact

6.1.11.1

Multiple Owners

Where any of the new lots created on the plan are in multiple ownership, i.e. they are in different names, or different shares and tenancies, the plan auditor places a comment on the plan subject to multiple owners. When this occurs, all the owners must sign the application for titles for the new lots (see paragraph 6.2.1).

6.1.11.2

Section 152 of the P&D Act

Where it is a condition of approval by the Western Australian Planning Commission that a lot(s) shown on a Deposited Plan is to be set aside for pedestrian accessways, rights of way, reserves for drainage or recreation etc, that lot(s) is automatically transferred to the Crown when the new titles for the subdivision are created and registered. A Crown Land Title, in the name of the State of Western Australia, will be created and registered for each lot that is vested in the Crown. The Limitations, Interests, Encumbrances and notifications panel of Crown Land Title will contain the following notation: VESTED BY THE REGISTRAR OF TITLES UNDER SECTION 152 OF THE PLANNING & DEVELOPMENT ACT 2005 FOR THE PURPOSE OF . . . . . . . . . . . . ....... As a caution to conveyancers the plan auditor places a comment on the Plan - Subject to Sec 152 of the P&D Act. The documents necessary to remove encumbrances such as mortgages and caveats on the land to be vested in the Crown must be lodged at the same time as the Form A6 Application for a New or Balanced Title. Easements and restrictive covenants may subsist on conversion to Crown Land. Easements created under P&D Act s.167 are able to subsist on conversion to Crown land. Access easements to adjoining land should not impede public use of Crown land but may subsist until alternative legal access is established. CMS Gas Transmission of Australia easements that are not LAA easements are not acceptable and must be surrendered prior to conversion to Crown. Private CMS Gas Transmission of Australia easements may be replaced with an LAA easement. Notifications under P&D Act s.165 or s.70A of the TLA may transition across to the Crown if still valid. Some other interests or encumbrances over vesting land will be considered by the appropriate Regional Manager in the Department of Lands on a case by case basis to determine whether it is acceptable to the Crown. The consent of the Regional Manager must be endorsed on the application to register the plan prior to lodgement. Those not acceptable must be removed prior to conversion to Crown land. 


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6.1.11.3

Approval of another Plan

Occasions sometimes arise, especially in newly developing areas, that the lots on a new plan will front onto roads that are not connected to the road network as an intervening road, although constructed, is on a privately owned land. The transfer to the Crown (and dedication as a public road) of the intervening road must occur before titles will be created on the new plan. As a caution to conveyancers the plan auditor will place a comment on the new plan: “subject to the approval of plan……….” The documents necessary to create the intervening road must be lodged before (or at the same time) applying for titles for the new subdivision.

6.1.11.4

Closure of Private Road or Right of Way

When a new plan includes land that is part (or all) of a private road, the Registrar cannot include the road in the new lots. As a caution to conveyancers the plan auditor will place a comment on the new plan: “subject to the approval of plan……….” The documents necessary to transfer the ownership of the private road to the owners of the land in the subdivision, and the documents to remove the rights of any person entitled to use the private road or R.O.W. must be lodged before (or at the same time) applying for titles for the new subdivision.

6.1.11.5

Road Widening (P&D Act Section 168 (5))

Where any lots are separated from an existing public road by a strip of land marked on the plan as road widening, the owners of those lots will have no legal public road access until the land in the strip is transferred to the Crown or Local Authority (free of encumbrances) for dedicated road purposes. An application to apply for a new title is not necessary. The transfer of the land to the Crown or Local Authority is the vehicle to approve the survey and create a new title for the land. The consideration panel of the transfer should contain the following words: “In order that the land may be dedicated as a road pursuant to s.168 (5) of the Planning and Development Act 2005.” As a caution to conveyancers the plan auditor places a comment on the plan: “subject to s.168(5) P&D Act 2005.” 

Note: Prior to the proclamation of the P&D Act on 9 April 2006 the above-mentioned provisions were set out in s.28 (1) of the TP&D Act.

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6.1.11.6

Road Widening (P&D Act Section 168 (3))

Where a new subdivisional plan shows a strip of land between lots and a public road, the owners of the lots will have no legal public road access until the land in the strip is vested in the Crown and dedicated for road purposes. Formal approval of the new plan is withheld until a Form A6 Application for a New or Balanced Title is lodged at Landgate for the creation and registration of the new titles for the lots on the plan. As a caution to conveyancers the plan auditor places a comment on the plan: “subject to s.168(3) P&D Act 2005.” 

Note: Prior to the proclamation of the P&D Act 2005 on 9 April 2006 the above-mentioned provisions were set out in s.28 (3) of the TP&D Act.

6.1.11.7

Land Administration Act 1997 (Section 87)

Where the land in a plan includes a portion of Crown land or the whole or part of a closed road, the plan auditor will place a comment on the survey: “subject to the inclusion of Crown land or subject to closed road.” The owner of the land in the subdivision must arrange for the acquisition of the Crown land and the creation of either a title or a Closed Road (Ministerial) Order before (or at the same time) applying for titles for the new lots. The disposition of such land is under the control of the Department of Lands.

6.1.12

Compiled Plans

The proprietor of two or more complete lots may amalgamate those lots to form one new lot. The following procedure is recommended: •

obtain the written consent of the Western Australian Planning Commission to the proposed amalgamation

•

obtain the services of a surveyor to draw the new survey diagram

•

register the plan at Landgate

•

submit any necessary clearances to the Western Australian Planning Commission and obtain its written approval on the plan and

•

following the approval or change of status of the plan from subject to examination to in order for dealings, by the Inspector of Plans and Surveys, apply for a title to be created and registered for the amalgamated lot on a Form A6 Application for a New or Balanced Title. Production of the relevant duplicate certificates of title (if any) is required.

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6.2

Applications for New Titles

6.2.1

New Titles for Subdivisions

An application for a new title the subject of a single plan must be made on a Form A6 Application for a New or Balanced Title (s.166 of the TLA). Applicants must ensure that the plan is approved or In order for Dealings before attempting to lodge their documents. All the documents necessary for the approval of a plan marked In order for dealings must be lodged at the same time as the application. All the relevant duplicate certificates of title (if any) must be produced with the application or arrangements made for their production by the person holding them prior to presentation of the application. The introduction of SmartRegister requires surveyors to include in plans lodged for the purpose of subdivision any residue land comprised in an affected title as a separate (balance) lot or lots. The signatures of all the proprietors must appear on the application. No witness is required for signatures on the application unless a change in the address of the registered proprietor(s) is shown. If such a change is required and the signatures not witnessed, then the application is acceptable if the third panel of the form, after the request for the title the subject of the new plan, is followed by the words: “…..such title(s) to show the current address of the applicant(s).” Conveyancers should consider the effect of the creation and registration of separate titles for a subdivision on any encumbrances that may be registered or recorded on the title for the original (presubdivision) lot. As a basic rule, any encumbrancer who may be disadvantaged by the creation of the new subdivision must consent to the application. Examples where consent will be required are: •

A mortgagee in circumstances that the mortgage will, after creation of the subdivision, remain registered over part only of one or more of the new lots, resulting in the restriction of the ability to exercise a power of sale.

•

A caveat lodged protecting an unregistered instrument, which will become unregisterable on the creation of the new subdivision.

If the subdivision will breach the terms of a restrictive covenant, then the covenant must be modified or discharged.

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Multiple Ownership Subdivisions In the case of multiple ownership subdivisions, the repealing of Regulation 44 of the Licensed Surveyors (TLA) Regulations 1961 has allowed for plans to show land in multiple ownership. Plans involving multiple ownership of a new lot created on the plan must have all the documents (i.e. partial transfers– see paragraph 1.9.2) and consents necessary for the approval of the plan. These must be lodged at the same time as the application to register the plan. New titles will be created in accordance with the single application (Form A6 Application for a New or Balanced Title) signed by all the affected owners. To facilitate the creation of the new titles in the right proprietorship, the application must specifically state which proprietor receives what lot (see LTRPM Form Examples - Example 7). 

Note: Once a plan has been approved by the WAPC, s.146 of the P&D Act allows for the lodgement of the application (Form A6) within the following prescribed time period, otherwise the Registrar of Titles is not permitted to create and register the new titles created on the plan: For plans approved by WAPC before 9 April 2006, the application for new titles must be lodged on or before 8 April 2011. For plans approved by WAPC on or after 9 April 2006, the application for new titles must be lodged within 2 years. If an application for new titles is not lodged within the above-mentioned time periods, the legal status of the relevant plan will be changed from In Order for Dealings to Expired. In this circumstance the Registrar of Titles is prohibited from creating and registering new titles for the lots shown on the plan.

6.2.2

Balance Titles

Where part of the land in a title is removed, either by transfer or application, that title is partially cancelled and the duplicate certificate is retained by Landgate (s.71A of the TLA). To obtain a title for the balance of the land the proprietor is required to apply (using a Form A6 Application for a New or Balance Title) for a balance title once a Deposited Plan drafted by a Surveyor has been lodged at Landgate. This plan is to be prepared at the proprietor’s expense. The practice rules, as to attestation set out in paragraph 6.2.1, apply. 

Note: Under SmartRegister part lots cannot exist in the Register. It is therefore necessary for surveyors to include in new subdivisional plans all land within the relevant titles and allocate lot numbers to all new parcels including PAW’s. Any residue land (balance) must be given a lot number.

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6.2.3

Separate Titles

The proprietor of two or more complete lots (which also includes the whole of any part-lot as defined in s.21(1) of TP & D Act) in a title may apply (using a Form A6 Application for a New or Balanced Title) for the creation and registration of separate titles for each of the lots or part-lots without the consent of the WAPC. The existing duplicate certificate of title (if any) must be produced. The practice rules as to attestation set out in paragraph 6.2.1 apply.

What is meant by a Part-Lot Essentially, a part-lot as defined in s.21(1) of TP&D Act is a particular part of a former whole lot which remains and is shown on a plan or diagram of subdivision after that former whole lot has in some way been divided or reduced in size. It will normally (but will not necessarily be) specifically identified as a Pt-lot in any relevant certificate of title. Some common examples of what constitutes a part-lot for the purposes of s.21(1) of TP&D Act are as follows: •

Part-lots that come into existence as a result of small resumptions, road-widenings and creation of new roads. In these cases, there has previously been a whole lot, created on a plan or diagram approved by the WAPC, which has lost part of its area.

•

Part-lots that arise when a new subdivisional plan or diagram was overlaid on an existing plan or diagram. When new titles are created and registered for the lots on the overlaid plan or diagram, one or more part-lots may be left in a title (this practice is no longer allowed).

•

Part-lots that were created in the past when, prior to the introduction of planning laws as we now know them, owners of whole lots on a title sold a whole lot, coupled with one or more parts of whole lots. In these cases, the whole of the land transferred was described by a sketch on the relevant transfer.

•

The original whole lots still existed, but they were divided into parts and those parts were contained in different titles. As those parts of lots are defined by being shown by a red marking in their original plan or diagram, they are also part-lots within the definition.

Where the existing certificate of title contains: •

an undefined portion of land

•

a portion of a part-lot as defined under s.21(1) of the TP&D Act or

•

a part-lot that is not considered to be a part-lot under s.21(1) of the TP&D Act;

then the consent of the WAPC will be required to be endorsed on the application before a separate title for the undefined portion or part-lot may be created and registered. If separate titles are issued for the whole lots and/or part-lots in a title and only one undefined portion remains as the balance of the land in the title, the proprietor may lodge an application for a balance title without the necessity of obtaining the consent of the WAPC.

6.2.4

Reversion to Crown Allotments

Once a Crown allotment has been superseded by the lodgement and registration of a new plan, it is not possible to revert back to the former Crown allotment.

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6.3

Strata/Survey-Strata Plans

6.3.1

General

The Strata Titles Act 1966 was enacted to provide for the registration of title to individual units in a multi-storey building. It was subsequently amended to include duplex or other horizontal development. The Strata Titles Act 1985 (STA) repealed the 1966 Act but made provision for the continuance of strata schemes created by the earlier Act. The STA was substantially amended by the Strata Titles Amendment Act 1995, which came into operation on the 14 April 1996. The STA, as amended, contains a number of provisions, some of which are: •

disposition statements to facilitate strata/survey-strata plan registration and re-subdivision

•

the addition, variation or removal of restrictions as to the use of a strata lot

•

the re-subdivision of strata lots and/or common property

•

the consolidation of two or more strata lots

•

the variation of unit entitlement

•

the registration of an order by the State Administrative Tribunal

•

the enlargement of the common property

•

the reduction of the common property and

•

management statements.

These matters are dealt with particularly in subsequent paragraphs. Some of the words and phrases used in this chapter require definition, and these are: parcel - means the whole of the land comprised in a strata / survey-strata plan; lot - means a lot shown as such on a strata / survey-strata plan; common property in a strata plan - means so much of the land for the time being as is not comprised in a lot shown in the plan and land leased to increase the area of common property; common property in a survey-strata plan - means the lot or lots shown as common property , designated by the letters CP and land leased to increase the area of common property; unit entitlement - determines the quantum of the undivided share of each proprietor in the common property; scheme - means a strata scheme or a survey-strata scheme; and strata company - means the management committee charged with control, and preservation of the common property and jointly owned assets of the unit or lot owners. Whereas technically all the lot proprietors constitute the company, in large complexes a smaller, elected committee or council usually carries out the day to day management function. Before a strata plan can be registered there must be a building or buildings erected on at least one of the proposed strata lots which make up the parcel of the Strata Plan. In the case of a survey-strata plan there is no requirement for a building or buildings to be erected. If part of a building, wall or other significant improvement is built such that it crosses over the boundary between the subject land and an abutting lot, the encroachment must be recorded on the plan. Connections to buildings, walls and other types of significant improvements that are close to, but do not cross over, the boundary of the subject land may be recorded on the plan at the surveyor’s discretion.

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6.3.2

Strata / Survey-Strata Plans – Elements in Common

Each Strata/Survey-Strata Plan has the following elements in common: •

a title or heading stating whether it is a strata plan or a survey-strata plan

•

a description of the land in the parcel (ie: a TLA description)

•

the name of the scheme

•

the address of the parcel

•

a schedule of unit entitlement for each of the lots

•

a certificate from a licensed valuer that the unit entitlement reflects both the aggregate and individual values of the lots by not more than 5% variation either way

•

schedules, to permit endorsement of memoranda of dealings affecting the strata / survey-strata plan

•

the name and address of surveyor to be shown

•

an indication as to the existence of a management statement and

•

a cross-sectional diagram may be drawn on the plan to assist in illustrating the lot boundaries.

Easements and restrictive covenants created under Part IVA of the TLA may be shown on the plan (see paragraphs 7.1.8 and 7.3.5).

6.3.3

Strata Plan – Additional Elements

In conjunction with the elements in common with survey-strata plans referred to above, a strata plan has the following additional elements: •

a location plan showing the building in relation to the external boundaries of the parcel

•

a certificate from a licensed surveyor, either negating internal and external encroachments or certifying that an appropriate easement has been granted for an external encroachment and will be lodged with the Registrar of Titles

•

an occupancy permit or a building approval certificate

•

a floor plan illustrating the lots and part lots outside the building (if any) and distinguishing them by number with the floor area of each lot and part lot, and if necessary, the extent of the vertical and horizontal boundaries (cubic space)

•

if the boundaries of the lots or part lots comprising buildings are fixed by reference to the inner surface of the walls, ceiling and floor or by the external surface of the building, then a statement to that effect in the form prescribed by the Strata Titles General Regulations 1996 (STGR) must be contained on the plan and

•

a certificate showing an endorsement of approval by the Western Australian Planning Commission, or delegated authority, on the plan (there are some exemptions- see Regulation 15 in the Strata Titles General Regulations 1996).

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6.3.4

Survey-Strata Plans – Additional Elements

In conjunction with the elements in common with strata plans referred to above, a survey-strata plan has the following additional elements: •

a survey plan of the parcel that defines the lots and common property lots by dimension and survey information and

•

an endorsement of approval by the WAPC on the plan.

6.3.5

Searching a Strata Lot

When making a search of the ownership of a lot on a strata/survey-strata plan it is essential that: •

the strata title is searched to obtain current ownership and encumbrances (see also paragraph 6.3.6 below)

•

the original strata/survey-strata plan is searched for encumbrances and amendments not shown on the title and

•

the records (if any) of the Strata Company are perused.



Note: These can be viewed with the consent of a lot proprietor by contacting the secretary of the Strata Company or the Strata Manager.

6.3.6

Strata Title

A strata title is a title for a lot on a Strata/Survey-Strata Plan and includes a share in any common property in the scheme. Anything occurring on or in respect of common property affects every title in the scheme. A strata title contains a notation in its second schedule referring to interests notified on the Strata/Survey-Strata Plan . This means there could be other interests that are not recorded on the title that may benefit or encumber the common property or strata lot. Therefore a strata title must always be searched in conjunction with the Strata/Survey-Strata Plan (see also paragraph 6.3.5 above).

6.3.7

Production of Duplicate Strata Titles

Generally, only those duplicate certificates of title (if any) actually required for amendment need to be produced at the time of registration of a dealing on strata titles. Strata titles created and registered under the Strata Titles Act 1966 (ie: created and registered before 1 July, 1985) all show the quantum of the unit entitlement for that lot. Where the registration of a dealing results in an amendment of the unit entitlement, all duplicate certificates of title (if any) created and registered under the Strata Titles Act 1966 are to be produced. These titles will be cancelled and new titles created and registered (free of charge) referring to a unit entitlement as set out on the strata/survey-strata plan. Should a strata/survey-strata plan be terminated, all the duplicate certificate of titles (if any) for the strata/survey-strata lots must be produced for cancellation. On a strata/survey-strata plan of re-subdivision or consolidation only those duplicate certificate of titles (if any) affected by the re-subdivision or consolidation are required to be produced. When any of the merger and conversion options in the Strata Titles Amendment Act 1996 are used, the production of the duplicate certificates of title (if any) is not required. They will be amended when they are lodged at Landgate for the purpose of a dealing.

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6.4

Lodgement and Registration of New Strata/Survey-Strata Plans

6.4.1

General

A new strata/survey-strata plan (Plan) is lodged electronically by the surveyor at Landgate, supported by a pre-allocated plan number and payment of the prescribed fees (see Titles and surveys/Forms and fees/ Search and lodgement fees/Survey lodgement fees. The Plan is then entered on the computer records and scanned with a legal status of SUBJECT TO EXAMINATION. After the Plan has been examined to ensure that it is in accordance with the various Acts, and Regulations, the legal status is changed to CERTIFIED CORRECT. When the Plan is sent to the WAPC for approval, the legal status is changed to CERTIFIED CORRECT AND SENT TO WAPC. When the WAPC has approved the Plan, the legal status is changed to IN ORDER FOR DEALINGS. When the Plan is put In Order For Dealings, it may be subject to certain actions or conditions. These actions or conditions must be addressed before or simultaneously with the application to register the strata plan. Examples of things that may be required are the amalgamation of lots to form the Strata land parcel or the modification of restrictive covenants to permit multiple dwellings or subdivision by a strata/survey-strata plan. 

Note: Some strata plans do not need to go to the WAPC for approval. In this case the legal status of the Plan will go from SUBJECT TO EXAMINATION straight to IN ORDER FOR DEALINGS.

The proprietor of the parcel may apply to register the strata/survey-strata plan when the legal status of the plan is shown as IN ORDER FOR DEALINGS. The form to be used is a Form A8 Application to Register Strata / Survey-Strata Plan. An application to register the strata/survey-strata plan (Form A8) may require other forms and additional documents necessary for registration. Such forms may be Forms 3 and 26 of the STGR, Building Act 2011 Forms BA 12 and 16, and additional documents may include a Management Statement, Application to modify a Restrictive Covenant, Application to vary or discharge an Easement. All specific pre-requisites to register a plan will be noted on the strata/survey-strata plan. The land description used should be that shown on the title for the original land parcel and all the proprietors, if more than one, must join in and sign the application. The existing duplicate certificate of title (if any) must be produced for cancellation. 

Note Subject to the Act, a certificate given by a licensed valuer for the purpose of the Act is valid for a period of 2 years. If the licensed valuer’s certificate (Form 3) has lapsed a new certificate must be produced.

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In relation to encumbrances currently affecting the parcel, the following should be noted: •

mortgages, charges, leases and caveats of the whole of the land in the parcel will be brought forward and shown on the title for the lots on the plan

•

mortgages, charges and leases of part of the land in the parcel should be removed before the registration of the strata/survey-strata plan can be completed (subject to paragraph 6.9.3, which is where a previously registered strata plan is terminated immediately followed by a new strata/survey-strata plan);

•

caveats as to a portion of the parcel should be withdrawn unless it can be shown that the land affected by the caveat can be defined

•

restrictive covenants are brought forward only on the strata/survey-strata plan and

•

easements will be treated in the following manner: o

Easements over common property and common property lots are brought forward on to the strata/survey-strata plan only.

o

Easements affecting part lots outside the building on a strata plan, or a lot or lots on a survey-strata plan will be brought forward on to the plan and shown as an encumbrance on the relevant titles.

o

An easement which affects a building on a strata plan must be removed or varied to the extent necessary to free the building from its encumbrance unless the nature of the easement is not inconsistent with the restriction as to use of the part of the strata lot encumbered.

o

Encroachment easements (if any) referred to in the licensed surveyors’ certificate on the strata plan must be lodged for registration before the application for registration of the strata plan (see Chapter 6.4.2 below).

Concurrently with the registration of the strata/survey-strata plan, separate titles are prepared for each lot on it in the name of the applicant. No titles are created and registered for common property in strata plans or for common property lots in survey-strata plans. 

Note: A disposition statement may be filed with an application to register a strata/survey-strata plan (see paragraph 6.4.5). A management statement (if indicated on the plan) may be filed at any time up to the lodgement of the application to register the strata/survey-strata plan (see paragraph 6.4.7).

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6.4.2

Easements in Respect of Encroachments (Including Easements of Support)

Section 22 of the STA provides that where part of a strata development, such as a roof, wall or building foundation is built upon an adjacent lot, an appropriate easement for that part of the roof, wall or foundation must be put in place before registration of the strata plan may proceed. One of the appropriate easements is an easement of support for the building erected on the dominant tenement by that portion of roof, wall or foundation of the said building erected upon the servient tenement. This type of easement recognises that that portion of the roof, wall or foundation belongs to the owner of the servient tenement. A simple model of such an easement is set out in LTRPM Model Form Examples - Example 10 of this manual. Persons considering using the model should examine it carefully to ensure that it is the type of easement required and that it satisfies all their needs. They should obtain legal advice before using the model. It may be more appropriate to effect a subdivision which adds that part of the adjacent lot subject to the encroachment to the parcel. Easements in respect of encroachments must be executed and dated prior to the date of the licensed surveyor’s certificate (s.22 (1) (c) (iii) of the STA) and must be lodged for registration before the application for registration of the strata plan. In the case of an easement for support from part of a wall or building on the servient tenement, the easement document must be lodged with, but preceding the application for registration of the strata plan.

6.4.3


When a strata/survey-strata plan has been registered the lots on it may devolve, be transferred, mortgaged, leased or otherwise dealt with in the same manner or form as land under the provisions of the TLA. Each lot on the strata/survey-strata plan is burdened by and has the benefit of implied easements of support, the provision of services, such as water and electricity, etc, rights of shelter from those parts of any building capable of affording shelter, access for maintenance to certain buildings and all other reasonable ancillary rights to make easements effective (s.11 to 13 of the STA as amended). The common property and common property lots are held by the proprietors of the lots as tenants in common, in shares proportional to the unit entitlement of their lots. The proprietors of the lots on a strata/survey-strata plan, upon registration of the plan, become a strata company by the name of: the Owners of (name of the scheme) Strata/Survey-Strata Plan (registered number). This company is not subject to the Corporations Law 2001 but derives its authority from the STA. The strata company is a convenient means of providing for administration and for the proprietors to deal with others by use of a common name (see paragraph 6.4.8).

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6.4.4

Conversion of Share (Purple) Titles to Strata Titles

A purple title is a title for an undivided share in the whole of a parcel of land. This term stems from the past practice of colouring the sketch on the title purple to distinguish them from green titles. They were used for issuing share titles for high rise buildings prior to the Strata Titles Act 1966 being implemented. Their biggest failing is that the title is for a share in the whole of the property, not for a specific part. Lenders were reluctant to advance money to purchasers, as their security could not be tied to an identifiable part of the property. With the introduction of the STA, a title could be issued for a defined part of a parcel such as a lot in a building. This has resulted in the decline of purple titles. Share (purple) titles are still used occasionally for tenancy titles, particularly in rural areas. When persons contemplate the conversion of property held in undivided shares to strata titles, all the tenants in common should be in agreement. In the case of a strata plan, the proprietors should commence their enquiries at the Local Government to ensure that the building or buildings are suitable to be subdivided into lots under the STA. Approval of the WAPC is also required unless exempt. (see Regulation 15 in the STGR). In the case of a survey-strata plan, an application should be made to the WAPC. The WAPC will refer this application to the local government and any relevant public authorities and government departments before granting conditional approval. Having received the above mentioned approval(s), a Licensed Land Surveyor should be approached to prepare the strata/survey-strata plan in accordance with the Act and regulations and lodge it with Landgate. An Application Form A8 is required to register the strata/survey-strata plan and to create and register the titles for the lots in the strata/survey strata scheme. This can be lodged when the legal status of the plan is IN ORDER FOR DEALINGS. All the proprietors of the lots must sign the application. A disposition statement (Form 22 of the STGR) may be filed with the application (see Chapter 6.4.5 below). A sample disposition statement is set out in LTRPM Model Form Examples - Example 9.

6.4.5

Disposition Statements For Tenancies in Common

The STA as amended makes provision for a disposition statement to be filed with an application to register a strata/survey-strata plan. The purpose of the disposition statement is to: •

instruct the Registrar to create for each proprietor a title to the lot to which that proprietor is beneficially entitled without the need for the lodgement of transfers and

•

indicate what strata/survey-strata lots or common property will be affected by pre-existing encumbrances (if any) that are to be brought forward.

No additional Landgate registration fees are required for filing a disposition statement but it must be stamped at the Office of State Revenue (Stamp Duties Division). Regulation 20 of the STGR sets out an abbreviated procedure for the conversion of tenancies in common. The disposition statement should be set out in the manner of Form 22 of the STGR. It must be signed by the applicant (the registered proprietors of the parcel) and it requires the written consent of encumbrancers and caveators whose interest is being brought forward onto the various strata/survey-strata lots and common property. The above mentioned consents can be endorsed in the appropriate section of the disposition statement or in a letter attached to it. Consents given by letter must clearly describe the nature of the consent.

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A sample disposition statement is set out in LTRPM Model Form Examples - Example 9. 

Note: The disposition statement cannot be used to:

•

Partition ownership of the lots created on the plan other than between the proprietors of the land the subject of the plan.

•

Totally remove an encumbrance or an entire interest in an encumbrance.

•

Re-allocate any encumbrance to any lot if the encumbrance was not previously registered over a part of the land now comprised in the lot.

In these circumstances appropriate documents must be lodged.

6.4.6

Disposition Statements for Plans of Re-Subdivision

Section 8B of the STA as amended makes provision for a disposition statement to be filed with an application to register a strata/survey-strata plan of re-subdivision.

6.4.6.1

The purpose of the disposition statement

The purpose of the disposition statement is to effect boundary changes to lots and common property without the need for transfers of the portions involved or the partial removal of encumbrances. No additional Landgate registration fees are required for filing a disposition statement but it must be stamped at the Office of State Revenue (Stamp Duties Division). Regulation 21 of the STGR sets out the abbreviated procedure for a plan of re-subdivision through the use of a disposition statement. A disposition statement must meet all the below requirements: •

Set out in the manner of Form 23 of the STGR.

•

Signed by the Strata Company and the registered proprietors of the lots which are directly affected by the plan of re-subdivision.

•

Consented to by the encumbrancers and caveators of the lots which are directly affected by the plan of re-subdivision.

The above mentioned consents can be endorsed in the appropriate section of the disposition statement or in a letter attached to it. Consents given by letter must clearly describe the nature of the consent as follows: “Re-subdivision of lot 10 on Strata Plan . . . . . . to include common property as depicted on plan of re-subdivision signed by surveyor on . . . . . . . . “ If consent is given by a separate letter, the letter may also contain consents to re-allocation of unit entitlement (see paragraph 6.8.5).

6.4.6.2

The disposition statement cannot be used to:

•

partition ownership of the lots created on the plan of re-subdivision between the proprietors of the lot being subdivided as tenants in common to separate ownership of different lots

•

totally remove an encumbrance or an entire interest in an encumbrance;

•

re-allocate any encumbrance (eg mortgage, charge or caveat) to any other lot over which it was not previously registered or

•

change any person having a registered interest in an encumbrance (eg mortgage, lease or easement) or the proprietor the subject of a caveat (including the strata company).

In these circumstances appropriate documents must be lodged.

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6.4.7

Management Statements

The purpose of a management statement is to establish the by-laws and to provide developers with a method of registering matters pertaining to a proposed strata/survey-strata scheme at the time the scheme is being established (see schedule 2A of the STA as amended). Some of these matters are as follows: •

theme of the strata development

•

disclosure of staged developments

•

plot ratio and open space requirements

•

management of common property

•

additional by-laws

•

a restriction as to use

•

internal and external fencing;

•

insurance of common property;

•

carrying on of any business or trading activity by the strata company and

•

resolution of disputes.

6.4.7.1

Lodgement and Registration

At the time a strata/survey-strata plan is lodged, it must indicate whether or not a management statement is to be filed. The management statement may be filed simultaneously with the plan or at any time up to the lodgement of the Form A8 Application to Register Strata / Survey-Strata Plan. A management statement must be in the manner of Form 25 in the STGR and can be in the form of a deed attached to a Form B4 Cover Sheet or typed on a Form B2 Blank Instrument Form with Form B1additional Sheets if required. A management statement shall: •

be signed by the registered proprietor(s) of the parcel and

•

have the written consent of each person who has a registered interest in, or is a caveator of, the parcel.

Any staged development or future plan of re-subdivision contained in a management statement must comply with the prescribed requirements of regulation 37 of the STGR. When a management statement is filed, it receives a document number but it is has no effect (remains unregistered) until the application is lodged to register the strata/survey strata plan.

6.4.7.2

Searching Management Statements

A management statement will be scanned as part of the strata/survey strata plan until registration of the plan is effected. To obtain a copy of the management statement prior to registration of the strata/survey-strata plan, you must order a copy of the plan and with it you will automatically receive the management statement. The strata/survey-strata plan and the management statement will be stamped Subject To Examination. Once the strata/survey-strata plan has been registered, the plan and the management statement will become separate documents and must be searched separately (ie. if you order the plan you will not receive a copy of the management statement). To obtain a copy of the management statement you must order it as a separate document.

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6.4.8

Strata Company

6.4.8.1

General Information

After the completion of the registration process, there are various obligations under the STA that require implementation by the original proprietor. The following paragraphs briefly outline some of these requirements but Part IV of the STA sets out the management obligations in detail. On registration of the Strata/Survey-Strata Plan, the strata company comes into existence. Within 3 months of registration the original proprietor of the parcel is required to call the first annual general meeting of the strata company. At this meeting the strata council is elected, levies raised if needed, insurance decisions resolved and other matters associated with the scheme agreed to. The original proprietor must deliver all plans, specifications, certificates, books of account and other documents relating to the scheme.

6.4.8.2

Annual General Meetings

In two lot schemes there is no statutory requirement for annual general meetings (AGM). However the first AGM must be held. In 3 to 5 lot schemes, a by-law may be passed and registered on the plan exempting the strata company from having to conduct further AGMs. In all other schemes AGMs must be held and on occasions extraordinary meetings may be necessary. Every scheme of whatever size, should keep minuted records of all decisions affecting the scheme. These records may be required for disclosure to prospective purchasers under s.69 of the STA. 

Note: The STA does not permit a title to be issued in the name of the strata company; rather it is issued in the name of all of the registered proprietors as tenants in common. However, in most cases the Strata Company can act as the transferor or as the party to a specific action.

6.4.9

Powers and Duties of the Strata Company

The duties of the proprietors and the strata company are set out in the body of the STA as amended and in the by-laws contained in the Schedules to that Act. In general, it is the responsibility of the company to manage the common property, enforce the bylaws and attend to insurance matters (s.35 to 37 of the STA).

6.5

1996 Single Tier Merger and Conversion Options

6.5.1

General

The amendments made to the STA as a result of the proclamation of the Strata Titles Amendment Act 1996 on 20th January 1997 are aimed at making it easier to remove or reduce the amount of common property in a strata scheme by the use of merger and conversion options (in this paragraph referred to as the Options). All of the Options available for this purpose are outlined in paragraphs 6.5.2, 6.5.4, 6.5.5 and 6.5.6 below. The use of the Options is subject to the following conditions: •

They only apply to single tier strata schemes which are registered at Landgate before 1 January 1998. A single tier strata scheme is a strata scheme in which no lot or part of a lot (except for a permitted boundary deviation as set out in regulation 37A) is above or below another lot.

•

As long as the scheme is registered before 1 January 1998, they can be used at any time before or after 1 January 1998.

•

Each of the Options can only be used once (ie. after using the merger of buildings option, a strata company can still use the merger of land and/or conversion to survey-strata options at any time in the future).

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The Options are brought into effect by the lodgement of an appropriate Notice of Resolution and accompanying documents at Landgate. The forms as set out in the STGR are available from Landgate in Midland. They can also be downloaded from Landgate’s corporate website in Titles & surveys/Forms & fees/Strata forms. Registration fees are payable on taking advantage of any of the Options and stamp duty will only be payable where some money is paid or other consideration is given for redistributing the common property. The duplicate certificates of title (if any) for the lots in the strata scheme do not need to be produced when any of the Options are used. They will be amended when they are lodged at Landgate for the purpose of a dealing. Where a duplicate certificate of title is produced by a mortgagee or caveator etc for the purpose of registering any of the Options, the separate written consent of that mortgagee or caveator will not be necessary. Under each of the Options, the lot numbers and the plan numbers will not change, and no new lots may be created (except for common property lots in the conversion to a survey-strata scheme).

6.5.2

Merger by Resolution of Buildings that are Common Property

This paragraph needs to be read in conjunction with paragraph 6.5.1 above. A strata company of a single tier strata scheme may, by resolution without dissent (or unanimous resolution in a two-lot scheme), agree that the whole of the buildings shown on the plan will be within the lots. This means that all of the registered proprietors in the strata scheme will individually own all of the building that they occupy. If there is a dissenting vote, the strata company (or other owner in a two-lot scheme) can apply to the State Administrative Tribunal for an order that the resolution has been passed. Where there are 2 to 5 lots in a single tier strata scheme, it is subject to the automatic merger provisions that are outlined in paragraph 6.5.3 below. A Notice of Resolution of Merger of Buildings (in this paragraph referred to as the Notice of Resolution) must be set out in the manner of Form 30 of the STGR and may be signed by either: •

the Strata Company with the common seal affixed

•

all of the registered proprietors in a 2 to 5 lot scheme or

•

one of the proprietors where an order of the State Administrative Tribunal under s.103C or 103M is attached.

The Notice of Resolution must be lodged at Landgate so that the change is properly recorded on the strata plan. On registration of the Notice of Resolution, any registered encumbrances or caveats lodged against a strata lot shall, by operation of law, be deemed to extend over that part of the common property that now forms part of the lot. Landgate’s web sites provides further assistance in the preparation of the Notice of Resolution in the form of a how-to kit entitled How to Guides for Single Tier strata scheme merger and conversion options- Conversion Option 1: Ownership of Buildings.

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6.5.3

Automatic Merger of Buildings that are Common Property

6.5.3.1

General Information

For single tier strata schemes with 2 to 5 lots, the buildings (common property) shown on the strata plan, under s.21M of the STA as amended, automatically converted to individual ownership (i.e. became included into each respective lot) on: •

20 July 1997 for strata plans registered before 20 January 1997 or

•

6 months after the registration of the strata plan, if it was registered between 20 January 1997 and 31 December 1997

unless any proprietor within the strata scheme lodged an objection with Landgate. 

Note:

For a definition of what constitutes a single tier strata scheme see paragraph 6.5.1 of this Manual. Where the automatic merger of buildings that are common property applied to a strata scheme, the Registrar of Titles recorded on the strata plan that s.21M of the STA applies to that scheme and amended the strata plan accordingly. If no objection was lodged and an automatic merger of a building has taken place, it is possible, in exceptional circumstances, to have the buildings revert to common property by an order of the State Administrative Tribunal (see s.103P of the STA as amended).

6.5.3.2

Objection by a proprietor to automatic merger of buildings

A proprietor of a lot was able to lodge with the Registrar of Titles an objection under s.21O to the automatic merger of a building. An objection to the automatic merger was lodged using a Form 31 of the Strata Titles General Regulations 1996 prior to the date the automatic merger was to take place. Where an objection was lodged, the Registrar of Titles made a notation on the relevant strata plan and a copy of the objection was mailed to every other proprietor in the scheme. The lodgement of an objection prevented the automatic merger of a building from taking place. 

Note:

Where an objection was lodged, the option of having a merger by resolution, of buildings, is still available (see paragraph 6.5.2).

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6.5.4

Merger by Resolution of Land that is Common Property

This paragraph needs to be read in conjunction with what is contained in paragraph 6.5.1.

6.5.4.1

General Information

A strata company of a single tier strata scheme may by resolution without dissent (or unanimous resolution in a two-lot scheme) agree that the strata plan be amended in one or more of the following ways: •

to reflect any extension or alteration of a building shown on the strata plan

•

to include a building not shown on the strata plan and / or

•

to merge land that is common property into a lot.

The purpose of the above mentioned amendments is to give to the registered proprietors in a strata scheme individual ownership of all of the buildings and land that they occupy and to update the buildings shown on the strata plan. 

Note: If there is a dissenting vote the strata company (or other owner in a two-lot scheme) can apply to the State Administrative Tribunal for an order that the resolution has been passed.

If the resolution is to include buildings not shown on a strata plan or to reflect any extensions or alterations to a building shown on a strata plan, there must have been at the time that the resolution was passed: •

a building licence under s.374 of the Local Government (Miscellaneous Provisions) Act 1960 or a building permit under the Building Act 2011 and

•

the approval for the building by the strata company or all of the proprietors of the lots in the scheme.

If the resolution is to merge land that is common property into a lot, the resolution is to specify: •

any easement that is to be created in the terms of s.21W of the STA as amended (see below under the sub-heading Easements Created under Section 21W) and

•

the horizontal boundaries of the land in the lots.

A Notice of Resolution of Merger of Land (in this paragraph referred to as the Notice of Resolution) must be set out in the manner of Form 32 of the STGR and may be signed by either: •

the Strata Company with the common seal affixed

•

all of the registered proprietors in a 2 to 5 lot scheme or

•

one of the proprietors where an order of the State Administrative Tribunal under s.103C or 103M is attached.

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6.5.4.2

Documents to be lodged with the Notice of Resolution

The Notice of Resolution is to be accompanied by the following documents: •

A copy of any relevant order under s.103C or 103M of the STA certified by the State Administrative Tribunal as being a true copy (if applicable).

•

A sketch plan showing in the prescribed manner (see Regulations 4, 5(a) and 14L) how the strata plan is to be amended.

•

A certificate in the manner of Form 35 of the STGR given by a licensed surveyor in accordance with s.21U of the STA as amended whenever a sketch plan is required.

•

A certificate in the manner of Form 36 of the STGR given by a licensed valuer in accordance with s.14 (2) of the STA as amended.

•

An amended schedule of unit entitlement attached to the licensed valuer’s certificate (Form 36) if any change in unit entitlement has occurred.

•

Where the unit entitlement of a lot is to be decreased, the written consent of every person who has a registered interest or is a caveator in respect of that lot must be obtained.

•

Every transfer or other document that is necessary to give effect to the Notice of Resolution must be lodged for registration with the Notice of Resolution.



Note: A Disposition on Merger of Land (in this paragraph referred to as the Disposition Statement) may be filed instead of the transfers and other documents that are necessary to give effect to the Notice of Resolution (see below).

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6.5.4.3

Disposition Statement

Section 21V (2) of the STA as amended makes provision for a Disposition Statement to be filed with the Notice of Resolution. The purpose of the Disposition Statement is to: •

merge the common property or portions of the common property with a strata lot or lots without the need to lodge transfers for the portions involved and

•

redefine the extent of existing encumbrances registered or caveats lodged against a lot that has had its area increased without the need to lodge new documentation.

No registration fees are required for filing a Disposition Statement and no stamp duty is payable unless the Consideration panel in the Disposition Statement shows that one or more registered proprietors have paid money or given other consideration to acquire ownership of more of the common property than they previously occupied. Regulation 21A sets out the abbreviated procedure for a Notice of Resolution through the use of a Disposition Statement. A Disposition Statement must be set out in the manner of Form 39 of the STGR and must be: •

signed by two members of the council using the common seal and the registered proprietors of any lots that are directly affected by the Notice of Resolution or signed by all the registered proprietors in a 2 to 5 lot scheme and

•

consented to by every person (other than a proprietor) who has a registered interest in or is a caveator in respect of any lots in the scheme in respect of which the unit entitlement is being decreased.

The above mentioned consents can be endorsed in the appropriate section of the Disposition Statement or in a letter attached to it. Consents given by letter must clearly describe the nature of the consent. 

Note: The Disposition Statement may not effect: - a change of the registered proprietor of a lot on the strata plan, from the registered proprietor of that lot on the plan as previously registered - the complete release, removal or discharge of an encumbrance or caveat or the release, removal or discharge of an entire interest in an encumbrance - the registration of any registered interest (other than as registered proprietor) or the lodgement of a caveat, in respect of a lot or the common property if a part of that lot or the common property was not previously subject to that registered interest or caveat or - a change of any person having a registered interest in any encumbrance registered or the proprietor of an interest the subject of any caveat lodged, in respect of a lot or the common property. In these circumstances appropriate documents must be lodged.

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6.5.4.4

Easements created under Section 21W of the STA

The sketch plan referred to above may provide for easements relating to motor vehicle access, parking or turning. This easement is created under s.5D of the STA, as amended, as if the sketch plan were a surveystrata plan with the modification that the easement will take effect on the registration of the Notice of Resolution. The written consent of a person having a registered interest in, or is a caveator in respect of any lot that would be burdened by the easement is desirable and may be lodged. Section 5F of the STA as amended, applies to the discharge or variation of these easements with the modification that the approval of the Local Government (not the Western Australian Planning Commission) is required. 

Note: For more information on the creation, discharge or variation of these easements see paragraphs 7.1.9 and 7.2.8.

6.5.4.5

Effect of registration of the Notice of Resolution

The Notice of Resolution must be lodged at Landgate so that the changes are properly recorded on the strata plan. On registration of the Notice of Resolution: •

If any land that merges into a lot was subject to any right or privilege granted under by-law 3 (f) contained in Part 1 of the Schedule to the Strata Titles Act 1966 or to an exclusive use by-law referred to in s.42 (8) of the STA as amended, that right or privilege or exclusive use by-law ceases to be applicable to the land that has merged.

•

A lot that has been enlarged or diminished as a result of the merger of land is subject to any encumbrance that was registered or caveat that was lodged against that lot. and

•

Each lot or part of a lot that becomes common property vests in the proprietors to be held by them as tenants in common in shares proportional to the unit entitlement of their respective lots, and that proprietor’s share in the common property is subject to any encumbrance registered or caveat lodged against his lot.

Landgate’s web sites provides further assistance in the preparation of the Notice of Resolution in the form of a how-to kit entitled How to Guides for Single Tier strata scheme merger and conversion options- Conversion Option 2: Ownership of Land.

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6.5.5

Merger by Resolution of Buildings and Land That Are Common Property

This paragraph needs to be read in conjunction with what is contained in paragraphs 6.5.1. 6.5.2 and 6.5.4. A strata company of a single tier strata scheme may by resolution without dissent (or unanimous resolution in a two-lot scheme) agree to a merger of both buildings and land that are common property. A Notice of Resolution of Merger of Buildings and Land (in this paragraph referred to as the Notice of Resolution) must be set out in the manner of Form 33 of the STGR. The requirements for registration of the Notice of Resolution are exactly the same as the requirements for a Merger by Resolution of Buildings that are Common Property and for a Merger by Resolution of Land that is Common Property as is outlined in paragraphs 6.5.2 and 6.5.4. Landgate’s web sites provides further assistance in the preparation of the Notice of Resolution in the form of a how-to kit entitled How to Guides for Single Tier strata scheme merger and conversion options- Conversion Option 1 & 2: Ownership of Buildings and Land.

6.5.6

Conversion of Strata Schemes to Survey-Strata Schemes

This paragraph needs to be read in conjunction with what is contained in paragraph 6.5.1.

6.5.6.1

General information

A strata company of a single tier strata scheme may by unanimous resolution resolve that a strata scheme be converted to a survey-strata scheme. 

Note: It is not possible to increase the number of lots (with the exception those lots designated as common property) in a strata scheme by the process of conversion to survey-strata.

The resolution is to specify: •

any easement that is to be created in the terms of s.31G of the STA as amended (see paragraph 6.5.6.4 Easements Created under Section 31G) and

•

the height and/or depth limits of the lots, if any.

A Notice of Resolution of Conversion to a Survey-Strata Scheme (in this paragraph referred to as the Notice of Resolution ) must be set out in the manner of Form 37 of the STGR (in this paragraph referred to as the STGR) and may be signed by: •

the Strata Company with the common seal affixed or

•

all of the registered proprietors in a 2 to 5 lot scheme.

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6.5.6.2

Documents to be lodged with the Notice of Resolution

The Notice of Resolution is to be accompanied by the following documents: •

A survey-strata plan in respect of the parcel that has been prepared by a licensed surveyor.

•

A certificate in the manner of Form 38 of the STGR given by a licensed surveyor in accordance with s.31F of the STA as amended.

•

A certificate in the manner of Form 3 of the STGR given by a licensed valuer in accordance with s.14 (2) of the STA as amended.

•

The written consent to the proposed schedule of unit entitlement must be obtained from every person (other than a proprietor) who has a registered interest or is a caveator in respect of any lot in the scheme. Where a duplicate certificate of title is produced by a registered mortgagee for the purpose of registering the Notice of Resolution, the separate written consent of that mortgagee will not be necessary.

•

Every transfer or other document that is necessary to give effect to the Notice of Resolution must be lodged for registration with the Notice of Resolution.



Note: A Disposition on Conversion to a Survey-Strata Scheme (in this paragraph referred to as the Disposition Statement) may be filed instead of the transfers and other documents that are necessary to give effect to the Notice of Resolution (see below).

6.5.6.3

Disposition Statement

Section 31H (2) of the STA as amended, makes provision for a Disposition Statement to be filed with the Notice of Resolution. The purpose of the Disposition Statement is to: •

effect boundary changes to the lots and common property without the need to lodge transfers for the portions involved

•

partially remove existing encumbrances registered or caveats lodged against the portion of a lot or common property that is to be included in another lot without the need to lodge the usual documentation and

•

redefine the extent of existing encumbrances registered or caveats lodged against a lot that has had its area changed without the need to lodge new documentation.

No registration fees are required for filing a Disposition Statement and no stamp duty is payable unless the Consideration Panel in the Disposition Statement shows that one or more registered proprietors have paid money or given other consideration to acquire ownership of more land than they previously owned or occupied.

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Regulation 21A of the STGA sets out the abbreviated procedure for a Notice of Resolution through the use of a Disposition Statement. A Disposition Statement must be set out in the manner of Form 39 of the STGR and must be: •

signed by two members of the council using the common seal and the registered proprietors of any lots that are directly affected by the Notice of Resolution or signed by all the registered proprietors in a 2 to 5 lot scheme and

•

consented to by every person (other than a proprietor) who has a registered interest in or is a caveator in respect of any lot in the scheme.

The above mentioned consents can be endorsed in the appropriate section of the Disposition Statement or in a letter attached to it. Consents given by letter must clearly describe the nature of the consent. 

Note: The Disposition Statement may not effect: - a change of the registered proprietor of a lot on the survey-strata plan, from the registered proprietor of that lot on the plan as previously registered - the complete release, removal or discharge of an encumbrance or caveat or the release, removal or discharge of an entire interest in an encumbrance - the registration of any registered interest (other than as registered proprietor) or the lodgement of a caveat, in respect of a lot or the common property if a part of that lot or the common property was not previously subject to that registered interest or caveat or - a change of any person having a registered interest in any encumbrance registered or the proprietor of an interest the subject of any caveat lodged, in respect of a lot or the common property. In these circumstances appropriate documents must be lodged.

6.5.6.4

Easements created under Section 31G of the STA

The survey-strata plan referred to above may provide for easements to be created under s.5D of the STA as amended, which will take effect on the registration of the Notice of Resolution. The written consent of a person having a registered interest in, or is a caveator in respect of any lot that would be burdened by the easement is desirable and may be lodged. Section 5Fas of the STA as amended, applies to the discharge or variation of these easements. 

Note: For more information on the creation, discharge or variation of these easements see paragraphs 7.1.9 and 7.2.8.

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6.5.6.5

Effect of registration of the Notice of Resolution

The Notice of Resolution must be lodged at Landgate so that the changes are properly recorded on the strata plan. On registration of the Notice of Resolution, all of the following applies: •

the scheme ceases to be a strata scheme and becomes registered as a survey-strata scheme

•

if any area of land was subject to any right or privilege granted under by-law 3 (f) contained in Part 1 of the Schedule to the Strata Titles Act 1966 or to an exclusive use by-law referred to in s.42 (8) of the STA as amended, that right or privilege or exclusive use by-law ceases to be applicable to that area of land

•

each survey-strata lot is subject to any encumbrance that was registered or caveat that was lodged against that lot prior to the conversion

•

each lot or part of a lot that becomes common property vests in the proprietors to be held by them as tenants in common in shares proportional to the unit entitlement of their respective lots, and that proprietor’s share in the common property is subject to any encumbrance registered or caveat lodged against his lot.

The strata company continues to exist upon the conversion to a survey-strata scheme. All of the contracts that the strata company had entered into before the conversion to survey-strata are still valid. Landgate’s web sites provides further assistance in the preparation of the Notice of Resolution in the form of a how-to kit entitled How to Guides for Single Tier strata scheme merger and conversion options- Conversion Option 3: Converting Survey-Strata.

6.6

Enlargement of the Common Property

6.6.1

General

The area of common property/common property lot(s) can be increased either by: •

conversion of one or more strata/survey-strata lots by a transfer to the Strata Company (see paragraph 6.6.2 below)

•

the purchase or lease of adjoining land by the Strata Company (see paragraph 6.6.3)

•

inclusion of a closed public road or other unallocated crown land under s.87 of the Land Administration Act 1997 (LAA) (see paragraph 6.6.4)

•

inclusion of a closed private road or right of way under s.52 and s.87 of the LAA (see paragraph 6.6.5).

6.6.2

By Conversion of a Strata/Survey-Strata Lot

The transfer of a strata/survey-strata lot with the intention of increasing the area of the common property must have filed with it at the time of registration: •

a certificate from the Local Government in the manner of Form 9 of the STGR

•

a certificate from the Strata Company in manner of Form 10 of the STGR and

•

the duplicate certificate of title (if any) for the strata/survey-strata lot.

Any lot(s) being converted to common property must be transferred free of any encumbrances, caveats or other interests. Upon the registration of the Transfer, the share of a proprietor in the common property (as increased by the Transfer) shall by operation of law, be deemed to be subject to any pre-existing encumbrances registered or caveats lodged against their lot.

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6.6.3

By Purchase or Lease of Adjoining Land

6.6.3.1

Land purchased

Land purchased by the Strata Company to increase the area of the common property/common property lots must be free of encumbrances (including caveats) and be added by survey to the original parcel. The transfer must have filed with it at the time of registration: •

a certificate from the Strata Company in the manner of Form 13 of the STGR, and

•

the duplicate certificate of title (if any) for the land being transferred.



Note: Where the land purchased (the adjoining land) is only part of the land comprised in a title, a Form A6 Application for a New / Balance Title for balance title must be lodged with the above mentioned transfer unless the Plan incorporates all the land in the relevant title (see Regulation 7 (2) of the STGR).

When the land is transferred to the Strata Company, the strata/survey-strata plan is amended to include that land as common property. This involves the lodgement of a replacement sheet to depict the scheme after the land has been included.

6.6.3.2

Land leased

Land leased by the Strata Company to increase the area of the common property/common property lots does not need to be included in the common property by survey. The lease (or a transfer of lease or sub-lease) must be free of encumbrances and must have filed with it at the time of registration: •

a certificate from the Strata Company in the manner of Form 13 of the STGR, and

•

the lease or sub-lease whichever is appropriate.

When land is leased to the Strata Company, an endorsement is made in the Schedule of Dealings (Form 8) for the strata/survey-strata plan. The Strata Company is responsible for all payments and performance of duties due under the lease. A strata company may, pursuant to a resolution without dissent (or unanimous resolution, in the case of a two-lot scheme) and with the concurrence of the lessor, surrender the lease. 

Note: Upon the registration of the Transfer or lease, the share of a proprietor in the common property (as increased by the Transfer or Lease) shall by operation of law, be deemed to be subject to any pre-existing encumbrances registered or caveats lodged against their lot.

6.6.4

By Inclusion of a Closed Public Road or Other Unallocated Crown Land under Section 87 of the LAA

When an application to include a closed public road or other unallocated crown land into a strata/survey-strata plan is lodged, the strata/survey-strata plan is amended to include it as common property. The application, made in the name of the strata company must include: •

Section 87- Amalgamation (Ministerial) Order under the LAA (prepared by the Department of Lands)

•

a certificate in the manner of Form 13 as set out in the STGR, as amended and

•

a replacement sheet to be added to the plan depicting the scheme after the land has been included.

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6.6.5

By Inclusion of a Closed Private Road or Right of Way under Section 297A of the Local Government (Miscellaneous Provisions) Act 1960

When an application to include a closed private road or right of way into a strata/survey-strata plan is lodged, the strata/survey-strata plan is amended to include it as common property. The application, made in the name of the strata company must include a certificate in the manner of Form 13 as set out in the STGR as amended. This involves the lodgement of a replacement sheet to depict the scheme after the land has been included. 

Note: Section 297A of the Local Government (Miscellaneous Provisions) Act 1960 has been repealed by the introduction of the LAA (see s.67 of the LAA as amended). Any action taken under s.297A of the Local Government (Miscellaneous Provisions) Act 1960 and completed before the commencement of the LAA is to be treated as if it was done under s.52 of the LAA, as amended. Any action taken under s.297A but not completed before the commencement of the LAA may be completed as if that section had not been repealed and is on completion to be treated as if it had been done under s.52 of the LAA.

6.7

Sale or Lease of Part of the Common Property

6.7.1

Sale of Part of the Common Property

The proprietors of a strata/survey-strata plan may sell part of the common property or a common property lot (s.19 of the STA as amended). The portion to be sold must be the whole or part of the land comprised in an approved survey. As an example of how to prepare the transfer, the land description and transferor panel would contain the following information: Land: Portion of Swan Location 16 and being all that part of the common property in Strata Plan 6000 as is comprised in Diagram 61616 Transferor: The Owners of 18 Hay Street, Perth, Strata Plan 6000 of 18 Hay Street, Perth. The transfer must be accompanied by a Form 14 Certificate of Strata Company from the STGR, and sealed by the Strata Company in the same way as the certificate. Where the common property/common property lot being transferred comprises only part of the land in a survey, the transfer must be accompanied by: •

an application for a new title the subject of that survey (using Form A6 Application for a New or Balance Title) and

•

the duplicate certificate of title (if any) for the other land owned by the applicant.

Where the common property/common property lot being transferred is the whole of the land in a survey, an application Form A6 is not required to accompany the transfer. As a survey is required for the portion transferred, the consents required by s.19(10) of the STA as amended, are deemed to have been obtained when the survey has been approved. A replacement sheet will also be required to depict what remains in the scheme after the land is transferred out. Common property/common property lot(s) may also be transferred to the proprietor of a lot in the strata/survey-strata scheme as part of a re-subdivision (see paragraph 6.8.5).

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6.7.2

Lease of Part of The Common Property

The proprietors of a strata/survey-strata plan may lease part of the common property or sub-lease land leased to increase the common property. A lease for a period greater than three years may be registered on the strata/survey-strata plan. On registration, such a lease must: •

show the strata company as lessor

•

be accompanied by a certificate in the manner of Form 14 from the STGR

•

be accompanied by the consent of the Local Government and

•

where the term (including extensions) exceeds the relevant period set out in regulation 38 of the STGR, be endorsed with the consent of the Western Australian Planning Commission.

A sub-lease of land leased to increase the area of the common property may not be entered into by the Strata Company if the terms of the original lease prevent it. Registration of the sub-lease is effected in a similar manner to that shown for a lease above.

6.8

Modifications to an Existing Strata/Survey-Strata Scheme

6.8.1

General

A registered strata/survey-strata scheme may be modified by the lodgement of any of the applications particularised in the following paragraphs. On a re-subdivision or consolidation, the new survey and certificate sheets are bound with the original plan and the details on the original plan are amended to reflect the change. Other applications are recorded by endorsing a memorandum of the nature of the application on the schedules contained in the strata/survey-strata plan. The strata/survey-strata plan then shows the current state of the Register and also the complete history of activities on the plan from its original registration.

6.8.2

Change of Name

A Strata Company may by special resolution (or unanimous resolution in the case of a two-lot scheme) and with the approval of the Registrar of Titles, change the name of the scheme. The change takes effect from the registration of the change at Landgate. Registration is achieved by an application from the Strata Company (in its old name) on a Form A5 accompanied by a certificate in the manner of Form 17 from the STGR. Alternatively the Form 17 certificate can be reproduced on the inside of a document Form B4 Cover Sheet. The duplicate certificates of title (if any) for the strata lots are not required to be lodged with the application. The Common Seal used on an application of this kind should show the old name of the Strata Company.

6.8.3

Change of Address for Service of Notices

For strata/survey-strata plans registered after the 14th April 1996, the address for service of notices to a Strata Company is the address of the parcel that is shown on the strata/survey-strata plan at the time of lodgement. For strata plans registered prior to the 14th April 1996, the address for service of notices to the strata company was shown on the plan at the time of registration. The address for service of notices may be changed by lodging on a Form B4, a Certificate of Change of Address, set out in the manner of Form 16 from the STGR at Landgate. Refer to paragraph 1.7.5 for Landgate’s address requirements. A notation of the change of address will be endorsed on the strata/survey-strata plan in its Schedule of Dealings.

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6.8.4

Re-Allocation of Unit Entitlement on a Strata/Survey-Strata Plan

The unit entitlement on: •

A strata plan should be a reflection of the capital value of the lot as a proportion of the total capital value of all the lots.

•

A survey-strata plan should be a reflection of the site value of the lot as a proportion of the total site value of all the lots.

The meaning of the terms capital value and site value referred to above, are contained in the Valuation of Land Act 1978. Where any unit entitlement becomes more than 5% out of proportion to the relative value of the lot, the strata company can, if it has passed a resolution without dissent (or a unanimous resolution in the case of a two-lot scheme), apply to rectify the matter by registering a new schedule of unit entitlement. The application by the Strata Company on a Form B2, should be accompanied by all of the following: •

A certificate from the Strata Company in the manner of Form 11 from the STGR.

•

The written consent of any person or corporation (other than the registered proprietor) with a registered interest in a lot affected by the change of unit entitlement. A caveator is deemed to have a registered interest in this instance (s.15(5) of the STA as amended).

•

A certificate from a licensed valuer, substantially in the manner of Form 3 from the Strata Title General Regulations 1996.

•

The duplicate certificates of title (if any) if the strata titles were created and registered under the Strata Titles Act 1966 (see paragraph 6.3.7).

Upon the registration of an amended schedule of unit entitlement, the amended share of a proprietor in the common property shall by operation of law, be deemed to be subject to any pre-existing encumbrances registered or caveats lodged against their lot. A proprietor of a lot, or a Strata Company, may apply to the State Administrative Tribunal (SAT) to have the unit entitlement on a strata/survey-strata plan amended. The amendments are effected by registering the Order of the SAT at Landgate (see paragraph 6.12.6).

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6.8.5

Re-Subdivision of Strata/Survey-Strata Plans

Strata/survey-strata lots and common property/common property lots or a combination of both, may by a unanimous resolution of the Strata Company be re-subdivided by lodging an amended strata/survey-strata plan (called a strata/survey-strata plan of re-subdivision). The plan sheets containing the amendments and the appropriate consents should be lodged by the surveyor at Landgate. 

Note: A strata plan may only be re-subdivided by a strata plan of re-subdivision and a survey-strata plan may only be re-subdivided by a survey-strata plan of re-subdivision.

6.8.5.1

Registration

An application to register the plan of re-subdivision is required. This is a Form 20, as set out in the STGR, which may be typed on a Form B2 or B4 Cover Sheet. The application and any transfers required to give effect to the re-subdivision may be lodged simultaneously with the new plan or at any time thereafter. A separate Form 14, is not required, as the certification by the strata company to the transfer or acquisition of common property is set out in the application to register the re-subdivision. The portion being transferred to enlarge an existing lot must be free of encumbrances and caveats and therefore they will need to be removed as to the extent necessary. A disposition statement may be filed with the application to register a strata/survey-strata plan of resubdivision (see paragraph 6.4.6). If a disposition statement is filed, the transfers required to give effect to the re-subdivision are unnecessary and the partial removal of encumbrances and caveats will not be required. Where a strata/survey-strata lot has been enlarged or diminished by the process of re-subdivision, any encumbrances and caveats affecting the lot will, automatically by operation of law, be adjusted to the new dimensions of the lot. The duplicate certificates of title (if any) for the land affected by the re-subdivision must be produced.

6.8.5.2

Consents

Unless the plan of re-subdivision sufficiently complies with what is disclosed in a registered Management Statement or By-law incorporating a plan of re-subdivision and change of unit entitlement, the following consents are required: •

The written consent of every person who has a registered interest (other than the registered proprietor) or is a caveator in any lot proposed to be affected by the re-subdivision.

•

The written consent of every person who has a registered interest (other than the registered proprietor) or is a caveator in any lot that will have a change in its unit entitlement due to the resubdivision.

The above mentioned consents can be endorsed on the application or in a letter attached to it. Consents given by letter must clearly describe the nature of the consent: “Re-subdivision of lot 10 on Strata Plan . . . . . . to include common property as depicted on plan of re-subdivision signed by survey or on. . . . . . . . . . . “ or “The alteration of the unit entitlement of lot . . . . . on Strata Plan . . . . . . . from 3/5 to 4/5).” 

Note: While a plan of re-subdivision can be lodged in accordance with the terms of a registered management statement, it is not possible to file a management statement with a strata/surveystrata plan of re-subdivision.

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6.8.6

Consolidation of Two or More Strata/Survey-Strata Lots

The consolidation of strata/survey-strata lots (not being all the lots) is permitted by s.9 of the STA as amended. Consolidation of two or more lots is achieved by: 1.

Lodging a strata plan of consolidation endorsed with: o

a certificate of the Local Government (Form 18 of the STGR) and

o

unless exempt, the consent of the Western Australian Planning Commission (Form 26 STGR).

or 2.

Lodging a survey-strata plan of consolidation endorsed with the consent of the Western Australian Planning Commission. and

3.

Lodging a Form A6 Application for New or Balance Title by the registered proprietor of the lots accompanied by: o

a letter or an endorsement on the document stating the full name, address and facsimile machine number of the Local Government, Water and Sewerage Authorities to which the Registrar of Titles is required to deliver a copy of the amended strata/survey-strata plan

o

the relevant duplicate certificates of title (if any) and

o

the written consent of any person or corporation who has a registered interest in the new lot.

The following office practice should be noted: •

Any encumbrances on lots so consolidated will be brought forward on to the title. Where the encumbrance is a mortgage previously over only one of the consolidated lots it will be brought forward as to portion only of the new lot. Mortgagees may have difficulty in exercising their power of sale in such circumstances. Where each original lot was encumbered by a different mortgage a similar problem will arise.

•

The endorsement of a mortgagee’s consent to the consolidation will be taken as an acknowledgment of, and consent to, the new state of the Register.

•

A caveat lodged by virtue of an unregistered TLA document must be withdrawn before the application for consolidation is lodged. and

•

The unit entitlement for the new lot is the sum of the unit entitlement of the old lots.



Note: Common property cannot be incorporated into a consolidation of two or more strata lots.

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6.8.7

Addition, Variation or Removal of Restriction as to Use

A strata/survey-strata plan that is lodged for registration may create a legally binding restriction as to the use to which the parcel or part of the parcel may be put. This is achieved by an endorsement on the plan that delineates the area or space affected and that makes specific reference to s.6 (1) of the STA as amended. Where a strata/survey-strata plan has been registered without any restriction as to use, the plan may be amended to restrict the use to which the parcel or part of the parcel may be put. A restriction that has been endorsed on a registered strata/survey-strata plan may be varied or removed. The addition, variation or removal of a restriction requires a resolution without dissent (or a unanimous resolution in the case of a two-lot scheme) from the Strata Company and it will take effect from the date of registration of the resolution at Landgate. Registration is achieved by the lodgement of an application Form A5 that is accompanied by: •

a certificate from the Strata Company in the manner of Form 19 from the STGR (with a sketch attached, if necessary, to define the portion of the parcel affected by the addition or variation of a restriction as to use)

•

the written consent of the Local Government to the resolution (not required for survey-strata plans) and

•

unless exempted, the written consent of the Western Australian Planning Commission to the resolution.



Note: A restriction as to use may be included in a management statement (see paragraph 6.4.7). A restriction may limit the use of strata/survey-strata lots by requiring that each lot is to be occupied only, or predominantly by retired persons and their spouse (see s.6A of the STA as amended).

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6.9

Variation or Termination of a Strata Scheme

6.9.1

Variation Upon Damage or Destruction (section 28 of the STA)

Where a building is damaged or destroyed, the Supreme Court may, on application by either of the Strata Company, a unit owner or a registered mortgagee of a lot, make an Order varying the existing scheme. On receipt of an application Form A5 with the Order, the Registrar of Titles will make the appropriate amendments on the strata plan. Should a strata lot be cancelled the appropriate duplicate certificate of title (if any) must be produced. For a variation upon resumption (now called Taking) of part of the land in the parcel, see s.29 and s.29B of the STA as amended.

6.9.2

Termination by Unanimous Resolution (Section 30 of the STA)

The registered proprietors may resolve by unanimous resolution that the strata scheme be terminated. Where the parcel is not to be transferred, an application Form A5 signed by the Strata Company is required and must be supported by: •

a notification of termination of a scheme (Form 15 of the STGR) and

•

the (unencumbered) duplicate certificate of titles (if any) for the strata lots.

Landgate will endorse the termination details on the strata plan and a title will be created and registered for the parcel, in the name of all the proprietors as tenants in common in the undivided shares proportional to the unit entitlements of their respective lots. Where the whole of the parcel is to be transferred, the lot proprietors may by unanimous resolution direct the Strata Company to execute the transfer. The transfer is prepared in the name of the strata company as the transferor and must be supported by: •

a notification of termination of a scheme (Form 15 of the STGR)

•

a certificate of the strata company (Form 14 of the STGR) and

•


Upon registration of the transfer, the strata plan is endorsed as terminated and a new title is created and registered in the name of the transferee. The requirement that titles be unencumbered may be waived if the notification of termination of a scheme is accompanied by written consents that clearly acknowledge that any mortgagee’s powers of sale would be, or other encumbrancer’s rights may be, ineffective and requesting the Registrar of Titles to register the notification despite that fact. The consents are to be witnessed by a solicitor, who is to state in writing on the consent that he/she acts for the mortgagee/encumbrancer and has advised the mortgagee/encumbrancer as to the effect of the termination of the strata scheme on the mortgagee’s/encumbrancer’s powers. One of the effects of termination would be that when a strata scheme is terminated, a mortgagee of a strata lot would be unable to exercise power of sale over the land the subject of the mortgage as the land would then be only an undefined part of the parcel held by all registered proprietors of the parcel.

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6.9.3

Termination for the Purpose of Creating a New Strata/Survey-Strata Scheme – Where Encumbrances on Lots are to be Carried Forward

In such cases, a solicitor’s statement endorsed on consents will not be necessary, provided that the notification for termination of a strata plan is: 1.

Accompanied by: o

written consent by mortgagees and other encumbrances that clearly acknowledge that any mortgagee’s power of sale would be, or other encumbrancer’s rights may be, ineffective following termination of the strata plan until registration of a new strata/surveystrata plan

o

written requests by mortgagees and other encumbrancers that the Registrar of Titles register the termination of the strata scheme notwithstanding that fact, provided that it is immediately followed by registration of a strata/survey-strata plan (specified) providing for encumbrances (specified) to be registered against a lot (specified) on the new a strata/survey-strata plan and

o

2.

a disposition statement providing that what were formerly encumbrances against individual lots on the former strata plan (then encumbrances against the title for the parcel on termination of the strata plan) become encumbrances against individual lots on the new strata/survey-strata plan.

Immediately followed by, as part of the same dealing, an application for registration of the new strata/survey-strata plan which is accompanied by a disposition statement that complies with the request.

The other requirements outlined above in paragraph 6.9.2 - Termination by Unanimous Resolution (Section 30) are to be followed.

6.9.4

Termination by the Taking of the Whole of the Parcel (Section 29C of the STA)

The Minister may in a Taking Order declare that the strata scheme is terminated. The Registrar of Titles will register the land in the parcel in the name of the State of Western Australia or other authority in which it has vested under the Taking Order.

6.9.5

Termination by Order of District Court (Section 31 of the STA)

The District Court may make an order terminating a strata scheme. If an Order is made terminating the scheme, the strata company must register the Order by the lodgement of an application Form A5 signed by the strata company that is supported by: •

the Order of the District Court and

•


Landgate will endorse the termination details on the strata plan and a title will be created and registered for the parcel, in the name of all the proprietors as tenants in common in the undivided shares proportional to the unit entitlements of their respective lots. Where the whole or part of the parcel is to be transferred, the requirements as outlined above in paragraph 6.9.2 - Termination by Unanimous Resolution (Section 30) are to be followed.

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6.10

Termination of a Survey-Strata Scheme

6.10.1

Termination by Unanimous Resolution (Section 30A of the STA)

The registered proprietors may resolve by unanimous resolution that the survey-strata scheme be terminated. An application Form A5 signed by the Strata Company is required and must be supported by: •

a notification of termination of a scheme (Form 15 from the STGR)

•

a certificate by the Western Australian Planning Commission stating that it consents to the termination of the survey-strata scheme, unless the scheme is exempt from this requirement under the STGR and

•

the (unencumbered) duplicate certificate of titles (if any) for the survey-strata lots.

Simultaneously with the lodgement of the application to terminate the scheme, the lot proprietors may, if a unanimous resolution has been passed, lodge a transfer of common property that is executed by the strata company. The transfer is prepared in the name of the strata company as the transferor and must be supported by a certificate of the strata company (Form 14 of the STGR).

6.10.2

Termination by the Taking of the Whole of the Parcel (Section 29C of the STA)

The Minister may in a Taking Order declare that the survey-strata scheme is terminated. The Registrar of Titles will register the land in the parcel in the name of the State of Western Australia or other authority in which it has vested under the Taking Order. 

Note: For a variation of survey-strata scheme upon the taking of part of the land in the parcel, see section 29A of the STA as amended.

6.10.3

Termination by Order of District Court (Section 31 of the STA)

The District Court may make an order terminating a survey-strata scheme. If an Order is made terminating the scheme, the strata company must register the Order by the lodgement of an application Form A5 signed by the strata company that is supported by: •

the Order of the District Court and

•

the (unencumbered) duplicate certificate of titles (if any) for the survey-strata lots.

Where common property is to be transferred by the strata company, the requirements as outlined above in paragraph 6.10.1 - Termination by Unanimous Resolution (Section 30A) are to be followed.

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6.11

Amendment of By-Laws

6.11.1

General

A strata company may make by-laws that are not inconsistent with the STA as amended for: •

its corporate affairs

•

any of the matters specified in schedule 2A of the STA as amended

•

any of the matters set out in s.42A and 42B of the STA as amended

•

the establishment of a fund for administrative purposes in the case of a two-lot scheme (see s.36A (3) of the STA as amended)

•

the exclusion of certain provisions contained in s.35, 35A and 36 of the STA as amended in the case of 3, 4 or 5 lot schemes (see s.36B (1) of the STA as amended) and

•

other matters relating to the management, control, use and enjoyment of the lots and any common property.

The by-laws set out in Schedules 1 and 2 to the STA as amended are deemed to be the by-laws of a strata company registered after 14th April 1996. These By-laws may be amended, repealed or added to: •

by a resolution without dissent (or unanimous resolution in the case of a two-lot scheme) for Schedule 1 by-laws

•

by a special resolution, for Schedule 2 by-laws or

•

in accordance with any order of a court, referee or any written law.

By-laws previously contained in the 1966 and 1985 legislation continue in existence until the 14th April, 1997 (the Termination Date). After the Termination Date, the by-laws contained in Schedules 1 and 2 of the STA as amended will apply to all strata schemes. Any by-laws already registered on strata plans before 14th April 1996, or any by-laws added to or amended and which are registered on the strata plan before the Termination Date (which are not inconsistent with the provisions of the STA as amended) will be saved and will become part of either the Schedule 1 or 2 by-laws that will automatically apply after the Termination Date. A by-law can be made by a strata company at the request of the Local Government or a public authority and may be expressed to require their consent to an amendment or repeal of the by-law. No by-law, amendment or repeal of a by-law may operate so as to restrict the dealing with any lot by a proprietor or modify or destroy any easement implied under the STA as amended. The amendment, repeal or addition to any by-laws contained in Schedules 1 and 2 have no effect until notification of the change is made to the Registrar of Titles and endorsed on the strata plan. 

Note: Definitions of a resolution without dissent, special resolution and unanimous resolution are outlined in s.3(1), 3AC, 3B, 3CA and 3D of the STA as amended.

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6.11.2

Registration of an Amendment of By-Laws

Registration is achieved by lodging a notification of change of by-laws at Landgate. The notification of change of by-laws must be set out substantially in the manner of Form 21 of the STGR, which may be typed on ordinary sheets of white A4 size paper attached to a Form B4 Cover Sheet or typed on a Form B4 with additional Form B1 pages, if required. Amendments to by-laws (where the resolution was passed after 14th April 1996) must be registered within 3 months of the resolution. Resolutions passed prior to the 14th April 1996 must be registered within 2 years after the date of the resolution or the 14th April 1997, whichever date is the earlier of the two.

6.11.3

Exclusive Use By-Laws

Section 42(8) of the STA as amended allows the Strata Company, by a resolution without dissent (or unanimous resolution in the case of a two-lot scheme), to create a by-law to grant exclusive use and enjoyment of, or special privileges to a lot proprietor for all or part of the common property. The lot proprietor must consent in writing to the terms of the by-law. By-laws for exclusive use or special privilege may contain conditions such as the requirements for maintenance and repair. The portion of the common property which is subject to exclusive use or special privilege must be clearly defined by a sketch that contains sufficient information to accurately plot the affected land. The sketch must be approved by the Survey Advice Officer at Landgate. 

Note: The areas of exclusive use or special privilege may be described in a narrative form provided they can be plotted in reference to the lot boundaries. In this circumstance a sketch is not required.

The granting of exclusive use or special privilege is not binding until they are registered as by-laws at Landgate. Registration is affected in the same manner as for a notification of amendment of by-laws outlined above. The STA has been amended to make it clear that grants of exclusive use and exclusive use by-laws have not in the past and will not in the future require the consent of the West Australian Planning Commission or local government.

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6.12

The State Administrative Tribunal

6.12.1

General

The uniqueness of strata schemes, combined with the Australian culture of defined ownership, sometimes results in misunderstandings and consequential disputes between lot owners. The STA provides some relief in resolving these problems through the State Administrative Tribunal (SAT) who has powers to resolve disputes (formerly adjudicated by the Strata Titles Referee). The SAT is located at Level 6, 565 Hay Street, PERTH WA 6000. They may also be contacted online at http://www.sat.justice.wa.gov.au where eForm applications are available. This website also provides access to decisions made in Strata related disputes. It may be beneficial for applicants to seek legal advice prior to making an application to SAT in order to gain a satisfactory outcome.

6.12.2

Applications to the State Administrative Tribunal

Before making an application to the SAT an applicant must comply with any relevant dispute resolution procedures. The by-laws set out in Schedules 1 and 2 of the STA include provisions for the convening of, conduct of and voting at general and council meetings and the regulation of various activities. By-laws in relation to procedures to be followed for the resolution of disputes as a prerequisite to the making of an application to the SAT may be made by the strata company or be set out in a management statement registered at the same time as the Strata Plan or Survey-Strata Plan. The SAT is only able to make orders if the STA gives the SAT power to do so. Even when the STA gives the SAT certain powers, the STA, in some instances, limits the Orders that the SAT can make, e.g. s.121 limits the SAT’s powers where the title to land is in question. An application to the SAT must: •

Set out the section(s) of the Act under which the application is made.

•

Set out the terms of the Order sought. and

•

Set out reasons why it is thought that SAT is able to or should make the Order.

The SAT may request additional information and may make further enquiries and inspections. The SAT may dismiss an application if it is considered frivolous, vexatious, misconceived, or lacking in substance or if there is an unreasonable delay in compliance to a request for additional information. Except in relation to an application for an Interim Order which is made in urgent circumstances, the SAT’s office will post a copy of an application to the strata company and to every affected person. When the strata company receives that notice it must immediately serve a copy on: •

Each person who is a proprietor of a lot in the strata scheme.

•

Any mortgagee of a lot who has given the strata company written notice of that mortgage. and

•

Each occupier of a lot who would be affected if the Order was made.

Each person receiving a copy of the notice is entitled to make a written submission to the SAT in relation to the application.

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6.12.3

Orders of the State Administrative Tribunal

The SAT’s powers are set out in Part VI of the STA. These powers include a general power to make orders (s.83 (1)). The Referee may also make an Interim Order (s.82 of the SAT) if satisfied, on reasonable grounds, by reason of the urgent circumstances of the matter. A person affected by a SAT Order may lodge an appeal to the District Court not later than 21 days after the Order takes effect. A person who fails to comply with an Order of the SAT is liable to prosecution in the Magistrates Court and, on conviction, may incur a penalty of up to $2,000.00 and a daily penalty of up to $200.00. It is up to the person benefiting from the Order or the strata company (unless the order is against the strata company) to commence the prosecution. Most applications are made under s.83(1) of the STA. Specific orders that the SAT can make (i.e. not made under s.83) include those related to: •

Insurance (s.88, 101, 103J, 103K and 103L).

•

By-laws (s.93, 95, 97 and 100).

•

Breaches of by-laws and payment of penalties (s.103I).

•

Use of common property (s.85 and 94).

•

Personal property that is common property (s.86 and 87).

•

Buildings, structures and alterations (s.103F and 103G).

•

Strata company levies (s.99 and 99A).

•

Emergency expenditure (s.47(2)).

•

Strata company meetings and resolutions (s.97, 100, 103, 103B, 103C, 103D, and 103M).

•

Variation of unit entitlements (s.103H).

•

Animals (s.91 and 92).

•

Contracts for service (s.103E) and

•

Various other orders may be made by the Referee as set out in s.89, 90, 98, 102, 103A and 103N-R.

Interim orders last for 3 months, or until the principal order is made. They can be renewed for a further 3 months.

6.12.4

Appeals

On payment of the prescribed fee, a Notice of Appeal may be lodged with the SAT within 21 days after the order takes effect. The parties who may appeal include the following: •

The applicant for the order.

•

A person who made a submission to the SAT (and was entitled to do so).

•

A person required by the order to do or refrain from doing a specific act.

The grounds of appeal against a principal order are unlimited. An appeal against an interim order can only be made on the grounds that the SAT acted unreasonably. Appeals are made to the District Court. The District Court may admit further evidence and with respect to an interim order of the SAT, revoke the order or dismiss the appeal. In any other case the District Court may affirm, vary or revoke the SAT’s order, substitute its own order or dismiss the appeal.

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6.12.5

Registration of an Order of the State Administrative Tribunal

Orders made pursuant to s.93, 94, 99A, 100, 103A, 103H, 103J, 103P, 103Q and 103R of the STA as amended must be registered at Landgate and they will take effect upon registration or at any later date specified in the order. The SAT may also direct that any particular order is required to be registered on the strata/surveystrata plan. Registration of the order is achieved by producing a certified copy of the order attached to a Form A5. A notation of the Order will be endorsed on the strata/survey-strata plan in its Schedule of Encumbrances.

6.12.6

Registration of an Order by the State Administrative Tribunal to Vary the Unit Entitlement

Upon the application of a proprietor of a lot or the strata company, the SAT may make an order varying the unit entitlement set out on a strata/survey-strata plan. The SAT will not accept an application unless it is accompanied by: •

a certificate of the strata company in the manner of Form 12 from the STGR to authorise the application and

•

a certificate by a licensed valuer.



Note: Where the proprietor of a lot cannot obtain a certificate of the strata company (Form 12), and the SAT considers that the failure of a strata company to authorise by special resolution an application under s.16 is inequitable, the SAT may, by order, exercise the function conferred on the strata company under s.16(2) (a) and authorise the application (see s.98 of the STA).

Notice of an application to SAT shall be served in accordance with s.16 (3) of the STA as amended. Registration is achieved by producing a certified copy of the order of the SAT with an application made by the Strata Company or by the lot proprietor on a Form A5. If the strata titles were created and registered under the Strata Titles Act 1966, the duplicate certificates of title (if any) are to be produced (see paragraph 6.3.7).

6.12.7

Registration of an Order of the State Administrative Tribunal with Regard to Retirement Village Disputes

Section 77A of the STA as amended transferred the powers of the Strata Titles Referee to the Retirement Villages Disputes Tribunal, in cases where a retirement village is a development under the STA as amended. The Tribunal issued orders on the same grounds or matters as the Strata Titles Referee. Section 77A of the STA has now been repealed. On 4 January 2005 the SAT came into being and took over the judicial or adjudicative functions of the Strata Titles Referee and the Retirement Villages Disputes Tribunal. Registration of these orders is achieved by producing a certified copy of the order attached to a Form A5. A notation of the Order will be endorsed on the strata/survey-strata plan in its Schedule of Encumbrances.

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7.

Easements and Covenants

This chapter deals with different types of easements and covenants, how they may be created, and the evidential requirements to support their creation and removal relating to freehold and crown land.

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7.1

Easements

7.1.1

General

Easements may be registered against freehold or Crown land under the TLA. No detailed provisions are set out in the TLA and the general law in respect of easements must be followed. A simple definition of an easement is: “a right attached to a parcel of land which allows the proprietor of the parcel to use the land of another in a particular manner or to restrict its use to a particular extent.” Under the general law an easement without a dominant tenement (an easement in gross) cannot exist. In this State, the State of Western Australia, a State Instrumentality, Statutory Body Corporate or a Local Government, acting under the provisions of s.195 of the LAA may be the grantees of an easement without a dominant tenement. Easements may be said to be either: •

express easements, ie: those created by a deed prepared for that purpose or incorporated in a transfer of land or

•

implied easements, ie: a right of carriage way appurtenant to lots abutting on a right of way set out on a plan of subdivision (s.167A of the TLA).



Note: With the introduction of SmartRegister, implied easements created under s.167A are now shown in the Second Schedule of a digital title.

7.1.2

Types of Easements

The usual types of easement presented for registration are: •

rights of carriage way

•

rights of support to land burdened by buildings(see LTRPM Form Examples – Example 9)

•

rights to erect a party wall

•

rights to light and air (see Property Law Act, 1969, s.121)

•

rights to take water from wells or bores

•

rights to install and operate drains and drainage works

•

rights to install, maintain and operate oil, gas or other pipelines and

•

rights to install, maintain and operate electric power lines, telephone and other cables and supporting pylons.

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7.1.3

Essentials for the Registration of an Easement

An easement must contain certain essentials and the absence of any one essential will result in requisitions issuing to either correct the fault or refusal to register, should the fault be incapable of correction. The essentials are: •

there must be a dominant tenement (which may be leasehold) ie: the land which enjoys the benefit of the easement

•

there must be a servient tenement (which must be fee simple) ie: the land which is burdened by the easement

•

the dominant and servient tenements must be distinct and in separate ownerships (with the exception of easements created on subdivisions under Part IVA of the TLA)

•

the easement must benefit the dominant tenement and impose an obligation on the servient tenement

•

the easement created must be capable of running with the land and be made with the express intention of running with the land and

•

the dominant and servient tenements must be adjacent, although it is not essential that they must be contiguous.

7.1.4

How Created

There are five basic methods for the creation of express easements. These are: •

by the registration of a deed prepared and lodged expressly for the purpose of creating the easement

•

by granting to or reserving from the land the subject of a registered transfer, an easement embodied in and created by that transfer;

•

the approval of a deposited plan containing an easement created pursuant to s.167 of the P&D Act (formerly s.27A of the TP&D Act)

•

by notation on deposited plans of subdivision under Part IVA of the TLA (see paragraph 7.1.8) and

•

by notation on survey-strata plans under s.5D of the STA as amended.

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7.1.5

Easements Created by Deed

A deed prepared for the sole purpose of creating an easement should be prepared on a Form B2 Blank Instrument Form and the easement should be set out in narrative form. The easement document must be stamped at the Office of State Revenue (Stamp Duties Division). The following details should be clearly shown: •

the name and address of the grantor

•

the name and address of the grantee

•

an accurate description of the lands of the grantor and grantee and

•

an accurate description of the land burdened and the land to be benefited by the easement. An Interest Only Deposited Plan should be prepared by a licensed surveyor and lodged at Landgate to define the position of the easement. The easement document can then make reference to the Deposited Plan (see paragraph 1.9.3).



Note: In the case of a simple bore easement a Deposited Plan is not necessary. A suitable sketch can be drawn on the document or attached to it as a separate sheet (see paragraph 1.9.3).

The grantor should be described as: “A of etc, the registered proprietor for the time being of (the land to be to be burdened)”, and the grantee should be described as: “B of etc, the registered proprietor for the time being of (the land to be benefited)”. An easement by Deed needs no monetary consideration, the action of the parties in entering into the Deed is sufficient. The purpose for which the easement is being created must be clearly stated eg: a right of carriage way, a party wall, etc. The rights and obligations of the parties should be clearly stated. Any limitation as to duration or height must be set out. Where a limitation is imposed as to the height to which the easement affects the servient tenement, the height should be expressed as a distance in metres above the Australian Height Datum or A.H.D. 

Note: The Australian Height Datum within the Perth Metropolitan Zone is based on mean sea level at Fremantle. Bench marks, fixed at assigned heights are used to control all vertical measurements for mapping purposes.

When presented for registration the document must be accompanied by the duplicate certificates of title (if any) for the dominant and servient tenements. Encumbrances etc against the land affected by an easement created by a Deed must be shown in a section headed Limitations, Interests, Encumbrances and Notifications that is set out at the end of the document. A mortgagee of the servient tenement should be asked to give an unqualified consent to the easement. With such a consent, the easement would survive the exercise of the mortgagee’s power to sell. Absolute caveats will prevent the registration of an easement, as will a prior registered easement which contains provisions which will prevent the use of the land in the manner set out in the new easement.

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Where the land of the dominant owner is the subject of a paper title, Landgate will cancel the title by Sundry Document (XA) and show the easement in the Second Schedule of the new title created for the dominant tenement. The paper title is cancelled to conform with the format of a digital title that shows the benefit of an easement in the second schedule (not in the land description). Reciprocal easements in a single document, ie: where the parties are both grantor and grantee, will not be registered. A separate document is required for each easement.

7.1.6

Easements Incorporated in a Transfer

A transfer of land may incorporate a creation of an easement by grant or reservation. An easement is said to be granted where the land being transferred also carries the benefit of an easement over land belonging to the vendor in the same or another title. An easement is said to be reserved where the land being transferred is burdened with an easement in favour of land retained by the vendor in the same or another title. A right of carriage way may be created in any transfer by the inclusion of the words: “together with a right of carriage way over .......(specifying or describing the land over which the easement is created and referring to a map or plan endorsed whereon such land is defined by sufficient measurements to allow it to be accurately plotted).” Where such words are used, they are construed as if all the words set out in the Ninth Schedule to the TLA have been used (s.65 of the TLA). Where the creation of an easement by transfer is contemplated, the form selected should be a Form T2 Transfer of Land with additional pages. The words creating the easement should be shown on page 2 of the form immediately following the operative words of the transfer. Where the land affected cannot be properly described in words, an Interest Only Deposited Plan should be prepared by a licensed surveyor and lodged at Landgate to define the position of the easement. The transfer can then make reference to the Deposited Plan (see paragraph 1.9.3). In the case of a simple bore easement a Deposited Plan is not necessary. A suitable sketch can be drawn on the transfer or attached to it as a separate sheet (see paragraph 1.9.3). Easements may be incorporated in and created by the registration of a lease of freehold land. These are similar to the easements mentioned above except that they are effective only during the term of years created by the lease and any extension thereof. On expiry of the lease, or its surrender by the lessee or re-entry by the lessor, the easement ceases to have any effect.

7.1.7

Easements Created in a Plan of Subdivision Pursuant to Section 167 of the P&D Act (Formerly Section 27A of the TP&D Act)

See paragraph 6.1.10.2.

7.1.8

Creation of Easements on Plans of Subdivisions under Part IVA of the TLA

The use of the word Plan in this section means a plan, deposited plan or diagram referred to in s.166 of the TLA or a strata / survey-strata plan within the meaning of the STA as amended. A registered proprietor of land that is the subject of a Plan, a Public Authority or the Local Government in whose district the land is situated may have noted on the Plan the location of an easement to which the land will be subject. The easement will have effect even though any land burdened by the easement has the same proprietor as any land benefited by the easement. The necessary information regarding the easement may be specified solely on the Plan itself, in an instrument lodged with the Plan or in both the Plan and the instrument lodged with the Plan.

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7.1.8.1

On the Plan

Where the details of the easement are noted solely on the Plan, the following information is required: •

A description of the easement in short form, eg: “Easement for right of carriage way under s.136C of the TLA.”

•

The land to be burdened by the easement.

•

The land to be benefited by the easement or the name of the Local Government or Public Authority.

•

The term of the easement (if applicable).



Note: No further information about the easement will be noted on the Plan unless the Registrar of Titles specifies it.

7.1.8.2

In an Instrument with the Plan

Where the details of the easement are more than the short form, it must be contained in an instrument lodged with the Plan. This must be in the form of a Deed, prepared on a Form B2 Blank Instrument Form and be capable of registration. The instrument is to be duly stamped by the Office of State Revenue and must contain the following information: •

The proprietor(s) name and address.

•

A description of the land to be burdened by the easement.

•

A description of the land to be benefited by the easement or the name of the Local Government or Public Authority.

•

An operative clause describing the easement and stating that the rights, are created pursuant to s.136C of the TLA and showing any limitations associated with the rights. Limitations should be clearly specified: “between the hours of ………..” or “/limited to a height/ depth of ......metres above/below the Australian Height Datum”.

•

Any encumbrances over the land burdened by the easement. (Absolute caveats must be withdrawn to allow registration of the instrument).

•

The date of execution of the agreement.

•

All of the required consents (see below).

•

Signed by all parties and witnessed.

Where an instrument is used, it may be lodged with the Plan or any time prior to the lodgement of the application to create and register the new titles for the land the subject of the Plan. 

Note: Lodgement of the instrument after examination of the Plan will result in a re-examination of the Plan and the possible issue of further requisitions. This may adversely affect the turnaround time for processing the application for the creation of the new titles.

The land burdened by the easement must be contained within the plan, however any land to be benefited by the easement can be outside the Plan. All duplicate certificate(s) of title (if any) for land receiving the benefit of the easement must be produced for endorsement.

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7.1.8.3

Consents required

An easement cannot be created under Part IVA of the TLA unless the proprietor obtains the written consent of each of the following: •

A person having a registered interest in any land that would be burdened by the easement (ie mortgagees, chargees and lessees etc).

•

A caveator in respect of any land that would be burdened by the easement. (Where an instrument is lodged, absolute caveats must be withdrawn to allow registration of the instrument.).

•

A person having a registered interest in any land that would be benefited by the easement (i.e. mortgagees, chargees and lessees etc).

•

A caveator in respect of any land that would be benefited by the easement.

Where an instrument is lodged, the consents should be produced with the instrument. If the land has been further encumbered after lodgement of the Plan or the instrument, the additional consents of the subsequent encumbrances and caveators must be obtained prior to or attached to the application for the creation of the new titles.

7.1.8.4

When easements created on plans have effect

Land becomes subject to an easement noted on a Plan at the time the new title(s) for the land the subject of the Plan are created and registered. Where an instrument is lodged under Part IVA of the TLA in relation to a Plan, the instrument shall be deemed to be registered at the time the land becomes subject to the easement.

7.1.8.5

Easements created on plans for a specific term

Where an easement created under Part IVA of the TLA is for a specific term, and that term has expired, the easement no longer has any effect. There is no need to apply for a discharge of the easement.

7.1.8.6

General comments

Although they are created at the same time, it is Landgate’s policy to endorse easements created under s.167 of the P&D Act on the relevant title(s) before any easements created on Plans pursuant to Part IVA of the TLA. When two or more lots on an Approved Plan are subsequently amalgamated or re-subdivided, any Part IVA of the TLA easements created on the parent survey subsist and will be carried forward onto the new title.

7.1.9

Creation of Easements under Section 5D by Notation on Survey-Strata Plans

A survey-strata plan (in this paragraph referred to as the Plan) lodged for registration may create certain easements that will take effect upon registration of the Plan, under s.5D of the STA and Part IVA of the TLA. This paragraph only deals with easements created under the STA. Refer to paragraph 7.1.8 for creating easements under the TLA. Only Survey-Strata lots on the Plan may receive the benefit or have the burden of an easement created on the plan.

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The following easements, as prescribed in the STGR, can be created on the Plan: •

An easement relating to motor vehicle access, parking or turning (short form descriptionVehicle Access Easement).

•

An easement for access or use of light and air (short form description- Light and Air Easement)

•

An easement for party wall rights (short form description- Party Wall Easement).

•

An easement for the right of a structure to intrude into another lot where that intrusion would constitute a permitted deviation if the scheme were a single tier strata scheme (short form description- Intrusion Easement).

•

An easement for pedestrian access (short form description- Pedestrian Access Easement).

To create one of the above mentioned easements, the plan must show: •

by dotted lines the location of the easement (see regulation 14B of the STGR for the dimensional requirements of the various types of easement)

•

in tabular form, the dominant and servient lots and

•

the type of easement being created by reference to its short form description.

The notation on the Plan may also include reference to a specific percentage in respect of the apportionment of liability for the costs of upkeep of an area over which the easement is created (where applicable). Where the easement departs from the terms, conditions and provisions as set out in Regulations 14D to 14I of the STGR, an instrument will need to be lodged with the Plan. This must be in the form of a DEED, prepared on a Form B2 that is duly stamped by the Office of State Revenue. Where an instrument is used, it may be lodged with the Plan or at any time before the lodgement of the application to register the Plan. 

Note: Lodgement of the instrument after examination of the Plan will result in a re-examination of the Plan and the possible issue of further requisitions. This may adversely affect the turnaround time for processing the application for the creation of titles for the lots on the Plan.

An easement cannot be created on the Plan unless the written consent of each of the following is obtained: •

a person having a registered interest in any lot that would be burdened by the easement (i.e. mortgagees, chargees and lessees etc.)

•

a caveator in respect of any lot that would be burdened by the easement. (Where an instrument is lodged, absolute caveats must be withdrawn to allow registration of the instrument).

Where an instrument is lodged, the consents should be produced with the instrument. If the land has been further encumbered after lodgement of the Plan or the instrument, the additional consents of the subsequent encumbrancers and caveators must be obtained before or attached to the application for the registration of the Plan. The titles for any survey-strata lots receiving the benefit or burden of an easement created on the plan will be endorsed accordingly. An easement of this type may not be created on a plan of re-subdivision or plan of consolidation in respect of a survey-strata scheme.

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7.1.10

Easements over Crown Land

Generally, only the Minister for Lands has power under the LAA to grant easements over Crown land. However, other legislation can allow for the creation of an easement over Crown land. Where the Minister for Lands grants an easement over Crown land that is the subject of a management order or an interest (e.g. lease, mortgage), then consent of the management body and/or interest holder must be obtained for the easement. The Minister for Lands may grant an easement in gross over Crown land to any person or body. These easements are limited to the grantee only and cannot be transferred. For example, an easement in gross to a lessee is only valid for that lessee and not any new lessee on a transfer of that lease. Generally, an easement between two Crown land parcels cannot be accepted as the State of Western Australia owns both. However, an easement between two Crown land parcels can be accepted where either or both the dominant or servient tenement was limited to a leasehold interest over the Crown land. In these instances the easement is made with the lessee and continues on any transfer of the lease but only remains valid during the term of the affected lease. If an easement is made between two separate Crown leasehold estates (eg. one lease exists over the dominant tenement and a different lease exists over the servient tenement) then s.18 of the LAA consent of the Minister for Lands is required unless the Crown land is vested for purposes of another Act. The land description in an easement where the dominant or servient tenement is limited to a leasehold interest must additionally refer to the lease affected by the easement. For example: “As to Lease H123456 only “ or where the lease and easement are lodged together “As to Lease . . . . . . . . . . . dated 0.0.2005 made between AB as lessor and CD as lessee only.” The lessee’s copy of a lease is not required to be provided with any easement where the dominant or servient tenement is limited to a lease interest.

7.1.11

Variation of Easement over Crown Land

A grantee of an easement, with the consent of any management body or lessee of the relevant land, may apply to the Minister for Lands to vary an easement. under s.144(3) of the LAA the Minister may then vary the easement or refuse the application. A variation of easement cannot alter the easement area.

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7.2

Removal of Easements

7.2.1

Surrender

A surrender of easement, except where the easement was created under s.167 of the P&D Act (formerly s.27A of the TP&D Act) or under s.136C of the TLA (one copy only), may be registered. Information on removing an easement created by s.167 of the P&D Act and s.136C of the TLA are contained in paragraph 7.2.6 and paragraph 7.2.7 respectively. The form to be used to surrender other easements is blank instrument Form B2 and it is a requirement that a surrender be assessed for duty by the Office of State Revenue (Stamp Duties Division). The form should contain: •

the names and addresses of the dominant and servient owners

•

a description of the lands affected

•

the nature of the easement and its registered number

•

the extent of the surrender, ie: whole or partial and

•

formal words of surrender.

The properly attested signatures of all the grantors and grantees complete the form. Any encumbrancer of the dominant tenement should be asked to consent to the surrender, as he or she is losing something beneficial to his or her security. Where the easement was created by implication (ie: an implied easement over a right of way on a survey) no application is required. 

Note: The production of the duplicate certificate of title (if any) for the land burdened by the easement is desirable but will not be insisted upon.

7.2.2

Abandonment

Where an easement has not been used or enjoyed for a period of not less than twenty years, the registered proprietor of the servient tenement may apply to have the easement removed as an encumbrance. The application is made on a Form A5 by the registered proprietor of the land affected by the easement. The land description panel should contain the current land description of the affected land or right of way. The text of the application, in the third section of the application could be either: “for the removal pursuant to s.229A of the TLA from the above certificate of title of the easement contained in transfer (number of transfer)” or “for the removal pursuant to s.229A of the TLA from the above certificate of title of the easement created in favour of the registered proprietors of the lots created on plan (or diagram) (number of plan or diagram)”. The duplicate title for the affected land, if there is one, must be produced. To support the application, the applicant should supply a statutory declaration setting out the circumstances that substantiate his or her claim and further stating that neither the grantees of the easement nor their invitees or servants have exercised those rights for a minimum period of 20 years up to the time of application.

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To be successful the applicant must also demonstrate that: •

the rights have been totally abandoned (eg: not just reduced from vehicular access to persons on foot) and

•

the rights have been abandoned over the full extent of the land described in the land description panel of the application.

In many cases the provision by the applicant of a sketch of the affected land, depicting any obstructions such as buildings, trees, or fences, and other relevant details such as garages or gates opening onto the affected land greatly simplifies the matters to be explained in the declaration. Although it is desirable that such a sketch is prepared by a licensed surveyor, the Registrar may accept one drawn by the applicant but reserve the right to request one from a surveyor. Photographs are also useful in providing proof of the existence of obstructions to the use of the easement. When produced the photographs and sketch should be annexed as exhibits to the declaration of the person producing them. Further declarations by two persons who are not related to or in business with the applicant are also required to support the application. Where the Commissioner is satisfied with the evidence, notice of intention to remove the easement will be given to the interested parties, and at the expiration of twenty one days from the notice, without response, a direction to remove the easement as an encumbrance will be issued (s.229A of the TLA). 

Note: Where the duplicate of a digital title has been produced with the application, the Registrar will cancel it and create a new edition of the duplicate title. Where the duplicate of a paper title has been produced with the application, the Registrar will make the relevant endorsement on that duplicate title.

If a response to the above-mentioned notice is received, it will be considered and a decision whether the easement is to be removed will be made based on the merits of the case. When the easement is removed from the burdened land, the Registrar will, if and when they are produced, create another edition of the duplicate titles (if any) that carry the benefit of the easement so that the benefit will be removed. 

Note: The provision of Abandonment under s.229A of the TLA does not apply to any easement created on a subdivision under Part IVA (see s.229A (5) of the TLA).

7.2.3

Merger

At common law, when the dominant and servient tenements come into a common ownership, an easement affecting those lands is merged and extinguished. Office practice, however, is that a merger will not be noted without the request in writing of the common owner. Such request may be written on the transfer by which common ownership is achieved. If the common ownership is not achieved at the same time by a transfer (or transfers registered at the same time) the common owner must, on a Form A5 quoting both the original land and the land newly acquired by transfer, request that the easement be merged and extinguished. 

Note: Statutory easements (eg: those created under Part IVA of the TLA as amended and s.5D of the STA as amended) must be removed by the provisions of that particular statute.

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7.2.4

Taking

Easements may also be removed by the taking of the easement interest or the servient tenement for the purpose of a public work under Part 9 of the LAA. All encumbrances are removed by a taking (ie: the land is held free of encumbrances in the taking authority). The rights of the dominant owner will, on taking, be converted to a right to compensation.

7.2.5

By Court Order

Any person interested in land may make application to the Court or a Judge for an order modifying or removing, wholly or partially, an easement. Upon the application of the registered proprietor of the land together with a certified copy of the order and the duplicate certificates of title (if any), the Registrar will make the necessary amendments to the Register (s.129C).

7.2.6

By Order of the Registrar

The grantee of an easement created by s.167 of the P&D Act (formerly s.27A of the TP&D Act) may apply on a Form A5, to vary or extinguish the easement. The first panel of the Form A5 should contain the lot or location affected by the easement, the second panel should be the grantee and the next panel should contain words requesting that the easement be varied or extinguished. The written consent of all persons with a registered interest in the land must be filed with the application. Provided all the consents have been supplied, the Registrar will order that the easement be removed from the title or varied by endorsement.

7.2.7

Discharge and Modification of Easements Created under Part IVA

The registered proprietor of land burdened or benefited by an easement created on a Plan under Part IVA of the TLA may apply on an application Form A5 for the easement to be discharged or to be modified. The application should contain the written consent of each person who has a registered interest in, or is a caveator in respect of, any land that is burdened or benefited by the easement. Where the above mentioned written consent has not been obtained, the procedures as set out in s.136J (3) of the TLA must be complied with prior to the lodgement of the application. In this circumstance the application must be accompanied by a statutory declaration that contains the following information: •

That each person who has a registered interest in, or is a caveator in respect of, any land that is either burdened or benefited by the easement has been given 28 days’ written notice of both the intention to make the application and the substance of it.

•

That the notice(s) in writing (referred to above) have been properly served in accordance with s.240 of the TLA by ............................................... (insert the specific mode of service used, as authorised under s.240).

•

That notice of both the intention to make the application and the substance of it has been published at least 28 days before the day on which the application is made in a newspaper circulating either throughout the State or in a district where the land is situated.

•

That both of the notices referred to above contained the address for service of notices of objection to the proposed application or to any part of it. Refer to paragraph 1.7.5 for Landgate’s address requirements.

•

That both of the notices referred to above contained the expiry date for objections to be received and the day on which the proposed application is to be lodged, that day being at least 3 days after the expiry date for objections to be received.

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A copy of the notice that was published in a newspaper, showing the name of the newspaper and the day of publication should be attached to the statutory declaration of the applicant (Full page of newspaper required to be lodged with the application). The above-mentioned statutory declaration must state the content of the notices to the registered interest holders and the newspaper notice and not merely state that sections 136J (3) (a) and (b) of the TLA have been complied with. The notices must clearly state: •

the applicant’s address for the serving of notices of objections to the proposed application or any part of it

•

the commencement date and the expiry date for the 28-day notice period in which objections can be received and

•

the approximate date on which the application will be lodged at Landgate, that date being at least 3 days after the expiry date for objections to be received.

The Commissioner will not direct the Registrar to discharge or modify the easement if any objection has been made to the application or any part of it. Receipt of an objection will require the applicant to utilise s.129C of the TLA and obtain a Court Order for the removal or modification of the easement. 

Note: It is recommended that the application be lodged as soon as possible after written consent has been obtained or as soon as possible after the expiration of the 3 day period in the case where consent has not been obtained. This will reduce the possibility of the registration of new proprietors or other interest holders before lodgement of the application. In this circumstance extra other notices would need to be sent.

7.2.8

Discharge or Variation of Easements Created under Section 5D by Notation on Survey-Strata Plans

Section 5F of the STA as amended provides for the discharge or variation of easements created by notation on a survey-strata plan (in this paragraph referred to as the Plan).

7.2.8.1

Discharge

An easement created on the Plan may be discharged by an instrument (prepared on a Form B2) signed by each person who has a registered interest in, or is a caveator in respect of, the dominant lot and must be accompanied by the written approval of the Western Australian Planning Commission. 

Note: An easement created on the Plan is automatically discharged by the termination of the surveystrata scheme.

7.2.8.2

Variation

The registered proprietors of the land burdened and benefited by an easement created on the Plan may vary the terms of the easement by an instrument (prepared on a Form B2) signed by each person who has a registered interest in, or is a caveator in respect of, the dominant lot and the servient lot and must be accompanied by the written approval of the Western Australian Planning Commission.

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7.2.9

Cancellation of Easements Over Crown Land

The Minister for Lands has power in certain circumstances to cancel easements over Crown land. A grantee of an easement, with the consent of any management body or lessee of the relevant land, may apply to the Minister to cancel an easement. Under s.144(3) of the LAA, the Minister may then cancel the easement or refuse the application. Where a grantee has exceeded the rights or conditions of an easement created under s.144 of the LAA or the grantee in writing requests the easement to be cancelled, the Minister may serve notice in writing on the grantee and any management body or lessee of the relevant land, of his intention to cancel the easement. A grantee may appeal against the proposed cancellation within the time period allowed. Under s.145(1) of the LAA the Minister may cancel the easement when no appeals remain outstanding. A management body, lessee or other interest holder, of Crown land, may request the Minister to cancel an easement where it no longer serves any purpose. Where the Minister agrees, he must serve notice on the grantee, any person with an estate or interest in a dominant tenement of the easement and the Registrar, of his intention to cancel the easement. Under s.150(5) of the LAA the Minister may cancel the easement if satisfied the easement no longer serves any purpose. No registration fee or stamp duty is required for a Cancellation of Easement document by the Minister for Lands.

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7.3

Covenants

7.3.1

General

Documents creating restrictive covenants may be registered against freehold or Crown land under the Act. Generally, restrictive covenants must: •

directly control the use of the land of the covenantor

•

benefit the land of the covenantee

•

be negative in their content

•

be intended by the parties creating them to run with the land and

•

not contain personal covenants with third parties such as the original land developer or the Local Government.

Section 15 of the LAA also allows for positive covenants to be created over Crown land or agreement land (see paragraph 7.3.6). No covenant may be registered over land encumbered by a mortgage or annuity, unless the consent of the encumbrancer is endorsed on the document.

7.3.2

Restrictive Covenants Created by Deed

A restrictive covenant may be drawn in the form of a Deed using a Form B2. Section 129A of the TLA calls for a prescribed form but no such form has been prescribed. In practice each covenant is treated on its merits and is generally acceptable provided that: •

it takes the form of a Deed

•

the parties to the document (being the owners of two pieces of land in close proximity) are properly described

•

the land to be burdened and the land receiving the benefit are accurately defined;

•

the covenant is negative in its nature

•

it does not contain personal covenants with third parties such as the original developer or the Local Government and

•

it is properly signed and attested.

If the land is subject to a mortgage or charge, written consent from the Mortgagee or annuitant is required. The Registrar was not required to show a memorandum of a covenant on the paper title to the land receiving the benefit of that covenant (with the exception of protected view or outlook covenants- see paragraph 7.4.3). However, with the introduction of digital titles, the benefit is now shown in the second schedule of the relevant title.

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7.3.3

Restrictive Covenants in Gross

Section 129BA of the TLA permits the creation of restrictive covenants for the benefit of a Public Authority or the Local Government in whose district the land is situated. A restrictive covenant under this section shall be prepared in the form of a Deed using a blank instrument Form B2. The instrument must contain the following: •

the name of the Local Government or Public Authority

•

a description of the land to be burdened

•

the name and address of the registered proprietor of the burdened land

•

covenants that are negative in nature

•

the date of the agreement

•

signed by all parties and witnessed

•

any encumbrances over the land burdened by the restrictive covenant; and,

•

the written consent of each person who has a registered interest in any land that would be burdened by the restrictive covenant.

The duplicate certificate(s) of title (if any) for the land burdened by the restrictive covenant must be produced. If the restrictive covenant is being created as a condition of subdivision the spatial extent of the land affected is described in the associated deposited plan.

7.3.4

Restrictive Covenants Created by Transfer

Where it is desired to create a restrictive covenant at the same time as the sale of a parcel of land, a Form T2 Transfer of Land (Double Sheet) should be selected. The necessary words creating the covenant should be set out on page 2 of the form, following the operative words of the transfer. All the parties to the Transfer of Land document should initial immediately beneath the wording of the restrictive covenant conditions to acknowledge that the restrictive covenant was created at the time of execution. Restrictive covenants may be accepted in transfers where the covenants are stated to expire on a given date. In the past, an expiry date was noted on the endorsement on the title to the burdened land. However, from the 13th May 1996 expiry dates will not be endorsed. Where a title that has been endorsed with an expiry date, is cancelled to a new title, the expiry date will be deleted from the endorsement when the Restrictive Covenant is brought forward onto the new title. It is the responsibility of conveyancers to obtain a copy of restrictive covenants to determine the condition of covenants. If a restrictive covenant that is endorsed on a title has in fact expired, it should be ignored as an encumbrance. Where the first transfer on a subdivision contains covenants, and is accompanied by an appropriate statement by a solicitor, then that transfer (or similar transfers for the other lots) will not be rejected for the reason that the Registrar considers the listed covenants are not restrictive covenants.

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The statement by a solicitor: •

may be endorsed on the transfer, or included in a separate letter that clearly identifies the transfer and the covenants

•

is to state, without qualifications, that in that solicitors opinion, each covenant in the transfer is a restrictive covenant and

•

will only be relevant to the land specified in the transfer as being benefited and/or burdened by the covenants.

Subsequent transfers on the subdivision containing the same covenants are to be endorsed with the dealing number of the transfer containing the solicitor’s letter. Any restrictive covenants created in a document lodged without a letter, or reference, will be subject to the normal examination process.

7.3.5

Creation of Restrictive Covenants on Plans of Subdivision under Part IVA of the Transfer of Land Amendment Act 1996

The use of the word Plan is this section means a plan, deposited plan or diagram referred to in s.166 of the TLA or a strata / survey-strata plan within the meaning of the STA as amended. A proprietor of land that is the subject of a Plan may have noted on the Plan the location of a restrictive covenant to which the land will be subject. The restrictive covenant will have effect even though any land burdened by the restrictive covenant has the same proprietor as any land benefited by restrictive covenant. An instrument setting out all the relevant information in regard to the restrictive covenant must be lodged with the Plan or before the lodgement of the application to create and register the new titles the subject of the Plan.

7.3.5.1

What is specified on the plan

The following information about the restrictive covenant shall be specified on the Plan: •

The heading: “Restrictive Covenant under Sec 136D of the TLA.”

•

A reference to the document number of the instrument lodged in relation to the Plan.

•

The land to be burdened by the restrictive covenant.

•

The land to be benefited by the restrictive covenant.

•

The term of the restrictive covenant (if applicable).



Note: An expiry date rather than a term should be shown. An expiry date should not be shown if some of the covenants are not to expire.

7.3.5.2

Details contained in the instrument lodged with the plan

The complete details of the restrictive covenant are to be contained in an instrument lodged with the Plan. This instrument must be in the form of a Deed, prepared on a Form B2 and be capable of registration.

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It is to be duly stamped by the Office of State Revenue and must contain the following: •

The proprietor(s) name and address.

•

A description of the land to be burdened by the restrictive covenant.

•

A description of the land to be benefited by the restrictive covenant.

•

An operative clause describing the restrictive covenant and stating that the restrictions are created pursuant to s.136D of the TLA and showing any limitations associated with the restrictions.

•

The term of the restrictive covenant (if applicable). Please note that an expiry date rather than a term should be shown.

•

An expiry date should not be shown if some of the covenants are not to expire.

•

Any encumbrances over the land burdened by the restrictive covenant (Absolute caveats must be withdrawn to allow registration of the instrument).

•

The date of the agreement.

•

All of the required consents (see below).

•

Signed by all parties and witnessed.



Note: Lodgement of the instrument after examination of the Plan will result in a re-examination of the Plan and the possible issue of further requisitions. This may adversely affect the turnaround time for processing the application for the creation of the new titles.

The land burdened by the restrictive covenant must be contained within the plan, however any land to be benefited by the restrictive covenant can be outside the Plan. The title(s) for the land that contains the benefit and the title(s) for the land that contains the burden of the restrictive covenant will be endorsed. All duplicate certificate(s) of title (if any) for land receiving the benefit of the restrictive covenant must be produced for endorsement.

7.3.5.3

Consents required

A restrictive covenant cannot be created under Part IVA of the TLA unless the proprietor obtains the written consent of each of the following: •

A person having a registered interest in any land that would be burdened by the restrictive covenant (ie mortgagees, chargees and lessees etc).

•

A caveator in respect of any land that would be burdened by the restrictive covenant (Applicable to subject to claim caveats only, absolute caveats must be withdrawn).

•

A person having a registered interest in any land that would be benefited by the restrictive covenant (ie mortgagees, chargees and lessees etc).

•

A caveator in respect of any land that would be benefited by the restrictive covenant.

The consents should be produced with the instrument that is lodged in relation to the Plan. If the land has been further encumbered after lodgement of the instrument, the additional consents of the subsequent encumbrancers and caveators must be obtained before or attached to the application for the creation of the new titles.

7.3.5.4

When restrictive covenants created on plans have effect

Land becomes subject to a restrictive covenant noted on a Plan at the time the new title(s) for the land the subject of the plan are created and registered. The instrument lodged under Part IVA of the TLA in relation to the Plan shall be deemed to be registered at the time the land becomes subject to the restrictive covenant.

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7.3.5.5

Restrictive covenants created on plans for a specific term

Where a restrictive covenant created under Part IVA of the TLA is for a specific term, and that term has expired, the restrictive covenant no longer has any effect. There is no need to apply for a discharge of the restrictive covenant.

7.3.5.6

General comments

When two or more lots on an Approved Plan are subsequently amalgamated or re-subdivided, any Part IVA of the TLA restrictive covenants created on the parent survey subsist and will be carried forward onto the new title.

7.3.6

Creation of Covenants under the Land Administration Act 1997

Section 15 of the LAA provides for the registration of restrictive and positive covenants on Crown land and agreement land. Agreement land is land that is the subject of an agreement between the Minister for Lands and the freehold owner, relating to the use of the land, which was made before the Crown land was transferred to the freehold owner. Covenants under the LAA can be created by deed over Crown land and agreement land or in transfers of Crown land to freehold land from the State of Western Australia to a transferee. A covenant that is the subject of a management order or an interest (eg. lease, mortgage), then consent of the management body and/or interest holder must be obtained for the covenant. Consent of the caveator of any encumbering caveat is required for positive covenants being created over Crown land. Consent of the current freehold owner is required for positive covenants over agreement land where the current freehold owner is not a party to the document. In s.15 of the LAA, covenants may be in gross or in favour of specified land (ie. a covenant with a dominant and servient tenement). The person who may have the benefit of the covenant may be the Minister for Lands, a State instrumentality, a local government body or a prescribed person (as set out in the Land Administration Regulations 1998). The Minister for Lands may be a covenantor or a covenantee. A covenant may be limited to a leasehold interest over the Crown land. In these instances the covenant is made with the lessee and continues on any transfer of the lease but only remains valid during the term of the affected lease. If a covenant (not being a s.15 covenant) is made between two separate Crown leasehold estates (eg. one lease exists over the dominant tenement and a different lease exists over the servient tenement) then s.18 of the LAA consent of the Minister for Lands is required unless the Crown land is vested for purposes of another Act. The land description in a covenant where the dominant or servient tenement is limited to a leasehold interest must additionally refer to the lease affected by the covenant. For example: “As to Lease H123456 only” or where the lease and covenant are lodged together, “As to Lease . . . . . . . . . dated 0.0.2005 made between AB as lessor and CD as lessee only”. In s.15 of the LAA, covenants created by deed over agreement land must be signed by the first freehold land owner after alienation by the Minister for Lands from the Crown estate and who is also a party to the agreement made prior to the transfer from Crown to freehold. It is not essential that the deed is signed by the Minister for Lands or other covenantee, but they may do so. The lessees copy of a lease is not required to be provided with any covenant where the dominant or servient tenement is limited to a lease interest.

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7.4

Types of Restrictive Covenants

7.4.1

Estate Covenants

These covenants are normally applied to subdivisions of broad acres where the developer considers it necessary to establish a standard for the erection of dwellings or the use of the land. As each lot is sold, the purchaser, as proprietor of the lot sold, covenants with the vendor to restrict the use of the land in the manner set out in the transfer, for the benefit of all other unsold lots on the plan. A memorandum of such covenant is endorsed as an encumbrance on the title for the lot being transferred. No endorsement is made on the title(s) for the unsold land.

7.4.2

Restraint of Business or Trade Covenants

Where a vendor requires a purchaser to enter into a covenant not to conduct a particular business or trade such a covenant will be accepted as part of a transfer provided that it can be shown that the vendor is the proprietor of land, in the vicinity of the land sold, which can benefit from the covenant.

7.4.3

Protected View or Outlook Covenants

This type of covenant usually arises where one lot is subdivided and covenants are required from the purchaser not to build out or obscure the view of the vendor. The covenants are related to the height to which the purchaser may erect a dwelling or grow shrubs, etc. When setting the height for such a covenant, reference should be made to the Australian Height Datum (see note paragraph 7.1.5). The benefit of such a restrictive covenant will be shown in the Second Schedule of the relevant title being created in the normal course of registration. If no such title is being created, Landgate will prepare and lodged a sundry document for the purpose of showing the benefit of the restrictive covenant in the Second Schedule. Production of the relevant duplicate certificates of title (if any) is required.

7.4.4

Covenants with the National Trust

The National Trust of Australia (WA) Act 1964 (in this paragraph called the Act) established as a body corporate with perpetual succession known as the National Trust of Australia (WA). The Trust has a common seal and the power (among other things) to acquire, hold and dispose of real property. The Trust is managed by a committee known as the Council of the National Trust of Australia (WA). The Common Seal of the Trust may only be used by order of the Council, and may be affixed to a document in the presence of the President or the Vice President, and the Secretary. The Council may appoint officers and delegate any of its powers (except the power of delegation) to any committee. The Trust has the role of encouraging public interest in places and things of national or local importance by reason of historic, legendary, artistic or other interest, and of places of national beauty and flora and fauna. The proprietor of any land may create restrictive covenants, either permanently or for a specified period, in favour of the National Trust of Australia (WA). In accepting the benefit of the covenants the Trust need not be the owner of adjacent land but the covenant takes effect as if it were (s.21A of the Act). Such covenants are registered, discharged or modified in the same manner as any other covenant under the TLA. Similar covenants in favour of the Heritage Commission may be registered by a Memorial (see paragraph 11.4.14).

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7.5

How Covenants are Removed

7.5.1

General

Covenants may be removed from the Register by either of the following: •

agreement between the parties having an interest in the covenant

•

by an order of the Court

•

by the implementation of a Town Planning Scheme (Ref: s.11 in Schedule 7 of the P&D Act, formerly being s.15 in the Schedule of the TP&D Act);



Note: Where a Covenant is for a specific term, and that term has expired, the covenant no longer has any effect. There is no need to apply for the discharge of a covenant.

New Practice for the Removal of Time Expired Restrictive Covenants This new practice is for the purpose of restrictive covenants under s.129A and s.129B of the TLA (common law estate restrictive covenants) that: •

have expired due to a time limit within the restrictive covenant and

•

do not contain unexploded ordnance provisions.

To have a restrictive covenant that has expired due to a time limit removed from a Certificate of Title prior to the transfer to a new registered proprietor, a signed letter must be provided by the responsible licensed settlement agent or lawyer and lodged at Landgate at the same time as the transfer document. The content of the letter need only contain the following line: Restrictive Covenant [doc. #] may have expired and, if so, should be removed from Certificate of Title Volume [#] Folio [#]. Any approved Transfer of Land forms that contain a Limitations, Interests, Encumbrance and Notifications panel that have already been completed and executed, where a restrictive covenant has been left off as it has expired due to a time limitation, will continue to be actioned by Landgate’s Examination Team.

7.5.2

By Agreement (Section 129B of the TLA)

On the application of the proprietor of the land burdened and with the written consent of all persons having an interest in the burdened land (which includes all persons having an interest in the benefit or burden of the restrictive covenant), the Commissioner may instruct the modification or removal of the covenant as an encumbrance. Applications under this section can also be made where the land with the benefit and the land burdened revert to one ownership. The duplicate title(s) (if any) for the land burdened with the covenant must be produced.

7.5.3

By Order of the Court (Section 129C of the TLA)

On the application of the proprietor of the land burdened by the covenant, accompanied by an Order of the Court removing or varying the covenant, the Commissioner will direct the removal of the restrictive covenant as an encumbrance or the endorsement of the title with a memorandum that the covenant has been modified, as the case requires. Recourse to a Court Order is usually required in the case of estate covenants. The Court has the discretion (except in the case of single dwelling covenants benefiting more than 10 lots_ see below) in the number of consents it requires from the other proprietors in the estate. Certain criteria for discharge of restrictive covenants were laid down by Negus J in Smith v Australian Real Estate and Investment Co Ltd (1964) WAR 163. The duplicate certificate(s) of title (if any) for the land burdened by the covenant must be produced.

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7.5.4

Single Dwelling Restrictive Covenants s.129C (1a)

With the introduction of the Transfer of Land Amendment Act 1999 (the Act) and the Transfer of Land Amendment Regulations Act 1999 (the Regulations) that came into operation on 1st June 1999, the mechanism by which a single dwelling restrictive covenant that benefits more than ten (10) lots may be extinguished, discharged or varied by an Order made by the Supreme Court under s.129C of the TLA has changed. A single dwelling restrictive covenant is defined under the Act as a “…..restrictive covenant that prohibits the construction of more than one dwelling on the lot burdened by the covenant.” The burdened lot is the one upon which the restriction is placed. The benefited lot has the benefit or advantage of the restriction. The Act introduces a precondition of written consent, which must be obtained before an application to extinguish, discharge or modify a single dwelling covenant can be heard by the Supreme Court. Written consent must be obtained from the registered proprietors and also from either their mortgagee or chargee who is first in order of priority, of 51% of the lots with the benefit of a single dwelling covenant, located within a prescribed area. Written consent is obtained by sending out of a special form of written notice that has been approved by the Registrar of Titles. 

Note: Where a benefited lot is co-owned, consent is deemed to have been given if, in the case of a joint tenancy, a majority of joint tenants provide written consent. If the lot is held as tenants in common, then consent is deemed to have been given if the registered proprietors who, between them, own the majority of the undivided shares in the lot provide written consent. If the mortgagee or chargee does not consent, then the consent from the registered proprietor of that particular benefited lot cannot be counted. A lot is counted for the purposes of the prescribed area if at least part of it falls inside the prescribed area.

Regulation 8A contains a circle formula to define what is meant by the prescribed area. The prescribed area is determined by reference to proprietorship of lots with the benefit of a single dwelling covenant, located inside a circle of a certain radius from the lot wishing to remove the covenant. The objective is to encompass 200 lots with the benefit of a single dwelling restrictive covenant. The formula contained in the Regulations stipulate a maximum size of the circles to recognise that there may be occasions when despite the size of the circles, 200 lots will not fall inside the circle. In summary, under the Regulations: •

A circle with a radius of 250 metres from the centre of the lot that requests the removal of the single dwelling covenant is drawn.

•

The size of the circle is increased incrementally by 10 metres, until either, at least 200 lots with the benefit of a single dwelling covenant fall inside the circle, or to a maximum radius of 270 metres, which equates to 3 circles.

The circle or circles must always be drawn by a licensed surveyor. The practical effect of these amendments is to make it more difficult for landowners within a neighbourhood of single dwelling restrictive covenants to obtain a Supreme Court Order to remove that covenant. Landowners wishing to remove a single dwelling restrictive covenant must first obtain support to do so from the majority of those, within a circle, who are most likely to be affected by such removal. 

Note: The above requirements apply to all single dwelling restrictive covenants no matter how they were created (ie: by transfer, by deed or on plans of subdivision).

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7.5.5

By Implementation of a Town Planning Scheme (Section 11 in Schedule 7 of the P&D Act)

A Local Government Authority may, by resolution and subsequent publication of same in the Government Gazette, remove a restrictive covenant as part of an amendment to a Town Planning Scheme. The registered proprietor of the land may then apply (on a Form A5) for the removal of the covenant as an encumbrance on the title, quoting the notice in the Government Gazette and producing a letter or other evidence from the Local Government certifying that the land the subject of the application, was released from all or a defined part of the covenant by resolution of the Council. The duplicate certificate of title (if any) for the land burdened by the covenant must be produced. 

Note: Prior to the proclamation of the P&D Act on 9 April 2006, the above-mentioned provisions were set out in s.15 of the Schedule to the TP&D Act.

7.5.6

Discharge and Modification of Restrictive Covenants Created under Part IVA

The proprietor of land burdened or benefited by a restrictive covenant created on a Plan under Part IVA of the TLA may apply on a Form A5 for the restrictive covenant to be discharged or to be modified. The application should contain the written consent of each person who has a registered interest in, or is a caveator in respect of, any land that is burdened or benefited by the restrictive covenant. Where the above mentioned written consent has not been obtained, the procedures as set out in s.136J of the TLA must be complied with prior to the lodgement of the application. In this circumstance the application must be accompanied by a statutory declaration from the applicant that contains the following information: •

That each person who has a registered interest in, or is a caveator in respect of, any land that is either burdened or benefited by the restrictive covenant has been given 28 days’ written notice of both the intention to make the application and the substance of it.

•

That the notice(s) in writing (referred to above) have been properly served in accordance with s.240 of the TLA by .......................................... (insert the specific mode of service used, as authorised under s.240).

•

That notice of both the intention to make the application and the substance of it has been published at least 28 days before the day on which the application is made in a newspaper circulating either throughout the State or in a district where the land is situated.

•

That both of the notices referred to above contained the applicants address for service of notices of objection to the proposed application or to any part of it. Refer to paragraph 1.7.5 for Landgate’s address requirements.

•

That both of the notices referred to above contained the expiry date for objections to be received and the day on which the proposed application is to be lodged, that day being at least 3 days after the expiry date for objections to be received.

A copy of the notice that was published in a newspaper, showing the name of the newspaper and the day of publication should be attached to the statutory declaration of the applicant (Full page of newspaper required to be lodged with the application). The above-mentioned statutory declaration must state the content of the notices to the registered interest holders and the newspaper notice and not merely state that sections 136J (3) (a) and (b) of the TLA have been complied with.

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The notices must clearly state: •

the applicant’s address for the serving of notices of objections to the proposed application or any part of it (refer to paragraph 1.7.5 for Landgate’s address requirements)

•

the commencement date and the expiry date for the 28-day notice period in which objections can be received and

•

the approximate date on which the application will be lodged at Landgate, that date being at least 3 days after the expiry date for objections to be received.

The Commissioner will not direct the Registrar to discharge or modify the restrictive covenant if any objection has been made to the application or any part of it. Receipt of an objection will require the applicant to utilise s.129C of the TLA and obtain a Court Order for the removal or modification of the restrictive covenant. 

Note: It is recommended that the application be lodged as soon as possible after written consent has been obtained or as soon as possible after the expiration of the 3 day period in the case where consent has not been obtained. This will reduce the possibility of the registration of new proprietors or other interest holders before lodgement of the application. In this circumstance extra other notices would need to be sent. If the restrictive covenant is a single dwelling restrictive covenant that benefits more than ten (10) lots, it can only be removed by an order of the Supreme Court after the provisions of s.129C (1a) of the TLA have been met (see paragraph 7.5.3).

7.5.7

Discharge and Modification of Restrictive Covenants in Gross

The proprietor of land burdened by a restrictive covenant in gross created pursuant to s.129BA of the TLA may apply on a Form A5 for the restrictive covenant to be discharged or to be modified. The application should contain the written consent of the relevant Local Government or Public Authority, and the written consent of each person who has a registered interest in any land that is burdened by the restrictive covenant. Where the above mentioned written consent has not been obtained, the requirements set out in s.129BB of the TLA must be complied with prior to the lodgement of the application. In this circumstance the application must be accompanied by a statutory declaration that contains the following information: •

That the Local Government or Public Authority and each person who has a registered interest in any land that is burdened by the restrictive covenant has been given 28 days’ written notice of both the intention to make the application and the substance of it.

•

That the notice(s) in writing (referred to above) have been properly served in accordance with s.240 of the TLA by .......................................... (insert the specific mode of service used, as authorised under s.240.)

•

That the notice(s) of the intention to make the application and the substance of it, has been published at least 28 days before the day on which the application is lodged, in a newspaper circulating either throughout the State or in a district where the land is situated.

•

That both of the notices referred to above contained the applicants address for service of notices of objection to the proposed application or to any part of it. Refer to paragraph 1.7.5 for Landgate’s address requirements.

•

That the applicant has received no objection to the proposed application or any part of it at least 3 days before the application was proposed to be made.

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A copy of the notice that was published in a newspaper, showing the name of the newspaper and the day of publication should be attached to the statutory declaration of the applicant (Full page of newspaper required to be lodged with the application). The Commissioner will not direct the Registrar to discharge or modify the restrictive covenant if any objection has been made to the application or any part of it. Receipt of an objection will require the applicant to utilise s.129C of the TLA and obtain a Court Order for the removal or modification of the restrictive covenant. 

Note: A Local Government or Public Authority that has the benefit of a restrictive covenant in gross created under s.129BA of the TLA may also apply for the restrictive covenant to be discharged or modified with the written consent of each person who has a registered interest in any land that is burdened by the restrictive covenant (including the registered proprietor).

7.5.8

Discharge and Modification of Covenants under the Land Administration Act 1997

A covenant created under s.15 of the LAA may be modified by agreement between the covenantor and the covenantee or discharged by the covenantee. The covenantor and the covenantee may apply on a Form A5 for the covenant to be modified or discharged. The application should contain the written consent of any encumbrancer or caveator over any land that is burdened or benefited by the covenant.

7.6

Easements and Restrictive Covenants Involving Strata Companies

7.6.1

General

Easement and Restrictive Covenant documents executed in respect of strata/survey-strata schemes are subject to the normal requirements. Some issues that have caused problems are discussed in the following paragraphs.

7.6.2

Strata Companies Do Not Own the Parcel in Strata Schemes

Although a strata company may execute a document, in accordance with s.20(1) of the STA, creating easements or restrictive covenants, it does so as the representative of the registered proprietors of the lots (and common property). The strata company does not own any lots or common property. Ownership of the parcel is held by the registered proprietors of the lots (s.17 and 4(4) of the STA). If the ownership of all lots in a strata/survey-strata scheme is identical to that of another parcel of land then the two parcels are held in the same ownership. In accordance with common law principles, easements and restrictive covenants can only be created when the dominant and servient tenements are in separate ownership. Easements or restrictive covenants created on subdivisions under Part IVA of the TLA or s.5D of the STA are statutory exceptions to that principle. Registration of a transfer of at least one strata/survey-strata lot to another person is one way of breaking the unity of ownership.

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7.6.3

Execution of Easements and Restrictive Covenants by Strata Companies

Any easements or restrictive covenants under s.20 of the STA can only be executed by the strata company pursuant to a unanimous resolution. A unanimous resolution can only be achieved at a duly convened general meeting of the strata company of which the requisite notice specifying the proposed resolution has been given. See the definition of unanimous resolution in s.3(1) of the STA. The strata company can only pass such a resolution or any resolution necessary to authorize the execution of the documents, at the earliest on the 16th day after registration of the strata plan (registration date is counted as day one).

7.6.4

Execution of Easements and Restrictive Covenants by Proprietors of Proposed Strata/Survey-Strata Lots - with Proprietors of Land Outside the Scheme

The formalities of execution by strata companies of documents creating easements or restrictive covenants means that such documents cannot be lodged with applications for registration of strata/survey-strata plans. Grants or acceptance of grants of easements and restrictive covenants between the owner of a proposed strata/survey-strata and the owner of another property can be made by reference to an annexed copy of the proposed strata/survey-strata plan and registered before the strata/survey-strata plan.

7.6.5

Easements in Respect of Encroachments

Easements in respect of Encroachments referred to in s.22 of the STA are required to be granted before registration of the strata plan. Accordingly, they can never be executed by the strata company (see paragraph 6.4.2).

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8.

Roads and Their Closure

This chapter relates to the creation of roads, both public and private, how they are closed and what happens to the land comprised in the road being created or closed.

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8.1

Roads and their Closure

For the sake of clarity when the words public road are used they may be taken to include public street, highway or public thoroughfare. Where the words private road are used they also include private right of way, walkway and pedestrian access way. The subject to be discussed is the manner in which roads, both public and private, are created: what happens to the fee simple of the land in the road; how they are closed; and how the fee of the roads is dealt with, i.e.: the land comprising the road. Public roads were formerly shown coloured pink on surveys registered under the TLA and brown on the public plan series, however, colouring in no longer used on the creation of new deposited plans. Dedicated roads on SmartPlan are coloured brown, however, some roads are still uncoloured (white) pending ongoing data capture action. Part 5 of the LAA provides the current primary legislative basis for the creation/dedication of roads and closure of roads and private roads in Western Australia. Before the LAA was proclaimed on 30 March 1998, the Local Government Act 1960 was the primary legislation for administering the creation, management and closure of roads. The provisions relating to roads in the Local Government Act 1960 were repealed and replaced by Division 1 of Part 5 of the LAA. A road consists of the road corridors which is the cadastral boundaries of a land parcel created for road purposes. The cadastral boundaries define the legal limits of the road. Generally, road corridors include the constructed bitumen road, the kerbing and verge areas (for example: street lawns in urban areas, road side vegetation in rural areas) up to the boundaries of abutting land parcels. A road may have a 2 dimensional configuration (length and width) or a 3-dimensional configuration (length, width and height or depth or both) as specified on a deposited plan lodged with the Registrar of Titles. A road may be situated in airspace, waters or, on the surface of or below the ground (including the bed of waters). For example, a 3-dimensional road may be constructed in tunnels, bridges and overpasses.

8.2

Creation of Public Roads

8.2.1

Crown Land

A public road is created by: •

being set out as a road on an approved Crown deposited plan that additionally includes a lot for non-road purposes. Automatic dedication occurs under s.28 of the LAA on approval of the deposited plan.

•

being declared as a road in a Road Dedication (Ministerial) Order lodged and registered against a Crown land title. Dedication occurs under s.56 of the LAA on registration of the road dedication document.

8.2.2

Alienated Land

A public road is created: •

By taking for the purpose of a road under s.177 of the LAA and s.3.55 of the Local Government Act 1995 and consequential dedication under s.56 of the LAA.

•

By setting out a private road on a plan and subsequently dedicating it to public use under the provisions of s.56 of the LAA. This is firstly considered by the Local Government who in accordance with the regulations may then request the Minister to dedicate the land as a road. Where the Minister grants the request, the Dedication Order, which is endorsed on the freehold title, has the effect of transferring that private road to the Crown in the name of the State of Western Australia and revesting the land as Crown land on registration of that Order. Any encumbrances or implied rights under s.167 of the TLA that may be attached to the land are extinguished by the dedication (see paragraph 8.4.4).

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•

By setting out a road on a plan of subdivision and subsequently dedicating it to public use under the automatic dedication provisions of the Local Government (Miscellaneous Provisions) Act 1960, s.295(5). Prior to the coming into operation of the Local Government Act, Amendment Act 1969 (proclaimed 13 December, 1969) such roads were dedicated to public use by the registration of a transfer of one of the lots shown thereon. Since that date such roads are dedicated to public use by the approval of the plan of subdivision by the Inspector of Plans and Surveys.

•

Where land is transferred to the State of Western Australia or a Local Government and the transfer document contains a statement that the transfer is for the purpose of extending or adding to an existing public road pursuant to s.168 (5) of the P&D Act (formerly s.28(1) of the TP&D Act). Dedication is effective from the date of registration of the transfer. Any existing encumbrances, interests or caveats affecting the parcel of land transferred must be removed prior to the dedication.

•

Where a road corner shown on any registered plan is rounded off or truncated by any new plan. The portion of the land so rounded off or truncated forms part of the public road and is dedicated to public use on the date of approval of the new plan by the Inspector of Plans and Surveys (s.168 (3) P&D Act, formerly s.28(2) TP&D Act).

•

Where any part of the land on a plan of subdivision is marked road widening. Such portion is dedicated to public use and forms part of the road so widened on approval of the plan by the Inspector of Plans and Surveys (see s.168 (3) of the P&D Act, formerly s.28 (3) of the TP&D Act).

•

Where the road widening is the only land on the plan there is no automatic dedication as a public road and further action by way of notification in the Government Gazette or registered transfer is required.

•

A local Government may also have a proposed road widening surveyed out, but may pend the legal dedication of the road as public until such time as any buildings encroaching on the new road alignment are demolished. When the land is clear of buildings it is dedicated as a public road upon an order of the Governor (Local Government (Miscellaneous Provisions) Act 1960, s.364).

8.2.3

Railway Land

Prior to the introduction of the LAA, land originally taken for railway purposes on an approved survey and then no longer required as a railway could be dedicated as a public road by a notice published in the Government Gazette (Public Works Act 1902, s.105). On the introduction of the LAA, s.105 of the Public Works Act 1902 was repealed (see s.54 of the LAA). In these instances, the Department of Lands now arrange the necessary steps to be taken to have the land made Unallocated Crown land. A road dedication order is then lodged under s.56 of the LAA to dedicate the land as a road.

8.2.4

Ownership, Care, Control and Access to Roads

The State of Western Australia is the owner of all land in roads. All subsequent actions to change the course or status of a road are taken by the Department of Lands. The Department of Lands is not, however, charged with the maintenance and construction of roads, it acts as an agent attending to the legalities.

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The care, control and management of public roads is with the Local Governments (s.3.53 of the Local Government Act 1995 and s.55 (2) of the LAA). Not all roads, however, are under or remain under the care, control and management of the Local Government. By a proclamation pursuant to s.13 of the Main Roads Act 1930, the Commissioner for Main Roads may declare any road or part of a road to be either a highway or a main road. The proclamation takes effect from the date of its publication in the Government Gazette. The care, control and management of the highway or main road is then vested in the Commissioner (s.15 of the Main Roads Act 1930). Access to a road either on foot or by vehicles, can be restricted in the case of main roads or highways by the proclamation pursuant to s.28A of the Main Roads Act 1930 by the Commissioner of Main Roads. The proclamation takes effect from the date of its publication in the Government Gazette. Pseudo methods of controlling vehicular access to roads have been introduced by Local Governments and the Western Australian Planning Commission by creating a 0.1 metre wide strip of land parallel to the Road Boundary and vesting the land in the Crown as a pedestrian accessway pursuant to s.20A of the TP&D Act. Ultimately the pedestrian accessway may be revested and declared a reserve and placed under the care, control and management of the Local Government. Purchasers of land adjoining main roads or highways (and their agents) would be well advised to seek from the Main Roads Department information on the status of road access. If the road in question was created as part of a subdivision of freehold land, it will most likely be a local road under the control of the Local Government. Prior to the LAA if the road was originally created by a survey of Crown land or has at any time been extended, widened or deviated by actions in the Department of Lands; the former public plan series would show a road number reference, which can be used to retrieve a Department of Lands file for information purposes. The road number references were utilised for gazettal purposes. Roads now created under the LAA over Crown land no longer show a road number, however, a Department of Lands file number (generally the survey file) is shown on Crown deposited plans or on the document where a Road Dedication Order has been registered. Some of the more recently created freeways have been created by the resumption (now called taking) or purchase of freehold land and have not yet been dedicated as a public road and therefore, not revested as Crown land. Such roads are shown in white on the former public plans series or yellow on SmartPlan and a title for the land can be searched. Protected Roads are unsurveyed roads shown on Landgate’s Crown plans and original public plans (which have now been superseded by SmartPlan), extending only across unallocated Crown land, reserves and State forests. Where shown on a Crown plan, protected roads indicate the approximate position of a road. The purpose was to assist in future subdivision over the area and to indicate the presence of a road in the event of an enquiry over the land. Prior to 1961, under the Road Districts Act 1932, a protected road or any road shown on a Landgate Crown plan was and remains a public road, and the local authority had control and power to finance its construction. After 1961, under the Local Government Act 1960, this power was lost and protected roads created after 1961 are not considered public roads. Where a protected road was shown on plans after 1 July 1961 and is shown over a reserve, it is not legally available for public access unless it has been formally dedicated and removed from that reserve. The same principle applies to other forms of Crown tenure. For a protected road to be deemed to be for public use, it must have existed on Landgate’s plans prior to 1 July 1961 and must have been created over unallocated Crown land, or excised from the tenure and then created.

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8.3

Creation of Private Roads

8.3.1

Private Roads and Rights of Way

The term private roads (which includes private right of way) is applied to those roads set out on a plan of subdivision of privately owned land under the Act which have not been dedicated to public use. These roads were formerly shown coloured brown on all plans registered under the TLA, however, colouring is no longer used on the creation of new deposited plans and on SmartPlan they are coloured yellow the same as other freehold land. Private roads set out on plans of subdivision are appurtenant only to those lots on the plan which abut onto the private road, unless additional rights have been granted by registered easement (s.167A). The implied right of way which the owner of a lot abutting onto a right of way acquires by the purchase of that lot, is as legally binding as that gained by a right of way created by a registered grant of easement. Crown land right of ways were created by the Minister for Lands under the Land Act 1933 or earlier legislation. These rights of way are not subject to private access rights in favour of adjoining landowners under s.167A of the TLA. These rights of way remain Crown land and are actually accessway reserves.

8.3.2

Pedestrian Accessways and Rights of Way under Section 152 of the Planning and Development Act 2005

Pedestrian accessways (PAWs) and right of ways (ROWs) created on deposited plans of subdivisions for freehold land pursuant to the provisions of s.152 of the P&D Act vest in the Crown. A Crown Land Title, in the name of the State of Western Australia, will be created and registered for each PAW or ROW that is vested in the Crown. PAWs are created as a requirement of the WAPC as part of the subdivision of freehold land, as a means of pedestrian access between public roads, and for providing a corridor for public utility services. ROWs are created as a requirement of the WAPC upon subdivision to allow for existing or planned future public access over land by vehicles, cycles or pedestrians, usually where it is not considered appropriate or possible to dedicate land as a public road under the LAA or as a road widening under s.168 of the P&D Act (formerly s.28 of the TP&D Act). Prior to the introduction of the Reserves and Land Revestment Act 57 of 1991, the land so vested was subject to the rights of the adjoining landowners in accordance with s.167A of the TLA. The Reserves and Land Revestment Act removed those rights, both for new surveys and for all existing surveys, in those cases where the land vested in the Crown pursuant to s.152 of the P&D Act. Therefore, none of these PAWs or ROWs are subject to private access rights in favour of adjoining landowners under s.167A of the TLA. 


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8.4

Closure of Roads, Pedestrian Accessways and Rights of Way

8.4.1

Closure of Public Roads

Public roads are closed in the following ways: •

by registration of a Ministerial Order under s.58 of the LAA

•

by a taking of all, or part, of a road for a public work under the LAA

•

by the passage of an Act of Parliament

Public roads could formerly be closed by a notice to that effect published in the Government Gazette under the provisions of sections 287, 288A and 294 of the Local Government (Miscellaneous Provisions) Act 1960 but those sections were repealed on the introduction of the LAA (see s.66 of the Acts Amendment (Land Administration) Act 1997). Where a road dedicated for public use is proposed to be closed, it may be closed at the request of Local Government under s.58 of the LAA. The Local Government must allow 35 days after the publication in a newspaper for objections and must consider any objection before requesting closure. Regulation 9 of the Land Administration Regulations 1998 specifies the procedural requirements of Local Government prior to submitting a request to the Minister for Lands. 

Note: Where a road is closed or is to be closed and the land in the road is included in a new plan of subdivision, the matter of obtaining title to that land can be a prolonged operation. Action to obtain title should be commenced at the earliest possible time.

8.4.2

Disposal of Land in a Closed Road

On the introduction of the LAA a road is now closed by a Road Closure (Ministerial) Order document. As part of the closure process the Local Government informs the Minister of the proposed future disposition of the land in the closed road to adjoining land holders. Section 87 of the LAA provides the means for disposal of the land in a closed road by lodgement of a Conveyance and Amalgamation Order by DPI that allows for amalgamation of land into an adjoining land holder’s land (see paragraph 12.3.1).

8.4.2.1

After 29 October 1962 and prior to the introduction of the LAA

During this period all closed roads, being land under the TLA, were vested in the Crown and removed from the operation of that Act. On the same day the Land Act, Amendment Act 1962 came into operation and added Sections 118A to 118H to the principal Act. These sections provided the means for disposal of closed roads, closed rabbit proof fence reserves, closed railways and any additional Crown land for the purpose of adjustment of boundaries. Any land disposed of under the authority of these sections was made the subject of a Closed Road Certificate issued by Department of Lands. On the application of the person entitled, using a Form A6, the payment of the required fee, the production of the Closed Road Certificate and the duplicate certificate of title (if any) or Crown lease, a new certificate of title was created and registered or the Crown lease amended to reflect the inclusion of the closed road. With the introduction of the LAA sections 118A to 118H of the Land Act 1933 as amended have been replaced with s.87 of the LAA.

8.4.2.2

After 1 July 1961 and prior to the introduction of the Local Government Act, Amendment Act No 381962

During this period there were no means whereby closed roads could be disposed of other than by a registered transfer of the closed road under the TLA or by the creation and registration of a Crown Grant in the case of a Crown road, due to the repeal of the Closed Roads Alienation Act 1932 by the Local Government Act 1960 and the failure to provide alternative legislative machinery to deal with closed roads.

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8.4.2.3

Before the introduction of the Local Government Act 1960

During this period roads were controlled by Local Governments under the provisions of the Road District Act 1919 and the Municipal Corporations Act 1906. Roads in a municipal district were closed and the fee of a road was disposed of by an Act of Parliament passed for that purpose. Roads, not being Crown roads, closed under the Road Districts Act were disposed of under s.151(3) of that Act. The fee of the road so closed: •

reverted to being part of the location or lot from which it was originally taken

•

and for the same estate or interest

•

vested in the owner of that lot or location (where there were two adjoining owners each took one half of the closed road) and

•

was subject to any encumbrances on the land to which it reverted.

On the application of the person entitled, the payment of the required fee and the production of the existing duplicate certificate of title (if any), a new title is created and registered incorporating the portion of the closed road to which the applicant is entitled. The fee of the roads, being Crown roads closed under the Road Districts Act 1919 was disposed of under the provisions of the Closed Roads Alienation Act 1932. A closed road certificate was issued from the DoL for the part, or whole, of the closed road. On the application of the person entitled, the payment of the prescribed fee, the production of the closed road certificate and the duplicate certificate of title (if any) or Crown lease, a new certificate of title was created and registered or the Crown lease was amended.

8.4.3

Closure of Private Roads and Rights of Way by Application

The owner of the fee simple of a private road or right of way may close it by application to the Registrar on Form A5. For such an application the following should be noted: •

the application must be made by the registered proprietor of the fee of the road or right of way

•

any easement granted expressly by transfer must be the subject of a formal surrender by the dominant owner. Any encumbrancer of the dominant tenement must consent to the surrender

•

the proprietor of the original lots on the plan of subdivision that abut the road or right of way must also execute a formal surrender of their implied rights. If an original lot has been subdivided, surrenders must be obtained from all the proprietors of all the new lots that formed part of the original lot, not just the part of the subdivided lot that abuts the road or right of way

•

all surrenders must be stamped by the Office of State Revenue (Stamp Duties Division) but the application is not dutiable and

•

a consent in writing must be obtained from all encumbrancers of any land the proprietors of which have implied rights of way over the private road or right of way.

A deposited plan of subdivision incorporating the land the subject of the closed road or right of way may be lodged at Landgate but no action may be taken on the plan until the road or right of way is closed. After closure of the road or right of way an application for a new title the subject of the plan is required. This application (using Form A6) may be lodged simultaneously with the application to close the road or right of way. Where no new deposited plan of subdivision is being lodged to incorporate the road or right of way being closed, the land therein, for the purpose of identification, reverts to its original lot. An application for a new title for the closed road or right of way must be made. This application (using Form A6) may be lodged simultaneously with the application to close the road or right of way.

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The title for the land in the road or right of way to be closed must be produced unless it is partially cancelled and held by Landgate. After lodgement, each application to close a road or right of way is submitted to the Commissioner for approval and if satisfied that the requirements have been met, effect will be given to the closure.

8.4.4

Closure of Private Roads and Rights of Way at the Request of Local Governments

Freehold private roads may be closed under s.52 of the LAA, by way of an Acquisition Order made by the Minister or under s.56 (dedication), at the request of a Local Government. However, closure of PAWs and ROWs vested in the Crown under s.152 of the P&D Act (formerly s.20A of the TP&D Act) is dealt with differently (see paragraph 8.4.5). Generally, road closures will not be approved by the Minister or his or her delegate unless the road is to be totally amalgamated into adjoining land or is reserved with a management order to an appropriate management body. In general it is Department of Lands’s preference that management responsibility for the land once the road has been closed is undertaken by local government. Private roads (for the purposes of this paragraph) generally consist of land set aside in older subdivisions of freehold land as laneways at the rear of residential lots. Fee simple title to the land in private roads usually remains in the name of the original subdivider, but who in fact has no further real interest in the land. Commonly, such landowners are long since deceased, or defunct land development companies. The private road may be subject to implied easements under s.167A of the TLA in favour of the residential lots created by the relevant plan of subdivision. Registration of an Acquisition Order under s.52 extinguishes all rights, interests and encumbrances affecting the subject land and revests the land as Crown land. Where a private road is closed by an Acquisition Order under s.52 of the LAA, compensation is not payable to any person with an interest in the land (including the owner of the fee simple interest in the land) nor any person who may have the benefit of an easement over the private road created under s.167A of the TLA. Before Local Government can request the Minister for Lands to close a private road, Local Government must comply with the requirements set out in s.52 of the LAA and regulation 6 of the Land Administration Regulations 1998. As part of the closure process the Local Government informs the Minister of the proposed future disposition of the land in the closed road to adjoining land holders. s.87 of the LAA provides the means for disposal of the land in a closed road by lodgement of a Conveyance and Amalgamation Order by DPI that allows for amalgamation of land into an adjoining land holder’s land (see paragraph 12.3.1) A private road may also be closed by subsequently dedicating it to public use under the provisions of s.56 of the LAA. This is considered by the Local Government on: •

the request of the owner of the street or right of way made to the Local Government

•

the request of the owners of rateable property abutting the street or right of way or at least the owners of more than one half of the sum of the rateable values of the abutting properties or

•

where the public has had uninterrupted use of the street or right of way for a period of not less than ten years.

Local Government may then in accordance with the regulations request the Minister to dedicate the land as a road. Where the Minister grants the request, the Dedication Order, which is endorsed on the freehold title, has the effect of transferring that private road to the Crown in the name of the State of Western Australia and revesting the land as Crown land on registration of that Order. Any encumbrances or implied rights under s.167 of the TLA that may be attached to the land are extinguished by the dedication.

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8.4.4.1

Closure by local government prior to the introduction of the LAA

Prior to the introduction of the LAA private roads could be closed following a resolution to that effect by a Local Government and the approval of that resolution by the Governor in Council. This course of action was initiated by the registered proprietor or some other person applying to the Local Government. Procedures to be followed by the Local Authority were laid down in the Local Government (Miscellaneous Provisions) Act 1960, s.297A. Upon publication in the Government Gazette of the resolution of the Local Government to close the private road and the registration of an approved plan in Landgate, the private road was: •

closed

•

freed from the right of any person to use the same as a private road

•

divided in accordance with the resolution of the Local Government and each portion is vested in the owner of an adjoining lot in accordance with the plan, and

•

made part of the lot to which it is attached in Landgate’s records.

The closure was noted on each title and the inclusion of the closed road was effected automatically when any dealing was lodged on affected land for which the duplicate certificate (if any) was produced. Inclusion in the appropriate dealing is effected by adding at the end of the normal land description the words: “Including the fee of the closed private street. s.297A Local Government (Miscellaneous Provisions) Act, 1960.” Where no dealing is contemplated, applications (which are free), may be made to include in a new title the closed private way or portion thereof to which the applicants are entitled. Using application Form A6 the Reason for Application panel should be completed as follows: “to include in the new title being created and registered the portion of the road closed pursuant to s.297A of the Local Government (Miscellaneous Provisions) Act 1960 the fee of which is comprised in Title Volume ...... Folio ...... to which the applicant is entitled.” The existing duplicate certificate of title (if any) must be produced. Section 297A of the Local Government (Miscellaneous Provisions) Act 1960 has been repealed by the introduction of the LAA (see s.67 of the LAA).

8.4.4.2

Conversion of private road or right of way to public road prior to the introduction of the LAA

Prior to the Introduction of the LAA a private street or right of way could be dedicated as a public street under the provisions of the Local Government (Miscellaneous Provisions) Act 1960 (s.288) on: •

the request of the owner of the street or right of way made to the Local Government

•

the request of the owners of rateable property abutting the street or right of way or at least the owners of more than one half of the sum of the rateable values of the abutting properties or

•

the request of the Local Government, where the public has had uninterrupted use of the street or right of way for a period of not less than ten years.

All of the above requests were implemented by a request from the Local Authority made to the Minister for Lands and processed by DPI. Section 288 of the Local Government (Miscellaneous Provisions) Act 1960 has been repealed by the introduction of the LAA (see s.66 of the Acts Amendment (Land Administration) Act 1997). This process is now available under s.56 of the LAA.

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8.4.5

Closure of Pedestrian Accessways and Rights of Way Vested under Section 20A of the Town Planning and Development Act 1928

As PAWs and ROWs created under s.20A of the TP&D Act are owned in freehold by the State of Western Australia, this category of thoroughfare, defined as a private road under the LAA, can be closed by simply revesting the land under s.82 of the LAA by registering a Revestment Order with the Registrar of Titles. PAWs and ROWs are created as part of a land planning requirement in new subdivisions to provide access for a number of users and for access to a range of facilities. Local Government must assess the impact of closing a PAW or ROW and in considering a closure request, a balance needs to be found between resident accessibility to facilities and public transport, and security and amenity. Where Local Government proceeds with a closure request, it is required to prepare a summary report for DPI that also includes confirmation that the Local Government has resolved to recommend the closure. Generally a PAW or ROW will only be closed when it can be sold to the adjoining landowners or reserved and vested in an appropriate agency for public utility purposes. Where the land is to be sold, the Local Government informs the Minister of the proposed future disposition of the land in the closed PAW or ROW to adjoining land holders. Section 87 of the LAA provides the means for disposal of the land by lodgement of a Conveyance and Amalgamation Order by DPI that allows for amalgamation of land into an adjoining land holder’s land (see paragraph 12.3.1). Alternatively, a PAW or ROW may also be closed by subsequently dedicating it to public use as a road under the provisions of s.56 of the LAA. Where the Minister agrees, a Dedication Order, which is endorsed on the freehold title, has the effect of revesting the land as Crown land on registration of that Order.

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9.

Bringing Land under the TLA and Possessory Titles (Adverse Possession)

This chapter identifies the requirements when bring land under the operations of the Transfer of Land Act 1893 and application for fee simple land pursuant to a claim by adverse possession.

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9.1

Bringing Land under the Transfer of Land Act 1893

9.1.1

General

Land which was alienated from the Crown before 1 July, 1875 may be brought under the operation of the TLA by the application of a person entitled to do so, upon payment of the fees prescribed. The entitlement of a person may arise from a chain of conveyances from the original grantee to the applicant or by the possession of the land by the applicant against the original grantee or a combination of both.

9.1.2

Right to Apply

The right to apply arises: •

where a person or corporation can establish the ownership of land by documentary title (in such cases there will be no requirement to satisfy the limitation periods under the Limitation Act 1935) or

•

where a person or corporation has been in possession of land for the required length of time under the Limitation Act 1935. This period is 12 years where the true owner can be proved to have been under no legal disability at the time possession commenced and 30 years where it cannot be proved that the true owner was not under a legal disability at the time possession commenced. A legal disability may be defined as infancy, idiocy, lunacy or unsoundness of mind.

Conveyancers should consider the effect of s.5(b) of the Limitation Act 1935 on the point of commencement of adverse possession in cases where the beneficiary of a registered proprietor (who is first dispossessed then later dies) gains a right of action for recovery of possession. The declaration of any person making an application where such circumstances apply should, in the applicant’s declaration, negate the effect of the death.

9.1.3

How to Apply

It is recommended that a blank instrument Form B2 Blank Instrument Form be used to prepare the application in the form suggested by the Second Schedule to the Act. A modified version of the form is set out below. It should be noted that the form incorporates a declaration and only those witnesses set out in the Second Schedule may witness the signature of the applicant. Where a corporation is the applicant, the application must be drawn in the name of the corporation and the declaration should be made by a responsible officer of the corporation. The Officer should then sign the application before one of the prescribed witnesses and have the corporation affix its Seal in the usual manner.

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9.1.4

Form of Application

9.1.4.1

Form for personal application Page 1 of 2 Pages

WESTERN AUSTRALIA TRANSFER OF LAND ACT 1893 (2nd Schedule) Application to bring land under the operation of the Transfer to Land Act 1893. To the Registrar of Titles. I (insert Name and Address) hereby apply to have the land hereinafter described brought under the operation of the Transfer of Land Act 1893. and I declare: That I am the owner of an estate in fee simple in possession (or of an estate of freehold in possession for my life or otherwise as the case may require) in All that land being (describe the land) (if the land is not a fully surveyed lot or location show the area using the words which land contains x hectares or square metres) as is described in the document numbered ........ in the Schedule hereto. That such land including all buildings and other improvements thereon is of the value of (number of dollars in words) dollars and no more. That there are no documents or evidences of title affecting such land in my possession or under my control other than those included in the Schedule hereto. That I am not aware of any mortgage or encumbrance or lease affecting the said land or that any other person has any estate or interest therein at law or in equity in possession remainder reversion or expectancy (if there be any add “other than as follows” and set them out). That the said land is occupied (if unoccupied prefix “un” to occupied) (if occupied add by whom and state the name and address of the occupant and the nature of the occupancy). That the names and addresses so far as known to me of the occupants of all lands contiguous to the said land are as follows: (Here list the contiguous Lots and their Occupants). That the names and addresses so far as known to me of the owners of all lands contiguous to the said land are as follows: (Here list the contiguous Lots and their Owners).

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Page 2 of 2 Pages

Dated this

day of

Two Thousand and Made and subscribed at

) (Signature of Applicant)

in the presence of

)

(Signature of Witness) Qualification of Witness Schedule of Documents referred to (Here list the documents referred to above produced with the application).

The applicant, if within the State, to sign before the Registrar of Titles or an Assistant Registrar of Titles or a Notary Public, Justice of the Peace, Commissioner for taking Affidavits in the Supreme Court of Western Australia or Legal Practitioner; if out of the State, before a Notary Public, Justice of the Peace or a Commissioner for taking Affidavits in the Supreme Court of Western Australia.

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9.1.4.2

Form for application by a corporation: Page 1 of 2 Pages

WESTERN AUSTRALIA TRANSFER OF LAND ACT 1893 (2nd Schedule) Application to bring land under the operation of the Transfer to Land Act 1893. To the Registrar of Titles. (insert Name, A.C.N. and Address of Corporation) (hereinafter called the “Company”) hereby applies to have the land hereinafter described brought under the operation of the Transfer of Land Act 1893. and I (Name of Director or Corporation official, Address and status in company) declare: I am authorised to make this statement, and I have had access to all the records of the Company to enable me to make it. That the Company is the owner of an estate in fee simple in possession (or otherwise as the case may require) in All that land being (describe the land) (if the land is not a fully surveyed lot or location show the area using the words “which land contains x hectares or square metres) as is described in the document numbered ........ in the Schedule hereto. That such land including all buildings and other improvements thereon is of the value of (number of dollars in words) dollars and no more. That there are no documents or evidences of title affecting such land in my possession or under my control or in the Company’s possession or control other than those included in the Schedule hereto. That I am not aware of any mortgage or encumbrance or lease affecting the said land or that any other person has any estate or interest therein at law or in equity in possession remainder reversion or expectancy (if there be any add “other than as follows” and set them out). That the said land is occupied (if unoccupied prefix “un” to occupied) (if occupied add by whom and state the name and address of the occupant and the nature of the occupancy). That the names and addresses so far as known to me of the occupants of all lands contiguous to the said land are as follows: (Here list the contiguous Lots and their Occupants). That the names and addresses so far as known to me of the owners of all lands contiguous to the said land are as follows: (Here list the contiguous Lots and their Owners).

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Page 2 of 2 Pages

Dated this day of Two Thousand and Made and subscribed at Official)

)(Signature of Director or Corporate

in the presence of

)

(Signature of Witness) Qualification of Witness The Common Seal of (Name of Company)

)

A.C.N. 123 456 789 was hereto

)(Common Seal)

affixed in the presence of:

)

(Signature of Director) Director (Signature of Director/Secretary) Director/Secretary Schedule of Documents referred to (Here list the documents referred to above produced with the application).

The applicant, if in the State, to sign before the Registrar of Titles, an Assistant Registrar of Titles or any person who, under the Oaths, Affidavits and Statutory Declarations Act 2005, is an authorised witness for an affidavit made in the State; if out of the State, to sign before any person who, under the Act, is an authorised witness for an affidavit made out of the State.

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9.1.5

Who May Apply

The persons who may apply are set out in s.20 of the TLA. The applicant may be the owner by documentary title or he may have had possession for a sufficient length of time to oust the true owner. The following points should be noted: •

all the persons entitled to apply must apply together. The owner of an undivided share may not bring that share alone under the operation of the Act

•

a life tenant may not apply unless the person entitled to the estate in remainder joins in the application

•

where the applicant’s land is mortgaged the application must have the formal endorsed consent of the mortgagee (or evidence of the repayment of the loan and non-availability of the mortgagee to sign a memorandum of satisfaction, see also paragraph 2.6.17) and

•

where a mortgagee is the applicant he or she must be exercising his or her power to sell and must direct that the title be created and registered in the name of the purchaser.

9.1.6

Proving Documentary Title

All deeds comprising the chain of title must be produced. All deeds and other documents comprising the chain of title should be listed in the order of their dates of execution or issue in the schedule of documents set out in the application. Where any of the deeds or other documents are lost or are outside the control of the applicant, the applicant should: •

declare by separate declaration the circumstances of their loss or who has control of the deeds.

•

provide photocopies of lost or missing documents from searches made at the Deeds Registry annexed to the statutory declaration.

If the application is granted, all the deeds produced are retained by Landgate, except where only part of the land in the deed is being dealt with. In that case the deed is suitably endorsed and returned to the applicant.

9.1.7

Survey Requirements

A correct description of the land, the subject of the application, is prepared by the Inspector of Plans and Surveys. The Inspector considers whether there is sufficient survey information relative to the land and makes a recommendation to the Commissioner as to whether or not a survey should be required. A survey, if required, must be carried out by a private registered surveyor and a Deposited Plan of survey lodged at Landgate.

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9.1.8

Examination of Application

The application is submitted to the Commissioner, who may make requisitions if not satisfied with the evidence produced. When the Commissioner is satisfied that the application may be granted, notice of intention to grant the application is published in the Government Gazette and in a newspaper circulating in the City of Perth or in the neighbourhood of the land. A copy of the advertisement is sent by certified mail to the owners, occupiers and encumbrancers of contiguous land. The period of advertising may be not less than two weeks nor more than twelve months. If, within the advertising period, no caveat against the application is lodged, a title for the land is prepared, which is later issued to the person entitled to receive it. Where the application being advertised is an application by possession, a notice in the form of the Third Schedule to the TLA must be posted on the land, in a position directed by the Commissioner, for a period of three weeks during the advertising period. The notice or sign board to be approximately 1 metre x 600 mm in size, with lettering or text in proportion, erected 2 metres above ground level. The Commissioner will direct that the notice is to be erected in a position where it is clearly visible, and readable, by persons going past the property. Proof of posting such notice must be made in the form of a statutory declaration and a copy of the text of the notice produced as an exhibit to the declaration (s.24 of the TLA).

9.1.9

Caveat Against Application

Any person claiming an estate or interest in the land may lodge a caveat against the application under s.30. The subject is fully treated in paragraph 4.2.11. It is important to note that unless the caveator takes Court proceedings to establish the claim and notifies the Registrar accordingly within one month of lodging the caveat, the caveat lapses under s.32.

9.1.10

Land Brought under the TLA by Operation of Other Statutes

9.1.10.1

By taking

Land, not under the operation of the Act, when taken for a public work under Part 9 of the LAA is brought under the operation of the Act by the lodging of a Taking (Ministerial) Order. A Crown land title (CLT) for the land may be created and registered in the name of the State of Western Australia. The CLT may subsequently be disposed of or granted to a Crown Instrumentality or Local Government for whom the land is taken.

9.1.10.2

By acquisition by the Commonwealth

Land, not under the operation of the Act, and in some cases not alienated from the Crown, when acquired by the Commonwealth under the Lands Acquisition Act 1989 is brought under the operation of the TLA by publication of a Notice of Acquisition in the Commonwealth Gazette. On the application of the Commonwealth together with a copy of the Notice of Acquisition, a certificate of title in the name of the Commonwealth of Australia is created and registered. It should be noted that land acquired by the Commonwealth under the abovementioned Act is brought under the operation of the TLA by virtue of s.4 of the Real Property (Commonwealth Titles) Act 1925 (No 3 of 1925) (WA).

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9.2

Applications for Title by Possession (Adverse Possession)

9.2.1

How Claim Arises

Land which is already under the operation of the Act may be made the subject of an application for a title by possession. The applicant must be able to show possession for a period of: •

twelve years, where it can be proved that the registered proprietor was under no legal disability at the time of possession commenced (see also paragraph 9.1.2) or

•

thirty years, where it cannot be proved that the registered proprietor was under no legal disability at the time possession commenced (see also paragraph 9.1.2).

Where the rights of a registered proprietor have lapsed by adverse possession, the subsequent strata titling of the land cannot defeat the adverse possessors interest (Murray J, Nickola Petkov v Lucerne Nominees Pty Ltd (unreported) Supreme Court of Western Australia No 1060 of 1989). A person may not acquire Crown land by adverse possession (s.36 of the Limitation Act 1935).

9.2.2

How to Apply

It is recommended that a blank instrument Form B2 be used to prepare the application in the form of the Fourth Schedule to the Act. A modified version of the form is set out below. It should be noted that the form incorporates a declaration and the signing and witnessing requirements are similar to those required for applications under s.20 (see paragraph 9.1.3).

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9.2.3

Form of Application

The application should be made in the following form: Page 1 of 2 Pages

WESTERN AUSTRALIA TRANSFER OF LAND ACT 1893 (4th Schedule) Application to be registered as Proprietor by Possession of Land already under the Transfer of Land Act 1893. To the Registrar of Titles. I (insert Name and Address) do hereby apply to be registered as proprietor of All that land being (insert description of land according to the existing certificate or if a part only of the land in a title is to be applied for, state the fact and refer to a fully dimensioned sketch). I claim to have acquired an estate in fee simple in possession in such land under the circumstances and on the grounds following: (Here set out a brief narration of the circumstances and grounds of claim, eg: I claim to have acquired the rights to be registered as the proprietor of the land by virtue of thirty years continuous possession adverse to the legal owner). and I declare: 1.

That such land including all buildings and other improvements thereon is of the value of (number of dollars in words) dollars and no more.

2.

That there are no documents or evidences of title affecting such land in my possession or control other than those included in the Schedule hereto.

3. That the said land is occupied (if unoccupied prefix “un” to occupied) (if occupied add by whom and state the name and address of the occupant and the nature and period of the occupancy). 4.

That the names and addresses so far as known to me of the occupants of all lands contiguous to the said land are as follows: (Here list the contiguous Lots and their Occupants).

5.

That the names and addresses so far as known to me of the owners of all lands contiguous to the said land are as follow: (Here list the contiguous Lots and their Owners).

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Page 2 of 2 Pages

Made and subscribed at

)

in the presence of

)

(Signature of Applicant)

(Signature of Witness) Qualification of Witness Schedule of documents referred to (Here list the documents referred to above produced with the application).

The applicant, if in the State, to sign before the Registrar of Titles, an Assistant Registrar of Titles or any person who, under the Oaths, Affidavits and Statutory Declarations Act 2005, is an authorised witness for an affidavit made in the State; if out of the State, to sign before any person who, under the Act, is an authorised witness for an affidavit made out of the State.

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9.2.4

Proving Possessory Title

The proof required to establish title by possession is the same whether the land under possession is not under the Act or is already registered under the Act. The following considerations are or may be material: •

The possession of land must be considered in every case with reference to its peculiar circumstances. The acts implying possession in one case may be wholly inadequate to prove it in another.

•

The character and value of the property, the suitable and natural mode of using it, the course of conduct which the proprietor might reasonably be expected to follow with a due regard to his or her own interests are all matters, greatly varying as they must under various conditions, which are to be taken into account.

•

When possession or dispossession has to be inferred from equivocal acts, the intention with which acts are done is all important.

•

The nature of the property must be looked at and the person alleging rights accruing from possession must show that acts were done which were inconsistent with the enjoyment of the land by the true owner for the purpose for which he or she intended to use it.

•

Acts done may be given a more limited effect than otherwise may have been the case if they may be taken in the circumstances, not as indicating an intention to exclude the true owner but as indicating an intention merely to produce a special benefit to the person doing them (for instance, the registered proprietor may have given the applicant occupation rights rent free on the basis of the maintenance of stock or premises- the evidence provided must negate any such circumstances).

•

Any act or series of acts showing the open, notorious, exclusive and hostile possession of one who claims to be the owner of the land may be proved as evidence of adverse possession, but it is considered that acts of dominion over the land must be so notorious, exclusive and hostile as to put any ordinary prudent owner, having the opportunity of observing such acts, on notice of the fact that the lands are in the adverse possession of another.

•

Where one joint tenant claims against another he or she must prove possession for his or her own benefit. See Paradise Beach and Transportation Co Ltd and others v Cyril Price Robinson and others- 1968 [AC] 1072.

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9.2.5

Evidence in Support

The application must be supported by a statutory declaration of the applicant in which should be set out, in as much detail as possible, the history of the acts of possession. All of the following points should be covered: •

the date at which possession commenced

•

the circumstances under which possession was taken

•

the use, in detail, to which the land was put during the period of possession

•

whether the occupation was exclusive

•

whether the occupation was continuous

•

whether the land was completely enclosed by fencing or otherwise, the location and nature of the fencing, what repairs have been effected and when

•

how entry to and from the land is made and where gates are situated (incorporate a sketch by a surveyor showing the position of gates and fences)

•

the nature of any improvements on the land, when erected and by whom

•

no payments of rent were made nor was any acknowledgment of ownership given to any other person

•

where other persons have been in possession of the land, the period and nature of their possession

•

who has paid the rates and taxes levied on the land (annexing to the declaration as an exhibit a certificate of the rating authority covering the whole period or as close to the whole period as the records maintained permit)

•

whether there has been any claim or action at law to recover possession of the land

•

the nature and extent of any easements or covenants affecting the land (conveyancers should note that the presence of an easement on the land claimed is not necessarily fatal to the claim, especially where the easement does not extend over the whole of the land claimed, e.g.: where a right of way exists over part of an area of the land used by the applicant for grazing purposes);

•

where there has been a series of trespassers and the sum of their possessory rights is relied upon assignments of those possessory rights must be produced. The assignment may take the form of a devise in a will in those circumstances where the applicant is the heir of a deceased trespasser

•

the nature and extent of any encumbrance over the land and the effect of the claim on the encumbrancer’s rights.

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9.2.6

Encumbrances on Land Claimed

Conveyancers should consider the effect of registered encumbrances on the land claimed by adverse possession. The presence of an easement over land claimed is as been previously stated not necessarily fatal to the claim and it may be that the applicant claims the land subject to the easement and the application should make that clear. In cases where the adverse possession is claimed by virtue of an encroachment by a building on land encumbered by an easement it would seem obvious that the intention of the applicant is to obtain a title free of the easement. In such cases the application should include elements referring to the abandonment of the rights of the grantees. In a similar manner, without attempting to set out how such circumstances may arise, the claimant for a title for adverse possession of land encumbered by a mortgage may make the claim subject to (and with the consent of) the mortgagee. Consideration would have to be given to the extent of coverage of the mortgage over the resultant land parcel should the claim be accepted. An application for adverse possession must also give a clear indication of the applicant’s desire regarding any caveats or memorials over the land claimed and how they are to be dealt with.

9.2.7

Confirmation of Possession

The application must be supported by the statutory declaration of at least two disinterested persons setting out their knowledge of the nature and extent of the acts of possession upon which the applicant relies. The declarant should state, preferably in his or her own words, all of the following: •

his or her age

•

his or her means of knowledge of the land

•

how he or she identifies the land with the land the subject of the application- a sketch by which he or she identifies the land should be made an annexure to the declaration

•

how long he or she has known the applicant

•

what acts of ownership he or she has observed and over what period

•

the nature of the fencing and its maintenance

•

that he or she is not a relative or business associate of the applicant

•

whether he or she has heard of any other claim being made or litigation being entered into as to ownership of the land.

As a last resort, when no other person(s) can be found to provide the required declaration(s), evidence from a business associate or relative may be accepted but the weight of their evidence will be given limited value.

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9.2.8

Whether a Survey is Required

In most cases an application for a title based on adverse possession must be supported by a survey carried out by a licensed surveyor to clearly establish the relative positions of improvements and the boundaries of the land claimed. An exception may be made in cases where the land is bounded on all sides by a public road, or by other land owned by the applicant and requests for exemption from the policy should be made in writing to the Commissioner of Titles. Where the application is for a whole parcel of land, or the remaining balance of the land in a certificate of title, a re-establishment survey of that parcel of land must be effected, field notes lodged and a sketch of the survey presented with the application. Where the application is for a portion of an adjoining land parcel a survey of only that portion being claimed is required, with a sketch of the survey presented with the application. If the claim is proven then a Deposited Plan of survey (with field notes) will need to be lodged amalgamating the claimed portion with the adjoining land of the applicant. The sketch to be presented with the application for whole or part parcels must show the true legal land description, the boundary dimensions and positions of improvements and fencing (including an estimation of their age and comment about their condition). It is preferable that the sketch be on A4 size paper.

9.2.9

Examination of Application

The application is submitted to the Commissioner who may make requisitions if not satisfied with the evidence submitted. If the Commissioner is satisfied that the application may be granted, a notice of intention to grant the application is published in a newspaper circulating in the City of Perth or in the neighbourhood of the land. The period of advertising is not less than two weeks nor more than twelve months. A copy of the advertisement usually is sent by certified mail to the registered proprietor of the land the subject of the application and to owners, occupiers and encumbrancers of contiguous land but this is at the discretion of the Commissioner. If at the end of the advertising period no caveat against the application is lodged, a title for the land is created and registered and a duplicate certificate of title (if required) is issued to the person entitled to receive it.

9.2.10

Caveat Against Application

Section 223 of the TLA provides that a caveat may be lodged against the application. The subject is fully treated in paragraph 4.2.13 but also see s.223A as to the lapsing of the caveat.

9.2.11

Searching an Application for Adverse Possession

When an adverse possession application is lodged the relevant title is marked subject to dealing. It is possible to obtain a copy of the following items from Landgate upon payment of the prescribed search fee: •

the adverse possession application and

•

the accompanying statutory declaration of the applicant(s).

Landgate will not provide a copy of the following: •

Statutory declarations of disinterested persons that may be filed with the application.

•

The re-establishment survey lodged with the application.

•

Any letters, requisitions and other correspondence between Landgate and the applicant or the applicant’s solicitor.

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10.

General Law, Licences, Deeds Poll and Applications to Register Change of Name

This chapter looks at the Deeds System, its indexes including what may be searched, how documents are lodged under the Registration of Deeds Act 1856, and the memorialisation of licenses, deed polls and applications for change of name.

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10.1

General Law

10.1.1

Land under the General Law

Any land alienated from the Crown before 1 July, 1875 and not subsequently brought under the operation of the TLA of 1874 or 1893, is dealt with under the Registration of Deeds Act 1856 (19 VIC No. 14). A system is provided for the registration of deeds, conveyances and other instruments, wills and judgements affecting land under the general law. The object is to prevent secret and fraudulent conveyances and to encourage registration by conferring on a registered instrument priority over an earlier unregistered one. The land remaining registered under the Registration of Deeds Act 1856 is confined to the earlier settled areas of the State and probably constitutes less than one per cent of the land alienated from the Crown. The land remaining is being reduced yearly by applications to bring such land under the operation of the TLA. Some impetus is given to persons to bring land under that Act by the reluctance of purchasers to accept a title which is not government guaranteed, the expense of the necessary searches to ascertain the proper owner and the reluctance of lending institutions to make advances on such land.

10.1.2

Nature of the System

The system comprises: 1.

a copy of each of the original Crown Grants, known as an enrolment;

2.

a nominal index comprising: o

an index of surnames and

o 3.

a three volume register of complete names;

an index to land comprising: o

town lots

o

country locations and

o

suburban lots

4.

a journal of encumbrances

5.

a journal of wills

6.

a register of powers of attorney and deeds

7.

a register of memorials for each volume and

8.

bound volumes of all memorials registered. The volumes are identified by a roman numeral, each memorial being numbered in sequence within the volume, eg: Book XXVII No. 1.

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10.1.3

Method of Registration

Registration is effected by lodging with the Registrar of Deeds a memorial of the document to be registered. Each memorial presented for registration must comply with the regulations made under the Registration of Deeds Act 1856. Regulation 3 states: 1.

Every memorial presented for registration shall: (i)

be prepared on good quality paper approved by the Registrar and having the dimensions of 330mm x 203mm

(ii)

be clearly and legibly handwritten in ink (preferably black or blue), printed or typewritten

(iii)

have a binding margin on each page of 51mm free of written, printed or typewritten matter with the binding margin on the left hand side of the face sheet and on a corresponding side for all subsequent sheets and

(iv) 2.

have all writing, printing, type or other matter on the memorial of a sufficient strength to bear photographic reproduction.

The Registrar may reject from registration a memorial which does not comply with this regulation. The memorial is required to be in the following form: “A memorial is required to be registered of a (nature of document) of which the following is a copy.” Then follows a complete copy of the document: “and this memorial is required to be registered by (full name) clerk to (name of solicitor) of (address of solicitor). Dated this ......... day of ......... 20… Signed by the said

)

(full name)

) (signature)

in the presence of

)

Witness (Full Name, Address and Occupation)” Where the request to register is signed by a person other than a legal practitioner the signature must be attested by an adult witness who is required to state his or her address and occupation. The original deed must be produced at the time of lodging the memorial and is later returned noted with the following registration certificate: “Received a memorial of the within (nature of document) at ...... o’clock this ...... day of ...... 19 and registered in book .......... No .......... (signature) Registrar of Deeds”

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10.1.4

Form of Conveyance

The Property Law Act 1969 (Fourth Schedule) provides for a short form of conveyance in the following form: Conveyance This Deed made this ............... day of ................ 20........ . Between AB of (address and occupation) of the one part and CD of (address and occupation) of the other part Witnesseth that in consideration of the sum of (dollars) paid by the said CD to the said AB (the receipt whereof is hereby acknowledged) the said AB as beneficial owner (if it is not intended to include the usual covenants for title, omit the words beneficial owner) hereby conveys to the said CD in fee simple (or as the case may be) all that piece of land being (description of land) Signed by the said AB in the presence of Section 37 of the above Act gives power for the owner of land to dispose of the land by deed without using words of inheritance. For deeds executed after 1 August, 1969 the words and his heirs are no longer required to effectively pass the fee simple. Subdivision can only be achieved by a sketch on a deed of conveyance. A plan or diagram cannot be approved for land under the system. Such a sketch must meet the requirements of Landgate and the provisions of the P&D Act.

10.1.5


Registration under the Registration of Deeds Act 1856 neither cures any defect nor passes any estate. The only effect of registration is to secure priority. Section 3 provides that deeds have priority one over the other according to the priority of their respective dates of registration. Deeds or other instruments not registered may be rendered null and void by the prior registration of an instrument entered into for value and in good faith. The registration of instruments enables secondary evidence to be available in the case of loss or destruction of the original registered document. A certified copy of a memorial issued by the Registrar of Deeds is receivable in any Court as conclusive evidence of the contents of the original instrument.

10.1.6

Satisfaction of Mortgages

The usual method of discharging general law mortgages is by reconveyance. Section 11 of the above Act provides an alternative method. A Certificate of Satisfaction may be produced showing that the whole of the moneys due have been paid. This certificate is signed by the mortgagee, his or her personal representative or attorney and attested by two witnesses. The certificate must contain the names and addresses of the original parties, the date of the instrument, the sum thereby secured and the time or times of payment. A receipt for the Certificate of Satisfaction is issued by the Registrar of Deeds as proof of registration. This method is not in general use.

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10.1.7

Searches in the Register

The Register containing the memorials is open to public search on payment of the prescribed fees. The registration of any instrument is notice of all facts, circumstances and particulars referred to in the memorial. A person who omits to search the register is therefore deemed to have notice of all that would have been discovered if it had been searched (s.16). A person making a search needs to know one of the following: •

the full name of the registered proprietors

•

the description of the land, eg: Avon Location U

•

the registered number of any memorial in the chain of title.

For a person who only has one or both of the first two information items listed above, there are two sets of indexes to facilitate the location of the desired chain of ownership documents. The indexes are called the nominal index and the land indexes.

10.1.7.1

Nominal Index

The nominal index of surnames gives a page number or numbers in the nominal index of whole names on which all persons having the same surname are shown. The page or pages must be carefully checked for the required name and likely derivations of that name, eg: Ann, Anne. Against each name is a reference to all the memorials in which that name appears. The reference shows first the volume, as a roman numeral, secondly, a number beneath the roman numeral (indicating a page number in the register of memorials for that volume) and thirdly the number of the memorial itself within the volume, eg: XXVII/10 101. The searcher may then proceed either by searching the register of memorials for each volume, where limited detail is shown, or by searching each of the memorials.

10.1.7.2

Land Index

The index to land is divided into three sections, Country, Town and Suburban. Within the sections the index is nominal and against each location or lot is recorded the number (in the manner shown above) of all memorials registered against the land. Persons making a search can expect no assistance beyond being shown where the relevant registers are and must draw their own conclusions as to the ownership of any particular piece of land. The lands contained in this Register do not enjoy the backing of a government guarantee.

10.2

Licences, Deeds Poll and Applications to Register Change of Name

10.2.1

Licences to Change Name

Licences to change name issued under the Change of Names Regulation Act 1923 issued in the period from 1923 to 2 November, 1989 were memorialised and lodged for registration with the Registrar of Deeds under the Registration of Deeds Act 1856. From the 2 November, 1989 the licences were registered in the office of the Registrar of Births Deaths and Marriages and for administrative convenience, all the licences registered at Landgate from 31 January, 1957 to 2 November, 1989 were physically relocated to that Office.

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An index of licences filed between 1923 and 31 January, 1957 is held in the Deeds Office and a microfilm copy is held in the Document Filing Section in the Customer Service Centre in the Landgate building in Midland. The licences held in Landgate are available for public searching, and certified copies may be obtained. 

Note: Because of the repeal of the Change of Names Regulation Act 1923 on 14 April 1999, the Registrar of Births, Deaths and Marriages will no longer accept licences for registration from that date. From the above-mentioned date, it is now possible to formally change a name by registration of that name at the office of the Registrar of Births, Deaths and Marriages and receive a certificate issued under s.57 of the Birth, Deaths and Marriages Act 1998 (see paragraph 10.2.3).

10.2.2

Deeds Poll

An adult person desiring to renounce the use of his or her present name and assume another name could do so under the Change of Names Regulation Act 1923 by executing a deed poll and registering a memorial of that deed poll under the Registration of Deeds Act 1856. From the 2 November, 1989 the deeds poll were registered in the Office of the Registrar of Births, Deaths and Marriages and for administrative convenience, all the deeds poll registered at Landgate from 31 January, 1957 to 2 November, 1989 were physically relocated that Office. An index of deeds poll filed between 1923 and 31 January, 1957 is held in the Deeds Office and a microfilm copy of the index of memorials filed from 1957 to 1989 is held in the Document Filing Section in the Customer Service Centre in the Landgate building in Midland. The deeds poll held in Landgate are available for public searching and certified copies may be obtained. 

Note: Because of the repeal of the Change of Names Regulation Act 1923 on 14 April 1999, the Registrar of Births, Deaths and Marriages will no longer accept deeds poll for registration from that date. From the above-mentioned date, it is now possible to formally change a name by registration of that name at the office of the Registrar of Births, Deaths and Marriages and receive a certificate issued under s.57 of the Births, Deaths and Marriages Act 1998 (see Chapter 10.2.3 below).

10.2.3

Application to Register Change of Name

On the 14th April 1999 the Births, Deaths and Marriage Act 1998 (the Act) was proclaimed. This Act provides a process and a form by which a person’s name may be changed by the registration of that change under Part 5 and recorded in the Register referred to in s.49 (1) of the Act. The form is available from the Registry of Births, Deaths and Marriages and is titled Application to Register Change of Name. A certificate certifying the change of name particulars contained in the Register maintained by the Registrar of Births, Deaths and Marriages will be issued by the Registrar under s.57 of the Act. Under s.36 of the Act a person is not prevented from establishing a change of name by repute or usage where the change is made after the commencement of the Act. However, applicants who are permanently residing in Western Australia may prefer to obtain the above-mentioned certificate from the Registrar of Births, Deaths and marriages certifying the change of name particulars because other authorities (e.g. the Passport Office) may require documentary proof of the person’s correct name.

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11.

Charges, Notifications and Memorials

This chapter details information relating to charges, notifications and memorials, how they are lodged, and subsequently withdrawn or removed. These statutory notices are created for different purposes under different legislative provisions.

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11.1

General

The documents dealt with in the following paragraphs, when noted in the Register, have the effect of delaying or preventing registration of instruments dealing with the land affected or forcing an acknowledgment of a statutory interest in the land. In every case the memorandum is not noted on the duplicate certificate of title (if any).

11.2

Charges

11.2.1

Bankruptcy Act 1966 (Commonwealth Legislation)

The Bankruptcy Act 1966 (the Act) provides that the remaining assets, including real property, of bankrupt persons, be vested in a trustee. The trustee chosen may be either a public official, known as The Official Trustee in Bankruptcy, or a private (although professionally qualified) person registered with Insolvency and Trustee Service Australia as a Trustee in Bankruptcy. Either trustee must apply under s.234 of the TLA, on a Form A5, to be registered as the proprietor of the property. The method of application is set out in paragraph 3.4.5 of this manual. Section 139ZN of the Act authorises the creation of a charge on the property of any person who owes the bankrupt person a debt for personal services. Section 139ZR of the Act authorises the creation of a charge on any property sold by the bankrupt to a person by a transaction later declared void. Both charges have effect from the time lodged and may have priority over any previous charge or encumbrance in favour of an associated entity of the bankrupt. Both charges create a power for the trustee to sell the property. Registration of the charge is achieved when a certificate signed by the Official Receiver containing all the relevant information, such as property details, registered proprietor, amount of debt and date when repayment is due, is lodged with Landgate. The charge does not prevent the registration of any other instrument creating an interest in or disposing of the land, but it must be shown in the Limitations, Interests, Encumbrances and Notifications panel, where there is one. By acknowledging the charge as an encumbrance any subsequent transferee or mortgagee is bound by its provisions. The charge may be removed on the application of the registered proprietor on a Form A5, supported by evidence proving that the debt has been paid or set aside. If the debt is not paid the Official Trustee or the Trustee in Bankruptcy may sell the land and register a transfer on a modified Form T4, supported by evidence that sufficient notice has been given to the registered proprietor to repay the debt. Section 249A of the Act creates a charge on land where a (deceased) bankrupt has spent money on property improvements. The charge takes effect from the time of lodgement, but may be postponed by the lodgement of a bona fide charge for value or a bona fide sale for value in favour of any person who had no notice of the bankruptcy charge. The charge is in other respects similar to a charge created under s.139ZN and 139ZR of the Act. The normal fees are levied for the lodgement and withdrawal of these charges.

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11.2.2

The Health Act 1911

Where a Local Government has expended money on behalf of an owner of land, either by agreement with or on the default of the owner, the money so expended is a charge upon the land until repaid. A charge prepared in the manner prescribed by the Registration, Enforcement and Discharge of Local Authority Charges on Land, Regulations and pursuant to the Health Act 1911 (s.372(4)), is presented for registration. Forms C and D of the above regulations and the statutory declaration of the Clerk of the Local Government annexing form A, comprise the complete charge. A memorandum of the charge is entered on the title and the charge remains an encumbrance against the land until withdrawn. It is similar in effect to a subject to claim caveat and may be noted in the Limitations, Interests, Encumbrances and Notifications panel of an instrument, where there is one, provided that such regulations shall not authorise any land to be sold except pursuant to an order of the Magistrates Court. The registered proprietor is notified by the Registrar of Titles of the charge by a notice as prescribed in form E of the above regulations.

Removal On the application of the registered proprietor made in the form prescribed by the above regulations (form I), accompanied by a memorandum of satisfaction of the charge (form H), signed by the Clerk of the Local Government, an entry is made in the Register removing the charge as an encumbrance. The normal fees are levied on both lodging and removing a charge.

11.3

Notifications

11.3.1

General

A Notification is a document that is lodged against a certificate of title to give notice of factors that affect the use and enjoyment of land. Notifications will be endorsed in the Second Schedule of the relevant Title. Notifications are to be shown in the Limitations, Interests, Encumbrances and Notifications panel, where there is one, of any subsequent document. Notifications are not encumbrances because they do not fall within the definition of an encumbrance under s.4 of the TLA. Accordingly, notifications will not: •

be required to be removed from lots or portions of lots that are vested to the Crown under the provisions of s.152 of the P&D Act (formerly s.20A of the TP&D Act)

•

prevent a mortgagee sale occurring and will not be required to be removed before the power of sale transfer is registered or

•

prevent the registration of any other instrument.

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11.3.2

Local Government (Miscellaneous Provisions) Act 1960 (Section 364 (2))

A local law made under the Local Government Act 1995 may prescribe a new street alignment for a street or part of a street for the purpose of extending the width of the street or part of the street to the new street alignment. Where the local government by local law so prescribes a new street alignment, it shall immediately the local law is no longer liable to be disallowed by Parliament, cause written notice of the new street alignment to be served on the owners of land affected thereby and cause notice of the local law to be served on the Registrar of Titles / Registrar of Deeds. Notice is served on the Registrar of Titles or Registrar of Deeds by lodging a Notification and attaching to it a true copy of the New Street Alignment Notice given to the registered proprietor pursuant to s.364 (2) of the Local Government (Miscellaneous Provisions) Act 1960. For further information on notifications generally see paragraph 11.3.1.

11.3.3

Environmental Protection Act 1986 (Sections 65, 68A and 70)

The Environmental Protection Act 1986 (in this paragraph referred to as the Act) has as its aim the prevention, control and abatement of pollution and environmental harm, for the conservation, preservation, protection, enhancement and management of the environment. The administration of the Act is (subject to the direction of the Minister) vested in the Environmental Protection Authority, and the Authority may delegate powers pursuant to s.19 of the Act to any person and the names of persons so appointed shall be published in the Government Gazette. The Act allows the CEO of the Environmental Protection Authority to issue any of the following notices to the owner or occupier of land:

11.3.3.1

Environmental Protection Notice (Section 65)

Section 65 of the Act authorises the issue and service of an Environmental Protection Notice (formerly known as a Pollution Abatement Notice, see paragraph 11.4.11) on the owner or occupier of any premises emitting any waste, noise, odour or electromagnetic radiation into the environment that causes pollution. The notice specifies the measures required to prevent, control or abate the emissions.

Closure Notice (Section 68A) When an authorisation is given to do something and the CEO of the Environmental Protection Authority considers that as a result of anything that has been done or has happened before the expiry or revocation of the authorisation: •

ongoing investigation

•

monitoring or

•

management

is or will be required at the premises following that expiry or revocation, the CEO may cause a Closure Notice under s.68A of the Act to be given in respect of the premises. The notice specifies the action to be taken.

11.3.3.2

Vegetation Conservation Notice (Section 70)

Section 70 of the Act authorises the CEO of the Environmental Protection Authority to issue a Vegetation Conservation Notice to ensure that no unlawful clearing, or no further unlawful clearing takes place on land.

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11.3.3.3

Notification document

Section 66 of the Act provides for a copy of a notice under Sections 65, 68A or 70 of the Act to be delivered to Landgate for registration on the title for freehold land, on a Crown lease, in the Deeds Office for Old System land and on a Crown land title for Crown land. A true copy of the notice is to be attached to a Notification document. The Notification document makes reference to all three of the above-mentioned notices. The relevant notice is selected by deleting reference to the other two. The Notification Environmental Protection Act 1986 Notification form can be downloaded here. Where the Notification is shown in the Limitations, Interests, Encumbrances and Notification panel, where there is one, of an instrument or dealing relating to the land, the notification will not prevent the registration of the instrument or dealing. The consent of the Environmental Protection Authority is not required. A Landgate registration fee is not payable upon lodgement of the Notification document.

11.3.3.4

Amendment of Notification document

A notice that has been sent under Sections 65, 68A or 70 of the Act may need to be amended. If a Notification document has already been lodged with regard to the original notice, an Amendment of Notification document can be lodged so that the amended notice becomes part of the Register. An Amendment of Notification form can be downloaded here. This form is to contain a copy of the amended notice. A Landgate registration fee is not payable upon lodgement of the Amendment of Notification document.

Revocation of Notification document A Notification lodged under Sections 65, 68A or 70 of the Act is removed by the lodgement of a Revocation of Notification document. A Revocation of Notification form can be downloaded here. A Landgate registration fee is not payable upon lodgement of the Revocation document. For further information on notifications generally see paragraph 11.3.1.

11.3.4

Kambalda Water and Wastewater Facilities (Transfer to Water Corporation) Act 2004

The Kambalda Water and Waste Facilities (Transfer to Water Corporation) Act 2004 (in this paragraph referred to as the Act) transferred ownership of the Kambalda Water and Wastewater Facilities and certain associated rights to the Water Corporation.

11.3.4.1

Background

After Western Mining Corporation found nickel nearby Kambalda in the late 1960’s they provided the infrastructure for the town including the water and wastewater facilities. Unfortunately not all the water and wastewater facilities were constructed to current standards, and as a result the location of these facilities cannot be guaranteed. In parts of the town, pipes may be close to or under houses and some to these residences have been identified as Impaired Enjoyment of Land. This impairment is due to possible building / development restrictions as a result of the positioning of the water and wastewater facilities.

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11.3.4.2

Notification

Section 16 of the Act requires that any lot or parcel of land in the Kambalda Area (as defined in the Act) have a notification placed on the title. The notification is to give notice that pipes, works and other things, as set out in the Act may be on, in, over or under the land. Where the Notification is shown in the Limitations, Interests, Encumbrances and Notification panel, where there is one, of an instrument or dealing relating to the land, the notification will not prevent the registration of the instrument or dealing.

11.3.4.3

Removal or Amendment

Under s.21 of the Act the notification may be removed or amended by the Water Corporation. A form has been created for this purpose. For further information on notifications generally see paragraph 11.3.1.

11.3.5

Petroleum Pipelines Act 1969

Under the Petroleum Pipelines Act 1969 (PPA) the Minister for Mines and Petroleum (Minister) may grant a licence for the construction, operation, inspection, maintenance or repair of a pipeline for the conveyance of petroleum. Sections 16, 17, 18 and 19 of the PPA provide for the acquisition or taking of an easement by a licensee for the purpose of a petroleum pipeline.

11.3.5.1

Notification of Easement

Section 19(4) of the PPA provides that where an easement is acquired or taken over land pursuant to the PPA, a description of the easement and a notification that it has been so taken together with a plan showing the location of the easement over the land, is to be sent by the licensee to the Registrar of Titles who shall record a statement or entry of it on the Register. Previously the practice was to accept the easement document as the Notification and these were recorded on the Register as an easement. That practice has been replaced with the requirement to lodge a specific Notification Form. Notification of Easement (Form N3) for freehold land and Notification of Easement (Form N3C) for Crown Land are used for the purpose of notifying the Registrar of Titles of an easement under the PPA. The Notification of Easement should be signed by the licensee/grantee of the easement and the deed of easement or a copy is to be attached to the Notification document. The easement attached to the Notification must also be signed by the Minister.

11.3.5.2

Notification of Transfer of Easement

Section 20(5)(a)&(b) of the PPA requires the Minister to notify the Registrar of Titles in writing of a transfer of a licence under the PPA. On receipt of the Notification of Transfer, the Registrar of Titles is to duly record in the Register that an easement that has been recorded in the Register by the Registrar of Titles has been transferred to a new registered licence holder under the PPA. By force of the Act, the easement then vests in the new licensee. Previously the practice was to accept a Blank Instrument Form B2 document with the appropriate details included as the Notification. That practice has been replaced with the requirement to lodge a specific Notification Form. Notification of Transfer of Easement (Form N4) is used for this purpose. The Notification of Transfer must be signed by the Minister.

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11.3.5.3

Notification of Expiry, Surrender or Cancellation of Easement

Sections 20(3)&(4) of the PPA require the Minister to notify the Registrar of Titles in writing of the expiry, surrender or cancellation of a licence under the PPA. Notification of Expiry, Surrender or Cancellation of Easement (Form N5) is used for this purpose. Upon receipt of the Notification, the Registrar of Titles is to duly record the Notification on the Register and, by force of the PPA, the easement over the licence area or part thereof to which the Notification relates is extinguished. The Notification is to be signed by the Minister. An interest deposited plan of the easement area which conforms to the Registrar’s requirements is required to be lodged with a Notification of Easement or where a Notification of Surrender is lodged which relates to part only of the land the subject of a notification of easement recorded by the Registrar under section 19(4) of the PPA. An easement created pursuant to section 17 of the PPA should additionally have the required Governor’s consent. Where a Notification of Easement is shown in the Limitations, Interests, Encumbrances and Notifications panel of a subsequent instrument or dealing relating to land, the Notification will not prevent the registration of that instrument or dealing. Fees are payable on lodgement of these Notification forms. The relevant duplicate certificate of title is not required to be produced upon lodgement of a Notification document.

11.3.6

Planning and Development Act 2005 (Section 165)

Section 165 of the P&D Act provides for the recording of information on title where the Western Australian Planning Commission considers it desirable that the owners of land be made aware of hazards or other factors seriously affecting the use or enjoyment of such land. The land affected by such notice is described as land: •

comprised in a deposited plan of survey, or

•

comprised in a strata scheme or proposed strata scheme presented to the Commission for approval under s.25 of the STA.

11.3.6.1

Notification

The legislation provides for the Commission to lodge a notification in a form acceptable to the Registrar of Titles. The Notification Under Section 165 of the P&D Act form can be downloaded from Landgate’s corporate website in Titles & surveys/Forms & fees/ Land titling forms. The notification provides for a statement of the hazard or other factors seriously affecting the use of the land. Where the notification is shown in the Limitations, Interests, Encumbrances and Notifications panel, where there is one, of an instrument or dealing relating to land, the notification will not prevent the registration of that instrument or dealing.

11.3.6.2

Withdrawal of Notification

A notification lodged under s.165 of the P&D Act is removed by the lodgement of a withdrawal of notification in a form acceptable to the Registrar of Titles. A Withdrawal of Notification form can be downloaded from Landgate’s corporate website in Titles & surveys/Forms & fees/ Land titling forms. Fees are payable on lodgement and withdrawal of these notifications. For further information on notifications generally see paragraph 11.3.1.

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11.3.7


Where the proprietor(s) of land is injuriously affected by the reservation of land for a public purpose in a planning scheme, they may in certain circumstances be entitled to receive monetary compensation from the Responsible Authority under s.177 of the P&D Act.

11.3.7.1

Notification

When compensation for injurious affection to any land has been paid under s.177 of the P&D Act, the legislation provides for the Responsible Authority to lodge a notification in a form acceptable to the Registrar of Titles or the Registrar of Deeds. The Notification- Section 180 of the P&D Act form can be downloaded from Landgate’s corporate website in Titles & surveys/Forms & fees/ Land titling forms. The notification sets out all of the following: •

The description of the land affected.

•

The name and address of the Registered Proprietor(s).

•

The name of the Responsible Authority.

•

Details of the injurious affection.

•

Amount of compensation paid.

•

Date of payment of compensation.

•

The proportion (%) which the compensation bears to the unaffected value of the land as. assessed under s.179 (2) of the P&D Act.



Note: Responsible Authority as defined in s.4 of the P&D Act means the Western Australian Planning Commission or a local government.

Where the notification is shown in the Limitations, Interests, Encumbrances and Notifications panel, where there is one, of an instrument or dealing relating to land, the notification will not prevent the registration of that instrument or dealing. The consent of the Responsible Authority is not required.

11.3.7.2


A notification lodged under s.180 of the P&D Act is removed by the lodgement of a withdrawal of notification. A Withdrawal of Notification form can be downloaded from Landgate’s corporate website in Titles & surveys/Forms & fees/ Land titling forms. Fees are payable on lodgement and withdrawal of these notifications. For further information on notifications generally see paragraph 11.3.1.

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11.3.8


Where: •

compensation for injurious affection to any land has been paid under s.177 of the P&D Act and

•

as a result of the planning scheme being amended or revoked, the reservation of the land for a public purpose is revoked or the area of the land the subject of the reservation is reduced,

the Responsible Authority (i.e. the WAPC or a local government) is entitled to recover from the owner of the land at the date of the revocation or reduction an amount (a refund) which is determined by a calculation formula set out in the P&D Act (see also paragraph 11.3.6).

11.3.8.1

Notification

When the Responsible Authority is entitled to recover an amount (a refund) for compensation paid, the legislation provides for the lodgement of a notification in a form acceptable to the Registrar of Titles or the Registrar of Deeds. The Notification- Section 181 of the P&D Act form can be downloaded from Landgate’s corporate website in Titles & surveys/ Forms & fess/ Land titling forms. The notification sets out: •

The description of the land affected

•

The name and address of the Registered Proprietor(s)

•

The name of the Responsible Authority and

•

Details of the revocation or reduction;

Before selling or subdividing the land in respect of which a notification under s.181 is lodged, the owner is to give written notice to the Responsible Authority, in accordance with the regulations, of the owner’s intention to sell or subdivide the land. Where a notification under s.181 of the P&D Act is registered, the land may not be transferred without the consent of the Responsible Authority.

11.3.8.2


A notification lodged under s.181 of the P&D Act is removed by the lodgement of a withdrawal of notification in a form acceptable to the Registrar of Titles. A Withdrawal of Notification form can be downloaded from Landgate’s corporate website in Titles & surveys/ Forms & fess/ Land titling forms. Fees are payable on lodgement and withdrawal of these notifications.

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11.3.9

Town Planning and Development Act 1928 (Section 12A)

Section 12A of the TP&D Act provided for the recording of information on title where the Western Australian Planning Commission considered it desirable that the owners of land be made aware of hazards or other factors seriously affecting the use or enjoyment of such land. The land affected by such notice was described as land: Comprised in a deposited plan of survey or Comprised in a strata scheme or proposed strata scheme presented to the Commission for approval under s.25 of the STA.

11.3.9.1

Notification

The legislation provided for the Commission to lodge a notification in a form acceptable to the Registrar of Titles or the Registrar of Deeds. The notification provided for a statement of the hazard or other factors seriously affecting the use of the land. Where the notification is shown in the Limitations, Interests, Encumbrances and Notifications panel, where there is one, of an instrument or dealing relating to land, the notification will not prevent the registration of that instrument or dealing.

11.3.9.2


A Notification lodged under s.12A of the TP&D Act was removed by the lodgement of a withdrawal of notification. Fees were payable on lodgement and withdrawal of these notifications. For further information on notifications generally see paragraph 11.3.1. 

Note: With the proclamation of the P&D Act on 9 April 2006, the TP&D Act was repealed. As a result notifications under s.12A of the TP&D Act are no longer lodged. They have been replaced by a notification under s.165 of the P&D Act (see paragraph 11.3.6). Any notification under s.12A of the TP&D Act shown in the second schedule of a land title is deemed to be a notification under s.165 of the P&D Act.

11.3.10 Transfer of Land Act 1893 (Section 70A) 11.3.10.1 Notification Where a Local Government or Public Authority considers it desirable that a proprietor or prospective proprietor be made aware of factors affecting the use and enjoyment of the land, they may, on payment of the prescribed fee, cause a notification to be lodged with the Registrar setting out those factors. Form N1 is available for this purpose. The registered proprietor is a party to the notification. No consent is required from any other person who may have an interest in the land.

11.3.10.2 Modification or Removal The Local Government or Public Authority together with the proprietor of the land may, on payment of the prescribed fee, request that the Registrar of Titles modify or remove the notification on a Form N2. For further information on notifications generally see paragraph 11.3.1.

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11.4

Memorials

11.4.1

Aboriginal Heritage Act 1972

The Aboriginal Heritage Act 1972 (in this paragraph referred to as the Act) has, as its aim, the preservation of sites and material of cultural significance to the Aboriginal population. Subject to the direction of the Minister, responsibility for the administration of the Act is vested in the Trustees of the Western Australian Museum. The Museum Act 1969 created the Trustees of the Western Australian Museum as a body corporate with perpetual succession and a common seal and the power (among other things) to acquire, hold and dispose of real property. The common seal may only be used by authority of a resolution of the trustees in the presence of the Chairperson or Vice Chairperson. With the consent of the Minister, the Trustees may delegate all their powers under the Act (except the power of delegation) to any person. Many delegations have been made to the Director of the Museum, a statutory position created by the legislation. Section 27 of the Act authorises the creation of a covenant by a person with an interest in land on which an aboriginal site is located, with the Trustees of the Western Australian Museum. The covenant may be permanent or for a specified period and prohibits any development of the site that would have a deleterious affect on it. The consent of any mortgagee or chargee (annuitant) of the land is required. The covenants may be registered, modified and discharged in accordance with the provisions of Division 3A of the TLA (if the land is held in a title). The covenant does not restrict any dealing on the land but must be noted in the Limitations, Interests, Encumbrances and Notifications panel of any instrument (where there is one) which is creating or transferring any interest in it. By acknowledging the covenant as an encumbrance, the successive owners and encumbrancers of the land are bound by its provisions. Fees are payable on lodgement and withdrawal of these memorials.

11.4.2

Agriculture and Related Resources Protection Act 1976

In basic terms the Agriculture and Related Resources Protection Act 1976 (in this paragraph referred to as the Act) provides methods for dealing with vermin and weeds in farming areas. Administration of the provisions of the Act is provided from two sources: •

the Chief Agriculture Protection Officer, and a number of deputies and

•

the Agriculture Protection Board, a body corporate created by the Agriculture Protection Board Act 1950 with perpetual succession and common seal, and the power, (among other things) to purchase, hold and dispose of real property.

Both the Minister and the Agriculture Protection Board may delegate powers to the Chief Agriculture Protection Officer. No signatures or seal holders of the Agriculture Protection Board are designated by the Act and any document sealed using the common seal and countersigned by one or more members of the Board (the term members includes the Chairperson) will be accepted for registration. The legislation also permits the Chairperson of the Board or an authorised officer to sign any notice, order or other document. Outstanding Agriculture Protection Board Rates (commonly called vermin tax) are secured and recovered by the system used in the Taxation Administration Act 2003, as authorised by s.63 of the Act. Details of the system of memorials, charges and transfers created under the Taxation Administration Act 2003 are shown in paragraph 11.4.27. Fees are payable on lodgement and withdrawal of these memorials.

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11.4.3

Contaminated Sites Act 2003

The Contaminated Sites Act 2003 (the Act) and its Regulations came into effect on 1 December 2006. The object of this Act is to protect human health, the environment and environmental values by providing for the identification, recording, management and remediation of contaminated sites in the State of Western Australia. In the Act the term site means an area of land and includes underground water under that land and surface water on that land. In order to gather information on the location of contaminated sites, the Act introduces mandatory reporting of known or suspected contaminated sites by the following people: •

an owner or occupier of the land

•

a person who caused, or contributed to, the contamination

•

a contaminated sites auditor engaged to report on the site in accordance with the Act.

The Department of Environment and Conservation will classify sites reported to it based on the risk the sites pose to human health and the environment.

11.4.3.1

Lodgement of Memorials against land

Section 58 of the Act provides for the lodgement of memorials against land in the following circumstances: Under s.58(1) (a) (i) of the Act provision is made for the registration of a memorial on the certificate(s) of title for land that has been classified as one of the following: Contaminated - remediation required Contaminated - restricted use Remediated for restricted use Possibly contaminated - investigation required Under s.58(1) (a) (ii) a memorial is to be lodged when a statutory notice under Part 4 of the Act has been given. Under s.58(1) (b) a memorial is to be lodged where a charge has been placed on the land in favour of the State or a public authority. To cover all of the above circumstances, four separate memorials have been created. The effect of each of these memorials will now be considered separately.

11.4.3.2

Memorial (Contaminated Site - Remediation Required)

If a site is classified as Contaminated_ Remediation Required, the Department of Parks and Wildlife (DPaW) can lodge the above-mentioned memorial to bar the registration of any subsequent instruments, unless the written consent of the chief executive officer of DPaW is obtained and filed with the document to be lodged. DPaW also has the option to lodge a memorial that does not bar the registration of instruments on land classified as Contaminated_ Remediation Required. In this case they will lodge the generic memorial shown immediately below the following note. A Memorial - Contaminated Site Remediation Required form has been created and can be downloaded from Landgate’s corporate website at http://www0.landgate.wa.gov.au/titles-andsurveys/forms-and-fees/land-titling-forms. 

Note: DPaW knows that it is their responsibility to choose the correct form when dealing with the above site classification. Registration Officers do not need to check whether the intention is to bar registration or not.

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11.4.3.3

Memorial

This is a generic Memorial form for all site classifications under s.58(1) (a) (i) including Contaminated– Remediation Required where registration of subsequent dealings is not prevented (see the note above). This memorial type is not a bar to the registration of any instruments. It merely needs to be shown in the Limitations, Interests, Encumbrances and Notifications section of the document (where there is one) that is lodged for registration.

11.4.3.4

Memorial (Notice under Part 4)

Under s.58(1) (a) (ii) a memorial is to be lodged when a statutory notice under Part 4 of the Act has been given. This has to do with investigation, clean up and hazard abatement notices that DPaW sends out to owners and occupiers of land when a site is classified Contaminated - Remediation Required. This memorial contains information concerning the notices that DPaW has sent out with regard to land that may be contaminated. The purpose of this memorial is merely to give notice to those who may want to deal with the land. This memorial type is not a bar to the registration of any instruments. It merely needs to be shown in the Limitations, Interests, Encumbrances and Notifications section of the document (where there is one) that is lodged for registration. A Memorial - Contaminated Sites Notice Under Part 4 form has been created and can be downloaded from Landgate’s corporate website at http://www0.landgate.wa.gov.au/titles-and-surveys/forms-andfees/land-titling-forms. 

Note: Section 58(7) of the Act states that a memorial registered in respect of a notice under Part 4 retains its priority in relation to all other mortgages, charges and encumbrances on that land despite amendment of the notice under s.46 of the Act.

11.4.3.5

Memorial (Charge)

Under s.58(1) (b) a memorial is to be lodged where a charge has been placed on the land in favour of the State or a public authority sections 30(3)(b), 31(3)(b) or 32(2) of the Act. This is to secure payment for actions taken to investigate and remediate those sites. A charge on land for the benefit of the State, or a public authority under the above sections: •

ranks equally with any other charge on the land created by any other Act and before any other encumbrance on the land, whether created or arising before or after the charge was created and

•

remains on the land despite any disposal of the land, and will survive a mortgagee’s power of sale.

This memorial type is not a bar to the registration of any instruments. Unless satisfied, it must be shown in the Limitations, Interests, Encumbrances and Notifications section of a document (where there is one) that is lodged for registration. A Memorial - Contaminated Sites Charge form has been created and can be downloaded from Landgate’s corporate website in Titles & surveys/ Forms & fess/ Land titling forms.

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11.4.3.6

Memorial lodged against part of the land in a Certificate of Title

If a memorial is to be lodged against only part of the land in a title a Deposited Plan for Interest Purposes Only will need to be lodged, unless there is already a suitable special definition for that piece of land. The Deposited Plan must be lodged and put in order for dealings before lodgement of the memorial. The land description in the memorial must refer specifically to the piece of land defined and depicted in the Deposited Plan. Upon lodgement and processing of the memorial the legal status of the plan will change to Approved.

11.4.3.7

Withdrawal of Memorial

A Withdrawal of Memorial form has been created and can be downloaded from Landgate’s corporate website in Titles & surveys/ Forms & fess/ Land titling forms.

11.4.3.8

Other Relevant Information

All of these memorials and the withdrawal of memorial are to be executed by a delegate of the Chief Executive Officer of the Department of Environment and Conservation under s.91 of the Act. All four memorial forms and the withdrawal of memorial form have an information panel (the third panel down) that must be completed by DPaW at the time of lodgement. What goes into this panel is up to DPaW but it must not be left blank. If a memorial has been lodged and there is a change in classification of the site, the memorial needs to be withdrawn and a new memorial, showing a change in classification needs to be lodged. The written consent of the registered proprietor to the lodgement of any of these memorials is not required. It is possible that more than one memorial type is lodged against the same land. For example, a Memorial (Contaminated Site_ Remediation Required), Memorial (Notice under Part 4) and a Memorial (Charge) could all be lodged at different times over the same land. Standard fees apply to the lodgement and withdrawal of any of the memorials under this Act.

11.4.4

Country Areas Water Supply Act 1947

The administration of the Country Areas Water Supply Act 1947 (in this paragraph referred to as the Act) is vested in the Minister and the Water Authority of Western Australia, a body corporate created by the Water Authority Act 1984, with perpetual succession and a common seal. The WAWA may (among other things) hold and dispose of real property. The Act authorises delegation of power, both to officers of the staff and to local Governments. The Act contains a series of provisions aimed at controlling the clearing of land in water catchment areas, to preserve the quality of the water collected. Section 12BA of the Act authorises the lodgement of a memorial at Landgate to give notice that unlawful clearing has occurred on the land specified in the notice, and give warning that an order for the restoration of the land is liable to be made. Section 12BB of the Act authorises the lodgement of a memorial at Landgate containing the details of a restoration order. Section 12EA of the Act authorises the lodgement of a memorial at Landgate containing notice that compensation has been paid to a land owner for injurious affection. The memorials are registered on the title for freehold land, on Crown leases, in the Deeds Office for Old System land and on a Crown land title for Crown land. All of the above-mentioned memorials may be removed by the Minister or a person with delegated authority. These memorials do not restrict any dealing on the land but must be noted in the Limitations, Interests, Encumbrances and Notifications panel (where there is one) of any instrument creating or transferring an interest in it. By acknowledging the memorial as an encumbrance the successive owners and encumbrancers of the land are bound by its provisions. No registration fees are payable either to lodge these memorials or to remove them.

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11.4.5

Memorial of Advertisement for Unpaid Water Rates under the Country Areas Water Supply Act 1947

Section 93 of the Country Areas Water Supply Act 1947 authorises the lodgement of a memorial of advertisement with the Registrar of Titles or Registrar of Deeds. The memorial must include a full page of the newspaper advertisement offering the affected land for sale by public auction, to raise funds to repay water rates that have remained unpaid for five years or longer. The memorial may be removed up to the time of the actual sale by the payment of the outstanding rates and if this occurs a certificate signed by an authorised officer of the Water Corporation, certifying that the rates and charges have been paid, and lodged with the Registrar, is sufficient to remove the memorial as an encumbrance. If not removed and a transfer is not lodged within twelve months, the memorial ceases to have any effect on the title. Although the legislation is not specific about the effect of a current memorial of advertisement on dealings on the land in the title, in practice the presence of the memorial prevents the registration of any dealings other than a transfer by the Minister. Fees are payable on the lodgement and withdrawal of these memorials and on the registration of the transfer.

11.4.6

Country Towns Sewerage Act 1948

The administration of the Country Towns Sewerage Act 1948 (in this paragraph referred to as the Act) is vested in the Minister, and the Water Authority of Western Australia, a body corporate created by the Water Authority Act 1984, with perpetual succession and a common seal. The WAWA may (amongst other things) hold and dispose of real property. The Act authorises delegations of power, both to officers of the staff and to Local Governments. The main duties of the Authority are to construct and maintain sewers and water mains. It may also fund the connection of a house to a main. The cost of connecting any building to the sewerage system, if unpaid, becomes a charge on the land, which has priority over all other registered charges or mortgages. Division 2 of the Act contains provisions for the Authority to exercise a power of sale over the land if the rates remain unpaid for more than five years. The Authority must advertise, in a paper circulated in the region where the land is situated, its intention to sell the land, and register a memorial of the advertisement in Landgate. The memorial, consisting of the memorial form and a full page of the paper containing the advertisement, is registered on the title for freehold land, and in the Deeds Office for old system land. The memorial ceases to have any effect after twelve months, or it may be removed during that twelve months if all the outstanding rates and costs are paid. A form signed by the Authority certifying that the outstanding rates and costs have been paid is filed with Landgate as a withdrawal of the memorial. The memorial acts as an absolute bar to any dealing in the land except a transfer by the Authority exercising a sale for rates. If a sale does occur, a transfer, signed by the Authority as transferor, is registered, and has the effect of removing all registered charges and mortgages except a mortgage to the Bank of Western Australia Ltd. The transfer is usually registered without the production of the duplicate title (if any), using the provisions of s.74 of the TLA. The transfer is required to be supported by a statutory declaration made by a staff member on behalf of the Authority stating that all the legislative requirements or preconditions to the sale have been complied with. Fees are payable on the lodgement and the withdrawal of these memorials and on the registration of the transfer.

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11.4.7

Criminal Property Confiscation Act 2000

The Criminal Property Confiscation Act 2000 (in this paragraph called the Act) provides for the confiscation in certain circumstances of property (including real property) acquired as a result of criminal activity and property used for criminal activity.

11.4.7.1

Memorial of Freezing Notices

Section 34 of the Act permits the Director of Public Prosecutions or a police officer to obtain a Freezing Notice from a Magistrate or a Justice of the Peace in certain circumstances. The Freezing Notice must describe all of the property covered by the notice. In the case of real property, the full land description including the title number must be shown. When real property is frozen, a Memorial of a Freezing Notice must be lodged with the Registrar of Titles and takes effect on lodgement of the memorial. The signed original Notice must be attached to the memorial. Alternatively, a photocopy of the notice, with confirmation that Landgate has sighted the original notice, may be attached to the memorial. If the Freezing Notice refers to more than one property and the properties have different registered proprietors, a separate memorial must be lodged for each different registered proprietor. The normal fees are levied on the lodgement and withdrawal of a Memorial of Freezing Notice. Where a memorial is registered on a title, the Registrar of Titles is prevented from registering any subsequent dealings (see below under the sub-heading Dealing with Frozen Property). If any subsequent dealings are lodged, they will not be registered, but held in a Registrar’s Packet.

11.4.7.2

Memorial Freezing Orders

Section 41 of the Act permits the Director of Public Prosecutions to apply to the Court for a Freezing Order. The Freezing Order must describe all of the property covered by the notice. In the case of real property, the full land description including the title number must be shown. When real property is frozen, a Memorial of a Freezing Order must be lodged with the Registrar of Titles and takes effect on lodgement of the memorial. The signed original Order must be attached to the memorial. Alternatively, a photocopy of the order, with confirmation that Landgate has sighted the original order, may be attached to the memorial. If the Freezing Order refers to more than one property and the properties have different registered proprietors, a separate memorial must be lodged for each different registered proprietor. The normal fees are levied on the lodgement and withdrawal of a Memorial of Freezing Order. Where a memorial is registered on a title, the Registrar of Titles is prevented from registering any subsequent dealings (see below under the sub-heading Dealing with Frozen Property). If any subsequent dealings are lodged, they will not be registered, but held in a Registrar’s Packet.

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11.4.7.3

Dealing with Frozen Property

Section 50 of the Act states that it is an offence for a person to deal with frozen property (including real property) over which a Memorial of Freezing Notice or Memorial of Freezing Order has been lodged. If frozen property is dealt with, that dealing is of no effect on any rights of the State under this Act (see s.51). According to s.151 of the Act, Dealing with property includes, selling, disposing or creating, increasing or altering any legal or other right in the property. Therefore it would be an offence to register any interest in land (including caveats and property (seizure and sale) orders etc) that is the subject of a Freezing Notice or Freezing Order. 

Note: Although it is an offence to register any dealings against frozen land, nothing prevents the lodgement of dealings with the Registrar of Titles. These dealings will remain in the Registrar’s Packet as unregistered dealings until the relevant memorial is withdrawn or a Memorial of Declaration of Confiscation is lodged with the Registrar of Titles (see below). If the relevant memorial is withdrawn, any unregistered dealings held in the Registrar’s Packet will be registered according to their date of lodgement.

11.4.7.4

Memorial of Declaration of Confiscation

Frozen land is automatically confiscated if there is no objection filed in court from interested parties (within 28 days after service of notice) to a Freezing Notice or Freezing Order. Interested parties that will receive notice include any person having a registered interest in the land and any caveator in respect of any caveat lodged. If a person is declared a drug trafficker under the Misuse of Drugs Act 1981, their property is automatically confiscated without the need for the Freezing Notice or Freezing Order or notice to interested parties (s.8 of the Act). Once a property has been confiscated under the Act, the Director of Public Prosecutions can apply to the court for a declaration that the property has been confiscated (ie. a Declaration of Confiscation). Confiscated property vests in the State of Western Australia when a Memorial of Declaration of Confiscation is lodged at Landgate and is registered against the relevant land. The signed original Declaration of Confiscation must be attached to the memorial. Alternatively, a photocopy of the Declaration of Confiscation, with confirmation that Landgate has sighted the original Declaration, may be attached to the memorial. If the Declaration of Confiscation refers to more than one property and the properties have different registered proprietors, a separate memorial must be lodged for each different registered proprietor. The Registrar of Titles may dispense with the requirement to produce the duplicate certificate of title when the memorial is lodged. The normal fees are levied on the lodgement of a Memorial of Declaration of Confiscation.

11.4.7.5

Effect of a Memorial of Declaration of Confiscation when registered

On registration of a memorial of Declaration of Confiscation the relevant land vests free of all encumbrances and other interests whether registered or not (including caveats) but not including rights of way, easements and restrictive covenants. Any unregistered dealings affecting the confiscated land being held in a Registrar’s Packet will be rejected when the memorial is registered. 

Note: When a Memorial of Declaration of Confiscation is lodged it is not necessary to withdraw the original Memorial of Freezing Notice or Memorial of Freezing Order that started the process. If there is any inconsistency between this Act and the TLA, this Act shall prevail.

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11.4.7.6

Interstate Freezing Orders

Interstate freezing orders will apply in Western Australia if that order is registered at the Supreme Court in accordance with the rules of the Supreme Court. Once the interstate freezing order is registered it will be endorsed by the court and it will have effect as if it were a freezing order under the Act. However, there is no requirement for registration of an interstate Freezing Order under the TLA. To register an interstate freezing order against the relevant property, a Memorial of Freezing Order must be lodged with the Registrar of Titles. The original interstate freezing order, endorsed by the Supreme Court, must be attached to the memorial. Alternatively, a photocopy of the original order, with confirmation that Landgate has sighted the original order, may be attached to the memorial.

11.4.7.7

Interstate Confiscation Declarations

Interstate confiscation declarations will apply in Western Australia if that declaration is registered at the Supreme Court in accordance with the rules of the Supreme Court. The interstate freezing order will be endorsed by the court and will have effect and may be enforced as though it relates to property confiscated under the Act. To register an interstate confiscation declaration against the relevant property, a Memorial of Confiscation Declaration must be lodged with the Registrar of Titles. The original interstate confiscation declaration, endorsed by the Supreme Court, must be attached to the memorial. Alternatively, a photocopy of the original declaration, with confirmation that the original declaration has been sighted by Landgate, may be attached to the memorial.

11.4.7.8

Charge

In certain circumstances (as outlined in s.123 of the Act) a charge can be created over property. The charge may be registered on the land by lodgement of a Memorial of Charge. Appropriate evidence of the charge must be attached to the memorial.

11.4.8

East Perth Redevelopment Act 1991

The East Perth Redevelopment Act 1991 (in this paragraph referred to as the Act) created a body corporate known as the East Perth Redevelopment Authority, with perpetual succession and a common seal, and the powers (among other things) to acquire, hold and dispose of real property. No signatories or seal holders are designated by the Act, and documents sealed with the Common Seal of the Authority will be accepted for registration when the seal is countersigned by one or more members (the term members includes the chairperson and the deputy chairperson). The Authority may delegate any of its functions (apart from the power of delegation) to any person listed in the legislation as eligible. Evidence of the delegation will be required when any document executed by a delegate on behalf of the Authority is registered. Section 20 of the Act empowers the Authority to sell land subject to special development conditions, or restrictions on the further disposition or dealing with the land, by the purchaser. The restriction or conditions are recorded by lodging with the Registrar of Titles a memorial against the land. The memorial may be removed by the lodgement of a withdrawal form signed by the Authority or its delegate. While the memorial remains registered on the title instruments creating or transferring an interest in the land must show the memorial in the Limitations, Interests, Encumbrances and Notifications panel (where there is one), and bear the endorsed consent of the Authority. By acknowledging the memorial as an encumbrance the successive owners or encumbrancers of the land are bound by its provisions. The normal fees are due and payable on the lodgement and withdrawal of memorials created by the Act.

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11.4.9

Environmental Protection Act 1986

The Environmental Protection Act 1986 (in this paragraph referred to as the Act) has as its aim the protection of the environment and the prevention, control and abatement of pollution. The administration of the Act is (subject to the direction of the Minister) vested in the Environmental Protection Authority, and the Authority may delegate powers (other than the power to delegate) to any person and the names of persons so appointed shall be published in the Government Gazette. Section 65 of the Act authorised the issue and service of a Pollution Abatement Notice on the owner or occupier of any premises emitting any waste, noise, odour or electromagnetic radiation into the environment that caused pollution. The notice specified the measures required to prevent, control or abate the emissions. Section 66 of the Act provided for a copy or memorial of the notice to be delivered to Landgate for registration on the title for freehold land, on a Crown lease, in the Deeds Office for Old System land and on a Crown land title for Crown land. The notice may be revoked or amended by the Authority and no fees are payable for the lodgement, amendment or revocation of a memorial. The memorial does not restrict the registration of any instrument creating or transferring an interest in the land, but must be noted in the Limitations, Interests, Encumbrances and Notifications panel of the instrument (where there is one). By acknowledging the memorial as an encumbrance the successive transferees or encumbrancers of the land are bound by its provisions. 

Note: Pollution abatement notices have now been replaced with Environmental Protection Notices (see paragraph 11.3.3).

11.4.10 Fines, Penalties and Infringement Notices Enforcement Act 1994 In general terms, this Act provides for the enforcement of the payment of fines and other penalties in respect of court decisions made pursuant to the Justices Act, Child Welfare Act, Young Offenders Act and the Criminal Code and for the enforcement of infringement notices issued pursuant to the Road Traffic Act or another written law.

11.4.10.1 Two ways to enforce the payment of fines or penalties There are two ways to enforce the payment of fines or penalties under this Act: 1.

Suspension of Driver’s Licence (in Civil Proceedings). Infringement notices may be issued under any written law by an approved prosecuting officer who, after giving to the Fines Enforcement Registry a signed Enforcement Certificate and issuing a final demand for payment of the penalty, may register an infringement notice with the Registrar of that Registry. If monies under an Enforcement Certificate remain unpaid, the Registrar of the Fines Enforcement Registry may then issue a Notice of Intention to Suspend Licences. Further failure to pay the fine constitutes a conviction of the offender for the alleged offence.

2.

Warrants of Execution Against Personal Property and Land (in Criminal Proceedings). A warrant of execution can be issued under Part 4 or Part 6 of the Act where a monetary penalty is imposed on an offender by a court in criminal proceedings. Under a warrant of execution, the Sheriff may seize personal or real property. Seizure of real property is effected by the Sheriff lodging with the Registrar of Titles or the Registrar of Deeds: o

a memorial in the prescribed form describing the land and setting out the amount owed under the warrant and the enforcement fees owed and

o

a copy of the Warrant.

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A warrant issued under this Act has an indefinite life and remains in force until the amount has been paid or an order is served on the offender. The signature of the Sheriff on the memorial does not have to be witnessed. A statutory declaration, identifying the offender, is required if there are any discrepancies in the name and addition shown in the memorial (warrant) when compared to the registered proprietor on the title for the land. On being satisfied that the memorial has been prepared in the prescribed form and on receiving any statutory declaration clarifying any discrepancies in the warrant and the title concerned, The Registrar of Titles will endorse the memorial on the title for the land described. The Registrar is prohibited from registering, and accepting for registration any instrument affecting any estate or interest in the land without consent of the Sheriff. When a memorial is registered under the TLA or Registration of Deeds Act 1856, the Registrar must serve the offender with a copy of the memorial. Cancellation of the memorial is effected by the lodgement of a withdrawal of memorial by the Sheriff. No registration fees are required to lodge or withdraw these memorials, and no fee is required in connection with the performance of functions under a warrant by the Sheriff and any delegate of the Sheriff.

11.4.10.2 Reciprocating State or Territory Regulations under this Act may prescribe another State or Territory, having laws providing for enforcement in that State or Territory of a fine imposed on a corporate body by a court of summary jurisdiction in WA, to be a reciprocating State or Territory for the purposes of enforcing a fine imposed on a body corporate in WA. A warrant can also be used to enforce fines imposed on a corporate body by another State or Territory. Regulations may prescribe which other State or Territory is a reciprocating State or Territory for the purposes of enforcement in this State and also, which court having summary jurisdiction in a reciprocating State or Territory is a reciprocating court for the purposes of the enforcement in this State of a fine payable under a conviction or order of that court against a body corporate. A warrant of execution of another State or Territory lodged with a memorial under this Act must be issued by a Sheriff of WA and must be a copy certified by and registered with the Registrar of the Fines Enforcement Registry in the Magistrates Court in Perth. A warrant under this Act has priority over any Property (Seizure and Sale) Order against the property of the offender issued under the Civil Judgments Enforcement Act 2004.

11.4.10.3 Sale and transfer of land seized A warrant issued under this Act has effect in respect of land of the offender as if the warrant were a Property (Seizure and Sale) Order and the offender was a judgment debtor as provided for under s.133 of the TLA. Under the terms of this Act, if the Sheriff wishes to sell the land under the warrant, he must firstly withdraw the memorial and lodge the warrant in accordance with the requirements for Property (Seizure and Sale Orders under s.133 of the TLA (see paragraph 2.2.10).

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11.4.11 First Home Owner Grant Act 2000 The First Home Owner Grant Act 2000 (in this paragraph referred to as the Act) is administered by the Commissioner of State Revenue (the Commissioner) and came into operation on 1 July 2000. This is an Act to encourage and assist home ownership by establishing a scheme for the payment of grants to first homeowners. Incorporated into this Act is the provision for the Commissioner under sections 51 and 53 of the Act to take action to recover the moneys paid to a person(s) who was not or is not now eligible to receive the grant. Pursuant to s.35 of the Act the Commissioner may delegate his powers (apart from the power of delegation) to other persons. Any person signing a document (including the lodgement and Withdrawal of Memorials referred to below) on behalf of the Commissioner should have written delegation to do the act achieved by the document.

11.4.11.1 Lodgement of a Memorial (Section 55) To recover any moneys outlined in s.53 of the Act the Commissioner may lodge a memorial against the land in relation to which the grant was sought. When the Registrar of Titles registers the memorial it creates a first charge against the land to which it relates and has priority over all other mortgages, charges and other encumbrances shown on that certificate of title. 

Note: If there is another charge against the land that ranks as a first charge under another Act, the relative priority of the various charges is to be determined according to the order of registration.

When a memorial is registered, the Registrar of Titles is prevented from accepting for registration an instrument affecting the land without consent of the Commissioner.

11.4.11.2 Cancelling the Memorial The memorial may be cancelled by: •

the lodgement of an Application (Form A5) signed by the Commissioner or his authorised delegate together with a witness to their signature or

•

the lodgement of an Application (Form A5) by the Registered Proprietor(s) that is accompanied by an instrument signed by the Commissioner or his delegate releasing the land from the charge created by the registration of the memorial.

Normal fees are payable upon lodgement of and cancellation of these memorials.

11.4.11.3 Order for Sale (Section 58) If the outstanding amount remains unpaid for 18 months after the registration of the above-mentioned memorial, the Commissioner may apply to the Supreme Court for an order for the sale of the land so that the proceeds of sale may be applied towards satisfaction of the outstanding amount. The Supreme Court may order the sale of the land and make incidental orders. Incidental orders include: •

Authorising an officer of the Court to execute documents, and to do anything else necessary, for the sale and conveyance of the land and

•

Authorising the Registrar of Titles to register a transfer to a purchaser without requiring the duplicate (if any) of the certificate of title.

A sale by order of the Supreme Court discharges the land from any mortgage, charge or other encumbrance securing a monetary obligation, but the land remains subject to any lease, easement, or other encumbrance.

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11.4.12 Heritage of Western Australia Act 1990 The Heritage of Western Australia Act (in this paragraph of the manual referred to as the Act) created the Heritage Council of Western Australia, as a body corporate, with perpetual succession and a common seal, and the powers (among other things) to acquire, hold and dispose of real property. No signatures or seal holders are designated by the Act, and documents sealed with the Seal of the Council will be accepted for registration when the seal is countersigned by one or more councillors (the term councillors includes a councillor holding a position of office bearer). The Council may, by resolution delegate any of its powers (apart from the power of delegation) to any other person. Notice of the resolution creating the delegation must be published in the Government Gazette, and documents signed by authorised delegates should also quote the issue date and page of the Gazette containing the authority.

11.4.12.1 Conservation Orders Part 6 of the Act authorises the Minister to make Conservation Orders and where an order is made in relation to any land the legislation requires the Heritage Council to advise Landgate by way of a memorial of the effect of the Order. The memorials are registered on the title for freehold land in the Deeds Office for Old System land and on a Crown land title for Crown land. The Council may also lodge a caveat. The memorial may be withdrawn by the Council. The memorial does not restrict any dealing on the land, but must be noted in the Limitations, Interests, Encumbrances and Notifications panel (where there is one) of any instrument creating or transferring an interest in it. By acknowledging the memorial as an encumbrance the successive owners or encumbrancers of the land are bound by its provisions. Fees are payable on lodgement and withdrawal of these memorials.

11.4.12.2 Heritage Agreements Part 4 of the Act authorises the creation by a registered proprietor, in favour of either the Heritage Council of Western Australia, or a public authority or a body corporate of a heritage agreement that may (inter alia) contain conservation covenants intended to run with the ownership of the land. The agreements ( and therefore the covenants) may be for a specified time, or intended to be permanent. The covenant does not have to conform to the usual law of covenants in that it may be positive in nature. The Heritage Council may lodge a memorial with a copy of the Heritage Agreement (certified by the Minister in accordance with s.32 (1) or his delegate under s.6) for registration on the title for freehold land, the Deeds Office for Old System land and on a Crown land title for Crown land. The memorial may be removed from land under the TLA, or modified, using the provision of Sections 129B and 129C of the TLA. Similar provisions apply to the modification or restriction of covenants over land registered in the Deeds Office, and for Crown land. The memorial does not restrict any dealing on the land, but must be noted in the Limitations, Interests, Encumbrances and Notifications panel (where there is one) of any instrument creating or transferring an interest in it. By acknowledging the agreement and the covenants as an encumbrance the successive owners and encumbrancers of the land are bound by its provisions. Fees are payable on lodgement and withdrawal of these memorials.

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11.4.12.3 Register of Heritage Places Part 5 of the Act authorises the creation by the Heritage Council of a register of Heritage Places, and for the amendment and removal of the entries in the register. Division 3 of the Act authorises the lodgement of a memorial with Landgate showing the particulars of an entry in the register of Heritage Places. The memorials are registered on the title for freehold land, in the Deeds Office for old system land and on a Crown land title for Crown land. Once a memorial is lodged, a further memorial may be lodged amending the original particulars of the entry, or if appropriate, the first memorial may be either partially or totally withdrawn. The memorial does not restrict any dealing on the land, but must be noted in the Limitations, Interests, Encumbrances and Notifications panel (where there is one) of any instrument creating or transferring an interest in it. By acknowledging the memorial as an encumbrance the successive owners or encumbrancers of the land are bound by its provisions. Fees are payable on lodgement and withdrawal of these memorials.

11.4.13 Home Building Contracts (Home Indemnity Insurance Exemptions) Regulations 2002 The Department of Commerce promulgated the above-mentioned regulations (in this paragraph referred to as the Regulations) under the Home Building Contracts Act 1991 (the Act). The Regulations, which became operational on 8 April 2003, allow developers to claim an exemption from taking out home indemnity insurance for three categories of residential building work. These are as follows: •

multi-storey unit development

•

leased retirement villages where all units are to be leased and

•

residential building work carried out by or on behalf of the State Housing Commission for dwellings that will be leased or let.

With regard to the multi-storey unit developments and the State Housing Commission developments an exemption will be granted and any future purchaser must be given notification of the lack of insurance. A purchaser has a right to rescind any contract where the required notice is not given by the vendor. With regard to the leased retirement villages a Memorial under the Regulations must be lodged with the Registrar of Titles before the exemption is granted.

11.4.13.1 Lodgement of a Memorial for Leased Retirement Villages Part 3 of the Regulations allows an exemption from the Part 3A requirement of the Act for the builder to have insurance if the owner of the retirement village intends the village to be a leased retirement village. A leased retirement village is defined in the Regulations to mean a retirement village in which all the dwellings are occupied under a residential tenancy agreement or any other lease or licence. To qualify for the exemption the proprietor must have taken the following steps before the issue of a building licence: •

Lodged a memorial to the effect that there is no indemnity insurance and

•

Provided to the local government a statutory declaration stating their intention not to take out home indemnity insurance and advising that a memorial has been lodged with the Registrar of Titles.

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Where a memorial lodged pursuant to the Regulations is shown in the Limitations, Interests, Encumbrances and Notification panel (where there is one) of an instrument or dealing relating to land, the memorial will not prevent the registration of that instrument or dealing on the certificate of title. Should the proprietor enter into a contract of sale for one or more of the dwellings in the retirement village within 6 years of the practical completion date a policy of insurance, which complies with the Regulations, is to be in force and the purchaser must have been given a certificate evidencing that policy or the provision of corresponding cover. Practical completion means brought to the stage where the home building work is completed except for any omissions or defects which do not prevent the home building work from being reasonably capable of being used for its intended purpose (s.11 of the Act). The normal registration fee is payable upon lodgement of these memorials. 

Note: The above-mentioned memorials should not be confused with memorials lodged under s.15 of the Retirement Villages Act 1992 (see paragraph 11.4.23).

11.4.13.2 Removal of the Memorial Regulation 9 (6) provides that the Registrar may cancel the registration of a memorial lodged under these regulations after 6 years from the day of practical completion of the leased retirement village (for a definition of practical completion see above). Upon proof that 6 years from the practical completion date has elapsed, the Registrar will cancel the memorial by sundry document. If a written request to cancel a memorial, enclosing a certificate of completion, is provided to Landgate on a dealing driven basis or by a separate request, Examination Team Supervisors will cancel the memorial. Where one or more of the dwellings in the retirement village is sold before the 6-year period has elapsed, the Registrar of Titles will cancel the memorial upon receiving proof that a policy of insurance, which complies with the regulations, is in force. No registration fee is payable to cancel these memorials.

11.4.14 Industrial Lands Development Authority Act 1966 The Industrial Lands Development Authority Act 1966 (in this paragraph referred to as the Act) was repealed on 23rd June, 1992 and replaced by the Western Australian Land Authority Act 1992. Under the provisions of the Act however certain memorials and caveats were placed on titles to give notice that the land was subject to certain requirements as to use and restrictions as to disposition. Where the memorials or caveats are in force the laws set out in the Act continue to govern, but the administration of those laws is transferred to the Western Australian Land Authority. A memorial may be withdrawn by the Western Australian Land Authority, or a caveat lodged by the Registrar of Titles will be withdrawn by the Registrar on the request of the Authority. Any instrument transferring or creating an interest in land the subject of a memorial must show it in the Limitations, Interests, Encumbrances and Notifications panel (where there is one) and bear the endorsed consent of the Minister. Instruments lodged without the consent of the Minister are void. No fees are payable for the lodgement of a withdrawal of a memorial under this legislation.

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11.4.15 Land Administration Act 1997 The LAA provides for the creation of the following two types of memorial that can be registered under the TLA as amended.

11.4.15.1 Memorials to secure the performance of conditions When a (freehold) title is created for Conditional Tenure land, the Minister for Lands may lodge a memorial under s.16 of the LAA to secure the performance of the conditions imposed upon the registered proprietor of the land. The memorial, when registered, is a charge on the land. If default is made by the registered proprietor in respect of the performance of the conditions set out in the memorial, the Minister has the same powers of sale as are given by the TLA to a mortgagee under a mortgage where default has been made in the payment of the principal. If the charge over the land is no longer required, the Minister may, by an Order, request the Registrar of Titles to withdraw the memorial. These memorials may or may not state that no dealings or other instruments are to be registered in respect of the subject land while that memorial remains registered under s.16 of the LAA, and serve to: •

where the memorial includes the above statement, prevent the registration of any dealings or other instruments and give notice of its contents to those concerned with the land (i.e. act in a similar manner to an absolute caveat) or

•

where the memorial does not include the above statement, merely give notice of its contents to those concerned with the land (i.e. act in a similar manner to a subject to claim caveat).

No fees are payable upon the lodgement or withdrawal of these memorials.

11.4.15.2 Hazard warnings or other factors affecting the use or enjoyment of land When a (freehold) title has been created and transferred under the provisions of the LAA, the Minister for Lands may, with the consent of the registered proprietor, have that title endorsed with a statement warning of hazards or other factors affecting, or likely to affect, the use or enjoyment of that land by lodging a memorial under s.17 the LAA. Also, when an interest in Crown land has been or is to be granted, the Minister for lands may have the relevant certificate of Crown land title endorsed with a statement warning of hazards or other factors affecting, or likely to affect, the use or enjoyment of that land by lodging a memorial under s.17 the LAA. These memorials serve to give notice of its contents to those concerned with the land. They do not prevent the registration of any dealings but must be shown in the Limitations, Interests, Encumbrances and Notifications panel (where there is one). The Minister may, by an Order, request the Registrar of Titles to withdraw it. No fees are payable upon the lodgement or withdrawal of these memorials.

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11.4.16 Legal Aid Commission Act 1976 The Legal Aid Commission Act 1976 (in this paragraph referred to as the Act) created a body corporate known as the Legal Aid Commission of Western Australia with perpetual succession and a common seal, and the power (among other things) to acquire, hold and dispose of real property. The legislation also creates the statutory position of Director of Legal Aid. No signatures or seal holders are designated by the Act and documents sealed with the common seal will be accepted for registration when the seal is countersigned by one or more members (the term member includes the Chairperson). The commissioner may delegate its powers apart from the power of delegation. Section 44A of the Act authorises the Director of Legal Aid to deliver to Landgate a memorial certifying that legal costs are to be a charge on specified land. The memorial may be withdrawn by the Director. While the memorial remains registered on the title instruments creating or transferring an interest in the land must show the memorial in the Limitations, Interests, Encumbrances and Notifications panel (where there is one). By acknowledging the memorial as an encumbrance the successive owners and encumbrancers of the land are allowing the charge to rank first in priority to their own interest. Fees are payable on lodgement and withdrawal of these memorials.

11.4.17 Local Government Act 1995 The Local Government Act 1995 (in this paragraph referred to as the Act) provides the third tier of government in Western Australia, administered (subject to the direction of the Minister) by a series of Shire, Town or City Councils. Documents not formally attested by using the common seal are nevertheless authorised by the signature of the Chief Executive Officer of the relevant Local Government.

11.4.17.1 Memorial of a notice to rectify the illegal modification or erection of buildings Division 13 of the Local Government (Miscellaneous Provisions) Act 1960 provides for the recovery by the Council of expenses caused by the illegal modification or erection of buildings. s.412A of the Local Government (Miscellaneous Provisions) Act 1960 provides for the registration on the title for freehold land, on a Crown land title or Crown lease for Crown land or in the Deeds Office for Old System land, of a memorial of a notice to rectify the illegal modification or construction. The Local Government may withdraw the memorial by lodging at Landgate a certificate certifying that the contravention has ceased. While the memorial is registered no instrument affecting the land may be registered under the TLA, or lodged in the Deeds Office without the consent of the Local Government. No fees are payable for either the lodgement or withdrawal of these memorials.

11.4.17.2 Memorial of advertisement to sell land for non-payment of rates Where a Local Government proposes to sell land for non-payment of rates, under the authority contained in Part 6 Division 6 Subdivision 6 of the Act, it must lodge with the Registrar a memorial of the advertisement of such sale. The advertisement must be substantially in the manner of Form 5 as set out in Regulation 75 of the Local Government (Finance Management) Regulations 1996. The memorial must be a true copy of the original advertisement and be certified as such by the Chief Executive Officer of the relevant Local Government. A full page of the state-wide newspaper in which the advertisement appeared should also be supplied.

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The memorial is effective from the time of registration and binds the Register for twelve months from that time. The Registrar is prohibited from accepting for registration an instrument affecting the land without the consent of the Local Government until the land ceases under s.6.69 or clause 7 of schedule 6.3 of the Act to be bound. During the period of currency of the memorial a transfer by the Local Government effecting a sale for rates may be lodged (see paragraph 2.2.9). On receipt of a certificate signed by the Chief Executive Officer of the relevant Local Government stating that the rates, costs and expenses have been paid in respect of a specified piece of land, the Registrar causes to be entered on the relevant title a memorandum that the land has ceased to be bound by the memorial. If after the expiry of twelve months the memorandum has not been removed, it is ignored as an encumbrance. No fees are payable for either the lodgement or withdrawal of these memorials.

11.4.18 Metropolitan Water Supply Sewerage & Drainage Act 1909 The Metropolitan Water Supply Sewerage & Drainage Act 1909 (in this paragraph referred to as the Act) is administered by the Western Australian Water Authority, a body corporate with perpetual succession and a common seal, and the power (among other things) to acquire, hold and dispose of real property. The Act authorises the delegation of powers to officers of the Authority. Although the Act provides that unpaid rates are a charge on land with priority over other securities, no method of recording the charge on the relevant title is set out. The Authority may take possession of the land and lease it and collect the rent, or it may sell the land by way of a warrant of execution issued by the Local Court. Section 124A of the Act (now repealed) allowed the Authority to lodge a memorial with Landgate for registration on the title for freehold land, on a Crown land title or Crown lease for Crown land, or in the Deeds Office for Old System land, when water rates or charges were in arrears. The memorial was removed by the lodgement of a certificate signed by the Managing Director of the Authority certifying that the payments have ceased to be in arrears. The memorial was not a form of charge, but while it remained registered, neither the Registrar of Titles nor the Registrar of Deeds could accept for registration an instrument affecting the land without the consent of the Authority. No fees were payable on the lodgement or withdrawal of the memorials. 

Note: It is no longer possible to lodge the above-mentioned memorials. s.45 of the Water Legislation Amendment (Competition Policy) Act 2005 (proclaimed on 3 June 2006) repealed s.124A of the Metropolitan Water Supply, Sewerage, and Drainage Act 1909. Section 66 of the Water Legislation Amendment (Competition Policy) Act 2005 amended the Water Services Licensing Act 1995 to include s.44F which allows for the lodgement of a memorial with regard to water service charges that are in arrears (see paragraph 11.4.30). A memorial that has been lodged under s.124A of the Metropolitan Water Supply, Sewerage, and Drainage Act 1909 is deemed to be a memorial under s.44F of the Water Services Licensing Act 1995 (see s.44G).

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11.4.19 Proceeds of Crime Act 1987 The Proceeds of Crime Act 1987 (in this paragraph referred to as the Act) is a Commonwealth statute intended to deprive persons of property purchased from the proceeds or profits derived from offences against the Commonwealth and Territories. Where land is involved, either the Official Trustee in Bankruptcy or the Director of Public Prosecutions may register charges or orders. Where a pecuniary penalty order is made against a person or a restraining order is made against property in reliance on the pecuniary penalty order, then a charge is created to secure the payment to the Commonwealth of the penalty amount. Either the Official Trustee in Bankruptcy or the Director of Public Prosecutions can apply for the registration of the charge by lodging a certified copy of the Court order creating the charge, with a memorial of the charge. The memorial must certify that a restraining order was made under s.43 of the Act over the land described in the memorial and identify the Court order by reference to its date and plaint number. For orders made in other States or outside Australia, the memorial must identify the Court order by reference to the State or Country in which made, the Court, its date and plaint or identifying number and be re-sealed in the Supreme Court of Western Australia. The charge takes effect from the time of lodgement of the memorial, but does not prevent the registration of any instrument creating or transferring an interest in the land, as long as the memorial is shown in the Limitations, Interests, Encumbrances and Notifications panel (where there is one) of the instrument. By acknowledging the memorial as an encumbrance the successive transferees or encumbrancers of the land are liable for, or hold their interest subject to, the charge. If the monies protected by the memorial are not paid, then a right is created for the Commonwealth to sell the land and recover the original amount and subsequent costs. The memorial may be withdrawn from the certificate of title by the Director of Public Prosecutions or the Official Trustee in Bankruptcy, or by an application by the registered proprietor on a Form A5 supported by evidence (usually in the form of a Court order) that the memorial no longer has any effect. Fees are payable on lodgement and withdrawal of these memorials.

11.4.20 Proceeds of Crime Act 2002 The Proceeds of Crime Act 2002 (in this paragraph referred to as the Act) is a Commonwealth statute intended to deprive persons of property purchased from the proceeds or profits derived from offences against the Commonwealth and Territories. The Act was passed on 11 October 2002 and came into operation on 1 January 2003. The Act was amended with effect from 1 January 2012 by the Crimes Legislation Amendment Act (No.2) 2011 so that the Commissioner of the Australian Federal Police (AFP) is defined, under s.338, as a Proceeds of Crime Authority. Where land is involved, either the Official Trustee in Bankruptcy, the Director of Public Prosecutions or the Commissioner of the Australian Federal Police may register charges or orders. Where a pecuniary penalty order is made against a person or a restraining order is made against property in reliance on the pecuniary penalty order, then a charge is created to secure the payment to the Commonwealth of the penalty amount. Either the Official Trustee in Bankruptcy, the Director of Public Prosecutions or the Commissioner of the Australian Federal Police can apply for the registration of the charge by lodging a certified copy of the Court order creating the charge, with a memorial of the charge. The memorial must certify that a restraining order was made under either section 17, 18, 19 or 20 of the Act over the land described in the memorial and identify the Court order by reference to its date and plaint number. For orders made in other States or outside Australia, the memorial must identify the Court order by reference to the State or Country in which made, the Court, its date and plaint or identifying number and be re-sealed in the Supreme Court of Western Australia.

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A foreign restraining order registered in a court under s34E of the Mutual Assistance in Crime Matters Act 1987 (MACMA) has effect, and may be enforced, as if it were a restraining order that was made by the court under the Proceeds of Crime Act 2002 at the time of the registration. Once an order is made under MACMA s34E, the order may be dealt with in exactly the same manner as if it were made under the Proceeds of Crime Act 2002. The Proceeds of Crime Act 2002 Memorial should be used and should include a statement that “the restraining order has effect, and may be enforced, as if it were a restraining order that was made under the Proceeds of Crime Act 2002 . The charge takes effect from the time of lodgement of the memorial, but does not prevent the registration of any instrument creating or transferring an interest in the land, as long as the memorial is shown in the Limitations, Interests, Encumbrances and Notifications panel of the instrument (where there is one). By acknowledging the memorial as an encumbrance the successive transferees or encumbrancers of the land are liable for, or hold their interest subject to, the charge. If the monies protected by the memorial are not paid, then a right is created for the Commonwealth to sell the land and recover the original amount and subsequent costs. The memorial may be withdrawn from the certificate of title by the Director of Public Prosecutions, the Official Trustee in Bankruptcy, the Commissioner of the Australian Federal Police or by an application by the registered proprietor on a Form A5 supported by evidence (usually in the form of a Court order) that the memorial no longer has any effect. Fees are payable on lodgement and withdrawal of these memorials.

11.4.21 Retirement Villages Act 1992 Section 15 of the Retirement Villages Act, 1992 provides that retirement villages shall only operate from land registered under the TLA and requires that a memorial giving notice that the land is being so used must be lodged before the registered proprietor can advertise the property for sale, rent or lease or otherwise dispose of or encumber the interest in the land. In addition to its role as a notice, the memorial is also evidence of the existence of a statutory charge against the property securing, in priority, to all other encumbrances, the resident’s right to a refund of the payment of a premium under the Act. Memorials for retirement villages established before 19 June, 1992 must carry the endorsed consent of any encumbrancers of the land. On registration the memorial is endorsed on the relevant title and where appropriate, on the relevant strata plan. The memorial does not restrict the registration of any instrument dealing in the land but must be shown in the Limitations, Interests, Encumbrances and Notifications panel of such instrument (where there is one). By acknowledging the memorial as an encumbrance the successive owners and encumbrancers of the land are deemed to have knowledge of the use of the land and the implications of that use. Fees are payable both on registration of the memorial and on an application to remove it.

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11.4.21.1 Total removal of a retirement villages memorial The memorial may be removed by application to the Registrar of Titles, who must be satisfied that no part of the land to which the memorial relates is still used or proposed to be used as a retirement village. The following is required to remove the memorial from the land: 1.

the applicant (who may not always be the registered proprietor) is to lodge an application (Form A5). The reason for the application (third panel) should state: “to have number ………….. removed from the above land on the grounds that the land is no longer to be used as a retirement village”

2.

a supporting statutory declaration setting out the circumstances in which the use of the land has changed and confirming the request to have the memorial removed on the grounds previously stated and

3.

consents from all registered encumbrancers and caveators should also be supplied.

11.4.21.2 Removal of a Retirement Villages Memorial that has been incorrectly lodged Sometimes a registered proprietor of a strata lot incorrectly lodges a retirement villages act memorial over land that has not been set aside as a retirement village. These memorials have at times been accepted for registration because Landgate does not have any way of knowing whether or not the strata scheme is to be used as a retirement village. The procedure for removal of retirement village memorials that have been incorrectly lodged against land is as follows: 1.

The lodgement of an application (Form A5) signed by the registered proprietor of the land. The reason for the application (third panel) should state: “to have memorial number ………….. removed from the above land on the grounds that the land did not at the time of registration of the memorial and does not now fall within a definition of a retirement village scheme under the Retirement Villages Act 1992.”

2.

A supporting statutory declaration by the registered proprietor stating that: (i)

the registered proprietor’s strata lot contained in the strata plan and the buildings on the strata plan did not at the time of registration of the memorial and does not now fall within a definition of a retirement village scheme under the Retirement Villages Act 1992 and

(ii) 3.

the registered proprietor’s strata lot will not be used in the future by that proprietor as part of a retirement village scheme as defined under the Retirement Villages Act 1992.

A supporting statutory declaration by a councillor of the strata company stating, on behalf of the strata company, that: (i)

Now and at the time of registration of the memorial there is and was no current by-law or notice of a proposed amendment to the by-laws of the strata company which provides that the land in the strata plan will be used as a retirement villages scheme. and

(ii)

4.

There will not be in the future a change to the by-laws of the strata company which provides that the land in the strata plan will be used as a retirement villages scheme or part of a retirement village scheme as defined under the Retirement Villages Act 1992.

A certificate or letter from the Department of Commerce (Consumer Protection) confirming that the land in question is not, has never been used nor is proposed to be used as a retirement village.

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11.4.21.3 Partial Removal of a Retirement Villages Memorial The provisions of the Retirement Villages Act 1992 do not authorise the partial removal of a retirement villages act memorial.

11.4.22 Rural Adjustment and Finance Corporation Act 1993 The Rural Adjustment and Finance Corporation Act 1993 (in this paragraph referred to as the Act) repealed the Rural Adjustment and Finance Corporation Act 1971 but continued on in existence the body known as the Rural Adjustment and Finance Corporation of Western Australia, a body corporate with perpetual succession and a common seal. The signatories or seal holders are designated by the Act, and documents sealed with the Common Seal of the Corporation will be accepted for registration when the seal is countersigned by two members (the term member includes the chairperson) or a member and an officer, or three officers. The corporation may delegate any of its powers (apart from the power to delegate) to an individual member, or to the officers of the organisation. 

Note:

The Rural Adjustment and Finance Corporation Act 1993 was repealed by the Rural Business Development Corporation Act 2000.

11.4.22.1 Protection Order In addition to financial assistance, the corporation may grant an applicant a protection order, halting any default proceedings already commenced and forbidding the commencement of new actions without the permission of the corporation. The corporation must immediately, on granting the order, file with Landgate a copy of the order for recording on the title for freehold land or on the Crown land title or Crown lease for Crown land, or in the Deeds Office for old system land. The protection order continues in operation for 3 months, and may be extended, and the extension must be filed at Landgate. The order may also be cancelled by the corporation, and the Act requires it (the corporation) to file a notice at Landgate of the expiration due to time, or cancellation of the order. Instruments creating or transferring an interest in land encumbered by a protection order will not be registered.

11.4.22.2 Restriction on dealing in land The corporation may, under a rural assistance scheme, transfer land to a person, and deliver a memorial to the Registrar of Titles or the Registrar of Deeds and Transfers for registration either on the title for freehold land, or on the Crown land title or Crown lease for Crown land, or in the Deeds Office for old system land. A transfer, assignment or lease of land affected by such a memorial is not registrable unless it bears the appropriate authorisation of the corporation. On the registration of an instrument with the authorisation of the corporation the memorial ceases to bind the (freehold) title, Crown land title or Crown lease and is removed. No fees are payable on any notice or memorial lodged under the Act.

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11.4.23 Rural Business Development Corporation Act 2000 The Rural Business Development Corporation Act 2000 (in this paragraph referred to as the Act) repealed the Rural Adjustment and Finance Corporation Act 1993. The corporation may, under an approved assistance scheme, transfer land to a person, and deliver a memorial to the Registrar of Titles or the Registrar of Deeds and Transfers for registration either on the title for freehold land, or on the Crown land title or Crown lease for Crown land, or in the Deeds Office for old system land. A transfer, assignment or lease of land affected by such a memorial is not registrable unless it bears the appropriate authorisation of the corporation. On the registration of an instrument with the authorisation of the corporation the memorial ceases to bind the (freehold) title, Crown land title or Crown lease and is removed. No fees are payable on any notice or memorial lodged under the Act.

11.4.24 Soil and Land Conservation Act 1945 The Soil and Land Conservation Act 1945 (in this paragraph referred to as the Act) is administered, subject to the direction of the Minister, by the statutory position of Commissioner of Soil and Land Conservation, and a Deputy Commissioner. The Commissioner may delegate any of his functions (apart from the power of delegation). Any person signing a document on behalf of or in the name of the Commissioner must state his delegation to do so.

11.4.24.1 Vegetation conservation covenants A landowner may, by agreement with the Commissioner, set aside all or part of a lot or location for the protection and management of natural vegetation. The Commissioner may lodge a memorial for registration on the title for freehold land, on a Crown land title or Crown lease for Crown land, or in the Deeds Office for old system land. The Commissioner may remove the memorial by lodging at Landgate a form certifying that the agreement has been discharged. The Registrar may also cancel the registration of the memorial where he is satisfied that the covenant or agreement has ceased to have effect. Action would be taken by the Registrar on receipt of an application Form A5 by the registered proprietor to remove the memorial, supported by evidence proving that the agreement has ceased to have effect. The proof may be in the form of a statutory declaration. The memorial does not restrict any dealing on the land, but must be noted in the Limitations, Interests, Encumbrances and Notifications panel (where there is one) of any instrument creating or transferring an interest in it. By acknowledging the agreement as an encumbrance the successive owners and encumbrancers of the land are bound by its provisions.

11.4.24.2 Soil conservation charge The Commissioner may under certain circumstances authorise contractors to enter upon land and take action to conserve natural vegetation. The costs of the action, if not paid by the landowner or occupier, can become a charge on the land ranked first in priority to all other registered charges and mortgages, except those created in favour of the Crown or the Bank of Western Australia Ltd. Registration of the charge is effected by lodging a memorial for registration on the title for freehold land or on a Crown land title or Crown lease for Crown land or the Deeds Office for old system land. The Commissioner may remove the memorial by lodging at Landgate a form certifying that payment of the amount charged has been made in full. The memorial does not restrict any dealing on the land, but must be noted in the Limitations, Interests, Encumbrances and Notifications panel (where there is one) of any instrument creating or transferring an interest in it. By acknowledging the memorial as an encumbrance the successive owners and encumbrancers of the land are bound by its provisions.

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If the amount owing under the charge remains unpaid the Commissioner has the same powers conferred on a mortgagee by the TLA and the Land Act, including the power to sell the land to recover the costs. No registration fees are required to lodge or withdraw these memorials, and no stamp duty is payable on any charge created.

11.4.24.3 Soil conservation notice The Commissioner may issue a notice to a land owner or occupier requiring him to take action (or refrain from an action) to conserve the natural vegetation. A memorial of the notice may be lodged for registration on the title for freehold land, on a Crown land title or Crown lease for Crown land, or in the Deeds Office for old system land. The Commissioner may remove the memorial by lodging at Landgate a form certifying that the soil conservation notice has been quashed or discharged. The memorial does not restrict any dealing on the land, but must be noted in the Limitations, Interests, Encumbrances and Notifications panel (where there is one) of any instrument creating or transferring an interest in it. By acknowledging the memorial as an encumbrance the successive owners and encumbrancers of the land are bound by its provisions. No registration fees are payable on the lodgement or withdrawal of these memorials.

11.4.25 Taxation Administration Act 2003 The Taxation Administration Act 2003 (in this paragraph referred to as the Act) provides for the administration and enforcement of legislation dealing with State taxation. The Act provides for the lodgement of Memorials to charge land to secure the payment of Land Tax and to charge land to secure payment of Stamp Duty on instruments. The former provisions of the Land Tax Assessment Act 176 and the Stamp Act 1921 with regard to the lodgement of memorials, was repealed by this Act. The administration of the Act is vested in the statutory position of Commissioner for State Taxation, and a number of Assistant Commissioners (subject to the direction and control of the Minister). The Commissioner may delegate his powers (apart from the power of delegation) to any Assistant Commissioner or other officer. Any person signing on behalf of the Commissioner should state that he is the holder of a written delegation to do the act achieved by the registration of the document. Where a Survivorship or Transmission application is lodged in relation to land over which a memorial under s.77 or s.78 has been lodged by the Commissioner of State Taxation then consent will be required by the Tax Commissioner to allow registration of the Survivorship or Transmission application.

11.4.25.1 Memorial (Land Tax) Where Land Tax is in arrears, the Commissioner for State Taxation may lodge a memorial against freehold land and in the Deeds Office for old system land. The Memorial is lodged under s.76 of the Act. Section 76(1) of the Act states that unpaid Land Tax is a first charge on the land, whether or not the land tax is due for payment and whether or not a memorial of the charge has been registered, under s.83 of the Act. The effect of lodging the memorial is to prohibit the registration of any subsequent instruments without the consent of the Commissioner of State Taxation. The memorial may be removed by the Commissioner for State Taxation by lodging under s.81 of the Act a document called a Memorial of Release of Charge. A Memorial of Release of Charge can also be used to withdraw memorials formerly lodged under the Land Tax Assessment Act 1976. Fees are payable on the lodgement and removal of the memorials.

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11.4.25.2 Memorial (Stamp Duty) Where Stamp Duty is payable on an instrument under the Act, but was not paid on the due date or the payment of the duty is dishonoured, the Commissioner for State Taxation may lodge a memorial against freehold land and in the Deeds Office for old system land. The Memorial is lodged under s.77 of the Act. Section 77(4) of the Act states that a charge only arises on land for unpaid stamp duty when a memorial of the charge has been registered under s.83 of the Act. The effect of lodging the memorial is to prohibit the registration of any subsequent instruments without the consent of the Commissioner of State Taxation. The memorial may be removed by the Commissioner for State Taxation by lodging under s.81 of the Act a document called a Memorial of Release of Charge. A Memorial of Release of Charge can also be used to withdraw memorials formerly lodged under the Stamp Act 1921. Fees are payable on the lodgement and removal of the memorials.

11.4.25.3 Orders for sale of land If Land Tax or Stamp Duty remains unpaid for 18 months after registration of either of the abovementioned memorials, the Commissioner of State Taxation may apply to the Supreme Court for an order for the sale of the land so that the proceeds of sale may be applied toward satisfaction of the outstanding tax liability (see Sections 85 and 86 of the Act). To complete the sale a transfer of land executed by the court nominated in the order on behalf of the registered proprietor is registered. The duplicate title (if any) need not be produced, and if it is not produced the transfer will be registered after the procedures set out in s.74 of the TLA have been complied with. A sale by order of the Supreme Court is to discharge the land from any mortgage or other encumbrance securing a monetary obligation, but the land remains subject to any lease easement or other encumbrance. Fees are payable on the registration of a transfer giving effect to the order of the Supreme Court.

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11.4.26 Taxes and Charges (Land Subdivision) Legislation Amendment Act 1996 (Deferral of Charges and Headworks Contributions) The Taxes and Charges (Land Subdivision) Legislation Amendment Act 1996 (Deferral of Charges and Headworks Contributions) (in this paragraph referred to as the Act) made changes to the way the Water Corporation and other water agencies collect water charges and headworks contributions for newly subdivided residential land. The Act amends the Land Tax Assessment Act 1976, the Water Agencies (Powers) Act 1984, the Water Boards Act 1904 and the Water Services Co-ordination Act 1995. Developers of residential land may apply to the Water Corporation or other water agencies for: •

exemption of charges for residential lots created by subdivision approved by the Western Australian Planning Commission and

•

deferral of headworks contributions for residential lots created by subdivision.

The deferral applies only if the lot: •

is not serviced and is not a habitable lot

•

is created to be used solely or principally for residential purposes and

•

has an area of not more than 2000 square metres or if the area is more than 2000 square metres, it is to be used for a building or group of buildings that is solely for residential purposes and contains a number of separate residential units.

Payment is deferred until the lot: •

is serviced

•

becomes a habitable lot or

•

one year passes after the subdivisional plan or diagram is approved by The Western Australian Planning Commission.



Note: For the purpose of the Act the definition of a lot does not include a lot depicted on a Strata Plan unless it is a lot in a survey-strata scheme.

In order to obtain a deferral of headworks contributions, the developer must agree to a memorial (on each lot where it is proposed to defer headworks contributions) in favour of the Water Corporation under s.67B of the Water Agencies (Power) Act 1984 and also, in some cases, by other water agencies under s.62D of the Water Boards Act 1904. The memorials can be created: •

in the form of a document or

•

automatically on the lodgement of the deposited plan of survey.

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11.4.26.1 Memorials lodged in document form Memorials created by document must be lodged after the lodgement of the relevant plan, deposited plan or diagram at Landgate but before the application to create and register the new titles the subject of the plan or diagram is lodged. A memorial under s.67B of the Water Agencies (Power) Act 1984, and if necessary under s.62D of the Water Boards Act 1904, can be incorporated into the one document. The land description in the document must refer to the land the subject of the plan, deposited plan or diagram. The memorial will be endorsed on the title for the land the subject of the plan, deposited plan or diagram and will be brought forward onto the new titles for the lots when they are created and registered. Memorials created by document will be removed by the lodging of a withdrawal of Memorial document. In the case of land encumbered by a memorial lodged under s.67B of the Water Agencies (Power) Act 1984 and s.62D of the Water Boards Act 1904, separate documents will need to be lodged (one for the withdrawal of memorial under s.67B and another for the withdrawal of memorial under s.62D). Fees are payable upon the lodgement and withdrawal of these memorials.

11.4.26.2 Memorials created on subdivisional plans and diagrams When the plan, deposited plan or diagram is lodged at Landgate it may (in the circumstances outlined above) contain a notation that s.67B of the Water Agencies (Power) Act 1984 and if applicable, that s.62D of the Water Boards Act 1904 applies to certain lots shown on the plan, deposited plan or diagram. The memorial will be entered on the title for the land the subject of the plan, deposited plan or diagram and will be brought forward onto the new titles for the lots when they are created and registered. Memorials created on subdivisional plans and diagrams will be removed by the lodging of an application to remove the Memorial. In the case of land encumbered by a memorial lodged under s.67B of the Water Agencies (Power) Act 1984 and s.62D of the Water Boards Act 1904, separate applications to remove the memorials will need to be lodged (one for the memorial under s.67B and another for the memorial under s.62D). A registration fee for the creation of the memorial is to be paid at the time of lodgement of the plan or diagram and also upon their removal.

11.4.26.3 Effect as an encumbrance When these memorials encumber land, they act as a bar to the registration of an instrument to transfer land unless there is the written consent of the Water Corporation and if applicable other water agencies. 

Note: Any enquiries with regard to the creation or removal of these memorials should be directed to the Water Corporation.

11.4.27 Town Planning and Development Act 1928 (Section 12A) See paragraph 11.3.9

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11.4.28 Water Services Act 2012 The Water Services Act 2012 (in this paragraph referred to as the Act) relates to the provision of water services and the regulation of water service providers, and for related purposes. In 2013 the Water Services Act 2012 replaced the Water Services Licensing Act 1995.

11.4.28.1 Lodging a Memorial against the Land- Section 128(2) of the Water Services Act 2012 Section 128(2) of the Act allows a licensee to lodge a memorial against land where the payment of an amount due to the licensee in respect of any water services charge is in arrears. The Memorial form can be downloaded from Landgate’s corporate website in Titles & surveys/Forms & fees/ Land titling forms. Where the memorial is shown in the second schedule of a certificate of title, the Registrar of Titles is prohibited from registering an instrument affecting the land without the written consent to the licensee. Fees are payable on lodgement of these memorials.

Water Corporation Memorials for the Deferral of Headworks: Section 128(2) of the Act requires a memorial document to be registered on the certificate of title of the land being subdivided. Section 128(2) replaces section 67B of the Water Agencies (Powers) Act 1984, which required a memorial to be created on plans of subdivision. The new memorial should be lodged at Landgate on the approved form prior to the lodgement of the application for new certificates of title for the lots on the plan of subdivision. Section 128(3) of the Act states that, until the memorial is withdrawn, the Registrar must not register, without the written consent of the licensee, an instrument affecting the land that is lodged for registration after the memorial is lodged. The Memorial form can be downloaded from Landgate’s corporate website in Titles & surveys/Forms & fees/ Land titling forms. Fees are payable on lodgement of these memorials, but will no longer be included with the deposited plan audit lodgement fee.

11.4.28.2 Withdrawal of Memorials- Section 128(4) of the Water Services Act 2012 Under section 128(4) of the Act, the licensee is to withdraw a memorial when the charge, contribution or monies due under the Water Services Act 2012 that was previously in arrears or deferred and that was the subject of a memorial, has been paid or has ceased to be in arrears. A Withdrawal of Memorial form can be downloaded Landgate’s corporate website in Titles & surveys/Forms & fees/ Land titling forms. Fees are payable on withdrawal of these memorials.

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11.4.28.3 Transfer Order and Notification Pursuant to s.46B of the Act the Minister may make a Transfer Order that transfers the assets of a statutory asset owner to a transferee. Asset as defined in s.46A of the Act means any works, or any other thing used or intended to be used for the provision of irrigation or drainage services, that: •

is the property of a statutory asset owner and

•

is upon, in, over or under the land that is not the property of the statutory asset owner.

Section 46G of the Act requires that a notification be placed on relevant titles so as to ensure that a person searching the title to that land receives notice that the assets on the land that were transferred vest in the statutory owner. Two forms have been created and approved by Landgate specifically for the Act. One form to create a notification (Form Approval B6548) and one to remove a notification (Form Approval B6549). Fees are payable on lodgement and removal of these notifications.

11.4.29 Western Australian Land Authority Act 1992 11.4.29.1 By-Laws Part 6 (By-laws) of the Western Australian Land Authority Act 1992 (in this paragraph referred to as the Act) authorises the creation of by-laws for the development, management and use of certain land and the registration of these conditions in a memorial in the name of the Western Australian Land Authority lodged in Landgate. The memorials may be registered on the title for freehold land, the Deeds Office for Old System land and on a Crown land title for Crown land. The memorial may be registered on land in the name of the authority before the land is sold. The memorial does not contain the by-laws, it only gives notice of the intention of the authority to create them. The by-laws may be amended or removed by the publication of an order by the Minister in the Government Gazette. On the delivery of the order to Landgate the memorial is amended or removed as an encumbrance. The memorial does not restrict any dealing or instrument on the land as long as the dealing or instrument shows it in the Limitations, Interests, Encumbrances and Notifications panel (where there is one). By acknowledging the covenant as an encumbrance the successive owners and encumbrancers of the land are bound by its provisions. While fees are payable for the lodgement of a memorial, no fees are required on the documents removing it.

11.4.29.2 Conditional Disposition Part 4 (Conditional Disposition of Land) of the Act, authorises the creation of conditions attached to the sale of land and the registration of those conditions in Landgate in a memorial in the name of the Western Australian Land Authority. The memorials may be registered on the title for freehold land, the Deeds Office for Old System land and on a Crown land title for Crown land. The memorials may be removed by a withdrawal signed by the Authority. Dealings on the land encumbered by a memorial may be accepted if the memorial is shown in the Limitations, Interests, Encumbrances and Notifications panel (where there is one) and the instrument or dealing bears the written consent of the Minister charged with the administration of the Act. A dealing or instrument registered without the consent is void. The mortgagee of a mortgage registered with the consent of the Minister can, after obtaining a further approval, exercise the power of sale or foreclose in cases where the mortgagor defaults. While fees are payable for the lodgement of a memorial, no fees are required on the document removing it.

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12.

Crown Land, Crown Reserves and Amalgamations

This chapter relates to crown land in Western Australia, how it is dealt with under the Land Administration Act 1997, the creation of reserves and the amalgamation of crown and freehold land.

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12.1

Crown Land

12.1.1

General

By a series of landings, flag raising ceremonies and proclamations, the eastern side of Australia (initially) and later Western Australia were deemed vacant (terra nullius) and claimed on behalf of the British Government as colonies and all the land was claimed for and declared to belong to the British Crown. The process of settlement was soon followed by the subdivision of parts of the land and subsequent issue of a Crown lease or Crown Grant to the successful applicant. The original grants were issued by the Governor, as the Queen’s Representative. Land is now granted in fee simple by the cancellation of the Crown land title (on lodgement of a transfer) and the creation and registration of a certificate of (freehold) title.

12.1.2

Introduction to the Land Administration Act 1997 (LAA)

The introduction of the LAA on 30 March 1998 by the Department of Land Administration (DOLA) revolutionised the administration of Crown land in Western Australia. The legislation modernised Crown land administration and management and is a substantial rewrite of existing laws. The legislation introduced new practices and policies for the release and protection of the Crown estate and the legislation implemented a document registration process for the Crown estate, where all documents will need to be registered to be effectual. Well-established conveyancing procedures used for freehold land now applies to the Crown estate, while preserving the current benefits of the Crown legal system. This has resulted in a Single Registration System, which has simplified and streamlined many processes relating to the Crown estate. Once the system is fully established, a title will be created for all land parcels in the State. This will result in a consolidated register for all Crown and freehold tenure and interests. On implementation of the LAA, all existing Crown land records automatically became Qualified certificates of Crown land titles (QCLTs). This ensured that existing records endorsed on Crown land records (CLRs) could be brought across subject to minor modification, into the new system. CLRs created prior to implementation of the Act for reserves do not have in most cases leases, mortgages, etc. registered against them. In addition over 65% of the total Crown land parcels did not have a CLR created for them. Many local governments and some statutory authorities have powers to grant interests over Crown land (generally leases). Pre-LAA, these interests and any associated encumbrances were maintained on individual registers by different agencies throughout the State. For 5 years Landgate undertook a take-up program of all interests granted pre-LAA, to be registered or have caveats recorded free of registration fees, against the relevant Crown land parcel on Certificate of Crown land title (CLT) or QCLT. This take-up program also formed the basis for the process to remove the qualification from all QCLTs (see paragraph 1.3.8). At the end of the above-mentioned 5 year transitional period, any unregistered interests are void against competing interests.

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12.1.3

Crown Land Administration- Department of Lands (DoL)

The Department of Lands (DoL) is the primary government agency charged with the administration of Crown land. Included in the matters allocated to the Department to arrange on behalf of the State are: •

to arrange the subdivision of Crown land creating or extending roads and townships

•

to arrange the sale of Crown land for private or commercial use, either subject to conditions for development or not

•

to arrange to set areas of Crown land aside to create reserves in the public interest for public use or for services and utilities to provide a public benefit

•

to arrange the placing of the day to day control and management of reserves in local Governments, statutory utilities or incorporated or statutory associations (such as service clubs, sporting clubs and churches)

•

to arrange for the creation and registration of a lease of Crown land for residential, agricultural or industrial purposes

•

to co-ordinate the amendment of roads, for matters such as widening, deviation and closing;

•

to co-ordinate the taking and revesting of freehold land required for public purposes and

•

to co-ordinate the collection and registration at Landgate of dealings as to interests in the Crown estate on certificates of Crown land title.

For a list of the Regional Teams in the Department of Lands (DoL) and the relevant local government for each Region see paragraph 12.1.17. A phone number of a Project Officer in each team and a fax number is also displayed. Other government departments are entrusted with varying degrees of management roles over Crown land, with the major roles being played by the Department of Parks and Wildlife, the Water Corporation, the Department of Mines and Petroleum and, to a lesser extent, the Department of Transport..

12.1.4

Defining Crown Land

It could be stated in very simplistic terms that Crown land is all land in Western Australia for which there is no certificate of title under the TLA or a memorial or grant registered under the Registration of Deeds Act 1832. Where a government department purchases the land in a certificate of title the land is not automatically revested as Crown land and (subject to the legislation controlling the Department) the Department has all the rights and obligations of every land owner. Nearly all roads are Crown land (road extends from fence line to fence line of the properties on each side of it, not just the bituminised portion set aside for vehicles). Most recreation reserves, river foreshores and beaches are Crown land, and public utilities (dams, pump stations, electricity switch yards, etc) are usually constructed on Crown land.

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12.1.5

Transmission of Interests from Crown to Freehold

Until the introduction of the Land Amendment (Transmission of Interests) Act 1992 all new Crown Grants were created and registered free of any interests created while the land was still Crown land. These interests, which were in the main leases, could range from those created when Government Departments made short term arrangements on property not immediately required, to long term commercial leases of land adjoining harbour facilities or railway sidings. The new legislation, effective from 16 June, 1992 provided a framework whereby when the land was registered under the TLA as a Crown Grant the previously unregistered interests were brought forward onto the grant and attained a status close to that of registered interests under the TLA. As not all of the interests have the precise boundary definition required for registration under the TLA, the Land Amendment (Transmission of Interests) Act 1992 provides for the adjustment of the interest to match the survey boundaries shown in the paper certificate of title or subdivision of the title without the need for partial surrenders or extensions of the original interest.

12.1.6

Registration of Pre-LAA Crown Documents

Under the Land Act 1933, Crown land was reserved and vested under that Act by Order in Council made by the Governor and gazetted in the Government Gazette. The Order was commonly known as a Vesting Order. The Order had the effect of vesting the parcel of Crown land in a particular person for a designated purpose and subject to such conditions and limitations, as the Governor deemed necessary. Under the Land Act 1933, the Governor could confer upon the person in whom the Crown land was vested, the power to lease, sub-lease or grant licences over the vested reserve. These Vesting Orders have been transitioned into the LAA as Management Orders made under the LAA. The granting of leasing powers in the Vesting Order includes the power of the lessor to transfer/assign, extend, vary or sub-lease a lease. With the introduction of the LAA the ability of the Minister for Lands to make orders creating reserves and Management Orders has been created. These orders registered under the TLA are now used in place of gazettal actions by the Governor. A transitional process had to be considered to register documentation prepared pre-LAA, which had been created in a deed format and were not registrable in that format. These pre-LAA types of documents will be accepted for registration under the TLA with TLA approved forms used as coversheets if the terms and conditions set out in the documents are clear. All panels on a coversheet for pre-LAA documents should be completed. The coversheet does not need to be stamped or executed provided that the deed contained within the approved coversheet is an original or duplicate original document and has been correctly stamped and executed. The consent of the Minister for Lands must also be attached or endorsed on the document. Where a lease or sublease is lodged in duplicate, both the original and duplicate must have a coversheet attached.

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The following approved forms can be used as coversheets for relevant Crown deeds created prior to 30 March 1998, and are found on Landgate’s corporate website in Titles & surveys/Forms & fees/ Land titling forms: •

L1C form is used for leases of Crown land.

•

T3C form is used for assignments/transfer of leases of Crown land.

•

E2C form is used for extensions of leases of Crown land.

•

V3 form is used for variations of leases of Crown land.

•

L2C form is used for sub-leases of leases of Crown land.

To access different LAA approved forms for different purposes, contact the Department of Lands website (http://www.lands.wa.gov.au/Publications/Pages/Forms-(LAA-Approved).aspx. Since 30 March 1998, ‘Transfers of Leases’ should have been used instead of ‘Assignments of Leases’. Assignments of Leases created after 1 September 1999 will not be accepted for registration. A mortgage over a registered Crown interest (such as a lease or sub-lease) in Crown land may be registered under the TLA, the mortgage must be prepared in the same format as a freehold mortgage on a Form M1 Mortgage. The form of mortgages by way of sub-demise, used regularly for Crown interests created pre-LAA, is not acceptable for registration under the TLA. However, mortgages by way of sub-demise, created pre-LAA, may be protected by a caveat recorded against the interest for which the mortgage has been taken provided that the mortgage and the interest it is securing received the approval of the Minister for Lands.

12.1.6.1

Registration of Current Interests only

The sequence of acts and events forming documentation that convey interests from one party to another along a transaction trail is commonly known as the Chain of Title. The exception to registering the complete chain of title is where pre-LAA documents creating interests in Crown land are lodged for registration. Normally, only current (or live) interests will be registered against a Crown title. However, to be able to register the current (or live) interests, the lodging party must also present the complete chain of original stamped documents. The chain of title will, in many cases, contain original documents that are no longer current. For example, a lease may have been assigned/transferred six times from the date of the original head lease. In such cases, only the current interests such as the original head lease, which is the main interest that contains the lease conditions, and the last assignment/transfer of lease, which contains the details of the current lessee, need to be lodged for registration. The in between documents are simply presented for sighting and verification of the chain of title. The in between documents presented may be an original, duplicate or a stamped photocopy. If the complete chain of title cannot be presented as evidence to a current interest, the dealing will be referred to the Commissioner for a determination as to the validity of the title held by the lodging party. The Commissioner may issue a request for the production of evidence as the Commissioner thinks fit before the interest will be registered. Alternatively, the lodging party may consider lodging a caveat in lieu of the interest where the chain of title cannot be established.

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12.1.6.2

Accepting duplicate documents as originals

The registration of an interest in Crown land requires the lodgement of the signed and stamped original document in a prescribed form with the Registrar. Section 81U of the TLA however, does allow for the registration of a signed and stamped duplicate original document in the absence of a signed and stamped original document where the document was granted prior to 30 March 1998. If the lodging party is unable to locate the signed and stamped original document, they should contact the relevant region in the Department of Lands (see paragraph 12.1.17) and request a search of the relevant the Department of Lands file to ascertain if it contains the original document. At times in the past, a number of document copies could have been sent in to the Department of Lands for Minister’s approval wherein the Department of Lands were able to retain one copy to be placed on their file. The lodgement of an executed and stamped duplicate original document in place of the original stamped and executed document will only be acceptable for registration upon production of a statutory declaration from the lessor (management body/agency) and the lessee. The statutory declaration from the lessor (management body/agency) should include the following: •

State the position the declarant holds within the organisation and that he/she is authorised to make the declaration on behalf of the organisation.

•

Identify the land by parcel identifier (lot or location), reserve number and purpose.

•

Identify the document (set out the details of the document) and indicate if and when the Minister for Lands approval had been received. and

•

What enquires have been made to locate the original document.

The statutory declaration from the lessee should include the following: •

Identify the land by parcel identifier (lot or location), reserve number, purpose and lease details.

•

Identify the current occupant of the land.

•

Statement to the effect that the original document was never in your possession or original document was in your possession and what searches and enquires were made to locate it. and

•

Statement that the original document had not been deposited with any bank, firm or person by way of security for any lien or loan or any other purpose.

Duplicate original documents in place of the original cannot be accepted for documents created after 30 March 1998.

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12.1.7

Minister for Lands Consent for Transactions Over Crown Land

All transactions over Crown land require LAA s.18 consent of the Minister for Lands unless the Crown land is set aside or vested for purposes of another Act. The approval from the Minister should be obtained in writing prior to completion and execution of agreements for a transaction, including documents such as a lease, transfer, mortgage, sub-lease or evidence for a caveat. The approval may be by letter or fax signed on behalf of the Minister by a delegated officer approving in-principle the proposed transaction and agreement or by an approval stamp placed on the document. A copy of the in-principle approval letter or fax is required to be included with the document or caveat when lodged with Landgate for registration who will check the document for compliance with the in-principle approval. To arrange for the necessary consent, contact can be made with the relevant region in the Department of Lands (see paragraph 12.1.17). Section 18 approval is not required in relation to dealings under management orders issued to Ministers or government agencies and corporations, unless the management order specifies that the Minister’s consent is required (see sections 18(8)(d) and 46(3b)). All dealings under management orders issued to local governments require s.18 approval. Consent for dealings over leases under the War Service Land Settlement Act can in certain circumstances be exercised by the Bank of Western Australia Ltd under a delegated authority in lieu of the Minister for Lands.

12.1.7.1

Section 75 of the LAA

Consent of the Minister for Lands is required for any freehold Conditional Tenure land (see paragraph 12.1.14) or a Crown Grant in Trust that is being transferred, mortgaged, leased, charged or otherwise encumbered.

12.1.7.2


Consent of the Minister for Lands is required in addition to s.18 consent for any Pastoral Lease that is being transferred, mortgaged, sub-leased, charged or otherwise encumbered. This consent should be arranged through the Pastoral Lands Board.

12.1.7.3


Consent is required for any transaction over Crown or freehold land that is encumbered by a Notice of Intention to Take (NOITT), subject to certain exceptions (see paragraph 13.1.13). The consent should be obtained from the relevant agency responsible for the NOITT. Where the NOITT is over Crown land, the transaction additionally requires s.18 consent of the Minister for Lands.

12.1.7.4


Consent of the Minister for Lands is required for any Taking Order over Crown land that proposes to grant an interest from the Crown estate. It is unlikely the Department of Lands would grant such a consent.

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12.1.8

Internal Interests Plans and Sites

A Subsidiary Crown Land Title (SCLT) is a Crown title created and registered for a lesser interest in the Crown land to facilitate the recording of interests affecting that lesser interest (see Chapter 1.3.9). The SCLT forms part of an existing CLT, referred to as the Head CLT. Before SCLT’s are created, an Internal Interest Plan must be drawn up to show the multiple interests that are contained within an existing parcel/tenure of Crown land. Internal Interest Plans are used to identify sites, which are parcels of Crown land within a reserve or lease. Its primary function is to display the location and boundaries of leasehold or sub-leasehold interests within a larger reserve or head lease. Internal Interest Plans may be surveyed or unsurveyed deposited plans. It is the spatial relationship that is to be portrayed and the ability to relate a site number to the relevant SCLT that is important, rather than the question of absolute accuracy. Where accurate data exists, it will be used. However, where available information, generally from management bodies/agencies, identifies the relative position of sites, an Internal Interest Plan can be prepared without the additional cost of survey. Management bodies/agencies and lessees can liaise with Landgate to help collate graphical information required to prepare Internal Interests Plans. All Internal Interest Plans have to be suitable for the creation of site lots for the purposes of creating SCLT’s and QSCLT’s and must be approved by an authorised land officer.

12.1.9

Unqualification and Validation of Qualified Crown Land Titles

The LAA provides for the creation and registration of four types of Crown title: 1.

Certificates of Crown land title (CLT)

2.

Qualified certificates of Crown land title (QCLT)

3.

Subsidiary certificates of Crown land title (SCLT)

4.

Qualified subsidiary certificates of Crown land title (QSCLT).

A CLT or SCLT is a guaranteed title for a defined parcel of Crown land. A QCLT or QSCLT is a title for a defined parcel of Crown land that does not guarantee that all current interests have been registered or recorded against it. The unqualification or validation of a qualified Crown land title enables the qualified Crown land title to be unqualified and converted to a guaranteed Crown land title. Any person with a registrable interest in a parcel of Crown land that is not already the subject of a validated certificate of Crown land title, can make written request to the Minister for Lands via the relevant Regional Manager in the Department of Lands (see paragraph 12.1.17) to have a certificate of Crown land title created for that parcel. Only the Minister for Lands can apply under the LAA and Part IIIB of the TLA to the Registrar for the creation and registration of a title for Crown land. Where the Department of Lands lodge an Application for a CLT or SCLT, a statement in support (see LTRPM Form Examples-Examples 29 & 30) made by the Department of Lands on behalf of the Minister must state any current interests that have been granted over the subject land.

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Any interests identified in the supporting statement (eg. lease, sub-lease, mortgage, easement) must either be registered against the Crown title or be supported by a caveat lodged to protect that interest. To be certain with information that is added to a statement for unqualification, the Department of Lands may request interest holders to confirm in writing or supply a statutory declaration to verify their interests and to confirm the status of their interest, including whether they have granted any further interests against their existing interest. When the Department of Lands state that all interests for a parcel of Crown land have been identified, and registered or protected by a caveat, a QCLT may be unqualified and converted to a guaranteed CLT.

12.1.10 Subject to Survey – Not for Alienation Purposes Unlike freehold land, many Crown land parcels have not been surveyed or are only partially surveyed. Examples are national parks and pastoral leases where the cost of a full survey would be prohibitive and probably never be required. The production of a Crown title for an unsurveyed land parcel requires a graphic in the form of a deposited plan drawn to the standard of the cadastral information available. The deposited plan and Crown title are noted with the statement Subject to Survey-Not for Alienation Purposes. Crown land cannot be transferred to a fee simple estate until the land boundaries have been fully surveyed and a new deposited plan created.

12.1.11 Adjustment of Boundaries Section 23 of the LAA allows the Minister for Lands, in conformity with sound planning and land management principles, to survey, resurvey or subdivide Crown land the subject of any interests or caveats, with or without the encumbrancers consent. The lot boundaries are adjusted accordingly despite the encumbrances and the affected interests or caveats then encumber the lots defined in the Adjustment of Boundaries_ Continuing Interests document and not the land defined in the document that created them. An appropriate endorsement on the register will remain under each affected encumbrance until the encumbrance is removed. It is not compulsory to show an Adjustment of Boundaries_ Continuing Interests document as an encumbrance in following instruments being recorded against the land. Section 141 of the LAA allows the Minister for Lands, on recommendation of the Pastoral Lands Board, by order provide for the adjustment of boundaries between two pastoral leases. To support the amendment to the register, a Pastoral Lease Boundary Amendment Order document is lodged by the Department of Lands. This document is utilised where a boundary does not follow a fence line and the lessees wish to adjust the legal boundary to conform with the on ground accepted boundary or, as the result of a cadastral survey it is found that the surveyed boundary does not conform with the current legal boundary.

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12.1.12 Leases of Crown Land and Documents Affecting Leases of Crown Land For information on leases of Crown land and documents affecting leases of Crown land Crown see the following references to other Chapters in this manual: •

Leases of Crown land- see paragraph 2.8.1

•

Transfers of leases of Crown land- see paragraph 2.4.4

•

Mortgages of leases of Crown land- see paragraph 2.6.1

•

Surrenders of leases of Crown land- see paragraph 2.8.10

•

Sub-Leases of Crown land see paragraph 2.8.14

•

Extension of leases of Crown land- see paragraph 2.8.16

•

Variations of leases of Crown land- see paragraph 2.8.17

•

Removal of Expired Term Leases of Crown land- see paragraph 2.8.18

•

Forfeiture of leases of Crown land- see paragraph 2.8.19 and

•

Temporary Care Control and Management of Pastoral Leases- see paragraph 2.8.20.

12.1.13 Crown Grant in Trust Before the introduction of the LAA the Minister for Lands may have issued a freehold title over a reserve, (commonly known as a Crown Grant in Trust) for a particular purpose or any ancillary or beneficial purpose. Crown Grants in Trust were usually issued to an organisation rather than a person and the organisation usually had a strong social or welfare reason for existence. The land was granted in fee simple free of cost but could only be used for a designated purpose, such as a church site, hall site, ambulance quarters, etc. Mortgages to fund the development of the site of a Crown Grant in Trust created under the Land Act 1933 could be registered with the consent of the Governor (obtained through the Department of Lands) and leases could be registered in a similar fashion but the lessee may only use the land for the same designated purpose as the original proprietor or lessor. There was no specific provision in the Land Act 1933 to transfer a Crown Grant in Trust. However, grants issued in recent times contain a condition requiring the approval of the Governor to any transfer. Under the LAA the approval of the Minister for Lands is now required in lieu of the Governor. Following the case of Ramage v the Druids & Others, (Supreme Court of Western Australia 2273/1990) approval to transfer is only given in exceptional cases. If a new title is created on the registration of the transfer of the land in a Crown Grant in Trust, the new title remains bound by the trust pursuant to s.68 of the TLA. A Crown Grant in Trust for Public Endowment in the name of Trustees of The Public Endowment may be transferred to another party where gazettal has been included with the Transfer that confirms the Governor has approved the sale of the land free of all trust. No additional consents are required and thrust is removed from any title. To assist searchers, a stamp bearing the words Crown Grant contains a trust has been placed on the top left hand side of the front of paper titles which have their origins in a Crown Grant in Trust. In the case of a digital title, the reference to a Crown Grant in trust appears in the Second Schedule.

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As a result of the implementation for the LAA, no more Crown Grants in Trust will be created under the Land Act 1933. The existing Crown Grants in Trust created under the Land Act 1933 are deemed to have been granted under the LAA and any changes to them may be made in accordance with the provisions of the LAA. Under the LAA Crown Grants in Trust are called Conditional Tenure Land (see Chapter 12.1.14 below). Crown Grants in Trust under the Land Act 1898 have not been transitioned into the Land Act 1933 or the LAA. Leases, Mortgages or Transfers over a Crown Grant in Trust which was created under the Land Act 1898 (s.42) do not require consent of the Governor or the Minister. However, there may be limitations imposed by other Acts e.g. those under the Uniting Church in Australia Act 1976 require Governor's consent. When dealing with a Crown Grant in Trust created under the Land Act 1898 an assessment of the trust purpose is to be made and a determination as to whether another Act could govern it.

12.1.14 Conditional Tenure Land under Section 75 of the Land Administration Act 1997 Crown land may be sold into the fee simple subject to conditions in accordance with s.75 of the LAA. The land is known as conditional tenure land. Conditional tenure land is fee simple land subject to conditions of use of the land registered against the certificate of title. The conditions are such conditions determined by the Minister for the use of the land, usually requiring that the land be used only for a designated purpose. The land is transferred either for nominal value, or for a discounted price, reflecting the restrictions placed on the land’s use, and the value to the community of the service provided on the land (e.g. aged persons’ home, or church). The State’s equity in the land consists of the difference between the land’s unimproved market value at the time of transfer, and the price paid by the recipient of the title for the land. Where a nominal price was paid, the State’s equity is 100%. If the minister specifies that conditional tenure is subject to the condition that due performance of other conditions by the holder of the freehold is to be secured by a charge of that land, then under s.16 of the LAA the Minister may lodge a Memorial. When such a Memorial is registered it is a charge on the land for the benefit of the Minister. While the relevant memorial is registered, the Minister has the same powers of sale over the subject land, as are given by the TLA to a mortgagee under a mortgage that is in default of payment of the principal, where any default is made in respect of the performance of the conditions. When conditional tenure land is used in breach of any condition concerning the specified purpose, the conditional tenure land can be forfeited by the Minister under s.35 of the LAA and the Minister may recover a value consideration from the holder of the freehold. Conditional tenure land cannot be licensed, mortgaged, charged or otherwise encumbered without consent of the Minister for Lands under s.75(6) of the LAA and cannot be transferred without consent under s.75(5). Conditional Tenure land replaced Crown Grants in Trust formerly issued under s.33(4) of the Land Act 1933 over reserved land and limited to a specific purpose. Conditions relating to conditional tenure land can only be removed pursuant to an application made to the Minister, together with payment to the Department of Lands of the State’s equity in accordance with s.75(7) of the LAA. If the Minister agrees to this payment, the conditions and covenants registered against the certificate of title may be removed and cancelled on the registration of a Removal of Conditions document lodged by the Department of Lands. A Removal of Conditions document must have a stamp duty notation affixed or attached to it.

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12.1.15 Removal of Trust from Crown Grant There was no specific provision in the Land Act 1933 to remove a trust from a Crown Grant but where the land was to be exchanged, or was no longer required, the Crown Grant could be surrendered to the Crown pursuant to s.37A of the Land Act 1933. Where an organisation holding a Crown Grant in Trust wished to have the trust removed, it had to pay to the government (Landgate) the unimproved value of the land. On payment for the land (or satisfactory arrangements to pay), parliamentary sanction for the removal was sought in the annual reserves bill fostered by Landgate. The above procedures were not required where the proprietor of the Crown Grant in Trust had the benefit of a special legislation permitting the sale of the land. Examples of such legislation are the University Endowment Act 1904 and the Roman Catholic Bunbury Church Property Act 1955. As a result of the implementation for the LAA, no more Crown Grants in Trust will be created under the Land Act 1933. The existing Crown Grants in Trust are deemed to have been granted under the LAA and any changes to them may be made in accordance with the provisions of the LAA. Under the LAA Crown Grants in Trust are called Conditional Tenure Land (see paragraph 12.1.14).

12.1.16 Revestments Section 82 of the LAA provides for the revestment of fee simple land in to Crown land, with or without encumbrances. A Revestment Order will not be registered unless the fee simple land to be revested is in the name of the State of Western Australia. On registration of the revestment the freehold title is converted to a Crown title with a new Volume and Folio number. The same lot and plan number for the land is usually retained in the freehold to Crown conversion. The Minister for Lands will generally allow for easements and covenants to service authorities and valid notification documents under s.165 P&D Act (formerly s.12A TP&D Act) and s.70A TLA to be shown as encumbrances in a revestment order and brought forward onto the new Crown title. If another type of encumbrance affects the land it cannot be shown as an encumbrance in the revestment order without approval from the relevant Regional Manager in the Department of Lands. CMS Gas Transmission of Australia easements created when the land was freehold are not acceptable and must be surrendered. They may be replaced with an LAA easement. Implied rights, e.g. s.167 TLA rights, which encumber the land will usually prevent revestment. All rights benefiting the land to be revested continue and are automatically brought forward onto the new Crown title. The duplicate title for the land should be lodged with the revestment. Revestments prior to the LAA were considered to remove existing encumbrances.

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12.1.17 Department of Lands- Regional Teams To arrange Minister for Lands consent for Crown dealings or to enquire on the administration of Crown land, the appropriate region in the Department of Lands (DoL) can be contacted on the following phone or facsimile numbers: DoL Metropolitan- Peel

Phone: 6552 4400

Facsimile: 6552 4417

City of Armadale Town of Bassendean City of Bayswater City of Belmont Shire of Boddington Town of Cambridge City of Canning Town of Claremont City of Cockburn Town of Cottesloe Town of East Fremantle City of Fremantle

City of Gosnells City of Joondalup Shire of Kalamunda Town of Kwinana City of Mandurah City of Melville Town of Mosman Park Shire of Mundaring Shire of Murray City of Nedlands Shire of Peppermint Grove City of Perth

City of Rockingham Shire of Serpentine-Jarrahdale City of South Perth City of Stirling City of Subiaco City of Swan Town of Victoria Park Town of Vincent City of Wanneroo Shire of Waroona

DoL GoldfieldsEsperance and Wheatbelt

Phone: 6552 4586


Shire of Beverley Shire of Brookton Shire of Bruce Rock Shire of Chittering Shire of Coolgardie Shire of Corrigin Shire of Cuballing Shire of Cunderdin Shire of Dalwallinu Shire of Dandaragan Shire of Dowerin Shire of Dumbleyung Shire of Dundas Shire of Esperance Shire of Gingin Shire of Goomalling City of Kalgoorlie- Boulder Shire of Kellerberrin

Shire of Kondinin Shire of Koorda Shire of Kulin Shire of Lake Grace Shire of Laverton Shire of Leonora Shire of Menzies Shire of Merredin Shire of Moora Shire of Mount Marshall Shire of Mukinbudin Shire of Narembeen Shire of Narrogin Town of Narrogin Shire of Ngaayatjarraku Shire of Northam Shire of Nungarin Shire of Pingelly

Shire of Quairading Shire of Ravensthorpe Shire of Tammin Shire of Toodyay Shire of Trayning Shire of Victoria Plains Shire of Wagin Shire of Wandering Shire of West Arthur Shire of Westonia Shire of Wickepin Shire of Williams Shire of Wonga-Ballidu Shire of Wyalkatchem Shire of Yilgarn Shire of York

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DoL Mid West- Gascoyne

Phone: 6552 4663

Phone: 6552 4663

Shire of Carnamah Shire of Carnarvon Shire of Chapman Valley Shire of Christmas Island Shire of Cocos Island Shire of Coorow Shire of Cue Shire of Exmouth City of Greater Geraldton

Shire of Irwin Shire of Meekatharra Shire of Mingenew Shire of Morawa Shire of Mount Magnet Shire of Murchison Shire of Northampton hire of Perenjori Shire of Sandstone

Shire of Perenjori Shire of Sandstone Shire of Shark Bay Shire of Three Springs Shire of Upper Gascoyne Shire of Wiluna Shire of Yalgoo

DoL South West– Great Southern

Phone: 6552 4619 / 6552 4648


City of Albany Shire of Augusta-Margaret River Shire of Boyup Brook Shire of BridgetownGreenbushes Shire of Broome-Hill Tambellup City of Bunbury Shire of Busselton

Shire of Capel Shire of Collie Shire of Cranbrook Shire of Dardanup Shire of Denmark Shire of Donnybrook-Balingup Shire of Gnowangerup Shire of Harvey Shire of Jerramungup

Shire of Katanning Shire of Kent Shire of Kojonup Shire of Manjimup Shire of Nannup Shire of Plantagenet Shire of Woodanilling

DoL Kimberley

Phone: 6552 4615


Shire of Broome Shire of Derby- West Kimberley

DoL Pilbara Shire of Ashburton Shire of East Pilbara

DoL Pastoral Lands

Shire of Halls Creek Shire of Wyndham- East Kimberley

Phone: 6552 4561


Town of Port Hedland Shire of Roebourne

Phone: 6552 4574


Further information on Crown land can be found at the Department of Lands website. A copy of the Crown Land Administration and Registration Practice Manual and other publications are also available from this website.

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12.1.18 Easements and Covenants Over Crown Land For information on easements and covenants over Crown land and documents affecting easements and covenants over Crown land see the following references to other paragraphs in this manual: •

Easements over Crown land see paragraph 7.1.10

•

Variation of easements over Crown land see paragraph 7.1.11

•

Cancellation of easement over Crown land see paragraph 7.2.9

•

Creation of covenants under the LAA see paragraph 7.3.6

•

Discharge and modification of covenants under the LAA see paragraph 7.5.7.

12.1.19 Transfers for Purchase of Crown Land For information on the transfer of Crown land to fee simple land_ see paragraph 2.5.3.

12.1.20 Transfers for Surrender of Freehold Land to Crown Land For information on the transfer and surrender of fee simple land to State of Western Australia- see paragraph 2.5.1.

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12.2

Crown Reserves

12.2.1

Introduction

A reserve is Crown land that has been set aside for a particular purpose in the public interest. It is a form of tenure of Crown land and is not an interest in land. Part 4 of the LAA provides the legislative basis for the creation, management, amendment and cancellation of reserves of Crown land. Before 30 March 1998, reserves were created under Part III of the Land Act 1933 or under the Land Act 1893 and were created by proclamation in the Government Gazette. Any land reserved under s.29 of the Land Act 1933 and remaining so reserved immediately before 30 March 1998, was transitioned into the LAA and taken to be reserves created under s.41 of the LAA (Clause 14(2) Schedule 2 LAA). New reserves are now created by Ministerial Order under the LAA or by other legislative powers set out in an Act eg. reserves may be created under the Conservation and Land Act 1984. There are 3 main types of reserves that can be created over Crown land under the LAA by the Minister for Lands: 1.

Reserves

2.

Class A reserves

3.

Mall reserves.

12.2.2

Management Orders

A reserve is usually placed under the care, control and management of a State government department, Local Government or incorporated community group by way of a Management Order registered against the relevant parcels of Crown land within a reserve and endorsed on the Crown land titles. A Management Order is a statutory right to manage and control Crown land in accordance with the Management Order granted under the LAA. They place reserves in trust with management bodies on behalf of the public and do not constitute an interest in the land. Management Orders can contain conditions on the use and development of the reserve and may grant the management body powers to deal with the land including lease or licence powers. A management body cannot grant easements or covenants over Crown land and cannot be a grantee of an easement that benefits the land (dominant tenement) the subject of the management order. A management body must be a legal entity, Minister responsible for an Act or the Marine Parks and Reserves Authority. To amend the name of a management body, the Department of Lands lodges a revocation and new management order. A Management Order must be over the whole of a reserve and not be limited to part of the land in a reserve. A Management Order that includes a time limit must have a statement that the Management Order will be revoked by document. The term is not shown on the Crown land title or on the reserve register and remains on the Crown land title and reserve register until revoked. A reserve is not always placed under the care, control and management of a management body. Such reserves are known as unmanaged reserves and remain under the administration of the Minister for Lands.

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12.2.3

Vesting of Crown Reserves or Crown Land

There are a number of other Acts in Western Australia that empower a reserve or Crown land to be vested in an agency for the purposes of an Act. Once a reserve or Crown land has been vested under other written law, the power to then undertake transactions in respect of that reserve or Crown land will depend upon the powers contained in the respective legislation to the vesting authority and whether any other powers under the LAA can be exercised in relation to that land. Where a vesting created under another Act is required to be recorded on a Crown land title, the responsible agency is to inform Landgate in writing of the legal identity and address of the vesting body, the section number and Act that creates the vesting and a copy of the page in the government gazette where gazettal was part of the requirement of the vesting. Landgate will then create and register a Sundry document to record the vesting on the Crown land title. The same procedure can be utilised where a registered vesting is required to be removed from a Crown land title. Reserves or Crown land that are vested under other written law are usually managed in accordance with the powers and functions of the statutory authority in whom the reserve or Crown land is vested under that written law. However, as the land is Crown land as defined in the LAA, the Minister for Lands does have certain powers to deal with that land. The Minister for Lands exercises those powers so they do not inhibit or conflict with the powers of the particular Minister or statutory authority vested with the control and administration of the reserve or Crown land by that other written law. Any powers exercised by the Minister for Lands under the LAA (eg. creation of an easement) in such instances should only be done with the consent and knowledge of the vestee. Examples of other Acts that may generate the vesting of Crown land include the Conservation and Land Act 1984, the Marine and Harbours Act 1981, the Port Authorities Act 1999, the Aboriginal Affairs Planning Authority Act 1972.

12.2.4

Revocation of Management Orders

Management orders may be revoked by agreement with the management body, where the reserve has not been appropriately managed or where it is in the public interest to revoke the management order. Where the Minister considers it is in the public interest to revoke the management order, all existing interests or caveats created under the management order will continue to exist (s.50(4)(b) of the LAA) and the Minister becomes the Primary Interest Holder of those interests or caveats. For example, where a lease was granted by a management body and continues to exist, the State of Western Australia becomes the lessor. Where an agreement has been made with the management body for a revocation of the management order or where the reserve has not been appropriately managed and the management order is to be revoked, an interest or caveat created under the management order, will not continue to subsist unless the Revocation Order made by the Minister for Lands expressly provides for the continuation of that interest or caveat in a Revocation Order (s.50(4)(a) of the LAA). Clear confirmation from the Department of Lands should be provided to Landgate where it is required that existing interests or caveats under a management order are to be removed from a Crown land title on revocation of a management order. Department of Lands will usually lodge a revocation and new management order where a reserve is being affected by an increase in area, changing the purpose of a reserve, change of name of the management body or any other change where the existing management order was originally created under the Land Act 1933.

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12.2.5

Change of Purpose of Reserve

The Minister for Lands has power under s.51 of the LAA to change the purpose of a reserve by Ministerial Order lodged and registered with the Registrar of Titles under the TLA. Before a reserve purpose is changed, any management order over the reserve must be revoked before the Change of Reserve Purpose order document is registered. Management Orders recite the management purpose within them and therefore where the purpose of a reserve is changed, a revocation and new management order is required. Where a Class A reserve purpose is being changed, the Department of Lands is responsible for tabling the proposal in parliament and advertising in a newspaper circulating throughout the State.

12.2.6

Amendment of Reserve

Reserves may be amended by Ministerial Order under s.51 of the LAA and the amendment is effected by the lodgement and registration of an Amendment of Reserve document. The reserve amendment may entail a lot being included or excluded or require a subdivision of lots already within the reserve. Where a reserve with management order is being amended, the Department of Lands may or may not lodge simultaneously a revocation and new management order, depending on the extent of the amendment. Where the area of a reserve is being increased, the Department of Lands will usually lodge a revocation and new management order. Where a Class A reserve or a reserve for the purpose of conservation park or national park is being amended, the Department of Lands must follow the protocols set out in the LAA. This may include tabling the proposal in parliament and/or advertising in a newspaper circulating throughout the State.

12.2.7

Cancellation of Reserve

The Minister for Lands has power under s.51 of the LAA to cancel a reserve by Ministerial Order lodged and registered with the Registrar of Titles under the TLA. Before a reserve is cancelled, any management order over the reserve must be revoked before the Reserve Cancellation order document is registered. Where a Class A reserve is being cancelled, the Department of Lands is responsible for tabling the proposal in parliament and advertising in a newspaper circulating throughout the State.

12.2.8

Class A Reserves

Class A reserves afford the greatest degree of protection for reserves of Crown land created under the LAA. The A classification is used solely to protect areas of high conservation or high community value. Where a Class A reserve is to be amended, cancelled, have the purpose or classification changed, or an easement is to be granted over it, the Department of Lands must follow the protocols set out in the LAA. This may include tabling the proposal in parliament and/or advertising in a newspaper circulating throughout the State.

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12.2.9

Class B Reserves

Class B reserves were created under the Land Act 1933. Those class B reserves remaining under the Land Act 1933 continue and remain so classified as if the Act had not been repealed. Class B reserves cannot be created under the LAA. Class B reserves can only be cancelled by the Governor by proclamation in accordance with s.31(2) of the Land Act 1933 by order made under the LAA (see clause 14(6)(a) of schedule 2 of the LAA). The Minister for Lands may continue to deal with Class B reserves created under the Land Act 1933 provided that, should the reservation be required to be cancelled, the Minister must make an order under the LAA and also present a special report to both Houses of Parliament setting out the reasons for the cancellation and the purpose to which the land is intended to be used.

12.2.10 Mall Reserves The LAA provides for a statutory form of reserve known as a Mall reserve under s.59 of the LAA. The Minister for Lands may create this form of statutory tenure by Ministerial Order at the request of a Local Government within its district. Mall reserves will most commonly be created over existing roads. Any road within a land parcel will be automatically closed upon creation of the mall reserve. Once created as a mall reserve, any land within a mall is treated as if it were a road for the purpose of access, installing, maintaining or removing services. Registration of a Ministerial Order to cancel a mall reserve automatically dedicates the land as a road, cancels any management order and repeals any by-laws made in respect to the mall reserve. Any land that was not already a pre-existing road before the creation of a mall reserve, will be dedicated as a road upon the cancellation of a mall reserve. Any encumbrances on the land must be removed prior to any cancellation.

12.3

Amalgamations

12.3.1

Conveyance and Amalgamation Order

Where the Minister considers that retention of Crown land as a separate lot is not considered suitable because of its geographic location, potential use, size, shape or any other land use planning reason, the Minister may by the lodgement of a Conveyance and Amalgamation Order provide that the lot is sold and amalgamated into an adjoining freehold lot. This procedure is common where a road or private road that abuts a freehold lot is closed. Crown land amalgamations are processed under s.87 of the LAA, which provides that upon amalgamation of the Crown land with the adjoining freehold land, encumbrances on the whole of the adjoining freehold land extend over the land that has been amalgamated. A new compiled deposited plan that creates a new Lot for the amalgamated land and the adjoining land is required so that a new freehold title can be created for the new compiled lot. Any encumbrances on the Crown land being amalgamated (eg. easement) are brought forward onto the new freehold title and placed after any encumbrances that are already existing on the freehold title for the adjoining land. Consent of any existing mortgagees on the existing freehold title should be obtained for any encumbrances being brought forward onto the new compiled freehold title or it may be possible that those encumbrances can be wiped on any power of sale exercised by a mortgagee. Where Crown land is amalgamated into land within a strata plan, the amalgamated land becomes common property. In support of the lodgement of the Conveyance and Amalgamation Order a Form 13 as set out in the STGR is required. If an easement is being brought forward onto the strata plan as part of the amalgamation a Form 14 is also required.

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Conveyance and Amalgamation Orders are registered without the production of any duplicate freehold title. Where the title is a freehold certificate of title that has an issued duplicate title, a note is added in the statements section of the title to indicate that the new title has issued after amalgamation of Crown land without the production of the existing duplicate title. The existing duplicate title remains the valid duplicate title for the land and the note is removed and the duplicate title replaced when it is next presented to Landgate.

12.3.2

Amalgamation of Pastoral Lease Order

The Pastoral Lands Board encourages the amalgamation of adjoining pastoral leases if one or both are considered unviable as it prefers that non-viable leases are not perpetuated. If two or more pastoral leases are held by the same lessees in the same tenancies and the leases have the same conditions other than the term of the lease, the Minister may by the lodgement of an Amalgamation of Pastoral Lease Order provide that the leases be amalgamated. The term of the remaining lease must not be longer than the term of the lease being amalgamated into it. Pastoral Lease amalgamations are processed under s.142 of the LAA and allow for a whole lot being amalgamated to retain its parcel identifier when added to the remaining lease. Mortgages on both lands only expand over the whole of the lease if the mortgagees have agreed and the order provides for their expansion. Where the order does not provide for the mortgages to be expanded they are brought forward only as to the lot or land they encumbered prior to the amalgamation. Where a mortgage will remain encumbering only a part of the lease a mortgagee should confirm their awareness that their power of sale has been affected.

12.3.3

Lease of Crown Land and Amalgamation Order

Where the Minister considers that retention of Crown land as a separate lot is not considered suitable because of its geographic location, potential use, size, shape or any other land use planning reason, the Minister may by the lodgement of a Lease of Crown Land and Amalgamation Order provide that the lot be leased and amalgamated into adjoining Crown leased land. This procedure is common where a road that abuts a lease is closed. Lease of Crown land amalgamations are processed under s.87 of the LAA, which provides that upon amalgamation of the Crown land with the adjoining land, the lease and encumbrances on the whole of the adjoining land extend over the land that has been amalgamated. A new compiled deposited plan that creates a new Lot for the amalgamated land and the adjoining land should be available so that a new Crown title can be created for the new compiled lot. Any encumbrances on the Crown land being amalgamated (eg. easement) are brought forward onto the new Crown title and placed after any encumbrances that are already existing on the Crown title for the adjoining land.

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13.

Taking Orders (Resumptions) and Acquisitions

This chapter details the legislative provisions and registration requirements for the resumption and acquisition of land pursuant to statutory provisions.

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13.1

Taking Orders (Resumptions)

13.1.1

General

The power to compulsorily acquire land in this State was contained in the Public Works Act 1902, later known as the Land Acquisition and Public Works Act 1902, and now known as the Public Works Act 1902 again. The provisions dealing with the compulsory acquisition of land and compensation have been incorporated, with minor changes, into Parts 9 and 10 of the LAA. Under the Land Acquisition and Public Works Act 1902, land was set apart, taken or resumed only on gazettal of a proclamation by the Governor through Executive Council. Under the LAA, land or interests in land are now “taken” upon the registration of a Taking Order made by the Minister for Lands and his or her duly authorised delegates (being an acquiring authority), and lodged with the Registrar of Titles for registration under the TLA. Upon registration of the Taking Order, the land or such interests in land specified in the Taking Order are converted into a claim for compensation. Other legislation may also express powers to an authority to acquire land. The LAA requires that where the Minister for Lands or a delegate for the acquiring authority is directly negotiating the acquisition of land for a public work, the landowner must be informed of the procedures for: •

the taking of land and interests in land

•

payment of purchase moneys

•

compensation for land taken

•

rights of appeal and

•

rights relating to the future transactions for interests in land taken by agreement or compulsorily taken.

For acquisitions under Part 9 of the LAA, the conveyance is effected by a Ministerial Order, known as a Taking Order, and must be lodged and registered with the Registrar of Titles under the TLA. Takings by the Minister for Lands are prepared by staff within the Department of Lands. The staff there may act as agent for other Government Departments, Statutory Authorities and Local Governments, arranging both the identification of the land required (usually by survey) and the attention to the legal details of notices, consents and documentation. Taking has effect from the registration of the Taking (Ministerial) Order document at Landgate. All types of land and interests in land, including native title rights and interests, can be taken for a public work. Where native title rights and interests are to be taken the requirements of the Native Title Act 1993 must also be complied with. Where the Taking Order refers to the Land to be taken, all land and interests affecting that land will be taken and all rights and interests affecting that land will be converted into a claim for compensation. Where the Taking Order only refers to a particular interest in the land, only that interest is taken and converted into a claim for compensation.

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Exceptions to the general rule include land or interests in land that are subject to: •

a Registrar’s caveat (section 188(7) of the TLA) or a Minister’s caveat (section 21 of the LAA). Caveats of that nature must be withdrawn before a Taking Order can be registered

•

the DBNGP or Rail Freight Corridors. The corridor interest cannot be removed by a Taking Order. (see paragraph 13.1.7)

•

a Crown reserve. Land must be excluded from a Crown reserve prior to a Taking Order and

•

where the land is encumbered by a statutory memorial or notification which is not considered to be a right or interest that can be taken. The acquiring authority should consider the means for removal of the memorial or notification before lodging the Taking Order or whether the memorial or notification can or should be preserved in the Taking Order.

13.1.2

Crown Land

Where an acquiring authority requires an interest in Crown land or a reserve or management order to be granted, the normal processes under the LAA should be used and administered by the Department of Lands. The LAA provides, in section 178(5), that any proposal by an acquiring authority to take Crown land for the purpose of granting a fee simple interest or granting any interest in that land requires the prior approval of the Minister for Lands, unless the statutory body effecting the taking has a specific delegation or an express statutory power which over-rides sections 178(5) and 18. Approval will not be given pursuant to section 18 of the LAA to a Taking Order purporting to convey a fee simple interest in Crown land to the acquiring authority. Where Crown land is part of the Swan River Trust, is a Class A reserve, a State Forest, national park or has a conservation purpose, or any other reserve purpose or classification, that vesting, purpose or classification must be removed and the tenure of the land brought back to unallocated Crown land status before any portion of the land can be taken.

13.1.3

Freehold Land under the TLA

Taking Orders over freehold land usually request that the land once taken is to be held by the State of Western Australia as Crown land. An acquiring authority may also request that an immediate disposition of a fee simple in possession be granted to the acquiring authority or their nominee upon the freehold land being taken. Where the words “The Land….” or “The estate in fee simple in the land and every registered and unregistered interest therein.” are shown in the Interest Taken panel of a Taking Order, the Registrar will interpret that it is the intention that the land is taken free of all encumbrances. If the words “Fee Simple” are shown in the Interest Taken panel of that form, the Registrar will interpret that it is the intention that only the fee simple interest is taken and the land will remain encumbered by any current encumbrances at the time of the taking.

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13.1.4

Freehold Land under the Registration of Deeds Act 1856

Where land is held in fee simple under the Registration of Deeds Act 1856, the land may be taken provided a Memorial of the Taking Order (in the form required under the Registration of Deeds Act 1856) together with the Taking Order is lodged with the Registrar of Titles. The Taking Order has the effect of bringing the taken land under the operation of the TLA.

13.1.5

Freehold Land under the Strata Titles Act 1985

Where the land comprises a strata lot under the Strata Titles Act 1985 (STA), the processes for a taking will depend on whether or not the land is land within a strata lot or, is common property. When Taking land from a strata plan a new deposited plan is required showing a lot for the area being taken and a new lot for the balance of the strata plan. If the land taken is only common property, Landgate will amend the strata plan to refer to the new balance lot. If the land taken is part of a strata lot, a new sheet of the strata plan that shows the lots and common property is also required. The new sheet must use the existing strata lot numbers. Where the land being taken comprises part of the common property, the land description in the Taking Order should refer to the strata plan number in the Volume/Folio panel (eg. SP12345). Where the land being taken comprises part of a strata lot, the land description in the Taking Order should refer to the strata plan number and the certificate of title affecting that strata lot in the Volume/Folio panel.

13.1.6

Freehold Land Held by the Commonwealth

Where land is held in fee simple by the Commonwealth of Australia, a Taking Order will not be accepted for registration as it is unlikely that the compulsory acquisition powers under the LAA apply to the Commonwealth Government (Commonwealth legislation prevails over State legislation). Where land or interests in land are required from the Commonwealth of Australia, they should be acquired by agreement and a transfer document lodged for registration. This may also apply in acquiring land or interests in land held by some of the Commonwealth statutory bodies. In this respect legal advice should be sought prior to proceeding with an action.

13.1.7

Land Within the DBNGP Corridor or Rail Freight Corridor

Where land or interests in land are required and are contained within the DBNGP Corridor and affected by the Dampier to Bunbury Pipeline Act 1997, they cannot be taken under Parts 9 and 10 of the LAA unless all the DBNGP rights and interests are preserved in the Taking Order. Where removal of the DBGNP rights and interests may be required appropriate documentation from the DBGNP Land Access Minister will be required. Based on the same principles as land contained within the DBNGP Corridor, land or interests in land that are required and are contained within the rail corridor defined in the Rail Freight System Act 2000 as corridor land cannot be taken under Parts 9 and 10 of the LAA unless all the Rail Corridor rights and interests are preserved in the Taking Order. Where removal of the Rail Corridor rights and interests may be required appropriate documentation from the Rail Corridor Land Access Minister will be required.

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13.1.8

Taking by Agreement

Land and interests in land may be acquired for a public work by agreement or without agreement. Section 168 of the LAA empowers an acquiring authority to enter into an agreement to purchase interests in land with the owner of that interest, without necessarily preparing, lodging and serving a Notice of Intention to Take in accordance with the LAA. To be able to acquire land by agreement, the written consent must be obtained from the registered proprietor, occupier, all registered interests and encumbrance holders and the holder of any native title rights and interests in the land.

13.1.9

Taking Without Agreement

Land and interests in land may be taken compulsorily, that is, without agreement, for a public work. Compulsory acquisition should only be used as a last resort after best efforts to acquire by negotiated agreement have been exhausted. Where land or interests in land are proposed to be taken without agreement, a Notice of Intention to Take (NOITT) and a Taking Order must be registered with the Registrar of Titles and notices served on the relevant persons set out in the LAA. There are a number of exceptions when a NOITT is not required and the land is being taken compulsorily: •

where the written law clearly specifies otherwise. For example, under section 13 of the TP&D Act, a local government need not issue a NOITT where it wishes to purchase any land for the purpose of a town planning scheme, or, wishes to take land comprised in such a scheme with the consent of the Governor

•

where land or interests in land is proposed to be acquired for the construction of a railway authorised under a special Act (section 183 of the LAA) and

•

where a notice of entry under section 186 of the LAA has occurred. In this case, a NOITT is not required if the Minister is satisfied that it is necessary for the land to be used for a proposed public work and because of the urgency of the work, or the difficulty in tracing the proprietors of the land, it is unreasonable or impracticable to delay entry onto the land until the land has been taken.

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13.1.10 Authorisation Order In addition to general public works, land and interests in land may also be taken where a written law enables the grant of any estate, interest, right, power or privilege in, over or in relation to the land. A taking of land or interests in land authorised under section 165 of the LAA is deemed to be a taking for a public work and the purposes of the grant deemed the purposes of the public work. The Minister for Lands under section 165 of the LAA may authorise a taking for the purposes of conferring that land or interest to another person where the Minister is of the opinion that the grant of that land or interest confers an economic or social benefit on the State, relevant region or locality. That authorisation is a form of Ministerial Order known as an Authorisation Order and is effective upon registration. An Authorisation Order should be lodged jointly with a NOITT and any instruments lodged after it must show it as an encumbrance. An Authorisation Order can be revoked, amended or replaced with another Order. Whereas a NOITT may expire and be removed from the register, an Authorisation Order remains on the register until revoked or the relevant taking order is registered. A taking order over land to which an Authorisation Order exists should include a statement that upon registration of the taking order the authorised action is complete and that the Authorisation Order therefore no longer encumbers the land. The Authorisation Order is automatically removed on registration of the taking order.

13.1.11 Notice of Intention to Resume (Prior to the Introduction of the LAA) Section 17 of the Public Works Act 1902, provided that before the publication of a resumption in the Government Gazette the Minister of Works could publish in the Gazette a notice of intention to resume. The notice included where a person could inspect the plan, the value of the work and a description of the land required. A copy of the notice, once it had been gazetted, was sent to the registered proprietor at the address shown on the title and at any later address known to Landgate. With the introduction of the LAA resumptions are no longer carried out by the Minister for Works under the Public Works Act 1902. The relevant sections of the Public Works Act 1902 have been repealed and incorporated into Part 9 of the LAA. Under the LAA, a Notice of Intention to Resume is now called a Notice of Intention to Take and they are initiated by the Minister for Lands or the relevant delegated acquiring authority.

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13.1.12 Notice of Intention to Take A Notice of Intention to Take (NOITT) is a notice made by an acquiring authority that demonstrates its desire to acquire a parcel of land or an interest in land compulsorily. The purpose of a NOITT is to inform the landowner, interest holders or any other person, that the acquiring authority intends to acquire his or her land or interest in that land. It also provides those persons with an opportunity to formally object to the taking of the land.

13.1.12.1 Contents of a NOITT A notice of intention to take must include all of the following: •

A description of the land.

•

The purpose of the public work.

•

The nature of the interests to be taken.

•

A statement setting out the particulars of the proposed disposition or grant if it is proposed to make a disposition or grant to any person out of the interests being taken.

•

A place where people may inspect a plan of the land.

•

The reasons why the land is suitable and needed for the public work.

•

The date from which the land is likely to be required.

•

The name of a contact officer in the acquiring authority.

•

An address for lodging objections. Refer to paragraph 1.7.5 for Landgate’s address requirements.

•

A statement as to the effect of section 172 of the LAA, i.e. the requirement that the consent of the Minister must be obtained for any new transactions with the land.

•

A statement as to the effect of section 173 of the LAA, i.e. the requirement that no improvements can be made to the land with the consent of the Minister.

•

Where native title rights and interests are also being taken the notice must comply with the Native Titles Act and refer to relevant affected sections of that Act.

13.1.12.2 Procedures of a NOITT If land or an interest in land is taken without the consent of the owner and interest holders, a NOITT must be registered with the Registrar at Landgate unless legally exempted from this requirement (see paragraph 13.1.9). Where any interest in land is required for a public work and relevant consents have been obtained, a NOITT may or may not be registered. After registration of the NOITT, the relevant Minister must: •

cause the NOITT to be published in a daily newspaper circulating throughout the State

•

send a copy of the NOITT to the registered proprietor, and where applicable, a lessee of a Crown state lease, a management body of a reserve, the occupier of the land or interest in land, the subject of the NOITT or any holder of native title, mining or petroleum interests, by certified mail or personally. They should also be advised of procedures and their rights if not already done so

•

send a copy to the Director General of Mines and

•

in some circumstances involving Native Title the NOITT must also be publicised through radio stations and newspapers, as required by the LAA and the Native Title (Notices) Determination 1998.

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13.1.12.3 Objections to a NOITT The registered proprietor or lessee of a Crown state lease of land affected by a NOITT, occupier or holder of any mining or petroleum rights affected by a NOITT, or any management body, whose management order will be affected by a NOITT, may object in writing to the Minister at an address specified in the NOITT. Such objections should not relate to compensation. An objection must be lodged within 60 days after the registration of the NOITT or such further time as the Minister may allow. The objection must identify the land and specify the nature of the interest of the objector in the land, the address of the objector and the grounds of objection. The Minister will consider all objections and determine whether the NOITT will remain unchanged, be cancelled, amended, or substituted. If the NOITT is amended or substituted because of the objection, the amendment or substitution is to be treated as a new notice for the purpose of allowing objections, unless the changes do not affect anyone apart from those who have already objected and each objector has to agree to the change in writing.

13.1.12.4 Extension, Amendment, Cancellation or Removal of a NOITT The initial NOITT is current for a period of 12 months and commences on registration of the NOITT. The period of currency of a NOITT can be increased by any number of years beyond the initial 12 month Any increase in the period of currency must be lodged before the expiry of the NOITT and must be served on the same persons as had been served with the NOITT. There is no power to extend the NOITT if it has already expired. A NOITT may, at any time during its currency, be amended or varied or substituted by a further notice which must be served, registered and published similarly to the original notice. An amendment of NOITT document can only be lodged after a NOITT has been registered and cannot be lodged to correct a NOITT where the registration of that document has not been completed. The Amendment document is to set out the land description and the area of those parcels of land proposed to be amended and clearly state the variation. A description of the existing NOITT by document number must be stated somewhere within the amendment document. Generally, the Notice should also include the purpose, reason, nature of interests to be taken, date when the land is likely to be taken, place where the plan can be inspected, contact officer and the address where objections can be sent. Where a new notice is prepared in substitution of an existing NOITT, a description of the existing NOITT by document number must be stated somewhere within the new notice. The existing NOITT will be removed from all the affected registers on registration of the substituted notice. The Minister for Lands or his delegates may cancel a NOITT before it expires. The NOITT will be removed from all the affected registers on registration of a cancellation. A NOITT lodged as a pre-requisite to a taking order is automatically removed from the register on registration of the taking order. An expired NOITT is removed from the register by lodgement of a sundry document by Landgate.

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13.1.13 Consent for Registration of an Instrument Encumbered by a NOITT A person cannot enter into a transaction affecting land the subject of a NOITT, without the consent in writing of the Minister or delegated acquiring authority. The exceptions are listed below: •

Where the State or Commonwealth, or any authority of the State or Commonwealth, or a person acting on behalf of the State, the Commonwealth or such authority, other than the Public Trustee, is a party.

•

For a transfer of an interest in land acquired by sale under a Property (Seizure and Sale) Order.

•

Discharge of mortgage or charge.

•

Partition between co-proprietors.

•

Deed of arrangement between beneficiaries under a will or settlement.

•

Transmission by a personal representative or survivorship.

•

Documents vesting land in a trustee of a deceased person, trustee in bankruptcy or newly appointed trustee under an instrument.

•

Documents vesting land held by a company in a liquidator, administrator, receiver, receivermanager or manager.

•

Transfers under terms of a will or intestacy, or by way of gift.

•

Deed of assignment or deed of arrangement under the Bankruptcy Act 1966 of the Commonwealth.

Whether or not consent is required, the notice of intention to take must be noted as an encumbrance with its identifying number on any transaction dealing with land affected by a notice.

13.1.14 Notice of Entry The LAA provides circumstances whereby an acquiring authority, after the issue of a formal notice of entry, can enter on the land prior to completing taking procedures. Entry may be made: •

for a feasibility study of the proposed work

•

for railway construction where the railway construction is subject to a special Act

•

after registration of a NOITT to inspect the land or make an assessment of compensation payable or perform surveying requirements

•

to occupy and use the land temporarily to construct or repair a public work or

•

where the land is required on an urgent basis.

The notice of entry must contain sufficient information and be served on the principal proprietor and occupier, and holders of any native title rights and interests. No endorsement is made on the title to record the fact that the notice has been given, however the titles are updated by the taking order when it is registered at Landgate.

13.1.15 Resumptions (Prior to the Introduction of the LAA) The Crown, a Crown Instrumentality or a Local Government had the right under the Public Works Act 1902 to take or resume land for the purpose of public works. Notice of such resumption was published in the Government Gazette and took effect immediately on publication. The resumption, whether total or partial, was noted in the Register by the creation of a Sundry document as soon as it was practicable. The original title was endorsed showing the sundry document number, the date of resumption and the identity of the resuming authority.

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The duplicate titles were not called in or amended but if for some reason a totally resumed title comes into Landgate’s possession it is cancelled. When part of the land in a certificate of title was resumed, the sketch on the original title was amended to show the new boundaries of the land and the date of the resumption noted. When the duplicates of those titles were next in Landgate they were either updated to mirror the original title or a new title was created for the balance of the land left after the resumption. Any instrument lodged against land subsequent to a partial resumption of that land, must have showed in the land description panel and following the description of the land, the words “less portion resumed”. Under SmartRegister, titles affected by partial resumptions where the land in the partial resumption no longer forms part of the title, are endorsed in the Second Schedule “excludes road shown on plan (insert number)”, or similar wording. For new documents, if the land resumed is not removed from the title and no balance title has been created, dealings on the title will be accepted as long as the Limitations, Interests, Encumbrances and Notifications panel of the document shows the words “less portion resumed”. Where freehold land was resumed, the resuming authority could on an application Form A6, request a new certificate of title for the resumed portion to be created and registered for the land in the name of the resuming authority. Alternatively, the land once resumed could, by notice published in the Government Gazette, be removed from the operation of the TLA and become Crown land administered in accordance with the provisions of the Land Act 1933. A resumption had the effect of: •

vesting the land in the Crown, Crown Instrumentality or Local Authority named in the notice

•

freeing the land from any encumbrances, rights or easements burdening the land. Any easements or rights which were to the benefit of the land were preserved, eg. where the land resumed was the dominant tenement of an easement and

•

bringing the land under the operation of the Act where the resumed land was registered under the Registration of Deeds Act 1856.

A Local Government conducting an approved Town Planning Scheme under the TP & D was undertaking a “public work” and had power to resume for that purpose under the Public Works Act 1902. A notice of intention to resume was not required in those cases. A resumption could be annulled within 90 days by a notice in the Government Gazette and the notice was effective to restore the Register to its original state. A copy of the notice was filed in a sundry document and the annulment of the resumption was endorsed on the title. With the introduction of the LAA, resumptions are no longer carried out by the Minister for Works under the Public Works Act 1902. The relevant sections of the Public Works Act 1902 have been repealed and incorporated into Part 9 of the LAA. Under the LAA, Resumptions are now called Taking Orders and they are carried out by the Minister for Lands or the relevant delegated authority.

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13.1.16 Taking Order The Crown, any Crown Instrumentality or a local government has the right under Part 9 of the LAA to take land or interest in land held by a person other than the Crown for the purpose of a public work. Such taking occurs by Ministerial Order known as a “Taking Order” and has effect immediately on registration of the Taking Order against the certificate of title or Crown title. Interests in the Crown cannot be taken under the LAA. They must be acquired, cancelled, surrendered, forfeited or otherwise removed under the other Parts of the LAA. For example, where the Crown holds a fee simple interest in land that is required, the fee simple interest must be revested into the Crown estate and a new interest then granted. Only interests in land not owned by the Crown can be taken.

13.1.16.1 Content of a Taking Order A taking order must: •

Include a description of the land affected by the Order.

•

Either, identify any registered or any unregistered interest to be taken, or specify that the land is taken subject to any interests stated that are to be preserved.

•

Specify that any interest taken is to be held as Crown land in the name of the State of Western Australia. This is subject to any specified interest (including the fee simple interest, lease of Crown land or easement) being disposed of or granted to the acquiring authority or any other specified person.

•

Designate that the land or interests in the land is required for the purpose of the public work.

•

Specify any covenants that will apply to the land or interests in the land for such public work if the land or interest taken is to be held by a person other than the Crown. and

•

Bring the land under the operation of the TLA where the land is registered under another act. For example, if the land is under the Registration of Deeds Act 1856, a clear statement is needed in the Taking Order to enable that land to be immediately brought under the TLA on registration of the Taking Order. In addition, a Memorial of the Taking Order (in accordance with the Registration of Deeds Act 1856) should be lodged with the Taking Order.

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13.1.16.2 Procedures of a Taking Order After the period allowed to object to the subject of a NOITT has expired and any lodged objections have been determined or resolved, the Minister or acquiring authority may make a Taking Order consistent with the Notice of Intention to Take. An acquiring authority may also lodge a Taking Order without a NOITT where it has all necessary agreements and consents of affected persons. After registration of the Taking Order, the relevant Minister must: •

cause an extract from the Taking Order to be published in a daily newspaper circulating throughout the State

•

send a copy together with forms for the claiming of compensation to the registered proprietor, all persons with a registered interest (which includes all encumbrances), occupier and any holder of native title, mining or petroleum interests, by certified mail or personally. They should also be advised of the procedures for compensation for interests taken, if they have not already been given that advice and

•

send a copy of the Taking Order to the Director General of Mines.

A Taking Order has the effect on registration according to the terms of the Taking Order and may: •

vest the land in the Crown, Crown instrumentality, local government or acquiring authority named in the Order

•

except as may otherwise be specified in the Taking Order, free the land from any encumbrances, rights or easements that burden the land. Any easements or rights that benefit the land are preserved, eg. where the land taken is the dominant tenement of an easement

•

bring the land under the operation of the TLA where the taken land is registered under the Registration of Deeds Act 1856 and

•

where specifically mentioned in the Taking Order, remove designations and conditions of the land including the use of the land eg. where the land is dedicated as a road.

Where a Taking Order provides that “the Land” or “every registered and unregistered interest” is taken, every registered and unregistered interest in the land (including minerals and native title rights and interests) not preserved in the Taking Order are extinguished and each person who had an interest (whether registered or unregistered) has that holding converted into a claim for compensation. If the Taking Order does not provide that “the Land” is taken but provides specifically for the taking of a registered or unregistered interests, then only those interests declared in the Taking Order are extinguished and each person who held such interest has that specific holding converted into a claim for compensation. Every unregistered interest which is inconsistent with the effect and purpose of the Taking Order is also extinguished and converted into a claim for compensation to the extent of the inconsistency. A Taking Order that is subject to a NOITT must take the land within a certificate of title or Crown title as is set out in the NOITT i.e. a Taking Order cannot be for part of the land in a title and then another Taking Order for another part of the same title, where both Taking Orders are utilising the same NOITT. Where a NOITT comprises multiple titles, all the land in a title as set out in a NOITT may be taken in separate Taking Orders. In most instances where a register is affected by a partial taking of a lot, a new title will issue for the land taken and a new title issued for the balance of the land. A taking order endorsement of the designation is added to the new title for the land taken and remains on the title until removed by further documentation (see paragraph 13.1.19).

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Where the balance title is a freehold certificate of title that has an issued duplicate title, a note is added in the statements section of the title to indicate that the new title has issued after a portion of the land was taken without the production of the existing duplicate title. The existing duplicate title remains the valid duplicate title for the land and the note is removed and the duplicate title replaced when it is next presented to Landgate. Where the whole of the land in a freehold title is taken back to the Crown estate, the freehold title is converted to a Crown title with a new Volume and Folio number. The same lot and plan number for the land is usually retained in the freehold to Crown conversion. A taking order endorsement of the designation is added to the Crown title and remains on the title until removed by further documentation. Where the taking order is for the whole of a freehold title and confers a fee simple in possession to the acquiring authority or their nominee, a new edition of the duplicate title is issued by the taking order. The previous edition of the duplicate is not requested, however, if they come into Landgate’s possession they will be cancelled.

13.1.17 Variance in Area with Taking Order and NOITT A NOITT sets out the intention of an acquiring authority to acquire certain land or interests in land for a public work. On occasions the acquiring authority may not be in a position at the NOITT stage to identify the exact area of the land required. For some takings a graphic for NOITT purposes only is created and a new deposited plan lodged prior to the taking order that accurately defines the taking area. A Taking Order will be considered consistent with a NOITT where the shape and location of the land to be taken in the NOITT is similar to the land to be taken in the Taking Order and the area is within a ± 10% variation. The Registrar will not register a Taking Order where the area shown in the Taking Order is less than 90% or greater than 110% of the area shown in the NOITT. In these instances, the Taking Order must be withdrawn from registration and the NOITT amended in accordance with the LAA. The variations may also be acceptable where an agreement is reached between all the interest holders and the acquiring authority for the taking of land as to the variations between the NOITT and Taking Order. In these instances, the acquiring authority must confirm in writing that they hold the necessary consents and attach the confirmation to the taking order.

13.1.18 Amendment or Cancellation of a Taking Order A Taking Order may be amended or cancelled at any time within 90 days after its registration. An amendment or cancellation of a taking order document can only be lodged after a taking order has been registered and cannot be lodged to correct a taking order where the registration of that document has not been completed. An Amendment of Taking Order document is to set out the land description and the area of those parcels of land proposed to be amended. The amendment must clearly state the variation and a description of the existing taking order by document number must be stated somewhere within the amendment document. Generally, the amendment should also include the purpose, reason and a contact officer. A Cancellation of Taking Order document is to set out all the land descriptions and the areas of those parcels of land that are comprised in the taking order to be cancelled. The document must clearly state that the taking order is to be cancelled and a description of the existing taking order by document number must be stated somewhere within the cancellation document. A Cancellation of Taking Order cancels all the actions in the taking order. Where the intention is to cancel portion of a taking order then an Amendment of Taking Order should be used.

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After registration of a Taking Order Amendment or Cancellation, the relevant Minister must cause a copy of the Order to be published in a daily newspaper circulating throughout the State and interest holders and the Director General of Mines must be advised. A claim for compensation in these instances must be made to the acquiring authority within 60 days after the date of registration of the amendment or cancellation of taking order, or within such longer period as the Minister may allow.

13.1.19 Taking Order Designation Where land is acquired by taking order for a public work, the title for the land or interest is endorsed with the designated purpose the land or interest was acquired for. The designation is a notification on the register that publicises that the land or interest in land must be used for that purpose only. Instruments that are lodged against land encumbered by a Taking Order designation must show the Taking Order as an encumbrance and the nature of the instrument must be compatible with the designated purpose shown on the title. Leases, however, may be granted for other purposes where the land taken is not presently or exclusively required for the public work. An easement, under certain conditions, over any land taken may be granted as the Minister thinks fit. Where the land or interest in land is proposed to be used for a different purpose, or is no longer required for the public work, the designation must be changed or cancelled. A designation may be changed or cancelled by the lodgement of a Change of Designation document or a Designation Cancellation document lodged by Department of Planning. Where only interests in Crown land were taken or freehold land was taken by agreement, the Minister may change or cancel the designation if satisfied that the land or interest is not required or not exclusively required for the public work. Where freehold land was taken without agreement, the Minister may change or cancel the designation if satisfied that the land or interest is no longer required and either: •

the taking occurred more than 10 years ago

•

the land has been used for any public work

•

the land is not to be used for another public work other than that for which it was taken, or will not be sold

•

the land is a small portion taken at the previous owner’s request

•

the land has been substantially improved since the taking or

•

the land is not a “lot” satisfying the P&D Act or cannot be amalgamated with other land held by the previous owner.

Where none of the above apply the land must first be offered, to the owner of the fee simple immediately prior to the taking, the first option to buy the land. If a designation is cancelled in good faith, and the rights of the former owner have been overlooked, the cancellation and any subsequent transactions are deemed to be valid. Additionally, no person has any right of action or claim against the Crown, the Minister or an acquiring authority in relation to the cancellation and disposal of the land or interest in the land.

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13.1.20 Easements Created by Taking Order A taking order may be made solely to take an interest in land as required for the creation of an easement. A separate easement document is then subsequently lodged which sets out the parties and conditions of the easement. A taking order may also be made to take an interest in land as required for the creation of an easement and create the easement simultaneously within the same document eliminating the need for a separate easement document. Easements that are intended to be created by the taking order process should set out the Easement Conditions in the NOITT. The Easement Conditions should form part of the Nature and Interests Taken section rather than be attached as an annexure. The Disposition of Interests section should then state to whom the easement shall vest in and pursuant to what section of what legislation. The taking order should then repeat the easement conditions.

13.2

Acquisitions

13.2.1

Acquisition by the Commonwealth of Australia

Land may be acquired by the Commonwealth in one of two ways: 1.

By AgreementWhere the land is acquired by agreement, the Commonwealth and the registered proprietor enter into the normal process of sale by way of transfer and the Commonwealth only obtains the land and interest that the vendor has to sell.

2.

By compulsory processWhere the land is acquired by compulsory process a notice is published in the Commonwealth Gazette that the land has been acquired for a public purpose. On publication of the notice all the land to which the notice applies is: (i)

V.ested in the Commonwealth

and (ii)

freed and discharged from all encumbrances of whatever nature.

The acquisition may also be or include an easement for the benefit of the land acquired over land not acquired. In these cases the Second Schedule of the title is endorsed with an easement created by acquisition. The original authority for the Commonwealth to acquire land was set out in the Lands Acquisition Act 1906. The Act has been repealed and replaced twice, in 1955 and 1989. An Act of this State, the Real Property (Commonwealth Titles) Act 1925 complements the Commonwealth Act and permits implementation of its provisions.

13.2.1.1

Notice of Pre-Acquisition Declaration

When a copy of the notice of a pre-acquisition declaration is served on the Registrar a “Sundry” document is created and a memorandum noted on the title for the land affected. Such memorandum is a notice only and instruments over the subject land will be accepted with the notice (Sundry document) noted in the Limitations, Interests, Encumbrances and Notifications panel. A notice of a pre-acquisition declaration may be varied and the notice ceases to be in force if the interest is acquired, the notice is revoked or the notice ceases to have affect because of either sections 25, 44(2) or 46(3) of the LAA.

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13.2.1.2

Acquisition Declaration

All Commonwealth acquisitions by compulsory process are given effect to by an application on a Form B2 addressed to the Registrar together with a copy of the notification in the Commonwealth Gazette. Where the land acquired is not under the TLA, the application has the effect of bringing the land under the operation of the Act. The title acquired by the Commonwealth is said to be a grant of the fee simple without the normal reservations. Where the land acquired is under the TLA, as a result of the application a similar title is created and registered in the name of the Commonwealth (ie: the Commonwealth acquires the whole estate and interest in the land, without the normal reservations contained in the previous owner’s title).

13.2.2

Acquisition Order under the LAA

At the request of a Local Government, the Minister for Lands under section 52 of the LAA and by way of an Acquisition Order, may acquire as Crown land: •

any freehold land designated for a public purpose on a plan or sketch lodged with the Registrar

•

any private road (see paragraph 8.4.4) or

•

any freehold land in a town site which the Minister proposes to abolish.

The Local Government before making a request must comply with the requirements set out in section 52 of the LAA. This includes taking all reasonable steps to give notice of the request to the holder of the freehold land to be acquired and to any adjoining freehold land holder of that land, unless the local government holds those lands. Notice must also be given to all suppliers of public utility services to the land. Registration of an Acquisition Order extinguishes all encumbrances, including any section 167A TLA implied ROW burden rights, affecting the land acquired and revests the land as Crown land. Absolute caveats should be removed. Production of the duplicate title is not required. Compensation is payable to any holder of the freehold being acquired who suffers a loss, excluding any person with an interest in a private road that is acquired.

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14.

The Western Australian Registrar and Commissioner of Titles Joint Practice: Verification of Identity

Executive Summary This Verification of Identity Practice (the Practice) has been issued jointly by the Western Australian Registrar of Titles and Commissioner of Titles. It applies only to documents executed on paper. It sets out the minimum standard of Verification of Identity for registered proprietors and others who sign a range of real property documents that are to be lodged with Landgate. This Practice does not apply to: enduring powers of attorney made under the Guardianship and Administration Act 1990 •

documents lodged under the LAA and

•

real estate agents carrying out real estate functions.

This Practice commenced transitionally on 1 July 2012, with full compliance expected on 2 January 2013. It is intended to reduce and better manage fraud risk with the aim of strengthening the integrity of the Western Australian Torrens land title system for the benefit of all users of that system. It is also intended to reduce the risk of successful claims for compensation against industry participants, and against the State under the TLA. This Practice is based upon the proposed standard of verification of identity being considered for introduction as part of National Electronic Conveyancing. The standard of verification of identity required in this Practice has two base requirements: (a) Identity Document Production: Production of current, original identity documents from the categories in Table 2 or Table 3 as appropriate; and (b) Visual Verification of Identity: A visual “face to face”, comparing the photograph on the current original identity documents with the person being identified.

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The highest category of identity documents specified in Table 2 or Table 3 should be produced first, with category 1 being the highest. For verification of identity within Australia the required identity documents are set out in Table 2. A different standard applies to documents executed outside of Australia. Verification of identity performed outside of Australia must be undertaken by an Australian Consular Officer using the documents set out in Table 3. An Australian Consular Officer must also witness the execution of the document. When verification of identity is conducted within Australia, the conveyancer/lawyer/mortgagee can perform the verification of identity themselves or appoint an agent to do the verification of identity on their behalf. However, the obligation is at all times that of the conveyancer/lawyer/mortgagee. Mere mechanical compliance with this Practice is not sufficient to achieve its objectives. Vigilance must be maintained throughout the entire transaction. If a conveyancer/lawyer/mortgagee has any concerns or doubt about the identity of the individual at any time and for any reason, further enquiries should be made until the conveyancer/lawyer/mortgagee is satisfied that the person is who they claim to be and has the authority to deal with the interest in land. Refer to Frequently Asked Questions (FAQs) for the most common enquiries about the Verification of Identity (VOI) Practice.

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14.1

Overview

14.1.1

Transitional Commencement

This Verification of Identity Practice (this ‘Practice’) has been issued jointly by the Western Australian Registrar of Titles and Commissioner of Titles. It sets out the minimum standard of Verification of Identity for registered proprietors and others who sign a range of real property documents that are to be lodged with Landgate and that are specified in Table 1. This Practice applies only to paper documents. This Practice commenced transitionally on 1 July 2012, with full compliance expected on documents lodged on and after 2 January 2013. During this Transitional period, implementation of this Practice may occur at any time, with the expectation that documents lodged on or after Wednesday 2 January 2013 will comply with this Practice. Documents executed before, and lodged on or after, 2 January 2013 should comply with this Practice. The Registrar and the Commissioner of Titles strongly encourage this Practice to be followed from 1 July 2012.

14.1.2

Purpose

The purpose of this joint Practice is to reduce the risk of land title fraud and other improper land title dealings in Western Australia (“WA”). This reduction in risk strengthens the security, certainty and integrity of the Western Australian Torrens land title system. It also reduces the risk of successful claims for compensation against industry participants and against the State under the Transfer of Land Act 1893 (the “TLA”). It is designed to assist those in the property industry to discharge their duty of care to those holding and acquiring interests in land. A vigilant, responsive and co-operative property industry as a whole is needed to successfully combat fraud. The best opportunity to prevent fraud is before documents affecting WA Land Titles are executed and lodged at Landgate. The Registrar of Titles registers a change in property ownership at the end of the sale process, following financial settlement. Where a mortgage is granted, the Registrar of Titles registers a mortgage against the property after funds have been advanced. This means that the greatest opportunity to prevent title fraud is before payment of the balance of the purchase price is made at settlement and before mortgage funds are advanced.

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14.1.3

Title Fraud

Two well publicised alleged title frauds in 2010 and 2011 in WA have driven the need for more thorough Verification of Identity of persons involved in real property transactions under the TLA. Checking the identity of persons executing documents that are later registered or noted on the WA Land Titles Register, or noted in the Book of powers of attorney kept by the Registrar of Titles, is one critical step in reducing the risk of title fraud resulting from successful identity theft. 

Note: Under section 143 Transfer of Land Act 1893 a Power of Attorney is lodged with the Registrar of Titles and noted in the book kept by the Registrar of Titles. This book of Powers of Attorney is separate to the Titles Register.

In both of the alleged title frauds, it appears that the existing registered proprietors (owners) of the properties were defrauded by the theft of their identity and the forgery of their signatures on documents that were lodged with Landgate. These alleged frauds occurred whilst the registered proprietors were overseas. While it appears that these two alleged frauds were perpetrated from outside of Australia, title fraud resulting from identity theft could be committed by persons residing anywhere in the world, including Australia.

14.1.4

Application of this Practice

This Practice applies to the document types and to the parties specified in the Table 1 below. It applies to documents executed inside and outside of Australia.

Table 1: Documents to which this Practice applies Document Type

Party Required to be Identified in Accordance with this Practice

Responsibility

Transfer of Land

Seller/Transferor

Registrar of Titles

Mortgage

Mortgagor

Registrar of Titles

Request for Duplicate Certificate of Title

Registered Proprietor and Applicant

Commissioner of Titles

Replacement Duplicate Certificate of Title

Registered Proprietor and Applicant


Transmission

Executor/Administrator, Applicant


Survivorship

Survivor, Applicant


Power of Attorney

Donor

Registrar of Titles

For the purposes of this Practice, a document includes but is not limited to, instruments and applications that are executed and lodged with Landgate for registration or noting by the Registrar of Titles or Commissioner of Titles under the TLA. This Practice: •

does not apply to Enduring Powers of Attorney under the Guardianship and Administration Act 1990 and documents under the Land Administration Act 1997.

•

supersedes all previous Customer Information Bulletins (CIB) issued in relation to establishing the identity of transferors before its commencement.

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This practice anticipates that when real property is being sold Verification of Identity of the seller/transferor will usually occur twice in the sale process by: •

firstly, the Real Estate Agent as soon as practicable after a listing has been received but before entering into a contract of sale and

•

secondly, the Settlement Agent or lawyer before financial settlement and before documents are signed.

The Department of Commerce is responsible for regulating real estate agents and settlement agents. On 1 November 2011, the Department introduced express requirements for real estate agents 9 under the Real Estate and Business Agents Act 1978 ) and settlement agents (under the Settlement Agents Act 198) to identify their clients under their respective Codes of Practice. Real estate agents: are required to identify their clients as soon as practicable after a listing has been received but before entering into a contract of sale. This Practice does not apply to real estate agents carrying out real estate functions. Settlement agents: are required to identify their clients “...as soon as practicable after receiving instructions to act for a person in arranging a settlement and before settlement takes place...”. This Practice complements these requirements. This Practice is based upon proposals for Verification of Identity being considered for introduction as part of National Electronic Conveyancing. This Practice does not fetter the discretion of either the Registrar of Titles or the Commissioner of Titles. All documents lodged are subject to the usual examination process at Landgate. The Registrar of Titles and the Commissioner of Titles retain the right to request further information and/or make other enquiries as considered appropriate.

14.1.5

Sufficient Enquiries Must be Made

A conveyancer/lawyer acting for their client or mortgagee lending funds should make all reasonable efforts to verify: •

the identity of each person who claims to be, or to act for, a person disposing of the relevant interest in land and

•

that the identified person has legal authority to give the instructions as to the relevant interest in the land.

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14.1.6

Identity Document Production

The identity documents required under this Practice, and set out in Table 2 or Table 3, are based upon modelling, by Price Waterhouse Coopers using ABS Statistics, undertaken as part of the submission by National E-Conveyancing Development Limited (NECDL) in its submission to the Australian Registrars National Electronic Conveyancing Council (ARNECC). The modelling indicates that: •

65% of the population will be able to produce an Australian Passport and Driver’s Licence

•

95% of the population will be able to produce an Australian Passport or Driver’s Licence plus a birth certificate (issued by the Western Australian Registry of Births, Deaths & Marriages in accordance with the Births, Deaths and Marriages Registration Act 1998 for births registered in Western Australia or jurisdictional equivalent) and a credit card (or equivalent)

•

only 5% of the population will need to produce a Declaration of Identity (refer to 14.4.5.1.2) and these persons are the least likely to be property owners.

14.2

Responsibility for Verification of Identity

A conveyancer/lawyer is responsible for verifying the identity of their client – the person for whom they prepare documents affecting land title which will be lodged at Landgate. The mortgagee is responsible for verifying the identity of the mortgagor. A self represented party is responsible for ensuring his/her own identity has been independently verified by an Identifier.

14.3

Verification of Identity Standard

14.3.1

The Standard

The standard of Verification of Identity required in this Practice has two base requirements: Identity Document Production: The production of current, original identity documents from the categories in Table 2: Verification Conducted Inside Australia or Table 3: Verification Conducted Outside Australia and Visual Verification of Identity: A visual “face to face” assessment of the identity documents and the person to whom they relate, comparing the photograph on the current original identity documents with the person being identified. Copies of identity documents, including certified copies, are not acceptable. The highest and preferred standard of identity documents should be produced in the first instance by the person to be identified. Category 1 is the highest standard (refer to Table 2 and Table 3). This new standard is based upon proposals being considered for introduction nationwide as part of National Electronic Conveyancing. Identifiers should compare signatures affixed to land transaction documents with the signatures appearing on original identity documents. Landgate staff will not determine whether a signature is genuine or not.

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14.3.2

Identity Document Production Standard

Verification Conducted Inside Australia: •

The person who is being identified should produce, to the person who performs the identification, all the current and original identity documents specified in the highest category possible detailed at Table 2 below.

•

The highest category are those documents in category 1, with the lowest standard being category 4.

•

Category 5 is for foreign nationals residing in Australia who cannot meet the requirements of category 1, 2 or 3.

Table 2 – Verification conducted Inside Australia Category Minimum Document Requirements



1

1. Australian Passport plus 2. Australian Drivers Licence or Australian Proof of Age Card with Photo

2

1. Australian Passport plus 2. Birth or Citizenship or Descent Certificate or Resident Visa (with change of name or marriage certificate if necessary) plus 3. Medicare or Centrelink or Department of Veterans Affairs (DVA) Card

3

1. Australian Drivers Licence or Australian Proof of Age Card with Photo plus 2. Birth or Citizenship or Descent Certificate or Resident Visa (with change of name or marriage certificate if necessary) plus 3. Medicare or Centrelink or Department of Veterans Affairs (DVA) Card

4

1. Declaration of Identity plus 2. Birth or Citizenship or Descent Certificate or Resident Visa (with change of name or marriage certificate if necessary) plus 3. Medicare or Centrelink or Department of Veterans Affairs (DVA) Card

5

1. Foreign Passport plus 2. Visa plus 3. Current Rates Notice for the property issued by the local government and drivers licence (if verification conducted in Australia) Note: If the land owner does not have a current Rates Notice, a letter from the relevant local government stating the name of the land owner (s) as recorded on the local government records will suffice.

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Verification Conducted Outside Australia: •

The person who is being identified should produce to the person who performs the identification, all the current and original identity documents specified in the highest category possible detailed at Table 3 below.

•

The highest standard is documents in category 1 and the lowest in category 2.

Table 3 – Verification Conducted Outside Australia Category Minimum Document Requirements 1

1. Australian or Foreign Passport plus 2. Drivers Licence or other equivalent Photo ID issued by a Government body plus 3. current Rates Notice for the property issued by the local government

2

1. Australian or Foreign Passport or Birth Certificate if a Passport has not been issued plus 2. Drivers Licence or other equivalent Photo ID issued by a Government body plus 3. current Rates Notice for the property issued by the local government



Note: If the land owner does not have a current Rates Notice, a letter from the relevant local government stating the name of the land owner (s) as recorded on the local government records will suffice.

14.3.3

Visual Verification of Identity

To satisfy the Visual Verification of Identity standard of this Practice, inside and outside Australia, the person who is being identified should present themselves in person to the Identifier. Outside Australia, the Identifier will be an Australian Consular Officer. The Identifier should scrutinise the identification documents when they meet face to face with the person being identified. It is suggested that the Identifier may wish to satisfy themselves that the person appears to have similar facial characteristics as those depicted in the photographs included in the original identity documents. 

Note: Facial characteristics are the shape of the mouth, nose, eyes and the position of the cheek bones rather than the colour and cut of a person’s hair or makeup used.

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14.4

Verification of Identity Practice

14.4.1

Who should be Identified?

Subject to the exception in paragraph 14.4.3 for ongoing relationships, the Verification of Identity Practice must be applied to each natural person: •

executing a document as specified at Table 1

•

executing a document specified at Table 1 on behalf of a Company/Incorporated body/Statutory body and making a Declaration of Identity (Refer to paragraph 14.4.5.1.2).

•

14.4.2

Who Can Do Verification of Identity?

The “Identifier” undertakes the Verification of Identity in accordance with this Practice.

14.4.2.1

Within Australia

Within Australia, the “Identifier” may be the conveyancer/lawyer/mortgagee themselves or they may choose to appoint a third party as their agent to undertake the verification of identity on their behalf. Australia Post may provide a verification of identity service at certain outlets. There may also be other verification of identity service providers that the conveyancer/lawyer/mortgagee may choose to appoint to do verification of identity on their behalf. It is recommended that Identifiers who are agents are appointed formally in writing with an agreement that sets out the requirements and conditions under which the verification of identity is to be conducted. The Registrar and Commissioner of Titles are not concerned with those arrangements as they rely upon the conveyancer/lawyer/mortgagee's confirmation of identity.

14.4.2.2

Outside of Australia

Outside of Australia, the Identifier should always be an Australian Consular Officer* who undertakes Verification of Identity in accordance with this Practice. Positions that are within the definition of an Australian Consular Officer are: •

ambassador

•

minister

•

high commissioner

•

head of mission

•

commissioner

•

chargé d’affaires

•

consul or secretary at an embassy, high commissioner’s office, legation or other post

•

consular-general

•

consul

•

vice-consul,

•

trade commissioner, and

•

consular agent

Australian Consular Officers should also witness documents executed outside Australia (if a witness is required). * An ‘Australian Consular Officer’ is within the meaning of the Transfer of Land Act 1893 section 145(4).

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14.4.3

When Verification of Identity Must Occur

Verification of Identity is to be undertaken at any time after receiving instructions and before execution of a document to which this Practice applies. Identification and execution of the documents may not necessarily occur at the same time. However, it is essential that the verification of identity has occurred before the documents are lodged for registration or noting. Ideally, verification of identity should occur immediately prior to the execution of the document, so that the Identifier and witness, (if a witness is required), are the same person. The Registrar of Titles and Commissioner of Titles consider that verification of identity immediately prior to execution of documents provides for the lowest risk of potential fraud. As to category 4 documents, where a Declaration of Identity is being used as an identity document, Verification of Identity of the person making the Declaration of Identity (refer to 14.4.5.1.2) should take place: •

at the time of execution of the Declaration of Identity and

•

before the Verification of Identity of the person relying on the Declaration of Identity as an identity document.

Exceptions for Ongoing or Continuous Business Relationships The conveyancer/lawyer or the mortgagee may decide not to verify the identity of their client on every occasion if their client is known to them through a long standing professional relationship in the following two (2) cases only:

1. Transfer of Land Documents Where a person is represented by the same conveyancer/lawyer on a continuous or ongoing basis with respect to the sale of real property in Western Australia, Verification of Identity is required on the first and second transfer but not on any subsequent transfers within the next two (2) years. For a continuous and ongoing relationship to exist the person to be identified must be represented by the same conveyancing/law firm.

2. Mortgage Documents Where a person obtains a mortgage from the same mortgagee, whether private or corporate on a continuous or ongoing basis, against land titles in Western Australia, Verification of Identity is required on the first and second mortgage but not on any subsequent mortgages within the next two (2) years. For a continuous and ongoing relationship to exist the person to be identified must take the mortgage with the same mortgagee.

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14.4.4

How to Identify Companies/Incorporated Bodies/Statutory Bodies

The requirements for execution of documents by companies and other incorporated/statutory bodies are detailed in paragraph 1.10. When a natural person is executing a document on behalf of a company or other incorporated/statutory body, the conveyancer/lawyer/mortgagee in a transaction must satisfy themselves as a reasonable person on three matters: 1.

The continued existence of the body at the time of execution of the document.

2.

That the natural persons who are signing on behalf of the body or attesting the seal on the document are current officers of the body and are authorised to execute the documents.

3.

That the identity of the natural person signing on behalf of the body or attesting the seal on the document corresponds with the identity of persons ascertained under the preceding paragraph (refer to paragraph 14.4.5).

A conveyancer/lawyer/mortgagee may be able to satisfy themselves as to those matters by the following: 1.

In the case of a company incorporated under the Corporations Act 2001 (Corporations Act) by obtaining a company search that is not more than 30 days old at the time of conducting the Verification of Identity and checking from the search the continued existence of the company, that the details are consistent, and the identity of the persons identified as its current director(s) and secretary.

2.

In the case of an incorporated body not incorporated under the Corporations Act (including a foreign registered body) by obtaining the following:

3.

(i)

evidence that is not more than 30 days old at the time of Verification of Identity to establish the continued existence of the body

(ii)

an extract from the body’s constituent documents (e.g. Constitution) that establishes which officers of the body are authorised to execute documents on behalf of the body under seal or by signing

(iii)

a current resolution that is not more than 90 days old at the time of identity verification and certified by an officer identified under (ii) that specifies the full names of the persons and positions held by such persons in that body.

In the case of a statutory body, evidence and/or knowledge of the existence of the body and of the authority of the persons to act on behalf of that body.

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14.4.5

How to Identify a Natural Person in Australia

14.4.5.1

Identity Documents: Table 2 and Table 3

As outlined in paragraphs 14.3.1 and 14.3.2 the person to be identified should produce all of the documents from the highest category possible for that individual. The identity document categories are to be treated progressively starting at category 1 as the highest. Where a person does not have category 1 identity documents, then the document combinations in category 2 through to category 5 should be used. Category 5 is for foreign nationals residing in Australia who cannot meet the requirements of category 1, 2 or 3. In the case where Category 1 identity documents cannot be produced, the Registrar and Commissioner consider it may be prudent for the conveyancer/lawyer/mortgagee to obtain a statutory declaration from the person being identified stating why they cannot provide category 1 documents. 14.4.5.1.1 Category 4 - Declaration of Identity Category 4 documents will need to be used where a person is not a foreign national and is unable to satisfy the identity document requirements in category 1, 2 or 3 (Refer to the Table 2 identity documents). Category 4 is the lowest level of verification of identity under this Practice and Identifiers should be particularly vigilant as the risk levels of not achieving a proper and correct identification are much higher in this category. The person executing the document must present in person to an Identifier (Refer paragraph 14.4.2.1) and produce all the current original documents specified in category 4, including the Declaration of Identity. To be valid under this Practice, the Declaration of Identity must have attached the certified copies of the identity documents used to establish the identity of the person making the Declaration of Identity. If a Declaration of Identity (with certified copies of the identity documents of the person making the Declaration of Identity attached) is used as an identity document, the conveyancer/lawyer/mortgagee should also receive the certified copies of the other identity documents used from category 4 to identify the person executing the real property document to be lodged at Landgate.

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14.4.5.1.2 The Declaration of Identity To satisfy the requirements of category 4, the person who makes the Declaration of Identity must have their own identity verified by an ‘Identifier’ in accordance with this Practice as if that person was the person executing the real property document to be lodged at Landgate. A Declaration of Identity can only be made by an individual who satisfies all of the following: 1.

is over the age of 18

2.

has known the person being identified for more than 12 months and who is executing the document

3.

is not a relative of the person being identified and who is executing the document;

4.

is not the person’s agent in the transaction

5.

is not a party to the document.

The Declaration of Identity should be made as a statutory declaration, under the Oaths Affidavits and Statutory Declaration Act 2005 (WA), and detail all of the following: •

the occupation of the person making the declaration

•

the full name, address and date of birth of the person making the declaration

•

the full name and date of birth of the person being identified and who is executing the document

•

the nature of the person’s relationship with the person being identified and who is executing the document

•

declaring that they are not a relative of the person being identified and who is executing the document

•

the length of time that they have known the person being identified and who is executing the document

•

specify the document type the person being identified is executing and include the land description specifying the certificate of title volume and folio number.

The identity of the person making the Declaration of Identity can be verified at the same time as the person executing the real property document to be lodged at Landgate and by the same Identifier, or performed independently using the documentation set out in the Table 2 and the requirements detailed in paragraph 14.3. Copies of all original identity documents produced to the Identifier must be certified by the Identifier and attached to the Declaration of Identity.

14.4.5.2


The visual verification process is described in paragraph 14.3.3.

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14.4.6

How to Identify a Natural Person Outside of Australia

14.4.6.1

Identity Documents

In cooperation with the Department of Foreign Affairs and Trade (DFAT), Verification of Identity outside of Australia can only be undertaken by an Australian Consular Officer using current and original documents set out in Table 3, namely: •

a rates notice issued by the local government applicable to the property (or a letter from the relevant local government stating the name of the land owner(s) as recorded on the Local Government records

•

a passport (a birth certificate will be accepted if a passport has not been issued)

•

a driver’s licence (or other equivalent photographic identification issued by a government body).

At least one piece of identification must have a photo and signature of the person whose identity is being verified. If a rates notice cannot be produced, the Registrar of Titles or Commissioner of Titles, as appropriate, will consider this requirement on a case by case basis. The identity document categories are to be treated progressively starting at category 1 as the highest and category 2 as the lowest. That is, the person to be identified should produce all of the documents from the highest category possible for that individual. In circumstances where the execution of a document is not required to be witnessed e.g. where a company is executing by its officers but the conveyancer/lawyer/mortgagee is aware that the execution is to occur outside of Australia, the Verification of Identity is to take place in accordance with the provisions of this clause (i.e. original documents must be sighted and verified by an Australian Consular Officer).

14.4.6.2


The visual verification process is described in paragraph 14.3.3 As Identifier, the Australian Consular Officer must meet face to face with the person being identified to scrutinise their documentation.

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14.4.7

The Identifier’s Role

14.4.7.1

Represented Party

The Registrar and the Commissioner recommend that, on completion of the Verification of Identity, the Identifier should make a complete copy of the original identity documents relied upon and do the following: 1.

complete the Identifier’s Certificate C-1, in the form suggested in 14.8, for each individual identified and refer to and attach the copies of the identity documents relied upon

2.

sign their name and date each copy of the identity documents stating that it is a true copy of the original

3.

witness the execution of the relevant transaction document after the identity of the person has been verified.

The conveyancer, lawyer or the mortgagee may or may not decide to require an Identifier’s Certificate or similar from their appointed agent. The Registrar and Commissioner are not involved with those arrangements, as they rely upon the conveyance/lawyer/mortgagee’s confirmation of identity.

14.4.7.2

Self Represented Party

Self represented parties must be identified by an Identifier who appears on the Landgate Panel of Identifiers. The Landgate Panel of Identifiers is open to third parties who undertake verification of identity services in accordance with this Practice. A list will be available online at Landgate’s website www.landgate.wa.gov.au. The Identifier, on completion of the Verification of Identity, should make a complete copy of the original identity documents relied upon and do the following: 1.

complete the Identifier’s Certificate C-2, in the form suggested in 14.8, for each individual identified and refer to and attach the copies of the identity documents relied upon and

2.

sign their name and date each copy of the identity documents stating that it is a true copy of the original and

3.

witness the execution of the document after the identity of the person has been verified.

14.4.7.3

Documents to be provided to the Conveyancer/Lawyer/Mortgagee

The conveyancer/lawyer/mortgagee who does not do the verification of identity themselves may wish to obtain and review the certified and signed copies of the identity documents as well as the Identifier’s Certificate suggested at 14.4.7.1 above. If the conveyancer/lawyer/mortgagee has any concerns that the identity of the person has not been verified in accordance with this Practice, or even if it has, if they have any other concerns about the identity of the person being verified or their authority to deal with the interest in land, they should either: 1.

Verify the identity of the person themselves in accordance with this Practice. or

2.

Arrange for the person to be identified again in accordance with this Practice. or

3.

Take what other actions they consider appropriate.

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14.4.7.4

Documents to be provided to the Registrar /Commissioner of Titles:

14.4.7.4.1 Statement by Conveyancer/Lawyer/Mortgagee: A Statement made in the form of a statutory declaration or on letterhead addressed to the Registrar of Titles or the Commissioner of Titles should be: 1.

made by the conveyancer/lawyer acting for the party identified or made by the mortgagee who identifies the mortgagor and

2.

lodged together with the documents for registration or noting.

The Statement should include these 3 key elements: 1.

I have taken all reasonable steps to verify the identity of my client / the mortgagor and

2.

I reasonably believe that my client /mortgagor has been identified and

3.

I reasonably believe that my client /mortgagor has the authority to deal with the interest in land that is the subject of this particular transaction.

The Statement should cover the following: •

The full name and address of the person identified.

•

The date and country where the person was identified.

•

State the full name, occupation and address of the conveyancer/lawyer or mortgagee.

•

Include a daytime telephone number of the conveyancer/lawyer or mortgagee. and

•

Include an email address of the conveyancer/lawyer or mortgagee. And also, as appropriate: (i)

For use where the document is a Transfer of Land, Application For Issue of Duplicate Certificate of Title, Application For Replacement (Lost) Duplicate Certificate of Title, Transmission, Survivorship, or Power of Attorney: "I [full name of conveyancer or lawyer acting for the person being identified] have taken all reasonable steps to verify the identity of my client [full name of natural person being identified]. and also I reasonably believe my client has been identified. and also I reasonably believe my client has the authority to deal with the interest in land the subject to this transaction (specify document type e.g. Transfer or Application for Survivorship; land description and certificate of title volume and folio number)”.

Signed by Conveyancer or Lawyer* and Dated. * If signed under Power of Attorney, the usual power of attorney execution clause should be used including stating the power of attorney number as allocated by Landgate. OR

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(ii)

For use where the document is a Mortgage and: OPTION A

Mortgagee itself makes the Statement

[Insert full name of Mortgagee of Mortgage] has/have taken all reasonable steps to verify the identity of the Mortgagor(s) [insert full name of natural person(s) being identified as mortgagor(s), ensuring that it is clear which mortgagor the natural person signs on behalf]. and also The Mortgagee reasonably believes the Mortgagor(s) has/have been identified. and also The Mortgagee reasonably believes the Mortgagor(s) has/have the authority to deal with the interest in land the subject to this Mortgage [specify land description and certificate of title volume and folio number]. or OPTION B

Lawyer acting for the Mortgagee makes the Statement

"I[insert full name of lawyer] act for [insert full name of Mortgagee] who is the Mortgagee of this Mortgage and I reasonably believe: That the Mortgagee has taken all reasonable steps to verify the identity of the Mortgagor(s) [insert full name of natural person(s) being identified ensuring that it is clear which mortgagor the natural person signs on behalf]. and also That the Mortgagee reasonably believes that the Mortgagor(s) has been identified. and also That the Mortgagee reasonably believes that the Mortgagor(s) has/have the authority to deal with the interest in land the subject to this Mortgage (specify land description and certificate of title volume and folio numbers”. Signed by lawyer representing the Mortgagee* and Dated Statement. * If signed under Power of attorney, the usual power of attorney execution clause should be used, including stating power of attorney number as allocated by Landgate. A second option, not yet available, is to endorse the statement on the Transfer of Land Act 1893 document itself as part of the approved form lodged for registration or noting. The Statement on the form itself will cover the same substantive points required in the statutory declaration or letter. The Registrar and Commissioner of Titles consider that this, our Joint Practice, amounts to and is reasonable steps.

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14.4.7.4.2 By Self Represented Party: A Self Represented Party who is identified in accordance with Practice should ensure that the document or documents lodged for registration or noting also attach: 1.

a duly completed Identifier’s Certificate (Self Represented Party) C-2, in the form suggested

2.

copies of the identity documents used by the Identifier and

3.

certified by the Identifier as true copies of the originals.

14.5

Identity Documents to be Kept Secure

The Commissioner of Titles and Registrar of Titles strongly recommend that the certified copies of the identity documents be kept in a secure manner to prevent misuse of the identity information contained in them whilst they are in the possession of the conveyancer/lawyer/mortgagee. The Commissioner of Titles and Registrar of Titles consider that it may be good practice for copies of these identity documents to be retained for seven (7) years from the date of the Verification of Identity.

14.6

Mere Mechanical Compliance Not Sufficient

Mere mechanical compliance with this Practice, without attention to detail, is not sufficient. For example, there may be cases where a prudent Identifier or conveyancer/lawyer/mortgagee would consider it reasonable to conduct further checks, such as where: •

a name or address is not exactly the same as the name of the current registered proprietor; or

•

the Identifier conveyancer/lawyer/mortgagee forms the view that the person executing the instrument appears not to be of the same gender as the current registered proprietor;

•

the Identifier or the conveyancer/lawyer/mortgagee forms the view that the person who executes the instrument appears to be younger or older than the current registered proprietor;

•

the Identifier or the conveyancer/lawyer/mortgagee forms the view that the details in the passport are not similar to the person presenting the document; or

•

the name on the various identity documents are not the same and if relevant are not the same as on the certificate of title

It is essential that the Identifier and conveyancer/lawyer/mortgagee has the independence to refuse to verify the identity if the evidence presented to them does not meet what is required under this Practice or there is a concern about the authenticity of the evidence provided or if there is some other doubt about the identity. If an Identifier, conveyancer/lawyer/mortgagee is of the view that a criminal act or improper dealing may be taking place in that a person is attempting a fraudulent real estate transaction, the matter should be immediately reported to: •

WA Police and

•

the Department of Commerce, if real estate or settlement agents are involved.

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The Registrar of Titles or the Commissioner of Titles, as appropriate, should be advised preferably in writing, for information purposes. Each report will be considered on a case by case basis to determine what action, if any, will be taken in the particular circumstances. In advising the Registrar or Commissioner, details of the certificate of title by volume and folio number as well as the names of the parties involved should be provided.

14.7

Amendment

This Practice will be amended by the Registrar and Commissioner of Titles from time to time, as required.

Jean Villani

Susan Dukes

REGISTRAR Of TITLES

COMMISSIONER Of TITLES

Dated 23 October 2012

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14.8

Suggested Identifier Certificates (C-1 and C-2) C -1

Suggested Identifier Certificate for Guidance Only Identifier to Complete (Provided to Conveyancer/Lawyer/Mortgagee with Identity Documents) IDENTIFIER’S CERTIFICATE (Represented Party) (Instruction 1) I (FULL NAME, ADDRESS AND OCCUPATION OF IDENTIFIER) hereby certify that: (a)

This identification relates to (FULL NAME OF PERSON BEING IDENTIFIED).

(b)

The identification was carried out on (DATE) at (ADDRESS INCLUDING COUNTRY).

(c)

The identification documents as listed below were produced to me and appear to be genuine originals.

(d)

The person being identified appears to have similar facial characteristics as the person in the photographs included in the original identity documents referred to at item (c) above.

(e)

The Verification of Identity has been conducted in accordance with the Western Australian Commissioner of Titles and Registrar of Titles Joint Practice for Verification of Identity.

Dated this

day of

Year 20

Identifier’s Signature: ………………………………………………………………… Contact Telephone Number: …………………………………………………………

(Instruction 2) List of identification documents produced (see item (c) above): Description of Identity documents and page number in set of copies to be stated. …………………………………………………………………………………………………………… …………………………………………………………………………………………………………… …………………………………………………………………………………………………………… ……………………………………………………………………………………………………………

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INSTRUCTIONS 1.

Full name, address and occupation of Identifier must be stated. (a)

State full name of person being identified.

(b) State the date on which and the address including country where the identification was carried out. 2.

Identifier to date, sign the Identifier’s Certificate and state their contact telephone number.

3.

Description of original identity documents and page number in set of copies to be stated. E.g. Australian Passport (1) Western Australian Driver’s Licence (2) Rates Notice (3) Birth Certificate (4)

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C- 2 Suggested Identifier Certificate for Guidance Only Identifier to Complete IDENTIFIER’S CERTIFICATE (Self Represented Party) (Instruction 1) I (FULL NAME, ADDRESS AND OCCUPATION OF IDENTIFIER) hereby certify that: (a)

This identification relates to (FULL NAME OF PERSON BEING IDENTIFIED).

(b)

The identification was carried out on (DATE) at (ADDRESS INCLUDING COUNTRY).

(c)

The identification documents as listed below were produced to me and appear to be genuine originals.

(d)

The person being identified appears to have similar facial characteristics as the person in the photographs included in the original identity documents referred to at item (c) above.

(e)

The Verification of Identity has been conducted in accordance with the Western Australian Commissioner of Titles and Registrar of Titles Joint Practice for Verification of Identity.

Dated this

day of

Year 20

Identifier’s Signature: ………………………………………………………………… Contact Telephone Number: …………………………………………………………

(Instruction 2) List of identification documents produced (see item (c) above): Description of Identity documents and page number in set of copies to be stated. …………………………………………………………………………………………………………… …………………………………………………………………………………………………………… …………………………………………………………………………………………………………… ……………………………………………………………………………………………………………

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INSTRUCTIONS 1.

Full name, address and occupation of Identifier must be stated. (a)

State full name of person being identified.

(b) State the date on which and the address including country where the identification was carried out. 2.

Identifier to date, sign the Identifier’s Certificate and state their contact telephone number.

3.

Description of original identity documents and page number in set of copies to be stated. E.g. Australian Passport (1) Western Australian Driver’s Licence (2) Rates Notice (3) Birth Certificate (4)

4.

Where all parties are self represented the form must be lodged with Landgate at the time of document lodgement.

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15.

List of Forms and Examples

This chapter contains both Freehold Land Registration and Crown Land Registration forms, and examples. To download Freehold Land Registration forms and some Crown Land Registration forms, click on this link: http://www0.landgate.wa.gov.au/titles-and-surveys/forms-and-fees/land-titling-forms.

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15.1

List of Freehold Land Registration Forms

A1

Transmission Application

A2

Survivorship Application

A2a

Survivorship Application (incorporating a Statutory Declaration)

A3

Transmission of a Mortgage, Charge or Freehold Lease

A4

Survivorship of a Mortgage, Charge or Freehold Lease

A5

Application (multipurpose)

A6

Application for a New or Balance Title

A7

Application for the Issue of a Duplicate Certificate of Title

A8

Application to Register Strata / Survey Strata Plan

A9

Application for cancellation and non-issue of a Duplicate Certificate of Title

A10

Application to Register (Property Seizure and Sale) Order

A11

Application to Register an Order Extending the Sale Period in a Property (Seizure and Sale) Order

A12

Application to Register a Discharge of a Property (Seizure and Sale) Order

B1

Additional Sheet

B2

Blank Instrument Form

B3

Statutory Declaration

B4

Cover Sheet

C1

Caveat (under Section 137 of TLA)

C3

Caveat (under Sections 30 and 223A of TLA)

D1

Discharge of Mortgage

D2

Discharge of Charge

D3

Discharge of Mortgage (part of the moneys and some of the Mortgagees)

E1

Extension of Mortgage

E2

Extension of Lease

E4

Extension of Carbon Right

E5

Extension of Carbon Covenant

E6

Extension of Plantation Interest

EPA

Enduring Power of Attorney Coversheet

L1

Lease

L1C

Lease of Crown land

L2

Sub-lease

L2C

Sub-Lease of a Lease of Crown land

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List of Freehold Land Registration Forms (cont.) M1

Mortgage

M1A

Mortgage incorporating the VIO Statement

M1B

Mortgage incorporating the VOI Statement

M2

Charge

N1

Notification (by Local or Public Authority)

N2

Modification or removal of a Notification

NA1

Notification of Change of Address of Registered Proprietor

P1

Power of Attorney

S1

Surrender of Lease

S3

Surrender of Lease of Crown land

SC

Search Certificate

SO

Stay Order

T1

Transfer of Land (Single Sheet)

T1A

Transfer of Land (Single Sheet) incorporating the VOI Statement

T2

Transfer of Land (Double Sheet)

T2A

Transfer of Land (Double Sheet) incorporating the VOI Statement

T3

Transfer of Mortgage, Charge or Freehold Lease

T3C

Transfer of Mortgage, Charge or Lease of Crown land

T4

Transfer of Land by Mortgagee (Power of Sale)

T4A

Transfer of Land by Mortgagee (Power of Sale) incorporating the VOI Statement

T5

Transfer of Land (Sale for Rates)

T6

Transfer of Profit a Prendre

T7

Transfer of Land under Property (Seizure and Sale) Order

T8

Transfer of Mortgage, Charge or Freehold Lease etc under Property (Seizure and Sale) Order

W1

Withdrawal of Caveat

15.2

Freehold Form Examples

How to Guides are designed to show you how to prepare and lodge certain documents. They are a step by step guide which have form examples attached. How to Guides can be downloaded from Landgate’s website at http://www0.landgate.wa.gov.au/titles-and-surveys/forms-and-fees/changingtitle-details. This Practice Manual also provides a list of Freehold Form examples, which can be accessed by clicking this link LTRPM List of Freehold and Crown Form Examples.

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15.3

Crown Land Registration Forms and Crown Form Examples

15.3.1

Crown Land Registration Forms

Some Crown Land Registration forms can be downloaded from Landgate’s website by clicking on this link http://www0.landgate.wa.gov.au/titles-and-surveys/forms-and-fees/land-titling-forms. To access other Crown Land Registration Forms contact the Department of Lands.

15.3.2

Crown Form examples

To view the following Crown Form examples, click on the link provided: •

Sample Statutory Declaration: Removal of an Expired Lease without Encumbrances see LTRPM Form Examples- Example 26

•

Sample Statutory Declaration: Removal of an Expired Lease with Encumbrance see LTRPM Form Examples- Example 27

•

Sample Letter to Lending Institution, Caveators (etc.) of Intent to Remove Interests from Register Relating to Expired Leases see LTRPM Form Examples- Example 28

•

Statement for Creation of a CLT with no Interest see LTRPM Form Examples- Example 29

•

Statement for Creation of a CLT with Interests or Cancellation of a QCLT and creation of a CLT see LTRPM Form Examples- Example 30

•

Cancel Notice of Intention to Take Interest in Land see LTRPM Model Examples- Example 31

•

Increased Period of Currency of Notice on Intention to Take see LTRPM Form Examples- Example 32

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