Land Titles Registration Policy and Procedure Guides

SIG-03 Signing by a Corporation

Version 1 - 14/02/2018

1 Overview

Under s.127 of the Corporations Act 2001, a company may:

execute documents under seal

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.

2 Signing/Execution Requirements

2.1 Signing/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:

two directors of the company, or
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 ACN and the 9-digit Australian Company Number

the company’s Australian Business Number or the abbreviation ABN and the 11-digit Australian Business Number. (This option is only available where the 9 digits of the company’s ACN are the same, and in the same order as the last 9 digits of the ABN, 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 ACN 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.

2.2 Signing/Execution without a Common Seal in accordance with section 127(1) of the Corporations Act 2001

A company may execute a document without using a common seal of the document if signed by:

two directors of the company, or
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 - that sole director and sole secretary.

One person cannot execute a document 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.

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.

2.3 Variations to the requirements of section 127(1) and 127(2) of the Corporations Act 2001

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,

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 Constitution of the corporation, to verify the right of that person to execute a document on behalf of the company. The authentic copy will be returned and must be produced with each subsequent dealing. Where the sealing of document has been altered in the constitution or where alternative signatories have been appointed a copy of minutes confirming the change or appointment should also accompany the constitution. In some instances, a full ASIC search setting out the registered Director(s), Secretary or Alternate Director(s) may also accompany the constitution.

In each instance the authentic copy of the company constitution should be produced with the subsequent dealing.

2.4 Signing/Execution as a Deed in accordance with 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.

2.5 Other forms of Signing/Execution in accordance with 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.

Executions under this section may require additional evidence to support the execution.

3 Examples of Signing/Execution Clauses

3.1 Signing/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 example

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

3.2 Signing/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

4 Foreign Registered Corporations

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 VOIPractice@landgate.wa.gov.au

Evidence may be required verifying that the document has been executed correctly.

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 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.

5 Also see

- Verification of Identity web page

SIG-04 Signing by a Liquidator, Administrator, Official Manager or Receiver

Version 2 - 23/12/2020

1 Signing/Execution by a Liquidator

A liquidator may be appointed by a company in 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 on 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.

As property usually remains vested in the company, although the liquidator has the power to sell the land as the agent of the company, the transfer must be made in the name of the company as transferor (in liquidation). The company directors can sign the transfer in the normal manner but the consent of the liquidator must be endorsed on the transfer form.

Any document 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 following the company name.

The liquidator can sign documents on behalf of the corporation by affixing the common seal, but may also execute without using the seal.

In every instance where a liquidator is executing a document to be lodged for registration, proof of appointment of the liquidator should be supplied in the form of a statutory declaration by the liquidator:

identifying the land and current registered proprietor;
identifying to whom and when the appointment was granted;
setting out details of the transaction; and
declaring that the appointment has not been terminated.

A certified copy of the appointment as registered with the Australian Securities Investment Commission must be provided.

Where the document is being prepared by an industry professional and lodged via an Electronic Lodgement Network (ELN), the proof of appointment and statutory declaration must be uploaded and attached to the document prior to lodgement.¹

¹Paragraph added 23/12/2020

1.1 Examples of Signing/Execution Clauses

Where documents are executed by a liquidator using a common seal, 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

) Common Seal

) (Signature of Liquidator)

Where documents are executed by a liquidator without a common seal, the following form of execution is suggested:

Executed by Waal & Co Pty Ltd A.C.N. 123 456 789

by its duly appointed liquidator (Name of Liquidator)

(Signature of Liquidator)

2 Signing/Execution by an Administrator

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)

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, or
with the written consent of the Administrator, or
under a Court Order.

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 retake 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.

Any document involving a corporation which is under administration should be drawn in the name of the corporation. The words ‘Administrator appointed’ should not appear on the seal, but should be shown in the document following the company name.

In every instance where an Administrator is executing a document to be lodged for registration, proof of Appointment of the Administrator should be supplied in the form of a Statutory Declaration by the Administrator:

identifying the land and current registered proprietor;
identifying to whom and when the appointment was granted;
setting out details of the transaction; and
declaring that the appointment has not been terminated. A certified copy of the Notice of Appointment lodged with the Australian Securities Investments Commission must be provided

¹Paragraph added 23/12/2020

2.1 Examples of Signing/Execution Clauses

Where documents are executed by an Administrator liquidator using a common seal, the following form of execution 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

) Common Seal

) (Signature of Administrator)

Where documents are executed by an Administrator without a common seal, the following form of execution is suggested:

Executed by ABC Company Pty Ltd A.C.N. 001 234 789

by its duly appointed Administrator (Name of Administrator)

(Signature of Administrator)

3 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.

Any document involving a corporation which is in receivership should be drawn in the name of the corporation. The words ‘Manager appointed’ should not appear on the seal, but should be shown in the document following the company name.

In every instance where an Official Manager is executing a document to be lodged for registration, proof of appointment should be supplied in the form of a statutory declaration by the official manager:

identifying the land and current registered proprietor;
stating the facts of the appointment, identifying to whom and when the appointment was granted;
setting out details of the transaction; and
that such appointment is still current, and the authority for the action taken by the registration of the instrument.

Also to be produced (where applicable) is:

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.

¹Paragraph added 23/12/2020

3.1 Examples of Signing/Execution Clauses

Where documents are executed by an Official Manager using a common seal, 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

) Common Seal

) (Signature of Official Manager)

Where documents are executed by an Official Manager without using a common seal, the following form of execution is suggested:

Executed by Cole & Co Pty Ltd A.C.N. 123 456 789

by its duly appointed Official Manager (Name of Official Manager)

(Signature of Official Manager)

4 Signing/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.

Any document involving a corporation which is in liquidation should be drawn in the name of the corporation. The words ‘Receiver appointed’ should not appear on the seal, but should be shown in the document following the company name.

If the receiver cannot obtain the cooperation 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 Commission) may be lodged at Landgate as a power of attorney.

In every instance where the receiver is executing a document to be lodged for registration, proof of appointment of the receiver should be supplied in the form of a statutory declaration by the receiver:

identifying the land and current registered proprietor;
stating the facts of the appointment, identifying to whom and when the appointment was granted;
setting out details of the transaction; and
that such appointment is still current, and the authority for the action taken by the registration of the instrument.

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.

¹Paragraph added 23/12/2020

4.1 Examples of Signing/Execution Clauses

Where documents are executed by a receiver using a common seal, the following form of execution is suggested:

The Common Seal of XYZ Co Pty Ltd

A.C.N. 123 456 789

was hereto affixed by (Name of Receiver)

its duly appointed Receiver

)

) (Signature of Receiver)

)

Where documents are executed by a receiver without using a common seal, the following form of execution is suggested:

Signed by XYZ Co Pty Ltd

A.C.N. 123 456 789 by (Name of Receiver)

as Receiver

)

) Signature of Receiver

5 Also see

SIG-05 Signing by an Incorporated Association

Version 4 - 23/12/2020

1 Overview

Associations of persons who are incorporated under the Associations Incorporation Act 2015 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.

2 Signing/Execution under Common Seal

An incorporated association may have a common seal which is the official stamp of the association. The common seal can only be used by those authorised to use it in accordance with the rules.

A common seal is the official stamp or ‘signature’ of an association. As a body corporate, an association is entitled to a Common Seal. The association must have a Common Seal if its rules require it to have one. The Act also requires the association’s rules to provide for the ‘custody and use of a common seal’.

An incorporated association may decide to use the common seal to execute contracts and other formal documents as the official signature of the association. It is good practice to limit the use of the common seal through the association’s rules by requiring that the stamp only be used if the committee formally resolves to ‘affix’ it to a document.

The rules should clearly indicate whether or not the association must use the common seal when executing contracts and documents. The fixing of the seal should be witnessed only by those who are authorised in the rules to witness the sealing of the document. Association rules usually require the sealing of a document to be witnessed by more than one officer bearer.

The Associations Incorporation Act 1987 (repealed) only provided for the affixing of a common seal when documents were to be signed. The Associations Incorporation Act 2015 now provides the option to sign with a common seal or without a common seal. Each incorporated association is bound by their constitution/rules when the organisation was created and should continue to sign documents as such.

Best practice is to affix and sign with the common seal and no questions will be asked if done so. Where the rules have been altered to provide for execution without a common seal, a copy of the constitution/rules should be presented with the transaction. Where the Incorporated Association has an Australian Business Number (ABN), the ABN should be shown after the Association's name in the particular document.¹

¹Amended to advise to show the ABN 10/06/2020

NOTE; The statutory declaration addressing who has authority to affix the common seal and duly sign legal documents is required regardless of the chosen execution, see below sample.

3 Examples of Signing/Execution Clauses

The Common Seal of XYZ Incorporated

was hereunto affixed in the presence of

Signature of President

(Print Full Name)

President

Signature of Secretary

(Print Full Name)

Secretary

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 Incorporated in accordance with

the constitution in the presence of

Signature of President

(Print Full Name)

President

Signature of Secretary

(Print Full Name)

Secretary

4 Evidence to support signing/execution of documents

In order to identify the persons executing the documents, the lodging party is required to produce with the instrument a statutory declaration by all the persons affixing the seal certifying or without the seal that, at the time the seal was affixed or signed, they were duly authorised to do so. An acceptable form of statutory declaration, which may be adapted to any particular case, is as follows: (modify as required if no seal is affixed).

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...... by

Signature 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.

5 Evidence to support lodgement by an industry professional using an Electronic Lodgement Network (ELN)¹

Where a Subscriber to an ELN is representing an incorporated association, and preparing an electronic document on their behalf, they are required to obtain evidence to support the signing/execution of the client authorisation. The statutory declaration in support should be prepared as per section 4 of this guide but modified to relate to the execution of the client authorisation, rather than the execution of the transfer. The declaration is not required to be lodged with the electronic document, but rather retained by the Subscriber as per rule 6.6 of the WA Participation Rules. An acceptable form of statutory declaration, which may be adapted to any particular case, is as follows: (modify as required if no seal is affixed).

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:

2. The Association is the transferor and (here insert name or names of purchaser) is/are the transferee/s in a transfer of all that piece of land comprised in Certificate/s of Title Volumes/s Folio/s.

3. The transfer is being prepared electronically and I/we have affixed or countersigned the affixing of the Seal of the Association to a client authorisation to enable our representative to electronically sign the transfer on the Association’s behalf.

3. At the time I/we affixed or countersigned the affixing of the Seal of the Association to the said client authorisation, 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...... by

Signature of person making the declaration

In the presence of

¹Section 5 added 23/12/2020

6 Exemption from evidence requirement

A supporting statutory declaration is not required where the association is purchasing land or lodging a caveat.

All other documents should be supported by the declaration.

7 Masonic Lodges

Property in the name of a Masonic body, implies that the provisions of the Freemasons' Property Act 1956 have been adopted by that Lodge.

The Trustees of the Lodge are, by the passing of the resolution, and without the necessity of any other instrument or formality of incorporation, constituted a body corporate.

a) by such corporate name as is specified in the resolution

b) with perpetual succession

c) with a common seal

d) with power in the corporate name to acquire, hold, and dispose of real property

e) to authenticate documents with the affixing of the seal which is to be attested by at least two trustees.

Masonic Lodges that have not adopted the provisions of the Act are not shown on certificates of title as the proprietors. The land is only shown in the names of the private persons who hold the land as trustees for the Lodge. These bodies have to follow the usual rules - the attestation to be accompanied by evidence of their sealing clause as set out in their constitution, and a certificate of the trustees where appropriate.

The Trustees for the time being of individual Constituent Lodges are legal entities and as such are registered as the proprietors of the land in a particular area.

The constitution of The Grand Lodge of Western Australia of Ancient, Free and Accepted Masons contains Regulation 201 which states that should a Constituent Lodge be dissolved or become extinct then all the property of the Constituent Lodge shall be deemed the property of The Grand Lodge and shall vest in The Grand Lodge

Execution of documents by a Masonic Lodge should follow the sample shown in the above paragraphs and be accompanied by the supporting statutory declaration.

7 Also see

SIG-06 Signing of Electronic Documents

Version 1 - 16/06/2017

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 Client Authorisation (CA) form and a description of the terms can be found in the Western Australian Participation Rules. 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.

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, in the Western Australian Participation Rules, the Subscriber is deemed to have taken reasonable steps. A person providing an identifier declaration, used when the client is unable 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)
a person to whom a duplicate certificate of title is handed, unless that person is another Subscriber.

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.

4 Using Digital Certificates

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 Western Australian Participation Rules relating to system security and integrity is 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 Electronic Lodgment Network (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 that information provided to any authority is correct
ensure that Users are trained
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 Electronic Lodgement Network Operator (ELNO).

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 the Western Australian 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
verification of the identity of a mortgagor and the retention of a counterpart mortgage signed by the mortgagor.

5.1 False Certifications

Section 214 of the Transfer of Land Act 1893 (TLA) makes certain fraudulent acts an offence, including the giving of false information.

As at 08 January 2016, 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.

6 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.

7 Also see

Refer to: CIB-331 COVID-19 Impacts on requirements for Verification of Identity inside and outside Australia and document witnessing outside of Australia

SIG-07 Signing and Witnessing of Documents by a Person Overseas

Version 3 - 09/04/2020

1 Overview

Where a land transaction document is required to be executed and witnessed outside of Australia, there are two categories of witnesses that apply:

for a land transaction document that is not subject to the Verification of Identity (VOI) Practice, the witness must be within the meaning of Section 145(1)(b) of the Transfer of Land Act 1893 (TLA):

Signatures on documents, witnessing requirements

(a) in the case of such a document executed outside Australia, the Registrar is satisfied that each signature is witnessed by a person who is not a party to the instrument or power of attorney and who is —

(i) a notary public; or

(ii) an Australian consular officer; or

(iii) an elected member of Parliament or other representative body at the equivalent of State or federal level; or

(iv) a judge or magistrate; or

(v) qualified and entitled to practise law; or

(vi) qualified and entitled to practise as a doctor of medicine; or

(vii) qualified and entitled to practise as a civil, electrical or mechanical engineer; or

(viii) qualified as a school teacher; or

(ix) a university lecturer; or

(x) the mayor of a town or city; or

(xi) a person with managerial responsibility in a bank¹

¹ [Guide updated on 01/10/2018 to insert list of witnesses]

(Also see Verification of Identity web page.)

for a paper instrument or mortgage that is subject to the VOI Practice, the witness must be an Australian Consular Officer (ACO) (fees apply);

The role of the ACO is to satisfy themselves that the photos on the identification documents produced by the person transacting are a reasonable likeness of that person. If this is not possible, the Australian Consular Office service is terminated.

When reasonable likeness is confirmed, the ACO:

prepares endorsed copies of all original identification documents produced by the person transacting;
ask the person to sign the paper land transaction document and witnesses the person’s signature on the paper land transaction document;
completes, signs, dates and endorses the "Australian Embassy/High Commission/Consulate Identity/Witnessing Certification" (Certification Form).

The ACO hands to the person transacting the:

original identification documents;
signed paper land transaction document;
signed, dated and endorsed copies of the original identification documents produced; and
signed, dated and endorsed Certification Form.

The ACO will not advise the person transacting 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, who must provide written instructions to the person transacting.

The Registrar of Titles may, in exceptional circumstances, accept an alternative witness within the meaning of Section 145(1)(b) of the TLA for a paper instrument or mortgage which requires witnessing by an Australian Consular Officer.

Witnessing of Documents - Outside Australia - COVID-19 Emergency²

We understand that it may be difficult under the current circumstances for people overseas who are transacting on land in Western Australia to travel to Consular Offices Where this is the case, one of the other persons authorised under section 145(1) (b) of the Transfer of Land Act 1893 may be used to witness documents.

It is important that the highest levels of vigilance continue during this difficult time to ensure the security and integrity of property transactions remains uncompromised and the security and integrity of our State’s land titles system is maintained.

²Updated to include "Witnessing of Documents - Outside Australia - COVID-19 Emergency 06/04/2020

In some instances, where an instrument is executed but not witnessed in the manner provided in section 145(1) of the TLA, and the genuineness of the signature and handwriting of the person signing is proved to the satisfaction of the Registrar, the instrument may be accepted for registration by virtue of s.145(3) of the TLA. Please refer to SIG-01 – Signing and Witnessing of Documents

2 Also see

- Verification of Identity web page

- CIB-331 COVID-19 Impacts on requirements for Verification of Identity inside and outside Australia and document witnessing outside of Australia

SIG-09 Signing by a Local Government

Version 2 - 02/09/2020

1 Overview

Section 9.49A of the Local Government Act 1995 (WA) provides for the execution of documents by a Local Government. Under s. 9.49A a Local Government may execute documents under seal or without a seal.

Sample

The Common Seal of ……………………….

was hereunto affixed in the presence of

Signature of Mayor or President

(Print Full Name)

Mayor or President

Signature of CEO or Authorised Officer

(Print Full Name)

CEO or Authorised Officer

¹Section 9.49A(4) of the Local Government Act 1995 (WA) provides that the Local Government may, by resolution, delegate and authorise the Chief Executive Officer or another authorised person of said authority to sign documents on behalf of the Local Government.

In these instances a copy of the delegation should be provided to support the execution under section 9.49A(4) of the Local Government Act.

Sample

Signed by the ……………………… (name of Local Government)

pursuant to s.9.49A(4) of the Local Government Act 1995

by it’s Authorised Person.

Signature of CEO or Authorised Person

(Print Full Name)

CEO or Authorised Officer

¹ Section added 02/09/2020

2 Also see

SIG-08 Signing by an Attorney under Power of Attorney/Enduring Power of Attorney

Version 1 - 16/06/2017

1 Overview

A person or corporation may appoint an Agent to do and sign documents on their behalf in the form of a Power of 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.

Execution under Power of Attorney/Enduring Power of Attorney should comply with the Transfer of Land Act 1893 (TLA) witnessing requirements. It is preferable that each Attorney’s signature is independently witnessed.

2 Examples of Signing/Execution Clauses

A proper execution by an attorney is:

Signed by (Name of Attorney) as

Attorney for (Name of Donor) in

the presence of

Witness

(Full Name, Address and Occupation)

)

) (Signature of Attorney)

) P/A number ................

3 Also see

SIG-10 Signing by a Minor

Version 1 - 30/06/2017

1 Overview

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).

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) as

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.

The LAA makes no specific provisions with regard to minors dealing in Crown land.

2 Also see

SIG-11 Signing by a Partnership

Version 1 - 30/06/2017

1 Overview

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). Any subsequent withdrawal of such caveat must be made collectively by the partners individually. If the withdrawal is not signed by all caveators, a statutory declaration by at least one of the partners must provide with the withdrawal a statutory declaration setting out a list of the partners and the authority of that partner to withdraw the caveat and sign the withdrawal of caveat on the other partners’ behalf.

Under the rules of the Court, Property (Seizure and Sale) Orders (PSSO) can be issued showing the judgement creditor as a partnership. While there is no impediment to the lodgement of a PSSO of this nature, a subsequent discharge must be made collectively by the partners individually or a majority of them. At least one of the partners must provide with the discharge a statutory declaration setting out a list of the partners and recite the circumstances of repayment or satisfaction (or part satisfaction) of the PSSO.

2 Also see

SIG-12 Signing by a Registered Friendly Society

Version 1 - 30/06/2017

1 Overview

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 certificate in the form of the Sixth Schedule to the above Act, under the hand of the Registrar of Co-operative 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 locally known as Ditbook. Any dealing by a Friendly Society could be checked against Ditbook to verify the correctness of the attestation by the trustees.

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.

2 Also see

SIG-13 Signing by Aboriginal and Torres Strait Islander Corporations

Version 1 - 30/06/2017

1 Overview

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.

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, or
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, or
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.

2 Also see

Western Australian Participation Rules

Lodgement and Registration

LOD-01 Lodging of Electronic Documents

Version 3 - 03/12/2020

1 Overview

In 2008, a Council of Australian Governments’ (COAG) agreement challenged all states to introduce electronic conveyancing as part of the Commonwealth’s push towards a national seamless economy.

Since then Landgate has engaged with stakeholders to develop electronic conveyancing as an initiative to increase productivity, improve the security and integrity of land tenure information, and bring the conveyancing industry into the digital age.

The Australian Registrar’s Electronic Conveyancing Council (ARNECC) is the regulatory structure that was established to regulate the process of electronic conveyancing. The legislation adopted states that electronic dealings are to be processed through an Electronic Lodgement Network (ELN) that has the capability of providing the facility for funds transfers. The entity that owns the ELN is an Electronic Lodgement Network Operator (ELNO).

In 2014, Landgate received its first transaction via PEXA, who was the only ELNO operating in Western Australia at that time. Since then, Landgate has made lodgement of the following documents possible electronically:

Discharge of Mortgage
Mortgage
Transfer
Caveat
Withdrawal of Caveat
Change of Name

Electronic conveyancing delivers benefits to all stakeholders across the industry by:

Determining settlement preparedness of each party well before the agreed date.
Eliminating the need to attend settlements in person.
Making settlement funds available immediately.
Maintaining the accuracy of the Land Titles Register.
Providing better security and robustness of the system.

2 Model Operating Requirements (MOR)

ARNECC has developed Model Operating Requirements (MOR) to assist ELNOs in understanding what is expected of them. Each state then adopts its own requirements version to incorporate state-specific legislation. ELNOs are required to comply with the Registrar’s Participation Rules in each jurisdiction.

In Western Australia, ELNOs are required to comply with the WA Operating Requirements (WAOR).

To review and download the WA MOR and related Guidance Notes please click on the below links:

Model Operating Requirements - Guidance Notes

3 Model Participation Rules (MPR)

In order to conduct property transactions electronically, conveyancing industry representatives are required to become a Subscriber with the ELNO. ARNECC has developed Model Participation Rules (MPR) to assist Subscribers in understanding what is expected of them. Each state then adopts its own requirements version due to the different legislation and organisational structure across the states. In Western Australia, Subscribers are required to comply with the WA Participation Rules (WAPR).

To access the WAPR or related Guidance Notes, please click on the below links:

Western Australian Participation Rules

Model Participation Rules Guidance Notes

Additional information on becoming a Subscriber in PEXA can be obtained from Section 4 Access to Electronic Conveyancing below.

4 Access to Electronic Conveyancing

Currently Property Exchange Australia (PEXA) is the only ELNO operating in Western Australia. Conveyancers, lawyers and financial institutions must become a Subscriber in PEXA before being able to lodge eligible documents electronically. It is free to become a Subscriber.

Section 4 of the WAPR outlines eligibility criteria to become and remain a subscriber to an ELNO.

Conveyancers and lawyers can obtain full details and requirements at https://www.pexa.com.au

5 Landgate’s Role

The following services are provided by Landgate to enable lodgement of electronic documents:

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 ELNO 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 the ELNO and paper lodgement will be necessary.
Registry Information Supply (RIS) - Once the land title/s suitability for electronic transacting has been confirmed, the ELNO will request a RIS. The certificate of title data supplied by Landgate to the ELNO in response to this request will enable the preparation of document types that are able to be lodged via the ELNO. The RIS will also include details of any activity on the title/s for the last 60 days.
Title Activity Check (TAC) - The TAC service checks with Landgate for any changes to the registry information initially supplied to the ELNO 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. In the weeks leading up to settlement the TAC is run weekly; daily during the week of settlement and then an hour before settlement is due. TACs will be triggered automatically by the system or requested manually by a Subscriber.
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 ELNO when:
- 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
- All documents in the lodgement case have been certified and signed by all the relevant subscribers
- A TAC response of ‘Yes’ is returned in a lodgement case involving settlement
Lodgement Verification Status (LVS) – This service provides a means for Landgate to communicate back to the originating ELNO 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 and confirm their acceptability for lodgement. Landgate will compile the lodgement verification compliance report and the lodgement fee estimate and send the lodgement verification status advice to the ELNO. If the lodgement case:
- passes verification – Landgate returns a successful lodgement verification compliance report (compliance indicator = "Yes"). This includes warning and information messages.
- fails verification – Landgate will return an unsuccessful lodgement verification compliance report (compliance indicator = "No"). This includes error and warning messages which detail required documents missing from the lodgement case as well as documents in the lodgement case which fail 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:

the land title is not current
the land title is not valid
incorrect fees paid
digital signature is missing
subscriber organisation in the digital signature does not match execution
subscriber does not exist. 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. This can happen as a result of the title becoming ‘in order for dealing’ due to a recent lodgement that is as yet registered. Subscribers should investigate any returned warning and take appropriate action as required.

Lodgement (L) – This service provides a means for the ELNO to submit a case for lodgement.
Lodgement Case Status (LCS) – This service provides a means for Landgate to communicate back to the originating ELNO workspace the status of a lodgement case. Notwithstanding prior successful lodgement verification, Landgate may or may not accept a case for lodgement. The lodgement case status returns the status of the case (Not Accepted, Lodged, Completed).

6 Electronic Document Eligibility Criteria

The ELNO system has the capability to process the following document types:

Discharge of Mortgage
Mortgage
Transfer
Caveat
Withdrawal of Caveat
Change of Name

This is dependent on all parties involved in the transaction being eligible to use the system as well as the certificate of title being eligible for electronic lodgement.

For information on eligibility criteria for titles and documents, please refer to Eligible documents for paperless conveyancing

7 Waivers

Under section 27(1) and (2) of the Electronic Conveyancing Act, a waiver from the obligation to comply with a provision of the participation rules and the operating requirements may be granted if it is reasonable in all circumstances.

For more information on waivers that have been granted please refer to Electronic Conveyancing - more information

8 Exemptions

Under Regulation 8F of the Transfer of Land Regulations (2004) the Registrar of Titles may grant an exemption to the requirement to lodge an instrument or transaction electronically.

The Registrar of Titles has granted an exemption to the requirement to lodge the following instruments/documents electronically –

Registry instrument exempt from fees under Schedule 2 of the Transfer of Land Regulations 2004.

9 Attaching evidence to electronic documents ^1,2

There are instances where it is necessary to lodge evidence in support of an electronic document. It is important that the scanned image of the evidence is of a suitable quality to be viewable on the Register. Subscribers should ensure that the evidence image is:

a PDF file type
attached to the document prior to lodgement. Uploading to the workspace alone is insufficient, the evidence image must also be attached to the relevant document.
attached as the correct evidence type, for example evidence type “Restrictive Covenant” should only be used for the creation of a new covenant within a transfer. A letter requesting the removal of an existing expired covenant should be attached using the evidence type of “Other”.
separated from other evidence that needs to be attached to the document. If more than one type of evidence is required, each evidence document must be individually scanned and attached as the correct evidence type. For example, if the case requires a consent letter and a statutory declaration, they must be scanned, uploaded, and attached separately. The result would be two evidence attachments for the document.
of an adequate image resolution. This is achieved by ensuring the scanner settings for image resolution are 200dpi or higher, and the file size is not reduced when saving prior to uploading
scanned as an A4 size
does not contain JPEG images, including electronic images of signatures. All evidence that is required to be wet signed, such as letters to the Registrar, must be wet signed and then scanned and uploaded

If a Subscriber is having any issues in relation to attaching evidence within a workspace, they must contact the ELNO and/or Landgate prior to lodgement. Failure to lodge the evidence with the document may result in not achieving the intended action upon registration, and further documents may then be required to be lodged.

¹ Section 9 added 17/08/2020, ²Section updated 03/12/2020

10 Duplicate certificates of title³

Where a duplicate certificate of title exists and is required for an electronic document, the Subscriber must certify that:

“The Certifier has: (a) retrieved; and (b) either securely destroyed or made invalid, the (duplicate) certificate(s) of title for the folio(s) of the Register listed in this Registry Instrument or Document.”

The destruction or invalidation of the duplicate must occur prior to lodgement. If an electronic document is lodged, and subsequently withdrawn of rejected by the Registrar of Titles, a new edition of the duplicate certificate of title will be issued back to the lodging party.

³Section 10 added 03/12/2020

LOD-02 Lodging of Paper Documents

Version 3 - 21/10/2020

1 Overview

Documents being lodged in paper format with Landgate must be the originally signed document/s. Photocopies or copies of document/s certified by another party are not accepted for lodgement, only originally signed documents can be lodged.

In most instances only one originally signed document can be lodged, however if you are lodging a lease, sub-lease, power of attorney or an enduring power of attorney, a second originally signed document may be lodged. Where a second originally signed document is accepted for lodgement, the second document will be returned to the lodging party as an official duplicate or client original document at the completion of the registration process.

Documents may be lodged in person in the Midland or Perth Offices between the hours of 8.30 am and 4.30 pm only.

Documents can also be lodged by posting the original documents to Landgate, refer to section 4 below for further information on postal lodgements.

Customers must pay the document lodgement/registration fee when the document is presented to Landgate for lodgement. Documents are not accepted for lodgement without the payment of fees (where fees are payable).

It is the responsibility of the person/s lodging the documents to make sure the documents have been completed correctly before they are presented for lodgement. The "lodgement acceptability guide and checklist" are publications provided to assist lodging parties to ensure documents have been completed correctly.

2 Request to Accept Paper Lodgement (Industry Practitioners only)²

A Request to accept paper lodgement form must be used with any lodgement case in paper consisting of:

Discharge of Mortgage/Mortgage
Transfer
Caveat/Withdrawal of Caveat

The form must be completed by the party requesting paper lodgement, and that party must also ensure that they hold evidence that supports their request. The Registrar will monitor the use of the request form and evidence may be called upon at any time to ensure compliance with the Regulations.

The form does not need to be used in a lodgement case that includes an additional document(s) not listed above e.g. transmission, survivorship, application.

FAQs

Who needs to provide the coversheet?

The settlement agent, lawyer or financial institution who is seeking to lodge the dealing in paper is responsible for the provision and signing of the coversheet. Best practice would suggest that they notify all parties to the dealing as soon as possible of the requirement to lodge in paper to ensure all parties can be prepared.

Do I need approval to lodge a transaction in paper that is eligible but can’t be lodged electronically?

At this stage, no, the coversheet will suffice. The Registrar reserves the right to call in evidence to monitor compliance and should audit reporting show repeated misuse of the coversheet to avoid electronic lodgement an approval process will be introduced.

Why do I need to hold evidence that it could not be lodged electronically?

To ensure compliance with the Transfer of Land 2004 regulations, the Registrar requests evidence be available to support the paper lodgement request for the transaction. This is like the need to retain evidence supporting the transaction.

What is an eligible transaction?

An eligible transaction is one that meets the current eligibility requirements which can be found here: * Eligible documents for paperless conveyancing.

What happens if I don’t provide the coversheet?

Failure to provide a correctly completed coversheet for a case involving any combination of ‘big 5’ documents (or singularly) will result in the case being rejected for lodgement.

Who can sign the coversheet?

The coversheet needs to be signed by the settlement agent, lawyer or financial institution representative responsible for seeking lodgement in paper.

Does the coversheet need to be an original or will a scanned copy suffice?

To facilitate lodgement and to not cause unnecessary delays the coversheet can be provided as an original or scanned copy. It is important that the contents of the coversheet are legible and that it is completed correctly.

I have a self-represented party on the other side of my transaction, will I need to provide a coversheet or will they?

In this instance the settlement agent or lawyer will need to provide the coversheet. The coversheet allows for such a lodgement.

²Section added 21/10/2020

3 Lodgement Acceptability Check

All paper documents presented to Landgate for lodgement are subject to a preliminary check to ensure the document has been filled out correctly and the basic information provided in the document is correct.

The preliminary check is known as the Lodgement Acceptability Check "LAC".

LAC occurs when a paper document is presented for lodgement, prior to the payment of any registration fee (if applicable). Documents that pass the LAC check are accepted for lodgement and the registration fee (if any) must be paid at this time.

Documents presented for lodgement that do not pass the LAC check will not be accepted for lodgement and are returned to the lodging party to correct any defect identified through the LAC process.

The LAC process reviews paper documents for correctness in the following general criteria:

lodging party details
duplicate titles provided (where applicable)
panels in documents completed including a correct consideration panel (where included)
tenancy shown in transferee panels of transfer documents
verification of Identity (VOI)
original signing of documents
signing/execution with evidence where required
witnessing
letters of explanation are originally signed
consent/s provided are original (where applicable)
documents are duty noted or duty certificate provided (where applicable)

The best way to ensure documents being presented to Landgate are completed correctly is to check the registration and document requirements set out in Landgate’s guides, including:

When a document is processed for lodgement, the lodging party will be provided with a receipt which notes the document reference number/s, timeclock priority of the document, payment details and a Landgate customer service contact phone number.

All enquiries relating to the processing of the document/s can be made by phoning the customer service phone number provided on the receipt.

In completing the lodgement process, the title/s the subject of the new document/s accepted for lodgement are flagged to note there is now current action on the particular titles detailed in each document.

This flagging of the title/s provides a warning to any person searching a title for current information, that there is new action pending on a particular title and there may be changes pending, following the processing of the registration of the newly lodged document/s.

4 Lodging a Series of Documents (Joint Lodgement)

Where a number of different lodging parties are wishing to lodge a series of documents together, over the same title/s and each lodging party requires a separate receipt for each of their particular document/s, the lodging process is as follows:

The lodging parties need to liaise together to organise the document order so documents are presented for lodgement in the correct order for registration.
Each document must be individually numbered to indicate the order of lodgement and to also indicate the total number of documents being lodged together. For example, if there are 5 documents in total, the first document is noted 1/5, the second 2/5 and so on. The notation is shown in the "instruct if any documents are to issue to other than the lodging party" panel on the front page of each document.
The documents are presented for lodgement by each individual lodging party in the same order as the numbering of the documents.
Each document is then checked for LAC and if correct will be lodged and receipted individually, once all of the documents have passed the LAC check.
As documents are being lodged together at the same time, the usual letter of consent for follower dealings are not required.

The Registration System will identify all of the unregistered documents that have been lodged against the same title/s at the examination stage and will amalgamate all of the documents numbered as part of a series and process them altogether.

If any document in the case is subject to a requisition, a notice will be issued to all of the lodging parties in the case, so each lodging party is aware of the issues that have been identified and may affect the registration of their document.

5 Lodgement by Post¹

Documents may be lodged by post.

Any person posting documents to Landgate should provide a letter with the originally signed documents, including information such as:

the lodging person's name, address and contact details
the documents being lodged
the evidence provided
issuing details (if required)
any other relevant information

Registration fees are required to be included when paying by cheque or money order, however if paying by credit card, do not include any credit card details in the letter detailing the lodgement. Cheques or money orders can be made payable to “Landgate”.

If paying by credit card, include your contact details in the covering letter, the best times to make contact and Landgate will call you once we receive your documents to obtain credit card details over the phone.

Any duplicate title or evidence being returned from Landgate by post will be returned in the normal mail system. Should persons lodging documents by post require the return of any documentation (including duplicate titles) by registered or another form of post, the lodging party must provide the appropriate pre-paid self-addressed envelope or satchel to Landgate at lodgement.

The postal address for document lodgement is:

Landgate

Document Lodgement Section PO Box 2222

MIDLAND WA 6936

¹Lodgement by Post updated to include information required in letter to be included 07/04/2020

6 Also see

- REG-04 Rectification in the Register and on Instruments (after Registration)

LOD-03 Fees and Transfer Duty

Version 4 - 06/07/2020

1 Fees

1.1 Payment of Fees

The Registrar requires fees to paid on the presentation and lodgement of documents (as applicable) as provided under s.191 of the Transfer of Land Act 1893 (TLA). Fees must be paid when the document is being presented to Landgate for lodgement. Documents are not accepted for lodgement unless the required fee is paid at the same time.

The fees payable are prescribed under s.181 of the TLA and are published in the Government Gazette from time to time. The current fee schedules are also published in the Transfer of Land Act General Regulations 2004, which are available from the State Law Publisher. https://www.slp.wa.gov.au/Index.html

A fee schedule showing the most common document lodgement fees is available from Landgate’s Retail Services customer counters in Midland and Perth.

Click on this link for a list of the current search and lodgement fees.

1.2 Ad Valorem Fees¹

In some instances multiple properties are contained within a single contract of sale or deed and have been duty assessed based on a combined value of the properties rather than the properties individually. In this situation one duty certificate is issued for multiple transfers (Ad Valorem). Lodgement fees for the first transfer are to be calculated on the dutiable value shown on the Certificate of Duty, with nominal fees paid on each subsequent transfer. A copy of the contract of sale or deed and covering letter is required to be lodged with these cases.

Note: Landgate cannot offer assistance concerning assessment of stamp duty on documents, evidence in support of an assessment or additional documents or declarations required by RevenueWA. Please contact RevenueWA with queries in relation to any document that may be subject to duty prior to lodgement at Landgate.

¹Section 2.1 added 06/07/2020

2 Duty

2.1 General

On July 1 2008, the Duties Act 2008 came into effect replacing the Stamp Act 1921 and provides that every person whose responsibility is to receive or register any document (instrument) shall ensure that any document liable for duty is assessed and duly stamped for duty.

Documents subject to duty must be lodged in the Revenue Online system or be presented to Revenue WA for a manual duty assessment before the document can be lodged with Landgate.

Where the parties to documents do not have access to the Revenue online system and they are lodging a paper document with Landgate that is subject to duty, the paper document will need to be manually assessed and duty noted by Revenue WA (Duties Division) before the document can be presented to Landgate for lodgement.

Revenue WA provides a Revenue Online system to authorised subscribers for assessment of duty on documents. The Revenue online system produces a Certificate of Duty to verify a document has been assessed for duty. The Certificate of Duty must be printed and provided with any paper document being lodged with Landgate (where duty is assessable).

The Revenue Online system allows authorised subscribers to cancel existing Duty Certificates that may have been incorrectly issued. Duty Certificates that have been cancelled will show "Cancelled Transaction (Section 107)" in the exemption type section of the Certificate of Duty.

Certificates of Duty issued showing "Cancelled Transaction (Section 107)" are not suitable for lodging with documents being lodged with Landgate.

2.2 Cocos (Keeling) Islands and Christmas Island

From 1 January 1994, dealings in land in either the Cocos (Keeling) Islands or Christmas Island 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.

2.3 Additional Stamping

Documents tendered for registration or deposit, which have obviously been noted and stamped by OSR, 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 Revenue WA.

2.4 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
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 à 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 à Prendre (if consideration is paid)
Surrender of Tree Plantation Interests (if consideration is paid)
Transfer of freehold estate in land
Transfer of leasehold estate in land
Transfer of Profit à 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: Revenue WA 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.

3 Also see

- LOD-04 Registration

LOD-04 Registration

Version 1 - 12/09/2017

1 Overview

Legal estates and interests in land do not pass by the act of the parties signing or executing a legal document but by the official act of registration of that document as set out in s.58 of the Transfer of Land Act 1893 (TLA)]. This occurs when the information contained in the document is entered on the relative certificate of title. Registration is completed by the updating of the Certificate of Title from the information provided in the document and by the placing a stamp with initialling as certification on the document or dealing (as required by s.56 and 57 of the TLA) by Landgate. This process is set out in s.10 of the TLA. The practice of stamping and initially a document or dealing was the practice up until 30 August 2015.

2 From 1 September 2015

A seal and initial will is no applied to registered documents. Where provided to our customers, images of registered documents will be marked with ‘Completed’, and 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.

3 How Registration May Be Prevented or Delayed

Registration may be prevented or delayed by:

lodgement of a caveat
service of a Property (Seizure and Sale) Order (s.133 of the TLA)
an order for stay of registration (s.148 of the TLA)
lodgement of a notice of intention to take or a Taking Order under Part 9 of the Land Administration Act 1997 (LAA)
a notice of intention to acquire by the Commonwealth of Australia
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
lodgement of a statutory charge
any order of the Supreme Court directing the Registrar to delay registration of any dealing presented for registration
creation of Registrar Packet
creation of Stopper
an embargo notice issued by virtue of the provisions of the Misuse of Drugs Act, 1981 or the Crimes (Confiscation of Profits) Act 1988

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

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.

Any certificate of title that is subject to a Registrar’s Packet continues to form part of the public record and can be searched. It is possible to ascertain why a certificate of title is subject to a Registrar’s Packet by ordering a Status Report.

The creation of a Registrar’s Packet may, but does not necessarily prevent the lodgement or processing of other transactions for the land in a Certificate of Title that may be the subject of a Registrar’s Packet.

4 Also see

LOD-05 Request to Expedite the Processing of Plans and Documents

Version 3 - 11/02/2019

1 Overview

Landgate has had a long standing policy where customers may directly, or through their representatives, request the urgent processing of a range of services provided by Landgate including:

Registration of documents changing details or adding interests or notifications to land titles
Auditing of new surveys for deposited plans, strata and survey-strata plans
Processing of applications for the issue of new titles for deposited plans, strata and survey-strata plans

There are strict evidential standards that must be met before any request for urgency can be considered, the process and evidential standards are as follows:

All requests for urgent processing must be made in writing, however they can be sent to Landgate by email or fax.
Requests must be addressed to the Registrar of Titles.
Whilst requests may be provided by a representative of a proprietor or other interested party, the person who is directly seeking urgent processing must provide a signed letter requesting urgent processing, explaining the reason for the request.
An emailed or fax submission must provide an attachment letter signed by the person/s requiring urgent processing. An emailed or fax request that does not attach a signed letter of request cannot be considered.
An email request forwarded by a representative, wherein they are forwarding an email request from the person seeking urgent processing will not be considered without a signed letter of explanation being provided as an attachment.
Requests must fully explain the reason/s why urgent processing is required and provide evidence to support the reason for the request:the written consent of all parties having a direct interest in the new survey or document is provided with the letter of request with evidence to clearly demonstrate that:
- a person who has a direct involvement with the new survey plan or document will experience financial hardship if the new survey plan or document/s are processed in line with Landgate’s usual processing times or:
- where contracts, such as offer and acceptances specify a definitive settlement date.

Where a request for urgency is accepted and approved this does not guarantee registration, it simply escalates the document or plan to an examiner in priority of other transactions. The Document or Plan will be subject to standard examination.

Note: Verbal requests cannot be considered.

2 Financial Hardship

Requests must be supported by evidence of the hardship. Evidence may include copy/s of letters from financial institutions (set out on a letterhead of the financial institution).
Evidence can also be provided by providing an originally signed 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. The statutory declaration made must clearly set out the details of the financial hardship.

3 Contract or Definitive Settlement Date

Requests require a certified copy of the contract or offer and acceptance which clearly states the date of settlement. A certified copy of the contract or offer and acceptance (for the purpose of urgent processing only) can be a copy that is certified by a person eligible to witness statutory declarations in Western Australia.
The certified offer and acceptance contract can also be supported by the inclusion a copy of the application to register the new surveys (Form Application for a New/Balance Title or Application for new titles (subject to survey or Application to Register Strata Titles Scheme).
Where the conditions of the offer and acceptance include a settlement date that is a number of days after finance approval, a copy of the finance approval letter is also required to verify and confirm the settlement date.

All enquiries relating to urgent processing of surveys and documents may be directed to Customer Service on +61 (0)8 9273 7373. Alternatively, written requests may be forwarded by email to dealings@landgate.wa.gov.au.

4 Also see

- LOD-06 Issue of Instruments after Registration

- LOD-04 Registration

- LOD-07 Stopped Documents

- REG-04 Rectification in the Register and on Instruments (after Registration)

LOD-06 Issue of Instruments after Registration

Version 1 - 18/12/2017

1 Overview

Documents of which there is only one copy, e.g. 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.

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.

2 Issuing Receipts

2.1 From 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, e.g. 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 +61 (0)8 9273 7314.

2.2 From 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.

2.3 From 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.

2.4 From May 1984 to 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.

2.5 From 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.

2.6 From 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.

2.7 From 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 +61 (0)8 9273 7314.

2.8 From 18 January 1995 to 13 January 2017

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.

2.9 From 16 January 2017 to present

On 16 January 2017, the present Document Issuing System (DIS) was introduced. The main features of the new system are:

the removal of batch printing

and

ceasing of Issuing Lists for signing by the Client from 16 January 2017.

The Issuing List is uniquely numbered. The Issuing List is placed in the Client’s issuing box with the items being issued. Clients are to check that the items noted on the Issuing List have been received.

The Client retains the Issuing List for their records.

3 Also See

- LOD-05 Request to Expedite the Processing of Plans and Documents

- LOD-04 Registration

- LOD-07 Stopped Documents

LOD-07 Stopped Documents

Version 2 - 06/07/2020

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.

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. 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.

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 Transfer of Land Act 1893 (TLA).

A requisition notice advises customers that there is a defect with the document that has been lodged with Landgate, or alternatively the notice may seek the clarification of some of the information in the document.

Documents that are subject to a requisition notice cannot be processed until the defects or clarification has been provided.

It is important to note that requisitions must be replied to within strict timeframes, refer to the information below for further information on the strict timeframes.

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 Notice issued under s.137.

3.2 Under Section 192 of the TLA

From 1 September 2015, for all land transaction documents, with the exception of caveats requiring a statutory declaration, 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 first 14 days from the issue of the notice, Landgate will then send a Final Notice informing the lodging party that the Registrar is allowing a further 7 days to comply with the requisition after which time the document may be rejected.

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.

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.

Consequently, the expected usual communication channels will be as follows:

Landgate sends Requisition Notice to lodging party only.
Lodging party attends to the requisition if it is responsible for the required fixes.
Lodging party forwards the Requisition Notice to the preparing party or other relevant party responsible for the required fixes.
The relevant party responsible for the required fixes engages directly with Landgate to rectify the documents and pay the requisition fees.

4 Uplifting Requisitioned (Stopped) Documents

Sometimes it is not possible to fix a document by sending Landgate a letter requesting an amendment. 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.

4.1 Uplifting

Documents requiring uplifting may be collected at:

Midland office (in person or by courier)

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 (if known)

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.

4.2 Returning Uplifted Documents

Uplifted documents can be returned to Landgate:

by post to the Midland office

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 (if known), 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.

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. Where the amendment or inclusion to the document is considered important, any letter of amendment or inclusion will need to be provided by the person or persons who are affected by the change or inclusion.

For example, an important amendment would be any change or inclusion to the tenancy that is shown in the transferee’s panel of a transfer. Any change or inclusion to the tenancy will need to be acknowledged by the transferee’s themselves.

Where the amendment or inclusion is minor in nature, the letter may be provided by the solicitor or settlement agent acting on behalf of and authorised by the party affected.

For example, a minor amendment may be the inclusion of an address of an applicant in a survivorship application.

Letters requesting amendments should:

Contain details of the document to be amended
State the authority under which the request is made

and

Clearly express the amendment to be made.
Be originally signed by the appropriate person/s and each signature should be independently witnessed and dated. The witness should sign, then write their full name, address and occupation

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 letterhead and be addressed to the Registrar of Titles. The letter is to be in the following format:

Signed: …………………….

Witnessed: …………………….

Dated: …………………….

5.1 Substitution/Replacement of Documents¹

The substitution or replacement of defective documents is not acceptable under s192 of the TLA. Amendments must be made directly to the original document presented for registration or where applicable by way of letter of authority to amend. Alternatively the defective document may be withdrawn and a new document can be lodged for registration together with payment of the relevant registration fees for the new lodgement.

Providing a substituted document may result in automatic rejection of the affected document / case.

5.2 Amendment to Time Date Priority of lodged Documents¹

Where additional documentation is required to be lodged to remedy a defect on a title or remove an encumbrance and must precede the existing documentation, a letter of authority from the lodging party requesting the amendment of the lodgement time priority to a time and date after the new documentation would be required. The option to amend the time priority of a case is at the discretion of the Registrar of Titles and may not be suitable in all situation. In those situations where amending the time priority is not appropriate the lodged documents will need to be withdrawn from registration and then re-lodged in the correct manner.

¹Sections 5.1 and 5.2 added 06/07/2020

6 Withdrawal of Documents from Registration

From 1 September 2015, Landgate no longer returns case documentation to the lodging party (except for Powers of Attorneys, Leases, Transfers and Duplicate Certificates of Titles), but a lodging party may request that a document that is to be withdrawn from registration be returned to them.

Where the document being withdrawn is the subject of a requisition, a letter requesting the document be withdrawn from registration may be provided by the settlement agent, solicitor or lodging party/agent of the documents.

The letter requesting the withdrawal should be prepared on a letterhead of the business and must be signed by an individual from the lodging party/agency. The signing section should include the full name of the person signing and their position within the company that is requesting the withdrawal. The letter should also state whether the original document/s are required to be returned.

However, 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. Each letter should clearly indicate the name of the person/s signing (their personal name) and their position within a company or agency (if applicable). The letter should also include a request to return the original documents if the original documents are required by the parties.

For example, where a document is not subject to a requisition and the parties to the document wish to withdraw documents from registration 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.

7 Rejection of Documents

From 1 September 2015, Landgate no longer returns case documentation to the lodging party (except for Powers of Attorneys, Leases, Transfers and Duplicate Certificates of Title). However, when a document is rejected, the lodging party may request, in writing, that the original document/s be returned.

Any letter requesting the return of original rejected documents can be provided by the lodging party. Where the lodging party is a settlement agent, solicitor, bank or other agent, the letter should be prepared on a letterhead of the business and must be signed by an individual from the lodging party. The signing section should include the full name of the person signing and their position within the company that is requesting the return of the original document(s).

8 Also see

- REG-04 Rectification in the Register and on Instruments (after Registration)

Land Ownership, Land titles and Landgate

COT-01 Reading a Certificate of Title

Version 2 - 17/10/2018

1 Record of Certificate of Title

With a digital register, 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.

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 Digital Title is not the same thing as a Certificate of Title Volume and Folio number.

The Volume and Folio Number: Use this in all search and documentation. Do not use the Register Number.

2 Duplicate edition

A digital 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. Where a digital duplicate title has not yet been issued, the ‘Edition’ panel may show “N/A”, as no digital duplicate has been issued as yet. This panel is located in a box immediately under the Register Number. Where a duplicate title has issued and then requested to not issue, there may be an edition number (to indicate the last edition issued). Where a title is “NDI” (meaning a non-issue title) a note is added to the ‘statement’ section at the bottom of the title stating ‘Duplicate certificate of title not issued as requested by dealing …..’. ¹

¹[Paragraph updated on 17/10/2018]

This note should not be confused with ‘Dup not produced for document ….’ when a document was processed without the production of the duplicate title.

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.

3 Date duplicate issued

The Date Duplicate Issued panel indicates the registration date when the current edition of the duplicate was issued. This panel is located in a box immediately under the Register Number. In some cases, this may show "N/A" where a duplicate has not been issued as yet.

4 Land description

In the digital register 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.

5 Registered Proprietor (First Schedule)

The ownership particulars disclosed in the Registered Proprietor section is an aggregation of the current ownership. It is not 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.

6 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 an original (paper) title.

and

Crown Grants in Trust.

Notifications, interest and encumbrances that do not require the production of the duplicate title to be registered will not show on the duplicate title. These include things like Memorials and Caveats.²

²[New paragraph added on 17/10/2018]

The endorsements in the Second Schedule can be divided into what is known as Prime and Sub endorsements. Prime endorsements are things like mortgages, charges and leases. Sub-endorsements are those affecting a prime endorsement.

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.)

The last sub-endorsement affecting the proprietorship will show the outcome of previous 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 in documents lodged for registration. 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).

7 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 (or in some cases, no street address information available)
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. This section contains any other recording of information that does not fit into the previous categories. 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:
- ending surveys (previously noted in the top right-hand corner of the paper original title)
- lodged dealing where the title is subject to dealing
- no duplicate issued information
- lapsed s.138D caveats.

The Notes section does not appear on the duplicate certificate of title (if any).

COT-02 Duplicate Title

Version 2 - 04/01/2018

1 Overview

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.

2 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.

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.

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 Application for a New/Balance Title.
The Mortgagor/ Transferee may request the non-issue in Forms National Mortgage Form, Charge, Transfer of land with additional pages, Transfer of Land by Mortgagee, Transfer of Land (sale for rates) , Transfer of Land under property (seizure and sale) order and Transfer of mortgage, charge, lease etc under property (seizure and sale) order.
Where a duplicate certificate of title has issued, the registered proprietor(s) may make application under s.48B (4) on a General Application Form, 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"

3 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.

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.

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 National Mortgage Form, Charge, Transfer of land with additional pages, Transfer of land by mortgagee , Transfer of land (sale for rates), Transfer of land under property (seizure and sale) order and Transfer of mortgage, charge or lease under property (seizure and sale) order.
Where a duplicate certificate of title was not previously issued, the registered proprietor(s) may make application on a General Application form, 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.

4 Third-party consent to subsequent dealings where no Duplicate Title was 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

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.

5 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.

COT-03 Application for Lost Title

Version 4 - 28/02/2020

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 the VOI webpage.

1 Overview

Where a duplicate certificate of title has been lost or destroyed, an application may be made for the creation and registration of a new duplicate certificate of title pursuant to section 75 of the Transfer of Land Act 1893 (TLA).

Note: All of the registered proprietors should 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.

In the case of a paper title that cannot be converted to digital, 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, or a paper title that can be converted, 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.

Where the registered proprietor is deceased an application of this nature must be preceded by a transmission application. The application for the new duplicate title 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 duplicate title. The latter application will then be made in the name of the survivor, or survivors.

In the case of a paper title that cannot be converted to digital, the application should be made on a blank application Application for a New/Balance Title 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, or a paper title that can be converted, the application should be made on a blank application form (see Landgate’s Land titling forms page for a General Application e-form) 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.¹

¹[Section updated on 24/07/2019 to add link to Land titling forms]

2 Declaration in Support

The applicant is required to make a Statutory Declaration on a Statutory Declaration, 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 that 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 legal land description and volume/folio reference;
The name of the registered proprietor(s) (owner/s) of the property;
If the duplicate title was held by the applicant, confirmation of such and 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 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 or body that the title last issued to. A letter from that person or body must be produced with the declaration. The letter should state who they gave the title to, and confirm that the duplicate certificate of title is not in their possession.
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;
Detail 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 an Attorney is signing the Application using an Enduring/Power of Attorney on behalf of the Applicant, they must state their means of knowledge of the whereabouts of the duplicate certificate of title. What communication was had with the Applicant as to the Applicants knowledge of the duplicate certificate of title and what might the applicant had done with the duplicate.²Where the Applicant is a company, it is acceptable for one of the directors to make the declaration, but they must include an additional clause stating that they make the declaration on behalf of all directors, they have full knowledge of the particulars, and all directors are aware of the Lost Title Application.

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/s is 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 (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.

²[Paragraph updated on 28/02/2020]

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 title was never sent to the mortgagor or to anyone else on the mortgagor's behalf, such as their solicitor or settlement agent;
The mortgagee has informed the registered proprietor/s that the duplicate title 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 title. 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 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. If the local government issues rates notices digitally, then a print out of the notice will be acceptable.

4 Advertising of Application (Paper Title only)

When the Commissioner is satisfied that the duplicate certificate of a paper title 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 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.

5 Replacement of Duplicate Certificate of Title lost, damaged or destroyed as a result of an eligible natural disaster³

Landgate is able to offer disaster recovery assistance to communities severely affected by eligible natural disasters, as proclaimed under the Western Australia Natural Disaster Relief and Recovery Arrangements (WANDRRA)(prior 1 November 2018) or listed as an Activated Event under the Disaster Recovery Funding Arrangements (DRFAWA).

The list of Activated Events for WA natural disaster is available at the Department or Fire and Emergency Services (DFES) website

An eligible natural disaster may/can consist of damage derived from thunderstorms, flooding, storms, bushfire and damage caused by cyclones.

5.1 Instructions to Potential Applicants

Upon lodgement of an application to replace the duplicate certificate of title by the registered proprietors, the application and supporting evidence will be assessed using the existing policy described above.

The Application should be supported by a statutory declaration and address the points set out in paragraph 2 above, with attention to the point regarding where a duplicate title has been destroyed by fire. Reference to the DFES incident number and a copy of the correspondence from the Department of Fire and Emergency Services confirming the extent of damage to the property.

This service will be provided at no cost to the applicant.

For more information on Disaster Recovery please see the DFES website or WANDRRA website for disasters prior to 1 November 2018.

³[New section added on 28/02/2020]

REG-01 The Transfer of Land Act

Version 2 - 10/02/2020

1 The Legislation and its Purpose

The Transfer of Land Act 1893 (TLA) is the statute governing the registration in Western Australia of titles to Freehold land and dealings on those titles.

Other Statutes affecting land in Western Australia that are referred to throughout the Land Titles Registration Policy and Procedure Guides 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)
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 public registry, required to be maintained by the TLA, is administered by Landgate and is located in Midland Square, Midland.

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.

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.

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.

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 are available via Landgate’s website. 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 Landgate's location in Midland and the Territories. The Land Titles Registration Policy and Procedure Guides contain further details applicable to dealings on land on the Cocos (Keeling) and Christmas Islands under the subject headings.

Information relevant to Commonwealth matters may be obtained from the Commonwealth department responsible for the Indian Ocean Territories.

5 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.

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).

6 Also see

- REG-02 The Register

- REG-05 Service of Court Orders on the Registrar

REG-02 The Register

Version 2 - 07/11/2018

1 Overview

The Register kept under the Transfer of Land Act (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 are created in the name of the registered proprietor for such estate as is named therein. The original certificate of title (and any pre-LAA Crown Leases) created is retained, as are the survey plans and diagrams, but at the end of 7 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 Titles (CLT’s) are 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.

2 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, e.g. 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, e.g. 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.

3 Digital 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 capitalise 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 was 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. New Land Register (NLR) is an internal Landgate system to automate the recording of changes to interests on a certificate of title.

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.

4 Back capture of existing paper original certificates of title

To implement a digital register, it has been necessary to back capture the information on the pre-existing 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, the initial trigger for the conversion of titles has and will be the lodgement of a dealing.

The original paper title that is converted to digital 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 digital 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.

The format of paper titles not suitable for conversion to digital will, on cancellation, be changed to be similar to a Record of Certificate of Title produced by the digital system.

A certificate of title not suitable for conversion (at this time) includes:

titles without a lot on survey land description
part lots (this does 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.

5 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, e.g. NLR, 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.

5.1 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.

6 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 Landgate’s approved Land titling 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 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).

7 Importance and Order of Registration

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.

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 and mark the correct order on the coversheets for the mortgages.

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 Instructions within the ELNO.

8 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, 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

the instrument is withdrawn from registration at the written request of the lodging party 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.

9 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.

10 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.

Note: In the case of a digital title, 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.

11 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 be lodged upon confirmation by Landgate to ensure that the leader dealing is still currently under the registration process.

If the follower document(s) requires the use of a duplicate title lodged with the leader dealing it must be accompanied by a letter (usually from the lodging party of the leader document) requesting the Registrar to register the follower dealing using the duplicate title produced 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 and leader and follower dealings are amalgamated (where possible) during the examination process..

13 Also see

- REG-01 Background and History

- REG-04 Rectification in the Register and on Instruments (after Registration)

- REG-05 Service of Court Orders on the Registrar

REG-03 Searching the Register

Version 1 - 07/03/2019

1 Why Search?

Searching the title register will confirm the registered true ownership of property and will reveal other registered and lodged interests that may be recorded on the original land title. A search of an original Certificate of Title provides a copy of the original land title which is noted as a “Record of Certificate of Title”.

Location information and/ or dimensions of properties can be obtained by searching the survey for the land. The survey may be a diagram, plan, deposited plan, strata plan, survey-strata plan or a combination of these surveys, which can confirm the measurements, area and spatial extent of the land.

Another important reason to obtain the Record of Certificate of Title (and not to rely on looking at a paper duplicate title) is the fact that some limitations, interests, encumbrances and notifications are only ever recorded on the original title. This means checking a paper duplicate title (where issued) may not reveal all limitations, interests, encumbrances and notifications that are recorded against the land.

For example, the following types of limitations, interests, encumbrances and notifications are only recorded on the original title held by Landgate:

Caveats
Property Seizure and Sale Orders
Notifications in general
Notices of Intention to Take/Resume land
Memorials – various types
Trusts created on original Crown Grants not yet removed
Documents lodged but not yet recorded on the original land title
If there is a paper duplicate Certificate of Title issued

Some of these limitations, interests and encumbrances, that are only recorded on the original title, may prevent the registration of changes to ownership and/or the registration of other interests on a Certificate of Title. For this reason, it is recommended that a current version of the Record of Certificate of Title be obtained from Landgate.

In the case of strata titles, the title for the strata lot together with the strata/survey-strata plan should be searched as not all encumbrances affecting the strata lot and common property are shown on the Certificate of Title. The strata/survey-strata plan may be subject to other interests such as easements, changes to by-laws, amendment of unit entitlement, restrictions as to the use of common property or other notations, endorsements and interests that lot owners and prospective lot owners should be aware of.

Not all interests that affect land can be recorded on a land title, so persons requiring further, more complete land information, may wish to consider a search of the Property Interest Report “PIR” and other land information reports available from Landgate, as discussed in section 7 below.

2 What May Be Searched?

The land titles register is an open, public searchable register created under the Transfer of Land Act 1893. The land title indexes enable the public and professionals to search the land title register and obtain information about property ownership.

Generally, all land titles, Crown leases, surveys and documents forming part of the land register, such as transfers, mortgages, easements and caveats are available for searching. This includes all the current information that is only shown on an original title and all historical records that also form part of the land title register.

Most of the information is now available in digital format and can be obtained online through Landgate’s self-service applications.

The prior consent of the Principal Consultant Title Dealings will be required before any information can be obtained for documentation that is associated with:

Applications to bring land under the TLA

Documents in Registrars Packets that are subject to Court injunctions;

Land information obtainable by searching the land title, survey and documents, may not necessarily provide all interests that may be associated with a land parcel. Persons wishing to obtain comprehensive property information may wish to seek further information such as the land information reports that are discussed in section 7.

3 Fees Payable to Obtain Information

There are fees payable to obtain or search the information maintained by Landgate. The fee payable is set by regulation and are prescribed in the Transfer of Land Act General Regulations. In most instances, information cannot be provided without payment of the prescribed fee.

Information that is obtained from searching titles, documents and surveys cannot be provided verbally or by email enquiry where there are regulated fees payable to access the information being sought.

Click here to obtain a list of current fees

The regulated fee payable to obtain information may be paid by the following methods:

Cash
EPTOS
Credit or Debit Card (Visa or MasterCard only)
Cheque made payable to “Landgate”
Money Order
By Landgate account for registered account holders

If paying by cheque or money order, please ensure that the payee is ‘Landgate’ and include a reference (i.e. document number if known) with your correspondence.

Payments can be posted to:

Landgate Customer Service

PO Box 2222 Midland WA 6936

4 Opening Times to Obtain Information at a Landgate Office

Landgate’s official inspection times for searching the records at a Landgate office are set by the Transfer of Land Act General Regulations, as set out in section 239 (1) Transfer of Land Act.

The current inspection times are 8.30 am to 4.30pm Monday to Friday.

Click here to obtain TLA General Regulations

In most instances a search is provided in the form of a copy or print of the digital information, scanned original document, certificate or survey. Where available, the original paper title, document or survey can be physically searched however this service is only provided where a search of the original documentation is absolutely necessary (in order to preserve the original documentation).

Original paper land titles, documents and surveys are stored offsite from all Landgate offices and searches of original documentation (where available) is only available by request. This service is not available to walk in customers due to the fact original documentation is stored offsite.

Online searching is available, generally around the clock, refer to section 8 below, for further information.

5 What Information do I need to obtain Searches

Land title and associate documents may be obtained by providing the following types of information:

street address
title reference using a Volume and Folio number
identifying the location on a map
Survey reference and lot number
the name of the land owner/s – note: the person requesting search information by the name of an owner/interest holder must be identified before a search can be conducted. Personal identification to satisfy 100-point ID standard must be provided prior to searching any records by the owner’s name only. This search method can only be used by registered online users or by personal attendance to a Landgate office.

Note: An owner can apply to have their name suppressed from the name searching indexes. 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 dataset/data extracts administered by Landgate. Name suppression prevents enquirers from using name information (by itself) as a starting point for a property search.

6 Land Information Reports Available

Landgate collects a myriad of land information and then packages this information to create a number of different land information reports. The following land information reports can be provided:

Property Interest Report

The Property Interest Report “PIR” provides information relating to land that is not available by searching a land title. The PIR report gathers interest information from multiple government bodies and private organisations in Western Australia and consolidates that information into a single report. This report will show interests that do and do not affect the property.

This PIR only serves as a guide to interests that relate to this property not recorded on the Certificate of Title. Landgate does not have access to all interest information that affects property in Western Australia. There may be other interests that relate to the property, where that information is currently not available to Landgate.

A sample PIR can be obtained here and click here for further PIR information

Other Online Reports available

Suburb reports. This is a suburb sales report that lists the sales history of properties sold in a suburb with selling price, address, land size, bedrooms and bathrooms and build date details.
Single address reports. There are two reports to choose from, a simple sales history listing for a single property address, or the PIR report.
Land valuations. Information on gross rental values and unimproved land valuations made by the Valuer-General for rating and taxing.
Street reports. A street sales report shows sales history and property particulars for houses, apartments and vacant land sold in a selected street.
Market trends. If you're interested in weekly updates on property sales and median house prices, take a look at our market trends details page.

Click here to access the property reports page

7 Searching Online

Landgate provides an online searching option for all customers via Land Enquiry Services.

If you are seeking a title search, a plan or a related document, you can obtain a copy online if you know one of the basic search criteria of the property such as an address or document number. Click here to order and search products by street address

Land Enquiry Services provides the ability to order and search the following:

Certificate of title
Registration (associated) documents
Plans – freehold and crown diagrams and plans
Strata/Survey – strata plans
Check searches

Searches can be accessed by:

Name
Address
Parcel identifier (lot and plan details)
Crown allotment
Certificate of title volume and folio reference
Reserve name/number

Click here to register for a MyLandgate account

Indexes and Information accessible to MyLandgate account holders only

Name Index

This is an index of names of people (including companies and other bodies capable of owning land) who are registered as proprietors of land. This index also provides records of caveator’s, who have lodged caveats claiming an interest as a purchaser, (for caveats lodged since 11 October 1982) linked to a current certificate of title number.

Survey/Lot Index

This index provides information on registered surveys including diagrams, plans, deposited plans, strata plans, or survey-strata plans. The index references the title number and also links to a spatial view.

Crown Allotment Index

This is an index of locations and lots that have a Crown land identity linked to a historical certificate of title reference. This index also contains the Crown Grant/historical certificate of title number for every Crown location or lot which has been sold by the Crown.

Check Search

This enables persons (such as 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 (when ordered to commence preparation of documentation).

Check Search results can be viewed online for account holders.

Sales Evidence Index

This 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 is an index which provides reserve management and status details.

Powers of Attorney Index

The Power of Attorney index (including Enduring Powers of Attorney) provides details of powers of attorney deposited with Landgate which are indexed by the donor’s name, attorney’s name and by power of attorney number. This index may also provide details of powers of attorneys that have not been deposited with Landgate but have been revoked before they have been deposited.

Issuing Enquiry

This will allow a client to enquire as to the last issuing details for a duplicate title and/or duplicate document;

8 Subject to Dealing Searches

When there is action to create an interest/encumbrance or there are notations to be made on a land title and the title is awaiting updating, the title is given the status of “subject to dealing”. This includes all updates being created by a sundry document, which is created inhouse by Landgate to include notes in the statement section of the record of Certificate of Title.

Where a title that is subject to dealing is ordered for a search, the search copy will be notated with the words “subject to dealing”. This is a warning to persons searching, that the title may not be a complete up to date copy.

The dealing (document/s) that have created the “subject to dealing” warning can be made available, upon request, by ordering a dealing search. The usual document searching fees will be payable for any dealing (document) search.

Documents that are obtained as a “subject to dealing” search, may or may not be registered. Persons searching such documents must bear in mind that the subject to dealing documents may be rejected, withdrawn from registration and/or registered in an amended format.

Click for a subject to dealing request form

9 Certified Copies of Original Titles, Documents and Surveys

Certified copies of Certificates of Title, documents, survey plans (including diagrams, plans, deposited plans, strata and survey strata plans), Crown surveys registered, deposited or lodged under the Transfer of Land Act or the Registration of Deeds Act, may be obtained following payment of the prescribed fee.

Requests for certified copies are required to be made in writing. The quickest and easiest way to order a certified copy is to fill out and return a completed certified copy request form, which includes costs and provides payment options. Click here for a certified copy request form

As certified copies can take time to prepare, usually a minimum of four working days must be given to ensure the certified copy can be made available as requested. Persons requiring certified copies for Court purposes should make sure their request for a certified copy is provided to Landgate well in advance of the Court date.

10 Check Search

A check search is available to find out if any action has occurred on a land title within a 3-month window, from the date the title was first obtained as a full search. The fee to obtain a check search is less than the fee payable for a full title search.

For example, if a full land title search was obtained on 1 January 2019 and you want to check what actions may have occurred between 1 January 2019 and 1 March 2019, a check search may be requested.

The check search will provide a list of any documents or actions lodged and/or recorded against the land title in any 3-month period. Should action be noted on the check search, further searches should be undertaken to ensure the information being considered is current and up to date.

The check search option is available online to Landgate account customers or by clicking here for the check search order form

11 Mineral Rights and Depth Limits

11.1 General Information

All Crown Grants which were issued in WA from the first settlement to 31 December 1898 contained a reservation to the Crown (State Government) of all gold, silver and precious metals in or upon the land comprised in the land grant.

All other minerals in these grants then became the property of the land-owner, who may mine them or grant mining rights to other parties.

All Crown Grants issued subsequent to 1 January 1899 reserve all minerals to the Crown, and a mining tenement must be obtained under the Mining Act 1978 before the commencement of any mining operations on such land.

Prior to 1 January 1898, no depth limits were expressed in Crown Grants. In December 1897, acting to address concerns expressed about the extent of mineral rights potentially lost to the State through this practice, Cabinet decided to impose depth limits on all future grants.

A notice was then published in the Government Gazette of 14 January 1898 limiting the depth of Crown Grants within the Goldfields and Mining Districts to 20 feet. Depth limits were varied from then on, as outlined below.

Section 117 of the Mining Act 1904 subsequently provided that -

gold, silver and other precious metals on or below the surface of all land in Western Australia, whether alienated or not alienated from the Crown, and if alienated whensoever alienated, are the property of the Crown; and
all other minerals on or below the surface of any land in Western Australia which was not alienated in fee simple from the Crown before 1 January 1899, are the property of the Crown.

The following information summarises mineral reservations and depth limits in successive Land legislation and Crown Grants.

PRIOR TO 1 JANUARY 1899

Prior to 1 January 1899, Crown land in Western Australia was disposed of pursuant to a succession of Land Regulations. The forms to be used for Crown Grants were specified in the regulations and varied from time to time.

Clauses 16 and 17 of the 1887 regulations provided that -

all Crown Grants must contain a reservation to the Crown of all gold, silver and other precious metals in or under land the subject of each grant; and
the Governor could, in addition to the above reservations, reserve in Crown Grants alluvial metals, inferior metals, gems and jewels.

There were provisions in the Land Regulations 1887 relating to minerals lands, but these were repealed by the Mineral Lands Act 1892.

The 1887 regulations and associated forms made no reference to depth limitations in Crown Grants, nor were there references to reserving water rights to the Crown.

FROM 1 JANUARY 1899 to 6 MARCH 1934

The Land Act 1898 came into effect 1 January 1899 and repealed the pre-existing Land Regulations.

Section 15 of the Act provided that henceforth -

all Crown Grants must contain a reservation to the State of all gold, silver, copper, tin, or other metals, ore, mineral or other substances containing metals and all gems or precious stones, and coal, or mineral oil, and all phosphatic substances in or upon the land;
Crown Grants may be issued to a limited depth, reserving to the Crown all land below such depth; and
grantees of land nevertheless had the right to all wells and springs on such land, and to bore and sink wells to any depth, for water.

The Act prescribed forms to be used for Crown Grants.

Regulations published in the Gazetteof 17 March 1899 (effective from 1 January 1899) specified the following depths:

within Goldfields and Mining Districts - 40 feet
all other lands - 2000 feet

The Regulations were amended in the Gazetteof March 1906 (effective from 1 January 1907) as follows: -

within Goldfields and Mining Districts - 40 feet
all other lands - 200 feet

FROM 6 MARCH 1934 to 30 MARCH 1998

The Land Act 1933 commenced on 6 March 1934 and repealed the 1898 Act. Section 15 of the 1933 Act contained provisions in relation to mineral reservations, depth limitations and water rights in Crown Grants which were very similar to those in Section 15 of the 1898 Act. However, water rights were expressed to be subject to the provisions of the Rights in Water and Irrigations Act 1914.

Section 8 of the Rights in Water and Irrigations Act 1914 vests in the Crown the right to the use and flow, and the control of the water at any time in any water-course, lake, lagoon, swamp, marsh or spring.

“Spring” is defined by Section 2 of the Act as meaning a spring of water naturally rising to and flowing over the surface of the land. In 1984 the Act was amended by insertion of Section 26, extending the Crown’s rights to underground sources of water.

The Land Act 1933 prescribed forms to be used for Crown Grants as per the second and third schedule of the Act. These forms of Crown Grant could be and were modified from time to time by regulation.

The Land Regulations 1934, as gazetted on 2 March 1934, provided in clause 15 for depth limits as follows:

within Goldfields and Mining Districts - 40 feet
all other lands - 200 feet
or such other depths, in special cases, as the Minister in his discretion may direct.

FROM 30 MARCH 1998 TO THE PRESENT

The Land Administration Act 1997 commenced on 30 March 1998 and replaced the Land Act 1933.

While section 74(I)(g) of the Land Administration Act 1997 empowers the Minister to sell Crown land subject to reservations, there is no specific provision in relation to depth restrictions. The Act was drafted in this way because it had been determined that depth limits are no longer required, as:

section 9 of the Mining Act 1978 reserves to the State all mineral rights previously secured by section 117 of the Mining Act 1904; and
section 24 of the Land Administration Act 1997 reserve all minerals and petroleum to the Crown, when Crown land is disposed of in fee simple

Crown Grants are no longer used. Disposals of Crown land are now effected by transfers under the Transfer of Land Act 1893, from Crown land titles to fee simple Certificates of Title.

Purchasers of Crown land now receive ownership to unlimited depths.

Searching Information

Crown Grants issued prior to 1 July 1875 are filed in the Deeds Office and may be located by reference to the Land Index of the deed’s office.

To search Crown Grants issued after 1 July 1875, references to titles/grants are found by searching using the Crown Allotment reference.

The Crown Allotment reference provided by the Crown Allotment index is usually the volume and folio reference to a Crown Grant. However, for a limited number of Crown Grants issued between 1875 and 1920, the reference provided, may be a reference to a town or country grant (and not a Crown Grant volume and folio reference). Copies of these grants are also available.

Persons searching and 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 the first freehold Certificate of 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 the first freehold Certificate of Title created and registered upon the sale of Crown land.

12 Historical Searches

Landgate is one of the oldest State Government agencies. It was originally known as The Survey Office of Western Australia and created as early as 1829. We hold valuable State archives of historic titles, maps, charts, survey plans and an array of other historic records that date back to the first colonisation of the Swan River Settlement.

Historical records can provide:

ex-owner details and sales records
historic titles from 1875 (Torrens system)
detailed reports, including 'chain of title' searches
cancelled titles and public plans
historic maps with land tenure
crown surveys, leases and registers.

Historical records are useful for:

searching your own family history
researching past ownership of a property
finding sales history of a property
discovering past land use for development or environmental studies
understanding changes in land tenure or cadastral boundaries over time.

Searching Paper Certificates of Title

Historical information can be obtained from Landgate upon payment of the prescribed fee for this service.

Paper Certificates of Title list previous title numbers in the top left hand corner of a title, so persons conducting their own historical searches can obtain previous title references and searches by ordering the titles successively listed at the top of the left-hand side of paper titles.

The first freehold title issued will be noted as a Crown Grant, 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 reference shown in the top left hand corner of a paper title refers to a memorial book, previous land dealings recorded may be obtained by continuing the search in the Deeds Office.

Notice should be taken of any change in Crown Lot or Location numbers for the land in question, if there is a change to lot number or location is indicated, then a search of that amended lot or location should be considered.

Searching Digital Certificates of Title

Unlike paper Certificates of Titles, the digital title system does not retain an image of a previous version of a digital title, so it is not possible to source historical information from previous versions of titles.

To obtain history for a digital title, a digital history listing document can be obtained.

A digital history list shows any transaction that has occurred on a digital title since its creation. Digital titles only show current information, so to research the land transactions that have taken place since the title became digital, a digital history list is required.

The digital history list search will produce a list of all dealings that have affected the digital title. The digital history list will also indicate if a document was lodged for registration and it was subsequently withdrawn or rejected.

When a digital title is cancelled, the cancelled version of the title can be viewed and the Record (search) of Certificate of Title can be printed.

Click here for further information and a historical search request form

Click here to request a digital history list

13 Search Certificate

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 (sections 146 and 147 of the TLA). The application is made on a Search Certificate form, and the prescribed fee must be paid.

Click here to obtain a Search Certificate form

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.

14 Also See

REG-01 The Transfer of Land Act, REG-02 The Register, REG-04 Rectification in the Register and on Instruments (After Registration), REG-05 Service of Court Orders on the Register, NAM-02 Name Suppression, COT-01 Reading a Certificate of Title, SEA-01 Search Certificate

REG-04 Rectification in the Register and on Instruments (after Registration)

Version 1 - 14/07/2017

1 General

Under s.188 (2) of the Transfer of Land Act 1893 (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.

With digital titles however, all changes 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.

2 Street Address and Local Government Statements

Street address and Local Government statements contained on a digital title are held in separate databases from digital titles. 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.

REG-05 Service of Court Orders upon the Registrar

Version 2 - 07/11/2017

1 Overview

Where a Court Order affects land, the Registrar of Titles should be joined as a party to the action.

Writs of Summons and 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 (preferably an Assistant Registrar) from the Title Dealings Section of Landgate at the time of service.

Delivery of Court Orders to Landgate in another manner (fax, email, post, etc) does not constitute proper service upon the Registrar, unless the order itself specifically authorises service in that manner.

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

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 Services Contact Centre.

Note: For more information on Status Reports, see REG-05 Service of Court Orders on the Registrar.

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 Landgate customers 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.

4 Also see

- REG-02 The Register

- REG-04 Rectification in the Register and on Instruments (after Registration)

TYP-01 Types of Title to Land

Version 1 - 14/07/2017

1 Overview

Land in Western Australia is held by the Crown or in freehold. All land except freehold land is classified as Crown land, including reserved and leased Crown land, tidal waters, reclaimed land, river beds and lakes. Alienated land is land held in freehold. Also known as fee simple, it is the greatest estate that can be held by a person without being the absolute owner, which is the Crown.

1.1 Crown Grant

A Crown Grant is a title to land, where Crown land is transferred on behalf of 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 Land Administration Act 1997 (LAA) - the land or to 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. 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.

1.2 Freehold Land

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 Transfer of Land Act (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.

2 Certificate of Title

An official document indicating ownership of land is issued in the form of a Certificate of Title. Issued in paper or digital format, the Certificate of Title provides a record of the ownership of a defined land parcel, and the lodged or registered interests or claims (encumbrances) against that ownership.

2.1 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).

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

the name and address of the proprietor of the estate in respect of which the certificate is created and registered
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
a sufficient description of the land comprised in the certificate
encumbrances, easements, etc. to which the estate is subject
a reference to enable the previous title or grant to be found
the volume and folio number in the Register
the date of its registration

and

the seal of the Registrar of Titles.

Note: With the introduction of a digital register, a digital title 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, a paper certificate of title for some pieces of land will continue to exist.

2.2 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.

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 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.

3 Also see

- TYP-02 Crown Land

- TYP-03 General Law

TYP-02 Crown Land

Version 1 - 14/07/2017

1 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.

From 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 Transfer of Land Act 1893 (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, e.g. 16/1976.

With the introduction of the Land Administration Act 1997 (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.

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.

Note: Even though Year Numbered Crown leases are no longer issued, search copies of all those previously issued are available from Landgate.

2 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.

Note: For historical purposes, search copies of all Crown land records ever issued are available from Landgate.

3 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.

4 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.

5 Subsidiary Certificate of Crown Land Title

A Subsidiary 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 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.

6 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 title is over.

A person having a registered interest on a QSCLT does not by the certification of that interest, obtain a guaranteed (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.

7 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 LAA, 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.

8 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 (e.g. 17/1993) and dealings on the licences were numbered in the normal document system (e.g. F123456).

With the introduction of the LAA, licences under the Land Act 1933 are no longer issued. Licences have since been either converted to freehold or forfeited.

Note: Even though licences are no longer issued, search copies of all those previously issued are available from Landgate. 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.

9 Also see

- TYP-01 Types of Title to Land

TYP-03 General Law

Version 2 - 05/06/2020

1 Land under General Law

Any land alienated from the Crown before 1 July 1875 and not subsequently brought under the operation of the Transfer of Land Act (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 percent 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.

2 Nature of the System

The system comprises:

a copy of each of the original Crown Grants, known as an enrolment;
a nominal index comprising:
an index of surnames

and

a three-volume register of complete names;\an index to land comprising:
town lots
country locations

and

suburban lots
a journal of encumbrances
a journal of wills
a register of powers of attorney and deeds
a register of memorials for each volume

and

bound volumes of all memorials registered. The volumes are identified by a roman numeral, each memorial being numbered in sequence within the volume, e.g. Book XXVII No. 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:

Every memorial presented for registration shall:
- be prepared on good quality paper approved by the Registrar and having the dimensions of 330mm x 203mm
- be clearly and legibly handwritten in ink (preferably black or blue), printed or typewritten
- 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
- 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"

3.1 Lodgement Fees

Lodgement fees are payable on these document types. The lodgement fee is regulated by the Registration of Deeds Regulations 2004, Schedule 1 Division 1.¹

¹Updated to include section 3.1 Lodgement Fees 05/06/2020

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 Planning and Development Act 2005 (P&D Act).

5 Effect of Registration

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.

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.

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, e.g. 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.

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, e.g. 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.

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.

8 Licences, Deeds Poll and Applications to Register Change of 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 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.

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.

8.1 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 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.

8.2 Application to Register Change of Name

On 14 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.

9 Also see

- TYP-01 Types of Title to Land

- TYP-02 Crown Land

TYP-04 Bringing Land Under the TLA

Version 2 - 27/10/2020

1 Overview

Land which was alienated from the Crown before 1 July 1875 may be brought under the operation of the Transfer of Land Act 1893 (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.

¹These Application types by their nature are complex and will take an extended period of time for assessing and processing. Landgate’s steps and processes of these transaction types include but not limited too:

Initial examination and confirmation of the schedule of the chronology of the Deeds
Referral to Landgate’s In-house Surveyors to establish the boundaries and determine if a compiled Deposited Plan or Redefinition Plan is required by a licenced Surveyor
Referral to the Commissioner of Titles and Landgate’s In-house legal team for legal assessment and instruction
Requisitions for defects and/or deficiencies in the Application and supporting documentation, if required
Where these applications are granted by the Commissioner, a statutory advertising period, usually 21 days, applies.

¹Paragraph inserted on 27/10/2020

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)

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

where a person or corporation has been in possession of land for the required length of time under the Limitation Act 2005 (see Landgate policy and procedure guide POS-01 Adverse Possession).

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.

3 How to Apply

It is recommended that a blank instrument 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.

4 Form of Application

4.1 Form for Personal Application

WESTERN AUSTRALIA ^{Page 1 of 2 Pages}

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).

Dated this day of ^{Page 2 of 2 Pages}

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;
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, the applicant should sign before a

Notary Public;
Justice of the Peace; or
a Commissioner for taking Affidavits in the Supreme Court of Western Australia.

4.2 Form for Application by a Corporation

WESTERN AUSTRALIA ^{Page 1 of 2 Pages}

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 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).

Dated this day of Two Thousand and ^{Page 2 of 2 Pages}

Made and subscribed at ) (Signature of Director or Corporate Official)

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).

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 Landgate policy and procedure guide MTG-04, section 5: Discharge - Where the Mortgage Money has Been Paid and the Mortgagee is Dead or Absent from the State or Cannot Be Found)

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.

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.

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

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 mail to encumbrancers of the subject land, and the owners and occupiers 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 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 Landgate policy and procedure guide CAV-03, section 5: Caveat against Applications to Bring Land under the Operation of the TLA (Section 30). 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.

10 Land brought under the TLA by operation of other statutes

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.

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 above-mentioned 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).

Proprietor

ADD-01 Change of address

Version 2 - 04/10/2018

1 Overview

A registered proprietor is able to amend their address for service of notices as shown on the certificate of title by lodging a Change of Address form with Landgate. The Change of Address form is provided in electronic format (eForm). Alternatively, the existing PDF version of the NA1 form can be used if required. The form is available via the following link: https://www0.landgate.wa.gov.au/titles-and-surveys/forms-and-fees/land-titling-forms.

Two addresses should not be given for any person. The address of a corporation is the address of the registered office of that corporation.

It is desirable, but not essential, that the duplicate title (if any) be produced with a Change of Address.

There are no document registration fees for the lodgement of a Change of Address or Notification to Amend Address form.

With the introduction of the Change of Address e-form, there is no longer an inbuilt statutory declaration component to the form or the requirement to lodge a supporting statutory declaration.

2 By a Registered Proprietor with or without a Mortgage

A Registered Proprietor (who is not a company) can amend their address using the Change of Address e-form or the NA1 form, available via the following link: https://www0.landgate.wa.gov.au/titles-and-surveys/forms-and-fees/land-titling-forms. Multiple proprietors of the same land are able to apply on the same form.

If completing a Change of Address e-form, the following information will be required to be input:

the Land Description, Extent, Volume and Folio numbers
the name and former address of the Applicant(s) (this information can be pre-filled using the ‘Derive’ option)
the name and current address of the Applicant(s) (this information can be pre-filled using the ‘Derive from former applicant(s)’ option)
the date, and signature of the Applicant(s); and
a witness to the signature(s) of the Applicant(s) and the witnesses full name, address and occupation.

If an NA1 form is being used, the following information is required to be completed:

the Land Description, Extent, Volume and Folio numbers
the name of the Registered Proprietor(s) changing their address
the former and current addresses of the Registered Proprietor(s)
the date, and signature of the Registered Proprietor(s); and
a witness to the signature(s) of the applicant(s)/registered proprietor(s) and the witnesses full name, address and occupation.

3 By a Registered Proprietor who is a Company with or without a Mortgage

A Registered Proprietor, who is a company, can also amend their address using the Change of Address e-form or the NA1 form with the following differences to the above requirements:

the name and address of the registered proprietor(s) is to include the ACN number of the company; and
the document is executed by the company in accordance with the Corporations Act 2001.¹

¹ [Section 1-3 updated on 04/10/2018]

4 Amend Address for Service of Notice for a Caveator

The caveator may make application under s.240A of the Transfer of Land Act 1893 to change the address or fax number given on a caveat for service of notice. 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 caveator’s 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.

The application must be made on an Application Form and contain:

a description of the land caveated, Extent, Volume and Folio number
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
the date and signature of the caveator and witness (where the caveator is a company, the appropriate execution under the Corporations Act 2001 will be required.).

Standard document lodgement fees are payable for this Application.

5 Also see

- DOC-01 Document Preparation

BAN-01 Application by a Trustee in Bankruptcy (Section 234 of the TLA)

Version 2 - 29/12/2017

1 Overview

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 Transfer of Land Act 1893 (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 an Application Form, 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) and pursuant to section 234 of the Transfer of Land Act 1893."

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).

The application must be lodged and the trustee registered on the certificate of title before the trustee can dispose of the land. Once registered the land vests into the name of the trustee.

2 Evidence supporting an Application by the Official Trustee or Trustee in Bankruptcy

2.1 Duplicate Title

The duplicate certificate of title should be produced with this Application.

Where the title is encumbered by a Mortgage, the Mortgagee should produce the title to enable the vesting of the land into the Trustee. Alternatively, where the title in Non-Issue the Mortgagee should provide consent to a subsequent dealing (see COT-02 Duplicate title).

2.2 Statutory declaration

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.

2.3 Certificate of Appointment

An application by a Trustee in Bankruptcy must also be supported by an extract of the National Personal Insolvency Index (NPII).

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.

4 Execution of documents by a Trustee

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).

5 Transfer of Assets back to Discharged Bankrupt

The assets of a Bankrupt person vest into the Trustee. Where the bankrupt person(s) has satisfied/discharged the debt the Trustee should transfer the remaining asset(s) back to the bankrupt person.

CAP-01 Capacity of Parties

Version 1 - 19/03/2018

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 Transfer of Land Act 1893 (TLA) requires the Registrar to show the age of the minor on a certificate of title registered in the name of a minor.

Signed by (Name of the Minor) )

by (his or her) guardian ad litem )

(Name of Guardian) in ) (Signature of Guardian)

the presence of )

Witness

(Full Name, Address and Occupation)

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.

Note: The LAA makes no specific provisions with regard to minors dealing in Crown land.

1.1 Verification of Identity of a Minor

Where a minor is capable of executing a document that is a VOI compliant document they will be required to be identified using reasonable steps, similar to an adult. Where a Guardian or Parent sign on behalf of the minor, the process is similar to that of an Attorney signing.

2 Partnerships

A partnership involves two or more people (up to 20, with some exceptions) going into business together with a view to making a profit. In Western Australia, partnerships are governed by the Partnership Act 1895.

A partnership is not a separate legal entity. Each partner is fully responsible for debts and liabilities incurred on behalf of the business by other partners. The most commonly seen partnerships are those of Law Firms, but not limited to.

In almost all dealings in land by a partnership it 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 partnership may lodge caveats. the caveat should list all the members of a partnership by their individual names as caveators and show that they are operating as a partnership (by use of the trading name). The caveat is commonly signed by one of the Partners either as the Solicitor or Agent, but can be signed by all.

Under the rules of the Court, Property (Seizure and Sale) Orders can be issued showing the creditor as a partnership.

2.1 Removal of an encumbrance by a Partnership

The preparation and execution of a removal of a Property (Seizure and Sale) Order depends greatly on the option selected in the application to discharge - see PSS-02 Property (Seizure and Sale) Order - removal.

A withdrawal of caveat should name all the partners individually as shown on the certificate of title. It is preferable that all the partners sign the document, however a single partner may sign on behalf of all using an appropriate execution clause, such as:

Signed by…………..

as Partner for …………….

In the presence of (witness).

Where one partner executes a document on behalf of all the other partners, the partner executing the document must provide a statutory declaration setting out a list of the partners and declare that they have authority from each of the other partners to execute the document (specify the document) on their behalf.

CAP-02 Incapable Persons

Version 4 – 03/08/2020

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.

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.

Note: On 4 May 2005, the State Administrative Tribunal (SAT) came into being and took over the judicial and adjudicative functions of the Board.

3 Orders (SAT)

Orders issued by the State Administrative Tribunal (SAT) may grant all or limited powers under the Act to a person. The Order may also include provisions to revoke a previously appointed person under and Enduring Power of Attorney (EPA). Where such Orders are presented/deposited with the Registrar the EPA will be revoked and a Registrar’s Caveat pursuant to section 188 of the TLA may be noted on the title of the incapable person.

As of 2017, Orders issued by SAT are issued electronically.

4 Dealings by a Manager or Administrator

A document 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 or Australia Post certified copy of the Order under which the manager or plenary administrator proposes to act and statutory declaration. Care should be taken that the powers given by the Order are not exceeded and that the terms of the Order are strictly observed.

In each instance where a document is deposited, the document must be supported by a statutory declaration by the manager or plenary administrator. The statutory declaration should state the following minimum facts/statements:

the relationship between the parties and reference to the Order
the land being dealt on
that the incapacity still existed
the incapable person was still alive
that the appointment had not been revoked or varied
at the time of signing the instrument the incapacity still exists.

The statutory declaration should be made within seven (7) days¹ of lodgement of the instrument at Landgate.

¹[amended from "two (2) days" to "seven (7) days" on 04/09/2019]

If lodging an electronic document via an Electronic Lodgement Network Operator (ELNO), a copy of the declaration and Order must be uploaded and attached to the document prior to lodgement. The original evidence must be retained by the Subscriber in accordance with the retention of evidence requirements in the Western Australian Participation Rules for electronic conveyancing.²

²Paragraph inserted 03/08/2020

4.1 Execution samples

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 ) (signature of Manager)

person) pursuant to an Order of the )

Supreme Court of Western Australia )

(Order number) made the (date of order) in the )

presence of )

Witness

(Full Name, Address and Occupation)

Signed by (name of Administrator) )

as the Plenary Administrator of (name of )

incapable person) pursuant to an order ) (signature of Administrator)

of the State Administrative Tribunal )

(order number) made the (date of order) )

in the presence of )

Witness

(Full Name, Address and Occupation)

5 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.

5.1 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.

5.2 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.

5.3 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.

5.4 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 person’s 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.

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)).

6 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 GA 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 its 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-exist.

7 Also see

- TFR-03 Transfers by or to an Executor/Administrator

DEC-01 Deceased Proprietor

Version 1 - 27/07/2017

1 Overview

In the event of the death of a registered proprietor of a property, the type of tenancy shown on the record of Certificate of Title will determine which application form needs to be completed and the documents required to support the application. It is highly recommended that a Certificate of Title search is conducted to confirm the tenancy type and to assist in the completion of the required documentation.

2 Types of Tenancy shown on a Record of Certificate of Title

2.1 Joint Tenants

Where two or more owners own land as "joint tenants" the ownership of the land transfers to the other joint tenant/s recorded on the title following the passing of a joint tenant. This is commonly referred to the right of survivorship.

If you are a joint tenant it means:

you and the other owners jointly own the property
there are no specified shares
if one owner dies, the other owner/s automatically acquire that person's interest

Recording the passing of a joint tenant with Landgate requires the lodgement of a Survivorship application. Click on the following link for detailed information on this process: Survivorship - Joint tenants

2.2 Tenants in Common

Tenants in common is where there are two or more owners of land and where each owner owns an individual share of the whole of the property.

If you are a tenant in common, it means:

you own a share of the whole of the property
your share is an individual share, separate from the other owners
If you pass away, your share of the property is generally distributed in accordance with your will (if you have a will) or under the Administration Act if you don’t have a will.

An executor/s or an administrator/s will need to be appointed to take control of the estate of a deceased proprietor where they registered as a tenant in common on the title.

The executor/s or administrator/s will need to apply for Probate or Letters of Administration from the Probate Office in WA before any documents can be lodged with Landgate to transfer the ownership of the property.

Recording the passing of a tenant in common with Landgate requires the lodgement of an Application by Personal Representative. Click on the following link for detailed information on this process: Personal Representative

2.3 Sole Registered Proprietor

If you are the only owner of a property, it generally means your share of the property will be distributed in accordance with your will when you pass away (if you have a will) or under the Administration Act if you don’t have a will.

An executor/s or an administrator/s will need to be appointed to take control of the assets and the property you own when you pass away.

Recording the passing of the sole Registered Proprietor with Landgate will require the lodgement of an Application by Personal Representative. Click on the following link for detailed information on this process: Personal Representative

3 Also see

- DEC-02 Survivorship Applications

DEC-02 Survivorship Applications

Version 7 - 20/10/2020

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 the VOI webpage.

1 On Death of a Joint Tenant⁴

Where any person registered with another as a joint tenant dies, the surviving joint tenant(s) must apply to be registered as the surviving proprietor(s) 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.

In support of a Survivorship Application the following must be produced:

Evidence of death; and
Duplicate Certificate of title (where applicable; and
Statutory Declaration

Evidence of Death – usually the original death certificate issued by Births, Deaths and Marriages, sighted by Landgate, or certified by Australia Post, a licensed settlement agent or legal practitioner. An original grant of probate or letters of administration of the deceased issued by the Probate Office is also acceptable evidence.

Where evidence of death is issued in a foreign country, the original evidence must be issued and certified by the official authority that would be the equivalent of the Registry of Births, Deaths and Marriages in WA.

Where the evidence is printed in a foreign language, the original evidence (or certified copy that is certified by the issuing authority only) must be translated by a person who has a "NAATI" accreditation from the National Accreditation Authority for Translators and Interpreters and a translated version plus the original/certified version will need to be produced.

If providing the original evidence to Landgate, the original evidence will be copied and the copy will be noted as “Landgate sighted”. The original/certified evidence will be returned to the lodging party and the “Landgate sighted” copy and the official translated version of the evidence is then lodged with the document/s.

Duplicate Certificate of Title - The duplicate certificate of title to the land (where applicable), or third-party consent where no duplicate title has issued

Statutory Declaration - A statutory declaration form B3 by the surviving joint tenant(s) or his or her personal representative or by one or more of the surviving joint tenants if more than one. This declaration should:

identify the declarant(s); and
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; and
contain the statement:
- "I am (we are) registered as a joint tenant of the land, (lease, charge, mortgage) described above".
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. The full name and address of the deceased as shown on the Certificate of Title must be stated. A suitable clause may read “The person shown as (full name) of (address as shown on the Certificate of Title) on Certificate of Title Volume XXXX Folio XXX is one and the same as (deceased full name) described on the death certificate.” It is not necessary to amend the name of the deceased where there is a discrepancy between the evidence of death and certificate of title, however any differences in the name or address of the deceased or the surviving joint tenant(s) must be explained in the statutory declaration; and
contain the statement “The joint tenancy with the deceased proprietor of the land and/or interest described above has not been severed at the date of death of the deceased proprietor”.

NOTE: Where tenancy has been severed due to simultaneous death please see DEC-03 Transmission Application for more information³

³Note added 06/07/2020

⁴Section rewritten 20/10/2020

1.1 Amend Name of Surviving Joint Tenant

An application to amend name may be required where the surviving joint tenants name differs in any way from that shown on the Register.

Alternatively, the operative wording of the survivorship application form can be modified to request the title be amended to show the correct name of the surviving joint tenant (see Form Example 4).

2 Who May Apply

The following persons may apply to be registered as proprietor by survivorship:

all the surviving joint tenants
the sole surviving joint tenant
where all joint tenants are deceased the executor or administrator of the last surviving joint tenant on behalf of that joint tenant
the surviving executor/administrator/trustee when registered as proprietor with a deceased co-executor/co-administrator/co-trustee
the surviving joint tenant when registered as joint tenants with a corporation that has been liquidated

and

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 Form 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.

2.1 Death of Multiple Joint Tenants

Where more than one joint tenant has died, the surviving joint tenant(s) can make one application and list all of the deceased co-proprietors in the deceased proprietor panel.

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.

4 On Death of a Life Tenant

Where a Joint Life Tenant dies, the surviving Joint Life Tenant should complete an Application by Survivorship, see paragraph 1 of this Topic. Where a Life Tenant dies and the person holding the remainderman is seeking the removal of the deceased sole Life Tenant, refer to paragraph 5 in policy and procedure guide TFR-06 Life Estates.¹

¹[Guide updated on 17/10/2018 to provide greater details.]

5 Death of a Joint Encumbrance Holder

Where an encumbrance holder of a Mortgage, Charge or Lease dies and where they hold the interest jointly, a Form Application by Survivor should be used.

The effect of the application is to remove the deceased encumbrance holder, leaving the surviving interest holder to hold the interest solely. The debt or interest can then be discharged or surrendered by the surviving interest holder, or as the case may be.

The evidence requirements are the same as survivorship application (Form Application by Survivor), being a statutory declaration and the office copy or the original Death Certificate (see above).

The production of the relevant duplicate certificate of title (if any) is not essential but it is desirable.²

²[Guide updated on 30/08/2018 to insert new sentence]

6 Lodgement via an Electronic Lodgement Network (ELN)⁵

An industry professional who is a Subscriber to an ELN, may lodge a Survivorship Application electronically.

Evidence to support the application, such as statutory declaration and evidence of death, are required to be obtained, uploaded and attached to the application prior to lodgement.

If a duplicate certificate of title exists, the Subscriber must certify that it has been retrieved and either destroyed or made invalid prior to the lodgement of the application. If the title is “non-issue”, and the property is mortgaged, the consent of the mortgagee must be uploaded and attached to the application.

Survivorship applications will continue to be accepted for lodgement in paper and do not require a Request to Accept Paper Lodgement coversheet

⁵Section added 20/10/2020

7 Also see

- DEC-01 Deceased Proprietor

- DEC-03 Transmission Applications

DEC-03 Transmission Applications

Version 3 – 06/07/2020

1 Transmission Applications (Section 219 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 the VOI webpage.

1.1 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:

An office copy or the original Grant of Probate or Letters of Administration as issued by the Probate Office or a Landgate Sighted copy or Australia Post certified 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:
- A copy of a Grant of Probate or Letters of Administration certified by a Justice of the Peace or Solicitor is not acceptable.
- 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.

The duplicate certificate of title (if any). Where the title is encumbered by a Mortgage and the title is Non-Issue, the Mortgagee must provide consent on letterhead consenting to the change in ownership.

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.

1.2 Statutory Declaration

Where an Application is to be accompanied by a statutory declaration the declaration should coved the following minimum points:

Identify who is making the Application and in what capacity.
Identify who the registered proprietor is/was.
Identify the land the subject to the Application by legal land description (Lot on Plan and Volume/Folio)
Reference to the date of death and date of issue of Grant of Probate / Letter of Administration.
The (name of deceased) of (address) as shown on the Certificate of Title is one and the same person as (name and address) as shown on the Grant of Probate / Letters of Administration.

1.3 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.

1.4 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
the administrator or executor of a deceased administrator
the administrator or executor of a deceased proprietor holding the land as Trustee.

They have, however a power to appoint a new trustee under s.7 of the Trustees Act 1962, see VES-01 Vesting Orders. Alternatively, a new application at the Court can be made for a Grant of Letters of Administration for the original estate.

2 Endorsement on Title

The name of the deceased proprietor noted on the Grant of Probate or Letters of Administration is deemed to be the true legal name, irrespective of the name on the certificate of title or contained in the Will.

The name of the deceased registered proprietor as shown on the Grant of Probate or Letters of Administration should be stated in the Deceased Registered Proprietor panel of the Application with the reference to any variations of the name. For example:

John Patrick Citizen (incorrectly shown as John Citizen) of …. (address as shown on the title)

Upon registration of the Application the primary name of the deceased will be shown as stated on the Grant of Probate or Letters of Administration followed by any variations. For example:

As Executor of the Will of John Patrick Citizen (also known as John Citizen) who died on ….

As a general rule the endorsement shown on the certificate of title should follow what is described on the Grant of Probate or Letters of Administration.

3 Death of an Encumbrance Holder

Where the sole holder of a Mortgage, Charge or Lease dies or where interest holders have specified the interest is held in shares (like tenants in common), a Form Application By Personal Representative should be used.

The effect of the application is to place the Executor or Administrator of the deceased encumbrance holder as the absolute proprietor of the interest being dealt with. The debt or interest can then be discharged or surrendered by the Executor or Administrator.

The evidence requirements are the same as transmission application, being a statutory declaration and the office copy or the original Grant of Probate or Letters of Administration, see above.

The production of the relevant duplicate certificate of title (if any) is not essential but it is desirable.

4 Simultaneous Death of Joint Tenants¹

Where persons hold land as joint tenants and both die at the same time or where it is not possible to determine which of the deceased died first, the joint tenancy may be severed, resulting in the requirement to lodge two (2) Transmission Applications with supporting evidence. A statutory declaration by the Medical Officer/Examiner having knowledge of the deaths with reference to the Coroner Report and findings is required to accompany the Applications. A copy of the Coroner Report may also be required.

The supporting statutory declaration should include (in addition to standard clauses) a statement or statements that the deceased persons died at the same time or in circumstances that give rise to doubts as to which of them survived each other.

Where time of death can be established the traditional Survivorship and Transmission Applications should be lodged, except where a crime has been committed, ie murder / suicide (see DOC-05 Tenancy for more information)

¹Section 4 added 06/07/2020

5 Also see

- DEC-01 Deceased Proprietor

- DEC-02 Survivorship Applications

- DOC-05 Tenancy

FOR-01 Foreclosure(Section 121 of the TLA)

Version 1 - 26/02/2018

1 Overview

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.

2 How to Apply

The application is made by the mortgagee on a blank 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 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.

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 TFR-08 Transfer by Mortgagee, Debenture Holder or Annuitant (Chargee) Exercising Power of Sale 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.

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 e.g. a Post Office receipt, which should show the full names of the mortgagor and the full address (refer to DOC-02 Parties to Documents - name and address requirements 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.

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.

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.

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.

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.

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.

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 Revenue WA (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.

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.

NAM-01 Name Amendment

Version 5 - 03/08/2020

Contents

1 Overview

2 Form to Use

3 Evidence Required to Support a Change of Name

4 Exceptions to Lodging an Application to Amend Name.

5 Applications Signed by Attorneys

6 Duplicate Certificates of Title

7 Simple or Minor Amendment of Name

8 Amendments of Name to Correct and Error (not a simple error)

9 Change of Name after Marriage

10 Return to Birth/Maiden Surname

11 Amendment of Name by Change of Name Certificate

12 Change of Name by Repute and Usage

13 Change of Name of a Company/Corporation or Incorporated Association

14 Change of name by Licence to Change Name or Deed Poll

1 Overview

Where a registered proprietor is shown in the Land Title Register “land title” by other than their full true and correct name then, as a general rule (for exceptions see paragraph below under that heading) their land title should be amended to show the proprietor’s true and correct name.

Similarly, if a proprietor adopts a new surname after a marriage or they have changed their name by change of name certificate, the land title should be updated to show their new true and correct name/s.

Proprietors lodging documents to amend their name should also check the original land title maintained by Landgate to confirm the address shown in the registered proprietors section of the title is a current address (note this is the address for service of notices by Landgate). Where the address is out of date, the proprietor/s can update their address and their name in one document.

The names of registered interests on land titles can also be amended where applicable and the same general principles discussed in this chapter apply to name changes for registered interest holders (such as a name of a mortgagee).

2 Form to Use²

Change of name application is prepared on an electronic application form and then printed for lodgement with the required evidence, with a statutory declaration and evidence to support the change of name.

Click on the following link to access the electronic form: https://www0.landgate.wa.gov.au/titles-and-surveys/forms-and-fees/land-titling-forms.

Industry professionals can lodge a change of name document electronically via an Electronic Lodgement Network Operator (ELNO).

Registration fees are payable when lodging a document to amend a name/s.

²Section updated 03/08/2020

3 Evidence Required to Support a Change of Name³

Evidence to support a name change varies according to the reason for the change of name, however in nearly every instance the evidence required to support a change of name will need to be the original documentation from the authority who maintains the name records for that State or Country. In WA the certificate required would need to be obtained from the Registry of Births, Deaths and Marriages.

Foreign certificates, such as birth and/or marriage certificates are accepted as evidence, however the certificate must be the certificate issued by the official authority that would be the equivalent of the Registry of Births, Deaths and Marriages in WA.

Generally, the following original certificates can be used as evidence for a change of name:
- Birth Certificate
- Marriage Certificate
- Change of Name Certificate
- Australian Citizenship Certificate
- Deed Poll
- License to Change Name
The following documentation is generally not acceptable as evidence to support a change of name on a land title (except for a change of name by repute and usage):
- Passport
- Driver's License
- Credit Cards
- Bank Statements
- Any other card issued by a Government Authority

Evidential requirements are discussed in detail in the sections below.

The original certificate can be:
- sighted by Landgate and returned at lodgement; or
- taken to Australia Post who will provide a certified copy for a fee. That certified copy must then be provided to Landgate at lodgement; or
- certified by a legal practitioner or licensed settlement agent who will follow the steps outlined in "DOC-04 Statutory Declarations and Supporting Evidence"
Where a certificate is printed in a foreign language, the original/certified certificate must be translated and a translated version, plus the original/certified certificate will need to be produced to Landgate.
The translated certificate with official translation noted will be retained by Landgate as evidence to the name change.
A foreign certificate will need to be translated by a person who has a “NAATI” accreditation from the National Accreditation Authority for Translators and Interpreters.

Note: A copy certified by a Justice of the Peace or any other person who make take declarations is not acceptable as evidence.

Evidence for ELNO lodgements by industry professionals

Evidence to support the lodgement of an electronic Change of name document via an ELNO does not need to be uploaded and attached to the document but must be retained by the Subscriber in accordance with the WA Participation Rules.
Where a certificate is printed in a foreign language, the original/certified certificate must be translated, and a translated version will need to be retained by the Subscriber in accordance with the WA Participation Rules. A foreign certificate will need to be translated by a person who has a “NAATI” accreditation from the National Accreditation Authority for Translators and Interpreters.
Subscribers may certify copies of evidence that they retain and do not need to produce the evidence to Landgate or Australia Post for sighting/certifying prior to retention.

³Section updated 03/08/2020

4 Exceptions to Lodging a Document to Amend Name⁴

There are exceptions to the requirement to lodge a document to amend name. Where a proprietor or registered interest holder has changed names, a separate document to amend their name is not required if they are dealing with the whole of their interest in the certificate of title and are lodging any of the following documents:

A transferor in a transfer of land¹
A survivorship application
An application by personal representative
A vesting application
A discharge of mortgage (for name of mortgagee only)
An application for a replacement duplicate title
An application to register a deposited plan, strata plan or survey-strata plan
A caveator in a withdrawal of caveat

If lodging any of the above documents, the change of name can be recorded by noting the name change in the appropriate panel and by providing the same evidence that would be produced where an application to amend name was being lodged.

The document should refer to the new name and include reference to the former name that is shown on the land title.

For example: A [new name] of [address] formerly known as B [former name].¹

¹[Guide updated on 04/10/2018 to add 'A transferor in a transfer of land' and include an example]

When a justification of change of name is made in a document lodged via an ELNO, the evidence does not need to be uploaded and attached to the document, but must be retained by the Subscriber in accordance with the WA Participation Rules.

⁴Section updated 03/08/2020

5 Applications Signed by Attorneys

Applications are occasionally signed by attorneys on behalf registered proprietors or other interest holders. If an application to amend name is being signed by an attorney, the Power of Attorney “P/A” or Enduring Power of Attorney “EPA” document must be lodged (deposited) with Landgate to enable the attorney to sign documents. Registration fees are payable when lodging a P/A or EPA.

6 Duplicate Certificates of Title

Duplicate certificates of title for paper lodgements

The duplicate Certificate of Title for the property (where issued) must also be provided with the application to amend name.

If issued and there is no mortgage on the property, the hard copy duplicate title must be produced with the application document.
If issued and the property is under mortgage the lender holding the mortgage (mortgagee) will need to produce the duplicate title to Landgate before the application can be lodged. Note: there will be additional registration fees payable, refer to duplicate title production fee in the fee schedule.
If the duplicate title has a status of “non-issue” and the property is under mortgage, the consent of the lender (mortgagee) is required to be provided on an originally signed letter of consent from the lender (mortgagee).
If the status of the duplicate title is non-issue and the property is not under mortgage, then the original signed application document, together with relevant evidence.

Duplicate certificates for ELNO lodgements via an industry professional⁵

The duplicate Certificate of Title for the property (where issued) must be retained by the Subscriber and destroyed or made invalid.

If the duplicate title has a status of “non-issue” and the property is under mortgage, the consent of the mortgagee is required to be provided on an originally signed letter of consent that is retained by the Subscriber in accordance with the WA Participation Rules.

⁵Section added 03/08/2020

7 Simple or Minor Amendment of Name

A simple or minor change of name is where an existing registered proprietor’s name is being amended on a title due to an error or omission.

A simple error is where only one change is being made to the name of a proprietor or registered interest holder.

Examples of a simple error or omission in the name of a registered proprietor include:

Where the names are shown out of order, for example:

Jeffery Robert Brown being changed to Robert Jeffery Brown;
Nguyen Minh Thi being changed to Minh Thi Nguyen.

Where a Christian name has been omitted, for example:

Brendan Jones being changed to Brendan Phillip Jones;
Anne Smith being changed to Anne Joy Smith.

Note: If a person was changing the spelling of a name and adding an additional Christian name, this is two changes to a name and does not qualify as a simple amendment. For example, if a land title shows a registered proprietor as Fred Jones and the true and correct name is Fredrick Neal Jones, this is not classified as a simple error as there are two changes to the name registered on the land title.

Refer to section 8 Amendments of Name to Correct and Error (not a simple error) of this guide for information on how to complete the change of name application.

7.1 Forms to Complete

A registered proprietor (or other interest holder) changing their name due to a simple error must complete and provide:

An application form. (All forms are available by clicking on this link: https://www0.landgate.wa.gov.au/titles-and-surveys/forms-and-fees/land-titling-forms)
A statutory declaration (Form B3) duplicate Certificate of Title and/or consent (as applicable)
Registration fees which are payable when lodging the application form with Landgate (See: Search and Lodgement Fees.)

7.2 Statutory Declaration

The statutory declaration must state the following:

The true and correct name, address and occupation of the declarant (the person/s making the declaration)
The status of the person making the declaration in relation to the Certificate of Title and the legal land description for the property (e.g. I am one of the registered proprietors of the land being lot 1 on plan 1234, the land in Volume 1234 Folio 567, where I am described as ……) (if applicable include reference to mortgage, lease charge)
State your true and correct name
State how the error, omission or addition occurred (to the best of the applicant’s knowledge).
State that the declarant is identical with and one and the same person as the person described and status as currently described on the land title (e.g' the person shown on the Certificate of Title described above as Steven Jones is one and the same person as Stephen Jones the declarant and the applicant)

Click on this link for an information brochure which provides examples of the completed application form and a statutory declaration (for registered proprietors): Change Name due to a Simple Error.

7.3 Attorney Signing the Application

The applicant shown in the application panel is the person who is changing their name (not the name of the attorney)

A suitable attorney signing clause must be inserted in the application.
If signed by an attorney, the P/A or EPA must be registered (deposited) with Landgate

See: Policy and Procedure Guide SIG-08 Signing by an Attorney under (Enduring) Power of Attorney.

7.4 Duplicate Certificate of Title

The duplicate Certificate of Title for the property (where issued) must also be provided with the application to amend name.

If issued and there is no mortgage on the property, the hard copy duplicate title must be produced with the application document.
If issued and the property is under mortgage the financier holding the mortgage will need to produce the duplicate title to Landgate before the application can be lodged. Note: there will be additional registration fees payable, refer to duplicate title production fee in the fee schedule.
If the duplicate title has a status of “non-issue” and the property is under mortgage, the consent of the financier (mortgagee) is required to be provided on an originally signed letter of consent from the lender (mortgagee).
If the status of the duplicate title is non-issue and the property is not under mortgage, then the original signed application document, together with relevant evidence.

Registration fees are payable when lodging an application to amend one or more names.

Note: Evidence is not usually required to be provided for an amendment of name due to a simple error, the statutory declaration is usually the only evidence required.

8 Amendments of Name to Correct and Error (not a simple error)

Amendments to the name of a registered proprietor or registered interest holder that will result in more than one change to the name that is currently shown on a title is not considered to be a simple error.

To support the change of name on the land title, evidence of the true and correct name of the proprietor or interest holder will need to be provided with the application and statutory declaration.

There are strict evidential standards applied to applications to amend names, generally passports, driver’s licenses and other identity cards are not acceptable as evidence to establish the true and correct name of a proprietor or registered interest holder (except by change of name by repute and usage).

In some situations, where evidence of the true and correct name is difficult to obtain, it would be appropriate to contact the Registry of Births, Deaths and Marriages to discuss the options to officially change a name.

Further information on the change of name process is available by clicking on this link: http://www.bdm.dotag.wa.gov.au which will direct you to the Registry of Births, Deaths and Marriages in WA.

8.1 Forms to Complete and Evidence to be Provided

A registered proprietor (or other interest holder) changing their name due to errors must complete and provide:

an application form. (All forms are available by clicking on this link: https://www0.landgate.wa.gov.au/titles-and-surveys/forms-and-fees/land-titling-forms)
a statutory declaration (Form B3)
original or certified birth, marriage, change of name certificate or an Australian Citizenship Certificate (or other evidence) showing true and correct name
duplicate Certificate of Title and/or consent (as applicable)
registration fees which are payable when lodging the application form with Landgate. (See: Search and Lodgement Fees.)

8.2 Statutory Declaration

The statutory declaration must state the following:

The true and correct name, address and occupation of the declarant (the person/s making the declaration)
The status of the person making the declaration in relation to the Certificate of Title (e.g. as one of the registered proprietors) and how they are currently described on the title, including reference to the incorrect name (and former address if applicable)
The legal land description of the land title/s and the volume and folio reference (e.g. lot 124 on deposited plan 74587, volume 3000 folio 124) and if applicable, the number of the mortgage, charge or lease of land.
State your true and correct name and provide evidence of the true and correct (e.g. provide an original birth certificate)
State how the errors and/or omissions to the name being changed originally occurred, why the wrong name is registered on the land title.
That the declarant and person shown in the evidence provided is identical with and one and the same person as the person described on the land title (e.g. the person shown on the Certificate of Title as Steven Jones is one and the same person as Steven Alan Jones shown on the birth certificate and as the declarant and the applicant)

8.3 Attorney Signing the Application

Refer to section 7.3 Attorney Signing the Application of this guide.

8.4 Duplicate Certificate of Title

Refer to section 7.4 Duplicate Certificate of Title of this guide.

9 Change of Name after Marriage

Any person who marries in Australia may choose to assume their spouse's surname. This is done as a matter of custom and not of law.

There is no obligation on any married person to adopt their partner’s surname following their 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, then the adopted name is the only name that is used from the time of changing their name.

If a person has changed their name following marriage and is registered as an owner of land or has an interest registered on a land title in a former name, it would be prudent to consider updating the name registered on the land title.

Where two proprietors of the same land have both changed their names following marriage, the names of both proprietors or interest holders can be changed in one application.

9.1 Forms to Complete and Evidence Required

A registered proprietor changing their name by marriage must complete and provide:

an application form. (All forms are available by clicking on this link: https://www0.landgate.wa.gov.au/titles-and-surveys/forms-and-fees/land-titling-forms)
statutory declaration
a certified copy of the marriage certificate. The certified copy of the certificate must be issued and certified by the Registry of Births, Deaths and Marriages in WA (or equivalent office if outside of WA): Refer to section 3 Evidence Required to Support a Change of Name of this guide.
duplicate Certificate of Title and/or consent (as applicable)
registration fee which is payable at lodgement. (See: Search and Lodgement Fees.)

There is a fee payable to Australia Post for this service.

9.2 Statutory Declaration

The applicant must provide a statutory declaration stating:

The true and correct name, address and occupation of the declarant (the person/s making the declaration)
The status of the person making the declaration in relation to the Certificate of Title (e.g. as one of the registered proprietors) and how they are currently described on the title, including reference to former name (and address if applicable)
The legal land description of the land title/s and the volume and folio reference (e.g. lot 124 on deposited plan 74587, volume 3000 folio 124) and if applicable, the number of the mortgage, charge or lease of land.
The full name of the person to whom the applicant was married and when, including a statement that a certified copy of the marriage certificate is being provided with this declaration
The new true and correct married name following the marriage
That the person (full name) described on the Certificate of Title (include status or capacity e.g. as registered proprietor) is identical with and one and the same person as the person (full name) described on the marriage certificate.

Note: Check the name shown on the marriage certificate carefully, the name shown is usually the former name of the person being married and not the new married name.

Click on this link for an information brochure which provides examples of the completed application form and a statutory declaration (for registered proprietors): Change Name following Marriage.

9.3 Attorney Signing the Application

Refer to section 7.3 Attorney Signing the Application of this guide.

9.4 Duplicate Certificate of Title

Refer to section 7.4 Duplicate Certificate of Title of this guide.

10 Return to Birth/Maiden Surname

There is no legal requirement to formally change the name of any person wishing to change their name back to their maiden name (surname at birth or adoption).

However, to avoid difficulties with obtaining recognition of a birth name, the Registry of Births, Deaths and Marriages in WA recommends registering a change of name.

Further information on the change of name process is available by clicking on this link: http://www.bdm.dotag.wa.gov.au which will direct you to the Registry of Births, Deaths and Marriages in WA.

If a person who has changed back to their maiden name is registered as an owner of land or has an interest registered on a land title in a former name, it would be prudent to consider updating the name registered on the land title.

10.1 Forms to Complete and Evidence Required

A registered proprietor changing to their birth/maiden name must complete and provide:

an application form. (All forms are available by clicking on this link: https://www0.landgate.wa.gov.au/titles-and-surveys/forms-and-fees/land-titling-forms)
a statutory declaration (Form B3)
an original/certified copy of the birth certificate. The original/certified copy of the certificate must be issued and certified by the Registry of Births, Deaths and Marriages in WA (or equivalent office if outside of WA) Refer to section 3 Evidence Required to Support a Change of Name of this guide.
duplicate Certificate of Title and/or consent (as applicable)
registration fee which is payable at lodgement. (See: Search and Lodgement Fees.)

10.2 Statutory Declaration

The applicant must provide a statutory declaration stating:

The true and correct name and address and occupation of the declarant (the person/s making the declaration)
The status of the person making the declaration in relation to the Certificate of Title (e.g. as one of the registered proprietors) including reference to former name (and address if applicable)
The legal land description of the land title/s and the volume and folio reference (e.g. lot 124 on deposited plan 74587, volume 3000 folio 124) and if applicable, the number of the mortgage, charge or lease of land.
The true and correct name given at birth including a statement that a certified copy of the birth certificate is being provided with this declaration
The date (on or around) they changed back to their maiden name
That the person (full name) described on the Certificate of Title (include status or capacity, e.g. as registered proprietor) is identical with and one and the same person as the person (full name) described on the birth certificate.

Click on this link for an information brochure which provides examples of the completed A5 application form and a statutory declaration (for registered proprietors): Change Name to your Birth Name.

10.3 Attorney Signing the Application

Refer to section 7.3 Attorney Signing the Application of this guide.

10.4 Duplicate Certificate of Title

Refer to section 7.4 Duplicate Certificate of Title of this guide.

11 Amendment of Name by Change of Name Certificate

In Western Australia, an adult person may change their name by completing a change of name (adult) application form with the Registry of Births, Deaths and Marriages.

Change of name certificates were introduced in 1998. Prior to this date, changes of name were registered with the Registry of Births, Deaths and Marriages by license to change name and by deed poll.

Further information on the change of name process is available by clicking on this link: http://www.bdm.dotag.wa.gov.au which will direct you to the Registry of Births, Deaths and Marriages in WA.

If a person who has changed their name (by official registration at the Registry of Births, Deaths and Marriages) is registered as an owner of land or has an interest registered on a land title, it would be prudent to consider updating the name registered on the land title.

11.1 Forms to Complete and Evidence Required

A registered proprietor returning to their maiden surname must complete and provide

an application form. (All forms are available by clicking on this link: https://www0.landgate.wa.gov.au/titles-and-surveys/forms-and-fees/land-titling-forms)
a statutory declaration (Form B3)
an original/certified copy of the change of name birth certificate. The original/certified copy of the certificate must be issued and certified by the Registry of Births, Deaths and Marriages in WA (or equivalent office if outside of WA) Refer to section 3 Evidence Required to Support a Change of Name of this guide.
duplicate Certificate of Title and/or consent (as applicable)
registration fee which is payable at lodgement. (See: Search and Lodgement Fees.)

11.2 Statutory Declaration

The applicant must provide a statutory declaration stating:

The true and correct name and address and occupation of the declarant (the person/s making the declaration)
The status of the person making the declaration in relation to the Certificate of Title (e.g. as one of the registered proprietors) and how they are currently described on the title, including reference to former name and former address (address where applicable)
The legal land description of the land title/s and the volume and folio reference (e.g. lot 124 on deposited plan 74587, volume 3000 folio 124) and if applicable, the number of the mortgage, charge or lease of land.
The true and correct name given at birth including a statement that a certified copy of the birth certificate is being provided with this declaration
The approximate date they changed back to their maiden name
That the person (full name) described on the Certificate of Title (include status or capacity, e.g. as registered proprietor) is identical with and one and the same person as the person (full name) described on the birth certificate.

Click on this link for an information brochure which provides examples of the completed A5 application form and a statutory declaration (for registered proprietors): Change Name to your Birth Name.

11.3 Attorney Signing the Application

Refer to section 7.3 Attorney Signing the Application of this guide.

11.4 Duplicate Certificate of Title

Refer to section 7.4 Duplicate Certificate of Title of this guide.

12 Change of Name by Repute and 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 is seeking to change their name by repute and usage and they permanently reside in Western Australia, changing to the repute and usage name on the land title can be a difficult process as Landgate applies strict evidential standards to prove the change in name.

As Landgate’s evidential standards may make changing a name on a land title by repute and usage difficult, any person changing their name by repute and usage may wish to consider the change of name process provided by the Registry of Births, Deaths and Marriages as an alternative to changing a name by repute and usage.

Further information on the change of name process is available by clicking on this link: http://www.bdm.dotag.wa.gov.au which will direct you to the Registry of Births, Deaths and Marriages in WA.

Where a person changing their name by repute and usage lives permanently outside of Western Australia, any change of name by repute and usage must comply with the laws of the State (if within Australia) or the country (if outside of Australia).

Where the change of name is governed by another State within Australia or by another country when outside of Australia, a copy of the relevant legislation should be provided with any application to amend a person’s name.

12.1 Forms to Complete and Evidence Required

A registered proprietor (or registered interest holder) changing their name by repute and usage must complete and providean application form. (All forms are available by clicking on this link: https://www0.landgate.wa.gov.au/titles-and-surveys/forms-and-fees/land-titling-forms)
a statutory declaration made by the person changing their name must include at least the following information:
- the land description of the property and the interest details if applicable (eg: the mortgage or lease number)
- the reason(s) for the change of name
- evidence of the use of the previous name
- evidence (as set out below) of the use of the repute and usage name
- a statement confirming the person described on the title (mortgage/lease) is one and the same person being declarant and as shown in each of the evidences provided with the declaration
- evidence showing the use of the new name must be produced and referred to in a statement in the declaration.
at least 2 separate statutory declarations from persons qualified to witness statutory declarations in WA (as set out in the Oaths, Affidavits and Statutory Declarations Act 2005), including the following statements:
- a statement verifying the person changing their name is known to the declarant, both before and after the change of name.
- statements that set out the details of how they have come to know the person changing their name and how they have used both a former and the new name.
Evidence that can be used to support the change of name include all of the following:
- Statements from rating authorities (e.g. Local Council rates notice)
- Statement from financial bodies (e.g. bank statements, credit card statements)
- Statements from public utilities (e.g. Power bills from Western Power)
- Identification cards issued by Commonwealth, State or Territory authorities, showing the new name (e.g. driver’s license, passports, proof of age cards)
- Licenses or permits issued under a common law

12.2 Duplicate Certificate of Title

Refer to section 7.4 Duplicate Certificate of Title of this guide.

13 Change of Name of a Company/Corporation or Incorporated Association

When a company/corporation has changed their name and they are the owner or an interest holder registered on a land title, a change of name of the company is recommended.

13.1 Forms to Complete and Evidence Required

A company who is registered as a proprietor or interest holder in land, recording a name change on a land title must complete and provide:

an application form. (All forms are available by clicking on this link: https://www0.landgate.wa.gov.au/titles-and-surveys/forms-and-fees/land-titling-forms)
The original of the change of name certificate issued by the Australian Investment and Securities Commission “ASIC” or a copy of the ASIC online change of name certificate (not just a photocopy)

Original of the change of name certificate issued by the Department of Mines, Industry Regulation and Safety Consumer Protection or a copy of the online change of name certificate (not just a photocopy)
duplicate Certificate of Title and/or consent (as applicable)
registration fee which is payable at lodgement. (See: Search and Lodgement Fees.)

A Statutory Declaration is not required for a company; only the ASIC change of name certificate is required as evidence.

For information on how a company may execute (sign) a document please refer to SIG-03 Signing by a Corporation.

A witness to the signing is not required.

13.2 Incorporated Association change in Corporation

Where an Incorporated Association registered under the Associations Incorporation Act 2015 (formerly Associations Incorporation Act 1987 (now repealed)) changes to a Corporation under the Corporations Act 2001, this is not a change of name for the purpose of this sections. Please see Vesting Applications .

A Vesting Application in lieu of a change of name application may also apply to Government Authorities as well as Indigenous/Aboriginal Associations where the change is based on legislation or Government Gazettes.

13.3 Duplicate Certificate of Title

Refer to section 7.4 Duplicate Certificate of Title of this guide.

14 Change of name by Licence to Change Name or Deed Poll

Based on 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 12 relating to Repute and Usage ).

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. The appropriate change of name by certificate should be used (see paragraph 11 relating to change of name certificate ).

NAM-02 Name Suppression

Version 2 02/09/2020

1 Overview

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 not payable on the lodgement or removal of a Name Suppression.

2 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

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 and/or the 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.

3 How to Apply for Name Suppression ¹

To apply you will need the Name Suppression application pack and forms which can be obtained:

online by downloading an application pack and forms from
by telephone request on +61 (0)8 9273 7373 for an application pack be posted to you

collect an application pack from Landgate’s Midland or Perth offices.

If you are a silent elector registered with the Electoral Commission, you will need to complete and submit the Application form NS, and a 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 Electoral Commission. You will need to sign the Statutory Declaration in the presence of an authorised witness.

If you are not a silent elector you also need to complete the Application form NS and Statutory Declaration however the declaration in addition to verifying your identity in relation to the Certificate of Title or any other document to which you wish the suppression to apply, 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 sign the Statutory Declaration in the presence of an authorised witness.

There is no registration fee payable for the lodgement of a Name Suppression application. Your application will be considered by a delegate of the Registrar of Titles and you will be notified of the outcome in writing

For additional questions not covered by the application pack, your enquiry can be emailed to NSO@landgate.wa.gov.au

¹Section updated 02/09/2020

4 How to Submit your Name Suppression Application

Your original application and all related documents must be posted in a sealed, secure envelope addressed to:

‘CONFIDENTIAL’

Landgate

Name Suppression Officer

PO Box 2222

MIDLAND WA 6936

To ensure confidentiality do not put your name on the envelope. Your name should appear only on the application form and on any supporting documentation.

You may also hand deliver your application and supporting documentation to Landgate’s Midland office.

5 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.

You will need to make a new Name Suppression Application:

if you acquire new property or interests in land
lodge a new purchasers caveat
and/or become a donor or donee of a Power of Attorney lodged with Landgate
if you change your name
if you subdivide your land (on title with name suppression)
if you transfer your land to another person (your record as an ‘Ex Owner’ will be suppressed).

There is no registration fee payable for the removal of a Name Suppression.

²6 Who can access my suppressed details other than Landgate?

Authorised government agencies such as the Australian Taxation Office, Child Support Agency, Centrelink, Revenue WA and Police will have access to suppressed details, as well as customers that can provide a legitimate business use for requiring suppressed details, e.g. Executors/Administrator appointed under a will/Letters of Administration or court order.

Data provided to Landgate customers prior to your Name Suppression taking effect will still show your details. However, the small group of customers that can access your details will be bound by contract or law not to reveal any information.

²Section 6 added 02/09/2020

7 Also see

- NAM-01 Name Amendment

POA-01 Powers of Attorney

Version 4 - 15/03/2019

Power of Attorney documents with the exception of Enduring Powers of Attorney are subject to the Verification of Identity Practice issued jointly by the Western Australian Registrar of Titles and Commissioner of Titles. Please refer to the VOI webpage.

1 Overview

Powers of attorney, once recorded under the Transfer of Land Act 1893 (TLA), remain in force until revoked, the person granting the power dies or until the purpose or time for which they were created has passed.

The powers given to the donee(s) 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(s) 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).

A power of attorney document can be in the form of the nineteenth schedule of the TLA by way of the TLA (P1) Power of Attorney form, created in a Deed or in the form of third schedule of the Guardian Administration Act.

2 Noting and Filing

A power of attorney may be presented for noting and filing either:

in schedule form (Nineteenth Schedule to the TLA, Power of Attorney Form), see POA-02 Powers of Attorney - types of; or
in recital form as a deed, provided that some powers under the TLA are given, see POA-02 Powers of Attorney - types of.
in schedule form (Third Schedule of the Guardian and Administration Act 1990), see POA-03 Powers of Attorney - enduring

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 the VOI webpage.

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.

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 for a TLA Power of Attorney. 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.

2.1 Older than 3 months (Non-Revocation)

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, commonly referred to as a ‘Non-Revocation’ statutory declaration, made by all donee(s) of the power of attorney, including any substitute donee(s). In that declaration the donee(s) should:

identify the declarant as the donee(s)
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(s) last saw or communicated with the donor.

Alternately, a statutory declaration made by the donor(s) of the power of attorney. In that declaration the donor(s) should:

identify the declarant as the donor(s)
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).

2.1 Appointment of Substitute Attorney’s and Sub-Attorney’s

The Guardianship and Administration Act 1990 (GA Act) provides for the appointment of primary attorney/s and substitute attorney/s, please refer to POA-03 Powers of Attorney - enduring for more information.

The Transfer of Land Act 1893 (WA) (TLA) and the Property Law Act 1969 (WA) (PL Act) does not include provisions to appoint ‘substitute attorney’s’. A general Power of Attorney created in a Deed format may include provisions that the primary attorney may appoint sub-attorney/s, however the appointment of sub-attorney/s by the primary attorney should be created in a separate Deed making reference to the primary appointment or first Power of Attorney document.

The powers given to the sub-attorney cannot exceed the primary appointment or first Power of Attorney document. The sub-attorney/s can be granted all or limited powers from the primary appointment.

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 (Purchaser) 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 witnessed
dated within the three-month period previously mentioned
comply with VOI requirements (where applicable), and
contain the power necessary to perform the act for which it is produced.

4 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. Any limitation should be clearly stated in the space provided or within the Deed.

Where a power of attorney is given to the donee(s) 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. The land should be clearly identified by the legal land description, being Lot on Plan and Volume/Folio.

A power of attorney can be given for a limited period of time, eg: for twelve months from the date of signing.

5 Limit of Attorney’s Power - Conflict of Interest

Unless expressly authorised by the power of attorney the donee(s) 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 (see TFR-07 Transfers by an Attorney).

6 Variations in Donor/Donee Names

There are instances where a Donor or Donee(s) name stated in a Power of Attorney doesn’t match that as shown on the certificate of title or Original Power of Attorney document. This may be due to a change of company name, change by marriage/divorce or simply that the full true and correct legal name was not stated in the relevant document.

In these instances, a statutory declaration and possible supporting evidence is required to accompany the transaction being lodged. The content of the statutory declaration needs to be substantially in the format as required for a Change of Name Application and reference the enduring/power of attorney by number and date of execution.

There is currently no application/document to amend the name of a Donor or Donee.

Note: The Donor / Donee must be a legal entity. Therefore, where a Company is the Donor or Donee, the Companies legal name must be used. The use of a trading name is not acceptable.

7 Comparing the different Power of Attorney Documents

When considering creating a Power of Attorney of Enduring Power of Attorney, consideration should be made as to which one best suites the needs of the Appointer/Donor.

TLA / Deed Style Power of Attorney

Limited to property transactions and property related documents
Can be made by a person or corporation
Unlimited Donors
Unlimited Attorneys
Can be limited in time
Can be limited to a specific transaction
Can be limited to a specific property
Can contain additional powers to appoint sub-attorneys and include Trustee powers under the Trustee’s Act

Enduring Power of Attorney

No limitations
Can only be made by a person
Limited to one (1) Donor
Limited to two (2) primary Attorneys and two (2) substitute Attorneys
Cannot be limited in time
Cannot be limited to a specific transaction or duty
Cannot be limited to a specific property
Is for personal use only and cannot be used in any other capacity, such as a Director or Trustee

8 Also see

- POA-05 Declarations of Trust (Section 55 of the TLA)

- Verification of identity

POA-02 Powers of Attorney - types of

Version 4 - 15/03/2019

These document types are subject to the Verification of Identity Practice issued jointly by the Western Australian Registrar of Titles and Commissioner of Titles. Please refer to the VOI webpage.

1 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 (legal entity)
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 21.)

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.

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.
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.).

2 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). A Company Power of Attorney should substantially comply with the nineteenth schedule in order to be registered under section 143 of the TLA. The Registrar of Titles is prepared to accept Power of Attorney documents by a Corporation where:

The General Power of Attorney or Deed Power of Attorney substantially give the power to deal in land in very specific terms, such as: to sell, to purchase, to mortgage, to lodge and withdraw caveats, to lease, etc.) and the authority to carry out those specific powers (giving the power to sign a transfer, mortgage or lease, etc.).
The Company can appoint an individual or a named position within a company.
It contains the appropriate recital/ratification clause.
Under common law a power of attorney must not place an administrative or interpretative burden on the Registrar, ie there must not be any conflicting or ambiguous terms, which require unreasonable checks or similar research to be made (see Clazy v Registrar of Titles 1902 WALR 4,113).
Appropriately executed under section 127 of the Corporations Act 2001.

Note: General Power of Attorney and Deed Power of Attorney may contain provisions to revoke a previously deposited Power of Attorney. These clauses should comply with the requirements set out in POA-04 Powers of Attorney - revocation and additional fees are payable.

2.1 A named position within a corporation

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:

Entitled to rely on execution of any document by that person as conclusive evidence that:
- the person holds the office set out in the power;
- the power of attorney has come into effect;
- 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.

Not required to make any inquiries in respect of any of the above matters."

However, it is not possible to deposit a power of attorney where different powers are to be given to different categories of positions. Separate Power of Attorney documents should be prepared.

2.2 A Category of Officer within the corporation

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.

However, it is not possible to deposit a power of attorney where different powers are to be given to different categories of officer. Separate Power of Attorney documents should be prepared.

The following indemnity clause must be contained in each power of attorney document as follows:

Entitled to rely on execution of any document by that person as conclusive evidence that:
- the person is an Officer of the Category set out in the power;
- the power of attorney has come into effect;
- 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.

Not required to make any inquiries in respect of any of the above matters."

3 Power of Attorney by Trustee

Trustees of a Trust 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). The Trust/Trustee may appoint another person to carry out the functions of the Trust where trustees are:

incapacitated by reason of ill health
absent from the State

a member of the armed forces;

they may execute a power of attorney which, if in required form, may be recorded under the TLA. In these situations, the Power of Attorney document should include specific reference to the Act and in some cases, may need to present the Trust Deed to support the appointment.

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.

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

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, e.g. a further absence from the State.

NOTE: The appointment of an Attorney for the purpose of this section should not be for a permanent appointment, rather as a temporary appointment or one off.

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:

Entitled to rely on execution of any document by that person as conclusive evidence that:
- 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;
- the power of attorney has come into effect;
- 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.

Not required to make any inquiries in respect of any of the above matters."

Note: A Person(s) appointed as Executor or Administrator of an estate of a deceased person cannot as a general rule delegate their duties. Where an Executor or Administrator cannot fulfil their duties a new Executor or Administrator should be appointed.

4 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 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.

6 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.

7 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).

8 Execution of Documents by Attorney

8.1 Most common form of execution by attorney

A proper form of execution of a document by an attorney is as follows:

1.1.1 Named person

Signed by (Name of Attorney) )

as attorney for (Name of Donor) ) (Signature of Attorney)

in the presence of ) P/A Number (insert number)

Witness

(Full Name, Address and Occupation)

1.1.1 Execution by attorney appointed in named position

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

Variations of these forms will be accepted provided it is clear that the person executing the document does so as an attorney.

NOTE: Each Attorney’s signature should be independently witnessed.

9 Also see

- POA-05 Declarations of Trust (Section 55 of the TLA)

POA-03 Powers of Attorney - enduring

Version 4 - 15/03/2019

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 Transfer of Land Act 1893 (TLA) (and Property Law Act 1969) as if it were in the form provided for by s.143 of the TLA.

The GA Act specifies any ‘person’ of 18 years or over may appoint an attorney to manage their personal affairs and finances. Therefore, an enduring power of attorney can only be used for personal use.

Note:

Persons holding positions within a Company such as a Director or Secretary cannot use a personal enduring power of attorney to sign documents on behalf of the company (see section on Power of Attorney by a Company in POA-02 ). This also includes Trustees of a Trust (see section on Power of Attorney by a Trustee in POA-02).
Persons holding capacities such as an Executor or Administrator cannot as a general rule delegate their powers. In some cases, the Supreme Court may appoint the Attorney for the incapable Executor or Administrator in the Probate or Letters of Administration.

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 distinguish 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

a formal acceptance by the donee(s) of the power of attorney, with an acknowledgment of the conditions to apply.

Any person over the age of 18 years with full legal capacity can be appointed as an Attorney. A maximum of two (2) primary 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) and two(2) substitute donees. An attorney does not need to live in Western Australia, although their availability and ability to make urgent property and financial decisions on your behalf from another State or country should be considered.

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. In simple terms these could be seen as a way of the Donor making some of their wishes known, while you have capacity. However, it is not possible to include any condition or restriction which would in some way prevent the attorney from being able to properly manage the Donors’ property and financial matters.

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.

An enduring power of attorney cannot provide for alternate commencement/activation times of primary attorneys and substitute attorneys. An example of such improper commencement times is where a donor has appointed two attorneys in clause 1 of the schedule form to commence immediately and then appointed a substitute attorney in clause 1a of the schedule form to commence on the occurrence of the incapacity of the donor.

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. (For further information on conditions and restrictions, see 'A Guide to Enduring Power of Attorney in Western Australia', available at http://www.publicadvocate.wa.gov.au).

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 TFR-07 Transfers by an Attorney).

1.1 EPA's made in another State or Territory¹

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 State Administrative Tribunal (SAT) under s.104A of the GA Act as amended.

In addition to the SAT Order confirming the enduring powers of attorney’s validity under the GA Act, if the document is older than 3 months it will also need to be accompanied by the statutory declaration of non-revocation, see Noting and Filing of this topic.

NOTE: Someone wishing to deal in WA land should consider making their EPA under the WA GA Act rather than using an EPA from another jurisdiction, as processing time through SAT may vary and cause undue delays. Where incapacity exists, this may not be an option.

¹[Guide updated on 29/10/2018 to add new section 1.1]

2 Appointment of Substitutes

As from 4 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. Events or circumstances such as

death
mental or physical incapacity
bankruptcy
absent for the state or country are commonly used
Unwilling or unable have also been used, care should be taken with this ambiguous wording as it may place a large burden of the substitute to prove.

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.

1.1 Statutory declaration when Substitute is to Act

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) similar to a declaration of non-revocation which includes the minimum statements:

identify the declarant as the donee(s)
identify the power of attorney by reference to the donor and the date of execution
state the donor is still alive
stating that the events or circumstances specified in the enduring power of attorney have occurred and provide any relevant supporting documentation, and
state that at the time of signing the document the power of attorney has not been revoked or varied by the Donor or the State Administrate Tribunal (SAT).

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 4 December 2000.

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.

An Attorneys appointment under an enduring power of attorney ceases on the death of the Donor.

4 Noting and Filing

If the attorney(s) wishes to deal in the land of the donor, a original 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. For the purpose of noting and enduring power of attorney under the TLA requires original signed documents.

It is recommended that two (2) Original Signed Enduring Power of Attorney documents are deposited at Landgate. As one signed copy is retained and the second will be returned as the ‘Client Original’. Additional copies that are not identical originals or are certified copies will not be registered as ‘Client Original’.

A Landgate ‘Certified Copy’ of the enduring power of attorney can be ordered after registration for an additional fee. For more information on costs and ordering a ‘Certified Copy’ of an enduring power of attorney please see Certification of original documents on the Landgate corporate website.

1.1 Older than 3 months (Non-Revocation)

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 non-revocation 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).

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).

NOTE: In general, where an EPA is submitted with a SAT Order it must also be accompanied by a statutory declaration. This also includes where any transaction is signed/executed under a SAT Order. See CAP-02 – Incapable persons.

4.1 Upon Loss of Capacity

Where an enduring power of attorney is conditional upon a loss of legal capacity of the donor (option 'B'), 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.²

In this case, the donee(s), when dealing with land under the power of attorney must also provide a statutory declaration deposing that the SAT has not been revoked or varied or the order changed in any way. The statutory declaration should cover the following minimal points:

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
that the Order issued by SAT is still current
that the State Administrative Tribunal or an appointed Administrator has not varied or revoked the enduring power of attorney or Order

and

state that at the time of signing the document the appointment was still current.

² [Guide updated on 29/10.2018 to remove sentence: '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.']

4.2 Death of an Attorney prior to Lodgement

An enduring power of attorney may still be deposited where one or more of the appointed attorney’s or substitute attorney’s is deceased prior to the lodgement of the document. The enduring power of attorney must be substantially in the format of the third schedule of the GA Act and should be accompanied by a statutory declaration and the death certificate of the deceased attorney. Alternatively, if the Donor still has legal capacity a new enduring power of attorney should be created.

The statutory declaration should contain element described in paragraph 4.1 of this guide and those elements set out for a statutory declaration accompanying a Survivorship Application refer to DEC-02 Survivorship.

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 DOC-04 Statutory Declarations.

In early 2012 amendments were made to the witnessing requirements for an Enduring Power of Attorney. The witnessing requirements changed from two (2) qualified witnesses to one (1) qualified and one (1) other, as stated above. Any enduring power of attorney dated prior to the change in 2012 must contain the two qualified witnesses.

5.1 Outside of Western Australia but within Australia

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

any person before whom, under the Commonwealth Statutory Declarations Act 1959, a statutory declaration may be made.

5.2 Outside of Australia

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.

6 Making Amendments to an Enduring Power of Attorney

The GA Act does not specifically provide for the delegated authority for someone other than the Donor or Donee to amend an Enduring Power of Attorney. Therefore, any amendments to the document can only be made by the Donor and acknowledged by the witness or the Donee(s).

Amendments can be made directly to the document or by an original letter from the relevant party.

Amendment to the Donor appointment pages must be made and acknowledged by the Donor and the witness or an original signed and witness letter can be used. The witness must be a qualified witness and it is preferable that the same witness to the document is used.

Amendment to the Donee acceptance page must be made and acknowledged by the Donee(s) and does not require a witness or an original signed letter can be used.

7 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) ) (Signature of Attorney)

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.

NOTE: Each Attorney’s signature should be independently witnessed.

8 Also see

- CAP-02 – Incapable persons

POA-05 Declarations of Trust (Section 55 of the TLA)

POA-04 Powers of Attorney - revocation or termination

Version 3 - 15/03/2019

1 Revocation of (TLA) Power of Attorney

A power of attorney may be revoked by the Donor depositing with the Registrar the original or the ‘Client Original’ power of attorney with the word REVOKED endorsed thereon together with the properly attested signature of the donor and the date of execution.¹

A formal revocation, as a deed, may be prepared using a Blank Instrument Form or the new Revocation Power of Attorney (TLA only) (eForm) and deposited with the Registrar. The revocation document must contain the following minimum details:

Identify the Donor by name
identified by reference to the donee(s) by name,
Identify the power of attorney being revoked by its date and its registered number
Be correctly executed by the Donor and witnessed, if required.

The prescribed fee is payable for each power of attorney revoked.

Note: Where the original ‘Client Original’ power of attorney is used to revoke a power of attorney it will be retained by Landgate.

A revocation may also be deposited before the power of attorney which it revokes has been deposited for registration (commonly referred to as a ‘Non-Deposited’ power of Attorney). The indexing system would reveal the revocation when an attempt to register the power of attorney is made.

Revocation occurs in the following cases:

Determination by the act of either party:
by revocation by the donor of the power

by renunciation of the power by the attorney.
determination by operation of law:
by expiration of the time limited for the exercise of the authority
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 Guardianship and Administration Act 1990 (GA Act) will not affect the power)
by the death of either party
where the purpose for which the power created is fulfilled

- (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.

¹ [Sentence updated on 30/09/2018 to add term 'the Donor']

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 above) signed by the donor (and witnessed).

The State Administrative Tribunal (SAT) may also, on the application of an interested person, order the amendment or revocation or termination of an enduring power of attorney. Having obtained the order, (and if the power is recorded in the Power of Attorney Index) the interested person should then apply on an Application Form to have the Landgate records altered in accordance with the terms of the order.² The Application should contain the following information:

The first panel of the Form A5 (Land Description panel) should show the registration number of the power of attorney;
The second panel (Applicant panel) should show the name and address of the interested person;
The third part of the form (reason for application) should request the amendment of the records to comply with the terms of the order (which must be produced);
Correctly signed and executed by the interest person/Applicant;

Standard lodgement fees are payable on this application.

2.1 SAT Order submitted with another transaction

Similar to the above paragraph, where an Order issued by SAT is used in another document that contains the provisions to revoke or terminate a deposited or non-deposited power of attorney and states sufficient information, the Registrar will revoke or terminate the said power of attorney or enduring power of attorney when processing the other lodged transaction(s).³

² [Sentence updated on 30/09/2018 to include wording 'or termination' and to replace 'recorded in Landgate' with 'recorded in the Power of Attorney Journal']
3 [Sentence updated on 30/09/2018 to replace 'to revoke' with 'to revoke or terminate']

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 and noted by the Registrar on the Power of Attorney Index it is prudent to inform Landgate that the donor has died so that the power of attorney can be formally extinguished. This will assist those searching Landgate’s Power of Attorney Index will know that the power of attorney is no longer valid and will be shown as extinguished.⁴

The Registrar will record the termination/extinguishment of the power of attorney or an enduring power of attorney upon formal notification of the death of the Donor. Formal notification requires any person to notify the Registrar of the death of the Donor and provide proof of death and supporting statutory declaration.⁵

The content of the statutory declaration must be similar to a survivorship application (see

DEC-02 Survivorship Applications) and the following must be produced:

a copy of evidence of death certified by the Registrar General

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

This notification will not incur any lodgement fees.⁶

⁴ [Paragraph updated on 30/09/2018 to add 'and noted by the Registrar on the Power of Attorney Index'; to replace 'formally revoked' with 'formally extinguished' and to insert 'and will be shown as Extinguished']

⁵ [Section updated on 19/09/2018 to replace: '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' with 'The Registrar will record the termination/extinguishment of the Power of Attorney or an Enduring Power of Attorney upon formal notification of the death of the Donor. Formal notification requires any person to notify the Registrar of Titles of the death of the Donor and provide proof of death and supporting statutory declaration.']

⁶ [New sentence added on 19/09/2018]

4 Also see

- POA-05 Declarations of Trust (Section 55 of the TLA)

POA-05 Declarations of Trust (Section 55 of the TLA)

Version 3 - 24/06/2020

1 General

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 Transfer of Land Act 1893 (TLA). The original is¹ deposited and a Registrar’s Caveat is lodged to protect the interests of the beneficiaries under the trust deed.

¹"or duplicate" removed from sentence 24/06/2020

2 Form Requirements

There is no special form to be used (but may be prepared using a Blank Instrument Form), but any form used is to be duly stamped by Revenue WA (s11(1)(c) Duties Act) and it must contain:

the name and address of the registered proprietor/interest holder² (the trustee)
the name and address of the beneficiary
an accurate description of the land, and where applicable, the interest²
a declaration by the trustee that the land/interest² 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.

²Interest holder/interest added 24/06/2020

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.

3 Removal Options

As a general rule the Registrar’s Caveat will remain in place to protect the identified beneficiaries until one of the following actions is undertaken.

The Registrar’s Caveat cannot be removed by anyone other than the Registrar of Titles.

3.1 By Transfer

Where a bona fide Contract of Sale is executed and upon the presentation of the stamped Transfer of Land to the purchaser. The Registrar of Titles will remove the caveat placed on the certificate of title identifying the land as trust property.

A transfer by way of power of sale by a Mortgagee, local government for non-payment of rates or a sale under property seizure and sales order. These types of transfers will remove the property as a trust asset and upon the processing of the Transfer the caveat will be removed.

The removal process occurs when the documents are lodged and are in a registerable form, not before.

3.2 By Vesting / Winding Up / Termination of the Trust

Superannuation Funds and Trust Funds generally provide for the vesting, winding up or termination of the Fund. Each scenario may require different actions by the trustee and varies if the trustee is a company or individual(s).

If the trust property is held in the name of a trust company the relevant transfer is required and where appropriate supported by the relevant evidence, sometimes in the form of Vesting Deed or Agreement.

In the event that the trustee(s) are one and the same as the beneficiaries, a transfer cannot be used. See Transfer by a Proprietor to themselves (TFR-01 Transfers - Common Scenarios). A person seeking the withdrawal of the caveat needs to satisfy the Registrar of Titles that the proposed transaction is one that the trustee has authority to undertake. As part of that process, the person seeking withdrawal of the caveat should make the request in writing setting out the reason for the withdrawal of caveat, the basis on which it is claimed that the trustee has power to undertake that transaction and any additional evidence to support the written request, such as a statutory declaration(s), stamped contracts or agreements, beneficiaries consents to Trustee exercising a power which is not or may not be authorised by the Trust Deed, Will or Statute.

3.3 By Discharge/Surrender/Removal of the protected interest

Where the Registrar’s Caveat is protecting an interest over land, the Registrar of Titles will remove the caveat placed on the certificate of title upon the lodgement of a registerable discharge/application to remove/surrender.³

³Section 3.3 added 24/06/2020

4 Also see

- CAV-05 Caveats - Removal

TFR-01 Transfers - common scenarios

Version 2 - 24/01/2018

Note: Transfer documents are subject to the Verification of Identity Practice issued jointly by the Western Australian Registrar of Titles and Commissioner of Titles. Please refer to the VOI webpage.

1 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, 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, e.g. 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 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.

Further information on the effect and rights of a Joint Tenancy can be found in DOC-05 Tenancy and DEC-01 Deceased Proprietor.

3 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 address of two undivided third shares and B of address of one undivided third share as tenants in common.

Further information on the effect and rights of Tenants in Common can be found in DOC-05 Tenancy and DEC-01 Deceased Proprietor.

Note: Shares must be shown as whole numbers and where appropriate the lowest share ratio should be shown. For example: 33.3 undivided one hundredth share will not be accepted but a one undivided third share (1/3) will be accepted.

4 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:

Note: Persons holding individual shares cannot also be joint tenants, for example: 'A' of one undivided third share, 'B' of one undivided third share and 'C' of one undivided third share as Joint Tenants. This situation creates a conflict of interest and rights of the parties.

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 the following link for a current list of search and lodgement fees.)

5 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.

6 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 Declaration of Trust may be appropriate.

Note: Where land is held in two different capacities, the different interest will not be shown on the certificate of title. For example, where A holds ½ share in their own right and the other ½ share as a Trustee for a Trust, the title will only show A once. The lodgement of a Declaration of Trust (Registrars Caveat) or Beneficiary Caveat should be used to define the two interests. Similarly, where there are joint trustees holding a share in the land.

7 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 forty-eighth 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.

8 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. The share being transferred will generally be added to the existing share held by the co-tenant/s.

9 Transfer by a Tenant in Common of Part of His or Her Interest to a Co-Tenant

Transfers of this nature may be prepared in either of two ways:

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.

10 Transfer by One Joint Tenant to a Stranger

In transfers of this nature the appropriate panel of the form should read:

Estate or interest: fee simple in (name of transferor’s) interest as joint tenant with (name of the other joint tenant or tenants)

Consideration: X dollars (or as the case may be).

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.

11 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).

12 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).

13 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.

14 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.

15 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.

16 Transfer to Effect a Change of Trustee

Where persons/corporations registered on a title hold the interest as Trustee for a Trust the change is effected by transfer.

The appropriate panels of the transfer should read:

Estate: fee simple

Transferor: A

Consideration: pursuant to a Deed of Retirement and Assignment of Trustee dated (or as to relevant Deed that changes the Trustees)

Transferee: B of etc. or C and D of etc. as joint tenants.

Where the date of the Deed stated in the consideration panel matches the date of stamping, the Deed is not required to accompany the Transfer. Where the dates do not match, a Landgate Sighted or Australia Post certified copy will be required.

Where the Trust property is identifiable by way of Registrar’s Caveat, it is recommended that the Deed be produced with the Transfer. The presentation of the Deed for record keeping will assist with any future transaction where the caveat may need to be lifted.

17 Also see

- TFR-03 Transfers by or to an Executor/Administrator

TFR-02 Transfers - Document Preparation

Version 1 – 18/05/2018

1 Overview

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 Choose the Correct Form

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 Transfer of land by mortgagee form. 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 of land with additional pages form 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 Transfer of Land Form or Transfer of Land form with additional pages, a transfer of a lease must be prepared on a Transfer of mortgage, changes or freehold lease form.

Since it appears to be usual practice for the transferee/buyers’ agent to choose which form to use, it is 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.

2.1 Transfer Forms

Landgate introduced the T1A, T2A and T4A Transfer Forms in June 2013. These form types had two significant differences to the Transfer of land form, Transfer of land form with additional pages form and Transfer of land by mortgagee:

Verification of Identity Statement incorporated into the form.
The Limitations, Interests, Encumbrance and Notifications panel has been removed.

From 1 August 2016, Transfer of Land forms (T1 and T2) which contain the ‘Limitations, Interests, Encumbrance and Notifications’ panel were no longer accepted for lodgement by Landgate. Forms containing an execution date that is prior to 1 August 2016 are considered for lodgement on a case by case basis.

On 31 January 2018, the Commissioner of Titles and Registrar of Titles updated their Joint Practice for Verification of Identity and Authority (VOI Practice) for paper-based transactions. The updated VOI Practice more closely aligns to the requirements for national electronic transactions. The key changes to the VOI practice include extending the requirement for verification of identity to property buyers. These changes came into effect on 12 February 2018. To give practitioners time to adjust their processes and procedures, they were not required to fully comply until 5 June 2018. The T1A, T2A and T4A paper form templates incorporating the VOI statement for Transferors, will not be updated to include a VOI Statement for Purchasers, and cannot be used on or after 5 June 2018. Transfers dated prior to 5 June 2018 will be acceptable for lodgement on the old T1A, T2A or T4A forms, provided a VOI statement is presented for the transferee.

3 Completion of the form

Refer to DOC-01 Document Preparation in addition to the below information:

3.1 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.

3.2 Describe the Estate or Interest Being Transferred

ESTATE AND INTEREST (Note 2)

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.

3.3 Set Out Limitations, Interests, Encumbrances and Notifications

LIMITATIONS, INTERESTS, ENCUMBRANCES and NOTIFICATIONS (Note 2)

Any limitation, interest, encumbrance or notification to which the land is subject to (burdened) must be noted, if the form selected has this panel (see also COT-01 Reading a Certificate of Title in our Policy and Procedure Guide).

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.

3.4 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 (NAM-01 Name Amendment). Tenancy should not be shown in the transferor panel. If the title is held in capacity, this should be reflected in the transferor panel, such as "as executor of the will of…with leave being reserved to come in and prove".

3.5 Show the True Consideration

CONSIDERATION (Note 4)

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 Revenue WA (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, unless a digital order has been made, and then a printout is sufficient.

3.6 Straightforward Transfer of Land

The below specimen form of transfer (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.

4 Further information

Please refer to the related document titled TFR-01 Transfers - Common Scenarios which provides details of some of the more common variations to a straightforward transfer and the related variables to be adhered to.

Also see:

- Form Example: T1

- TFR-03 Transfers by or to an Executor/Administrator

- TFR-04 Transfer - Land of Deregistered Company

- TFR-05 Transfers – of Mortgage, Charge or Lease

TFR-03 Transfers by or to an Executor/Administrator

Version 2 - 12/02/2018

1 Overview

Where a registered proprietor dies intestate and Letters of Administration are granted to an administrator, the administrator, after entering transmission (see Policy and Procedure Guide DEC-03 Transmission Applications), is the registered proprietor of the land of the intestate deceased.

2 Transfers by Executors and Administrators with the Will Annexed

The personal representative, having entered transmission, 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. This limitation generally arises where another appointed person named in the Will did not join in the initial application for Probate.

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 12.)

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 Section 4 ‘Transfer by Personal Representatives to Themselves or One of Them’). Where the consideration in a transfer is the terms of the will of the said deceased, the will must be produced with the transfer.

Where the land is being transferred to the Beneficiaries named in the Will, 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

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.

Transferee:

C of (Address)

C of (Address) and D of (Address) as tenants in common in equal shares (or as the Will of B specifies)

Note:

Care must be taken when stating a tenancy in such transfers. Traditionally, beneficiaries bequeath a ‘share’, not a joint tenancy interest. Where the beneficiaries wish to alter the tenancy described in the Will, a dual consideration should be used, such as ‘terms of the Will of and the desire of the beneficiaries to hold the land as Joint Tenants or Tenants in common in equal shares’.

Where the name(s) of a beneficiary differ(s) from those stated in the Will, the Executor/Administrator or the beneficiary must provide a statutory declaration verifying the difference, similar to that of an Application to amend name, and provide any supporting evidence.

Where the land is being transferred by way of cash sale to a third party, 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

A as administrator with the will annexed of B deceased

Consideration:

XX dollars

Transferee:

C of (Address)

2.1 No Transfer to beneficiary prior to their death

In those instances where the personal representative of the original owner failed to transfer the land to the beneficiaries prior to his/her death, a transfer may still be accomplished to the new beneficiaries. Where A dies and he/she bequeaths the land to B, but before a transfer to B is done/or never done the personal representative of A can transfer to the land to the beneficiaries of B.

The appropriate panels of a transfer by a personal representative of the original owner, who is shown on a certificate of title as such, should read:

Transferor:

A as executor of the will of B deceased

A as administrator with the will annexed of B deceased

Consideration:

terms of the will of B and terms of the will of C

Transferee:

D of (Address)

D of (Address) and E of (Address) as tenants in common in equal shares (or as the Will of C specifies)

3 Transfer by Administrator under Letters of Administration

3.1 General

Where a registered proprietor dies intestate (without a Will) and Letters of Administration are granted to an administrator, the administrator, after entering transmission (see DEC-03 Transmission Applications), is the registered proprietor of the land of the intestate deceased.

3.2 by Way of Sale

Where an administrator disposes of land by way of sale, sale to a third party for monetary value no investigation of the right to sell will be made (see DEC-03 Transmission Applications).

3.3 Transfer by Administrator 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 24 October 1984). Act 72 of 1984 (Operative 26 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 him-/herself in his/her capacity as guardian or in any other capacity, a Court Order permitting the appropriation must be obtained and lodged with the transfer.

Alternatively, 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:

Where the administrator is distributing:

Transferor:

A as administrator of the estate of B deceased

Consideration:

the terms of the Administration Act 1903

Transferee:

C of (address)

C of (address) and D of (address) as to share

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

Transferee:

C of (address)

C of (address) and D of (address) as to share

Where the entitled persons have altered the distribution of real property by a Deed of Family Arrangement:

Transferor:

A as administrator of the estate of B deceased

Consideration:

the terms of the Administration Act 1903 and a Deed of Family Arrangement dated (date).

Transferee:

C of (address)

C of (address) and D of (address) as to share

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 him-/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

a Court Order is obtained permitting the transfer.

5 Transfer to a Personal Representative (Executor or Administrator)

Where land is transferred to the personal representative of a deceased person, e.g. on completion of a contract entered into by the deceased during his/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 Transfer of Land with additional pages form (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.

6 Also see

- TFR-01 Transfers - Common Scenarios

- TFR-02 Transfers - Document Preparation

- TFR-04 Transfers - Land of a Deregistered Company

TFR-04 Transfer: Land of Deregistered Company

Version 1 – 28/02/2018

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

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 Transfer of Land with Additional Pages form, 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.

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 Transfer of land with additional pages form 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

in exercise of the power to sell the said land under s.462 of the Companies (Western Australia) Code.

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 )

Witness

(Full Name, Address and Occupation)

4 Evidence to Support the Transfer Referred to in Chapter 1 and 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.

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;

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 Transfer of land with additional pages form 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.

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 Transfer of land with additional pages form 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.

7 Attestation and Supporting Evidence

The procedures set out in paragraphs 2 and 3 of this guide also apply to documents prepared in the circumstances set out in this paragraph.

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 SIG-12 Signing by a Registered Friendly Society and the requirements for the application by the liquidator to become registered as the proprietor of the land are similar to those shown in BAN-01

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.

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"

"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."

10 Also see

TFR-01 Transfers - Common Scenarios

TFR-03 Transfers by or to an Executor/Administrator

TFR-06 Life Estates

TFR-05 Transfer of Mortgage, Charge or Lease

Version 1 – 29/03/2018

1 Overview

There are special forms printed for these purposes. A Transfer of Mortgage Charge or Freehold Lease form is used where freehold land is affected. A Transfer Lease form 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.

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.

Fees are payable on each interest being transferred.

Click on the following link for a list of the current search and lodgement fees.

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 Transfer of Land Act 1893 (TLA) does not contain provisions permitting the registration of a sub-mortgage.

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 CHA-01 Charges and Removals).

4 Transfer of Lease

A transfer of lease can be lodged for both Freehold Leases and Crown Leases.

The provisions of a lease may or may not allow the transferring of the interest to another. A lease that is to be transferred must be current. Transfers of lease lodged after the initial lease term but during a lease option period can be accepted for registration without an extension of lease being required. However, it is recommended that the extension for the option period(s) be lodged to show continuous occupation of the leases area.

A transfer of Freehold lease should be for all the land contained in the lease, increasing or decreasing of the leased land should be addressed in either a partial surrender or a new lease.

There is no requirement for the duplicate lease to be provided for a transfer of a lease.

For an example of how to fill out the document, see LTRPM Form Examples - Example 24.

Note: A transfer of a lease and a transfer of freehold land are not to be included in the same form.

4.1 Duty

Where the transfer of lease document indicates a monetary consideration has been paid, the transfer must be submitted to Revenue WA for duty assessment and endorsement. Please see LOD-03 Fees and Transfer Duty.

Where no duty has been provided for the document and the Consideration panel refers to a deed that may contain a consideration, a copy of the deed will need to be provided to determine if a monetary consideration has been paid.

4.2 Consents

4.2.1 Lessor’s Consent

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.

4.2.2 Minister’s Consent

For transactions over Crown land, unless the Crown land is vested for purposes of another Act, consent of the Minister for Lands will be required under section 18 of the LAA (see Paragraph 12.1.7 LTRPM). Transactions over a Pastoral Lease additionally require s.134 of the LAA consent.

4.3 Execution

The Transferor(s) and the Transferee(s) must both sign the Transfer form. Standard execution requirements apply, please see the document signing guides SIG-01 to SIG-13 inclusive.

Note: The execution page of the Transfer of Lease form should be signed/executed by the Transferor(s) and the Transferee(s). Whilst referring to the page number containing the original signatures contained within the deed of assignment has become common practice, it is not recommended.

4.4 Variations

A transfer of Crown lease may contain variations to the terms and conditions of the lease, however any variations cannot alter the lease area or lease term (duration).

The TLA does not specifically provide for variation to the terms and conditions of the lease in a transfer of Freehold lease.

5 Transfers to and from the State of Western Australia

5.1 Transfer and Surrender of Fee Simple Land to the State of Western Australia

Land alienated from the Crown in fee simple, may be surrendered to the State. Upon surrender the land becomes unallocated Crown land and may be dealt with by the State under the Land Administration Act 1997 (LAA).

The appropriate means is by amended transfer Transfer of Land form or 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 inclusion of the words "and surrenders" into the operative clause of the transfer, which would then read:

"...hereby transfers and surrenders to the transferee...."

Where the freehold land is subject to encumbrances, approval from the Minister for Lands must be obtained prior to the land being surrendered to the State.

The duplicate title (if any) must be produced with the transfer and surrender. Where the duplicate title has been lost, action under s.74 of the TLA can be taken to dispense with its production.

5.2 Leasehold Land

A Crown Lease granted under the Land Act 1933 or a lease of Crown land granted under the LAA may be surrendered to the State of Western Australia. Please refer to LEA-03 Leases of Land - removal.

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 whereby a person may now purchase 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 a supporting statement as to interests must be lodged by the Department of Planning, Lands and Heritage 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 Transfer of land form or a Transfer of land with additional pages form 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 be 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.

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 CRW-01 Crown Land - General).

6 Also See

- LEA-01 Leases of Land

- TFR-01 Transfers - Common Scenarios

- TFR-03 Transfers by or to an Executor/Administrator

- TFR-04 Transfer - Land of Deregistered Company

TFR-06 Life Estates

Version 2 – 17/10/2018

1 Creation of Life Estates and Estates in Remainder

Estates for life and estates in remainder must be created by transfer.

In common law and statutory law, a life estate is the ownership of land for the duration of a person's life. In legal terms it is an estate in real property that ends at death when ownership of the property may revert to the original owner, or it may pass to another person.

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.

An existing owner may elect to create a life interest. 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 (address) an estate for life and B of (address) an estate in fee simple in remainder expectant upon the death of A;

Transferee: B of (address) an estate for life and A of (address) an estate in fee simple in remainder expectant upon the death of B.

An Estate for Life and Remainderman 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 (Seller)

Consideration: as the case requires

Transferee: (1) B of (address) an estate for life and (2) C of (address) an estate in fee simple in remainder expectant upon the death of B.

Note: More than one person can hold a life tenancy. The life tenants may also hold that interest as Joint Tenants or hold equal/unequal shares.

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: B or A

Consideration: as the case requires

Transferee: C of (address).

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: as the case requires

Transferee: B of (address).

2 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: as the case requires

Transferee: C of (address).

3 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: as the case requires

Transferee: B of (address).

4 On the Death of Joint Life Tenants

An Application by Survivorship may be lodged¹. See DEC-02 Survivorship Applications.

¹[Guide updated to insert sentence on 17/10/2018]

5 On the 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 and the application is made by the remainderman or remaindermen. The correct words to be used in the third section on the Form 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:

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

A statutory declaration of the remainderman or one of them if more than one. This declaration should:

identify the declarant

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

introduce the certified copy of the certificate of death or Grant of Probate produced as evidence of death

and

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.²

²[Guide updated to replace contents of section 5 on 17/10/2018]

6 On Death of the Remainderman

Where the person holding the Remainderman interest (ultimate owner) dies prior to the life interest holder, his or her Estate (Executor/Administrator) may lodged an Application by Personal Representative (Transmission Application).

The Life Estate will remain until a Transfer is lodged by the Life Tenant and the Where the person holding the Remainderman interest (ultimate owner) dies prior to the life interest holder, his or her Estate (Executor/Administrator).

7 On Death of the Life Tenant and the Remainderman

In those instances, where the person/s holding the Life Estate and the Remainderman are both deceased. The Executor/Administrator of the Remainderman may make Application pursuant to Death of a Life Tenant (see DEC-02 Survivorship Applications) accompanied by the standard Application by Personal Representative. (See DEC-03 Transmission Applications).

The Executor/Administrator can then sell or transfer the land to the beneficiaries, or as the case requires.

8 Also see

- DEC-02 Survivorship Applications

TFR-07 Transfers by an Attorney under EPA or by Administration Order (SAT)

Version 1 - 03/01/2018

1 General

An Attorney appointed under an Enduring Power of Attorney (EPA) under the Guardianship Administration Act has all the powers under the Act. Those persons appointed hold that position on trust and must act in the best interest of the Donor/Incapable person. Whilst the Attorney can do anything the Donor may do themselves, they must act in good faith and not deprive the Donor of any assets. Some acts are deemed to be a breach of the fiduciary duty.

Note: An Enduring Power of Attorney is for personal use only and cannot be used in a person’s capacity as Director/Secretary of a Company or where that person is an appointed Executor/Administrator of another’s estate.

Where a person loses capacity prior to the drawing up of an Enduring Power of Attorney (EPA) or where an EPA is invalid or made void, the State Administrative Tribunal (SAT) may appoint one or more Plenary Administrators to manage the estate of the incapable person. An Order may be issued with all of the powers under the Act or limited powers. See ‘Dealings by a Manager or Administrator’ (CAP-02 Incapable Persons) for preparation, supporting evidence and execution of documents.

Independent legal advice should be sought when completing these transaction types. When lodged, the transfer will generally be sent for legal advice within Landgate.

2 Gift of Donor’s 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 registerable 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.

3 Transfer of a Donor’s 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 him/herself has been made under either an Order of the Board (SAT) or of a Court, then this may be registered subject to a copy of the extracted order being lodged with the transfer.

4 Transfer of the Donor’s property to one of two Enduring Attorneys

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:

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 has paid full market value for the property
Annexes a sworn valuation of the property made by an independent valuer.

Alternatively, an Order of the Board (SAT) or of a Court consenting to the Transfer then this may be registered subject to a copy of the extracted order being lodged with the transfer.

5 Transfer of Donor’s 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

the powers conferred by the order authorise a transfer and the Administrator provides a statutory declaration advising all of the following:
- The reason for the transfer, e.g. request or wishes of the 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 Administrator or the family member has paid full market value for the property
- Annexes a sworn valuation of the property made by an independent valuer.
- 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.

TFR-08 Transfer by Mortgagee/Debenture Holder/Annuitant (Chargee) exercising Power of Sale

Version 2.1 - 01/08/2018

1 Transfer by Mortgagee Exercising Power of Sale

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 the VOI webpage.

Transfer Form Transfer of Land by Mortgagee (Power of Sale) (see LTRPM Model Form Examples - Example 25) 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:

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 Transfer of Land Act 1893 (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.

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.

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 company’s 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.
- default in the payment of principal or interest (or both) and the date of default; and/or
- 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, 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.

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 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 mortgagee’s power of sale is in relation to a mortgage under the National Credit Code, see paragraph 1.1 below.

1.1 Effect on Encumbrances

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 will run with the land unless removed)
memorials lodged pursuant to certain statutory provisions prohibiting dealing with the estate and interest of the registered proprietor. See Chapter 11 of the Land Titles Registration practice manual for a detailed list of Statutes;
- Property (Seizure and Sale) Order (PSSO) that is still current is removed as an encumbrance where the written consent of the Sheriff is obtained and filed with the transfer. Expired PSSOs should be removed by way of an Application to Register a Discharge of a Property (Seizure and Sale) Order form.
- 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.

Where a second mortgage is effecting the sale by Mortgagee, the first mortgage should be discharged as it will not be automatically removed as it precedes the other.

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.

Note: Only one mortgage can effect the sale by a Mortgagee and it should be the current mortgage that has been defaulted. Where a previous mortgage was granted by the same Bank, but was since paid out, a discharge of mortgage should be provided to remove the mortgage.

1.2 Double Interest Mortgages

Where mortgagees sell land on the authority of a double interest mortgage (see paragraph 2.6.10 of the Land Titles Registration practice manual), separate transfers for each interest will be required. The mortgagee must not include any further consideration in the transfer, e.g. 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 a Mortgagee has granted multiple mortgages to the same registered proprietor over different land, each mortgage interest being sold under power of sale should be prepared on a separate Transfers. This transaction scenario will fall within the double interest transfer definition.¹

¹[Guide updated on 01/08/2018 to add new paragraph]

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

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 the VOI webpage.

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 section 2 of policy and procedure guide MTG-01 Mortgages

2.1 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 no 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 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.

2.3 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:
- 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
if there is no such nomination, the address of the place of residence of the mortgagor last known to the mortgagee;

facsimile transmission to the mortgagor, if the mortgagor nominates in writing to the mortgagee such a fax number as a nominated address for service.

2.4 Notices to joint mortgagors

Where there is more than one mortgagor under a mortgage, then the default notice must be sent to each mortgagor.

2.5 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 (Transfer of Land by Mortgagee [Power of Sale] form) is required to be lodged at Landgate. This transfer document is the same as that used for mortgages that are not under the Code.

2.6 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, i.e:
- default in the payment of principal or interest (or both) and the date of default; and/or
- 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, the mortgagee may exercise the mortgagee’s power of sale.
That the default complained of continued up to and including the date of sale (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.

2.7 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:
- the debtor or mortgagor has removed or disposed of the mortgaged goods under a mortgage related to the credit contract;
- the debtor or mortgagor intends to remove or dispose of the mortgaged goods without the credit provider’s permission; or
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, which 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 (Transfer of Land by Mortgagee [Power of Sale] form).

2.8 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:

In the case of fraud:

all the circumstances surrounding the fraud; and

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:

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

letters sent by registered mail and receipts showing non receipt

and

notes of telephone calls over a period of at least one month after the default of the mortgagor.

In the case of Court authorisation:

the terms of the order annexing a service copy of the order; and

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:

the full circumstances surrounding the removal or disposal of the mortgaged goods; and

permission of the credit provider not being obtained by the mortgagor; and

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:

the full circumstances of the mortgagee credit provider’s belief that the mortgagor intends to remove mortgaged goods;

permission of the mortgagee credit provider has not and would not be given to such action; and

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:

then the declarant should depose to the full circumstances surrounding the need for urgent action to be taken; and

it must be a substantially urgent need.

3 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 DOC-04 Statutory Declarations), 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.

4 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.

- PSS-01 Property (Seizure and Sale) Order

TFR-09 Transfers by Sale for Rates (Local Government Act 1995)

Version 2 – 12/02/2018

1 General

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 the VOI webpage.

There is a specific Transfer (Transfer of Land [Sale for Rates form) 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 MEM-01 Memorials). 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)

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.

The Memorial must be endorsed on the title prior to the sale of the land by the local government.

A transfer (Transfer of Land [Sale for Rates] form), 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.

1.1 Duplicate Title

The duplicate certificate of title (if any) should be produced for a transfer pursuant to Sale for Rates. If this is not done, the Registrar will order its production from the person holding it. Where the title is not produced an advertisement will 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.

Note: Additional fees relating to advertisement will be charged.

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.

1.2 Effect on Encumbrances

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, caveats and expired PSSOs are removed by the act of registration of the transfer, and no longer affect the land. A PSSO that is still current is removed as an encumbrance on the registration of the transfer if the written consent of the Sheriff is obtained and filed with the transfer.

1.3 Effect after 12 months

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 of Land (Sale for Rates) form 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.

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 a Transfer of Land (Revestment for Non Payment of Rates) form. The transfer attracts no fee or duty.

2 Also see

- PSS-02 Property (Seizure and Sale) Order - removal

TFR-10 Transfer Pursuant to a Property (Seizure and Sale) Order

Version 2 - 12/02/2018

1 General

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 the VOI webpage.

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 PSS-01 Property (Seizure and Sale) Order PSSO).

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:

Transfer of Land under Property (Seizure and Sale) Order form

Transfer of Mortgage, Charge, Lease etc. under Property (Seizure and Sale) Order form

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 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.

3 Effect on Memorials

Memorials can be lodged pursuant to certain statutory provisions prohibiting dealings with the estate and interest of the registered proprietor. See MEM-01 Memorials 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 consent is obtained, the memorial must be shown in the Limitations, Interests, Encumbrances and Notifications panel of the transfer.

4 Effect on Notifications

Notifications can be lodged against land pursuant to certain statutory provisions. See MEM-01 Memorials 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.

5 Effect on other PSSOs

A PSSO registered prior to the PSSO effecting the sale must be removed by A12 Application to Discharge a PSSO.

PSSO’s lodged subsequent to the PSSO effecting the sale will be removed on the registration of the transfer if the written consent of the Sheriff is obtained and filed with the transfer. Alternatively, a A12 Application to Discharge a PSSO could be used.

6 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 will order its production from the person holding it. Where the title is not produced an advertisement will 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.

Note: Additional fees relating to advertisement will be charged.

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.

7 Also see

- PSS-01 Property (Seizure and Sale) Order (PSSO)

- PSS-02 Property (Seizure and Sale) Order - removal

VES-01 Vesting Orders

Version 1 - 11/07/2018

1 Vesting Orders (Section 182 of the TLA)

1.1 Overview

Where land is held in trust by the registered proprietor, any person entitled to be registered may make an application 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 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.

1.2 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 and showing how that status was obtained. If applicable, there should be 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
contract of sale or other document evidencing the acquiring of the land an asset of the trust
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, together with any other applicable trust deeds

Where possible, documentary evidence should be Landgate sighted or the equivalent. The duplicate certificate of title (if any) must be produced.

1.3 Preparation, Stamping and Processing of the Order

If the Application is granted, the Commissioner will instruct Landgate staff to prepare a vesting order and signs it when prepared.

Vesting Orders are subject to assessment of duty by RevenueWA. The order may then be collected from Landgate by the applicant, or the solicitor for the applicant, or alternatively posted.

Once assessed and endorsed by RevenueWA, the order is returned to Landgate staff, who arrange for final 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.

2 Vesting Orders (Section 183 of the TLA)

2.1 Overview

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 Application form 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.

2.2 Evidence Required

A statutory declaration by the applicant stating the facts with the above proof as annexures is required. Where possible, the annexures should be Landgate sighted or the equivalent.

If the Application is granted, the Commissioner will instruct Landgate staff to prepare a vesting order and signs it when prepared.

Vesting Orders are subject to assessment of duty by RevenueWA. The order may then be collected from Landgate by the applicant, or the solicitor for the applicant, or alternatively posted.

Once assessed and endorsed by RevenueWA, the order is returned to Landgate staff, who arrange for final processing.

The procedure is then completed by having the name of the applicant endorsed on the first schedule of the relevant certificate of title.

3 Vesting Orders (Section 242 of the TLA)

3.1 Overview

Where the Family Court or other Court has made an order that:

land jointly owned be vested in one of the parties,

land owned by one of the parties be vested in the other party,

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 an 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 an Application form, 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 Landgate toolkit Dec-03 will need to be met.

If there is a simple severance with no other orders applying to the property, then 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.

3.1.1 Mortgagee Vesting under Transfer of Assets

For bank integration matters, in all instances where a successor in law lodges a power of sale transfer and the former mortgagee’s name is shown on the title, the transfer is required to be preceded by an application by the successor in law asking that the mortgage vest to itself pursuant to Section 242 of the Transfer of Land Act 1893.

Applications of this nature are also made on a Form A5. The vesting application should be accompanied by a Certificate of Transfer pursuant to the Financial Sector (Business Transfer and Group Restructure) Act 1999 issued by the Australian Prudential Regulation Authority (APRA). A statutory declaration is not usually required to support an application of this type, unless needed for clarification purposes.

3.2 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.

VOI-01 Western Australian Registrar and Commissioner of Titles Joint Practice: Verification of Identity and Authority. Paper Based Transactions

Version 2 - 20/02/2018

1 Overview

This Verification of Identity and Authority Practice (the Practice), issued jointly by the Western Australian Registrar of Titles and Commissioner of Titles, sets out the minimum standard of Verification of Identity for registered proprietors and others who sign a range of real property paper documents that are to be lodged with Landgate.

Full compliance with this Practice has been required since 2 January 2013, after it commenced operation transitionally on 1 July 2012.

The Western Australian Commissioner of Titles and Registrar of Titles have updated and aligned their Practice.

This updated and aligned Practice commenced on 12 February 2018, with a transitional period available for represented parties until 05 June 2018. Following this date, it will also be mandatory for Transferees and Caveators to have their identity verified.

The key updates to this Practice include:

The application of the Practice for verification of identity to buyers of land and to caveators who lodge and who withdraw caveats
The update of the categories of acceptable identification documents to align with those used in national electronic conveyancing
Elaboration of the processes for conducting verification of identity in foreign countries
Improving the procedures for self-represented parties.

This Practice does not apply to:

enduring powers of attorney made under the Guardianship and Administration Act 1990
documents lodged under the Land Administration Act 1997 (LAA)
real estate agents carrying out real estate functions.

The Practice 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 Transfer of Land Act 1893 (TLA).

Verification of Identity is required for nominated electronic and paper based land transactions. This Practice outlines the requirements for paper based transactions for land located in Western Australia.

This Practice is now comprised of the following Guides:

VOI-01 Western Australian Registrar and Commissioner of Titles Joint Practice: Verification of Identity and Authority. Paper Based Transactions (this document)
VOI-02 Western Australian Registrar and Commissioner of Titles Joint Practice: Verification of Identity and Authority. Paper Based Transactions - How to Complete a Verification of Identity
VOI-03 Western Australian Registrar and Commissioner of Titles Joint Practice: Verification of Identity and Authority. Paper Based Transactions – Foreign Countries
VOI-04 Verification of Identity and Authority - Electronic Transactions

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 responsibility for verification of identity is at all times that of the conveyancer/lawyer/mortgagee.

Self-represented parties must be identified by an Identifier who is authorised by the Registrar of Titles. ; For further information, please refer to: VOI-02 Western Australian Registrar and Commissioner of Titles Joint Practice: Verification of Identity and Authority. Paper Based Transactions- How to Complete a Verification of Identity
Verification of identity performed outside of Australia should be undertaken by an Australian Consular Officer. An Australian Consular Officer should also witness the execution of the document. For further information, please refer to: VOI-03 Western Australian Registrar and Commissioner of Titles Joint Practice: Verification of Identity and Authority. Paper Based Transactions - Foreign Countries

The requirements for electronic transactions are similar to those that operate in paper and are contained in the WA Participation Rules. For further information on the requirements for electronic transactions please refer to: VOI-04 Verification of Identity and Authority - Electronic Transactions.

2 Application of the Verification of Identity 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 Buyer/Transferee	Registrar of Titles
Mortgage	Mortgagor	Registrar of Titles
Request for Duplicate Certificate of Title	Registered Proprietor, Applicant	Commissioner of Titles
Replacement Duplicate Certificate of Title	Registered Proprietor, Applicant	Commissioner of Titles
Transmission	Executor/Administrator, Applicant	Commissioner of Titles
Survivorship	Survivor, Applicant	Commissioner of Titles
Power of Attorney	Donor	Registrar of Titles
Caveat	Caveator	Registrar of Titles
Withdrawal of Caveat	Caveator	Registrar of Titles

Note: VOI is required of the caveator, not of a solicitor preparing or signing that caveat on behalf of their client or lodging a caveat for their client.

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.

Where a previous Customer Information Bulletin (CIB) issued in relation to Verification of Identity is inconsistent with this Practice, this Practice prevails.

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 Licensed Conveyancer or lawyer before financial settlement and before documents are signed

The Department of Mines, Industry Regulation and Safety is responsible for regulating real estate agents and licensed conveyancers. 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 1981) 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.

Licensed Conveyancers

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 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.

2.1 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 authorised Identifier. Self-represented parties are unable to have their identity verified overseas.

2.2 Verification of Identity 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

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.

Information on how to complete a Verification of Identity in accordance with the standard is contained in VOI-02 Western Australian Registrar and Commissioner of Titles Joint Practice: Verification of Identity and Authority. Paper Based Transactions- How To Complete a Verification of Identity.

3 Who should be identified?

Subject to the exception for ongoing relationships (refer 5.1 below), the Verification of Identity Practice must be applied to each natural person:

executing a document as specified at Table 1 in section 2 above.
executing a document specified at Table 1 on behalf of a Company/Incorporated body/Statutory body, and
making a Declaration of Identity in accordance with the Identity Document Production Standard (see paragraph 3.1 of VOI-02 Western Australian Registrar and Commissioner of Titles Joint Practice: Verification of Identity and Authority. Paper Based Transactions- How To Complete a Verification of Identity.)

4 Who can conduct Verification of Identity?

The Identifier undertakes verification of identity in accordance with this Practice.

4.1 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.

4.2 Self-represented parties

Effective on 12 February 2018, Australia Post has been authorised by the Registrar of Titles to conduct Verification of Identity of self-represented parties in accordance with this Practice.

On successful completion of the Verification of Identity and Authority, Australia Post will issue a Statement – Self Represented Party to the person being identified. Each Statement – Self Represented Party should have a unique identifier and a report of the details of the statements issued is to be provided to the Registrar on a regular basis.

A self-represented party who has been identified by Australia Post should ensure the original Statement – Self Represented Party is attached to the document(s) lodged with Landgate for registration.

For further information, please refer to: https://auspost.com.au/id-and-document-services/identity-checks-for-property-transfers/identity-checks-self-represented-parties-wa.

4.3 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.

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).

The process for verifying identity overseas can be found here: VOI-03 Western Australian Registrar and Commissioner of Titles Joint Practice: Verification of Identity and Authority. Paper Based Transactions – Foreign Countries.

5 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.

5.1 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:

5.1.1 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.

5.1.2 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.

6 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 or 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.

7 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

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/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/conveyancer/lawyer/mortgagee forms the view that the details in the passport are not similar to the person presenting the document

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/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
The Department of Mines, Industry Regulation and Safety if real estate or settlement agents are involved

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 numbers, as well as the names of the parties involved should be provided.

8 Further information

- VOI-02 Western Australian Registrar and Commissioner of Titles Joint Practice: Verification of Identity and Authority. Paper Based Transactions- How to Complete a Verification of Identity

- VOI-03 Western Australian Registrar and Commissioner of Titles Joint Practice: Verification of Identity and Authority. Paper Based Transactions – Foreign Countries

- VOI-04 Verification of Identity and Authority - Electronic Transactions

VOI-02 Western Australian Registrar and Commissioner of Titles Joint Practice: Verification of Identity and Authority. Paper Based Transactions - How to Complete a Verification of Identity

Version 2 – 06/04/2020

1 Overview

The Verification of Identity Practice (the Practice), issued jointly by the Western Australian Registrar of Titles and Commissioner of Titles sets out the minimum standard of Verification of Identity for registered proprietors and others who sign a range of real property paper documents that are to be lodged with Landgate.

This Practice outlines the requirements for conducting a verification identity for a paper based transaction. This Practice is now comprised of the following Guides:

VOI-01 Western Australian Registrar and Commissioner of Titles Joint Practice: Verification of Identity and Authority. Paper Based Transactions
VOI-02 Western Australian Registrar and Commissioner of Titles Joint Practice: Verification of Identity and Authority. Paper Based Transactions - How To Complete a Verification of Identity (this document)
VOI-03 Western Australian Registrar and Commissioner of Titles Joint Practice: Verification of Identity and Authority. Paper Based Transactions - Foreign Countries

Please refer to VOI-04 Verification of Identity and Authority - Electronic Transactions for details on the verification of identity requirements for electronic transactions.

Australia Post has been authorised by the Registrar of Titles to conduct Verification of Identity of self-represented parties in accordance with this Practice. For further information, please refer to: https://auspost.com.au/id-and-document-services/identity-checks-for-property-transfers/identity-checks-self-represented-parties-wa.

Verification of Identity 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 1 below.

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 1 below).

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.

1.1 Verification of Identity – Inside Australia – COVID 19 Emergency¹

Where face-to-face VOI cannot be completed as a direct result of COVID-19, conveyancers, legal practitioners and mortgagees are to take reasonable steps to verify the identity of the parties for both paper-based and electronic transactions. Conveyancers, legal practitioners and mortgagees are responsible for determining what is reasonable under the circumstances. As usual, evidence of these steps is required to be documented and retained in accordance with normal practice.

Refer to: CIB 331 COVID-19 Impacts on requirements for Verification of Identity inside and outside Australia and document witnessing outside of Australia

¹Updated to include section 1.1 Verification of Identity - Inside Australia - COVID 19 Emergency

2 Identity Document Production Standard

The person who is being identified should produce, to the person who performs the identification (the Identifier), all the current and original identity documents specified in the highest category possible detailed at Table 1 below.

The highest category are those documents in category 1, with the lowest standard being category 5.

Category 6 is for foreign nationals who cannot meet the requirements of category 1, 2, 3 or 4.

Table 1 – Categories of Identification Documents

The Documents produced must be current, except for an expired Australian Passport which has not been cancelled and was current within the preceding 2 years.

Category	Minimum Document Requirements
	For Persons who are Australian citizens or residents
1	Australian Passport or foreign passport plus Australian drivers licence with photo or Photo Card plus change of name or marriage certificate if necessary ____________________________________________________
2	Australian Passport or foreign passport plus full birth certificate or citizenship certificate or descent certificate plus Medicare or Centrelink or Department of Veterans’ Affairs card plus change of name or marriage certificate if necessary ____________________________________________________
3	Australian drivers licence with photo or Photo Card plus full birth certificate or citizenship certificate or descent certificate plus Medicare or Centrelink or Department of Veterans’ Affairs card plus change of name or marriage certificate if necessary ____________________________________________________
4	(a) Australian Passport or foreign passport plus another form of Australian State Government or Commonwealth Government issued photographic identity Document plus change of name or marriage certificate if necessary (b) Australian Passport or foreign passport plus full birth certificate plus another form of Australian State Government or Commonwealth Government issued identity Document plus change of name or marriage certificate if necessary ____________________________________________________
5	(a) Declaration of Identity plus full birth certificate or citizenship certificate or descent certificate plus Medicare or Centrelink or Department of Veterans’ Affairs card plus change of name or marriage certificate if necessary (b) Identifier Declaration by a Person specified in section 3.1.1 below plus Medicare or Centrelink or Department of Veterans’ Affairs card plus change of name or marriage certificate if necessary ____________________________________________________
	For Persons who are not Australian Citizens or Residents
6	(a) Foreign passport plus another form of government issued photographic identity Document plus change of name or marriage certificate if necessary (b) Foreign passport plus full birth certificate plus another form of government issued identity Document ____________________________________________________

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.

As to category 5 documents, where a Declaration of Identity is being used as an identity document, Verification of Identity of the person making the Declaration of Identity 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

2.1 Category 5 – Declaration of Identity

Category 5 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, 3 or 4.

Categories 5 and 6 are 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 who needs to be identified (that is the person who signs the land transaction document/s) must present in person to an Identifier and produce all the current original documents specified, in category 5, including the Declaration of Identity.

2.1.1 The Declaration of Identity

To satisfy the requirements of category 5, the person who makes the Declaration of Identity must have their own identity verified by another ‘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:

is over the age of 18
has known the person being identified for more than 12 months and who is executing the documents
is not a relative of the person being identified and who is executing the documents
is not the person’s agent in the transaction
is not a party to the document. Where Category 5(b) is used, The Registrar of Titles and the Commissioner of Titles strongly recommend that the person who makes the Declaration of Identity is an Australian Legal Practitioner, a Bank Manager, Community Leader, Court Officer, Doctor, Land Council Officeholder, Licensed Conveyancer, Local Government Officeholder, Nurse, Police Officer or Public Servant.

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 1 above.

Copies of all original identity documents produced to the Identifier must be certified by the Identifier and attached to the Declaration of Identity.

The conveyancer/lawyer/mortgagee should receive certified copies of identity documents used to identify both the person being identified and the Identifier along with the Declaration of Identity.

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 cheekbones rather than the colour and cut of a person’s hair or makeup used.

4 How to Identify Companies/Incorporated Bodies/Statutory Bodies

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:

The continued existence of the body at the time of execution of the document
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
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

A conveyancer/lawyer/mortgagee may be able to satisfy themselves as to those matters by the following:

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.
In the case of an incorporated body not incorporated under the Corporations Act (including a foreign registered body) by obtaining the following:
- evidence that is not more than 30 days old at the time of Verification of Identity to establish the continued existence of the body;
- 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;
- 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

5 The Identifier’s Role

5.1 Verification of Identity conducted by the Conveyancer/Lawyer/Mortgagee

The Registrar and Commissioner recommend that, on completion of the Verification of Identity, the Identifier make a complete copy of the original identity documents relied upon and do the following:

Complete the Identifier’s Certificate C1 for each individual identified and refer to and attach the copies of the identity documents relied upon
Sign their name and date each copy of the identity documents stating that it is a true copy of the original
Witness the execution of the relevant transaction document after the identity of the person has been verified.

5.2 Verification of Identity conducted by a Third Party

The conveyancer/lawyer/mortgagee who appoints an agent to conduct the verification of identity on his/her behalf may decide whether or not to require an Identifier’s Certificate from their Identifier. The Registrar and Commissioner of Titles are not involved with the arrangements because they rely upon the responsibility of the conveyancer/lawyer/mortgagee to confirm the identity.

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.

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 the land, they should either:

Verify the identity of the person themselves in accordance with this Practice

Arrange for the person to be identified again in accordance with this Practice

Take what other actions they consider appropriate.

5.3 Identity Documents and supporting evidence

5.3.1 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 within those documents, whilst those documents are in the possession of the conveyancer/lawyer/mortgagee.

5.3.2 Retention

The Registrar and Commissioner recommend that the conveyancer/lawyer/mortgagees retain any certified copies of the identity documents and evidence supporting the identity and authority of the person being identified for at least seven years from the date of verification of identity.

6 Mere Mechanical Compliance is not Sufficient

A name or address is not exactly the same as the name of the current registered proprietor

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/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/conveyancer/lawyer/mortgagee forms the view that the details in the passport are not similar to the person presenting the document

The name on the various identity documents are not the same and if relevant are not the same as on the certificate of title.

WA Police

and

The Department of Mines, Industry Regulation and Safety, if real estate or settlement agents are involved.

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 numbers, as well as the names of the parties involved should be provided.

7 Documents to be provided to the Registrar/Commissioner of Titles

7.1 Statement by Conveyancer/Lawyer/Mortgagee

In the event that multiple documents are being lodged, each document to which the Verification of Identity practice applies is required to have its own statement made by the conveyancer/lawyer or 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:

Made by the conveyancer/lawyer acting for the party identified or made by the mortgagee who identifies the mortgagor

and

Lodged together with the documents for registration or noting.

The statement should include these three key elements:

I have taken all reasonable steps to verify the identity of my client/the mortgagor

and

I reasonably believe that my client/mortgagor has been identified

and

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
Include an email address of the conveyancer/lawyer or mortgagee.

and also, as appropriate sections 7.2 or 7.3 below:

7.2 For use when 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, Power of Attorney, Caveat, or Withdrawal of Caveat:

"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 numbers)".

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.

7.3 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 of)

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 titles volume and folio numbers)."

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/have 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 is to endorse the statement on the Transfer of Land Act 1893 document itself as part of some approved forms of mortgages and transfers lodged for registration or noting. The statement on the form itself will cover the substantive points required in the statutory declaration or letter.

The Registrar and Commissioner of Titles consider that our Practice amounts to and is reasonable steps.

8 Suggested Identifier Certificates

Suggested Identifier Certificate for Guidance Only.

Identifier to complete (provided to conveyancer/lawyer/mortgagee with Identity Documents).

(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).

(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: …………………………………………………………

List of identification documents produced (see item (c) above):

Description of Identity documents and page number in set of copies to be stated.

9 Further Information

VOI-01 Western Australian Registrar and Commissioner of Titles Joint Practice: Verification of Identity and Authority. Paper Based Transactions

VOI-03 Western Australian Registrar and Commissioner of Titles Joint Practice: Verification of Identity and Authority. Paper Based Transactions - How to Complete a Verification of Identity Overseas

VOI-04 Verification of Identity and Authority - Electronic Transactions

CIB 331 COVID-19 Impacts on requirements for Verification of Identity inside and outside Australia and document witnessing outside of Australia

VOI-03 Western Australian Registrar and Commissioner of Titles Joint Practice: Verification of Identity and Authority. Paper Based Transactions - Foreign Countries

Version 2 – 06/04/2020

1 Overview

This Practice outlines the requirements for conducting a verification identity for a paper based transaction. This Practice is now comprised of the following Guides:

VOI-01 Western Australian Registrar and Commissioner of Titles Joint Practice: Verification of Identity and Authority. Paper Based Transactions
VOI-02 Western Australian Registrar and Commissioner of Titles Joint Practice: Verification of Identity and Authority. Paper Based Transactions- How to Complete a Verification of Identity
VOI-03 Verification of Identity and Authority - Foreign Countries – Paper Based Transactions (this document)

Please refer to VOI-04 Verification of Identity and Authority - Electronic Transactions for details on the verification of identity requirements for electronic transactions.

1.1 Verification of Identity – Outside Australia – COVID-19 Emergency¹

Refer to: CIB 331 COVID-19 Impacts on requirements for Verification of Identity inside and outside Australia and document witnessing outside of Australia

¹Updated to included 1.1 Verfication of Identity - OUtside Australia - COvID Emergency 06/04/2020

The processes and procedures for verification of identity in a foreign country contained in this guide are applicable to both paper based and electronic transactions.

A verification of identity conducted in a foreign country must be conducted by utilising the services of an Australian Embassy, High Commission or Consulate.

Positions that are within the definition of an Australian Consular Officer in section 145(4) of the TLA 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
Consular Agent.

A self-represented party cannot have his/her identity verification conducted overseas.

2 Australian Embassy/High Commission/Consulate Overseas Verification of Identity and Witnessing Process

This information is taken directly from the DFAT Smarttraveller.gov.au website. Please refer to the Notarial services and document legalisation overseas web page.

Whilst the process uses the terminology of Australian national electronic conveyancing, the same process applies to paper transactions by substituting paper instrument for Client Authorisation and by substituting conveyancer/lawyer/mortgagee for Subscriber.

A client or mortgagor located overseas contacts a Subscriber or mortgagee concerning a conveyancing transaction relating to Australian land.
The Subscriber or mortgagee takes initial instructions from the client or mortgagor and conducts preliminary enquiries – full name and contact details for the client or mortgagor, land description, transaction details (sale, purchase, mortgage etc.).
The Subscriber or mortgagee reviews with the client or mortgagor what identification documents they have available to them and determines the highest document category in the Verification of Identity Standard they can satisfy.
The Subscriber or mortgagee advises the client or mortgagor that they will need to have their identity verified and signature witnessed by an employee at an Australian Embassy, High Commission or Consulate (Australian Consular Office). The Subscriber or mortgagee advises the client or mortgagor to find out where the nearest Australian Consular Office is located, to make preliminary contact with the Australian Consular Office to make an appointment (where necessary) and to notify the Subscriber or mortgagee of the Australian Consular Office location.
The Subscriber or mortgagee takes reasonable steps to determine the client or mortgagor’s right to deal as a particular party to the conveyancing transaction.
The Subscriber or mortgagee prepares a Client Authorisation or mortgage and the approved Australian Embassy/High Commission/Consulate Identity/Witnessing Certification (Certification) and sends them to the client or mortgagor with written instructions advising of the process and what original and current identification documents are to be produced at the nominated Australian Consular Office (passport, driver’s license etc.). The format of the Certification is at the end of this Appendix and the Certification Form is available from the ARNECC website.
The client or mortgagor attends the nominated Australian Consular Office with the prepared Client Authorisation or mortgage and Certification, original identification documents and the Subscriber or mortgagee’s written instructions.
The Australian Consular Office satisfies itself that the photos on the identification documents produced by the client or mortgagor are a reasonable likeness of the client or mortgagor. If this is not possible, the Australian Consular Office service is terminated.
When reasonable likeness is confirmed, the Australian Consular Office:
- prepares endorsed copies of all original identification documents produced by the client or mortgagor;
- asks the client or mortgagor to sign the Client Authorisation or mortgage and the Australian Consular Office witnesses the client or mortgagor’s signature on the Client Authorisation or mortgage
- completes, signs, dates and endorses the Certification for the client or mortgagor
The Australian Consular Office hands to the client or mortgagor the:
- original identification documents; signed Client Authorisation or mortgage;
- signed, dated and endorsed copies of the original identification documents produced;
- signed, dated and endorsed Certification
The client or mortgagor delivers the signed Client Authorisation or mortgage, endorsed copies of the original identification documents produced and the Certification to the Subscriber or mortgagee. (The means of delivery are to be arranged between the client or mortgagor and the Subscriber or mortgagee.)
If the Subscriber or mortgagee has any reason to doubt the authenticity of any of the documents received from the client or mortgagor, copies of the Australian Consular Office endorsements and Certification can be referred to the Department of Foreign Affairs and Trade (DFAT) by email for confirmation that the signatures and stamps appearing on the documents are that of a DFAT officer. For example, if the documents don’t bear a stamp of the Australian Consular Office, the name of the Australian Consular Office officer is not clear or there are other circumstances surrounding the transaction that cause doubt, such as signatures of clients not matching.

The following process applies for these referrals:

The Subscriber or mortgagee emails the Australian Consular Office officer who made the endorsements and certification using the standard email format <firstname>.<lastname>@dfat.gov.au (or in the same format with @austrade.gov.au for those consulates run by Austrade) supplying details of the service provided to the client or mortgagor and requesting confirmation that the Australian Consular Office provided the service. The request is to include copies of the endorsed document copies and the Certification supplied by the client or mortgagor. The reason for the referral is to be included in the request to allow DFAT to determine whether any aspect of the Australian Consular Office’s service gave rise to the referral.
The Australian Consular Office will, if work demands allow, reply to the request providing confirmation of the service provided. Alternatively, the Subscriber or mortgagee will receive an automatic read receipt email confirming that the Australian Consular Office officer exists as an employee of DFAT.
If the Subscriber or mortgagee receives no response or cannot for any reason determine the name of the Australian Consular Office officer who made the endorsements or certification (for example, when the Australian Consular Office stamp obscures part of the Australian Consular Office officer’s name), the Subscriber or mortgagee should email DFAT’s Consular Policy Unit at consular.policy@dfat.gov.au requesting confirmation of the service provided by an Australian Consular Office and, when no response has been received from a request made directly to the Australian Consular Office, attaching a copy of that request.

In responding to confirmation requests DFAT is confirming that the Australian Consular Office officer’s signature and the Australian Consular Office stamp on a document are from an authorised officer.

3 Australian Embassy/High Commission/Consulate Identity/Witnessing Certification

"I, _________________________________________________ [full name of authorised employee /consular or diplomatic officer]

of _________________________________________________ [Australian Embassy/High Commission/Consulate]

being an authorised employee/consular or diplomatic officer within the meaning of the Section 3 of the Consular Fees Act 1955 hereby certify that:

(a) the identification/witnessing relates to _______________________________________________________________________[full name of the person being identified] (‘the person being identified’); and

(b) the verification of identity/witnessing was carried out on___________________[date]; and

(c) the original current identification documents as listed below were produced to me and copies of these documents signed, dated and endorsed by me as true copies were provided to the person being identified; and

(d) the verification of identity/witnessing was conducted in accordance with the Department of Foreign Affairs and Trade policy for verification of identity, witnessing signatures on documents and making of endorsed copies and in response to the written instructions provided by the person being identified’s Australian Legal Practitioner, Law Practice, Licensed Conveyancer or mortgagee; and

(e) the person being identified was physically present for the verification of identity and the witnessing of the document(s) listed at paragraph (g); and

(f) I am not a party to the transaction; and

(g) I witnessed the person being identified execute the following document/documents _____________________________________________________________________
(e.g. Client Authorisation, transfer of land, mortgage of land etc.); and

(h) this signed, dated and endorsed certification; the signed, dated and endorsed copy identity documents (listed below); and the witnessed document(s) listed in paragraph (g); were returned to the person being identified.

………………………………………………………………………….

Signature of authorised employee/consular or diplomatic officer |Post Stamp|

List of identification documents produced (see (c) above):

Description of identity documents produced and endorsed

………………………………………………………………………….

4 Further Information

VOI-01 Western Australian Registrar and Commissioner of Titles Joint Practice: Verification of Identity and Authority. Paper Based Transactions

VOI-02 Western Australian Registrar and Commissioner of Titles Joint Practice: Verification of Identity and Authority. Paper Based Transactions- How to Complete a Verification of Identity

VOI-04 Verification of Identity and Authority - Electronic Transactions

WA Participation Rules

ARNECC - Verification of Identity Guidance Notes

DFAT Notarial services and document legalisation overseas web page

CIB 331 COVID-19 Impacts on requirements for Verification of Identity inside and outside Australia and document witnessing outside of Australia

VOI-04 Verification of Identity and Authority- Electronic Transactions

Version 2 – 06/04/2020

1 Overview

Verification of Identity and authority is required for nominated electronic and paper based land transactions. The requirements for electronic transactions are similar to those that operate in paper and are contained in the Western Australian Participation Rules. For further information on the Verification of Identity Practice for paper based transactions, please refer to:

Self-represented parties cannot undertake electronic conveyancing transactions.

1.1 Verification of Identity – Inside and Outside Australia – COVID-19 Emergency¹

Refer to: CIB 331 COVID-19 Impacts on requirements for Verification of Identity inside and outside Australia and document witnessing outside of Australia

¹Updated include section 1.1 Verification of Identity - Inside and Outside Australia - COVID-19 Emergency 06/04/2020

2 Western Australian Participation Rules

For full details of the Verification of Identity requirements for electronic transactions, refer to the WA Participation Rules

3 Further Information

WA Participation Rules Version 5

ARNECC Guidance Note - Verification of Identity

CIB 331 COVID-19 Impacts on requirements for Verification of Identity inside and outside Australia and document witnessing outside of Australia

Encumbrances, Interests and Limitations

CAR-01 Carbon Rights and Carbon Covenants

Version 1 – 11/10/2017

1 Overview

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 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.

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 lessee’s interest in freehold or Crown land
a grantees interest in a Profit à Prendre under the LAA
a grantees interest in a Timber Share-farming Agreement under the CALM Act

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.

4 Registration of a Carbon Right

4.1 Lodging the CR1

To create a carbon right, a Carbon Right form 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, transfer, variation, extension or surrender of the interest created under the Carbon Rights Act 2003.

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.

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.

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.

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 CAR-02 Section 1), transferred (see CAR-02 Section 2), mortgaged (see CAR-02 Section 3) or surrendered (see CAR-02 Section 4). 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.

5 Carbon Covenants

A carbon covenant sets out the covenants (positive and negative) on which:

other interests in land can be exercised

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.

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 à 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.

6 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.

7 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 Carbon Covenant form has been created for this purpose and can be downloaded from the Landgate website under https://www0.landgate.wa.gov.au/for-individuals/Land-Transactions-toolkit/forms-and-fees.

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.

8 Registration of a Carbon Covenant

8.1 Lodging the CC1

To create a carbon covenant, a Carbon Covenant form 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, transfer, variation, extension or surrender of the interest created under the Carbon Rights Act 2003.

The Carbon Covenant form 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.

8.2 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.

8.3 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.

8.4 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 CAR-02 Section 5), varied (see CAR-02 Section 6) transferred (see CAR-02 Section 1 7), mortgaged (see CAR-02 Section 8) or surrendered (see CAR-02 Section 9). It can also be devised under a Will and be the subject of a Property (Seizure and Sale) Order.

9 Also see

- CAR-02 Carbon Rights - amendments to

CAR-02 Carbon Rights and Carbon Covenants Rights - amendments to

Version 2 – 04/01/2018

1 Extension of a Carbon Right

1.1 Registering an Extension

A carbon right may be extended by the registration of a Extension of Carbon Right form upon payment of the prescribed registration fee.

The duplicate title (if any) must be produced with the extension.

1.2 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.

2 Transfer of a Carbon Right

A carbon right may be transferred by the registration of a Transfer of Carbon Right form upon payment of the prescribed registration fee.

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 proprietor’s 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 Transfer of Carbon Right and Carbon Covenant form.

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.

3 Mortgage of a Carbon Right

A carbon right interest in land can be mortgaged using the National Mortgage Form (NMF)

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.

4 Surrender of a Carbon Right

A carbon right may be wholly or partially surrendered by the registration of a Surrender of Carbon Right form upon payment of the prescribed registration fee.

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.

Carbon Covenants Rights – Amendments to

5 Extension of a Carbon Covenant

5.1 Registering an Extension

A carbon covenant may be extended by the registration of a Extension of Carbon Covenant form upon payment of the prescribed registration fee.

The term of the extension cannot be longer than the term of the relevant carbon right.

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

the area of the burdened land to which the covenant applies.

The duplicate title (if any) must be produced with the extension.

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
the relevant carbon right.

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.

6 Variation of a Carbon Covenant

6.1 Registering a Variation

The provisions of a carbon covenant may be varied by the registration of a Variation of Carbon Covenant form upon payment of the prescribed registration fee.

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.

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
the relevant carbon right.

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.

7 Transfer of Benefits under a Carbon Covenant

A carbon covenant may be transferred by the registration of a Transfer of Carbon Right and Carbon Covenant form upon payment of the prescribed registration fee.

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.

8 Mortgage of a Carbon Covenant

A carbon covenant interest in land can be mortgaged using the National Mortgage Form (NMF).

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.

9 Surrender of a Carbon Covenant

A carbon covenant may be wholly or partially surrendered by the registration of a Surrender of Carbon Covenant form upon payment of the prescribed registration fee.

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.

10 Also see

- CAR-01 Carbon Rights & Carbon Covenants

CAV-01 Caveats - overview and purpose

Version 2 - 06/08/2018

Verification of Identity

The caveator in an application will be subject to the Verification of Identity process as of 5 June 2018. This process is completed by Australia Post for self-represented parties. Refer to the Australia Post website to complete your verification of identity. For information regarding the Verification of Identity Practice refer to Verification of Identity webpage on the Landgate website.

^{[1 New paragraph added on 06/08/2018]}

1 Overview

The word caveat is not expressly defined in the Transfer of Land Act 1893 (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).

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.

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.

3 Also see

- CAV-04 Caveats - document preparation and lodgement

- CAV-06 Caveats - removal - document preparation lodgement

CAV-02 Caveats - further reading

Version 3 - 02/11/2018

¹Verification of Identity

^{[1 New paragraph added on 06/08/2018]}

1 Entry of a Caveat

Provided a caveat is substantially in a form approved by the Registrar, 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.

The duplicate certificate of title is not required for this transaction type.

Standard lodgement fees are applicable to each form.

2 Improper Entry of Caveat

Under s.138 of the Transfer of Land Act 1893 (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.

3 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 (e.g. 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

and

give notice of the caveat to the registered proprietor and any judgement creditor named in any property (Seizure and Sale) order registered in respect of the judgment debtor’s saleable interest in such land.

4 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.

5 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
as beneficial co-owner
the beneficiary of a trust, against land held by a trustee for the trust
as trustee in Bankruptcy
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.

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.

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.

6 Interest that may not Support a Caveat

There are some interests that may not constitute a caveatable interest. These types of claims should be addressed and established by a legal professional. The interests listed below may fall into this category:

Disputes relating to dividing fences is covered by the Dividing Fences Act 1961
General or Common Debts may be covered by the Civil Judgements Act 2004
Strata Fees and Levies are a form of Common Debt and may come under the above
Legal Fees, unless incorporated into the legal contract

Trustees of a Trust or Superannuation fund should consider lodging a Declaration of Trust to indicate and protect that interest.

The interests stated above are governed by other legislations, claims under these Acts may enable other forms of claims or interests to be lodged. An Industry Professional could assist with the interpretation and application of these legislations.

6.1 Double Interest Caveats

A caveat may be lodged where there are different owners over different titles in the same form. The caveator would be required to lodge separate forms for each owner using the same evidence. This form of caveat would only be acceptable if the interest is limited to the same person over the different titles.

For example:

Property 1 is in the name of A

Property 2 is in the names of A & B

The claim is limited to the interest or share of A only

7 Nature of the Caveator’s Claim

A caveator can restrict dealings by a registered proprietor with three types of claim; which are outlined below.

7.1 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.

7.2 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.

The notice must:

Be addressed to the caveator, and if more than one caveator, be separately addressed.
Refer to the caveator, and the caveat number.
Give the particulars of the instrument(s) to be lodged subject to the caveat by reference to:
- the nature of the instrument
- the parties to the instrument
- the date of the instrument.

and

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.

7.3 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.

8 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 Caveat form available for this purpose. This form can be used for caveats over freehold or Crown land. The Caveat Improper Dealings form is available for Caveats (Improper Dealings).

Caveats under s.30 against Applications to bring land under the operation of the TLA must be prepared on a form approved by the Registrar. There is a printed form of Caveat, designated Caveat (under s.30 and 223A of the TLA) form, available for this purpose.

Caveats under s.176 against Applications to rectify the boundaries or area and 223A against Applications by Possession must be prepared on a form approved by the Registrar. There is a printed form of Caveat, designated Caveat forbidding land to be brought under the Transfer of Land Act 1893 (Section 30) form, available for this purpose.

Note: Landgate introduced the ability to lodge Caveats electronically in May 2015. Also see policy and procedure guide: DOC-01 Document Preparation.

9 Supporting Documentary Evidence

Caveats lodged in paper must be supported by the documentary evidence that established the caveatable claim. Electronically lodged caveats are subject to Certification by the Subscriber.

Documentary supporting evidence may be in the form of:

Mortgage Document
Lease or Sublease or Deed of Extension
Contract of Sale
Declaration of Trust or Deed or Superannuation Fund
Deeds or Contractual Agreements
In instances where no document/Deed or Contract exists a Statutory Declaration must be used

The supporting documentary evidence should clearly identify the parties, a link to the land being caveated, address the claim and signed by all parties.

If a caveat is lodged which requires the production of a document or 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 the specified timeframe from the date of the requisition can lead to rejection of the caveat.

Note: Reference to the supporting evidence should be clearly stated by name and date in the relevant panel.

10 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.

Note: Also see policy and procedure guide: DOC-04 Statutory Declarations.

11 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. 176 and s.223A of the TLA.

12 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 address for service of notice to the caveator is most important. Caveators and persons acting on their behalf should ensure that such an address is kept current. Also see policy and procedure guide: ADD-01 Change of Address.

13 Also see

- CAV-04 Caveats - document preparation and lodgement

CAV-03 Caveats - types of

Version 4 - 27/07/2020

Verification of Identity

^{1 [Guide updated to add new paragraph on 06/08/2018]}

1 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

the caveator/registered proprietor has revoked a power of attorney but has been unable to contact the attorney to give advice of the revocation

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.

2 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 Caveat (Improper Dealings) form 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.

3 Types of Caveats under the TLA

Caveats may be lodged under the provisions of the following sections of the TLA:

a caveat forbidding the bringing of land under the TLA
a caveat against the granting of an application to rectify the boundaries or area of a certificate of title

and

s.188(7) - a caveat lodged by the Registrar.

4 Caveats Lodged under Section 137 of the TLA and Section 20 of the LAA

4.1 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 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 4.1 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.

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 (e.g. easement) between the State of Western Australia and the caveator.

The management body is shown in the registered proprietor panel for evidence (e.g. leases) based on a management order or vesting. The lessee is shown in the registered proprietor panel for evidence (e.g. mortgages) based on a lease.

4.3 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.

4.4 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."

4.5 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.

4.6 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."

5 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 Caveat (under s.30 and 223A of the TLA) form, 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

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.

6 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 above.

7 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 above.

8 Registrar’s Caveats (NEW)

A Registrar’s Caveat is/may be lodged under the instructions from the Commissioner of Titles under section 188 of the Transfer of Land Act to prevent improper dealings or protect the interest of a person where the proprietor lacks legal capacity. Common situations that may occur are:

Deposit of a Deed of Trust – see Deeds of Trusts
Following an Application to Vest the land into a new Trustee – see Application s182 and s183.
To protect a persons’ right to reside on land contained in a Will
To protect a minor/s interest disclosed in a Will
To protect a Trust created in a Will
To give notice of a "trust" incorrectly show in a Transferees Panel, Mortgagees Panel or Lessees Panel etc.
To protect the interests of a represented person under a State Administrative Tribunal Order (SAT) or where a Donor of an Enduring Power of Attorney discloses that a purchaser, mortgagee, lessee etc. lacks legal capacity to manage their own affairs
To give notice of any alleged fraud in the Register or to prevent such fraud
To prevent improper dealings, where the State Administrative Tribunal formally advise the Registrar of Title that an Enduring Power of Attorney has been revoked by the Tribunal, or that the Tribunal has determined that a person is no longer able to manage their own affairs
To prevent improper dealings, where the Registrar of Titles is formally notified by a Trustee of a Bankrupt estate that the Trustee has "Disclaimed’ properties registered in the name of a person declared to be bankrupt under the Bankruptcy Act 1966.
To prevent improper dealings, where the Registrar of Titles is formally notified by a Liquidator under the Corporations Act 2001 that the land owned has been "Disclaimed’ as onerous property.²

8.1 Disclaimed Onerous Property ²

Property can be disclaimed as onerous property by an appointed Trustee under section 133 of the Bankruptcy Act 1966 or by an appointed Liquidator under section 568 of the Corporations Act 2001.

The nature and process of dealing with disclaimed property is complex. Affected or interested persons should obtain legal advice on how to deal with land or interests in land that has been disclaimed. The role of the Registrar of Titles is to accept and note ‘Notice’ of disclaimed onerous property. The Registrar of Titles does not take an active role in the administration or management of the property once disclaimed and Landgate Officers are unable to provide assistance in this area. ¹

²Disclaimed Onerous Property dot point and section added 27/07/2020

9 Also see

- CAV-04 Caveats - document preparation and lodgement

- DOC-01 Document Preparation

CAV-04 Caveats - document preparation and lodgement

Version 3 - 08/06/2020

¹ Verification of Identity

^{[1 New paragraph added on 06/08/2018]}

1 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.

2 What do I need for the Caveat?

Title Search (recommended) – used to complete the caveat form
Forms – caveat form Caveat/Caveat forbidding land to be brought under the Transfer of Land Act 1891 (section 30)/Caveat (improper Dealings)
Copy of any evidence to support the claim as stated in the caveat (including original statutory declarations if required)
Registration fees payable to Landgate

2.1 Title Search – a copy of the current Original Certificate of Title

A title search is optional as the search provides you with a complete up to date copy of the title at the date and time the title search is obtained.

2.2 Caveat forms C1/C3/C4

Caveat Caveat/Caveat forbidding land to be brought under the Transfer of Land Act 1891 (section 30)/Caveat (improper Dealings) forms are available from a Landgate office or online from the Landgate Website.

Caveat C1 can be lodged electronically.

3 Preparing the Caveat form

In addition to the below information, please refer to: DOC-01 Document Preparation.

3.1 Description of Land

Over Whole

As per standard document preparation guide (DOC-01 Document Preparation).

Over part

Where portion of the land in a title is involved that is not the whole or a lot or part lot in that title (multi lot title) then care is needed in its description. There is a need to ensure that no more land is caveated than necessary.

The land description must make reference to the portion and be supported by a sketch that identifies the land being caveat or in the form of a narrative. That sketch should be certified correct by the caveator and in the case of an absolute caveat, be referred to the Survey Advice Office in the Landgate building in Midland.

Caveators (and their conveyancers) need to be aware that certain problems can flow from poorly described ‘portion only’ caveat, 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 sub-division of land (which in this case does not include a strata/survey-strata scheme):

the caveat will carry forward onto every part of the lot
if part of the land in the lot is to vest in the Crown under s.152 of the Planning and Development Act 2005 (P&D Act) - formerly s.20A of the Town Planning Development Act 1928 (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 which portion of land a caveat affects, it may create difficulties for or prevent the registered proprietor dealing with other parts of the land

Where the portion is over portion of the land, the ‘Extent’ panel should state ‘Part".

Reference to an annexed sketch

Where portion of the land in a certificate of title is caveated and the nature of the claim is absolute, such portion must be defined by a sketch bearing sufficient measurements to enable the land affected to be accurately plotted. The sketch should be drawn on or fixed to an additional sheet stapled to the caveat.

Where a subject to claim caveat is lodged against portion of the land in a certificate of title, it is not necessary for the sketch to be the same standard as above. It only needs to clearly establish its position of the lot/floor plan

A simple example of a land description referencing a sketch is:

"as to portion of Lot …. on Plan….as described by the hatched area in the annexed sketch"

Note: The sketch should be provided on a separate page, numbered/labelled accordingly to form part of the legal document. Not just included as part of the evidence.

Reference by Narrative 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 are 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"

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).

Over an Interest

The land being caveated must be accurately described on the caveat form. Where the interest claimed is against a mortgage, lease or charge the appropriate words "as to ……..." must precede the land description.

For example, in the case of a mortgage, the words "as to mortgage F123456" must precede the land description.

3.2 Volume/Folio

As per the standard document preparation guide (DOC-01 Document Preparation).

3.3 Caveator

The true name of the caveator must be stated.

The caveator is not required to include:

Their address
Their status, such as ‘As Trustee for…..’ . However, they can include ‘trading as…..’ or ‘as the partners of…..’

3.4 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.

3.5 Registered Proprietor

Plus any additional address for service of notice to the registered proprietor. (See also: DOC-01 Document Preparation.)

Note: This may differ from the property street address.

3.6 Estate or interest being claimed

The claim of the caveator must be set out clearly in the caveat.

It should be noted that the words fee simple is only used in reference to a purchaser, all other claims would not show these words.

3.6.1 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 option in the fifth and sixth panels of the caveat.

3.6.2 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"

3.6.3 Where the caveator is claiming as equitable mortgagee

Where the caveator is claiming as equitable mortgage an example of the claim would Be:

"claims an interest as equitable mortgagee"

3.6.4 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"

3.7 The Caveator claims an estate of interest being specified by virtue of

In all caveats the estate or interest being claimed is required to be supported by documentary evidence of that claim. The panel title ‘The Caveator claims an estate or interest as specified herein of the estate or interest of the above-named registered proprietor in the land above described by virtue of (Note 6)’ should clearly reference the evidence supporting the claim by name and date.

For example, where the caveators claim arises from a contract of sale, insert into note 6 "…a contract of sale dated 30 August made between the registered proprietor as vendor and the caveator as purchaser".

3.8 And Forbids the Registration

In this panel, insert the wording of one of either:

Absolutely
Unless such instrument be expressed to be subject the caveator’s claim
Until after notice of any intended registration or dealing to be given to the caveator

3.9 Who can sign the Caveat?

The Caveat may be signed by:

The caveator(s) personally
The caveator’s solicitor, signing as his or her solicitor and agent
A principal of a settlement service, signing as agent for the caveator
A responsible officer of a caveator company, i.e. director, secretary or manager
The attorney for the caveator

4 Evidence required to support the claim of the Caveator

4.1 Document or Deed

Caveats lodged in paper must be supported by the documentary evidence that established the caveatable claim. For more information on evidence requirements please see part 9 “Supporting Documentary Evidence” in CAV-02 - Caveats further reading.²

Caveats lodged electronically by an industry professional via an Electronic Lodgement Network Operator do not require evidence to be uploaded and attached. Evidence is required to be obtained and retained by the Subscriber in accordance with the certification rules. Evidence may be uploaded and attached with the caveat if the Subscriber wishes to show that the caveat claimed is not a 138A caveat under the Transfer of Land Act 1893.²

4.2 Statutory Declaration

Where the estate or interest has not been created by a document, a statutory declaration will be required as evidence to support the caveatable claim. For caveats lodged in paper, the original signed and witnessed statutory declaration must be provided. For further information on statutory declaration requirements please see part 10 “Supporting Statutory Declarations” in CAV-02 - Caveats further reading, and DOC-04 Statutory Declarations.²

²Paragraph added 08/06/2020

5 Lodging the Caveat

Complete the caveat form referring to the title search. Type or print legibly in dark ink (preferably black)
Ensure the evidenced is being provided (including originally signed statutory declarations if applicable)
Lodge the originally signed forms with Landgate ensuring the registration fee payment is enclosed if lodging by post:
- In person at one of Landgate’s lodgement offices. NOTE: any person can lodge the application document with Landgate. The lodging party does not need to be one of the persons named in the application document
- By post to: Landgate Document Lodgement Section, PO Box 2222, MIDLAND WA 6936

6 Also see

-DOC-01 Document Preparation

CAV-05 Caveats - removal

Version 7 - 24/06/2020

Verification of Identity

The caveator in an application will be subject to the Verification of Identity process as of 5 June 2018.

This process is completed by Australia Post for self-represented parties. Refer to the Australia Post website to complete your verification of identity.

For information regarding the Verification of Identity Practice, refer to Verification of Identity webpage on the Landgate website.

1 By Withdrawal

A caveat may be withdrawn by lodgement of a Withdrawal of Caveat form. Landgate introduced the ability to lodge a Withdrawal of Caveat electronically in May 2015.

The removal of a caveat under this process is made by the caveator and signed by the caveator, unless being lodged electronically.

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.

Each caveat being removed is subject to standard lodgement fees. (See also: DOC-01 Document Preparation.)

1.1 Death of a Caveator

Where there are two or more caveators, it is the responsibility of the surviving caveator to establish how the interest or claim was held, i.e. jointly or in shares.

Where the interest was held jointly the surviving caveator may complete the withdrawal form and provide the appropriate evidence similar to a Survivorship Application (See also: DEC-02 Survivorship).

In the event of a Sole Caveator, the Executor(s)/Administrator(s) of the decease caveator may apply for the removal of the caveat using a withdrawal of caveat form. The Executor(s)/Administrator(s) would need to provide the appropriate evidence similar to a Transmission Application. (See DEC-03 Transmission Applications).

1.2 Removal of Registrar’s Caveats (NEW)

A Registrar’s Caveat is rarely removed prior to a transaction being presented for lodgement/registration. The Transaction is generally lodged subject to the caveat and where the transaction is consistent with the purpose of the caveat, the caveat is removed by the Registrar of Titles to allow the transaction to proceed.

A person seeking the withdrawal of a Registrar’s Caveat needs to satisfy the Registrar of Titles that the withdrawal of such a caveat will not allow the rights protected by the caveat to be defeated.

Where the caveat has been lodged to protect interests under a trust, see POA-05 Declarations of Trust (Section 55 of the TLA) - Removal Options.

Where the caveat has been lodged to protect an incapable person identified in a State Administrative Tribunal Order (SAT). the caveat will be lifted upon the lodgement of a valid Transfer (bona fide sale) (see Transfer by Attorney Under EPA or by Administrator Under Board Order) or an application by survivorship or transmission.

Where the caveat has been lodged to protect a persons’ right to reside on land contained in a Will, the caveat may be lifted where a request in writing is received that is either accompanied:

by a sworn statutory declaration by the person holding the right declaring their interest has ceased or they relinquish the interest, or
Notice of death of the interest holder

Note: Registrar’s Caveats protecting a trust will be removed and re-applied where a Transfer is simply transferring to a new Trustee.

2 Section 138B of the TLA (21 Days' Notice)⁴

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 leg al 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 T LA 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.

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 obtains from the Supreme Court an order extending the operation of the caveat, a copy of the extracted Order must be served on the Registrar of Titles within the 21-day period.

If the caveator fails to obtain a Court Order extending the operation of the caveat within the 21 days' notice period, the caveat will lapse and an entry will be made in the Register removing the caveat. The following note will be added to the ‘(Application number) - Statement’ section of the title ‘Section 138D of the TLA applies to (caveat number)’. This note will run with the land/title indefinitely.

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.

2.1 Service of Court Orders for the purpose of extending the operation of a caveat

Where an Order from the Supreme Court of WA is obtained within the 21 days notice period which extends the operation of the affected caveat, a copy of the extracted Order may be lodged with the Registrar for the attention of Dealings in one of 3 ways (as set out in the original notice):

in person at Landgate (Midland Office Only), 1 Midland Square, Midland WA 6056
by fax to 08 9273 7633, and
by email as an attachment to complexdealings138B@landgate.wa.gov.au.

Please refer to the initial Notice/Letter for more information regarding the service options.

2.2 Effect of Application

The caveator will not be able to re-lodge a caveat that has been removed under s.138 of the TLA by virtue of

the lapsing of the caveat, by either the expiration of the 21 days or as a re suit 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. The consent to re-lodge must be provided simultaneously with the new caveat.

Note: The removal of caveats under this s.138 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.138B⁵ 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 alI the Iand in the caveat.

⁵Updated to read S.138B rather than S.1388 24/06/2020

2.3 Application Lodged by Mortgagee

The application should 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. It is also acceptable to show the Applicant as the mortgagee on behalf of the registered proprietor of the land as mortgagee in possession.¹

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.

¹ [Guide updated on 30/08/2018 to insert new sentence]

2.4 Application Lodged by Judgement Creditor

The application is made in the name of the judgement creditor as shown in the property (seizure and sale) order (PSSO), making reference to the registration document number of the PSSO. The property (seizure and sale) order must be registered and in force in respect of the judgements debtor's saleable interest in the land.

A statutory declaration is not required to be supplied in support of the application, unless there are facts to be clarified.

Where such an application is lodged, a copy of the notice sent to the caveator will also be sent to the registered proprietor. ²

²[Guide updated on 30/08/2018 to add Section 4.2]

⁴[Guide updated to move section 8 to section 2]

3 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

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.

4 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 (refer to 100 Point Identification form) 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 Transfer of Land Act 1893 (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.

The registered proprietor(s) should not complete the signing/execution of the withdrawal of caveat until they attend the Midland Office, where they will sign/execution the document in the presence of an Assistant Registrar of Titles who will be the witness to the document.

5 By Taking or Acquisition

Any caveat lodged over land taken under the Land Administration Act 1997 (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.

6 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 and the payment of the required fee, the caveat is removed from the title.

7 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.

8 By 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.

9 Section 141A of the TLA

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.³

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 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.

³ [Guide updated on 30/08/2018 to move Note to top of Section 9]

CAV-06 Caveats - removal - document preparation and lodgement

Version 2 - 06/08/2018

Verification of Identity

The caveator in any caveat document and withdrawal of caveat document will be subject to the Verification of Identity process as of 5 June 2018 refer to Verification of Identity webpage

This process is completed by Australia Post for self-represented parties. Refer to the Australia Post website to complete your verification of identity.

For information regarding the Verification of Identity Practice refer to Verification of Identity webpage on the Landgate website.

1 What do I need for the Withdrawal of Caveat?

Title Search (recommended) - used to complete the caveat form
Forms - caveat form Withdrawal of caveat/Application (21 days) to remove caveat
Any evidence to support the removal (including original statutory declarations if required)
Registration fees payable to Landgate

1.1 Title Search – a copy of the current Original Certificate of Title

A records of certificate of title search is recommended, but not compulsory, as the search provides you with a complete up to date view of the current ownership and legal property details.

1.2 Withdrawal of Caveat form

Withdrawal of Caveat forms are available from a Landgate office or online from the Landgate Website.

Withdrawal of Caveat W1 can be lodged electronically.

See requirements to format in the Document Preparation section.

2 Preparing the Withdrawal of Caveat form

In addition to the below information, please refer to: DOC-01 Document Preparation.

2.1 Description of Land/Extent

Over Whole

As per the standard document preparation guide

Over Part

A part of a caveat can be removed where it is followed by a subdivision. The portion(s) must be clearly defined on an Interest Only Deposited Plan.

Where the portion is over portion of the land, the ‘Extent’ panel should state ‘Part’.

Over an Interest

Where the interest claimed is against a mortgage, lease or charge, the appropriate words "as to …." must precede the land description.

For example, in the case of a mortgage, the words "as to mortgage F123456" must precede the land description.

2.2 Volume / Folio

As per the standard document preparation guide

2.3 Caveator

The true name of the caveator must be stated.

The Caveator is not required to include:

their address
their status, such as ‘As Trustee for….’. However, they can include ‘trading as ….’ or ‘as the partners of ….’.

2.4 Caveat Number

The caveat number as shown on the certificate of title must be clearly stated, N123456 or year document 152/1952.

2.5 Whole or Part of the of the Land in the Caveat

Where the whole of the interest in the caveat is being removed this panel should state ‘Whole’. Where only portion of the part caveat is being removed, this panel can state ‘Part’.

Note: Care must be taken, as any ambiguity will result in the document being requisitioned.

2.6 Who can sign the Withdrawal Caveat?

The withdrawal of caveat document must normally be signed by the Caveator or by their duly appointed representative i.e. their attorney appointed in a Power of Attorney.

The exception to this is 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. The signature of the solicitor must be witnessed in the usual manner.

3 Lodging the withdrawal of Caveat

Each interest being removed incurs a standard lodgement fee.

4 Preparing the Application to Remove Caveat form

In addition to the below information please refer to:

4.1 Application to Remove Caveat form

Application (21 days) to remove caveat forms are available from a Landgate office or online from the Landgate Website.

See requirements to format in the Document Preparation section.

4.2 Description of Land / Extent

Over Whole or Part

The removal of a caveat using this method will result of the whole caveat being removed from the certificate of title.

Where the caveat encumbers more than one certificate of tile, the application can list more than one property.

Over an Interest

Where the interest claimed is against a mortgage, lease or charge the appropriate words "as to …." Must precede the land description.

For example, in the case of a mortgage the words "as to mortgage F123456" must precede the land description.

4.3 Volume/Folio

As per the standard document preparation guide

4.4 Applicant

The Applicant is the registered proprietor of the land affected by the caveat. The Applicant must also state their address for service of notice.

Where the Applicant is the Mortgagee in Possession, they must make the application 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

For example: ‘Commonwealth Bank of Australia (ACN….) of … for and on behalf of … as Mortgagee in Possession’

4.5 Reason for Application

The only element required for this panel is the caveat number as shown on the certificate of title must be clearly stated, N123456 or year document 152/1952.

Note: Only ONE caveat can be removed using this Form. Where the Registered Proprietor wishes/needs to remove multiple caveats, separate forms must be used.

4.6 Who can sign the Application?

The Application is normally signed by the registered proprietor of the land against which the caveat is lodged or by his or their duly appointed representative i.e. their attorney appointed in a Power of Attorney.

Where the application is made by the Mortgagee in Possession the application is normally signed by the Mortgagee’s representative under Power of Attorney.

5 Also see

- CAV-04 Caveats - document preparation and lodgement

2 Types of Restrictive Covenants

CHA-01 Charges and Removals

Version 2 – 18/02/2019

1 General

Section 105(1) of the Transfer of Land Act 1893 (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 an e-form Record Interest - 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.

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 and e-form Change Ownership - Survivorship.

The duplicate title should be produced with this document, where one exists.

2 Extension of Charge

The term of an annuity may be extended by the registration of an Extension of Charge using an e-form Modify Interest - Charge Extension adapted for the purpose.

3 Transfer of Charge

A Charge can be Transferred to another person or corporation using the T3 Form for freehold land and T3C for Crown land (See TFR-05 Transfers – of Mortgage, Charge or Lease.)

4 Discharge of Charge

There is an e-form Remove Interest - Charge DIscharge 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.

5 Discharge – Where Annuitant is dead and there is no Personal Representative

The document by which this is achieved is an application on an e-form Remove Interest - Charge Application to Remove 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.

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.

6 Also See

CHA-02 Charges under the Health or Bankruptcy Act

Version 2 – 18/02/2019

1 Overview

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).

2 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 an e-form Change Ownership - Bankruptcy Application, to be registered as the proprietor of the property. The method of application is set out in policy and procedure guide BAN-01 Application by a Trustee in Bankruptcy (Section 234 of the TLA).

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 an e-form Change Ownership - General Application, 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 , 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.

3 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.

The duplicate certificate of title is not required.

Note: The Form A is not required to be an original statutory declaration; however, Forms C & D must be originals.

4 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.

5 Also See

COV-01 Covenants

Version 4 – 09/06/2020

Disclaimer of liability

This guide is produced by the Western Australian Land Information Authority (Landgate) to provide the community with a basic understanding of strata titling principles. It is a general information source only, it is not legal advice and should not be taken as legal advice on strata titles. You should refer to the legislation available on the WA government legislation website www.legislation.wa.gov.au

To the extent permitted by law, Landgate will in no way be liable to you or anyone else for any loss or damage, however caused (including through negligence), which may be directly or indirectly suffered in connection with use of this document. This general disclaimer is not restricted or modified by any of the following specific disclaimers.

Various factors beyond the control of Landgate 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 for errors or omissions in the guide. Landgate does 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 guide or incorporated into it by reference.

Contents:

1 General

2.1 Estate Covenants

2.2 Restraint of Business or Trade Covenants

2.3 Protected View or Outlook Covenants

2.4 Covenants with the National Trust

3 Restrictive Covenants created by Deed

4 Restrictive Covenants in Gross

5 Restrictive Covenants created by Transfer

5.1 Lodgement in paper

5.2 Lodgement by an industry professional electronically via an Electronic Lodgement Network Operator (ELNO)

6 Creation of Restrictive Covenants on Plans of Subdivision under Part IVA (s136D) TLA

6.1 What is specified on the plan

6.2 Details contained in the instrument lodged with the application

6.3 Consents required

6.4 When restrictive covenants created on plans have effect

6.5 Restrictive covenants created on plans for a specific term

6.6 General comments

7 Creation of Covenants under the Land Administration Act 1997

8 Also see

1 General

Documents creating restrictive covenants may be registered against freehold or Crown land under the Transfer of Land Act 1893 (TLA). 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 Land Administration Act 1997 (LAA) also allows for positive covenants to be created over Crown land or agreement land (see section 7 of this guide).

Section 33 of the Strata Titles Act 1985 (STA) allows for short form easements and restrictive covenants to include positive obligations (see section 8 of this guide).

2 Types of Restrictive Covenants

2.1 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.

2.2 Restraint of Business or Trade Covenants

Where a seller requires a buyer 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 seller is the proprietor of land, in the vicinity of the land sold, which can benefit from the covenant.

2.3 Protected View or Outlook Covenants

This type of covenant usually arises where one lot is subdivided and covenants are required from the buyer not to build out or obscure the view of the seller. The covenants are related to the height to which the buyer 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 section 3 of this guide.)

The benefit of such a restrictive covenant will be shown in the Second Schedule of the relevant title being created or benefited in the normal course of registration. Production of the relevant duplicate certificates of title (if any) is required.

2.4 Covenants with the National Trust

The National Trust of Australia (WA) Act 1964 (in this paragraph called the Act) establishes 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 Council of Western Australia maybe registered by a Memorial (see policy and procedure guide MEM-01 Memorials).

3 Restrictive Covenants created by Deed

A restrictive covenant may be drawn in the form of a Deed using a Blank Instrument form. Section 129A of the TLA calls for an approved form but no such form has been approved. 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 section 2.3 of this guide). However, with the introduction of digital titles, the benefit is now shown in the second schedule of the relevant title.

4 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 Blank Instrument form. 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.

5 Restrictive Covenants created by Transfer

5.1 Lodgement in paper

Where it is desired to create a restrictive covenant at the same time as the sale of a parcel of land, a Transfer of Land (Double Sheet) form 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, since the 13th May 1996 expiry dates have not been 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.

^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 solicitor’s 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.

5.2 Lodgement by an industry professional electronically via an Electronic Lodgement Network Operator (ELNO)

Where it is desired to create a restrictive covenant at the same time as the sale of a parcel of land, the necessary words creating the covenant should be set out on a B1 additional page. The form should clearly specify the land description and party details (transferor and transferee). All the parties to the transfer of land document should initial, using original wet signature, immediately beneath the wording of the restrictive covenant conditions to acknowledge that the restrictive covenant forms part of the transfer document. The executed B1 form must then be uploaded into the ELNO attached to the transfer, along with any consents required for the covenant. The B1 form does not need to be page numbered as the system will allocate a page number at lodgement.²

²Paragraph updated 09/06/2020

Restrictive covenants may be accepted where the covenants are stated to expire on a given date. The expiry date will not be endorsed on the title.

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 solicitor’s 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.

6 Creation of Restrictive Covenants on Plans of Subdivision under Part IVA (s136D) TLA¹

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.

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 application to create and register the new titles the subject of the Plan.

¹[Guide updated on 06/09/2018 to replace 'Part IVA of the Transfer of Land Amendment Act 1996' with 'Part IVA (s136D) TLA']

6.1 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.

6.2 Details contained in the instrument lodged with the application

The complete details of the restrictive covenant are to be contained in an instrument lodged with the application to create and register the new titles the subject of the Plan. This instrument must be in the form of a Deed, prepared on a Blank Instrument form and be capable of registration.

It must contain the following:²

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.

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.

²[Guide updated on 06/09/2018 to remove 'to be duly stamped by the RevenueWA']

6.3 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.

6.4 When restrictive covenants created on plans have effect

Land becomes subject to a restrictive covenant noted on a strata/survey-strata plan at the time the plan is registered in accordance with the STA and in the case of a plan under section 166 or 166A at the time the new title(s) for the land the subject of the plan is created and registered. The instrument lodged under Part IVA of the TLA in relation to the Plan is deemed to be registered at the time the land becomes subject to the restrictive covenant.

6.5 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.

6.6 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 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. Consent of the management body, interest holder or caveator must be obtained for positive covenants being created over Crown land the subject of an interest, status order or caveat. 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 (e.g. 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 N123456 only”

or where the lease and covenant are lodged together,

“As to Lease . . . . . . . . . dated 0.0.2015 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 lessee's 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.

8 Short Form Restrictive Covenants created on Scheme Plan under the Strata Titles Act 1985 (STA)

Section 33 of the STA provides that short form restrictive covenants will be able to be created for the benefit of the local government in whose district the land is situated, or a public authority, even though the benefit would not be in respect of the land. The short form restrictive covenant runs with the land and is binding on the owners, from time to time, of lots in the strata titles scheme.

Short form documents are defined as:

a scheme plan or amendment of a scheme plan; or
a memorial or other instrument in an approved form lodged with a scheme plan or amendment of a scheme plan.

8.1 What is specified in short form documents

8.1.1 Information about the restrictive covenant on the scheme plan or amendment of a scheme plan:

The location of the covenant area must be delineated on the scheme plan or amendment of the scheme plan in accordance with the Survey Regulations and specify the required information in the Interests and Notifications Schedule including a statutory reference and a reference to the document number of the instrument lodged in relation to the scheme plan or amendment of a scheme plan (if any). For other requirements on the scheme plan see STP-09.

Regulation 25 of the Strata Titles (General) Regulations (ST(G)R) describes the permitted restrictive covenants and short form descriptions which can be created under STA:

Right of way restrictive covenant - to prevent development in a right of way setback
Land use restrictive covenant - to restrict the use of land
Conservation restrictive covenant - to protect areas identified for conservation
Building envelope restrictive covenant - to control the siting of development
Fire restrictive covenant - to restrict development in fire prone areas

8.2 Details contained in an instrument with the scheme plan or amendment of scheme plan (if any)

The short form documents may include provisions about rights and liabilities under a short form restrictive covenant. The provisions in the short form documents have effect according to their terms, and Division 4 and Division 1 in its application to Division 4, have effect subject to the provisions in the short form documents.

If an instrument is lodged together with the scheme plan or amendment of scheme plan, the complete details of the restrictive covenant are to be contained in the form of a deed, prepared on a blank instrument form and be capable of registration or on the Covenant Electronic Form.

It 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 public authority or local government to be benefited by the restrictive covenant.
An operative clause describing the restrictive covenant and stating that the restrictions are created pursuant to s.33 of the STA and showing any limitations associated with the restrictions.
Any encumbrances over the land burdened by the restrictive covenant which prevent registration of an instrument must be withdrawn prior to registration, e.g. Absolute caveats.
The date of the agreement.
The consents required to register a scheme plan (required under s.34 STA) or amendment of scheme plan (required under s.35 STA). See STR-02 for new schemes and STR-04 for amendment of scheme
Signed by all parties and witnessed.

8.3 Consent Required

The owner of the parcel the subject of a scheme plan or amendment of scheme plan is required to be the applicant for registration of the scheme plan or amendment to scheme plan or has given written consent to the subdivision of the parcel by the strata titles scheme; and the holder of each designated interest over the whole or a part of the parcel to be subdivided by registration of the scheme has:

been given notice in the approved form of the subdivision and the schedule of unit entitlements; and
given written consent to the subdivision

Designated Interests are defined by s. 3 of the STA. These are:

a registered mortgage; or
a registered lease; or
a caveat recorded under the TLA; or
the interest of a judgment creditor named in a property seizure and sale order registered under the TLA section 133; or
the interest of a person named in a memorial registered under the TLA as having a statutory right requiring the consent of the person to any dealing with the land; or
a plantation interest registered under the TLA; or
a carbon covenant registered under the TLA;

8.4 When short form restrictive covenants created on scheme plans and amendment of scheme plans have effect

A short form restrictive covenant comes into force when the scheme plan, or an amendment of the scheme plan, for the strata titles scheme containing the restrictive covenant is registered.

8.5 General Comments

The rights and liabilities are set out in regs. 43 to 47 of the ST(G)R and these rights and liabilities may be varied by a memorial or other instrument lodged with the Registrar of Titles.

- COV-02 Covenants - removal

9 Also see

See TFR-05 Transfers – of Mortgage, Charge or Lease.

COV-02 Covenants - removal

Version 2 – 08/06/2020

1 Overview

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.

1.1 Practice for the Removal of Time Expired Restrictive Covenants

This practice is for the purpose of restrictive covenants under s.129A and s.129B of the Transfer of Land Act 1893 (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.

When lodging a transfer document, you may request to have a restrictive covenant that has expired due to a time limit removed from a Certificate of Title. When lodging in paper, 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. When lodging electronically using an Electronic Lodgement Network Operator, the letter from the conveyancer or lawyer must be uploaded into the workspace and attached to the transfer prior to lodgement. 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 [#].

¹Section 1.1 updated 08/06/2020

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.

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.

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 8 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.¹

¹[Updated on 11/09/2019 to read "Regulation 8"]

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).

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 Blank application form) 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.

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 Blank Application form 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 policy and procedure guide DOC-02 Parties to Documents 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.

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 DOC-02 Parties to Documents 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 section 3 of this guide).

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 Blank Application form for the restrictive covenant to be discharged or to be modified pursuant to s.129BB of the TLA.

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 DOC-02 Parties to Documents 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.

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).

8 Discharge and Modification of Covenants under the Land Administration Act 1997

A covenant created under s.15 of the Land Administration Act 1997 (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 Blank Application form 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.

9 Also see

COV-01 Covenants

EAS-01 Easements

Version 2 - 01/05/2020

Disclaimer of liability

1 General

Easements may be registered against freehold or Crown land under the Transfer of Land Act 1893 (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 may be the grantees of an easement without a dominant tenement, as provided for under s.195 of the Land Administration Act 1997 (LAA). Other enabling legislation may also contain provisions for the creation of an easement in gross.”

Easements may be said to be either:

express easements, i.e. those created by a deed prepared for that purpose or incorporated in a transfer of land

implied or statutory easements, i.e. 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), easements for support, shelter and projections under section 61 of the Strata Titles Act 1985 (STA).

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
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.

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 benefited land (which may be leasehold or strata leasehold in leasehold scheme under the STA) ie: the land which enjoys the benefit of the easement
there must be burdened land (which must be fee simple, except that it may be strata leasehold in a leasehold scheme under the STA) ie: the land which is burdened by the easement
the benefited and burdened land must be distinct and in separate ownership (with the exception of easements in gross created on subdivisions under Part IVA of the TLA and short from easements under s33 of the STA)
the easement must benefit the beneficiary (grantee) and impose an obligation on the burdened land owner (grantor)
the easement created must be capable of and be made with the express intention of running the land

and

the benefited and burdened land must be adjacent, although it is not essential that they must be contiguous.

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 Planning and Development Act 2005 (P&D Act)
by notation on deposited plans of subdivision under Part IVA of the TLA, and
by notation on scheme plans under s.33 of the STA.

5 Easements Created by Deed

A deed prepared for the sole purpose of creating an easement should be prepared on a B2 Blank Instrument form and the easement should be set out in narrative form.

The easement document must be stamped at Revenue WA (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.

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.

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 e.g. 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 burdened land, 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. Benchmarks, 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 benefited and burdened land.

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 burdened land 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.

Reciprocal easements in a single document, i.e. where the parties are both grantor and grantee, will not be registered. A separate document is required for each easement.

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 seller 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 seller 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 T2 Transfer of Land with additional pages form.

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

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.

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 of the term. 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 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 or s166A of the TLA or a strata / survey-strata plan within the meaning of the STA.

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 or in both the Plan and an instrument lodged with the Plan.

7.1 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.

7.2 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 B2 Blank Instrument form and be capable of registration. The instrument is to be duly stamped by the RevenueWA 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 ………..."

"/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.

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.

7.3 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 (i.e. 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.

7.4 When easements created on plans have effect

Land becomes subject to an easement noted on a Plan in the case of a strata/survey-strata plan at the time the plan is registered or in any other case 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.

7.5 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.

7.6 General comments

Although they are created at the same time, it is the Registrar'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.

8 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 benefited or burdened land 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 benefited land and a different lease exists over the burdened land) 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 benefited land or burdened land is limited to a leasehold interest must additionally refer to the lease affected by the easement. For example:

"As to Lease N123456 only "

or where the lease and easement are lodged together

"As to Lease ........ dated 0.0.2017 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 benefited or burdened land is limited to a lease interest.

9 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.

10 Easements created under the Strata Title Act 1985 (STA)

10.1 Statutory Easements (sections 61 to 66 of the STA)

See STP-12 Statutory Easements

10.2 Short Form Easements

See STP-09 STA Easements

If an instrument is lodged together with the scheme plan or amendment of scheme plan creating a short form easement, the complete details of the easement are to be contained in the form of a deed, prepared on a blank instrument form and be capable of registration or on the Easement Electronic Form.

It must contain the following:

The owner(s) name and address.A
description of the land to be burdened by the easement.
A description of the land, public authority or local government to be benefited by the easement.
An operative clause describing the easement created pursuant to s.33 of the STA and showing any limitations associated with the easement.
Any encumbrances over the land benefited or burdened by the easement which prevent registration of an instrument must be withdrawn prior to registration. E.g. Absolute caveats.
The date of the agreement.
The consents required to register a scheme plan (required under s.34 STA – see STR-02) or amendment of scheme plan (required under s.35 STA – see STR-04).
Signed by all parties and witnessed.

10.3 Easements in Gross

Strata Titles (General) Regulations 2019 (ST(G)R) regulation 36 enables short form easements in gross to be created under the STA. The short form documents may describe the terms of the easement by reference to a:

planning condition,
statutory provision or
contract.

If the terms of the easement are to be contained in a planning condition or contract, to enable visibility and searchability of the terms, the ST(G)R enables a copy of the contract, statutory provision or planning condition to be contained within a blank instrument form or Easement Electronic Form lodged with the application to register the scheme or amendment of scheme. If the terms are to be referenced to a statutory provision, instead of a copy of the statutory provision, details of the statutory reference clearly indicated in a blank instrument form or Easement Electronic Form will be acceptable.

If the easement expires at the end of a specified period (as indicated on the plan), it will be taken to mean that the grantor and grantee consent to the Registrar of Titles discharging the easement in gross at any time after the end of the specified period, without any application or notice being lodged at Landgate.

10.4 Easements for Utility Service

See STP-09 STA Easements

11 Also see

EAS-02 Easements & restrictive covenants (strata companies)

Version 1 - 09/08/2017

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.

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.

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).

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.

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.

6 Also see

- EAS-01 Easements

EAS-03 Removal of Easements

Version 4 - 24/11/2020

1 Surrender

*******THIS SURRENDER PART IS UNDER REVIEW BY THE COMMISSIONER OF TITLES @ 20 December 2019******

The requirements to discharge or modify easements are determined at law on the basis of how those easements were created; that is ; the head of power

Agreement or Consents to discharge, surrender or modify easements may be required under the following including but not limited to :

Transfer of Land Act 1893 (TLA) section 129B
TLA section 129BB
TLA section 129C(1)(b)
TLA section 136J
Strata Titles Act 1985 section 5F
Planning and Development Act 2005 section 167
Land Administration Act section 196

Susan Dukes Commissioner of Titles

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. The form to be used to surrender other easements is Blank Instrument form and it is a requirement that a surrender be assessed for duty by Revenue WA (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, i.e. whole or partial

and

formal words of surrender.

The properly attested signatures of all the grantors and grantees complete the form. The consent of all persons interested in the land affected is required for the discharge or modification of easements under section 129B TLA, including but not limited to each registered interest holder and may include a caveator depending on the claim, in respect of any land that is burdened or benefitted by the easement¹. Where the easement was created by implication (i.e. 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.

¹Sentence amended 24/11/2020

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 General Application form¹ 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)"

"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.

To be successful the applicant must also demonstrate that:

the rights have been totally abandoned (e.g. 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).

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 General Application form¹ quoting both the original land and the land newly acquired by transfer, request that the easement be merged and extinguished.

Note: Statutory easements (e.g. 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.

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.

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).

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 General Application form¹ 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 Discharge and Modification of Easement Created under Part IVA (s136C TLA)

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 General Application e-form¹ 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.
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.

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.

8 Discharge Easements Created under the STA¹

8.1 Discharge of Short Form Easements created under s33 STA

Section 33(6)(a) of the STA provides for the discharge of easements created under section 33 of the STA.

A Short Form easement is automatically discharged by the termination of the strata titles scheme.

A Short Form easement is discharged by registration of an amendment of the scheme plan to give effect to the discharge. Therefore, the requirements specified under s35(1)(i) apply. A General Application e-form is made by the registered proprietor of either the benefitted or burdened land and must be accompanied by the written approval of the Western Australian Planning Commission and the consent of the registered proprietors of all lots affected by the easement.

If the easement affects common property, a Certificate of the Strata Company – Schedule of unit entitlements or leases or easements or restrictive covenants Form is required to be completed and lodged with the Application.

The holder of each designated interest over common property or a lot affected by the amendment is required to be given notice of the discharge in the approved form (Notice to Lot Owners and others for scheme plan amendment ). The written consent of the aforementioned designated interest holders should be included with the Application or a Consent Statement – Designated Interest Holders can be provided confirming that the designated interest holders were provided with notice of the discharge over 60 days prior and no written objections were made.

Note: An easement of a specified class created under section 5D STA in force immediately before 1 May 2020 which corresponds to a specified short form easement is taken to be a short form easement of the specified kind and the rights and obligations under the easement are those applicable to the specified short form easement. As such they can be discharged as described above.

An easement created under section 5D in force immediately before 1 May 2020 which does not correspond to a specified short form easement continues in force on the same terms and conditions but may be discharged by amendment to the scheme plan as if it were a short form easement (under section 33 of the STA).

8.2 Discharge of other Easements affecting Common Property or Lot

As a discharge of an easement which benefits or burdens common property or a lot in a scheme plan is deemed an amendment of a strata titles scheme (s3(7)(a)(ii) and s3(7)(b)(ii) STA), all of the requirements noted in 8.1.1 above are relevant except for the requirement for the approval by the Western Australian Planning Commission.

¹[Guide updated on 09/06/2020 to incorporate amendments to the Strata Titles Act

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.

10 Also see

EAS-01 Easements

ENC-01 Application – Remove Expired Encumbrance Section 184

Version 2 - 08/11/2018

1 General

The removal of certain encumbrances from the register that have ceased to affect the title may be approved by discretion of the Commissioner for Titles on Application under s.184 of the Transfer of Land Act 1893 (TLA). 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.

Application under section 184 of the TLA may be used to remove the following expired encumbrances (but not limited to):

Leases
Mortgages
Tree Plantation Agreements
Profits à Prendre
Restrictive Covenants

The registered proprietor or an interests holder in the land can apply on an Application form, for the removal of the desired encumbrance on the grounds that it has expired.

The reason for the application must be clearly stated and refer to the relevant section of the TLA the applicant seeks to remove the encumbrance.

The duplicate certificate title (if any) is required to be produced where an application is made under s.184 of the TLA.

Lodgement Fees are payable upon lodgement of the application at Landgate.

Note:

An Application under section 184 of the TLA may also be used to modify an encumbrance where no other provision of the TLA exists.

Where the Application seeks to modify the encumbrance the application must clearly state what section is being modified.

2 Evidence supporting the Application

In most instance, the application should be supported by 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 or under other jurisdictions are not acceptable.

The supporting statutory declaration should be made by the applicant and cover at a minimum the following:

Recites his or her ownership or interest of the relevant land.
Identifies the land affected by the encumbrance by the legal land description (Lot on Plan and Volume/Folio)
Quotes the encumbrance registration numberRefers to the term of the encumbrance by reference to the details or clauses in it, and thus the expiration of that term.
Refers to any provisions in the encumbrance for any extension provisions, and whether it was so extended or transferred.
Refers to the expiration of any such extension and negates any other form of condition of the encumbrance.
What attempts were made to remove the encumbrance
Who may be currently occupying the encumbered land, if any, and the current status of the land (vacant, leased, etc.).
Requests the removal of the desired encumbrance as an encumbrance on the title.

and

Any other relevant facts that strengthen the application.

Other forms of evidence may also be required to support the claim the encumbrance has been fully satisfied, extinguished or otherwise determined and no longer affect the land, such as related Deeds, evidence of payment, evidence of Death, letters/consent from other interest holders etc.

3 Also see

LEA-01 Leases of Land

Version 4 – 01/05/2020

1 General

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.

A duplicate copy of a lease may be lodged for registration along with the original. Although not required, where a duplicate lease is produced for a subsequent dealing 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 provided when a lease is lodged for registration.

2 Form

A lease may be prepared using the electronic Record Interest – Lease form for a lease of freehold land or a lease of Crown land, available via Landgate’s Land titling forms webpage.

3 Preparing the Lease Form

All panels of the Lease form must be completed. Where a deed forms part of the lease it should contain appropriate section headings and where appropriate, a table of contents. It must also be consecutively page numbered.

Note:

References to the body of the lease or schedule to the lease within the form are not permitted and will only be accepted for notes 7 and 8.

Where subsequent transactions have occurred against the lease prior to registration of the lease (e.g. Transfer, Extension), the relevant subsequent documents should also be lodged.

3.1 Description of Land

3.1.1 Whole of the land in a Title

Please see the standard document preparation guide DOC-01 Document Preparation.

3.1.2 Part of the land in a Title

Where the lease relates to a portion of a lot or location, it must have a Land Description that is defined by a sketch or an Interest Only Deposited Plan. Where the lease affects part of a building, a narrative land description may be acceptable.

A lease by the State of Western Australia as lessor that affects part of a lot must be supported by an Interest Only Deposited Plan, unless the lease is over a portion of a building.

The Description of Land panel should identify the portion of land being leased by making reference to the sketch or Interest Only Deposited Plan. For example:

"Part of Lot 100 on Deposited Plan 61023 shown hachured on the sketch at Annexure A"; or
"Part of Lot 100 on Deposited Plan 61023 shown and marked ‘E’ on Deposited Plan 432000".

A land description may also describe the portion being leased by making reference to the shop number or unit number. For example:

"Part of Lot 1 on Deposited Plan 156789 described as shop 33 on the site plan at Annexure A".

3.1.3 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 as follows, can be registered without requiring a sketch:

"The first floor of the CSA Centre, erected upon Lot 16 on Plan 13455, being part of the land in Certificate of Title Volume 99 Folio 100".

Note: Where a shop number or unit number does not comprise the whole of the floor of a building, a sketch or Interest Only Deposited Plan will be required.

3.2 Tenancy of the Lessee¹

Where there are two or more Lessees a tenancy is to be stated. The Lessee panel should clearly state if the interest is held ‘Jointly’ or as ‘Tenants in Common’ (equally or in shares).

[¹ New section added on 11/02/2019]

3.3 Term of the Lease

The term of the lease must be clearly defined, in that it 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 stated in years, months and days.

Any options to renew the lease for a further term are also required to be shown.

Note: Where the initial term of a lease has already expired but the lease has an option to renew that has not yet expired, the lease can be accepted for registration.

3.4 Encumbrances

Only encumbrances affecting the area of land that is being leased are required to be shown.

Where a lease exists over the same area of land that is being leased, it must be removed prior to registration of the new lease. Please see LEA-03 Leases of Land - removal.

The following exceptions would apply to the above requirement:

Where the new lease being lodged has a commencement date that is after the expiry date of an existing lease that is still current. In this case, the existing lease that is still current is to be shown as an encumbrance in the new lease.²

[² Section updated on 23/03/2020]

Where the new lease is a concurrent lease. Please see LEA-02 Leases of Land - Variations of and to section 3 Concurrent Leases.

3.5 Execution

The Lessor(s) and the Lessee(s) must both sign the lease form. Standard execution requirements apply, please see the policy and procedure guides on document signing (SIG-01 to SIG-13 inclusive).

Note: The execution page of the Lease form should be signed/executed by the Lessor(s) and the Lessee(s). Whilst referring to the page number containing the original signatures contained within the lease deed has become common practice, it is not recommended.

3.6 Consents

3.6.1 Ministers Consent

For transactions over Crown land, unless the Crown land is vested for purposes of another Act, consent of the Minister for Lands will be required under section 18 of the LAA (CRW-01 Crown Land - General).

3.6.2 Mortgagee Consent

The consent of any mortgagee or annuitant registered in priority to the lease is required. (See section 91 of the TLA). Consent should be included in the body of the lease or affixed to the document.

Where the consent is signed under a Power of Attorney that has been noted at Landgate, the attorney must have power to consent to creating or granting leases.

Where a certificate of title is encumbered by a mortgage and no duplicate certificate of title has been issued, a letter of consent to subsequent lodgement should also accompany the lease. Please see COT-02 Duplicate Title.

3.6.3 Western Australian Planning Commission Consent

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.

Where a lease affects a building that has been constructed in accordance with a building licence, or a building licence to construct the building is in force, consent of the Western Australian Planning Commission is not required. (See section 136 of the Planning and Development Act 2005).

Leases of Crown land over part of a Lot do not require Western Australian Planning Commission consent.

4 Lease of Crown Land

Section 47 of the Land Administration Act 1997 allows for a lease for a purpose in accordance with the reserve purpose and section 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 whilst a s.48 lease cannot be mortgaged.

While it is possible for a Lease of Crown land by the State of Western Australia to be registered over a managed reserve, it is preferred that where a lease is required over a managed reserve, it be created by the management body where they have the power to lease.

5 Lease over Common Property³

The strata company may lease part of the common property or sub-lease land leased. A lease for a period greater than three years may be registered on the scheme plan. The lodgement of an Interest Only Deposited Plan will be required to spatially define the portion of the common property the subject of the lease.

On registration, such a lease must:

show the strata company as lessor;
be accompanied by a Certificate of the Strata Company – Schedule of unit entitlements or leases or easements or restrictive covenants.
be accompanied by the written consent of WAPC, if required under section 136 of the Planning & Development Act 2005.

A sub-lease of land leased 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.

^{3 (}Updated to include new section 01/05/2020)

6 Pastoral Leases

Pastoral leases granted under the Land Administration Act 1997 cannot be converted to freehold.

All pastoral leases granted under the Land Act 1933 expired in the year 2015. Lessees of pastoral leases granted under the LAA may apply for a renewal of their lease at any time during the period twelve months before the date 10 years before the expiry of the pastoral lease.

6.1 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. Consent of the Pastoral Lands Board 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.

7 Option 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 lessor’s 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. Anyone searching a lease to ascertain whether it has expired should also consider the effect of section 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. Options to extend the lease to additional premises are better protected by a caveat (as to the area of the extension).

8 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 necessarily protect the lessee’s option and it would be recommended that a caveat be lodged, claiming an interest based on the option to purchase.

9 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, rates and taxes; and
to keep the property in good repair and yield up the property on termination of the lease.

10 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.

11 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 has been used. Exceptions and qualifications may be added to the short form of covenant with a similar effect on the long form of covenant.

12 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. Please see DOC-06 Memorandum of Common Provisions.

LEA-02 Leases of Land - variations of and to

Version 3 – 22/06/2020

1 Transfer of Lease

2 Sub-Lease

A lease of a lease (sub-lease) may be prepared using the electronic Record Interest – Sub-Lease form for a sub-lease of freehold land or a sub-lease of Crown land (available via Landgate’s Land titling forms webpage).

Alternatively, the following forms may be used:

A duplicate copy of a sub-lease may be lodged for registration along with the original.

It is desirable but not essential that the duplicate title (if any) be provided when a sub-lease is registered.

There is no requirement for the duplicate lease to be provided.

2.1 Term of the Sub-Lease

The sub-lease may be for any part of the lease, 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.

It is acceptable for the term of the sub-lease to be for the whole of the term of the lease, less one day.

Where a sub-lease is for the whole of the term of the lease, it would operate as a transfer of the lease and for that reason would be unacceptable as a sub-lease.

2.2 Consents

Any consent required by the terms of the lease must be endorsed on the sub-lease. 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.

2.2.1 Minister's Consent

2.2.2 Mortgagee Consent

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.

2.3 Variations

A sub-lease may include variations to the lease, however any variations included cannot alter the lease area or the term of the lease. The lessor must be a party to any variations of the lease.

3 Concurrent Lease

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.

The effect of a concurrent lease is that the lessee of the concurrent lease acquires rights and duties of the lessor in relation to the other lease(s). It does not require all the lessor's rights under an existing lease to be transferred.

To create a valid, registerable concurrent lease, please ensure all of the following:

specify that the lease is a concurrent lease, and that is has been granted subject to the existing lease(s);
that 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);

and

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.

A relevant lease granted prior to a concurrent lease may be granted an extension by the registered proprietor of the land or by the concurrent lessee. As the full extent of rights under a concurrent lease are not determined by the Registrar, the consent to the extension from the other part not shown as granting the extension is to be provided to ensure the parties agree with the extension and are aware of their rights and responsibilities under the concurrent lease arrangement.¹

¹Added 25/03/2020

4 Extension of Lease

The term of a registered lease may be extended by the registration of an extension of lease prepared using the electronic Modify Interest - Lease form (available via Landgate’s Land titling forms webpage). The term of extension is to be stated in years, months and days or as the case may be.²

²Paragraph amended to include the term of extension stating requirements

Alternatively, the following forms may be used:

The duplicate freehold title (if any) must be provided with an extension of freehold lease. There is no requirement for the duplicate lease to be provided.

Note: Where the names of any of the parties to the lease being extended has changed, the appropriate documents will need to precede registration of the extension (e.g. Application to Amend Name, Transfer).

4.1 Consents

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. Where a concurrent lease has been registered, an additional consent is to be provided for an extension of a relevant lease granted prior to the concurrent lease. (Please see Section 3 Concurrent Leases).¹

¹Added 25/03/2020

4.1.1 Minister's Consent

4.1.2 Mortgagee Consent

Consent of the Mortgagee may be required pursuant to the terms of the lease and/or the mortgage. A search of the relevant lease and/or mortgage should be made to determine if consent is required.

4.2 Variations

An extension of lease may include variations to the lease, however any variations included cannot alter the lease area or the parties to the lease.

Where a deed of variation has been prepared it must be included and form part of the extension.

5 Variation of Lease

Where a Lease of Crown land is to be varied, a Variation of Lease form may be used. A variation of lease cannot alter the leased area, the term of the lease or the parties to the lease.

There is no requirement for the duplicate lease to be provided.

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.

Where the term of a lease is to be increased, an extension of lease form should be used. Where the parties to the lease are to be varied, a transfer of lease form should be used.

Note: A variation document for a freehold lease cannot be accepted for registration. Please note however, that variations to a freehold lease can be included in an extension of lease, sub-lease or transfer of lease document.

6 Also see

LEA-01 Leases of Land

LEA-03 Leases of Land - removal

Version 3 – 25/03/2020

1 General

Where a lease has expired or no longer affects the land, it should be removed using one of the below options.

The Registrar of Titles will not make any assumption of expiry - please see above guide entitled 'LEA-1 Leases of Land'.

Fees are payable on the lodgement of the relevant document and each interest being removed will incur a fee. A Removal of Expired Term Lease of Crown Land document does not attract registration fees.

2 Surrender of Lease

A Surrender of Lease may be prepared using the electronic Remove Interest – Lease/Sub-Lease form (available at https://www0.landgate.wa.gov.au/for-individuals/forms-and-fees/land-titling-forms) for a surrender of a lease/sub-lease of freehold land or a surrender of a lease/sub-lease of Crown land.

Alternatively, the following forms may be used:

Surrender of a Lease form for a surrender of a lease/sub-lease of freehold land; or
Surrender of Lease form for a surrender of a lease/sub-lease of Crown land.

It is desirable but not essential that the duplicate title (if any) be provided when a surrender is registered. There is no requirement for the duplicate lease to be provided.

Note: Where the lease to be surrendered is followed by a concurrent lease, the surrender must be made between the lessee and the concurrent lessee or the registered proprietor of the land. The consent to the surrender from the other party not shown as the lessor in the surrender is to be provided. (Please see LEA-02 Leases of Land - Variations of and to section 3 Concurrent Leases).¹

¹Added 25/03/2020

2.1 Description of Land

2.1.1 Whole of the Land in a Lease

Please see the standard document preparation guide DOC-01 Document Preparation.

2.1.2 Part of the Land in a Lease

Where only part of the lease is to be surrendered and that part relates to a portion of a lot or location, it must have a Land Description that is defined by a sketch or an Interest Only Deposited Plan. Please see above guide entitled 'LEA-01 Leases of Land'.

2.2 Encumbrances

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. Encumbrances against the land may continue.

Where a sub-lease is to be promoted to a primary lease upon surrender of the existing primary lease, consent from all parties should accompany the surrender. (Please refer to s.75 of the Property Law Act 1969 and s.102 of the Transfer of Land Act 1893).

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. (Please refer to s.81 of the Land Administration Act 1997).

2.3 Executions

The Lessor and the Lessee must both sign the surrender form. Standard execution requirements apply, please see the document signing guides SIG-01 to SIG-13 inclusive.

Note: The execution page of the Surrender form should be signed/executed by the Lessor(s) and the Lessee(s). Whilst referring to the page number containing the original signatures within the deed of surrender has become common practice, it is not recommended.

2.4 Consents

2.4.1 Minister’s Consent

For transactions over Crown land, unless the Crown land is vested for purposes of another Act, consent of the Minister for Lands will be required under section 18 of the Land Administration Act 1997 (LAA) (see Paragraph 12.1.7 of the Land Titles Registration practice manual).

2.5 Alternative

An alternative to the above method of Surrender is to produce the registered duplicate lease 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 forms specified above.

3 Removal of Expired Freehold Lease

An expired lease of freehold land can be removed by a Surrender of Lease (see Section 2 above) (preferred) or the registered proprietor/lessor of the land can apply to the Commissioner of Titles on an Application form, for the removal of the expired lease on the grounds that the term of the lease and any extensions and/or options to renew have expired.

For more information on removing expired leases under s.184, see ENC-01 Application - Remove Expired Encumbrances Section 184.

The duplicate certificate title (if any) is required to be provided where an application is made under s.184 of the TLA.

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.

4 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 register. Where information relating to an expired Crown lease is not removed from the register, this may result in incorrect information being shown when searching Landgate records.

To overcome this problem a procedure was developed that enables the use of an existing power of the Commissioner under s.184 of the TLA (to remover 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 lessor or sub-lessor, must apply to the Commissioner to remove the expired lease. This is done by lodging a Removal of Expired Term Lease document Removal of Expired Lease form completed by the lessor or sub-lessor.

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.

4.1 When a Removal of Expired Term Lease Document is Lodged

Simultaneously with a new Lease to the same lessee and no encumbrances exists, then no further evidence is required.
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:
- still in occupation of the Land;
- aware and has been advised that the lease has expired and a new lease is currently being negotiated with the lessee; and
- 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):
- 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
- upon removal, any encumbrance or interests against the lease will be removed as well; (See LTRPM Form Examples - Example 27)
- A declaration in support is required from the 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 to whom and what date, and what replies, if any, to the notices have been received (See LTRPM Form Examples - Example 28);
- A copy of all notices and any replies must be attached to the declaration;
- The Commissioner requires some form of acknowledgement from a mortgagee, caveator and any other holder of an interest against the lease 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.
A former lessee no longer occupies the land:
- A declaration in support is required from the lessor stating the 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;
- Where encumbrances exist the same notice provisions and additional declaration statements as above apply.
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.
Where the lease includes a termination of lease upon death clause proof of death of the lessee is required by producing a certified copy of either the death certificate or probate:
- 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;
- Where encumbrances exist the same notice provisions and additional declaration statements as above apply.

Note: There is no document registration fee payable for the lodgement of a Removal of Expired Term Lease document.

5 Recover of Possession by the 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 of Titles ("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 an Application form, with the Court Order provided as evidence and 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 Court Order.

It is desirable but not essential that the duplicate title (if any) be provided.

6 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 re-entered 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 lease premises and the lease, the lessor having 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 an Application form, with supporting evidence such as notices introduced by a statutory declaration setting out the circumstances of the re-entry.

It is desirable but not essential that the duplicate title (if any) be provided.

Note: The documents in the preceding two paragraphs are Applications however, as they are exclusive to Leases are included in this guide.

7 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 the lease should be endorsed on the transfer document and should be 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".

In order to effect a merger, the Transferees/Lessees must be the same parties and must hold the same tenancies/shares.

The merger may not be effected while the lease is encumbered or subject to a caveat. The encumbrance or caveat must be removed.

There is no requirement for the duplicate lease to be provided.

8 Forfeiture of Lease of Crown Land

Where a lessee of a lease of Crown land granted 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.

There is no requirement for the duplicate lease to be produced.

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.

9 Also see

MEM-01 Memorials

Version 5 – 22/10/2020

Contents:

General Information
Forms
Memorial Lodged against Part of the Land in a Certificate of Title
Aboriginal Heritage Act 1972
Agriculture and Related Resources Protection Act 1976
Contaminated Sites Act 2003
Country Areas Water Supply Act 1947
Memorial of Advertisement for Unpaid Water Rates under the Country Areas Water Supply Act 1947
Country Towns Sewerage Act 1948
Criminal Property Confiscation Act 2000
East Perth Redevelopment Act 1991
Environmental Protection Act 1986
Fines, Penalties and Infringement Notices Enforcement Act 1994
First Home Owner Grant Act 2000
Heritage of Western Australia Act 1990
Home Building Contracts (Home Indemnity Insurance Exemptions) Regulations 2002
Industrial Lands Development Authority Act 1966
Land Administration Act 1997
Legal Aid Commission Act 1976
Local Government Act 1995
Metropolitan Water Supply, Sewerage and Drainage Act 1909
Proceeds of Crime Act 1987 (Cth)
Proceeds of Crime Act 2002 (Cth)
Retirement Villages Act 1992
Rural Adjustment and Finance Corporation Act 1993
Rural Business Development Corporation Act 2000
Soil and Land Conservation Act 1945
Taxation Administration Act 2003
Taxes and Charges (Land Subdivision) Legislation Amendment Act 1996 (Deferral of Charges and Headworks Contributions)
Town Planning and Development Act 1928
Water Services Act 2012
Western Australian Land Authority Act 1992

1 General Information

The right to lodge a Memorial against land is a statutory right that is given to various Government Departments and statutory authorities by acts of parliament.

At present there are more than 30 different types of memorials which can be lodged against land. The number of them is slowly increasing as the need arises.

Memorials are lodged by many different governmental organisations and agencies for a variety of purposes, the individual legislative provisions are unique for each Memorial document type. Therefore, they can have different effects on the rights of a registered proprietor to deal with their land if a memorial has been lodged, for example:

Some types of Memorial create an absolute bar to the registration of any dealings;
Other types allow dealings to be registered with the written consent of the agency that lodged it;
Still others may allow for the registration of dealings so long as it is merely shown as an encumbrance (e.g. acknowledged by a new purchaser of the land).

Memorials are not shown in the second schedule of a Duplicate Certificates of Title.

Duplicate Certificates of Title are generally not required for the lodgement of a Memorial or a withdrawal of removal of Memorials.

Note: Memorials that have been repealed and replaced with new legislation may still exist on certificates of title. These memorials may still have an effect or bind the land/registered proprietor under the legislation that replaced it.

2 Forms

The Registrar of Titles and Commissioner of Titles will work with various Government Departments and statutory authorities to create and approve forms that comply with the Transfer of Land Act 1893 schedule to enable the registering and noting of Memorials on certificate of titles. At the request of the responsible agency Landgate may make these approved forms available on the Corporate website.

Where a form is not available on Landgate’s corporate website the relevant responsible agency should be contacted.

3 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 an "Interest Only" Deposited Plan will need to be lodged, unless there is already a suitable spatial definition for that piece of land. The Deposited Plan must be lodged and be "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".

4 Aboriginal Heritage Act 1972

The Aboriginal Heritage Act 1972 (Current) (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 effect on it. The consent of any mortgagee or chargee (annuitant) of the land is required.

4.1 Effect on 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.

4.2 Modify and/or Removal

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). See How Covenants are Removed (See COV-02 Covenants Removal).

4.3 Fees

Fees are payable on lodgement and withdrawal of these memorials.

5 Agriculture and Related Resources Protection Act 1976

The Agriculture and Related Resources Protection Act 1976 (Current) (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 Section 28 of this guide.

5.1 Effect on Title

The effect of lodging the memorial is to prohibit the registration of any subsequent instruments without the consent of the Commissioner of State Taxation.

5.2 Fees

Fees are payable on lodgement and withdrawal of these memorials.

6 Contaminated Sites Act 2003

The Contaminated Sites Act 2003 (Current) (in this paragraph referred to as 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 Water and Environmental Regulation will classify sites reported to it based on the risk the sites pose to human health and the environment.

It is possible that more than one memorial type is lodged against the same land.

6.1 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.

6.1.1 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-and-surveys/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.

6.1.2 Memorial

There 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.

The Memorial form can be downloaded from Landgate’s corporate website at http://www0.landgate.wa.gov.au/titles-and-surveys/forms-and-fees/land-titling-forms.

6.1.3 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.

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-and-fees/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.

6.1.4 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 at http://www0.landgate.wa.gov.au/titles-and-surveys/forms-and-fees/land-titling-forms.

6.2 Reclassification of land

Where land the subject to a Contaminated Sites Memorial has been reclassified by Department of Water and Environmental Regulation the Memorial should be withdrawn from the title and a new Memorial under the new classification should be lodged. The written consent of the registered proprietor to the lodgement of any of these memorials is not required.

6.3 Withdrawal of Memorial

A Withdrawal of Memorial form has been created and can be downloaded from Landgate’s corporate website at http://www0.landgate.wa.gov.au/titles-and-surveys/forms-and-fees/land-titling-forms.

6.4 Execution of the Memorial or Withdrawal

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 Water and Environmental Regulation 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.

6.5 Effect on Title

Majority of these Memorial types 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.

Some sites that are classified as Contaminated - Remediation Required, by DPaW will create a bar to 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.

Note: A search of the Memorial is required to establish if the contaminated sites memorial on the title restricts subsequent lodgement.

6.6 Fees

Fees are payable on lodgement and withdrawal of these memorials.

Biosecurity & Agriculture Management Act 2007

Information coming soon.

7 Country Areas Water Supply Act 1947

The administration of the Country Areas Water Supply Act 1947 (Current) (in this paragraph referred to as the Act) is vested in the Minister and the Water Authority of Western Australia (WAWA), 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.

7.1 Effect on Title

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.

7.2 Removal

All of the above-mentioned memorials may be removed by the Minister or a person with delegated authority. See How Covenants are Removed (See COV-02 Covenants Removal).

7.3 Fees

No registration fees are payable either to lodge or to remove these memorials.

8 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.

8.1 Effect on 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.

8.2 Removal

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.

8.3 Fees

Fees are payable on lodgement and withdrawal of these memorials and on the registration of the transfer.

9 Country Towns Sewerage Act 1948

The administration of the Country Towns Sewerage Act 1948 (Repealed now Water Services Legislation Amendment and Repeal Act 2012) (in this paragraph referred to as the Act) is vested in the Minister, and the Water Authority of Western Australia (WAWA), 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.

9.1 Effect on Title

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.

9.2 Removal

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.

9.3 Fees

Fees were payable on the lodgement of the Memorial. Fees are payable on the withdrawal of these memorials and on the registration of the transfer.

10 Criminal Property Confiscation Act 2000

The Criminal Property Confiscation Act 2000 (Current) (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.

This Act replaced the Crimes (Confiscation of Profits) Act 1988, some of them may still be noted on titles, if so they are treated as below.

A memorial under this Act can be lodged in two ways;

10.1 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.

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.

10.2 Memorial of 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.

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.

10.3 Effect on Title

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 may not be registered, but held in a Registrar’s Packet.

10.4 Withdrawal of Memorial of Freezing Notice or Freezing Order

A Withdrawal of Memorial of Freezing Notice or Freezing Order is lodged with Landgate when a Freezing Notice has been cancelled, or where a Freezing Notice or Freezing Order has been set aside or terminated for other reasons.

There is no requirement for the DPP to provide evidence in respect of a Withdrawal of either of the above Memorials. A Notice of Cancellation may be lodged for a Withdrawal of Memorial of Freezing Notice, however it is not compulsory.

10.5 Fees

Fees are payable on lodgement and withdrawal of these memorials.

10.6 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.

10.7 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.

10.8 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.

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: 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.

10.9 Fees

Fees are payable on lodgement of a Memorial of Declaration of Confiscation.

10.10 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.

10.11 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.

10.12 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 East Perth Redevelopment Act 1991

The East Perth Redevelopment Act 1991 (Repealed now Metropolitan Redevelopment Authority Act 2011) (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.

11.1 Effect on Title

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.

11.2 Removal

The memorial may be removed by the lodgement of a withdrawal form signed by the Authority or its delegate.

11.3 Fees

Fees were payable on lodgement of these Memorial types. Fees are payable on the withdrawal of these memorials.

Note: Metropolitan Redevelopment Authority Act 2011 replaced the Armadale Redevelopment Act 2001, the East Perth Redevelopment Act 1991, the Midland Redevelopment Act 1999, the Subiaco Redevelopment Act 1994.

Section 25(3) of the Act provides for the Authority to lodge a memorial, in a form approved by the Registrar, with the Registrar.

12 Environmental Protection Act 1986

The Environmental Protection Act 1986 (Current) (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.

12.1 Effect on Title

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.

12.2 Removal

While Pollution Abatement Notices are no longer issued, existing memorials on titles may need to be removed. A Revocation of Memorial form has been created for this purpose and can be downloaded from Landgate’s corporate website at http://www0.landgate.wa.gov.au/titles-and-surveys/forms-and-fees/land-titling-forms.

12.3 Fees

The notice may be revoked or amended by the Authority and no fees are payable for the lodgement, amendment or revocation of a memorial.

13 Fines, Penalties and Infringement Notices Enforcement Act 1994

In general terms, (Current) 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.

13.1 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:

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.

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:

a memorial in the prescribed form describing the land and setting out the amount owed under the warrant and the enforcement fees owed, and
a copy of the Warrant

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.

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.

13.2 Effect on Title

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.

13.3 Removal

Cancellation of the memorial is effected by the lodgement of a withdrawal of memorial by the Sheriff.

The signature of the Sheriff on the withdrawal of memorial does not have to be witnessed.

13.4 Fees

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.

13.5 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.

13.6 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 TRF-10 Transfer pursuant to Property (Seizure & Sale) Order).

14 First Home Owner Grant Act 2000

The First Home Owner Grant Act 2000 (Current) (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.

14.1 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.

14.2 Effect on Title

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.

14.3 Cancelling the Memorial

The memorial may be cancelled by:

the lodgement of an Application form signed by the Commissioner or his authorised delegate together with a witness to their signature

the lodgement of an Application form 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.

14.4 Fees

Fees are payable on lodgement and cancellation of these memorials.

14.5 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.

15 Heritage of Western Australia Act 1990

The Heritage of Western Australia Act 1990 (Repealed) (in this paragraph 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.

This Act has now been replaced by the Heritage Act 2018. Section 163(3) of the Heritage Act 2018 empowers the Registrar of Titles to register various notifications on certificates of title (see NOT-01 Notifications). Memorials under the repealed Act are still enforceable and are removed under the same process stated below.

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.

There are 3 types of memorials:

15.1 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.

15.1.1 Removal

The memorial may be withdrawn by the Council. A Withdrawal of Memorial has been created to effect the removal. The withdrawal must be signed and witnessed.

15.2 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.

15.2.1 Removal

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.

15.3 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.

15.4 Effect on Title

All 3 types of 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 or encumbrancers of the land are bound by its provisions.

15.5 Fees

Fees are payable on lodgement and withdrawal of all 3 types of memorials.

16 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 (Current) (in this paragraph referred to as 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.

16.1 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 license.

To qualify for the exemption, the proprietor must have taken the following steps before the issue of a building license:

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.

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).

Note: The above-mentioned memorials should not be confused with memorials lodged under s.15 of the Retirement Villages Act 1992 (See Section 24 of this guide).

16.2 Effect on Title

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.

16.3 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.

16.4 Fees

Fees are payable on lodgement of these memorials. No registration fee is payable to cancel these memorials.

17 Industrial Lands Development Authority Act 1966

The Industrial Lands Development Authority Act 1966 (Repealed) (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.

17.1 Effect on Title

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.

17.2 Removal

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.

17.3 Fees

No fees are payable on the lodgement of a withdrawal of a memorial under this legislation.

18 Land Administration Act 1997

The Land Administration Act 1977 (LAA) provides for the creation of the following two types of memorial that can be registered under the TLA as amended. (Current)

18.1 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.

18.2 Effect on Title

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)

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).

18.3 Removal

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.

18.4 Hazard warnings or other factors affecting the use of 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.

18.5 Effect on Title

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).

18.6 Removal

The Minister may, by an Order, request the Registrar of Titles to withdraw the memorial upon lodgement of a Withdrawal of Memorial form

18.7 Fees

No fees are payable upon the lodgement or withdrawal of these either of these memorial types.

19 Legal Aid Commission Act 1976

The Legal Aid Commission Act 1976 (Current) (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.

19.1 Effect on Title

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.

19.2 Removal

The memorial may be withdrawn by the Director upon lodgement of a Withdrawal of Memorial form.

19.3 Fees

Fees are payable on lodgement and withdrawal of these memorials.

20 Local Government Act 1995

The Local Government Act 1995 (Current) (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.

20.1 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.

20.2 Effect on Title

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.

20.3 Memorials 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.

20.4 Effect on title

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 TFR-09 Transfers by Sale for Rates (Local Government Act 1995).

20.5 Removal prior to sale

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.

20.6 Fees

No fees are payable for either the lodgement or withdrawal of both memorial types.

21 Metropolitan Water Supply, Sewerage and Drainage Act 1909

The Metropolitan Water Supply Sewerage & Drainage Act 1909 (Current but relevant section Repealed) (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.

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

A memorial that has been lodged unde6r 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).

21.1 Fees

No fees were payable on lodgement or withdrawal of these memorials.

22 Proceeds of Crime Act 1987 (Cth)

The Proceeds of Crime Act 1987 (Repealed now Proceeds of Crime Act 2002 (Cth)) (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.

22.1 Removal

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 an Application form supported by evidence (usually in the form of a Court order) that the memorial no longer has any effect.

22.2 Fees

Fees were payable on lodgement of the Memorial. Fees are payable to withdraw these memorials.

23 Proceeds of Crime Act 2002 (Cth)

The Proceeds of Crime Act 2002 (Current) (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.

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.

23.1 Effect on title

Where a restraining order has been noted on a title, the Act prohibits any dealings or transactions that have “the direct or indirect effect of reducing the value of the person’s interest in the property” – s.18 & 338. This in turn means that the Registrar should not register and debt or charge-related caveats or memorials, which may indirectly reduce the value of the property interest concerned.

If any subsequent dealings are lodged, they may not be registered, but held in a Registrar’s Packet. These dealings will remain in the Registrar’s Packet as unregistered dealings until the relevant memorial is withdrawn or the land is forfeited to the Commonwealth.

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.

23.2 Removal

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 an application form supported by evidence (usually in the form of a Court order) that the memorial no longer has any effect.

23.3 Fees

Fees are payable on lodgement and withdrawal of these memorials.

24 Retirement Villages Act 1992

Section 15 of the Retirement Villages Act 1992 (Current) 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.

24.1 Effect on Title

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.

24.2 Removal

24.2.1 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:

the applicant (who may not always be the registered proprietor) is to lodge an application form. 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"

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

consents from all registered encumbrancers and caveators should also be supplied.

24.2.2 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:

The lodgement of an application form 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."

A supporting statutory declaration by the registered proprietor stating that:
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

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:
- 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

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.
¹

¹Second dot point concerning a certificate or letter from the Department of Commerce deleted 22/10/2020

24.2.3 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.

24.3 Fees

Fees are payable both on lodgement of the memorial and on an application to remove it.

25 Rural Adjustment and Finance Corporation Act 1993

The Rural Adjustment and Finance Corporation Act 1993 (Repealed now Rural Business Development Corporation Act 2000.) (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.

25.1 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.

25.2 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.

25.3 Fees

No fees are payable on any notice or memorial lodged under the Act.

26 Rural Business Development Corporation Act 2000

The Rural Business Development Corporation Act 2000 (Current) (in this paragraph referred to as the Act) repealed the Rural Adjustment and Finance Corporation Act 1993.

The Rural Business Development Corporation (the Corporation) has been set up to provide financial assistance to persons eligible for assistance under approved assistance schemes to foster the development of rural businesses.

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.

26.1 Effect on titles

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.

26.2 Fees

No fees are payable on any notice or memorial lodged under the Act.

27 Soil and Land Conservation Act 1945

The Soil and Land Conservation Act 1945 (Current) (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.

27.1 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.

27.2 Removal

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 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.

27.3 Effect on Title

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.

27.4 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.

27.5 Effect on Title

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.

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.

27.6 Fees

No registration fees are required to lodge or withdraw these memorials, and no stamp duty is payable on any charge created.

27.7 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.

27.8 Effect on Title

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.

27.9 Removal

The Commissioner may remove the memorial by lodging at Landgate a form certifying that the soil conservation notice has been quashed or discharged. Under Part 1VA and Part V of the Act, a Withdrawal of Memorial form is lodged by the Commissioner or Deputy Commissioner.

27.10 Fees

No registration fees are payable on the lodgement or withdrawal of these memorials.

28 Taxation Administration Act 2003

The Taxation Administration Act 2003 (Current) (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 1976 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 or a Property (Seizure and Sale) Order is lodged in relation to land over which a memorial under s.76 or s.77 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 or Property (Seizure and Sale) Order.

28.1 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 or Judgment 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.

28.1.1 Fees

Fees are payable on lodgement and withdrawal of these memorials.

28.2 Memorial (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 or Judgment 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.

28.2.1 Fees

Fees are payable on lodgement and withdrawal of these memorials.

28.3 Memorial (Transfer Duty or Landholder Duty) NEW²

Where Transfer 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.77A of the Act.

The effect of lodging the memorial is to prohibit the registration of any subsequent instruments or Judgement 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.

28.3.1 Fees

Fees are payable on lodgement and withdrawal of these memorials.

²Updated to include section 28.3 Memorial (Transfer Duty or Landholder Duty) NEW

28.4 Orders for Sale of Land

If Land Tax or Stamp Duty remains unpaid for 18 months after registration of either of the above-mentioned 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.

28.4.1 Fees

Fees are payable on the registration of a transfer giving effect to the order of the Supreme Court.

29 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

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

automatically on the lodgement of the deposited plan of survey.

29.1 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).

29.2 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).

29.3 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.

29.4 Fees

Fees are payable on lodgement and withdrawal of these memorials.

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.

30 Town Planning and Development Act 1928

See Policy and Procedure Guide NOT-01 Notifications section 11.¹

¹[Guide updated on 06/09/2018 to replace reference 'Section 28 of this guide' with 'Policy and Procedure Guide NOT-01 Notifications section 11']

31 Water Services Act 2012

The Water Services Act 2012 (Current) (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.

31.1 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.

31.2 Effect on Title

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.

31.2.1 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.

31.3 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.

31.4 Forms

The Memorial and the Withdrawal of Memorial Form can be downloaded from Landgate’s corporate website at http://www0.landgate.wa.gov.au/titles-and-surveys/forms-and-fees/land-titling-forms.

31.5 Fees

Fees are payable on the lodgement and withdrawal of these memorials. Fees will no longer be included with the deposited plan audit lodgement fee

31.6 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).

31.7 Fees

Fees are payable on lodgement and withdrawal of these notifications.

32 Western Australian Land Authority Act 1992

32.1 By-Laws

Part 6 (By-laws) of the Western Australian Land Authority Act 1992 (Current) (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.

32.2 Effect on Title

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.

32.3 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.

32.4 Fees

While fees are payable for the lodgement of a memorial, no fees are required on the documents removing it.

3 Notifications Lodged against Part of the Land in a Certificate of Title

MTG-01 Mortgages

Version 2 - 12/02/2018

A Mortgage 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 the VOI webpage.

1 Mortgage Forms

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...."

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.

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 balance in the covenants is 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.

The National Mortgage Form (NMF) in paper form was introduced throughout Australia in May 2017. An electronic version of the NMF is available on the Landgate website and in the PEXA Electronic Lodgement Network Operator environment.

From 1 January 2018 all mortgages must be lodged using the NMF.

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. Please note that the National Mortgage Form (NMF) has a 4,000-character limit and so may not accommodate contractual details within the Terms & Conditions part of the NMF, therefore a Memorandum of Common Provisions may be necessary.

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:

to repay the principal sum
to pay interest on that sum in the manner provided
to repair and keep in repair buildings on the land

and

at reasonable times, to permit inspection of the mortgaged premises by the mortgagee.

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.

1.2 Electronic Lodgement of Mortgages introduced

Landgate introduced the ability to lodge mortgages electronically in June 2014.

1.3 Electronic Lodgement of Mortgages effective 1 August 2016

From 1 August 2016, all stand-alone residential mortgages (mortgages to which the National Credit Code applied) needed to be lodged through an Electronic Lodgement Network (ELN), if the mortgagee was an authorised deposit-taking institution (ADI).

1.4 Electronic Lodgement of Mortgages effective 1 December 2018

What Changed

As of 1 December 2018, all new eligible, stand-alone mortgages and any lodgement case consisting of eligible discharges, transfers, mortgages, caveats and withdrawal of caveats must be lodged electronically, as per the Transfer of Land Regulations 2004.

A self-represented party (someone who has not engaged another person, on a commercial basis, to assist in the preparation of the mortgage) may be eligible to lodge a mortgage in paper. For further information, please contact Landgate’s Customer Service team on +61 (0)8 9273 7373 or email customerservice@landgate.wa.gov.au .

Why these Changes were introduced

The changes introduced 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.

Lodging Electronic Mortgages

For more information on lodging documents electronically, please refer to LOD-01 Lodging of Electronic Documents.

2 Mortgages under the National Credit Code

The National Consumer Credit Protection Act 2009 (the Act) came fully into operation on 1 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 Schedule of the Code defines credit.

Section 4 of the Schedule 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 Schedule 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:
for personal, domestic or household

to purchase, renovate or improve residential property for investment purposes

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 of the Schedule.

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.

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:

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.

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.

4 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 RevenueWA (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).

5 Also see

MTG-02 Mortgages - variations

Version 1 - 19/07/2017

1 Mortgage of Lease

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.

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.

2 Mortgage by a Joint Tenant of that Interest

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 Francis- Mortgages 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.

3 Mortgage by a Life Tenant

A life tenant, having an estate and interest in land, may mortgage that estate or interest. 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.

4 Mortgage by a Remainderman

The remainderman also has an estate or interest in land capable of being mortgaged. On the death of the life tenant the interest of the mortgagee enlarges to cover the fee simple in possession.

5 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 s.43 permits a trustee (executor or administrator) to mortgage under the circumstances set out therein. A statutory declaration setting out the circumstances is required.

6 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.

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.

7 Up Stamping a Mortgage

8 Extension of Mortgage

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.

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.

9 Also see

MTG-03 Mortgages - document preparation

Version 4 - 23/03/2018

1 Mortgage Forms

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 using the National Mortgage Form (NMF), and the registration of that mortgage. The duplicate certificate of title (if any) must be produced.

For convenience, the mortgage may be viewed in two parts: an operative conveyancing part and the contractual part.

The operative conveyancing part is the part of a mortgage form necessary to permit registration. It contains all of the following information:

a description of the land
the estate or interest in the land
the name of the registered proprietor
the name and address of the mortgagee and tenancy if more than one
detail of repayments and interest
the operative mortgaging part, which must contain the word mortgages
the date of the document
the signature of the mortgagor

and

the signature, address and occupation of the witness.

The contractual part of the document consists of the covenants between the mortgagee and mortgagor.

If the contractual details are lodged as a Memorandum of Common Provisions at Landgate, any new mortgage can be completed as a short form containing the operative part and conveyancing detail, and a reference to the memorialised contractual details.

The contractual details can be inserted into the space provided for Terms and Conditions within the National Mortgage Form. Should the contractual details exceed the space provided, a Memorandum of Common Provisions will need to be lodged first. The new mortgage can be completed containing the operative part and conveyancing detail, and a reference to the memorialised contractual details can be made in the Terms and Conditions. If the National Mortgage Form is amended by hand to include the Memorandum of Common Provisions document number, the amendment must be acknowledged by the mortgagors.

From Monday 1 August2016, addresses are no longer 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.

1.1 National Mortgage Form

Land Registries across Australia have collaborated to develop a National Mortgage Form for implementation in all states and territories.

The National Mortgage Form is available online as an electronic form at https://www0.landgate.wa.gov.au/for-individuals/forms-and-fees/land-titling-forms. Users can complete the details and generate a printable PDF.

A transition period, during which mortgages could be lodged using either the National Mortgage Form (NMF) or current mortgage forms, applied until 31 December 2017. From 1 January 2018, all mortgages must be lodged using the National Mortgage Form (NMF).

The National Mortgage Form is a significant national initiative designed to standardise the common content and presentation of mortgages lodged for registration through all lodgement channels with land registries in all Australian states and territories.

The Australian Registrars’ National Electronic Conveyancing Council has published the National Mortgage Form specification and the WA addendum which is available its website at https://www.arnecc.gov.au/publications/national-mortgage.

1.2 Mortgage of Lease

A mortgage of a lease of Crown or freehold land can be prepared using the National Mortgage Form (NMF).

The estate and interest being mortgaged panel should read leasehold, and the land description of the mortgage must additionally refer to the lease being mortgaged.

For example:

‘As to Lease H123456only’

or where the lease and mortgage are lodged together:

‘As to Lease . . . . . . . . dated 0.0.2005 made between AB (lessor) and the mortgagor only’

2 Variation Requirements

2.1 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.

2.2 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.

2.3 Mortgage by a Life Tenant

The estate or interest being mortgaged panel of the form should read an estate for the life of A .

2.4 Mortgage by a Remainderman

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.

2.5 Mortgage by a 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.

2.6 Mortgage by a Personal Representative

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.

2.7 Mortgages – Double Interest

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."

2.8 Mortgages 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.

2.9 Extension of Mortgage

In any extension of mortgage there is a special printed Extension of Mortgage form. (See LTRPM Form Examples - Example 17). The duplicate certificate of title (if any) must be produced.

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."

3 Also see

MTG-04 Mortgages - discharges

Version 1 - 14/07/2017

1 Discharge of Mortgage Form

There is a Discharge of Mortgage form for use in most cases. (See Land Titling Forms page.)

If only some of the Mortgagees are discharging, a Discharge of Mortgage (part of moneys and some of the mortgagees) form - available from the Land Titling Form page - should be used. This is an alternative to lodging a transfer of mortgage.

A discharge may be:

total as to both land and money, see Form Example 14
partial as to money over the whole of the land i.e. the principal sum is reduced, see Form Example 15
partial as to land from the whole of the money i.e. the security is reduced, see Form Example 16

and

partial as to money over the whole of the land by some of the Mortgagees i.e. the number of Mortgagees is being reduced, see Form Example 17.

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 D1 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 Form Example 15.

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. (Refer Application by Personal Representative form and Application by Survivor form.)

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.

Landgate introduced the ability to electronically lodge a Discharge of Mortgage in June 2014.

2 Electronic Lodgement of Stand Alone Discharges or Mortgages effective 1 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 1 August 2016.

2.1 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.

2.2 Why are the changes 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.

2.3 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 customerservice@landgate.wa.gov.au .

3 Discharge - Where Mortgagee is 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 on an Application form A5, 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.

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

4 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

5 Discharge – Where the Mortgage Money has been Paid and the Mortgagee is Dead, 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 an Application form.

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.

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.

6 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.

7 Discharge – Where Annuitant is Dead and there is No Personal Representative

The document by which this is achieved is an application on an Application form 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.

8 Also see

NOT-01 Notifications

Version 2 – 22/07/2020

Contents:

1 Overview

2 Forms

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

4.1 Fees

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

5.1 Environmental Protection Notice (Section 65)

5.2 Closure Notice (Section 68A)

5.3 Vegetation Conservation Notice (Section 70)

5.4 Notification document

5.5 Amendment of Notification document

5.6 Revocation of Notification document

5.7 Fees

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

6.1 Background

6.2 Notification

6.3 Removal or Amendment

6.4 Fees

7 Petroleum Pipelines Act 1969

7.1 Notification of Easement

7.2 Notification of Transfer of Easement

7.3 Notification of Expiry, Surrender or Cancellation of Easement

7.4 Fees

8 Planning and Development Act 2005 (Section 165)

8.1 Notification

8.2 Withdrawal of Notification

8.3 Fees

9 Planning and Development Act 2005 (Section 180)

9.1 Notification

9.2 Withdrawal of Notification

9.3 Fees

10 Planning and Development Act 2005 (Section 181)

10.1 Notification

10.2 Withdrawal of Notification

10.3 Fees

11 Town Planning and Development Act 1928 (Section 12A)

11.1 Notification

11.2 Withdrawal of Notification

11.3 Fees

12 Transfer of Land Act 1893 (Section 70A)

12.1 Notification

12.2 Modification or Removal

12.3 Fees

13 Dampier to Bunbury Pipeline Act 1997

14 Also see

1 Overview

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 Transfer of Land Act 1893 (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 Planning and Development Act 2005 (P&D Act) - formerly s.20A of the Town Planning Development Act 1928 (TP&D Act)
prevent a mortgagee sale occurring and will not be required to be removed before the power of sale transfer is registered

prevent the registration of any other instrument.
Duplicate Certificates of Title are generally not required for the lodgement of a Notification or a removal of Notification.

2 Forms

The Registrar of Titles and Commissioner of Title will work with various Government Departments and statutory authorities to create and approve forms that comply with the TLA schedule to enable the registering and notation of Notifications on certificate of titles. At the request of the responsible agency Landgate may make these approved forms available on the Corporate website.

Where a form is not available on Landgate’s corporate website person(s) should contact the relevant responsible agency.

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3 Notifications Lodged against Part of the Land in a Certificate of Title

If a Notification 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 notification. The land description in the notification 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.

4 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.

4.1 Fees

Fees are payable on lodgement and withdrawal of these Notifications.

5 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:

5.1 Environmental Protection Notice (Section 65)

Section 65 of the Act authorises the issue and service of an Environmental Protection Notice) 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.

5.2 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

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.

5.3 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.

5.4 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 at https://www0.landgate.wa.gov.au/for-individuals/forms-and-fees/land-titling-forms.

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.

5.5 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 at https://www0.landgate.wa.gov.au/for-individuals/forms-and-fees/land-titling-forms. This form is to contain a copy of the amended notice.

5.6 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 at https://www0.landgate.wa.gov.au/for-individuals/forms-and-fees/land-titling-forms.

5.7 Fees

A Landgate registration fee is not payable upon lodgement of the Notification document, Amendment of Notification or the lodgement of the Revocation document.

6 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.

6.1 Background

After Western Mining Corporation found nickel near Kambalda in the late 1960s, 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.

6.2 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.

6.3 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.

6.4 Fees

Fees are payable on lodgement and withdrawal of these Notifications.

7 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.

7.1 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 for freehold land and Notification of Easement 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.

7.2 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 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 is used for this purpose. The Notification of Transfer must be signed by the Minister.

7.3 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 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.

The relevant duplicate certificate of title is not required to be produced upon lodgement of a Notification document.

7.4 Fees

Fees are payable on lodgement and withdrawal of these Notifications.

8 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.

8.1 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 at https://www0.landgate.wa.gov.au/for-individuals/forms-and-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.

8.2 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 at https://www0.landgate.wa.gov.au/for-individuals/forms-and-fees/land-titling-forms.

8.3 Fees

Fees are payable on lodgement and withdrawal of these Notifications.

9 Planning and Development Act 2005 (Section 180)

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.

9.1 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 at https://www0.landgate.wa.gov.au/for-individuals/forms-and-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.

9.2 Withdrawal of Notification

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 at https://www0.landgate.wa.gov.au/for-individuals/forms-and-fees/land-titling-forms.

9.3 Fees

Fees are payable on lodgement and withdrawal of these Notifications.

10 Planning and Development Act 2005 (Section 181)

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.

10.1 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 at https://www0.landgate.wa.gov.au/for-individuals/forms-and-fees/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.

10.2 Withdrawal of Notification

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 at https://www0.landgate.wa.gov.au/for-individuals/forms-and-fees/land-titling-forms.

10.3 Fees

Fees are payable on lodgement and withdrawal of these Notifications.

11 Town Planning and Development Act 1928 (Section 12A)

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.

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.

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

Comprised in a strata scheme or proposed strata scheme presented to the Commission for approval under s.25 of the STA.

11.1 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.

11.2 Withdrawal of Notification

A Notification lodged under s.12A of the TP&D Act was removed by the lodgement of a withdrawal of notification.

11.3 Fees

Fees are payable on lodgement and withdrawal of these Notifications.

12 Transfer of Land Act 1893 (Section 70A)

12.1 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. Notification under section 70A form 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.

The Notification can be lodged for any purpose that serves as a warning or restriction in the use of the land. The most common scenarios are:

Warnings about increased mosquitos’ levels during certain times of the year.
Increased levels of noise relating to proximity to airports or entertainment venues/areas.
Restrictions on the use or occupation of second dwelling (granny flats).
Fire Management Plans for areas prone to bushfires.

12.2 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 Removal or modification of notification under section 70A.

12.3 Fees

Fees are payable on lodgement and withdrawal of these notifications.

13 Dampier to Bunbury Pipeline Act 1997¹

Where land is identified as being land within the Dampier to Bunbury Natural Gas Pipeline (DBNGP) corridor, a Sundry Document pursuant to section 44 is registered to give notice that the land forms part of the DBNGP Corridor.

Where the DBNGP Sundry is shown in the Limitations, Interests, Encumbrances and Notification panel, where there is one, of an instrument or dealing relating to the land, the Sundry will not prevent the registration of the instrument or dealing. However, pursuant to section 41, approval of the DBNGP Land Access Minister is required for documents which could reasonably be expected to interfere with the pipeline rights in the land.

The DBNGP Land Access Minister will not usually consent to an easement over land within the DBNGP Corridor, however there may be other options that are available eg. the granting of a licence. Consent for a lease may depend on the purpose of the lease. Transfers of land or new mortgages do not require consent to be provided with the document.

¹[Guide updated on 22/07/2020 to insert section 13]

14 Also see

PAP-01 Profits à Prendre

Version 1 - 24/10/2017

1 Overview

A profit à 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 à prendre over freehold land and so they have not, as a general rule, been accepted for registration. However, profits à 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 Section 2 and Section 3 below).

Section 81R of the TLA allows for the registration of profits à prendre granted under s.91(1) of the LAA in respect of Crown land (see policy and procedure guide PAP-02 below).

2 Lodgement

Profits à prendre may be lodged at Landgate on payment of the prescribed fee. (See Search and lodgement fees). The duplicate certificate of title (if any) must be produced before a profits à prendre can be registered. If the land being burdened by the profit à 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 à 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 à 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.

3 Effect as an Encumbrance

A profit à prendre registered under the TLA will run with the land and will not be removed on exercise of a mortgagee’s power of sale provided the mortgagees consent is endorsed thereon.

Profits à 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 à prendre.

Note: Most timber share farming agreements registered as a profit à prendre contain a clause preventing the registered proprietor from selling, leasing, mortgaging or otherwise encumbering the land without the written consent of the grantee.

4 Also See

PAP-02 Profits à Prendre - various acts

PAP-02 Profits à Prendre - various Acts

Version 3 – 01/11/2019

1 Profits à 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

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 à 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 à prendre have been transferred to the Forest Products Commission.

2 Profits à 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.

the FPC
another person through the FPC acting as an agent

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 à prendre and it is assignable (transferable).

3 Transfer of Profits à Prendre under the Conservation and Land Management Act 1984 and the Forest Products Act 2000

A profit à 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 à prendre are to be prepared using a Transfer of Profit à Prendre form 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 Revenue WA (Stamp Duties Division).

The duplicate (grantees copy) of the profit à prendre (if any) must be produced with the transfer.

Note: This requirement would only apply to profits à prendre lodged before 13th January 1997. From this date no duplicate profits à prendre have been accepted for registration.

4 Surrender of Profits à Prendre under the Conservation and Land Management Act 1984 and the Forest Products Act 2000

Before the expiry of its term, a profit à prendre can be surrendered by the grantee.

If the grantee is the CEO of DPaW (see Section 2) the profit à 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 à Prendre form to be lodged at Landgate to effect the surrender. Alternatively, the surrender could be prepared on a Blank Instrument Form in a manner similar to a surrender of easement (see paragraph 7.2.1 - Removal of Easements – Surrender in EAS-03 Easements - removal) or by using a Surrender Form S1, modified by substituting the references to a lease to a Profit à Prendre.

Surrender of a Profit à Prendre as to part of a lot is required to be supported by a new Interest Only Deposited Plan prepared by a licensed surveyor.

Where there is no consideration for the surrender, and the Profit a Prendre being surrendered was originally created under a timber sharefarming agreement under the Conservation and Land Management Act 1984 or the Forest Products Act 2000, duty assessment by the RevenueWA is not required.¹

¹ [Paragraph replaced 01/11/2019]

Lodgement Fees are payable upon lodgement of the surrender at Landgate.

The duplicate copy of the Profit à 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 COT-03 Application for Lost Title) negating its deposit as a security. It is preferable, but not essential, that the duplicate title be produced.

Note: This requirement would only apply to profits à prendre lodged before 13 January 1997. From this date, no duplicate profits à prendre have been accepted for registration.

Where the term in the Profits à Prendre has been extended by the lodgement of a caveat and that term is still current, the Profit à 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.

5 Removal by Withdrawal of Caveat

If a withdrawal of such a caveat were lodged at Landgate on its own and the term of the Profit à Prendre had expired, then the Profit à 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 à Prendre on the grounds of the expiry of both the original term and the extension.

6 Expired Profits à Prendre

Where a Surrender is not obtainable and the Profit à Prendre has expired and the above removal option is not available, an Application under section 184 of the TLA should be made to remove the expired Profit à Prendre.

The registered proprietor of the land in a title or the Interest Holder can apply on an Application form, for the removal of a Profit à Prendre on the grounds that it has expired. The application should be supported by a statutory declaration made by the applicant that:

Recites his or her ownership or interest of the relevant land.
Quotes the Profit à Prendre registration number.
Refers to the term of the Profit à 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 à 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 à Prendre as an encumbrance on the title.

A letter from the Forests Product Commission, as assignees in law of the benefit of the Profit à 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.

7 Profits à 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 à 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 à prendre, the Minister may:

grant a profit à prendre for any purpose
fix or extend the duration of them
determine fees and conditions in respect of them
review them

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 à prendre and a mining or petroleum right (see s.91 (5) of the LAA).

7.1 Preparation of the Document

When approval is given, the Deed of Grant of a Profit à 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 Revenue WA (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).

7.2 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.

7.3 After Registration

While a profit à 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 à prendre.

Where a certificate of title is created and registered in respect of Crown land that is encumbered by a profit à prendre, the profit à prendre continues until it is surrendered or it expires.

The grantee(s) of a profit à prendre is not permitted to assign (transfer) their interest to a third party.

The grantee(s) of a profit à prendre may surrender it as to the whole or any part of it.

8 Also See

PSS-01 Property (Seizure and Sale) Order (PSSO)

Version 1 - 18/12/2017

1 Overview

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 WAW-01 Writs of Fieri Facias and Warrants of Execution).

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 Transfer of Land Act 1893 (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.

The lodgement of a PSSO is a mechanism in assisting with the enforcement of payment of debt when a person takes someone to Court (i.e. sues them for damages or outstanding monies for works done) and they are awarded monetary judgement. The Court does not make the person pay the amount owed. To enforce the judgement, the Judgement Creditor can take out a PSSO against the Judgement Debtor’s personal or real property (Land). When a PSSO has been registered the Sheriff or the Supreme Court can be instructed to sell the Judgement Debtors land to satisfy the debt.

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-month 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.

Fees are payable on both the lodgement and the extension of a PSSO.

Note: Section 133(4)(c) of the TLA prevents registration of a PSSO that is already registered and in effect in respect of the same saleable interest. However, if the execution creditor withdraws the already registered PSSO before lodging the new PSSO, then Landgate can register the new PSSO.

An exception to this rule is where a PSSO with the same plaint number is issued for two separate judgments. For example, the Court may make an order for an initial judgment amount and subsequently at a later, separate hearing make an order for an amount of costs as taxed. This is an example where two PSSOs can be registered with the same plaint number.

2 How Lodged

To register a PSSO, a copy certified by the Sheriff or a Deputy Sheriff of the Civil Judgements Enforcement Act 2004, Part 4 Division 6 Form 25 – Property (Seizure and Sale) Order, must be attached to a Application to Register Property (Seizure and Sale) Order form. This form can also be downloaded from the Land Titling Forms section on Landgate’s corporate website.

A PSSO can be registered against the registered interests of:

the proprietor of the fee simple

a mortgagee \ chargee \ lessee etc.

Note: A PSSO can still be registered where the original Order has expired. The Application to registered a PSSO must include an additional Order extending the operation of the Order up to 12 months. This Order should not be confused with an order extending the ‘Sale Period’.

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.

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).

2.3 Saleable Property and Seizable Property

The Seizable Property address noted on the form 25 PSSO Order does not have to be the same as the Saleable Property address noted on the certificate of title. The Seizable Property address on the form 25 (PSSO) is an address at which the sheriff may seize property (other than real property) belonging to the judgment debtor. The saleable property, however is real property registered in the name of the execution debtor. As noted above the seizable property address may be the same as the saleable interest address but this is not mandatory.

2.4 Execution

A Application to Register Property (Seizure and Sale) Order form 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.

2.5 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.

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 section 4 below) must be lodged before the 6-month 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 PSS-02 Property (Seizure and Sale) Order - removal) 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.

Note: A writ or warrant endorsed on a title that is still current as at 1 May 2005 is deemed to be a PSSO and will automatically bind the land for 6 months from the date of its lodgement. Any Writ or Warrant that has been satisfied, or on which the sale period has expired, must be discharged using an application to register a discharge of a PSSO (Form A12) before any instrument (e.g. Transfers, Mortgages and Leases etc.) can be registered.

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. Section 133(13) of the TLA provides for the granting of an Order which extends the ‘Sale Period’ of a registered current PSSO. The court may extend it for any specified time period that is not greater than 6 months.

An Order to extend a PSSO that has already been registered must be extended by Court Order before the initial 6-month "Sale Period" has expired. When registered the Court Order extends the sale period from the end of the sale period for 6 months but not longer. The Court Order should be worded to start the sale period extension from the expiry of the current 6-month period. Section 133(16) of the TLA states an order made under subsection (13) has no effect unless it is lodged with the Registrar before the sale period would otherwise expire together with an application to have the order registered.

An extension which attempts to extend the sale period from a date prior to the expiry date of the 6-month statutory sale period should not be accepted (see s.133(17) of the TLA).

To register an order extending the sale period in a PSSO, an original sealed copy of the order (can be a Form 25 – General Order or Form 8 - Order) must be attached to a Application to Register an Order Extending the Sale Period in a Property (Seizure and Sale) Order form. The Form A11 can also be downloaded from the Land Titling Forms section on Landgate’s corporate website.

4.1 Calculating of ‘Sale Period’ on a title

The sale period commences on the date of lodgement of the PSSO, not on the date of the Order. Where an extension of the sale period has been granted multiple times and noted on the title with the endorsement ‘Order Extending Sale Period’ care should be taken when calculating the expiry date of the PSSO.

Whilst it is more likely than not, a PSSO can be extended for a time shorter than 6 months. Persons seeking to lodge an extension of PSSO should search existing extensions to confirm if the sale period has been extended for 3 months, 6 months or as the court deems fit.

5 Also See

PSS-02 Property (Seizure and Sale) Order - removal

PSS-02 Property (Seizure and Sale) Order - removal

Version 1 - 18/12/2017

1 Overview

A Property (Seizure and Sale) Order (PSSO) lodged against land will prevent the registration of any instruments (e.g. transfers, mortgages and leases) 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.

Even though the sale period in a PSSO has expired the PSSO must be removed before any instruments can be registered against the land. This is in contrast to Writs and Warrants. When a Writ or Warrant lapsed it often remained on the Title but was ignored because it had no effect. This is not the case with PSSO’s.

Fees are payable on each PSSO removed.

Removal of a PSSO is achieved in the following ways:

By Application to register a discharge of Property (Seizure and Sale) Order
By Transfer by Mortgagee Power of sale
By Transfer by the Sheriff
By Sale for Rates

2 Application to Register a Discharge of a Property (Seizure and Sale) Order

An Application to register a discharge of a Property (Seizure and Sale) Order has been designed to remove a PSSO lodged under the Civil Judgments Enforcement Act 2004 (the Act). Application to Register a Discharge of a Property (Seizure and Sale) Order form. This form can also be downloaded from the Land Titling Forms section on Landgate’s corporate website.

A PSSO (whether current or expired) must be removed from the certificate of title before dealing with the land (i.e. selling or mortgaging etc.).

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:

the judgment creditor using Option 1 (no evidence is required)
by any person using Option 4 if the sale period has expired (no evidence is required)

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).

Note: A writ or warrant endorsed on a title that was still current as at 1 May 2005 was deemed to be a PSSO and automatically bound the land for 6 months from the date of its lodgement. These Writ or Warrants must be discharged using an application to register a discharge of a PSSO (Form A12) using one of the 4 options.

2.1 Supporting Evidence

Where options 2 or 3 are select the person applying must provide supporting evidence by way of statutory declaration and any other supporting evidence.

In addition to the Statutory declaration, other evidence may come in the form of:

An Order issued by the relevant court cancelling the PSSO
Evidence of satisfaction by way of letter from the Judgement Creditor or letter from debt collector.

Note: Bank statements or payment receipts may not include sufficient information/evidence to identify the payer and/or the recipient of payment.

2.2 Execution of the Application

Subject to the option chosen, an Application to Register a Discharge of a Property (Seizure and Sale) Order can be executed in the following ways:

Option One; only the Judgement Creditor(s) can sign the form and all Judgement Creditor(s) must sign.
Option 2, 3 and 4 can be made by anyone (must be a legal entity, real person or corporation)

See relevant execution of documents (add link)

3 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.

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 TFR-08 Transfer by Mortgagee/Debenture Holder/Annuitant (Chargee) exercising Power of Sale.)

4 By Transfer by the Sheriff

It is essential that the sale period in the PSSO is still current when the Sheriff sells the land to satisfy a Judgement debt. A PSSO is automatically removed as an encumbrance on the registration of a transfer, by way of sale by the Sheriff. A PSSO registered prior to the PSSO effecting the sale must be removed by A12 Application to Discharge a PSSO. (See TFR-10 Transfer Pursuant to a Property (Seizure and Sale Order.)

5 By Sale for Rates

Where a local Government exercises its power to sell land for non-payment of rates under s.6.75 of the Local Government Act and lodge a transfer to give effect to such sale, an expired PSSO against the land is removed as an encumbrance. A PSSO that is still current is removed as an encumbrance on the registration of the transfer if the written consent of the Sheriff is obtained and filed with the transfer.

6 Also See

TPA-01 Tree Plantation Agreements

Version 1 - 24/10/2017

1 Overview

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 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.

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

Harvest products from a plantation.

- A Tree Plantation Agreement form 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

a lease of Crown land.

Note: A tree plantation agreement can give a right of exclusive possession.

4 Registration of a Tree Plantation Agreement

4.1 Lodging a TP1

To create a plantation interest in land, a Tree Plantation Agreement form 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.

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.

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.

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, varied, transferred, mortgaged or surrendered (see TPA-02 below). It can also be devised under a Will and be the subject of a Property (Seizure and Sale) Order.

5 Also See

TPA-02 Tree Plantation Agreements - amendments and removal

TPA-02 Tree Plantation Agreements – amendments and removal

Version 3 - 1/11/2019

1 Extension of a Plantation Interest

1.1 Registering an Extension

A plantation interest may be extended by the registration of an Extension of Plantation Interest form 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

the area of the land to which the plantation interest applies.

The duplicate title (if any) must be produced with the extension.

1.2 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 Variation of a Tree Plantation Agreement

2.1 Registering a Variation

The provisions of a tree plantation agreement may be varied by the registration of a Variation of Tree Plantation Agreement form 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.

2.2 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.

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.

3 Transfer of a Plantation Interest

A plantation interest may be transferred by the registration of a Transfer of Plantation Interest form 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.

4 Mortgage of a Plantation Interest

A plantation interest in land can be mortgaged using the National Mortgage Form (NMF).

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.

5 Surrender of a Plantation Interest

A plantation interest may be wholly or partially surrendered by the registration of a Surrender of Plantation Interest form 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.

Where there is no consideration for the surrender, and the Plantation Interest being surrendered was originally created under an agreement under the Tree Plantation Agreements Act 2003, duty assessment by the RevenueWA is not required.

6 Expired Tree Plantation Agreement

Where a Surrender is not obtainable and the Tree Plantation Agreement has expired, an Application under section 184 of the TLA should be made to remove the expired Tree Plantation Agreements (see Applications s.184).¹

¹ [New section added on 13/03/2018]

7 Also see

TPA-01 Tree Plantation Agreements

WAW-01 Writs of Fieri Facias and Warrants of Execution

Version 1 – 16/01/2018

1 Overview

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 (PSS-01 Property (Seizure and Sale) Order).

Historically, Writs and warrants, although issuing from different Courts, had the same effect when lodged against land registered under the Transfer of Land Act 1893 (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.

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.

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 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.

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 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.

5 Also see

WAW-02 Writs and Warrants - Removal

WAW-02 Writs and Warrants - removal

Version 1 – 16/01/2018

1 Current Removal Options

As a writ or warrant was essentially ignored as an encumbrance there may be a number of titles that are still encumbered by a writ or warrant. In those instances, the following options are available:

1.1 By Application

The Registered Proprietor of the land or other interested party may make an application to have the writ or warrant removed using an A5 Application form.

The reason for application should state ‘For the removal of writ or warrant (Number)’

Each writ or warrant being removed will incur a lodgement fee (similar to any other encumbrance being removed).

Note: Where the writ or warrant is now deemed to be a Property (Seizure and Sale) Order it must be removed as such - see PSS-02 Property (Seizure and Sale) Order - removal.

1.2 By Registrar of Titles upon lodgement of an Instrument

Where an Instrument has been lodged to effect the change of ownership or a new Mortgage, the writ or warrant will be removed to give clean title to the new owner or Mortgagee. The transactions should be lodged subject to the writ or warrant and will be removed simultaneously with the other transactions.

2 Historical Removal Options

2.1 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.

2.2 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.

2.3 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.

2.4 By Taking or Acquisition

Where land subject to a writ or warrant was taken under the Land Administration Act 1997 (LAA)

or compulsorily acquired by the Commonwealth under the LAA, the writ or warrant ceased to have any effect.

2.5 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.

2.6 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

2.7 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.

3 Also see

WAW-01 Writs of Fieri Facias and Warrants of Execution

Subdivision and Strata/Survey Strata Plans

Strata Form Reference Table

Click the following link to access the Strata Form Reference Table

Transitional Guide for Strata Titles Scheme Lodgements

View the Transitional Guide for Strata Titles Scheme Lodgements

STR-01 Freehold and Leasehold Schemes

Version 4 – 01/05/2020

Disclaimer of liability

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 and again by the Strata Titles Amendment Act 1996, which came into operation on 20 January 1997.

Subsequently, on 1 May 2020 the Strata Titles Act 1985 was amended and came into operation after proclamation of the Strata Titles Amendment Act 2018 (STAA), which comprehensively amends the existing legislation. These changes empowered thousands of strata owners, residents and industry professionals in WA with a much clearer and fairer system.

The STA contains a number of important new provisions in relation to:

Better buyer information
Safeguards for the termination of schemes
Improved management
Simplified dispute resolution
Leasehold schemes
More flexible staged strata subdivision.

These matters are dealt with particularly in subsequent paragraphs and guides. Some of the words and phrases used in these guides require definition, and these are:

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;

common property in a survey-strata plan - means the area or areas shown as common property, designated by the letters CP;

council - means the governing body of the strata company;

designated interest – as defined in section 3(1) of the STA, means:

"(a) a registered mortgage; or

(b) a registered lease; or

(d) the interest of a judgment creditor named in a property seizure and sale order registered under the Transfer of Land Act 1893 section 133; or

(e) the interest of a person named in a memorial registered under the Transfer of Land Act 1893 as having a statutory right requiring the consent of the person to any dealing with the land; or

(f) a plantation interest registered under the Transfer of Land Act 1893; or

(g) a carbon covenant registered under the Transfer of Land Act 1893;”

freehold scheme – freehold strata/survey-strata scheme;

leasehold scheme – leasehold strata/survey-strata scheme;

lot - means a lot shown as such on a strata / survey-strata plan;

parcel - means the whole of the land comprised in a strata / survey-strata plan;

scheme - means a strata scheme or a survey-strata scheme;

scheme developer – the original proprietor of the scheme for the initial subdivision of the parcel; the owners of lots that are subdivided for a subsequent subdivision of land to which staged subdivision by-laws apply;

scheme documents – includes Scheme Notice, Scheme Plans, Schedule of Unit Entitlements, Scheme By-laws, Strata Leases (if leasehold scheme);

special common property – common property within a scheme which is subject to an exclusive use by-law;

special lot – a lot within a scheme which has exclusive use of common property as set out in an exclusive use by-law;

strata company - established on registration of the strata titles scheme and having a number of functions under the STA including control and management of the common property for the benefit of all the owners. All the lot owners are members of the strata company;

temporary common property – a lot in the scheme or land that is contiguous to the parcel the subject of a lease accepted by the strata company for the purpose of creating temporary common property;

type 1(a) subdivision – enlargement of common property by acquisition of contiguous land;

type 1(b) subdivision – conversion of lots to common property;

type 2 subdivision – disposal of common property;

type 3 subdivision – consolidation of lots;

type 4 subdivision – re-subdivision of lots and/or common property; and

unit entitlement – of a lot determines:

the owner of a lot’s share in the common property;
subject to scheme by-laws, the contributions payable by the owner of the lot; and the voting rights that attach to the lot for the purposes of a special resolution or an ordinary resolution where a person entitled to cast a vote demands that votes be counted by unit entitlements of the lots.

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. 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. In the case of a survey-strata plan there is no requirement for a building or buildings to be erected.

2 Searching a Strata/Survey-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;
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 inspected.

Note: A lot owner or buyer under a contract for sale and purchase of the lot can inspect strata company records on application in writing to the strata company and payment of any fee.

3 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.

The certificate of titles for 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.

4 Production of Duplicate Certificates of Title

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. However, duplicate certificates of title will not be issued for lots in leasehold schemes.

Strata titles created and registered under the Strata Titles Act 1966 (ie: created and registered before 1 July, 1985) all show the share 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.

Before a strata titles scheme can be terminated, all the duplicate certificates of title (if any) for the strata/survey-strata lots must be produced for cancellation.

Where a strata/survey-strata plan is amended by a type 4 subdivision (re-subdivision) or a type 3 subdivision (consolidation) only those duplicate certificates of title (if any) affected by the re-subdivision or consolidation are required to be produced.

When any of the merger and conversion options in Schedule 2A of the STA are used, the production of the duplicate certificates of title (if any) are not required. They will be amended when they are lodged at Landgate for the purpose of a dealing.

5 Also see

STR-02 Lodgement and Registration of New Strata Titles Schemes

Version 10 – 06/07/2020

Disclaimer of liability

1 General

A freehold scheme can only be registered when the “scheme documents” (i.e. scheme notice, scheme plan, schedule of unit entitlements and any scheme by-laws) are registered.

A leasehold scheme can only be registered when the “scheme documents” (i.e. scheme notice, scheme plan, schedule of unit entitlements, any scheme by-laws and strata lease) are registered.

Before registration, and after lodgement of the plan, the status of the plan will change:

SUBJECT TO EXAMINATION – The surveyor lodges the plan electronically at Landgate, supported by a pre-allocated plan number and payment of the prescribed fees (see Search and lodgement fees);

EXAMINED – The plan will be examined to ensure that it is in accordance with the various Acts, and Regulations. This will only occur when all forms are lodged with the plan;

EXAMINED AND SENT TO WAPC – When a plan requiring the Western Australian Planning Commission (WAPC) approval is sent to the WAPC for approval;

IN ORDER FOR DEALINGS – When the plan returns from WAPC approved or, if no WAPC approval is required, immediately after the plan is examined;

LAPSED – When the 2-year limit of the Valuer’s Certificate for the Schedule of Unit Entitlements has lapsed – a new certificate, together with payment of the lapsed fee, will be required to be lodged;

EXPIRED – The Registrar of Titles will not be permitted to issue certificates of title for lots on a survey-strata plan if 2 years has elapsed since WAPC endorsed the plan. This applies to survey-strata plans endorsed before or after 1/5/2020. The plan will need to be re-lodged/re-submitted to WAPC for approval.

2 Plan Status - In Order for Dealings

When the plan is placed In Order For Dealings, it may mean that certain actions or conditions must occur before or simultaneously with the application to register the strata titles scheme.

All specific pre-requisites to register a strata titles scheme will be noted on the strata/survey-strata plan. However, this should be used as a guide only as other requirements may still need to be met.

Examples of things that may be required are the amalgamation of lots to form the Strata land parcel or the modification or removal of restrictive covenants to permit multiple dwellings or subdivision by a strata titles scheme, or the variation or removal of an easement. (Please also refer to SUB-01 Subdivision, section 13 Comments with External Impact.)⁵

⁵Updated to include reference to SUB-01 06/07/2020

The application may also require other documents to be lodged with the plan. Such a document may be a new Schedule of Unit Entitlements (1-22 lots) or Schedule of Unit Entitlements(1-100 lots) or Schedule of Unit Entitlements(1-200 lots) where the valuer's certificate on the original has lapsed after 2 years.

If a plan is subject to lodgement of a Form 3, Form 26, or Forms BA12 or BA16, they will only be accepted if that form is signed prior to commencement day (1/5/2020). After that date, the new approved forms (Schedule of Unit Entitlements, WAPC "Endorsement Certificate" or the Building Act forms) will be required. All forms are to be lodged electronically through the Plan Portal.⁶

⁶Paragraph rewritten 06/07/2020

Where a Schedule of Unit Entitlements is required as part of the plan, Landgate will only accept an “interactive” PDF (i.e. file that has form fields and a digital signature). Landgate will accept a “scanned” signed copy of the Building Act forms and WAPC “Endorsement Certificate” lodged as a PDF file. These forms are to be lodged electronically via NLR-P or the ePlan Lodgement application on the MyLandgate Survey Channel.

The Scheme Developer (owner of the parcel) may apply to register the strata titles scheme at any time, but it can only be registered when the status of the plan is shown as In Order For Dealings.

3 Applying for Registration of the Strata Titles Scheme

Registration of the scheme will only be achieved when all Scheme Documents are registered simultaneously with the Application to register strata titles scheme. The Scheme Documents include the following:

Scheme Plan (lodged through the plan portal);
Scheme Notice (lodged with the Application to register strata titles scheme;
Schedule of Unit Entitlements (lodged with the plan);
Scheme By-laws (lodged with or at any time after the Application to register strata titles scheme). Scheme By-laws must be lodged at the same time as the Application, if indicated on the plan (see guide STR-07 for further details); and
Strata Lease (if a leasehold scheme, lodged with the Application to register strata titles scheme).

Note:

A certificate given by a licensed valuer for the purpose of the Schedule of Unit Entitlements is valid for a period of 2 years. If the licensed valuer's certificate (Schedule of Unit Entitlements) has lapsed a new certificate must be produced (additional fees apply).
From 1/5/2020, the Registrar of Titles is not to create or register certificates of title for lots on a survey-strata plan unless the plan has been endorsed by WAPC within 2 years of the application to register the strata titles scheme.⁷

⁷Note added 06/07/2020

Other accompanying documents may include:

Statement to Deal with Land – a statement of how each item registered or recorded for the scheme in the Register is to be dealt with.
Written consents - of all designated interest holders (to the subdivision and schedule of unit entitlements) (or consent endorsed on the Notice to designated interest holders)¹
Written consents - from designated interest holders and/or registered interest holders and caveators (for purposes other than to the subdivision and schedule of unit entitlements)¹, e.g. creation of s.136C TLA easement³
Disposition Statement – Conversion of tenancy in common to strata titles scheme lodged with the Application (see section 8 of this guide).

¹[Guide updated on 22/05/2020 to include 'written consents' sections in the above list]

³[Guide updated on 17/06/2020 to include "e.g. creation of s.136C TLA easement]

When preparing the application, the land description used should be that shown on the title for the original land parcel and the Scheme Developer (all the owners of the original land parcel, if more than one) must sign the application.

The existing duplicate certificate of title (if any) must be produced for updating and/or cancellation.

Concurrently with the registration of the freehold or leasehold scheme, separate titles are prepared for each lot on the scheme plan in the name of the applicant. No titles are created and registered for common property. Whilst traditionally duplicate titles may be issued for freehold schemes, this is not the case for leasehold schemes. In leasehold schemes the parent title will not be cancelled as it holds the reversionary interest in the land and no duplicate titles will be issued for the leasehold strata lots.

3.1 Scheme Plan

The Scheme Plan is lodged by the surveyor. See Strata Titles Policy & Procedure Guide STP-09.

3.2 Scheme Notice

The Scheme Notice is to be lodged as a document in the approved form and must specify:

the name of the scheme;
the address for service of the strata company;
whether or not the scheme is a leasehold scheme; and
if a leasehold scheme, the expiry day for the scheme.

The email address of the strata company is optional.

The Scheme Notice is registered with the Application to register the strata titles scheme and updated on the Scheme Plan. See Strata Titles Policy & Procedure Guide STP-08 for further information in relation to the plan.

The Scheme Notice can be amended to:

change the name of the scheme and/or the address for the service of the strata company (section 30 of the Strata Titles Act 1985 (STA)).
postpone the expiry day of the leasehold scheme (section 31 STA).

For more information on the amendment of the Scheme Notice see STR-06.

3.3 Schedule of Unit Entitlements

The Schedule of Unit Entitlements is lodged with the plan by the surveyor. See Strata Titles Policy & Procedure Guide STP-10.

3.4 Scheme By-laws

The Scheme By-laws – New Schemes must be lodged with the Application to register strata titles scheme if indicated on the plan. See guide STR-09 for further details on how to prepare Scheme By-laws. Registration fees apply.

See Strata Titles Policy & Procedure Guide STP-11 for further information in relation to the plan.

3.5 Strata Lease

The Strata Lease must be lodged with the Application to register the strata titles scheme if the scheme is leasehold. This document lists every leasehold lot in the leasehold scheme. The content of the strata lease is taken from Schedule 3 of the ST(G)R. Lodgement fees apply.

3.6 Consents to the subdivision and schedule of unit entitlements

All designated interest holders (see STR-01 for definition) must provide written consent to the subdivision and schedule of unit entitlements.

To obtain consents, Notice must be given to all designated interest holders. Once written consents have been obtained, they must be filed as evidence with the Application to register the strata titles scheme (or provide the consent that has been endorsed on the Notice to designated interest holders). The required consent is set out in section 34(b) of the STA.²

Note that this section is only concerned with consents to the subdivision and schedule of unit entitlements. There are other situations, such as creation of certain types of easements, that may also require written consent from designated interest holders or all registered interest holders and caveators. They are discussed in their respective guides.

The consents referred to here are a specific written consent. They are usually in the form of a letter from the interest holder to the Registrar of Titles. Production of the Duplicate Certificate of Title is not considered as being written consent.

²[Guide updated 05/05/2020 to include this paragraph]

4 Pre-existing Encumbrances

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 freehold or leasehold scheme can be completed. If the lease is to remain, then a letter from the lessee (or solicitor acting for the lessee) must be provided clearly acknowledging the lot(s) their lease will be brought forward onto the new 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:
- Easements over common property are brought forward on to the strata/survey-strata plan only.
- 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.
- 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 consistent with the restriction as to use of the part of the strata lot encumbered.
- Encroachment easements (if any) indicated on the plan must be lodged for registration before the application for registration of the strata plan (see Section 5 below).

Where applicable, the Application to register strata titles scheme should be supported by a Statement to Deal with Land filed as evidence. This statement informs the Registrar of Titles how they intend to deal with those Limitations, Interests, Encumbrances and Notifications currently registered or recorded on the affected land for the purpose of the dealing.

5 Easements in Respect of Encroachments (including Easements of Support)

Section 32(1)(j) of the STA and regulation 12 of the Strata Titles (General) Regulations 2019 (ST(G)R) provide 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 benefited land by that portion of roof, wall or foundation of the said building erected on the burdened land. This type of easement recognises the portion of the roof, wall or foundation belongs to the owner of the burdened land.

A simple model of such an easement is set out in Example 11. 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 lodged for registration before the Application to register strata titles scheme.

In the case of an easement for support from part of a wall or building on the burdened land, the easement document must be lodged with, but preceding the Application to register strata titles scheme.

6 Effect of Registration

When a strata titles scheme (freehold and leasehold scheme) 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 Transfer of Land Act 1893 (TLA).

For leasehold schemes, the parent title for the leasehold scheme does not cancel as it holds a reversionary interest in the land and the strata titles for the leasehold lots all expire on the same day.

Each lot in the strata titles scheme is burdened by and has the benefit of statutory easements of support, the provision of services, such as water and electricity, 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 those easements effective.

Under sections 61 to 66 of the STA, an owner or the strata company will have the right to enter onto another lot or common property to exercise the rights of a statutory easement.

A utility service easement will exist for each lot and the common property and will entitle the strata company and lot owners to install, remove, examine, maintain, repair, modify and replace utility conduits.

Common property (utility and sustainability infrastructure) easement:

Strata company will be able to enter into an infrastructure contract with a person who owns and operates utility infrastructure or sustainability infrastructure on common property.
Will entitle the person to install, remove, operate, examine, maintain, repair, modify, replace infrastructure.
The contract will be required to specify the common property affected by the easement (may involve a sketch compiled by a licensed surveyor similar to an exclusive use sketch).

This statutory easement applies to the infrastructure contract by ordinary resolution passed by the strata company.

Common property in the strata titles scheme is held by the owners of the lots as tenants in common, in shares proportional to the unit entitlements of their lots.

Upon registration of the plan, a strata company is established by the name of:

The Owners of [scheme name] [scheme type] [scheme number]

For example:

The Owners of Pretty Ponds Survey-Strata Plan 12345

The members of the strata company are the owners of the lots in the scheme for the time being.

In freehold schemes registered before 1/5/2020, the scheme name will be displayed on the front sheet of the plan.

In freehold/leasehold schemes lodged on or after 1/5/2020, the scheme name will also be displayed on the Scheme Notice.

The strata 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 owners of lots to deal with others by use of a common name.

7 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 for the subdivision plan unless exempt. (See section 15 of the STA and regulation 19 of the ST(G)R).

In the case of a survey-strata plan, an application should be made to the WAPC for subdivision approval under section 17 of the STA. The WAPC will refer this application to the local government and any relevant public authorities and government departments before granting approval.

In each case, subdivisional approval may be subject to conditions.

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 STA and regulations and lodge it with Landgate.

An Application to register strata titles scheme is required to register the strata titles scheme and to create the titles for the lots in that scheme. This can be lodged at any time but will only be registered when the status of the plan is In Order For Dealings. The scheme developer (all the owners of the land the subject of the scheme plan) must sign the application.

A Disposition Statement – Conversion of tenancy in common to strata titles scheme may be lodged simultaneously with the application (see section 8 below). Separate registration fees apply.

8 Disposition Statements for Tenancies in Common

[Note: This section does not cover Disposition Statements for the purpose of Type 4 subdivisions – see STR-06 Amendment of Strata Titles Scheme or Disposition Statements for the purpose of Mergers of Land or Conversions to a Survey-Strata Scheme - see STR-03 Single Tier Merger and Conversion Options]

The STA makes provision for a Disposition Statement – Conversion of tenancy in common to strata titles scheme to be lodged with an application to register a strata titles scheme. Regulation 167 of the ST(G)R 2019 sets out a simplified procedure for the conversion of tenancies in common.

Registration fees are required for lodging a disposition statement and it must be stamped at the RevenueWA (Stamp Duties Division).

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.

The Disposition Statement must be registered by the scheme developer (all the owners of the land the subject of the scheme plan) and all interest holders and caveators whose interest is being brought forward onto the various strata/survey-strata lots and common property.

If the Disposition Statement is not signed by a registered interest holder or caveator, then written consent from the registered interest holders and caveators will be required. Consents must clearly describe the nature of the consent, as set out in the Disposition Statement being:-

“The persons having registered interests in the Land (registered interest holders) and caveators in respect of the Land agree that:

the lots and common property in the scheme plan for the freehold/leasehold scheme are to be disposed of and vested in the manner in Table A and Table B of the Disposition Statement;
if the scheme is a leasehold scheme,
- the Owners are always the lessor of the strata lease for each lot in the scheme plan in the same proportions as they held the Land as tenants in common immediately before the disposition; and
- the person in whom a lot in the scheme plan is to vest is the lessee of the strata lease attached to the lot;

registered interests and caveats over the Land or any part are to be disposed of in the manner set out in Table A and Table B of the Disposition Statement.”⁴

⁴[Guide updated on 17/06/2020 to expand on the requirements of the interest holders and caveators consents]

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.

9 Also see

STR-03 Single Tier Merger and Conversion Options

Version 6 – 11/06/2020

Disclaimer of liability

1 General

Recent amendments to the STA affected single tier strata scheme merger and conversion options in the following ways:

Relocation of the provisions in Part II Division 2A and Part III Division 3 to Schedule 2A of the STA, except Part II Division 2A subdivision 3.
Matters in Part 2B and 2C of the Strata Titles General Regulations 1996 (STGR 1996) being contained in Schedule 1 of the Strata Titles (General) Regulations 2019 (ST(G)R).
Forms prescribed in STGR 1996 being approved forms for the purposes of the STA.
In ST(G)R clause 6G a merger sketch plan is now to accompany the Merger of Resolution of Buildings (see section 2 of this guide).

The STA continues to make 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 this guide.

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 Schedule 1, clause 3 ST(G)R) is above or below another lot.
As long as the scheme is registered before 1 January 1998, they can be used at any time.
Each of the Options can only be used once (i.e. 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).

The Options are brought into effect by the lodgement of the appropriate Notice of Resolution and any accompanying documents at Landgate. The approved forms are available from Landgate’s corporate website.

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 (SAT) for an order that the resolution has been passed. A copy of any relevant order made under section 200 of the STA certified by the SAT as being a true copy (if applicable) must be presented with the Notice of Resolution in this case.

Registration fees are payable on taking advantage of any of the Options. Where a Disposition Statement is to be lodged with the Registrar of Titles, it must always be submitted first to the RevenueWA for assessment for duties tax regardless of whether or not 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. However, production fees will apply.

Under each of the Options, the lot numbers and the plan numbers will not change, and no new lots may be created.

Any reference to registered proprietor or proprietor means an owner of a lot in the scheme as defined by the amended STA.

1.1 Former Automatic Merger of Buildings that are Common Property

Previously, under the former section 21M of the STA, the buildings (common property) shown on the strata plan automatically converted to individual ownership (i.e. become included into each respective lot) for single tier strata schemes with 2 to 5 lots 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.

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 the boundaries of lots are fixed by section 3AB and amended the plan accordingly.

If no objection was lodged and an automatic merger of a building had taken place, it was possible, in exceptional circumstances, to have the buildings revert to common property by an order of the SAT (see former s.103P of the STA).

This automatic merger is no longer available.

2 Merger by Resolution of Buildings that are Common Property

This paragraph needs to be read in conjunction with section 1 of this guide.

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 owners 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 SAT for an order that the resolution has been passed.

A Notice of Resolution of Merger (in this paragraph referred to as the Notice of Resolution) lodged in the approved form must indicate that it is a “Merger of buildings” and must be signed by either:

two members of the council of the strata company using the common seal; or
two persons on behalf of the strata company without the common seal (authorised under section 118 STA); or
all of the registered proprietors in a 2 to 5 lot single tier strata scheme (except a strata scheme the plan for which provides that clause 3AB does not apply to the scheme).

The Notice of Resolution must be lodged at Landgate so that the change is properly recorded on the strata plan. Lodgement fees apply.

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.

2.1 Documents to be Lodged with the Notice of Resolution

The Notice of Resolution cannot be lodged within 60 days of the passing of the resolution and is to be supported by the following documents:

A sketch plan showing in the approved form how the strata plan is to be amended (see Schedule 1 clause 6 ST(G)R).

3 Merger by Resolution of Land that is Common Property¹

¹[Guide updated on 27/05/2020 to correct order of content from section 3 onwards]

This paragraph needs to be read in conjunction with what is contained in section 1 of this guide.

3.1 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 owners of lots in the scheme individual ownership of all of the buildings and land that they occupy and to update the buildings shown on the strata plan.

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, at the time that the resolution was passed there must have been:

a building licence under s.37 4 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 owners of 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 Schedule 2A clause 21W 'Creation of easements for parking etc' of the STA (see below under the sub-heading Easements Created under clause 21W).

A Notice of Resolution of Merger of Land (in this paragraph referred to as the Notice of Resolution) in the approved form must indicate that it is a "Merger of land " and be signed by either:

two members of the council of the strata company using the common seal; or
two persons on behalf of the strata company without the common seal (authorised under section 118 STA); or
all of the owners in a 2 to 5 lot single tier strata scheme (except a strata scheme the plan for which indicates that Schedule 2A clause 3AB does not apply to the scheme) .

3.2 Documents to be Lodged with the Notice of Resolution

The Notice of Resolution cannot be lodged within 60 days of the passing of the resolution and is to be supported by the following documents:

A sketch plan showing in the approved form how the strata plan is to be amended (see the STA at Schedule 2A clause 21T 'Documents to accompany notice' and Schedule 1 clause 7 ST (G)R).
A new Schedule of Unit Entitlements (1-22 lots) or Schedule of Unit Entitlements(1-100 lots) or Schedule of Unit Entitlements(1-200 lots) or Schedule of Unit Entitlements (1-300 lots) or Schedule of Unit Entitlements (1-400 lots) if any change in unit entitlement has occurred.
Consent Statement- Registered Interest Holders and Caveators - 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 (other than the owners) in respect of that lot must be obtained and attached to this form.
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).

3.3 Disposition Statement

ST(G)R at Schedule 1 clause 9 ‘Merger by resolution of land that is common property — disposition statement’ makes provision for a Disposition Statement to be lodged 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.

A Disposition Statement must be lodged simultaneously with the Notice of Resolution and must always be submitted to the RevenueWA for assessment for duties tax prior to lodgement with the Registrar of Titles, regardless of whether or not the Consideration panel in the Disposition Statement shows that one or more owners of lots have paid money or given other consideration to acquire ownership of more of the common property than they previously occupied. Registration fees apply.

A Disposition Statement on Merger of Land or Conversion to a Survey-Strata Scheme lodged in the approved form must be signed by:

two members of the council using the common seal; or
two persons on behalf of the strata company without the common seal (authorised under section 118 STA); and
by all of the owners of the lots in the scheme; and
by every person (other than the owner) 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. If the consent is not endorsed on the form, then written consents must be attached to the Consent Statement - Registered Interest Holders and Caveators (which can be the same consent statement filed in the Notice of Resolution) and must clearly describe the nature of the consent (see the reasons listed on the consent statement for wording that may be used).⁵

⁵[Guide updated on 17/07/2020 to expand information in final dot point above}

Note: The Disposition Statement may not effect:

a change of the owner of a lot on the strata plan, from the owner 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 owner) 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.

3.4 Easements Created under Schedule 2A Clause 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 section 33 of the STA with the modification that the easement will take effect on the registration of the Notice of Resolution.

A Consent Statement - Registered Interest Holders and Caveators ⁶^*is required together with the written consent of any owner of a lot affected by the easement.

⁶[Guide updated to amend Consent statement from Designated to Registered Interest Holders]

Section 33(6) of the STA applies to the discharge of these easements by registration of an amendment of the scheme plan to give effect to the discharge of an easement.

Note: For more information on the creation, discharge or variation of these easements see EAS-01 Easements.

3.5 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 registered exclusive use by-law, that exclusive use ceases to have effect;
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 owners of the lots to be held by them as tenants in common in shares proportional to the unit entitlements of their respective lots, and that owner’s share in the common property is subject to any encumbrance registered or caveat lodged in respect of the owner’s lot.

4 Merger by Resolution of Common Property including both Buildings and Land

This paragraph needs to be read in conjunction with what is contained in section 1 of this guide.

A strata company of a single tier strata scheme (except a strata scheme where the plan indicates Schedule 2A clause 3AB does not apply) may by resolution without dissent (or unanimous resolution in a two-lot scheme) agree to a merger of common property that includes both buildings and land.

A Notice of Resolution of Merger (in this paragraph referred to as the Notice of Resolution) in the approved form must indicate that it is a “Merger of buildings and land” and be signed by either:

two members of the council of the strata company using the common seal; or
two persons on behalf of the strata company without the common seal (authorised under section 118 STA); or
all of the registered proprietors in a 2 to 5 lot scheme (except a strata scheme where the plan indicates that Schedule 2A clause 3AB does not apply).

4.1 Documents to be lodged with the Notice of Resolution

The requirements for registration of the Notice of Resolution are exactly the same as the requirements for a Merger by Resolution of Land that is Common Property (see section 3 of this guide).

5 Conversion of Strata Schemes to Survey-Strata Schemes

This paragraph needs to be read in conjunction with what is contained in sections 1 of this guide.

5.1 General Information

A strata company of a single tier strata scheme may by unanimous resolution resolve that the strata scheme is to be converted to a survey-strata scheme.

Note: It is not possible to increase the number of lots in the conversion to survey-strata scheme, nor change the tenure from freehold to leasehold.

The resolution is to specify:

any easement that is to be created in the terms of s.33 of the STA as amended; 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) lodged in the approved form must be signed by:

two members of the council of the strata company using the common seal; or
two persons on behalf of the strata company without the common seal (authorised under section 118 STA); or
all of the registered proprietors in a 2 to 5 lot scheme.

5.2 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 and electronically lodged by a licensed surveyor.
If any change in unit entitlement has occurred, a new Schedule of Unit Entitlements (1-22 lots) or Schedule of Unit Entitlements(1-100 lots) or Schedule of Unit Entitlements(1-200 lots) or Schedule of Unit Entitlements (1-300 lots) or Schedule of Unit Entitlements (1-400 lots).
Consent Statement - Registered Interest Holders and Caveators - The written consent to the proposed schedule of unit entitlements must be obtained from every person (other than an owner) 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. Production fees will apply.
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).

5.3 Disposition Statement

In the STA as amended, Schedule 2A Clause 31H 'Transfers etc to give effect to resolution' at subitem (2) makes provision for a Disposition Statement to be lodged 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.

A Disposition Statement must be lodged simultaneously with the Notice of Resolution and must always be submitted to the RevenueWA for assessment for duties tax prior to lodgement with the Registrar of Titles, regardless of whether or not 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 owned or occupied. Registration fees apply.

A Disposition Statement on Merger of Land or Conversion to a Survey-Strata Scheme in the approved form must be:

signed by two members of the council using the common seal; or
signed by two persons on behalf of the strata company without the common seal (authorised under section 118 STA); and
signed by all of the owners of the lots in the scheme; and
signed by every person (other than an owner of a lot) who has a registered interest in or is a caveator in respect of any lot in the scheme. If a registered interest holder or caveator does not sign the form, then written consents must be attached to the Consent Statement - Registered Interest Holders and Caveators (which can be the same consent statement filed in the Notice of Resolution) and must clearly describe the nature of the consent (see the reasons listed on the consent statement for wording that may be used).⁵

⁵[Guide updated on 17/07/2020 to expand information in final dot point above}

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 owner) 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 in respect of a lot or the common property; or
a change in the proprietor of an interest in a caveat lodged in respect of a lot.

In these circumstances appropriate documents must be lodged.

5.4 Easements Created under Section 33 of the STA

The survey-strata plan referred to above may provide for easements to be created under section 33.

The ST(G)R sets out rights and liabilities under short form easements at the following regulation numbers:

31. Vehicle access easement
32. Light and air easement
33. Party wall easement
34. Intrusion easement
35. Pedestrian access easement
36. Easement in gross
37. Easement for utility services

These will take effect on the registration of the Notice of Resolution.

The written consent of all registered interest holders and caveators is required for the creation of any short form easement. Written consents must be attached to the Consent Statement - Registered Interest Holders and Caveators which is lodged with the Notice of Resolution.⁷

⁷[Guide updated to reword paragraph 17/06/2020)

Section 33(6) of the STA as amended, sets out that a short form easement or restrictive covenant is discharged by registering an amendment of the scheme plan to this effect, or by the termination of the strata titles scheme.

Note: For more information on the creation, discharge or variation of these easements see EAS-01 Easements.

5.5 Effect of Registration on 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 exclusive use by-law, that exclusive use ceases to have effect;
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 owners of the lots to be held by them as tenants in common in shares proportional to the unit entitlement of their respective lots, and that owner’s share in the common property is subject to any encumbrance registered or caveat lodged against the owner's 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.

6 Also see

STR-04 Amendment of Strata Titles Scheme - Effecting Subdivision

Version 7 – 06/07/2020

Disclaimer of liability

1 General

The Strata Titles Act 1985 (Act) distinguishes between scheme plan amendments that effect a subdivision, which require approval of the Western Australian Planning Commission (WAPC) in most cases and other scheme plan amendments (for example, the inclusion of temporary common property).

This guide deals with amendments of the scheme plan that effect a subdivision. Another guide (STR-06) deals with other amendments. The amended Act provides for 4 types of amendment that effect a subdivision. This guide looks at the requirements for each type.

Common to each type of amendment of scheme plan effecting a subdivision is a requirement to give notice to owners and/or designated interest holders of the proposed amendment and associated schedule of unit entitlements in an approved form. This approved form is the Notice to Lot Owners and others for scheme plan amendment.

This guide refers to written consent from lot owners affected by the amendment. Section 3(7) of the Act provides that an amendment affects a lot to the extent that it involves an amendment of the scheme plan that modifies the definition of boundaries of the lot or creates or discharges an easement or restrictive covenant that benefits or burdens the lot. An amendment also affects a lot to the extent that it involves an amendment of the schedule of unit entitlements for the scheme that modifies the unit entitlement of the lot.

For subdivision types 2, 3 and 4, the Application for Registration of an Amendment of a Scheme Plan effecting Subdivision must be supported by a Consent Statement – Designated Interest Holders. The importance of this Consent Statement is to confirm that the Notice has been given, to record the types of consents obtained and to provide a record of those consents.¹

¹(updated to add paragraph 17/06/2020)

2 Type 1(a) Subdivision - By Purchase of Adjoining Freehold Land

The area of common property can be increased by the purchase of adjoining land by the Strata Company. This subdivision requires lodgement of a plan of amendment.

(See guide ROA-03 Roads and their Closure if this requires closure of a private road beforehand.)

2.1 Freehold Schemes

To effect this type of subdivision, a transfer must be lodged with the strata company as transferee. Land purchased by the strata company to increase the area of the common property must be free of designated interests [see definition - STR-01], and be added by subdivision to the original parcel. The transfer must have filed with it at the time of registration:

the duplicate certificate of title (if any) for the land being transferred; and
any documents required to remove designated interests from the land.

An Application for Registration of an Amendment of a Scheme Plan effecting Subdivision must be made by the strata company lodged with the above-mentioned transfer and enclose the following:

Certificate of Strata Company – Effecting subdivision; and
Statement to Deal with Land – a statement of how each item registered or recorded for the scheme in the Register is to be dealt with – in this case, in relation to the land being transferred, if applicable;
Written consents of lot owners affected by the amendment (or consents affixed to the Notice to Lot Owners and others for scheme plan amendments).

If only part of the adjoining land is being transferred to the strata company and a balance remains, the owner of the balance land should make an Application for new titles (subject to survey) in respect of the balance land. Where the transfer comprises the whole of the adjoining land, no Application for titles (subject to survey) is necessary by either party.

2.2 Leasehold Schemes

To effect this type of subdivision, a transfer must be lodged. In leasehold schemes, the land must be transferred to the owner of the leasehold scheme and be added by subdivision to the original parcel, before the leasehold scheme can be amended to include the additional land as common property.

The land being transferred must be free of designated interests [see definition - STR-01]. The transfer must have filed with it at the time of registration:

the duplicate certificate of title (if any) for the land being transferred; and
any documents required to remove designated interests from the land.

An Application for new titles (subject to survey) must be made by the owner of the leasehold scheme and, if there is any balance land, the owner of the balance land (i.e. the Transferor) and be lodged with the above-mentioned transfer. As a result, a new title(s) for the reversionary interest will be created and/or for the balance land (if any).

An Application for Registration of an Amendment of a Scheme Plan effecting Subdivision must be made by the strata company and enclose the following:

Certificate of Strata Company – Effecting subdivision;-
Statement to Deal with Land – a statement of how each item registered or recorded for the scheme in the Register is to be dealt with – in this case, in relation to the land being transferred, if applicable; and
Consent of the Owner of a Leasehold Scheme;
Written consents from lot owners affected by the amendment (or consents affixed to the Notice to Lot Owners and others for scheme plan amendments).

3 Type 1(a) Subdivision - By Amalgamation of Adjoining Crown Land under Section 87 of the LAA

The area of common property can be increased by inclusion of a closed public road or other unallocated crown land under s.87 of the Land Administration Act 1997 (LAA). This subdivision requires lodgement of an amendment of scheme plan to show the included closed public road or unallocated crown land as common property. See guide “ROA-03 Roads and their Closure” on the closure process prior to this subdivision. The land being included must be free of designated interests.

3.1 Freehold & Leasehold Schemes

A General Application made by either the strata company (if there is no balance land) or the State of WA/local government (if there is balance land) must be lodged and enclose the following:

Section 87-Conveyance and Amalgamation (Ministerial) Order under the LAA (prepared by the Department of Planning, Lands & Heritage (DPLH)).

An Application for Registration of an Amendment of a Scheme Plan effecting Subdivision must be made by the strata company, lodged with the above-mentioned application and enclose the following:

Certificate of Strata Company – Effecting subdivision;
Statement to Deal with Land, if required – a statement of how each item registered or recorded for the scheme in the Register is to be dealt with – in this case, in relation to the land being included in the common property, if applicable; and
Consent of the Owner of a Leasehold Scheme, if a leasehold scheme;
Written consents from lot owners affected by the amendment (or consents affixed to the Notice to Lot Owners and others for scheme plan amendments).

4 Type 1(b) - By Conversion of a Strata/Survey-Strata Lot

The area of common property can be increased by conversion of one or more strata/survey-strata lots by a transfer to the strata company. This subdivision requires lodgement of a scheme plan of amendment.

To effect this type of subdivision, a transfer must be lodged. Any lot(s) being converted to common property must be transferred free of designated interests [see definition - STR-01]. Upon the registration of the Transfer, the share of an owner of a lot in the common property (as increased by the Transfer) is deemed to be subject to any pre-existing encumbrances registered or caveats lodged against their lot.

The transfer must have filed with it at the time of registration:

the duplicate certificate of title (if any) for the strata/survey-strata lot; and
any documents required to remove designated interests from the land.

An Application for Registration of an Amendment of a Scheme Plan effecting Subdivision must be made by the strata company² lodged with the above-mentioned transfer and enclose the following:

Certificate of Strata Company – Effecting subdivision;
Statement to Deal with Land – a statement of how each item registered or recorded for the scheme in the Register is to be dealt with – in this case, in relation to the land being transferred, if applicable; and
Consent of the Owner of a Leasehold Scheme, if a leasehold scheme;
Written consents from lot owners affected by the amendment (or consents affixed to the Notice to Lot Owners and others for scheme plan amendments).

²(updated to amend "owner of lot(s)" to "strata company" 17/06/2020)

Note that staged subdivision by-laws registered on or after 1 May 2020 may include a Type 1(b) subdivision. If the amendment of scheme plan sufficiently complies with the staged subdivision by-laws, the above-mentioned consents will not be required. See further at items 7.2 and 7.3.

5 Type 2 Subdivision - Disposal of Common Property

5.1 Freehold Schemes

The proprietors of a strata/survey-strata plan may sell part of the common property. The portion to be sold must be the whole or part of the land comprised in a Deposited Plan approved by WAPC.

To effect this type of subdivision, a transfer must be lodged. As an example of how to prepare the transfer, the land description and transferor panel would contain the following information:

Land: [insert scheme parent land description] and being all that part of the common property in [insert scheme number] as is comprised in [insert new Lot number and Deposited Plan number]

For example:

Lot 1 on Deposited Plan 12345 and being all that part of the common property in Strata Scheme 6000 as is comprised in Lot 2 on Deposited Plan 67890

Transferor: The Owners of [the name of the scheme] [Strata/Survey-Strata Scheme] [scheme number] of [address].

An Application for Registration of an Amendment of a Scheme Plan effecting Subdivision must be made by the strata company lodged with the above-mentioned transfer and enclose the following:

Certificate of Strata Company – Effecting subdivision;
Statement to Deal with Land – a statement of how each item registered or recorded for the scheme in the Register is to be dealt with – in this case, in relation to the land being transferred, if applicable; and
Consent Statement - Designated Interest Holders (for amendment of scheme plan and schedule of unit entitlements³) attaching consents if provided by designated interest holders [see definition - STR-01].

³Updated 06/07/2020 to include "(for amendment of scheme plan and schedule of unit entitlements³)"

An Application for new titles (subject to survey) is made by the transferee of the land. The Application must be accompanied by:

the duplicate certificate of title (if any) for any contiguous land owned by the applicant.

Common property may also be transferred to the owner of a lot in the strata/survey-strata scheme as part of a Type 4 Subdivision (re-subdivision) - see further in this guide.

5.2 Leasehold Schemes

To effect disposal of the common property in a leasehold scheme, the strata leasehold estate in common property must first be surrendered back to the owner of the leasehold scheme by lodgement of a Surrender document using a B2 Blank Instrument form and a new Deposited plan approved (STP-09).

The form should contain:

The name and address (for service of notices) of the strata company;
The description of the land affected:
- e.g. that part of the common property as is now comprised in Lot # on Deposited Plan # (the new lot being created in the new deposited plan);
The nature of the surrender:
- e.g. common property that is part of the leasehold scheme;
The extent of the surrender:
- e.g. whole or partial; and
The formal words of surrender.

An Application for Registration of an Amendment of a Scheme Plan effecting Subdivision must be made by the strata company lodged with the above-mentioned Surrender and enclose the following:

Certificate of Strata Company – Effecting subdivision;
Statement to Deal with Land – a statement of how each item registered or recorded for the scheme in the Register is to be dealt with – in this case, in relation to the land being transferred, if applicable;
Consent of the Owner of a Leasehold Scheme;
Consent Statement - Designated Interest Holders (for amendment of scheme plan and schedule of unit entitlements³) attaching consents if provided by designated interest holders [see definition in STR-01].

³Updated 06/07/2020 to include "(for amendment of scheme plan and schedule of unit entitlements³)"

An Application for new titles (subject to survey) must be made by the owner of the leasehold scheme for the lots on the new Deposited Plan. As a result, a new title(s) for the balance of that land and reversionary interest will be created. The Application must be accompanied by:

the duplicate certificate of title (if any) for the reversionary interest land.

Common property may also be transferred to the owner of a lot in the strata/survey-strata scheme as part of a Type 4 Subdivision (re-subdivision) - see further in this guide.

6 Type 3 Subdivision - Consolidation of Two or More Strata/Survey-Strata Lots

The consolidation of strata/survey-strata lots (not being all the lots) is permitted by section 11 of the Act. This subdivision requires lodgement of an amendment of scheme plan. The lots the subject of the consolidation must be in the same ownership and tenancy (including shareholding). Common property cannot be incorporated into a consolidation of two or more strata/survey-strata lots.

An Application for Registration of an Amendment of a Scheme Plan effecting Subdivision made by the owner of the lots, must be lodged and enclose the following:

Statement to Deal with Land – a statement of how each item registered or recorded for the scheme in the Register is to be dealt with – in this case, in relation to the lots being consolidated;
- 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 a 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. 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;
Consent of the Owner of a Leasehold Scheme, if a leasehold scheme;
the relevant duplicate certificates of title (if any); and
Consent Statement - Designated Interest Holders "(for amendment of scheme plan and schedule of unit entitlements³)"
attaching consents if provided by designated interest holders [see definition - STR-01].
Written consents from affected lot owner who is not an applicant and holder of reversionary interest in an affected lot (or consents affixed to the Notice of Lot Owners and others for amendment of scheme plan).

³Updated 06/07/2020 to include "(for amendment of scheme plan and schedule of unit entitlements³)"

Note that staged subdivision by-laws registered on or after 1 May 2020 may include a Type 3 subdivision. If the amendment of scheme plan sufficiently complies with the staged subdivision by-laws, the above-mentioned consents will not be required. See further at items 7.2 and 7.3.

7 Type 4 Subdivision - Re-Subdivision

Strata/survey-strata lots and common property or a combination of both, may by a unanimous resolution of the strata company be re-subdivided by lodging an amendment of scheme plan and any associated schedule of unit entitlements.

The plan sheets containing the amendments and the appropriate consents should be lodged by the licensed 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 of the same tenure type (i.e. freehold or leasehold).

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. However, if a disposition statement is lodged, the transfers required to give effect to the Type 4 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 a Type 4 subdivision, any encumbrances and caveats affecting the lot will, automatically by operation of law, be adjusted to the new dimensions of the lot.

Depending on whether the amendment of scheme plan complies with registered staged subdivision by-laws, will depend on what documents and associated evidence is required for registration.

An Application for Registration of an Amendment of a Scheme Plan effecting Subdivision has a number of questions concerning staged subdivision by-laws and whether the amendment of scheme plan lodged for registration complies with the staged subdivision by-laws.

7.1 Registration - scheme has no staged subdivision by-laws

An Application for Registration of an Amendment of a Scheme Plan effecting Subdivision made by the strata company, must be lodged and enclose the following:

Certificate of Strata Company – Effecting subdivision;
Statement to Deal with Land – a statement of how each item registered or recorded for the scheme in the Register is to be dealt with – in this case, in relation to the land being re-subdivided, if applicable;
Transfers or Disposition Statement – Amendment of strata titles scheme to give effect to Type 4 Subdivision, if required;
Consent of the Owner of a Leasehold Scheme, if a leasehold scheme
The duplicate certificates of title (if any) for the land affected by the re-subdivision must be produced; and
Consent Statement - Designated Interest Holders(for amendment of scheme plan and schedule of unit entitlements³)" attaching consents provided by designated interest holders [see definition - STR-01].

³Updated 06/07/2020 to include "(for amendment of scheme plan and schedule of unit entitlements³)"

7.2 Registration - scheme does not comply with staged subdivision by-laws

If the strata/survey-strata scheme is being developed in stages in accordance with registered stage subdivision by-laws and the amendment of scheme plan for a Type 4 subdivision does not sufficiently comply with what is disclosed in a Scheme By-law document (a staged subdivision by-law) or a previously registered Management Statement.

All the documents listed in item 7.1 above are required, except the Consent Statement. In addition:

For staged subdivision by-laws registered before 01/05/2020 (i.e. Management Statement):
- Written consent by registered interest holders and caveators;
- Written consent by an owner of any lot proposed to be affected by the re-subdivision (or consents affixed to the Notice to Lot Owners and others for scheme plan amendments).
For staged subdivision by-laws registered on or after 01/05/2020:
- Consent Statement - Designated Interest Holders "(for amendment of scheme plan and schedule of unit entitlements³)"
- including written consents if provided [see definition - STR-01].
- Written consent by an owner of any lot proposed to be affected by the re-subdivision (or consents affixed to the Notice to Lot Owners and others for scheme plan amendments).

³Updated 06/7/2020 to include "(for amendment of scheme plan and schedule of unit entitlements³)"

7.3 Registration - amendment of scheme plan sufficiently complies with staged subdivision by-laws

For staged subdivision by-laws registered before 1/5/2020, the surveyor’s certificate on the amendment of scheme plan will include a determination by the surveyor on whether the scheme plan amendment complies with regulation 36 of the Strata Titles General Regulations 1996 – see STP-09;
For staged subdivision by-laws registered on or after 1/5/2020:
- The surveyor will certify on the amendment of scheme plan whether the plan is or is not a significant variation to the staged subdivision by-laws. Significant variation has the meaning in regulation 49 of the Strata Titles (General) Regulations 2019 (ST(G)R);
- The licensed valuer will certify whether the new schedule of unit entitlements is or is not a significant variation to the staged subdivision by-laws.

If the above has been satisfied, an Application for Registration of an Amendment of a Scheme Plan effecting Subdivision made by the strata company, must be lodged and enclose the following:

Certificate of Strata Company – Effecting subdivision (if applicable);
Statement to Deal with Land – a statement of how each item registered or recorded for the scheme in the Register is to be dealt with – in this case, in relation to the land being re-subdivided, if applicable;
Transfers or Disposition Statement – Amendment of strata titles scheme to give effect to Type 4 Subdivision, if required; and
The duplicate certificates of title (if any) for the land affected by the re-subdivision must be produced.

7.4 Disposition Statements for Type 4 Subdivisions

Section 56 of the Act makes provision for lodgement of a disposition statement in connection with an application to register a strata titles scheme or amendment of strata titles scheme. A Disposition Statement – Amendment of strata titles scheme to give effect to Type 4 Subdivision may be used with an application to register an amendment of scheme plan that effects a Type 4 Subdivision.

7.4.1 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.

The disposition statement must be lodged simultaneously with the Application for Registration of an Amendment of a Scheme Plan effecting Subdivision and attracts a lodgement fee.

Regulation 168 of the ST(G)R sets out the requirements for a Type 4 subdivision through the use of a disposition statement.

A disposition statement must meet all the below requirements:

Be in the approved form,
Signed by the strata company and the owners of the lots which are directly affected by the Type 4 subdivision.
Signed by the registered interest holders and caveators of the lots which are directly affected by the Type 4 subdivision.
Be duty endorsed.

If not signed by all registered interest holders and caveators of lots or the owners of the affected lots, the written consent from the registered interest holders and caveators and owners of affected lots will be required. Consents must clearly describe the nature of the consent, for example:⁴

“Type 4 subdivision of Lot 10 on Strata Plan 12345 to include common property as depicted on scheme plan of amendment signed by surveyor on 1/5/2020, together with new Schedule of Unit Entitlements."

⁴ Updated to include "owners of affected lots" 06/07/2020

7.4.2 The disposition statement cannot be used to:

partition ownership of the lots created on the Type 4 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 (e.g. 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 (e.g. mortgage, lease or easement) or the proprietor the subject of a caveat (including the strata company).

In these circumstances appropriate documents must be lodged.

8 Also see

STR-01 Freehold and Leasehold Schemes

STR-05 Amendment of Strata Titles Scheme - Not effecting Subdivision

Version 3 – 15/06/2020

Disclaimer of liability

1 General

A registered strata titles scheme may be modified, where an amendment of scheme plan to effect a subdivision is not required, by the lodgement of any of the applications referred to in this guide. Any amendment that requires lodgement of an amendment of scheme plan that effects a subdivision is dealt with in a separate guide STR-04 Amendment of Strata Titles Scheme – Effecting Subdivision.

These applications are recorded by endorsing a memorandum of the nature of the application on the Record of Strata Titles Scheme in the scheme plan. The scheme plan shows the current state of the Register in relation to the plan and also the history of activities concerning the strata titles scheme¹ from its original registration.

¹(updated to amend "on the plan" to "concerning the strata titles scheme)

2 Amendment of Scheme Notice - Change of Name

A strata company may, by special resolution 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 by the Registrar of Titles.

To change the scheme name, the strata company (in its old name) lodges an Amendment of Scheme Notice with the Registrar of Titles accompanied by a:

Certificate of Strata Company - Change of name and/or address. (This Certificate can also be used to amend the address for service of the strata company.)

The duplicate certificates of title (if any) for the lots are not required to be lodged with the application.

If the common seal is used on a certificate of this kind, it should show the old name of the strata company.

The new name of the strata titles scheme does not come into effect until after registration of the Amendment of Scheme Notice.

Whilst the Amendment of Scheme Notice will depict the new name of the scheme, its registration is endorsed on the Record of Strata Titles Scheme in the scheme plan by the Registrar of Titles.

3 Amendment of Scheme Notice - Change of Address for Service of the Strata Company

For schemes registered on or after 1 May 2020, the address for service of notices is shown on the Scheme Notice (which will be endorsed on the Record of Strata Titles Scheme in the scheme plan).

For strata plans registered prior to 14 April 1996, the address for service of notices to the strata company is shown on the location plan, subject to any change being recorded on the Record of Strata Titles Scheme.

For strata/survey-strata plans registered after 14 April 1996 to 30 April 2020, the address for service of notices to the strata company is the address of the parcel that is shown on the location plan, subject to any change being recorded on the Record of Strata Titles Scheme.

To change the strata company's address for service, the strata company lodges an Amendment of Scheme Notice with the Registrar of Titles accompanied by a:

Certificate of Strata Company - Change of name and/or address. (This Certificate can also be used to amend the name of the scheme.)

The duplicate certificates of title (if any) for the lots are not required to be lodged with the application.

Whilst the Amendment of Scheme Notice will depict the new address for service of notices to the strata company, its registration is endorsed on the Record of Strata Titles Scheme in the scheme plan.

4 Amendment of Scheme Notice - Postpone Expiry Day of Leasehold Scheme

If the leasehold scheme has registered leasehold by-laws that provide for postponement of the expiry day for the leasehold scheme, the expiry day may only be postponed to the expiry day in those by-laws if the Registrar of Titles registers the postponement. The strata company lodges an Amendment of Scheme Notice accompanied by:

Certificate of Strata Company - Leasehold Expiry Postponement – following passing a resolution of the strata company under section 41 of the Act

The effect of registration of this amendment is to postpone the expiry day of the leasehold scheme to the scheme expiry day specified in the Amendment of Scheme Notice and to amend all titles to reflect this change.

5 Amendment of Schedule of Unit Entitlements (section 38 of the Act)

The schedule of unit entitlements for a strata titles scheme allocates a whole number (unit entitlement) to each lot in the scheme and states the number that is the sum of the unit entitlements of all lots in the scheme:

for a strata plan, the unit entitlement of a lot in proportion to the sum of unit entitlements is calculated on the capital value of each lot in proportion of the total capital value of all the lots.
for a survey-strata plan, the unit entitlement of a lot in proportion to the sum of unit entitlements is calculated on the site value of each 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.

On first allocation of unit entitlements, the licensed valuer must certify that the proportion that the unit entitlement of a lot bears to the sum of the unit entitlements of the lots is not greater than 5% more or 5% less than the proportion that the value of the lot bears to the sum of the values of all the lots. Where the value of a lot in proportion to the sum of the value of all lots exceeds the margin, the strata company can apply to rectify the matter by registering a new schedule of unit entitlements, if it has passed a resolution without dissent (or a unanimous resolution in the case of a two-lot scheme) to this effect.

After giving Notice in the approved form (Notice to Designated Interest Holders for amendment of schedule of unit entitlements²) and obtaining the necessary consents, the strata company lodges a General Application with the Registrar of Titles accompanied by all of the following:

A Certificate of the Strata Company – Schedule of unit entitlements or leases or easements or restrictive covenants;
Consent Statement - Designated Interest Holders for the amendment of Schedule of Unit Entitlements if authorised by resolution without dissent of the strata company²) attaching the written consents of the holder of any designated interest over the whole or a part of the scheme land if provided and any Order of the State Administrative Tribunal that a designated interest holder's objection to the amendment be disregarded [see definition – STR-01].
A Schedule of Unit Entitlements (1-22 lots) or Schedule of Unit Entitlements(1-100 lots) or Schedule of Unit Entitlements(1-200 lots) from a licensed valuer. This is to be lodged electronically via the Plan Lodgement Portal (contact your valuer); and
The duplicate certificates of title (if any) if the strata titles were created and registered under the Strata Titles Act 1966 (see STR-01 Freehold and Leasehold Schemes).

²(updated to add requirements for new forms 17/06/2020)

A proprietor of a lot, registered mortgagee or a strata company, may apply to the State Administrative Tribunal (SAT) to amend the schedule of unit entitlements in the strata titles scheme. In this case, a General Application is lodged accompanied by the SAT Order.

Upon the registration of an amended schedule of unit entitlements the amended share of a lot owner in the common property is, deemed to be subject to any pre-existing encumbrances registered or caveats lodged against their lot.

Registration is effected by the Registrar of Titles recording the amendment of schedule of unit entitlements on the Record of Strata Titles Scheme in the scheme plan.

6 Amendment of Scheme Plan - Imposition, Variation or Revocation of a Restricted Use Condition (section 35(1)(g) of the Act)

A scheme plan 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 describes the restriction on use.

Where a scheme 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. In this case, an amendment of scheme plan is lodged to impose the restriction on use.

A restriction that has been endorsed on a scheme plan on registration of the scheme plan or by an amendment of scheme plan, may be varied or revoked.

The imposition, variation or revocation of a restriction on use requires a resolution without dissent from the strata company. The strata company lodges an Application to Amend Scheme Plan – Restricted Use Condition with the Registrar of Titles accompanied by:

The written consent of the Western Australian Planning Commission;
If leasehold scheme, Consent of the Owner of a Leasehold Scheme, unless the owner of the leasehold scheme is the applicant.

7 Lease of a Lot Within or Land Contiguous to Scheme Land

Section 92 of the Act allows a strata company to accept a lease of a lot within or land contiguous to a strata titles scheme to create additional common property (known as temporary common property). This lease is registered on the Record of Strata Titles Scheme in the scheme plan.

If the land to be leased is portion of a lot within the scheme or portion of contiguous land, the Registrar of Titles requires an Interest Only Deposited Plan to be lodged at Landgate depicting the part of the land subject of the lease.

The lease (or a transfer of lease or sub-lease) must be free of designated interests [see definition – STR-01], unless:

That designated interest does not prohibit the lease; and
The holder of the designated interest [see definition – STR-01] consents in writing to the lease; and
The consent does not impose any obligation on the strata company to comply with the terms of the designated interest.

Upon the registration of the lease the owner of a lot in the scheme acquires an undivided share in the temporary common property proportional to the unit entitlement of the owner's lot. The share of an owner of a lot in the temporary common property is subject to any interests recorded or registered against the lot.

The lease or sub-lease, whichever is appropriate, must also have filed with it at the time of registration:

Certificate of the Strata Company – Schedule of unit entitlements or leases or easements or restrictive covenants.
The written consent of the Western Australian Planning Commission, if required.
If leasehold scheme, Consent of the Owner of a Leasehold Scheme, unless the owner of the leasehold scheme is the applicant.

The strata company is responsible for all payments and performance of duties due under the lease.

A strata company may surrender the lease, having made a resolution without dissent to this effect and with the agreement of the lessor.

In this case, the Surrender is to be accompanied by:

Certificate of the Strata Company – Schedule of unit entitlements or leases or easements or restrictive covenants;
If leasehold scheme, Consent of the Owner of a Leasehold Scheme, unless the owner of the leasehold scheme is the applicant.

8 Lease over Common Property

As this type of lease is not considered an amendment of a strata titles scheme, please see Land Titles Registration and Policy Guide LEA-01 Leases of Land for further details.

9 Also see

STR-06 Termination, Variation or Expiry of a Strata Titles Scheme

Version 2 – 01/05/2020

Disclaimer of liability

1 Termination Overview

There are 3 ways in which a strata titles scheme may be terminated:

By application by a single owner;
By application supported by unanimous resolution passed by the strata company; or
By majority vote of a resolution passed by the strata company.

Where all the lots are owned by a single owner, there are no requirements for an outline or full termination proposal or a vote. The owner can proceed directly to an application to the Registrar of Titles to terminate the scheme, subject to winding up the strata company and obtaining a deposited plan approved by the Western Australian Planning Commission.

The termination process, except in the single owner scenario, is more than just a vote. There is a complete, transparent process that must be followed. If the vote is unanimous, there is no requirement for a review by the State Administrative Tribunal (SAT). There is a more streamlined process where the owners vote initially to support a unanimous owner-initiated termination proposal. In this case, they forego some of the protections. Up to the point of voting on the termination proposal owners can opt out of the owner-initiated process. This will require the proponent to commence the termination process again and provide the full protections. If the vote produces the required majority, but is not unanimous, the termination proposal must undergo a fairness and procedure review by the SAT. A majority termination proposal cannot proceed without an order from SAT, who can order that a scheme be terminated under a majority vote only if it is satisfied of three key things:

the termination process was properly followed, and
every owner who objects to the termination will get at least fair market value for their lot (e.g. apartment or unit), and
the proposal to terminate is just and equitable.

The Act provides extensive guidance to assist SAT in deciding whether the proposal is just and equitable.

Except for owners participating in an owner-initiated termination proposal, owners will have access to funding to respond to a full proposal and vulnerable owners will have access to additional funding and assistance to respond to the termination proposal.

1.1 Notice of Termination Event

A Notice of Termination Event is required to be lodged with the Registrar of Titles in a number of specified circumstances. A lodgement fee applies each time a notice is lodged.

The certificates of title of all lots in the scheme and the scheme plan will be endorsed with the termination event the subject of the notice. At any stage the termination process is stopped (either by withdrawal, unable to proceed or SAT does not confirm a termination resolution), lodgement of this notice will remove all preceding notices relevant to the termination process from all strata titles and endorse the cancellation on the scheme plan (on the Record of Strata Titles Scheme).

1.2 Termination of a Freehold Scheme

The termination of the scheme will take effect on registration of the termination by the Registrar of Titles. A proponent can apply to the Registrar of Titles to terminate the scheme if the proponent has obtained a WAPC endorsed plan of survey (deposited plan) and taken steps to wind up the strata company. The application must be made within 12 months of SAT confirming the termination resolution or within 12 months of obtaining a unanimous resolution in favour of the termination proposal. Note: The proponent can withdraw their proposal at any time before registration of the termination. Please refer to Strata Titles Policy Guide STP-17 in relation to plan requirements.

1.3 Termination of a Leasehold Scheme

A leasehold scheme may:

terminate at the end of the expiry day for the scheme (when all strata leases expire at the same time); or
be terminated before the expiry day of the scheme.

Termination of a leasehold scheme will happen automatically when the scheme and all the strata leases simultaneously expire. Termination before the expiry day of the scheme will always require the strata company to vote on the termination resolution and consent of the owner of the leasehold scheme (lessor under the strata leases). Information about how the expiry day for a leasehold scheme can be postponed is set out in the leasehold strata section.

The same termination process for a freehold scheme applies to termination of a leasehold scheme before the expiry day except that the consent of the owner of the leasehold scheme (the lessor under the strata leases) is required for an outline termination proposal or full termination proposal to proceed.

1.4 Expiry of a Leasehold Scheme

Every leasehold scheme will automatically be terminated when all the strata leases simultaneously expire at the end of the expiry day of the scheme. This doesn’t require the strata company to vote or have the termination reviewed by SAT. Certain documents will be lodged with the Registrar of Titles to show the leasehold scheme has been terminated because the strata leases and the leasehold scheme have expired. Upon expiry of the leasehold scheme, the person who was the owner of the leasehold scheme immediately before the expiry day gets the land back in the same title. Refer to section 7 of this guide.

2 Application for Termination by Single Owner or Unanimous Resolution (Section 191 or 193 of the Act)

The proponent can lodge an Application for Termination of Scheme by Single Owner or Unanimous Agreement with the Registrar of Titles:

if all the lots in a strata titles scheme are owned by the same person; or
if the vote of every lot in the scheme is cast in favour of the full termination proposal (i.e. unanimous).

This application is to be accompanied by:

the (unencumbered) duplicate certificates of title for the strata lots and leasehold reversionary title (if any);
Statement to Deal with Land of how each item registered or recorded for the scheme in the Register is to be dealt with;
Consent of the Owner of a Leasehold Scheme, if leasehold and applicant not the owner of the leasehold scheme (OLS);
Certificate of Strata Company – Termination of Scheme, where the scheme is not a single owner;
Statutory declaration that the termination proposal hasn’t been withdrawn and that there are no reasons under section 187(1) of the Act for the termination proposal to not proceed further, where the scheme is not a single owner;
Deposited plan endorsed with approval of the Western Australian Planning Commission.

Upon registration, the person who was the single owner of all lots in the scheme becomes the owner of the lot on the deposited plan or the persons who were the owners of the lots immediately before termination become the owners of the lot on the deposited plan as tenants in common in shares proportional to the unit entitlements of their respective lots. Where the scheme being terminated is a leasehold scheme, the owner of the leasehold scheme becomes the owner of the lot on the deposited plan.

3 Application for Termination (Majority Vote) (section 191 or 193 of the Act)

The proponent can lodge an Application for Termination of Scheme if:

all the lots in a strata titles scheme are not owned by the same person for schemes of 5 lots or more; and
a termination resolution is passed by majority vote (the vote attached to 80% or more of the lots in the scheme is in favour of the termination); and
SAT confirms the termination resolution.

This application is to be accompanied by:

the (unencumbered) duplicate certificates of title for the strata lots and leasehold reversionary title (if any);
a certified copy of SAT’s Order confirming the termination resolution;
Statement to Deal with Land of how each item registered or recorded for the scheme in the Register is to be dealt with;
Consent of the Owner of a Leasehold Scheme, if leasehold scheme and applicant not the OLS; and
Statutory declaration that the termination proposal hasn’t been withdrawn and that there are no reasons under section 187(1) of the Act for the termination proposal to not proceed further.
Deposited plan endorsed with approval of the Western Australian Planning Commission.

Upon registration, persons who were owners of the lots in the scheme become owners of the lot on the deposited plan, as tenants in common in shares proportional to the unit entitlement of their respective lots. Where the scheme being terminated is a leasehold scheme, the person who was the owner of the leasehold scheme becomes the owner of the lot on the deposited plan.

4 Variation upon Damage or Destruction (Section 166 of the Act)

Where a building is damaged or destroyed, the strata company, an owner or a registered mortgagee of a lot in the scheme or, for a leasehold scheme, the owner of the leasehold scheme, may apply to SAT to vary the existing scheme or substitute a new scheme. On lodgement of a General Application 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.

5 Variation on Taking (compulsory acquisition) of Part of the Parcel (Sections 167-169 of the Act)

The strata company, owner of a lot in the scheme, a registered mortgagee of a lot in the scheme or, if a leasehold scheme, the owner of the leasehold scheme may apply to SAT for an order to vary the scheme, or substitute a new scheme, where part of the parcel of the scheme is subject to a taking order.

The authority acquiring the land must lodge a redefining plan with the Registrar of Titles that complies with the Strata Titles (General) Regulations 2019.

6 Termination by the Taking (compulsory acquisition) of the Whole of the Parcel (Section 196 of the Act)

The Minister may in a Taking Order declare that the strata titles scheme is terminated on registration of that Order.

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.

7 Expiry of a Leasehold Scheme

Either the owner(s) of the leasehold scheme or the owner(s) of a lot in the leasehold scheme (if the owner of the leasehold scheme has not given notice) may lodge a Notice of Expiry of Leasehold Scheme for registration by the Registrar of Titles. It must be lodged at least 1 month before the expiry day of the scheme and not earlier than 3 months before the expiry day of the scheme.

It must be accompanied by the following documents:

Statement to Deal with Land;
Other evidence that the requirements of the Act have been complied with.

The Notice will be lodged against all leasehold strata titles, the title for the reversionary interest in the land and the strata/survey-strata plan. Upon expiry day, the leasehold strata titles will be cancelled, the title for the reversionary interest in the land will be updated and the strata titles scheme expired.

8 Also see

STR-07 Scheme By-Laws

Version 7 – 06/07/2020

Disclaimer of liability

1 General

Previously the by-laws in Schedules 1 and 2 of the Strata Titles Act 1985 (STA) (standard by-laws) were automatically adopted upon registration of the scheme, unless by-laws were lodged in the form of a Management Statement (Form 25) lodged with the Application to register the plan. They could then be added to, amended or repealed by lodgement of a Form 21 under the Strata Titles General Regulations 1996. The purpose of a management statement was to establish the by-laws and to provide developers with a method of registering matters relating to the development of a strata/survey-strata scheme in stages at the time the scheme was being established.

The amended STA replaces that process by introducing the lodgement of the Scheme By-Laws which is one of the Scheme Documents. If a Scheme By-Laws document is not lodged with the Application to register the strata titles scheme, then the governance by-laws in Schedule 1 and conduct by-laws in Schedule 2 are automatically adopted. If any amendments to those by-laws are required, then a Scheme By-laws document will need to be lodged. The Scheme By-laws must always contain a consolidated set of by-laws.

A strata company with by-laws registered prior to commencement day (1/5/2020) may also wish to lodge a consolidated set of by-laws prior to registration of any amendments to those existing registered by-laws.

The forms to use are:

Scheme by-laws set out:

Governance by-laws – including those in Schedule 1
Conduct by-laws – including those in Schedule 2

A strata company may make governance by-laws and conduct by-laws as defined in section 3(1) of the STA.

Before Commencement Day - By-laws in force before commencement day (01/05/2020) continue in force, where they are not inconsistent with the STA¹. When the strata company lodged a new by-law or an amendment or repeal of a by-law or the strata company chooses to lodge a consolidated set of by-laws, it will be up to the strata company to determine whether they are Governance or Conduct by-laws.

¹Updated to read STA instead of Act 06/07/2020

After Commencement Day - The by-laws as set out in Schedules 1 and 2 of the STA are taken to be the by-laws of a scheme registered after commencement day unless other scheme by-laws are registered for the scheme. They are known as Governance and Conduct by-laws.

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 Governance by-laws;
by a special resolution, for Conduct by-laws; or
in accordance with any order of a court, the State Administrative Tribunal² or any written law.

²Updated "referee" to read "State Administrative Tribunal" 06/07/2020

No by-law, amendment or repeal of a by-law may operate so as to restrict the dealing with any lot or modify or discharge an easement or restrictive covenant.³

³Paragraph updated 06/07/2020

Note: Resolution without dissent, special resolution and unanimous resolution have the meanings in section 123 of the STA.

2 Lodgement and Registration

Scheme By-laws can be lodged simultaneously with the Application to register strata titles scheme (if indicated on the scheme plan) or any time after registration of the scheme. After 01/05/2020,Scheme By-laws must contain a consolidated set of all by-laws in the approved form. They must be either signed by the:

registered proprietor(s) of the parcel for a new scheme; or
the strata company for an existing registered scheme.

Written consents are only required when making, amending or repealing staged subdivision, exclusive use or leasehold by-laws, as set out in items 3, 4 and 5 of this guide. Scheme by-laws made at the request of the Western Australian Planning Commission or Local Government (by-law under planning condition), only require written consent by the Western Australian Planning Commission or Local Government when amending or repealing those by-laws.⁴

⁴Sentence added 06/07/2020

2.1 Scheme By-laws - schemes registered before 01/05/2020

Scheme By-laws – First Consolidation this form is to be used for schemes registered before 01/05/2020 that have existing by-laws who choose to consolidate and/or need to lodge amendments. As consolidating the by-laws could be a lengthy process, a guide has been produced to assist with the process (see Guide to consolidating by-laws).

If you are lodging this form to register amendments to the existing by-laws, these must be registered within 3 months of the by-law being made. The 3 months commence from the closing date of the voting period on the resolution.

2.2 Scheme By-laws - new schemes registered from 01/05/2020

Scheme By-laws – New Scheme - this form is to be used at the time of registration of a new scheme on or after 01/05/2020, where the scheme by-laws differ to the governance and conduct by-laws in Schedules 1 and 2 respectively of the STA. It must contain the consolidated set. It replaces the old Form 25.

2.3 Scheme By-laws - amendments to consolidated by-laws registered from 01/05/2020

Scheme By-laws – Application to Amend - this form is to be used for registered schemes that already have registered consolidated by-laws and are now applying to register new by-laws or amendments or repeals. It replaces the old Form 21.

New by-laws, amendments and repeals must be registered within 3 months of being made, amended or repealed. The 3 months commence from the closing date of the voting period on the resolution.

Note: A Form 21 may be lodged for registration after 01/05/2020 in respect of a new, amended or repealed by-law pursuant to a resolution passed before 01/05/2020, provided it is lodged within 3 months of the closing date of the voting period on the resolution.

3 Staged Subdivision By-laws

Section 42 sets out the requirements for Staged subdivision by-laws. Staged subdivision by-laws can only be made, amended or repealed if the following consents have been provided:

Consent of the Owner of a Leasehold Scheme;
- after giving notice in the approved form of Notice to the Owner of the Leasehold Scheme and Designated Interest Holders for making / amendment / repeal of staged subdivision by-laws.⁵
Consent Statement - Designated Interest Holders for making / amendment / repeal of staged subdivision by-laws;
- after giving notice in the approved form of Notice to the Owner of the Leasehold Scheme and Designated Interest Holders for making / amendment / repeal of staged subdivision by-laws.⁵

⁵Updated to included sub dot points 06/07/2020

Approved form Proposed Schedule of Unit Entitlements - Staged subdivision by-laws is to be used when preparing staged subdivision by-laws.

4 By-law under planning (scheme by-laws) condition⁶

A by-law made at the request of the Western Australian Planning Commission (WAPC) or local government may be expressed to require the consent of the Western Australian Planning Commission or local government to an amendment or repeal of the by-law.

Application to local government for approval to the amendment or repeal can be made under section 22 of the STA using the approved form Application for approval under planning (scheme by-laws) condition.

Application to WAPC for approval to the amendment or repeal can be made by contacting them directly, and referencing section 22 of the STA.

The amendment or repeal of such by-law can only be registered if the following consent is provided:

Written consent from the Western Australian Planning Commission or local government, as relevant.

⁶New Section 4 added 06/07/2020

5 Exclusive Use By-laws

Section 43 of the STA 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 over all or part of the common property (special common property) to the occupiers of a specified lot or lots in the scheme (special lots). These by-laws can only be made, amended or repealed if the owner of each lot that is or is proposed to be a special lot has given written consent to the by-law(s).⁷

⁷Paragraph updated 06/07/2020

By-laws for exclusive use or special privilege may contain conditions such as the requirements for maintenance and repair.

When only a portion of the common property is subject to exclusive use or special privilege, it must be clearly defined by a sketch that contains sufficient information to accurately plot the affected land. The sketch must be approved by a Plans Senior Consultant at Landgate. Sketches may be forwarded in PDF format to Plans.Consultants@landgate.wa.gov.au for pre-approval.

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:

the by-law creating the exclusive use or special privilege is registered at Landgate.⁸

⁸Paragraph amended 06/07/2020

The making, amendment or repeal of such by-law can only be registered:

with the written consent of the owner of each lot that is or is proposed to be a special lot.⁹

⁹Paragraph added 06/07/2020

6 Leasehold By-laws

Section 40 STA now provides for creation of Leasehold by-laws.

They refer to by-laws for the postponement of the expiry day of a leasehold scheme or for compensation to be payable on the expiry of a leasehold scheme.

The following consents will be required:

The Western Australian Planning Commission needs to approve a leasehold by-law that makes/amends/repeals a by-law that postpones the expiry day of the scheme.
Consent of the Owner of a Leasehold Scheme.¹⁰

¹⁰Paragraph added 06/07/2020

6.1 Section 41 STA - postponement of expiry day

The expiry day may only be postponed if the leasehold by-laws provide for it.

To register this postponement an Amendment of Scheme Notice must be lodged supported by the following document:

Certificate of Strata Company - Leasehold Expiry Postponement.

7 Searching Scheme By-laws

A search of the registered scheme plan will indicate the Scheme By-laws document number on the Record of Strata Titles Scheme (for plans registered prior to commencement, this will be the Form 8) which can then be searched as a separate document. A Scheme By-laws document lodged after 01/05/2020 (other than Form 21), will contain the consolidated set therefore it may not be necessary to get copies of all previously registered by-law documents.

8 Also see

SUB-01 Subdivision

Version 3 – 01/09/2020

General
Lodgement of Plans
Readiness to Proceed for New Subdivisions
Readiness to Proceed Process
Readiness to Proceed Rules
Plans Marked Subject to Examination
The Plan Examination Process
Plan Approval
Where a Plan is shown examined and sent to WAPC
Where a Plan is shown in Order for Dealings
Where a Plan is shown Expired
Comments with Internal Impact
Comments with External Impact
Compiled Plans

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 (e.g. 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 guide.

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.

3 Readiness to Proceed for New Subdivisions¹

Refer to Section 2 of SPP-17 Lodgement Procedures

¹Lot Synchronisation replaced by Readiness to Proceed 01/09/2020

4 Readiness to Proceed Process¹

Refer to Section 2.1 of SPP-17 Lodgement Procedures

¹Lot Synchronisation replaced by Readiness to Proceed 01/09/2020

5 Readiness to Proceed Rules¹

Refer to Section 2.2 of SPP-17 Lodgement Procedures

¹Lot Synchronisation replaced by Readiness to Proceed 01/09/2020

6 Plans Marked Subject to Examination

On payment of the required fee, a new plan 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.

7 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 examined and sent to WAPC in which case the approval by the Western Australian Planning Commission is still to be obtained

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.

8 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 Application for a New or Balance Title (available from the Land Titling Forms page) 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.

9 Where a Plan is shown examined and sent to WAPC

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.

10 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 may be³ unconditional, and subject to SUB-02 Applications for New Titles Section 1 merely requires an application by the land owner on a Application for a New or Balanced Title, together with the production of the former duplicate titles (if any), for new titles to be created and registered. However, the 'In Order For Dealings' panel is a guide, and persons preparing documents for lodgement should satisfy themselves that no further requirements are needed to be met.⁴

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.

³ [Guide updated on 23/08/2018 to replace 'is unconditional']

⁴ [Guide updated on 23/08/2018 to add new sentence]

11 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 had 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.

11.1 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).

11.2 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.

11.3 For Surveys Endorsed Before 9 April 2008

The owner had 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.

12 Comments with Internal Impact

12.1 Section 168 (1) (2) of 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.

12.2 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.

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.

13 Comments with External Impact

13.1 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 titles. Transfers may be required for new titles to align tenancy or create common ownership of the resulting new lots.⁵

⁵ [Guide updated on 23/08/2018 to add new sentence]

13.2 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 Application for a New or Balance 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 Planning, Lands & Heritage 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.

Note: Prior to the proclamation of the P&D Act on 9 April 2006 the above-mentioned provisions were set out in s.20A of the TP&D Act.

13.3 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.

13.4 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.

13.5 Road Widening (P&D Action 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.

13.6 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 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.

13.7 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.

14 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 plan
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 Application for a New or Balanced Title. Production of the relevant duplicate certificates of title (if any) is required.

SUB-02 Application for New Titles

Version 4 - 09/08/2019

1 New Titles for Subdivisions

An application for a new title the subject of a single deposited plan must be made on an Application for New Titles (Subject to Survey) form (s.166 of the TLA). Applicants must ensure that the plan is 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. Where no duplicate certificate of title has been issued and the title is encumbered by a registered mortgage or charge, a letter of consent to subsequent lodgement from the first mortgagee or annuitant will be required. Please see COT-02 Duplicate Title.

Surveyors are required 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 name or address of the registered proprietor(s) is shown or if the application is being executed under a registered power of attorney.

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 (pre-subdivision) 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.

A lease that will, after creation of the subdivision, remain registered over part only of one or more of the new lots where the sketch originally lodged to depict the area is unclear, it will be brought forward over all lots that appear to be affected. For the avoidance of doubt, the lessee (or solicitor acting for the lessee) should provide a letter clearly acknowledging the lot(s) their lease will be brought forward onto.

If the subdivision will breach the terms of a restrictive covenant, then the covenant must be modified or discharged.

¹[Guide updated on 23/08/2018 to insert 'deposited']

²[Guide updated on 23/08/2018 to remove 'approved or' from 'approved or In order for Dealings']

³[Guide updated on 23/08/2018 to insert 'or if the application is being executed under a registered power of attorney']

⁴[Guide updated on 26/06/2019 to amend 'Act 21(1) of TP&D Act' to 'S.147(1) P&D Act']

2 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 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 (Application for New Titles (Subject to Survey) form) 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 8).

Note: Once a plan has been approved by the WAPC after 9 April 2006, s.146 of the P&D Act allows for the lodgement of the application within 2 years, otherwise the Registrar of Titles is not permitted to create and register the new titles created on the plan:

If an application for new titles is not lodged within the above-mentioned time period, 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.

2.1 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 an Application for New Titles (Subject to Survey) form) 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 1 above, apply.

Note: 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.

3 Separate Titles

The proprietor of two or more complete lots (which also includes the whole of any part-lot as defined in s.147(1) P&D Act) in a title may apply (using an Application for New Titles (Subject to Survey) form) 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.

3.1 What is meant by a Part-Lot

Essentially, a part-lot as defined in s.147(1) P&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.147(1) P&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.147(1) P&D Act; or
a part-lot that is not considered to be a part-lot under s.147(1) P&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.

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.

5 Also see

-SUB-01 Subdivision

Crown Land

ACQ-01 Acquisitions

Version 1 – 11/10/2018

1 Acquisition by the Commonwealth of Australia

Land may be acquired by the Commonwealth in one of two ways:

By Agreement:

Where 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 owner has to sell.

By compulsory process:

Where 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) vested in the Commonwealth; and

(ii) freed and discharged from all encumbrances of whatever nature.

The acquisition may also be for the purpose of an easement 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.

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 where the notice of pre-acquisition declaration (Sundry document) has been noted in the Limitations, Interests, Encumbrances and Notifications panel (where there is one).

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 Lands Acquisition Act 1989.

1.2 Acquisition Declaration

All Commonwealth acquisitions by compulsory process are given effect to, by an application on a Blank Instrument form 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 the title will be 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).

2 Acquisition Order under the LAA

At the request of a Local Government, the Minister for Lands under section 52 of the Land Administration Act 1997 (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 ROA-03 Roads and their Closure); 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. Where an absolute caveat affects the land being acquired, it should be removed prior to registration of the Acquisition Order. There is no requirement for the duplicate title to be provided.

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.

AMA-01 Amalgamations

Version 1 – 11/10/2018

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 Land Administration Act 1997 (“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 (e.g. 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 could be removed 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 Certificate of the strata company form as set out in the Strata Titles General Regulations 1996 is required. If an easement is being brought forward onto the strata plan as part of the amalgamation a Certificate of the strata company form is also required.

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.

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.

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 (e.g. 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.

CRW-01 Crown Land - General

Version 1 – 16/01/2019

1 Overview

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.

2 Introduction to the Land Administration Act 1997 (LAA)

The introduction of the LAA on 30 March 1998 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. A title is intended to 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 did 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 9).

3 Crown Land Administration – Department of Planning, Lands and Heritage (DPLH)

The Department of Planning, Lands and Heritage (DPLH) 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.

Other government agencies are entrusted with varying degrees of management roles over Crown land, with the major roles being played by the Department of Biodiversity Conservation and Attractions, the Water Corporation, the Department of Mines, Industry Regulation and Safety and, to a lesser extent, the Department of Transport.

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.

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.

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.

On the introduction of the LAA the ability of the Minister for Lands to make orders creating reserves and Management Orders was 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 can 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 sub-lease is lodged in duplicate, both the original and duplicate must have a coversheet attached.

Approved forms as found on Landgate’s corporate website can be used as coversheets for relevant Crown deeds created prior to 30 March 1998.

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. 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.

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.

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 Department of Planning Lands and Heritage and request a search of their relevant Department 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 for Minister’s approval wherein the Department may have retained 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 their possession or original document was in their 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.

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 Department of Planning, Lands and Heritage.

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.

7.1 Section 75 of the LAA

Consent of the Minister for Lands is required for any freehold Conditional Tenure land (see paragraph 14) or a Crown Grant in Trust that is being transferred, mortgaged, leased, charged or otherwise encumbered.

7.2 Section 134 of the LAA

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.

7.3 Section 172 of the LAA

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 TAK-02 Taking Orders – NOITT). 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.

7.4 Section 178 of the LAA

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 Planning, Lands and Heritage would grant such a consent.

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 TYP-02 Crown Land). 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.

9 Unqualification and Validation of Qualified Crown Land Titles

The LAA provides for the creation and registration of four types of Crown title:

Certificates of Crown land title (CLT)
Qualified certificates of Crown land title (QCLT)
Subsidiary certificates of Crown land title (SCLT)
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 Manager in the Department of Planning, Lands and Heritage 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 Planning, Lands and Heritage lodge an Application for a CLT or SCLT, a statement in support made by that Department on behalf of the Minister must state any current interests that have been granted over the subject land.

Any interests identified in the supporting statement (e.g. 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 Planning, Lands and Heritage 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 Planning, Lands and Heritage 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.

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.

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 Planning, Lands and Heritage.

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.

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 Policy and Procedure Guides:

Leases of Crown land - see LEA-01 Leases of Land
Transfers of leases of Crown land- see LEA-02 Leases of Land – Variations of & to
Mortgages of leases of Crown land- see MTG-02 Mortgages - Variation
Surrenders of leases of Crown land- see LEA-03 Leases of Land - Removals
Sub-Leases of Crown land see LEA-02 Leases of Land – Variations of & to
Extension of leases of Crown land- see LEA-02 Leases of Land – Variations of & to
Variations of leases of Crown land- see LEA-02 Leases of Land – Variations of & to
Removal of Expired Term Leases of Crown land- see LEA-03 Leases of Land - Removals
Forfeiture of leases of Crown land- see LEA-03 Leases of Land - Removals and
Temporary Care Control and Management of Pastoral Leases- see LEA-02 Leases of Land – Variations of & to

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 Planning, Lands and Heritage) 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 the trust 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.

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 paragraph 14).

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.

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 Planning, Lands and Heritage 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 Planning, Lands and Heritage. A Removal of Conditions document must have a duty notation affixed or attached to it.

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 (Department of Planning, Lands and Heritage) 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 the Department of Planning, Lands and Heritage.

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 14).

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 Manager in the Department of Planning, Lands and Heritage. 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.

17 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 EAS-01 Easements
Variation of easements over Crown land see EAS-01 Easements
Cancellation of easement over Crown land see EAS-03 Easements - Removal
Creation of covenants under the LAA see COV-01 Covenants
Discharge and modification of covenants under the LAA see COV-02 Covenants - Removal

18 Transfers for Purchase of Crown Land

For information on the transfer of Crown land to fee simple land see TFR-01 Transfers

19 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 TFR-01 Transfers

20 Further Information

Further information on Crown land can be found at the Department of Planning, Lands & Heritage

RES-01 Crown Reserves

Version 1 – 11/10/2018

1 Overview

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 Land Administration Act 1997 (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 the Land Act 1898 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, for example, reserves may also 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:

Reserves
Class A reserves
Mall reserves

2 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 Planning, Lands and Heritage 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.

3 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 and installing, maintaining or removing public utility 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.

4 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 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.

5 Management Orders

A reserve is usually placed under the care, control and management of a state government agency, local government authority 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 may contain conditions on the use and development of the reserve and may grant the management body certain powers to deal with the land, such as the power to lease and/or license.

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 or Minister responsible for an Act. Where the name of a management body is to be amended, the Department of Planning, Lands and Heritage will need to lodge a Revocation of Management Order, followed by a new Management Order.

A Management Order must be over the whole of a reserve and cannot be limited to part of the land in a reserve. A Management Order that includes a time limit must also include a statement that the Management Order will be revoked by document. The term will not be shown on the Crown land title or on the reserve register and the Management Order will remain 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.

6 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 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 where gazettal was part of the requirement of the vesting, a copy of the relevant page from the government gazette. 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 (e.g. 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 and the Aboriginal Affairs Planning Authority Act 1972.

7 Revocation of Management Orders

Management Orders may be revoked where the reserve has not been appropriately managed, where it is in the public interest to revoke the Management Order or by agreement with the management body.

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) 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 of Management Order made by the Minister for Lands expressly provides for the continuation of that interest or caveat (s.50(4)(a) LAA).

Where a reserve is affected by an increase in area, a change of purpose or any other change where the existing Management Order was originally created under the Land Act 1933, the Department of Planning, Lands and Heritage will usually lodge a Revocation of Management Order, followed by a new Management Order.

8 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.

Management Orders usually state the purpose of the reserve within the document so where a reserve purpose is changed, any Management Order over the reserve is usually revoked before the Change of Reserve Purpose document is registered as the purpose stated in the Management Order may no longer be compatible with the new purpose of the reserve. A new Management Order stating the new purpose of the reserve may follow the Change of Reserve Purpose document.

Where a Class A reserve purpose is being changed, the Department of Planning, Lands and Heritage is responsible for tabling the proposal in parliament and advertising in a newspaper circulating throughout the State.

9 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 may require a subdivision of lots already within the reserve.

Where a reserve with Management Order is being amended, the Department of Planning, Lands and Heritage may or may not lodge simultaneously, a revocation and new Management Order, depending on the extent of the amendment.

Where a Class A reserve or a reserve for the purpose of conservation park or national park is being amended, the Department of Planning, Lands and Heritage 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.

10 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. Any Management Order over the reserve must be revoked before the Reserve Cancellation document may be registered.

Where a Class A reserve is being cancelled, the Department of Planning, Lands and Heritage is responsible for tabling the proposal in parliament and advertising in a newspaper circulating throughout the State.

TAK-01 Taking Orders - Overview

Version 2 – 20/03/2020

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 into Parts 9 and 10 of the Land Administration Act 1997 (“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 Transfer of Land Act 1893 (“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.

Takings by the Minister for Lands are prepared by officers within the Department of Planning, Lands and Heritage (“the Department”). The Department 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 legal information in relation to notices, consents and documentation. Taking has effect from the registration of the Taking 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.

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 section 7 below - Land Within the DBNGP Corridor or Rail Freight Corridor);
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.

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 Planning, Lands and Heritage. 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.

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 a Taking Order, 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.

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.

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 common property only, a replacement sheet depicting the balance common property lot will be required. 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 certificate of title affecting that strata lot in the Volume/Folio panel. If that strata lot also includes common property, then the land description should also refer to the strata plan number.

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.

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 DBNGP rights and interests may be required, appropriate documentation from the DBNGP Land Access Minister will be necessary.

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 necessary.

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 interest and encumbrance holders and the holder of any native title rights and interests in the land.

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 191 of the Planning and Development Act 2005, a local government need not issue a NOITT where it wishes to take land comprised in a planning 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 impractical to delay entry onto the land until the land has been taken.

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.

Any instruments lodged after an Authorisation Order must show it as an encumbrance in the Limitations, Interests, Encumbrances and Notifications panel (where there is one). 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.

11 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.

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, had to include in the land description panel and following the description of the land, the words “less portion resumed”. Digital 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.

Where freehold land was resumed, the resuming authority could, by application, 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 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.

12 Further Information

TAK-02 Taking Orders - NOITT

Version 1 – 08/10/2018

1 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.

1.1 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;
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 without the consent of the Minister; and
where native title rights and interests are also being taken the notice must comply with the Native Titles Act 1993 and refer to relevant affected sections of that Act.

1.2 NOITT Process

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. 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 principal proprietor of any land affected by the notice, the occupier of the land or interest in land, and any holder of native title, mining or petroleum interests, by certified mail or personally. They should also be advised of procedures for the taking of land and their rights if they have not yet been given that advice;
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 2011 (No.1).

1.3 Objections to a NOITT

The principal proprietor or occupier of land affected by a NOITT, 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.

1.4 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 period. 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 upon receiving a request in writing from the acquiring authority.

2 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, receiver-manager or manager;
transfers under terms of a will or intestacy, or by way of gift; or
deed of assignment or deed of arrangement under the Bankruptcy Act 1966 of the Commonwealth.

Whether or not consent is required, the NOITT must be noted as an encumbrance in the Limitations, Interests, Encumbrances and Notifications panel (where there is one) on any subsequent transaction dealing with land affected by a notice.

3 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.

4 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 for 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 known address.

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.

5 Further Information

TAK-03 Taking Orders

Version 1 – 08/10/2018

1 Taking Order

The Crown, any Crown Instrumentality or a local government has the right under Part 9 of the Land Administration Act 1997 (LAA) to take land or interests 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.

1.1 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.

1.2 Taking Order Process

After the period allowed to object to the subject of a Notice of Intention to Take (“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 NOITT. 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, e.g. 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 title 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 Taking Order Designation below).

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.

2 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 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.

3 Amendment or Annulment of a Taking Order

A Taking Order may be amended or annulled at any time within 90 days after its registration. An amendment or annulment 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 number of the Taking Order being amended, the land description of those parcels of land to be amended and clearly state a description of the amendment.

An Annulment of Taking Order document is to set out the number of the Taking Order being annulled and all the land descriptions that are comprised in the taking order to be annulled. An Annulment of Taking Order cancels all the actions in the taking order. Where the intention is to annul portion of a taking order then an Amendment of Taking Order should be used.

After registration of a Taking Order Amendment or Annulment, the relevant Minister must cause a copy of the Order to be published in a daily newspaper circulating throughout the State. Interest holders and the Director General of Mines must also 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 annulment of taking order, or within such longer period as the Minister may allow.

4 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 must show the Taking Order as an encumbrance in the Limitations, Interests, Encumbrances and Notifications panel (where there is one) 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 a Change of Designation document or a Designation Cancellation document lodged by the Department of Planning, Lands and Heritage.

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.

5 Easements Created by Taking Order

A Taking Order may 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. The easement conditions should be set out on an additional page within the Taking Order. The Proposed Disposition/Grant section of the Order should indicate that an immediate easement is granted on the conditions as set out on the additional pages attached, and state to whom it is granted.

The easement conditions may additionally be set out in any prior NOITT relevant to the Taking Order.

6 Further Information

Miscellaneous

BAP-01 Amendments of Boundaries, Area or Position

Version 1 - 06/02/2017

Part IX of the Transfer of Land Act 1893 (s.s 170 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 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 CAV-02 Caveats - further reading).

POS-01 Adverse Possession

Version 2 - 27/10/2020

1 How Claims Arise

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

thirty years, where it cannot be proved that the registered proprietor was under no legal disability at the time possession commenced

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).

Initial examination and confirmation of the schedule of the chronology of the Deeds
Referral to Landgate’s In-house Surveyors for assessment
Referral to the Commissioner of Titles and Landgate’s In-house legal team for legal assessment and instruction
Requisitions for defects and/or deficiencies in the Application and supporting documentation, if required
Where these applications are granted by the Commissioner, a statutory advertising period, usually 21 days, applies.
Time may be extended if any caveats are lodged during statutory advertising period and any objections are lodged in the Supreme Court of WA.

¹Paragraph inserted 27/10/2020

2 How to Apply

It is recommended that a Blank Instrument Form 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 policy and procedure guide TYP-04 Bringing Land Under the TLA.)

3 Form of Application

The application should be made in the following form:

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, e.g. 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:

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 control other than those included in the Schedule hereto.
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).
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).

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 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.

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.

4.1 Limitation Periods Under the Limitation Act 2005

From 16 November 2017, Applications to the Commissioner of Titles seeking to establish a claim of adverse possession under section 222 of the Transfer of Land Act 1893 (TLA) can provide evidence to address legal disability under the Limitation Act 2005, or the Limitation Act 1935. For many cases this will be more straight forward under the 2005 Act. This determines the relevant limitation period for a claim to adverse possession.

Applicants and other parties with an interest in land subject to of a claim to adverse possession should seek legal advice to determine the best course of action for them. The key provisions to address legal disability under the Limitation Act 2005 are:

Adverse possession is described and outlined based on limitation periods, section 3(6);
A 12-year limitation period applies generally to an action to recover land, section 19(1);
Section 35(2) provides a maximum 12-year limitation period where a person subject to a mental disability did not have a guardianship or administration order made for them;
Section 41 provides for a possible extension of a limitation period with a person under 18;
Section 42 provides for an extension of a limitation period by a Court where a person suffering a mental disability has a guardian; and
Section 36 provides for an extension of a limitation period where there is a person in a close relationship with a person subject to a mental disability.

If the Applicant provides sufficient evidence to establish:

there was no guardianship or administration order for the owner of the claimed land during the period of the claim;
the true owner of the claimed land was over 18 during the period of the claim; and
the applicant has not been in a close relationship, as defined at section 36 of the 2005 Act, with the owner of the claimed land;

the relevant limitation period under the Limitation Act 2005 is 12 years from when the cause of action first accrued. If sufficient evidence is not provided to the satisfaction of the Commissioner of Titles, further evidence will be required and a limitation period greater than 12 years may apply.

Evidence to address these matters is required for all of the true owners of the claimed land, including a personal representative, remainder-man, beneficiary and other subsequent owners, shown on the title during the period of an adverse possession claim. If the registered proprietor was deceased, but the title not amended during the period of the claim, the relevant limitation period is 12 years from when the cause of action first accrued (see section 78(1) of the Limitation Act 2005).

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.

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.

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.

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 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.

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 CAV-03 Caveats - types of, but also see s.223A as to the lapsing of the caveat.

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.