Practice manual

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

Important

The information in the guides below should not be regarded as legal advice. In all matters, users should seek legal advice from an independent legal practitioner.

Online

The Landgate corporate website provides links to other Internet sites. These external information sources are outside of Landgate’s control and it is the responsibility of Internet users to make their own decisions about the accuracy, reliability, suitability and correctness of information found.

Copyright ©

Copyright in the guides below is owned by the Western Australian Land Information Authority (Landgate) and is protected by the Copyright Act 1968 (Cwlth).
You may use the content for the purpose of a guide or information source in respect of land registration practice and procedure in Western Australia. Other than for this specified purpose and for the purposes of and subject to the conditions prescribed under the Copyright Act 1968 (Cwlth) and similar statutes that apply in your jurisdiction, you may not, in any form or by any means:
* Adapt, reproduce, store, distribute, transmit, print, display or create derivative works from any part of this Workbook
or
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Pricing and Licensing
Landgate
PO Box 2222
MIDLAND WA 6936
Tel: +61(0)8 9273 7210
E-mail: licensing@landgate.wa.gov.au
Any authorised reproduction however altered, reformatted or redisplayed must acknowledge the source of the information and that Landgate is the owner of copyright.

Document preparation

APP-01 Applications

Version 1 - 28/02/2018

The information provided in this guide is not intended to amount to legal advice. Professional assistance may be required to determine the most appropriate action to protect your legal rights. Please read our Terms of Use on the Land Titles Registration policy and procedure guides web page. Landgate accepts no responsibility where parties print this guide and seek to rely on information that is out of date.

1 General

An application is merely a request, addressed to the Commissioner or Registrar, asking that some desired discretion be exercised. An application, by itself, is of little value. It is the evidence supplied, either by statutory declaration setting out the facts, or by being produced with, or as annexures to a statutory declaration, which determines whether or not the application will be successful. An application must be signed by the applicant or each of them if more than one. A witness to the signature(s) of the applicant(s) is required.

2 Effect of Applications

An application is made usually to effect some change in the Register. The duplicate certificate of title (if any) must be produced where land is concerned. In other cases, e.g. an application to amend a mortgage or lease, production of the duplicate certificate of title (if any) is not essential although it is desirable. After examination of the application and compliance with any requisitions made, the necessary changes are made in the Register.

3 Forms

There are application forms available for use at https://www0.landgate.wa.gov.au/for-individuals/forms-and-fees/land-titling-forms.

4 General Requirements

Each application submitted for approval must show:

- a full, correct description of the land sought to be affected

- a full, correct name and address of the applicant and, where necessary, the capacity in which he or she is acting, and

- where a blank application is being used the nature of the application set out concisely. The change required should be set out showing the current information on the title, and the new information. For example, an application to amend a name should be set out as to have the name, shown on the title to the above land as Allan Smith amended to show Alan Frederick Smith.

5 Presentation of Evidence

All statements supplied in support of an application must be in the form of a statutory declaration made under the provisions of the Oaths, Affidavits and Statutory Declarations Act 2005 (WA) (OASD Act). Statements presented in the form of an affidavit are not acceptable.


DOC-01 Document Preparation

Version 4 - 18/05/2018

The information provided in this guide is not intended to amount to legal advice. Professional assistance may be required to determine the most appropriate action to protect your legal rights. Please read our Terms of Use on the Land Titles Registration policy and procedure guides web page. Landgate accepts no responsibility where parties print this guide and seek to rely on information that is out of date.

1 Overview

Instruments intended to be lodged or registered in respect of land under the Transfer of Land Act 1893 (TLA) must conform to the requirements laid down in the Regulations to the Act.

In the interests of economy (for the client), time (for the engrosser), examination and storage (for the office) the practice of preparing multiple documents, where one will suffice, is discouraged. Those persons or firms using computer facilities to produce their forms may utilise adjustable panels to create more space for complex arrangements or numerous land items.

Proper use of the additional page (Form B1) will, in most other cases, provide sufficient space for larger dealings on pre-printed forms. However, there are occasions when separate documents must be used. In a transaction where a number of vendors transfer a number of parcels to a common transferee, separate transfers must be used unless each vendor has an interest in each parcel transferred.

For example, in a sale from A and B to C where A and B own the land in one certificate and A owns the land in another, two transfers must be prepared: one from A and B to C and one from A to C. If A and B own the land in both certificates, even if they hold different shares, a single transfer may be used.

The design of the computerised power of attorney register does not limit the number of donors in any one document. It is recommended that preparing parties show restraint in the number of donors appointed, and impose the same requirement on the number of attorneys in one document.

2 Form of Documents

The Registrar of Titles is required to approve forms for use under the TLA. A list of Landgate’s standard forms that have been approved by the Registrar is shown on Landgate’s corporate website http://www0.landgate.wa.gov.au/titles-and-surveys/forms-and-fees/land-titling-forms.

Personalisation of forms that mirror one of Landgate’s standard forms - and only seek to pre-populate information such as lodging party details - no longer require approval.

3 Size, Margins, Quality and Binding

The standard size of forms (documents) to be lodged for registration is 297 mm by 210 mm in external measurement (A4). Adequate margins (a minimum of 5 mm) must be provided on all sides. Binding is not permitted on original documents and if more than one sheet is used, they should be secured by two staples in the left-hand margin.

Duplicate copies of any documents that can be accepted in duplicate may be bound if desired. The form should not be cut or trimmed in order to fit it into an envelope for posting. The paper selected must be of a type and quality approved by the Registrar of Titles (at least 80 gsm). Persons printing their own forms must ensure these mirror one of Landgate’s approved Land titling forms and are printed in black and white and printed on both sides (duplexed). This excludes the electronic Record Interest - Mortgage (National Mortgage) form which aligns to a national standard and may be printed in simplex, that is, single sided.

4 Private Printing

It is important that all privately printed forms that are lodged for registration:

- mirror Landgate’s approved Land titling forms

- conform to the Regulations to the Act

- are printed in black and white and printed on both sides (duplexed). This excludes the electronic Record Interest - Mortgage form and the National mortgage PDF form, both of which align to a national standard and may be printed in simplex, that is, single sided

and

- if the document produced is four or more sheets, the sheets are numbered consecutively.

5 Completing Documents when a Digital Title Exists

The following is a guide to successfully completing a Land Registration form when a digital title exists.

5.1 Land Description panel

Copy the land description details as shown on the digital Title Record. This will show only the lot on survey details, e.g. Lot 10 on Plan 30025.

5.2 Limitations, Interests, Encumbrances and Notification panel (where there is one)

Copy the Limitations, Interests, Encumbrances and Notifications shown in this section of the digital Title Record with the exception of subsidiary limitations, interests, encumbrances and notifications - e.g. a Transfer of Mortgage is not shown.

Do not show in the document any of the following:

- The benefit of any easement or restrictive covenant.

or

- Subsidiary limitations, interests, encumbrances and notifications.

6 Documents for which No Form is Provided

Some documents to be prepared will not fit any printed form, either because the form is unsuitable for the document or because the document is too complex to be reduced to the panel format. These documents should be prepared on Blank instrument form B2.

7 Additional Pages

Where a panel on any printed form has insufficient space in which to place the required information, it is permissible to:

- use a double page form and, after inserting, see Page 2 in the appropriate panel, enter the information on page 2 of the form under a heading for that panel,

and

- use an additional page (Form B1) and, after inserting see additional page (number of sheet) in the appropriate panel, enter the information on the additional sheet under a heading for that panel. The additional page should be completed by adding the additional page number and reference to the document and date and be stapled to the front of the document by two staples on the left-hand margin. No signatures are required on the additional page.

Additional pages should not be used where another form can be successfully used or the information inserted is not part of the panel format. This information should be prepared on pages of the same size numbered consecutively and stapled inside the document.

8 Insert Sheets

Where the printed matter contained in a form of mortgage is inadequate or partly inappropriate, additional pages may be stapled to a printed form. The Registrar will be satisfied if the clauses contained in the resulting document run in numerical sequence.

In most cases insert sheets of good quality white bond paper will be approved for multi-page documents. Inserts on sheets other than full size will not be accepted. Information on the sheets may be typed printed or produced by copiers that use unsensitised paper. All insert sheets so produced must be approved by the Registrar. Outside sheets for multi-page documents must be printed on approved paper.

All signatures, seals and initials, wherever appearing on insert sheets, must be original.

No binding is required on the original copy of multi-page documents but conveyancers may bind the duplicate copy of any documents that can be accepted in duplicate if they wish.

9 Other Provisions Relating to Documents

Every document lodged for registration must comply with the following requirements:

- Handwriting, signatures and seals must be clear and legible:

- The use of black or blue ballpoint or felt tips pens are recommended when writing on or signing documents, other colours such as red or green should be avoided.

- The seal of a Corporation must be affixed in a manner that makes its reproduction by electronic or photographic process possible. The use of a black ink stamp pad is recommended. Failure to comply with this requirement could lead to rejection of the document

10 Land

10.1 Estate and Interest

The estate or interest in the land being dealt with must be set out in the panel provided in the printed forms (where applicable). When properly completed, the panel shows whether the land being dealt with is fee simple, leasehold or a lesser estate and also qualifies the extent to which any of those estates is being affected, for example

- fee simple in one undivided half share

or

- leasehold as to the interest of A as a joint tenant with B.

Where it is necessary to show an estate or interest and where the printed form being used does not provide a panel in which to insert the required words, the words may be inserted immediately preceding a description of the land being dealt with.

10.2 Description of Land

The correct description of the land being dealt with must be typed or written in the panel provided in each of the forms. A correct description includes:

- the lot or location name and number (if an original Crown survey) or subdivisional lot number with its relevant plan, deposited plan or diagram number;

- a statement as to whether the lot is part of or the whole of the land in the certificate of title, Crown land title or Crown lease; and

- the certificate of title or Crown land title volume and folio reference. In the ELN, the Land Description will be obtained from the Registry Information Supply (RIS).

Part of the Land in a Title

When dealing with part of the land in an existing title, the land description must be precise and unambiguous. Particular care should be taken where part of a lot, being part of the land in a title is being transferred and the extent panel reflects this requirement.

Partial transfer of land in multiple owner subdivisions

In the case of a plan of subdivision that involves multiple owners resulting in the transfer of part of the land in one title (e.g. Lot 10 on Plan 3130) owned by proprietor A to incorporate land owned by proprietor B in another title to form one of the new lots (e.g. Lot 2) on the plan, the land description in the partial transfer will read as follows:

All that part of Lot 10 on Plan 3130 as is now comprised in Lot 2 on Plan (insert new plan number) and being part of the land in title Volume 616 Folio 61.

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

As a general rule, documents that contain a sketch to identify part of the land in a certificate of title will not be accepted. An Interest Only Deposited Plan (DP) must be prepared by a licensed surveyor to spatially define the land. The document can then make reference to the DP number to accurately identify the portion of the land being dealt with.

Note: The DP must be in Order for Dealings before the document is lodged. It is acceptable for drawings to be included within a document, as long as they don’t purport to define the area of land affected by the interest.

The following documents are exceptions to the general rule:

- Caveats

- Freehold Leases

- Management body leases and non-LAA leases over Crown land

- Simple bore easements between neighbours.

Note: While the above documents are exempt from having a DP to define a portion of land, a DP can still be created instead of a sketch.

A suitable sketch of the land can be attached to the document and must contain a notation sketch correct and be initialled by the parties to the document. Please note the following guidelines when a sketch is to be included within the document for registration:

- The paper size should be A4 as it will form part of the registered document.

- If using a copy of an original sketch, it is recommended to use a first generation copy to maintain quality and legibility.

- There must be sufficient dimensioning or notation to clearly identify the interest areas.

- A north point, scale, street frontage [showing street name] and heading [containing encumbered lot details (e.g. Caveat/Lease over Portion of Lot 1 on Plan 123456)] are to be shown.

- The sketch should also tie in by dimension to the parcel boundary (cadastral boundary) unless defined by permanent monument.

- A sketch can relate to a permanent monument (building) to define the lease/caveat area. The building does not require to be dimensioned but it must show the relationship to the parcel boundary (show road frontage-street name, north point, etc….)

- A location plan depicting the building and lease area needs to be included to show the relation of the building to the parcel boundary and to also indicate where the lease area is situated within the building.

- Stippling, hachuring or identification by notation may be used to clearly define the area of interest.

- Colours must not be used.

- Aerial photography must not be used.

- Fax copies of sketches must not be used.

Conveyancers may, prior to lodgement of the document, obtain approval of the sketch from a Plans Senior Consultant at Landgate. Approval will be endorsed on the sketch if it is accurately and sufficiently dimensioned. A Plans Senior Consultant may be contacted by telephone on +61 (0)8 9273 7373 and sketches may be forwarded in PDF format to planreg@landgate.wa.gov.au for pre-approval.

10.4 Limitations, Interests, Encumbrances and Notifications

The Limitations, Interests, Encumbrances and Notifications to be noted in the panel on the printed forms are those which are in existence or will be noted on the Register at the time of registration of the dealing.

Where Limitations, Interests, Encumbrances and Notifications have been registered on the title before the current document to be lodged, it will be sufficiently identified if it is described by the nature of the Limitations, Interests, Encumbrances and Notifications document and its number. For example, Mortgage J123456 and for an easement or restrictive covenant Transfer K654321.

Where an encumbrance is lodged with, but in priority to an accompanying instrument, the latter instrument must show the Limitations, Interests, Encumbrances and Notifications by reference to its nature, parties and date of execution, for example"

"Mortgage dated ..... to …..."

or

"Restrictive Covenant created by Transfer ..... dated, made between the transferor and ....."

Caveats which are subject to claim may be noted as encumbrances.

A current Property (Seizure and Sale) Order may not be shown as an encumbrance and must be removed from the Register before registration of any instrument, except in the case of:

- transfer by the Sheriff or a Deputy Sheriff pursuant to such writ or warrant; or

- transfer by a mortgagee in exercise of the power of sale where the writ or warrant is lodged after the mortgage.

Care should be taken where several instruments dealing with the same land are presented together for registration. For example, where a transfer from A to B containing a covenant is presented with a transfer from B to C, a sufficient reference to the covenant in the first transfer must appear in the encumbrance panel of the second.

Note: As a result of the National Electronic Conveyancing System (NECS), some forms which previously had a LIMITATIONS, INTERESTS, ENCUMBRANCES AND NOTIFICATIONS panel no longer do.

11 Also see

DOC-06 Memorandum of Common Provisions


DOC-02 Parties to Documents - name and address requirements

Version 1 - 14/07/2017

The information provided in this guide is not intended to amount to legal advice. Professional assistance may be required to determine the most appropriate action to protect your legal rights. Please read our Terms of Use on the Land Titles Registration policy and procedure guides web page. Landgate accepts no responsibility where parties print this guide and seek to rely on information that is out of date.

1 General

Landgate, to support its guarantee of title, must be sure that the person selling, mortgaging or otherwise dealing with the land in a title is indeed the person shown as the registered proprietor. In its simplest form, for documents such as mortgages, leases, applications, etc. the identity check is the comparison of the name and address shown on the document with the name and address shown on the title.

2 Name

The name of a person dealing with land must coincide with the name of the registered proprietor or a satisfactory explanation of the difference provided. Amendment of the document and/or amendment to the name in the Register will be required where the document shows that:

- a name has been added to or omitted from the proprietor’s name

- the order of names is different

- there is a difference in spelling in the name or names

- the signature of the proprietor indicates another name

- a female has been married since first becoming registered proprietor

- a person has changed name by repute or usage

- a person has changed name by application to the Registrar of Births, Deaths and Marriages

- a person has changed name by Deed Poll or Licence to Change Name, or

- a female wishes to revert to the use of her maiden name.

However, there are important exceptions to these rules.

3 Non Anglicised Names

Landgate follows the anglicised conventions in names, endorsing the surname after the given names and (usually) showing the same surname for married couples. Should a woman not wish to use her husband’s name after marriage, she does not have to do so.

Conveyancers can assist the Registrar to maintain accurate records by underlining the surname of transferees. In the interests of consistency, the Registrar will use the same naming convention for all names but realises the difficulties faced by persons from cultures where the use of a variety of names is both custom and legal.

In these cases, it will be sufficient if the document recites:

[name] also known as[name]

and is accompanied by a statutory declaration identifying the person on the document as one and the same as the person on the title. The recital of both names is required to ensure the maintenance of the accuracy of the computer records.

4 Corporation Names

The Corporations Act 2001 provides (among other things) for the allocation to each corporation registered, or to be registered, a distinct registration number.

On the first occasion that the name of a corporation is shown in a document, its registered Australian Company Number (A.C.N.) must also be shown. The A.C.N. must also be shown in the common seal. It is not necessary to show the A.C.N. in the sealing clause where the common seal has been affixed.

If a corporation executes a document without using the common seal, the A.C.N. must be shown in the sealing clause.

On 29th May 2000 the Corporations Regulations were amended to include the use of the Australian Business Number (A.B.N.).

The new regulations modify the law only to the extent that if a corporation has an A.B.N., it may use the A.B.N. with its company name in place of its A.C.N. on documents and negotiable instruments, provided that:

- the A.B.N. includes the company’s A.C.N. as the last nine digits

and

- the quotation of the A.B.N. is effected in the same manner in which quotation of the A.C.N. would normally occur, e.g. with the company name where it first appears in the document.

The corporation’s common seal must still show the A.C.N. Where a corporation does not have a common seal or does not use a common seal to execute documents (see s.127 of the Corporations Act 2001), their attestation clause can show their A.B.N. where it meets the requirement outlined in the first dot point above.

Corporations registered under State legislation, such as Building Societies and Credit Unions were also allocated a number, called an Australian Registered Body Number (A.R.B.N.), if they wished to operate out of their State of registration. The effect of the law is that any document at Landgate showing as a party a corporation registered in another State must show after the name its A.R.B.N. number. The number should be shown in the attestation clause but not in the common seal.

5 Addresses and Address Requirements

The present address of the parties to a document must be shown. Where a person dealing with land (for instance, by entering into a lease) has changed address, the present address should be shown followed by the former address. For example:

"A of (present address) formerly of (previous address)."

As the address shown on the title is used for the service of notices, every effort should be made to ensure the accuracy of the information given. Landgate will accept any alteration of address authenticated by the person whose address it is or the agent, solicitor or banker of that person.

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

When preparing a transfer, it is acceptable to show the new or proposed address of the transferee (purchaser), thus ensuring that any following notices are received.

5.1 On 12 May 2016, Landgate made changes to address requirements for Western Australia’s land registry forms

Landgate uses AS 4590 – 2006 Address Standards for recording addresses for statutory and commercial purposes.

It is strongly recommended that Conveyancers comply with the following basic rules from AS 4590 when entering addresses onto Western Australia’s land registry forms.

These addresses are provided to Landgate within title dealings – in both paper and electronic formats - to enter onto the Register to be primarily used for the service of any notices required to be sent to the registered proprietors.

Following these standards will significantly increase the efficiency of processing paper-based title dealings, reduce delays and assist in accurate delivery of important notices to registered proprietors. When in doubt, the format returned by the Landgate Address Verification Service, where applicable, should be used.

5.2 AS4590 – 2006 Address Standards

Punctuation

Unless specifically part of the address, such as a hyphen in a range of numbers (eg 17-18), punctuation, including commas and full stops, should not be captured in address information.

Acceptable format: 1 Midland Square MIDLAND WA 6056

Post Office Box

Post Office Box information should be shown in an abbreviated format and capitalised. Private Mail Bag Service should be shown as ‘PRIVATE BAG’ and General Post Office Box should be shown as ‘GPO BOX’.

Acceptable format: PO BOX 2222 MIDLAND WA 6936

Care of

In Australia, ‘Care of’ is used where a letter etc. is to be delivered and entrusted to another person or company.

Consequently, ‘Care of’ should only be used on land transaction forms when immediately followed by the name of a person or company. References to ‘Care of’ should be listed in full (not as C/-).

Acceptable format: Care of Joe Citizen of PO BOX 2222 MIDLAND WA 6936

Street addresses

Street names, types, suffixes, prefixes and directional indicators should be shown in full, generally without punctuation.

Acceptable formats:

- Sixth Avenue MOUNT LAWLEY WA 6050 (not 1 6th Ave MT LAWLEY)

- Cottonwood Place O’CONNOR WA 6163 (not 7 Cottonwood Place O’CONNOR)

- Chandler Avenue East FLOREAT WA 6014 (not 3 Chandler Avenue E FLOREAT)

- Kulin-Lake Grace Road NORTH LAKE GRACE WA 6353 (not 6153 Kulin Lake Grace Rd (NTH LAKE GRACE)

Please note that both Unit 1 79, 1/79 and Unit 1, 79 Second Avenue MOUNT LAWLEY WA 6050 are all acceptable.

Suburbs, localities and cities

Suburbs and localities are to be fully spelled out and capitalised (e.g. ‘MOUNT), except that ST shall be used for SAINT).

Acceptable formats:

- City Road MOUNT HAWTHORN WA 6016

- Victoria Street ST JAMES WA 6102

States and postcodes

For Australian addresses, the state/territory and postcode (capitalised, abbreviated and without punctuation) are to be included.

State abbreviations should be depicted as shown in the following table:

State/Territory

State Code

Australian Capital Territory

ACT

New South Wales

NSW

Northern Territory

NT

Queensland

QLD

South Australia

SA

Tasmania

TAS

Victoria

VIC

Western Australia

WA

Acceptable format: 1 Melbourne Street MELBOURNE VIC 3000

International addresses

The listing of an overseas address is to include the country (capitalised and not abbreviated). Street names, types, suffixes, prefixes and directional indicators should be shown in full, in accordance with local usage, without punctuation.

Acceptable formats:

- Brompton Road LONDON SW1K 7XL UNITED KINGDOM

- Glenwood Drive WESTERVILLE OHIO 43081 UNITED STATES OF AMERICA

Western Australian addresses

Landgate recommends that all Western Australian (not national or international) addresses that are to be entered into the EAS2 system or into legal documents are checked for accuracy and formatting via the Address Verification Service on Landgate’s website.

Only a valid returned address should then be entered into EAS2 or the legal form. The tool contains a follow-up notification for any queries relating to failed addresses.

Please note that this service will soon be enhanced to include the state of ‘WA’ in the resulting address. Please remember to include ‘WA’ in the address until this is implemented.

5.3 Transitional Implementation

The addressing standards described above are intended to apply to all paper land transaction documents in which the address for service of notices is required.

The initial focus will be on capturing the correct and consistent addresses of the transferees in transfer of land documents. In dealing cases where a mortgage follows a transfer, Landgate will apply the address of the transferee to the certificate of title.

From Monday 1 August 2016, Addresses are no longer be required in the mortgagor panel of mortgage forms lodged in paper. However, where addresses are provided they will be accepted in any format on these forms.

Mortgage documents will not then be sufficient to effect a change of the registered proprietor’s address on a certificate of title. Clients are to be directed to the appropriate form, generally NA1, where necessary.

The current Lodgement Acceptability Check (LAC) will be modified to remove the check of addresses on mortgage documents. It will continue to check that other related documents where addresses are required are consistent.

6 Occupation

6.1 Adults

The occupation of every witness to a document and of every person swearing a statutory declaration is an essential part of his or her description and MUST be stated.

Note: This is not a requirement for electronically lodged documents.

6.2 Minors

In law every person under the age of eighteen years is considered a minor. The date of birth of a minor is an essential part of his or her description and must be shown (s.59 of the TLA). To show a minor, the words 'a minor born the [dd] day of [month], [yyyy]' are added after the name and address of the person.


DOC-03 Amendment of Documents

Version 2 - 23/05/2018

The information provided in this guide is not intended to amount to legal advice. Professional assistance may be required to determine the most appropriate action to protect your legal rights. Please read our Terms of Use on the Land Titles Registration policy and procedure guides web page. Landgate accepts no responsibility where parties print this guide and seek to rely on information that is out of date.

1 Amendment of Documents before Lodgement

An omission or error in a document noticed before it is lodged should be corrected and the correction authenticated by the party to the document affected by the correction.

In most instances amendments can be made by solicitors and settlement agents acting on behalf of their clients.

However, there are amendments that cannot be made by solicitors, settlement agents which include:

- Amendments or inclusions to the tenancy shown in the transferee panel of a transfer document.

- Alterations/amendments to the land description

- Substitution of a completely different name of a party

- Deletion of a name from a transferee’s panel of a transfer document

- the substitution of a completely different number in the registered number of an encumbrance being discharged or withdrawn (an amendment of no more than 2 numbers or an addition, deletion or transposition of numbers is acceptable provided that the number being changed is not an encumbrance on that Certificate of Title).

Where any of the above amendments are required, the written consent of each party affected by the amendment/inclusion will be required. The written consent must clearly indicate the nature of the amendment/inclusion and include the full signatures of the parties to the documents. The completion of a new document will often provide the best solution to amending errors in prepared documents.

Where an authorised amendment is made by a solicitor, settlement agent the amendments made are to be verified by a statement on either the face or back of the document or in an accompanying letter on a letterhead in the following form:

I . . . (insert full name) . . . am the (solicitor / settlement agent) for the transferee / transferor / etc.). I have made or authorised and I have authority to make and to authorise on behalf of such person(s) the amendments(s) (hereon / on the reverse hereof) countersigned by me.

Signed: . . . . . . . . . . . . . .

Witnessed: . . . . . . . . . . . . . .

Dated: . . . . . . . . . . . . . .

2 Amendment of Documents after Lodgement

After a document has been lodged but not yet registered, minor alterations to the document, not being matters of substance affecting the intention of the parties, can be made (at the discretion of the Registrar) on receipt of a request in writing, detailing the alteration to be made.

Written requests to amend will be accepted if the letter of request names the person(s) for whom the author of the letter is acting (who must be the person(s) detrimentally affected by the amendment) and certifies that the authority to make the amendment has been obtained. Such letters will only be accepted from:

- A solicitor or firm of solicitors, in which case the request must be on letterhead paper and signed by the solicitor or a principal of the firm.

- A settlement agent, in which case the request must be on letterhead paper and signed by a principal of the firm.

- A bank or a trustee company on its official stationery and signed by a manager or a nominated senior securities officer.

A private person who is personally affected by the required amendment may also by letter, request the amendment of a document.

Written requests to amend will not be accepted from the party lodging the document where the lodging party is:

- an estate agent or a firm of estate agents

or

- a private person who is not personally affected by the required amendment.

In these cases, the request to amend must be signed by the party to the instrument affected by the required amendment.

3 Patent Errors

The Registrar is empowered to correct patent errors in instruments after they have been lodged for registration. To make a correction the offending words or figures are ruled through so as not to obscure the original words or figures and the correct words or figures are substituted (s.189 of the TLA).

4 Also See

- Getting it Right brochure


DOC-04 Statutory Declarations and Supporting Evidence

Version 2 - 12/02/2018

The information provided in this guide is not intended to amount to legal advice. Professional assistance may be required to determine the most appropriate action to protect your legal rights. Please read our Terms of Use on the Land Titles Registration policy and procedure guides web page. Landgate accepts no responsibility where parties print this guide and seek to rely on information that is out of date.

1 Declarations Made for the Purposes of the TLA

Unless another written law provides otherwise, a statutory declaration made for the purposes of the Transfer of Land Act 1893 (TLA) must be made in accordance with s.12 of the Oaths, Affidavits and Statutory Declarations Act 2005 (OASD Act).

Section 12(2) of the above Act specifies that the statutory declaration must be in the form of Schedule 1 of that Act.

Statutory Declarations lodged with the Registrar of Titles may be made on a Form B3 Statutory Declaration. This form may be downloaded from Landgate’s website.

If a statutory declaration is lodged with the Registrar of Titles for the purposes of the TLA that is not made in accordance with s.12 of the OASD Act, it will need to be considered on a case by case basis to determine whether or not it will be acceptable (for the purposes for which it was lodged).

2 Form

Schedule 1 of the OASD Act, prescribes a form to be used when a statutory declaration is being made, as follows:

I,

(name, address and occupation of person making the declaration)

sincerely declare as follows –

(insert content of the statutory declaration; use numbered paragraphs if content is long)

This declaration is true and I know that it is an offence to make a declaration knowing that is false in a material particular.

This declaration is made under the Oaths, Affidavits and Statutory Declarations Act 2005 at (place)

on (date)

by -

(Signature of person making the declaration)

in the presence of –

(Signature of authorised witness)

(Full name, address and qualification of authorised witness)

There is a printed Form B3 available for statutory declarations (see Form Example 12). It is recommended that the printed form be used for short declarations. Where the content is likely to exceed one page, the declaration should be prepared on plain good quality bond paper. In these cases, the formal attestation should appear on the last page. Other pages should be signed at the foot by the declarant and the authorised witness.

3 Witnessing Statutory Declarations

Section 12 of the OASD Act outlines a procedure to be followed by the person making the statutory declaration and the authorised witness. The person who is making the statutory declaration must in the presence of an authorised witness declare orally:

- that he or she is the person named as the maker of the statutory declaration

- that the contents of the statutory declaration are true

and

- that the signature or mark is his or hers; and if necessary, that any attachment to the statutory declaration is the attachment referred to in it.

After the maker of the statutory declaration has complied with the above, the authorised witness must:

- sign or personally mark the statutory declaration

- sign or initial any alteration in the statutory declaration that has been signed or initialled by the maker

and

- imprint or clearly write his or her full name, address and qualification as an authorised witness.

4 Authorised Witnesses inside Western Australia

An authorised witness for a statutory declaration that is made at a place in Western Australia is:

- any person described in the second column of Schedule 2 of the OASD Act

or

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

The informal descriptions of persons described in Schedule 2 of the OASD Act are listed below:

Authorised Witnesses

Academic (post-secondary institution)

Accountant

Architect

Australian Consular Officer

Australian Diplomatic Officer

Bailiff

Bank manager

Chartered secretary

Chemist

Chiropractor

Company auditor or liquidator

Court officer

Defence force officer

Dentist

Doctor

Electorate officer of a member of State Parliament

Engineer

Industrial organisation secretary

Insurance broker

Justices of the Peace

Landgate officer

Lawyer

Local government CEO or deputy CEO

Local government councillor

Loss adjuster

Marriage celebrant

Member of Parliament

Minister of religion

Nurse

Optometrist

Patent attorney

Physiotherapist

Podiatrist

Police officer

Post office manager

Psychologist

Public notary

Public servant (Commonwealth and State)

Real estate agent

Settlement agent

Sheriff or Deputy Sheriff

Surveyor

Teacher

Tribunal officer

Veterinary surgeon

Note: For the full formal description of authorised witnesses for statutory declarations refer to Schedule 2 of the Oaths, Affidavits and Statutory Declarations Act 2005.

5 Authorised Witnesses outside Western Australia

An authorised witness for a statutory declaration made under the OASD Act is specified in s.12(6) of that Act.

If the statutory declaration is made at a place outside Western Australia, but within Australia then an authorised witness is:

- any person who, under the law of that place, has authority to take or receive a statutory, solemn or other declaration;

or

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

If the statutory declaration is made outside Australia, then an authorised witness is:

- a prescribed consular official who is performing official functions at that place

- a person who is a justice or notary public under the law of that place

or

- a person who has authority under the law of that place to administer an oath to another person or to take, receive or witness a statutory, solemn or other declaration.

A prescribed consular official means:

- an Australian Consular Officer, or an Australian Diplomatic Officer, within the meaning of the Commonwealth Consular Fees Act 1955;

- a British consul or vice consul

or

- an official prescribed by the regulations to be a prescribed consular official.

6 Content

The person making the statutory declaration should state his or her full name, address and occupation and, following the form provided in Schedule 1 of the OASD Act should state:

- the capacity in which the declaration is made i.e. as registered proprietor, as trustee, etc.

- where the declarant is not a party to the document, the means of knowledge for the statements made

- the volume and folio reference to the land in all cases and, where a mortgage, charge or lease is dealt with, the number of the instrument to which the declaration refers

- the facts applicable to the matters being declared

- any further information pertinent to the matters declared

- what evidence is produced or attached

- an identifying description such as a letter or number for each attachment (and that identifying description should be marked on each attachment)

and

- where the declaration is in support of a caveat, it must give precise details of the estate and interest claimed in the land.

7 Declarations by Two or More Persons

Where a declaration is made by two or more persons, they should declare jointly and severally and there should be a separate execution and attestation for each person.

8 Amendments to a Declaration

8.1 Before first execution

Where errors are noticed prior to first execution the offending words should be struck out and, if necessary, substitution made. The person making the declaration and the authorised witness must initial such amendments and then complete the formal attestation.

8.2 After first execution

Very simple errors may be amended and initialled by the person making the statutory declaration and having it re-declared before the same or another authorised witness. Major amendments should be made by preparing and executing a new statutory declaration.

9 Evidence Produced

As the evidence listed below is returned to the lodging party at the time of lodgement, it need not be formally attached to a declaration, but must be specifically referred to in the declaration (e.g. Produced herewith is a certified copy of my marriage certificate). Landgate requests that when lodging evidence that a photocopy of single sheet evidence, such as marriage and birth certificates, and the original documents, be presented to enable the photocopy to be certified ‘Original Sighted" by a Landgate Officer, with the original item being returned to the lodging party.

Death Certificates Birth Certificates

Marriage Certificates Advice of Bankruptcy

Change of Name Certificates Grants of Probate

Appointment of Liquidator Trustee Certificate

Letters of Administration

Evidence originating from outside of Australia which is not in English script is required to be accompanied by a translation of that document.

9.1 Certification of Evidence by Australia Post

The Registrar of Titles has now authorised Australia Post to certify original documents that are required as evidence to support documents lodged at Landgate. The rules pertaining to the types of evidence required by Landgate have not changed. Anyone who is required to produce original documents that are needed as evidence to support a "Landgate transaction" may now take their original documents to an authorised Australia Post outlet for certification.

Australia Post will:

- Ensure that the document is an authentic original or certified copy issued from the correct relevant authority.

- Make a photocopy of the original (all pages)

- Certify that it is a true copy of an original document sighted by Australia Post.

- Every page of the evidence must be certified.

- Australia Post will then return the Original and the "Australia Post certified copy" to the Client.

Australia Post will not send anything to Landgate. It will be up to the client to pass the certified copies onto their Lawyer or Settlement Agent or to include the certified copy when lodging their documents at Landgate.

Landgate will not accept any certified copies of evidence, unless;

- The certified copies are included within the documents that need them when they are lodged at Landgate

or

- The certified copy is required for an existing document that has already been lodged at Landgate. In this instance the client must always provide a current (active) Landgate document reference number before it can be accepted.

Note: This service will not be available at all Australia Post outlets and a fee will be charged for the service. For details, see the Australia Post website:  https://auspost.com.au/.

9.2 Court Orders and SAT Orders

Some Court Orders and Orders issued by the State Administrative Tribunal (SAT) have now started to issue electronically. Where an electronically issued Order is lodged as supporting evidence, Landgate will not certify the evidence as ‘Original Sighted’. Where it is clear that the Order was issued electronically the Order will be accepted.

Landgate will only certify an electronically issued Order where the Order contains original Duty endorsement.

10 Attachments

Attachments should be identified by letter or number and referred to as such in the declaration. Sequential numbering or lettering of the attachments is required where more than one is attached. The identifying description (letter or number) should also be marked on each document.

Attachments are part of the statutory declaration and will therefore be retained by Landgate.

11 Also see

- CAP-02 Incapable Persons


DOC-05 Tenancy

Version 1 - 09/08/2017

The information provided in this guide is not intended to amount to legal advice. Professional assistance may be required to determine the most appropriate action to protect your legal rights. Please read our Terms of Use on the Land Titles Registration policy and procedure guides web page. Landgate accepts no responsibility where parties print this guide and seek to rely on information that is out of date.

1 Overview

Tenancy only needs to be considered where there is co-proprietorship in an interest in land. In a co tenancy between proprietors of land, each proprietor has an interest in the whole of the parcel of land.

The tenancy between co-proprietors of an interest in land is a matter that must be decided at the time of entering into a legally binding contract. Tenancy between co-proprietors is created in the document that is lodged for registration at Landgate, usually in accordance with an Offer and Acceptance of a Contract of Sale.

When a joint tenancy is discussed, an interest as a joint tenant is referred to as having an interest in land.

When a tenancy in common is discussed, a tenant in common is referred to as having an equal or undivided share in land.

2 Sole Owner

A deceased sole proprietor of land can be bequeathed under the Will of the deceased or under the Administration Act 1903.

A Transmission Application is lodged to register the Executor or Administrator on the title in place of the deceased registered proprietor.

3 Joint tenants

Each proprietor has an equal interest in the whole of the parcel of land. Joint tenancy commonly occurs in the husband and wife situation, but it is possible (but not common) for corporations to hold land as joint tenants, or for a person and a corporation to hold land as joint tenants.

The main feature of a joint tenancy is a right of survivorship. When one of the joint tenants dies their interest is extinguished, and the surviving joint tenants interest is correspondingly enlarged.

The four essential elements of a joint tenancy:

Unity of time

The interest of each joint tenant must commence at the same time and by virtue of the same event.

Unity of title

All joint tenants must derive their interest from the same document or via the same act.

Unity of possession

Each joint tenant has legal possession over the whole of the land. One of the co-owners is not entitled to exclusive possession of any part of the land.

Unity of interest

Each co-owner has the same interest in the land (an undivided equal interest).

All the above four elements must exist for a joint tenancy to be created.

For example:

A - B - C as joint tenants

A sells to D B and C as joint tenants of two third shares and

D of one third share, as tenants in common.

A joint tenancy can be severed by:

Death

Transfer of interest as a joint tenant

Simultaneous death of joint tenants – Section 120 of the Property Law Act prescribes that the proprietors are then tenants in common.

Murder – at law a person cannot profit from an illegal act. Therefore, if a joint tenant is convicted of murdering a co-joint tenant, the survivorship can be refused.

Where a person unilaterally transfers their interest as a joint tenant in land (to effect the severance of the joint tenancy – no valuable consideration expressed) then the Transfer of Land must be registered prior to the death of the Transferor. Otherwise the Courts may set the transfer aside because the Transferor had not completed the gift of the interest in the land.

The main feature of a joint tenancy is that, upon the death of one joint tenant, the surviving joint tenant(s) become the registered proprietor of the land by Survivorship Application.

Where no tenancy is expressed in a Transfer of Land, then Section 60 of the Transfer of Land Act deems the co-proprietors to be joint tenants. In digital titles, a tenancy will always be stated in the proprietorship section of the title.

4 Tenants in common

This a co-tenancy between proprietors of land, with each proprietor having an undivided share in the whole of the land. Each proprietor is legally entitled to possession of the whole parcel unless exclusive use agreements are made between the proprietors. The unity of possession is the only essential element that applies to a tenancy in common.

Common instances of a tenancy in common include husband and wife situations, or farming properties, time share developments, retirement villages, corporations, etc.

It is possible for a separate Certificate of Title to be issued for each undivided share in the land parcel, but this no longer a common practice.

The undivided share of a deceased proprietor of land can be bequeathed under the Will of the deceased or under the Administration Act 1903.

A Transmission Application is lodged to register the Executor or Administrator on the title in place of the deceased registered proprietor.

5 Multiple co-tenancy arrangements

Where persons desire to hold land as tenants in common but some of them, between themselves, desire to create a joint tenancy as to their share, the transferee panel should show:

James Smith, and Mary Smith, both of 10 Kew Street PERTH WA 6001, as joint tenants of one undivided half share and Thomas Jones of 5 Timm Street BALGA WA 6061, of one undivided half share, as tenants in common.

or

James Smith, and Mary Smith, both of 10 Kew Street PERTH WA 6001, as joint tenants, of one undivided half share and Thomas Jones, and Jane Jones, both of 5 Timm Street BALGA WA 6061, as joint tenants, of one undivided half share, as tenants in common.

or

James Smith and Mary Smith, both of 10 Kew Street PERTH WA 6001, as joint tenants of two undivided fourth shares, Thomas Jones of one undivided fourth share and Jane Jones of one undivided fourth share, both of 5 Timm Street BALGA WA 6061, as tenants in common.

In the case of a digital title, tenants in common will only receive one duplicate certificate of title showing all their shares noted on that one duplicate certificate of title. If a separate duplicate certificate of title is required for each tenant in common’s share, separate paper titles can be created and registered for the respective shares of the transferees.

The request should be typed or written on the transfer form and signed by each new transferee or by the transferee’s solicitor or agent. A further fee is payable for each additional certificate created. (Click on the following link for a list of the current Lodgement and Search fees payable.)


DOC-06 Memorandum of Common Provisions

Version 2 - 28/02/2018

The information provided in this guide is not intended to amount to legal advice. Professional assistance may be required to determine the most appropriate action to protect your legal rights. Please read our Terms of Use on the Land Titles Registration policy and procedure guides web page. Landgate accepts no responsibility where parties print this guide and seek to rely on information that is out of date.

1 Overview

It is possible to simplify the document production, checking and recording processes, both for conveyancers and Landgate, by separating the components of documents such as mortgages and leases into two documents.

The statutory or registration components of both documents can be made into a simple, short form mortgage or lease, leaving the contractual component as a Memorandum of Common Provisions. A short form mortgage would contain land description, estate and interest, encumbrances, mortgagor, mortgagee and perhaps (but not necessarily) details of the principal sum, interest and repayments. It would also contain the operative words of formal mortgage and a clause referring to the Memorandum of Common Provisions incorporating its terms and provisions in the mortgage and the formal attestation by the parties.

The Memorandum of Common Provisions would contain all the other elements that made up the formal mortgage document or lease. Care should be taken by conveyancers to ensure that the provisions of the memorandum do not conflict with any statute, especially in such matters as notice provisions, where the provisions of the TLA must prevail over any other listed forms agreed to by the parties.

It is possible, however, to create a provision in a memorandum in general terms, to achieve both compliance with the Statutes and the wishes of the parties. For instance, a notice provision could be expressed as:

"except where expressly required to be given in a particular manner by Statute, notice may be given by ........"

Similar drafting may be used to ensure that default and other provisions are not in conflict with the TLA. While Landgate has a policy of making every effort to register the document in a format required by the parties, it will not register documents containing provisions in direct conflict with the requirements of Statutes.

The use of the technique shown in the example is encouraged as it permits the use of standard provisions in all States and ensures that the document does not become obsolete by any amendment to the legislation.

Memoranda of common provisions for mortgages and leases are lodged, numbered and stored in the same manner as all other documents. They are examined by the Lead Consultant, Dealings Section in the Registrations Branch, who will notify the lodging party of any requisitions.

Clients should ensure that the memoranda of common provisions have been accepted before committing to extensive printing orders.

2 Form

There is no specific form for a Memorandum of Common Provisions, a Blank Instrument Form (B2) may be used, if desired. The document must be consecutively page numbered, be duplex printed and where applicable contain adequate headings.

3 Also see

- DOC-01 Document Preparation


SIG-01 Signing of Documents

Version 1 - 30/06/2017

The information provided in this guide is not intended to amount to legal advice. Professional assistance may be required to determine the most appropriate action to protect your legal rights. Please read our Terms of Use on the Land Titles Registration policy and procedure guides web page. Landgate accepts no responsibility where parties print this guide and seek to rely on information that is out of date.

1 Overview

The following information relates to documents executed in Australia. For the signing and witnessing of land transaction documents outside of Australia, please refer to SIG-07 Signing and Witnessing of Documents by a Person Overseas .

Instruments under the Act signed by any person and attested by one witness are duly executed under section 145(1)(a) of the TLA, where:

- the witness is not a party to the instrument

- the witness has signed the document

- the witness is an adult and there appears on the instrument the full name, address and occupation of the witness, in English script below the witness’ signature. The details of the witness must be able to be clearly read by the Registrar of Titles

- the instrument is signed within Australia or a Territory of Australia including the Cocos (Keeling) Islands or Christmas Island

and

- the signature of each person is separately attested.

Signatures must be in ink. The use of black or blue ballpoint or felt tips pens is recommended when signing.

A party to a document must sign using their usual signature, which may be by printing the name, or using English or other language script, thumb print or other mark. To assist communication with witnesses, if necessary, it would be helpful if the telephone number at which the witness can ordinarily be contacted during business hours is added after his or her occupation.

The Registrar expects signatures to be written, not printed, and the presence of a printed name on a document raises the question of whether the document has been signed. Where the printed signature is duly witnessed, the witness is testifying that the document has been signed, but where the printed signature is that of the witness there is a possibility of a later denial, both as to the witness and the party to the document. In cases where the signature of a witness is printed the Registrar will request confirmation that the witness did indeed witness the attestation of the document, and that the signature on the document is the normal signature of the witness.

Where an instrument is executed but not witnessed in the manner provided above and the genuineness of the signature and handwriting of the person signing is proved to the satisfaction of the Registrar, by the statutory declaration of a person well acquainted with the person signing, who:

- identifies the instrument for which the declaration is required or supplied

- declares positively that the signature thereon is the true signature and handwriting of the person executing the instrument, and

- states how and over what period the declarant has obtained a sufficient knowledge of the signature and handwriting of that person,

then the instrument may be accepted for registration by virtue of s.145(3) of the TLA.

2 Also see

- SIG-02 Signing by Mark or Cross 

- SIG-03 Signing by a Corporation

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

- SIG-05 Signing by an Incorporated Association

- SIG-06 Signing of Electronic Documents

- SIG-08 Signing by an Attorney under (Enduring) Power of Attorney

- SIG-09 Signing by a Local Government

- SIG-10 Signing by a Minor

- SIG-11 Signing by a Partnership

- SIG-12 Signing by a Registered Friendly Society

- SIG-13 Signing by Aboriginal and Torres Strait Islander Corporations


SIG-02 Signing by Mark or Cross

Version 1 - 16/06/2017

The information provided in this guide is not intended to amount to legal advice. Professional assistance may be required to determine the most appropriate action to protect your legal rights. Please read our Terms of Use on the Land Titles Registration policy and procedure guides web page. Landgate accepts no responsibility where parties print this guide and seek to rely on information that is out of date.

1 Overview

Where a person is physically unable to sign his or her name, he or she may still execute a document by making a mark. Where a document is executed by a person who makes a mark, an attestation clause setting out the nature of the incapacity and certifying that the person fully understood the nature and effect of the document signed must be used. Emphasis is placed on ensuring that the person making a mark understands the consequences of the registration of the document. For this reason, care should be exercised in the choice of a witness.

The interpreter should be the witness, or if not, he or she must also sign the document and have his or her signature witnessed.

2 Examples of Marksman’s Clauses

2.1 A person who understands English but cannot write

Signed by (Name of Marksman) by making ) (His or Her)

(his or her) mark, (he or she) being incapable ) (Name of + Marksman)

of signing (his or her) name in the presence of ) (Mark)

Witness

(Full Name, Address and Occupation)

2.2 A person who understands English but cannot read or write

Signed by (Name of Marksman) by making ) (His or Her)

(his or her) mark, (he or she) being unable to ) (Name of + Marksman)

read or write, after this instrument had ) (Mark)

been read and explained to (him or her) and )

(he or she) then appearing to understand fully )

its nature and effect in the presence of )

Witness

(Full Name, Address and Occupation)

2.3 A person who does not understand English and cannot write

Signed by the said (name of Marksman) by

making (his or her) mark, (he or she) being )

unable to read or write in the English language )

after this instrument had been read and ) (his or her)

explained to (him or her) in (name of language) ) (name of Marksman)

by (name of Interpreter), a person ) (Mark)

understanding both languages, (he or she) then )

appearing to understand fully its nature and )

effect in the presence of )

Signature of Interpreter

(Full Name, Address and Occupation)

The interpreter should be the witness, or if not, he or she must also sign the document and have his or her signature witnessed.

2.4 A person who does not understand English but who can write

In this case also, care should be taken in the choice of a witness:

Signed by the said (name of person) (he or she) )

being unable to read in the English language )

after the same having been read and explained )

to (him or her) in (name of second language) )

by (Name of Interpreter), a person ) (Signature of Person)

understanding both languages (he or she) )

then appearing to understand fully its nature )

and effect in the presence of )

Signature of Interpreter

(Full Name, Address and Occupation)

The interpreter should be the witness, or if not, he or she must also sign the document and have his or her signature witnessed.

2.5 A person who understands English but is visually impaired

Signed by (Name of Marksman) by making ) (His or Her)

(his or her) mark, (he or she) being incapable ) (Name of + Marksman)

of signing (his or her) name in the presence of ) (Mark)

Witness

(Full Name, Address and Occupation)

3 Also see

- SIG-01 Signing of Documents


SIG-03 Signing by a Corporation

Version 1 - 14/02/2018

The information provided in this guide is not intended to amount to legal advice. Professional assistance may be required to determine the most appropriate action to protect your legal rights. Please read our Terms of Use on the Land Titles Registration policy and procedure guides web page. Landgate accepts no responsibility where parties print this guide and seek to rely on information that is out of date.

1 Overview

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

- execute documents under seal

or

- choose not to have a company seal and therefore execute documents without using a seal.

If a company has a seal, it is not obliged to use it for the execution of documents. Documents executed by a corporation do not require witnessing by a qualified witness.

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

or

- 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,

or

- executes a document without a common seal.

The person lodging the document for registration is required to provide a true or authentic copy of the 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

common seal example
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

- SIG-01 Signing of Documents

- Verification of Identity web page


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

Version 1 -  30/06/2017

The information provided in this guide is not intended to amount to legal advice. Professional assistance may be required to determine the most appropriate action to protect your legal rights. Please read our Terms of Use on the Land Titles Registration policy and procedure guides web page. Landgate accepts no responsibility where parties print this guide and seek to rely on information that is out of date.

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.

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)

sample Common Seal

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)

or

- a person entitled to enforce a charge on substantially, the whole of the Company’s property (s.436C).

Once the Administrator is appointed, their appointment cannot be revoked, but may be terminated by an order of the Court (s.447A and 449A). The Court has power to appoint an Administrator under s.449B of the Corporations Act 2001.

Notice of the appointment of the Administrator is required to be given under the Corporations Law and this Notice of Appointment must be lodged with the Australian Securities Investments Commission. The appointment of an Administrator has no effect upon the Company’s legal personality, its legal persona remains intact and there is no change in its legal status.

However, as a general rule, dealings by an Administrator affecting real property of the Company are void unless entered into:

- by the Administrator on behalf of the Company, 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

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)

sample Common Seal

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.

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)

sample Common Seal

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.

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)

)

sample Common Seal

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-01 Signing of Documents


SIG-05 Signing by an Incorporated Association

Version 2 - 21/11/2018

The information provided in this guide is not intended to amount to legal advice. Professional assistance may be required to determine the most appropriate action to protect your legal rights. Please read our Terms of Use on the Land Titles Registration policy and procedure guides web page. Landgate accepts no responsibility where parties print this guide and seek to rely on information that is out of date.

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.

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

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 Incorporated

was hereunto affixed in the presence of

Signature of President

(Print Full Name)

President

Signature of Secretary

(Print Full Name)

Secretary

sample Common Seal

Where documents are executed without a common weal, 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 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.

6 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-01 Signing of Documents


SIG-06 Signing of Electronic Documents

Version 1 - 16/06/2017

The information provided in this guide is not intended to amount to legal advice. Professional assistance may be required to determine the most appropriate action to protect your legal rights. Please read our Terms of Use on the Land Titles Registration policy and procedure guides web page. Landgate accepts no responsibility where parties print this guide and seek to rely on information that is out of date.

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

- SIG-01 Signing of Documents


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

Version 2 - 01/10/2018

The information provided in this guide is not intended to amount to legal advice. Professional assistance may be required to determine the most appropriate action to protect your legal rights. Please read our Terms of Use on the Land Titles Registration policy and procedure guides web page. Landgate accepts no responsibility where parties print this guide and seek to rely on information that is out of date.

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

(b) 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.

The Registrar will not consider travel alone or mere inconvenience as exceptional circumstances. There must be some other exceptional or unusual circumstances fully explained, such as a person with a medical condition making it dangerous for them to travel, defence personnel on active duty overseas, etc.

Requests seeking the Registrar’ approval to use an alternative witness must be made in writing by the Conveyancer / Lawyer / Mortgagee acting for the person transacting. The request must explain fully the exceptional circumstances and must be made prior to the execution (signing) and witnessing of the Paper Instrument or mortgage. All such requests must identify the land by volume and folio number as well as state the name of the person transacting and settlement date. Written requests should be emailed to VOIpractice@landgate.wa.gov.au.

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

- SIG-01 Signing of Documents

- Verification of Identity web page


SIG-08 Signing by an Attorney under (Enduring) Power of Attorney

Version 1 - 16/06/2017

The information provided in this guide is not intended to amount to legal advice. Professional assistance may be required to determine the most appropriate action to protect your legal rights. Please read our Terms of Use on the Land Titles Registration policy and procedure guides web page. Landgate accepts no responsibility where parties print this guide and seek to rely on information that is out of date.

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-01 Signing of Documents


SIG-09 Signing by a Local Government

Version 1 -  30/06/2017

The information provided in this guide is not intended to amount to legal advice. Professional assistance may be required to determine the most appropriate action to protect your legal rights. Please read our Terms of Use on the Land Titles Registration policy and procedure guides web page. Landgate accepts no responsibility where parties print this guide and seek to rely on information that is out of date.

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

2 Also see

- SIG-01 Signing of Documents


SIG-10 Signing by a Minor

Version 1 - 30/06/2017

The information provided in this guide is not intended to amount to legal advice. Professional assistance may be required to determine the most appropriate action to protect your legal rights. Please read our Terms of Use on the Land Titles Registration policy and procedure guides web page. Landgate accepts no responsibility where parties print this guide and seek to rely on information that is out of date.

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-01 Signing of Documents


SIG-11 Signing by a Partnership

Version 1 - 30/06/2017

The information provided in this guide is not intended to amount to legal advice. Professional assistance may be required to determine the most appropriate action to protect your legal rights. Please read our Terms of Use on the Land Titles Registration policy and procedure guides web page. Landgate accepts no responsibility where parties print this guide and seek to rely on information that is out of date.

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-01 Signing of Documents


SIG-12 Signing by a Registered Friendly Society

Version 1 - 30/06/2017

The information provided in this guide is not intended to amount to legal advice. Professional assistance may be required to determine the most appropriate action to protect your legal rights. Please read our Terms of Use on the Land Titles Registration policy and procedure guides web page. Landgate accepts no responsibility where parties print this guide and seek to rely on information that is out of date.

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-01 Signing of Documents


SIG-13 Signing by Aboriginal and Torres Strait Islander Corporations

Version 1 - 30/06/2017

The information provided in this guide is not intended to amount to legal advice. Professional assistance may be required to determine the most appropriate action to protect your legal rights. Please read our Terms of Use on the Land Titles Registration policy and procedure guides web page. Landgate accepts no responsibility where parties print this guide and seek to rely on information that is out of date.

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

- SIG-01 Signing of Documents


Lodgement and Registration

LOD-01 Lodging of Electronic Documents

Version 1 - 21/07/2017

The information provided in this guide is not intended to amount to legal advice. Professional assistance may be required to determine the most appropriate action to protect your legal rights. Please read our Terms of Use on the Land Titles Registration policy and procedure guides web page. Landgate accepts no responsibility where parties print this guide and seek to rely on information that is out of date.

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). Currently there is only one ELNO – Property Exchange Australia (PEXA).

In 2014, Landgate received its first transaction via PEXA. Since then, Landgate has made lodgement of the following documents possible electronically:

- Discharge of Mortgage

- Mortgage

- Transfer

- Caveat

- Withdrawal of Caveat

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:

Western Australian Participation Rules

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. 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, 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

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.

Here’s how to determine whether your transaction is eligible:

Transfers

- Does the Certificate of Title validation in PEXA allow for that Certificate of Title to be electronically transacted?

- Is there a contract of sale or a written agreement involved?

- Is it dealing on the whole of the land?

- Is the consideration monetary, gift or natural love and affection?

- Can the duty be assessed via Revenue Online (ROL)?

- Are all parties to the deal eligible subscribers?

Caveats

- Does the Certificate of Title validation in PEXA allow for that Certificate of Title to be electronically transacted?

- Is it over the whole of land?

- Does it apply to all registered proprietors?

- Are you representing all caveators?

Withdrawal of caveats

- Does the Certificate of Title validation in PEXA allow for that Certificate of Title to be electronically transacted?

- Is it over the whole of land?

- Are you representing all named caveators in withdrawal?

- Name must be the same or justified to be the same

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.


LOD-02 Lodging of Documents

Version 1 - 08/09/2017

The information provided in this guide is not intended to amount to legal advice. Professional assistance may be required to determine the most appropriate action to protect your legal rights. Please read our Terms of Use on the Land Titles Registration policy and procedure guides web page. Landgate accepts no responsibility where parties print this guide and seek to rely on information that is out of date.

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, a 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 3 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 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:

- How To guides

- Lodgement Acceptability Guide and checklist

- A guide to basic requirements for the preparation of paper documents

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.

3 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.

4 Lodgement by Post

Documents may be lodged by post.

Any person posting documents to Landgate should provide a letter with the originally signed documents, that includes information such as the lodging person’s contact details and notes the documentation being provided by post, together with any other relevant information.

Registration fees must be included with every document that is lodged by post, otherwise documents cannot be accepted for lodgement. Fees can be paid by cheque or money order made payable to "Landgate" or by charging to a credit card. Click on the link to download the Credit Card Payment Authority form.

Any duplicate title or evidence being returned from Landgate by post will be posted out using normal mail. 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

P O Box 2222

MIDLAND WA 6936

5 Also see

- LOD-01 Lodging of Electronic Documents

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


LOD-03 Fees and Transfer Duty

Version 2 - 29/11/2017

The information provided in this guide is not intended to amount to legal advice. Professional assistance may be required to determine the most appropriate action to protect your legal rights. Please read our Terms of Use on the Land Titles Registration policy and procedure guides web page. Landgate accepts no responsibility where parties print this guide and seek to rely on information that is out of date.

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.

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 the Office of State Revenue "OSR" 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 OSR (Duties Division) before the document can be presented to Landgate for lodgement.

OSR 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 OSR.

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

- Surrender of Tree Plantation Interests

- 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: The Office of State Revenue 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-01 Lodging of Electronic Documents

- LOD-02 Lodging of Documents

- LOD-04 Registration


LOD-04 Registration

Version 1 - 12/09/2017

The information provided in this guide is not intended to amount to legal advice. Professional assistance may be required to determine the most appropriate action to protect your legal rights. Please read our Terms of Use on the Land Titles Registration policy and procedure guides web page. Landgate accepts no responsibility where parties print this guide and seek to rely on information that is out of date.

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

or

- 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-01 Lodging of Electronic Documents

- LOD-02 Lodging of Documents

- LOD-03 Fees and Transfer Duty


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

Version 2 - 29/11/2017

The information provided in this guide is not intended to amount to legal advice. Professional assistance may be required to determine the most appropriate action to protect your legal rights. Please read our Terms of Use on the Land Titles Registration policy and procedure guides web page. Landgate accepts no responsibility where parties print this guide and seek to rely on information that is out of date.

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.

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 to Register Strata / Survey-Strata Plan).

- 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-01 Lodging of Electronic Documents

- LOD-02 Lodging of Documents

- LOD-03 Fees and Transfer Duty

- LOD-04 Registration

- LOD-06 Issue of Instruments after 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

The information provided in this guide is not intended to amount to legal advice. Professional assistance may be required to determine the most appropriate action to protect your legal rights. Please read our Terms of Use on the Land Titles Registration policy and procedure guides web page. Landgate accepts no responsibility where parties print this guide and seek to rely on information that is out of date.

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 1 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-01 Lodging of Electronic Documents

- LOD-02 Lodging of Documents

- LOD-03 Fees and Transfer Duty

- LOD-04 Registration

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

- LOD-07 Stopped Documents


LOD-07 Stopped Documents

Version 1 - 22/09/2017

The information provided in this guide is not intended to amount to legal advice. Professional assistance may be required to determine the most appropriate action to protect your legal rights. Please read our Terms of Use on the Land Titles Registration policy and procedure guides web page. Landgate accepts no responsibility where parties print this guide and seek to rely on information that is out of date.

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)

or

- Posted to lodging party or authorised person.

Note: Documents cannot be uplifted via the Perth (Cloisters) office.

Request to uplift documents must:

- be on a company letterhead

- signed personally by the principal or an authorised person of the lodging party

- contain document reference number and name of the Landgate document Examiner (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

or

- by hand (in person) at Midland or Perth (Cloisters) offices.

Corrected documents should be placed inside a sealed envelope addressed to the Landgate Examiner by name (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:

I . . . (insert full name) . . . am the (solicitor / settlement agent) for the transferee / transferor / etc.). I have made or authorised and I have authority to make and to authorise on behalf of such person(s) the amendments(s) (hereon / on the reverse hereof) countersigned by me.

Signed: …………………….

Witnessed: …………………….

Dated: …………………….

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

- LOD-01 Lodging of Electronic Documents

- LOD-02 Lodging of Documents

- LOD-03 Fees and Transfer Duty


Land Ownership, Land titles and Landgate

COT-01 Reading a Certificate of Title

Version 2 - 17/10/2018

The information provided in this guide is not intended to amount to legal advice. Professional assistance may be required to determine the most appropriate action to protect your legal rights. Please read our Terms of Use on the Land Titles Registration policy and procedure guides web page. Landgate accepts no responsibility where parties print this guide and seek to rely on information that is out of date.

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 1 - 31/07/2017

The information provided in this guide is not intended to amount to legal advice. Professional assistance may be required to determine the most appropriate action to protect your legal rights. Please read our Terms of Use on the Land Titles Registration policy and procedure guides web page. Landgate accepts no responsibility where parties print this guide and seek to rely on information that is out of date.

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 and Application to Register Strata / Survey-Strata Plan).

- The Mortgagor/ Transferee may request the non-issue in Forms National Mortgage Form, Charge, Transfer of land with additional pagesTransfer 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

or

- where a second mortgage is being lodged for registration by another mortgagee.

In both instances, a letter of consent to subsequent lodgement from the first mortgagee or annuitant is not required.

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 2 - 12/02/2018

The information provided in this guide is not intended to amount to legal advice. Professional assistance may be required to determine the most appropriate action to protect your legal rights. Please read our Terms of Use on the Land Titles Registration policy and procedure guides web page. Landgate accepts no responsibility where parties print this guide and seek to rely on information that is out of date.

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.

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 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.

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, 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 the Applicant is signing under Power of Attorney, they must state their means of knowledge of the whereabouts of the duplicate certificate of title.

- Where 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.

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.


REG-01 The Transfer of Land Act

Version 1 - 28/02/2018

The information provided in this guide is not intended to amount to legal advice. Professional assistance may be required to determine the most appropriate action to protect your legal rights. Please read our Terms of Use on the Land Titles Registration policy and procedure guides web page. Landgate accepts no responsibility where parties print this guide and seek to rely on information that is out of date.

1 The Legislation and its Purpose

The Transfer of Land Act 1893 (TLA), as amended, 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 extensively in this manual are:

- Transfer of Land Regulations 2004

- Land Administration Act 1997 (LAA) that governs Crown land

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

- Strata Titles Act 1985 as amended (STA)

- 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 Transfer of Land Act (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 Offices and Services

The public registry, required to be maintained by the TLA, is administered by Landgate and is located in Midland Square, Midland. The Land Registration Centre in the Landgate building in Midland is open for inquiries between the hours of 8.30 am to 5.00 pm on Monday to Friday, except public holidays.

A branch office is located on the Terrace Level, 200 St George’s Terrace, Perth, for document lodgement and searching services.

Dealings such as land transfers can be lodged between the hours of 8.30 am to 4.30 pm only.

3 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.

4 Land in the Cocos (Keeling) Islands and Christmas Island

Both the Islands are Commonwealth Territories and are administered by the Commonwealth.

By a series of Commonwealth Acts enacted in 1992 the Shire of Cocos Keeling and the Shire of Christmas Island were created and the property (and other) laws of Western Australia as amended by Commonwealth legislation now apply to both areas. The Islands are still Commonwealth Territories but the laws of Western Australia, as modified and adopted by Commonwealth legislation, are applied. Surveys of both areas have been lodged at Landgate in preparation for the creation of certificates of title for the separate land parcels.

Dealings on these titles (and on leases issued and also lodged at Landgate) may be lodged in the same way as dealings on any other land. Land transaction forms, similar to the normal transfer and other forms issued under the Commonwealth Act, have been printed and are available from the Land Registration Centre in the Landgate building in Midland, from the Shire Offices on the Islands or downloaded free of charge from the Internet via Landgate’s website at http://www0.landgate.wa.gov.au/titles-and-surveys/forms-and-fees/land-titling-forms. Section 8A(1) of the Territories Law Reform Act 104 of 1992 (Commonwealth) provides the legislative base for the application of Western Australian laws to the Territories.

Some variations in the land registration legislation have been made but most of these are extensions of the time limits in the notice provisions to allow for transportation delays between the Midland Office of Landgate and the Territories. Further advice is obtainable from the Advice Officers in the Land Registration Centre in the Landgate building in Midland. This manual contains further details applicable to dealings on land on the Cocos (Keeling) and Christmas Islands under the subject headings.

Information relevant to Commonwealth matters can be obtained from the Department of Environment, Sports and Territories, from the Director or Assistant Director of the Islands Liaison Office, Perth on telephone +61 (0)8 9481 1705.

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

- REG-05 Service of Court Orders on the Registrar


REG-02 The Register

Version 2 - 07/11/2018

The information provided in this guide is not intended to amount to legal advice. Professional assistance may be required to determine the most appropriate action to protect your legal rights. Please read our Terms of Use on the Land Titles Registration policy and procedure guides web page. Landgate accepts no responsibility where parties print this guide and seek to rely on information that is out of date.

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

or

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

Version 1 - 14/07/2017

The information provided in this guide is not intended to amount to legal advice. Professional assistance may be required to determine the most appropriate action to protect your legal rights. Please read our Terms of Use on the Land Titles Registration policy and procedure guides web page. Landgate accepts no responsibility where parties print this guide and seek to rely on information that is out of date.

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

The information provided in this guide is not intended to amount to legal advice. Professional assistance may be required to determine the most appropriate action to protect your legal rights. Please read our Terms of Use on the Land Titles Registration policy and procedure guides web page. Landgate accepts no responsibility where parties print this guide and seek to rely on information that is out of date.

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

or

- the Registrar is put on notice that there may be defective or potentially defective documents that have been registered, lodged and not yet registered or that may be lodged in the future.

By way of example, the need for a Registrar’s Packet arises in the situation where an injunction has been served upon the Registrar of Titles. The Transfer of Land Act contains no provision for an injunction to be recorded on the register. It is therefore necessary to give notice of the injunction by removing the certificate of title from the normal storage area. If this is not done, dealings may be lodged and subsequently registered in breach of the injunction.

The creation of a Registrar’s Packet does not, of itself, prevent lodgement of documents nor changes to the Register. It is possible to obtain information about a Registrar’s Packet that has been created by ordering a Status Report from Landgate’s Customer 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

The information provided in this guide is not intended to amount to legal advice. Professional assistance may be required to determine the most appropriate action to protect your legal rights. Please read our Terms of Use on the Land Titles Registration policy and procedure guides web page. Landgate accepts no responsibility where parties print this guide and seek to rely on information that is out of date.

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

The information provided in this guide is not intended to amount to legal advice. Professional assistance may be required to determine the most appropriate action to protect your legal rights. Please read our Terms of Use on the Land Titles Registration policy and procedure guides web page. Landgate accepts no responsibility where parties print this guide and seek to rely on information that is out of date.

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 1 - 28/02/2018

The information provided in this guide is not intended to amount to legal advice. Professional assistance may be required to determine the most appropriate action to protect your legal rights. Please read our Terms of Use on the Land Titles Registration policy and procedure guides web page. Landgate accepts no responsibility where parties print this guide and seek to rely on information that is out of date.

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:

(i) be prepared on good quality paper approved by the Registrar and having the dimensions of 330mm x 203mm

(ii) be clearly and legibly handwritten in ink (preferably black or blue), printed or typewritten

(iii) have a binding margin on each page of 51mm free of written, printed or typewritten matter with the binding margin on the left hand side of the face sheet and on a corresponding side for all subsequent sheets

and

(iv) 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"

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 1 - 11/07/2018

The information provided in this guide is not intended to amount to legal advice. Professional assistance may be required to determine the most appropriate action to protect your legal rights. Please read our Terms of Use on the Land Titles Registration policy and procedure guides web page. Landgate accepts no responsibility where parties print this guide and seek to rely on information that is out of date.

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.

2     Right to Apply

The right to apply arises:

- where a person or corporation can establish the ownership of land by documentary title (in such cases there will be no requirement to satisfy the limitation periods under the Limitation Act 1935)

or

- where a person or corporation has been in possession of land for the required length of time under the Limitation Act 1935. This period is 12 years where the true owner can be proved to have been under no legal disability at the time possession commenced and 30 years where it cannot be proved that the true owner was not under a legal disability at the time possession commenced. A legal disability may be defined as infancy, idiocy, lunacy or unsoundness of mind

or

- 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 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 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

The information provided in this guide is not intended to amount to legal advice. Professional assistance may be required to determine the most appropriate action to protect your legal rights. Please read our Terms of Use on the Land Titles Registration policy and procedure guides web page. Landgate accepts no responsibility where parties print this guide and seek to rely on information that is out of date.

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 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

The information provided in this guide is not intended to amount to legal advice. Professional assistance may be required to determine the most appropriate action to protect your legal rights. Please read our Terms of Use on the Land Titles Registration policy and procedure guides web page. Landgate accepts no responsibility where parties print this guide and seek to rely on information that is out of date.

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

The information provided in this guide is not intended to amount to legal advice. Professional assistance may be required to determine the most appropriate action to protect your legal rights. Please read our Terms of Use on the Land Titles Registration policy and procedure guides web page. Landgate accepts no responsibility where parties print this guide and seek to rely on information that is out of date.

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.

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) )

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.

In certain cases, minors are given statutory power to deal with their real property. The Land Act 1933 (s.26 and 150) provided that a person over 16 years of age may select, acquire, transfer or hold and mortgage any land under the Land Act 1933. The TLA (s.81G) contains complementary provisions in respect of Crown leases registered under the TLA.

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

1.1 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 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 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 2 – 22/01/2018

The information provided in this guide is not intended to amount to legal advice. Professional assistance may be required to determine the most appropriate action to protect your legal rights. Please read our Terms of Use on the Land Titles Registration policy and procedure guides web page. Landgate accepts no responsibility where parties print this guide and seek to rely on information that is out of date.

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 two (2) days of lodgement of the instrument at Landgate.

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

- POA-01 Powers of Attorney

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


DEC-01 Deceased Proprietor

Version 1 - 27/07/2017

The information provided in this guide is not intended to amount to legal advice. Professional assistance may be required to determine the most appropriate action to protect your legal rights. Please read our Terms of Use on the Land Titles Registration policy and procedure guides web page. Landgate accepts no responsibility where parties print this guide and seek to rely on information that is out of date.

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.

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 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 4 - 17/10/2018

The information provided in this guide is not intended to amount to legal advice. Professional assistance may be required to determine the most appropriate action to protect your legal rights. Please read our Terms of Use on the Land Titles Registration policy and procedure guides web page. Landgate accepts no responsibility where parties print this guide and seek to rely on information that is out of date.

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 Tenant

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 – usually the original death certificate issued by Births, Deaths and Marriages, or sighted by Landgate or Australia Post. An original grant of probate or letters of administration of the deceased issued by the Probate Office is also acceptable evidence;

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

and

- 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:

(i) identify the declarant(s)

(ii) identify the land being dealt with by its volume and folio reference in all cases, and where a mortgage, charge or lease of land is being dealt with, the number of that instrument

(iii) contain the statement:

"I am (we are) registered as a joint tenant of the land, (lease, charge, mortgage) described above".

(iv) identify the deceased joint tenant as being one and the same as the person shown on the certified copy of the death certificate (quoting the registration number of the death certificate), or other evidence of death produced. The full name and address of deceased as shown on the Certificate of Title must be stated.

A suitable clause may read: "The person shown (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.

(v) refer to the certified copy of the death certificate or other evidence mentioned above.

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 Also see

- DEC-01 Deceased Proprietor

- DEC-03 Transmission Applications


DEC-03 Transmission Applications

Version 2 – 12/02/2018

The information provided in this guide is not intended to amount to legal advice. Professional assistance may be required to determine the most appropriate action to protect your legal rights. Please read our Terms of Use on the Land Titles Registration policy and procedure guides web page. Landgate accepts no responsibility where parties print this guide and seek to rely on information that is out of date.

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:

(1). 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.

(2). A statutory declaration, identifying the deceased if the name and addition as shown on the office copy of the Grant of Probate or Letters of Administration differ in any way from those shown in the Register, (but if the Grant of Probate correctly identifies the proprietor as the deceased or the details on the title and the Will agree, no further proof is required).

This statutory declaration is made by the executor or administrator. Where two or more executors or administrators are appointed, only one of them needs to make the declaration.

(3). The duplicate certificate of title (if any). Where the 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.

See also TFR-07 Transfer by an Attorney under EPA or by Administrator Order.

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 paragraph 3.7.1 of the Land Title Registration practice manual. 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 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

The information provided in this guide is not intended to amount to legal advice. Professional assistance may be required to determine the most appropriate action to protect your legal rights. Please read our Terms of Use on the Land Titles Registration policy and procedure guides web page. Landgate accepts no responsibility where parties print this guide and seek to rely on information that is out of date.

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 the Office of State Revenue (Stamp Duties Division) for assessment of stamp duty.

Once stamped the order is returned to the Landgate staff, who arrange for its lodgement as a document, and processing.

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 3 - 04/10/2018

The information provided in this guide is not intended to amount to legal advice. Professional assistance may be required to determine the most appropriate action to protect your legal rights. Please read our Terms of Use on the Land Titles Registration policy and procedure guides web page. Landgate accepts no responsibility where parties print this guide and seek to rely on information that is out of date.

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 applications 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 application 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 Use

In most instances, a change of name application is made on an A5 application form, with a statutory declaration and evidence to support the change of name.

An electronic application form can also be completed in lieu of the A5 form. 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.

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3  Evidence Required to Support a Change of Name

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 and certified by the Registrar of Births, Deaths and Marriages.

Foreign certificates, such as birth and/or marriage certificates are accepted as evidence, however the certificate 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 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 original/certified certificate will be sighted by Landgate and returned at lodgement.

- 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.

- Generally original and/or certified copies of the following certificates can be used as evidence for a change of name:

Note: A certified copy can only be provided by the authority that maintains the records; a copy certified by a Justice of the Peace or any other person who make take declarations is not acceptable as evidence.

- Birth Certificate

- Marriage Certificate

- Change of 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) :

- A 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 shown below.

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4  Exceptions to Lodging an Application to Amend Name

There are exceptions to the requirement to lodge an A5 application to amend name. Where a proprietor or registered interest holder has changed names, an application to amend name is not required if they are dealing with the whole of their interest in the land 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

If lodging any of the above documents, the change of name can be recorded by noting the name change in the document and by providing a statutory declaration and the usual evidence that would be provided if required to lodge an application to change name.

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]

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.

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6 Duplicate Certificates 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 a name/s.

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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 a proprietor’s name has been incorrectly spelt, for example:

Steven being incorrectly shown as Steve;

Ralph being incorrectly shown as Rolph;

Maree being incorrectly shown as Marie;

White being incorrectly shown as Whyte.

- 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 A5 application form or an electronic 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.

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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 A5 application form or an electronic 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 (eg. 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 (eg: 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.

8.5 Important Notes

- Passports, driver’s licenses, pension cards or other identity cards issued by government authorities are not suitable to establish the true and correct name (unless changing name by repute and usage)

- An originally issued Australian Citizenship certificate issued in the true and correct name can be used as 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

- 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

- The original/certified certificate will be sighted by Landgate and returned at lodgement

- The translated certificate with official translation noted will be retained by Landgate as evidence to the name change.

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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 A5 application form or an electronic 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

- 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).

- a marriage certificate certified by a solicitor, JP, an accountant or any other person qualified to take declarations in WA (or outside WA) is not acceptable as evidence.

- a marriage certificate issued by a celebrant/church is not acceptable as evidence

- Landgate officers will sight the certified copy of the marriage certificate and issue a copy noted as “Landgate sighted” returning the original certified marriage certificate at lodgement

- Sighting of the marriage certificate is also provided by an Australia Post outlet. An Australian Post outlet will stamp a copy as “certified or sighted” and this noted copy can be lodged with Landgate. There is a fee payable to Australia Post for this service.

- duplicate Certificate of Title and/or consent (as applicable)

- registration fee which is payable at lodgement. (See: Search and Lodgement Fees.)

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 eg 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.

9.5 Important Notes

Refer to section 8.5 Important Notes of this guide.

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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 or an electronic 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).

- a birth certificate certified by a solicitor, JP, an accountant or any other person qualified to take declarations in WA (or outside WA) is not acceptable as evidence.

- Landgate officers will sight the original/certified copy of the birth certificate and issue a copy noted as “Landgate sighted” returning the original/certified birth certificate at lodgement

- Sighting of the birth certificate is also provided by an Australia Post outlet. An Australian Post outlet will stamp a copy as “certified or sighted” and this noted copy can be lodged with Landgate. There is a fee payable to Australia Post for this service.

- 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, eg 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.

10.5 Important Notes

Refer to section 8.5 Important Notes of this guide.

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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 A5 application form or an electronic 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).

- a certificate certified by a solicitor, JP, an accountant or any other person qualified to take declarations in WA (or outside WA) is not acceptable as evidence.

- Landgate officers will sight the original/certified copy of the certificate and issue a copy noted as “Landgate sighted” returning the original/certified birth certificate at lodgement

- Sighting of the change of name certificate is also provided by an Australia Post outlet. An Australian Post outlet will stamp a copy as “certified or sighted” and this noted copy can be lodged with Landgate. There is a fee payable to Australia Post for this service.

- 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, eg 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.

11.5 Important Notes

Refer to section 8.5 Important Notes of this guide.

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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 provide

- an A5 application form or an electronic 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 (eg: Local Council rates notice)

- Statement from financial bodies (eg: 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.

12.3 Important Notes

Refer to section 8.5 Important Notes of this guide.

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13 Change of Name of a Company/Corporation

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 A5 application form or an electronic 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)

- 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.

The application can be signed by one of the company directors or the company secretary individually, without a witness. The person signing the application must print their full name address and designation in the company, under their signature.

A witness to the signing is not required.

13.2 Duplicate Certificate of Title

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

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NAM-02 Name Suppression

Version 1.0 14/07/2017

The information provided in this guide is not intended to amount to legal advice. Professional assistance may be required to determine the most appropriate action to protect your legal rights. Please read our Terms of Use on the Land Titles Registration policy and procedure guides web page. Landgate accepts no responsibility where parties print this guide and seek to rely on information that is out of date.

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

or

- are a donor or donee of a Power of Attorney lodged with Landgate.

All applicants must provide evidence of their eligibility. For applicants who are a silent elector registered with the Western Australian Electoral Commission 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

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

- online by visiting landgate.wa.gov.au and searching ‘changing title details’ to download an application pack and forms

- by email request to NSO@landgate.wa.gov.au

- by telephone request on +61 (0)8 9273 5900

or

- at Landgate’s Midland office.

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

4 How to Submit your Name Suppression Application

Your 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.

6 Also see

- NAM-01 Name Amendment


POA-01 Powers of Attorney

Version 3 - 12/02/2018

The information provided in this guide is not intended to amount to legal advice. Professional assistance may be required to determine the most appropriate action to protect your legal rights. Please read our Terms of Use on the Land Titles Registration policy and procedure guides web page. Landgate accepts no responsibility where parties print this guide and seek to rely on information that is out of date.

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); or

- in recital form as a deed, provided that some powers under the TLA are given.

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.

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 done(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).

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.

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.

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.

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

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.

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, 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 substitute 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-02 Powers of Attorney - types of

- POA-03 Powers of Attorney - enduring

- POA-04 Powers of Attorney - revocation

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

- Verification of identity


POA-02 Powers of Attorney - types of

Version 3 - 12/02/2018

The information provided in this guide is not intended to amount to legal advice. Professional assistance may be required to determine the most appropriate action to protect your legal rights. Please read our Terms of Use on the Land Titles Registration policy and procedure guides web page. Landgate accepts no responsibility where parties print this guide and seek to rely on information that is out of date.

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

- the attorney must be given a power or powers to deal in land registered under the TLA

- after listing a comprehensive set of powers to deal in land registered under the Act, the form provides for the insertion of express words that restrict those comprehensive powers to those inserted in this section. (See LTRPM Form Examples - Example 20.)

and

- the attorney is then given the power to sign the documents and do the acts necessary to carry out the powers listed, and preserve the rights and assets of the donor.

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:

(a) 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.

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

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.

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

"Any person including the Registrar of Titles of Western Australia or any other registration authority in Australia or elsewhere, dealing with the attorney or a person purporting to be an attorney under this power, is:

(a) 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.

(b) 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

or

- a member of the armed forces;

they may execute a power of attorney which, if in required form, may be recorded under the TLA. 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

or

- a member of the armed forces.

A power of attorney under s.54 of the Act is revoked by the subsequent recovery from incapacity of the donor, his or her return to the State or discharge from the armed forces. A power revoked in these circumstances is not revived by a subsequent occurrence of the condition which enabled the power to be granted, e.g. a further absence from the State.

Where s.54 of the Act does not apply but the trust deed empowers the Trustee to delegate the exercise of the trusts, the Trustee may execute a power of attorney which, if in required form, may be recorded under the TLA. However, as the Register under the TLA is based on the legal proprietorship and does not note trusts on the register, any power of attorney lodged with the Registrar of Titles must enable the Registrar to register transactions on properties registered or otherwise held in the name of the grantor without reference to the terms of any trust.

If the attorney executes a document that affects the grantor in some capacity other than that in respect of which the attorney is authorised to act, that should be an issue solely between the grantor and the attorney. For a Power of Attorney to be registered under the TLA, it is essential that the grantor, whether in the grantor’s own right, as trustee of a particular fund or in any other capacity be bound by such document and that the Registrar of Titles and others not be bound to inquire whether the attorney or purported attorney has acted within power.

If the grant of the power of attorney is restricted, as between the grantor and the grantee, to the grantor’s powers as a trustee then a clause to the following effect is to be included in such powers of attorney documents:

"Any person including the Registrar of Titles of Western Australia or any other registration authority in Australia or elsewhere, dealing with the attorney or a person purporting to be an attorney under this power, is:

(a) 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.

(b) 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:

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)

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.

9 Also see

- POA-01 Powers of Attorney

- POA-03 Powers of Attorney - enduring

- POA-04 Powers of Attorney - revocation

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


POA-03 Powers of Attorney - enduring

Version 3 - 29/10/2018

The information provided in this guide is not intended to amount to legal advice. Professional assistance may be required to determine the most appropriate action to protect your legal rights. Please read our Terms of Use on the Land Titles Registration policy and procedure guides web page. Landgate accepts no responsibility where parties print this guide and seek to rely on information that is out of date.

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

or

- 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). 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.

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.

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 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 and absent for the state or country are commonly used.

The form set out in the Third Schedule of the GA Act has been amended to allow for the appointment of either one or two substitute attorneys.

When the substitute donee(s) execute a document lodged for registration at Landgate, the document must be accompanied by a statutory declaration made by the substitute donee(s) 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 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.

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’.

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 done(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 varies 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 of this guide and those elements set out for a statutory declaration accompanying a Survivorship Application.

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.

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

or

- 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.

8 Also see

- POA-01 Powers of Attorney

- POA-02 Powers of Attorney - types of

- POA-04 Powers of Attorney - revocation

- CAP-02 – Incapable persons

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


POA-04 Powers of Attorney - revocation or termination

Version 3 - 19/09/2018

The information provided in this guide is not intended to amount to legal advice. Professional assistance may be required to determine the most appropriate action to protect your legal rights. Please read our Terms of Use on the Land Titles Registration policy and procedure guides web page. Landgate accepts no responsibility where parties print this guide and seek to rely on information that is out of date.

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

OR

A formal revocation, as a deed, may be prepared using a Blank Instrument Form 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

or

- 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

or

- (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

or

- an office copy of a grant of probate or letters of administration.

Lodging a statutory declaration does not incur a fee. It must be accompanied by proof of death and may be lodged at the Document Acceptance Counter of any Landgate office or posted to:

Lead Consultant, Dealings

Registrations

Landgate

PO Box 2222

MIDLAND WA 6936

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-01 Powers of Attorney

- POA-02 Powers of Attorney - types of

- POA-03 Powers of Attorney - enduring

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


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

Version 1 - 04/09/2017

The information provided in this guide is not intended to amount to legal advice. Professional assistance may be required to determine the most appropriate action to protect your legal rights. Please read our Terms of Use on the Land Titles Registration policy and procedure guides web page. Landgate accepts no responsibility where parties print this guide and seek to rely on information that is out of date.

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 or a duplicate may be deposited and a Registrar’s Caveat is lodged to protect the interests of the beneficiaries under the trust deed.

2 Form Requirements

There is no special form to be used, but any form used is to be duly stamped by the Office of State Revenue (s11(1)(c) Duties Act) and it must contain:

- the name and address of the registered proprietor (the trustee)

- the name and address of the beneficiary

- an accurate description of the land

- a declaration by the trustee that the land specified is held in trust for the beneficiary

and

- any special limitation, or condition on the powers of the trustee; and must be dated and signed by the trustee in the presence of an adult witness.

In the case of family trusts or settlements it is necessary to produce and file with a declaration of trust a copy of the family trust or settlement deed. Later declarations of trust in the same family trust or settlement should contain a reference to the number of the first declaration of trust in which the copy is filed. This is necessary because the Registrar must know who is to be protected and what powers, other than those in the Trustees Act 1962, the trustee has to deal with the land.

3 Removal Options

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.

4 Also see

- POA-01 Powers of Attorney

- POA-02 Powers of Attorney - types of

- POA-03 Powers of Attorney - enduring

- POA-04 Powers of Attorney - revocation


TFR-01 Transfers - common scenarios

Version 2 - 24/01/2018

The information provided in this guide is not intended to amount to legal advice. Professional assistance may be required to determine the most appropriate action to protect your legal rights. Please read our Terms of Use on the Land Titles Registration policy and procedure guides web page. Landgate accepts no responsibility where parties print this guide and seek to rely on information that is out of date.

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:

James Smith, and Mary Smith, both of 10 Kew Street PERTH WA 6001, as joint tenants of one undivided half share and Thomas Jones of 5 Timm Street BALGA WA 6061, of one undivided half share, as tenants in common.

or

James Smith, and Mary Smith, both of 10 Kew Street PERTH WA 6001, as joint tenants, of one undivided half share and Thomas Jones, and Jane Jones, both of 5 Timm Street BALGA WA 6061, as joint tenants, of one undivided half share, as tenants in common.

or

James Smith and Mary Smith, both of 10 Kew Street PERTH WA 6001, as joint tenants of two undivided fourth shares, Thomas Jones of one undivided fourth share and Jane Jones of one undivided fourth share, both of 5 Timm Street BALGA WA 6061, as tenants in common.

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.

In the case of a digital title, tenants in common will only receive one duplicate certificate of title showing all their shares noted on that one duplicate certificate of title. If a separate duplicate certificate of title is required for each tenant in common’s share, separate paper titles can be created and registered for the respective shares of the transferees.

The request should be typed or written on the transfer form and signed by each new transferee or by the transferee’s solicitor or agent. A further fee is payable for each additional certificate created (click on 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 Join 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

The information provided in this guide is not intended to amount to legal advice. Professional assistance may be required to determine the most appropriate action to protect your legal rights. Please read our Terms of Use on the Land Titles Registration policy and procedure guides web page. Landgate accepts no responsibility where parties print this guide and seek to rely on information that is out of date.

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 the Office of State Revenue (Stamp Duties Division), Landgate will require the document to be produced. If the document is a court order, a sealed copy or a Landgate sighted copy of it is required, 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

The information provided in this guide is not intended to amount to legal advice. Professional assistance may be required to determine the most appropriate action to protect your legal rights. Please read our Terms of Use on the Land Titles Registration policy and procedure guides web page. Landgate accepts no responsibility where parties print this guide and seek to rely on information that is out of date.

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

or

A as administrator with the will annexed of B deceased

Consideration:

terms of the will of the said deceased; or if a sale, X dollars.

Transferee:

C of (Address)

or

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

or

A as administrator with the will annexed of B deceased

Consideration:

XX dollars

Transferee:

C of (Address)

2.1.1 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

or

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)

or

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)

or

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)

or

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)

or

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

or

- 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

The information provided in this guide is not intended to amount to legal advice. Professional assistance may be required to determine the most appropriate action to protect your legal rights. Please read our Terms of Use on the Land Titles Registration policy and procedure guides web page. Landgate accepts no responsibility where parties print this guide and seek to rely on information that is out of date.

1 Companies Deregistered Prior to 1 January 1991 (Representative Provisions)

Where, after a company has been deregistered or dissolved, it is proved to the satisfaction of the Australian Securities & Investments Commission that such company, if it still existed, would be bound to give effect to some dealing and some purely administrative act is required to complete that dealing, then the Commission, as representing the company or its liquidator, is empowered by s.460 of the Companies (Western Australia) Code to complete the dealing.

Use of the provisions of the Code is made valid by s.85(1) of the Corporations (Western Australia) Act 1989 which provided that matters arising before the Corporations Law 1989 would continue under the earlier legislation. The situation remains the same whether the events occurred before or after the introduction of Companies (Western Australia) Code which took effect on 1 July 1981.

The Transferor panel of such a transfer should (with amendments to suit the particular transaction) read either:

Australian Securities & Investments Commission acting pursuant to s.66 of the Corporations (Western Australia) Act 1989 and s.460 of the Companies (Western Australia) Code for and on behalf of D. Registered Co Pty Ltd, a company that was deregistered on 12th May, 1980

or

Australian Securities & Investments Commission acting pursuant to s.66 of the Corporations (Western Australia) Act 1989 and s.460 of the Companies (Western Australia) Code for and on behalf of Ikan Addup, the liquidator of D. Solved Co Pty Ltd, a company that was dissolved on 12th May, 1980.

The Consideration panel of such a transfer should read see page 2 and on the second page of the 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;

or

Australian Securities and Investments Commission acting pursuant to s.601AF of the Corporations Law 2001 for and on behalf of Ikan Addup, the liquidator of I.N. Solvent Co Pty Ltd, a company that was dissolved on 12th May, 1991.

The Consideration panel of such a transfer should read see page 2 and on the second page of the 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"

or

"the transferor having held the above described land in trust for the transferee and in order to give effect to such trust"

and in the second instance:

"pursuant to the terms of Declaration of Trust F126414 and in order to give effect to it."

Where the declaration of trust is not deposited at Landgate the consideration panel in the transfer should read:

"pursuant to the terms of a Declaration of Trust dated 10th September, 1993 and in order to give effect to it."

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

The information provided in this guide is not intended to amount to legal advice. Professional assistance may be required to determine the most appropriate action to protect your legal rights. Please read our Terms of Use on the Land Titles Registration policy and procedure guides web page. Landgate accepts no responsibility where parties print this guide and seek to rely on information that is out of date.

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 the Office of State Revenue 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 section 12.1.14 of the Land Titles Registration practice manual).

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

The information provided in this guide is not intended to amount to legal advice. Professional assistance may be required to determine the most appropriate action to protect your legal rights. Please read our Terms of Use on the Land Titles Registration policy and procedure guides web page. Landgate accepts no responsibility where parties print this guide and seek to rely on information that is out of date.

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;

or

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

- SIG-01 Signing of Documents

- DEC-02 Survivorship Applications


TFR-07 Transfers by an Attorney under EPA or by Administration Order (SAT)

Version 1 - 03/01/2018

The information provided in this guide is not intended to amount to legal advice. Professional assistance may be required to determine the most appropriate action to protect your legal rights. Please read our Terms of Use on the Land Titles Registration policy and procedure guides web page. Landgate accepts no responsibility where parties print this guide and seek to rely on information that is out of date.

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 Stat 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

or

-- 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

The information provided in this guide is not intended to amount to legal advice. Professional assistance may be required to determine the most appropriate action to protect your legal rights. Please read our Terms of Use on the Land Titles Registration policy and procedure guides web page. Landgate accepts no responsibility where parties print this guide and seek to rely on information that is out of date.

Contents:

1 Transfer by Mortgagee Exercising Power of Sale

1.1 Effect on Encumbrances

1.2 Double Interest Mortgages

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

2.1 Default notices under the Code

2.2 Default notices under the TLA

2.3 Methods of service of notice

2.4 Notices to joint mortgagors

2.5 Power of sale transfer

2.6 Statutory Declaration

2.7 Default notice not required in limited circumstances

2.8 Additional matters to be deposed to in statutory declaration where default notice not required under the code

3 Transfer by a Debenture Holder

4 Transfer by Annuitant (Chargee)

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 24) is a special form printed for this purpose. The mortgagee may exercise the power to sell, where the mortgagor defaults in payment or the observance of the covenants of the mortgage. The sale may be the whole or part of the land, by public auction or private treaty, with power in the mortgagee to subdivide and/or create easements. A mortgagee’s power to sell arises as a consequence of an expressed or implied right to do so by virtue of:

- 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]

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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;

or

- facsimile transmission to the mortgagor, if the mortgagor nominates in writing to the mortgagee such a fax number as a nominated address for service.

2.4 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.

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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.

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TFR-09 Transfers by Sale for Rates (Local Government Act 1995)

Version 2 – 12/02/2018

The information provided in this guide is not intended to amount to legal advice. Professional assistance may be required to determine the most appropriate action to protect your legal rights. Please read our Terms of Use on the Land Titles Registration policy and procedure guides web page. Landgate accepts no responsibility where parties print this guide and seek to rely on information that is out of date.

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)

or

- have the land revested in the Crown in right of the State of Western Australia (s.6.74).

The notice of intention to sell is, after publication, registered in the Office as a Memorial of Advertisement and is endorsed on each certificate of title affected thereby. The memorial remains in force for twelve months from the date of registration and acts as an absolute caveat until it is withdrawn or expires.

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 (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. Land that is encumbered cannot be revested in the State of Western Australia.

2 Also see

- PSS-01 Property (Seizure and Sale) Order

- PSS-02 Property (Seizure and Sale) Order - removal


TFR-10 Transfer Pursuant to a Property (Seizure and Sale) Order

Version 2 - 12/02/2018

The information provided in this guide is not intended to amount to legal advice. Professional assistance may be required to determine the most appropriate action to protect your legal rights. Please read our Terms of Use on the Land Titles Registration policy and procedure guides web page. Landgate accepts no responsibility where parties print this guide and seek to rely on information that is out of date.

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

or

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

The information provided in this guide is not intended to amount to legal advice. Professional assistance may be required to determine the most appropriate action to protect your legal rights. Please read our Terms of Use on the Land Titles Registration policy and procedure guides web page. Landgate accepts no responsibility where parties print this guide and seek to rely on information that is out of date.

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 the Office of State Revenue. 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 State Revenue, 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 the Office of State Revenue. 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 State Revenue, 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,

or

- land owned by one of the parties be vested in the other party,

or

- expressly or impliedly severs a joint tenancy,

then both parties are bound to give effect to the order i.e. the necessary documents to give effect to the Order, whether the Order uses the term vest or transfers, must be signed by the parties.

In other words, it is anticipated that in most instances 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

The information provided in this guide is not intended to amount to legal advice. Professional assistance may be required to determine the most appropriate action to protect your legal rights. Please read our Terms of Use on the Land Titles Registration policy and procedure guides web page. Landgate accepts no responsibility where parties print this guide and seek to rely on information that is out of date.

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: www.auspost.com.au/identity-checks-for-property-transfers.

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

or

- the Identifier/conveyancer/lawyer/mortgagee forms the view that the person executing the instrument appears not to be of the same gender as the current registered proprietor

or

- 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

or

- the Identifier/conveyancer/lawyer/mortgagee forms the view that the details in the passport are not similar to the person presenting the document

or

- the name on the various identity documents are not the same and if relevant are not the same as on the certificate of title

It is essential that the Identifier/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 1 – 31/01/2018

The information provided in this guide is not intended to amount to legal advice. Professional assistance may be required to determine the most appropriate action to protect your legal rights. Please read our Terms of Use on the Land Titles Registration policy and procedure guides web page. Landgate accepts no responsibility where parties print this guide and seek to rely on information that is out of date.

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: www.auspost.com.au/identity-checks-for-property-transfers.

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.

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.

CategoryMinimum 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

or

- Arrange for the person to be identified again in accordance with this Practice

or

- 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

Mere mechanical compliance with this Practice, without attention to detail, is not sufficient. For example, there may be cases where a prudent Identifier or conveyancer/lawyer/mortgagee would consider it reasonable to conduct further checks, such as where:

- A name or address is not exactly the same as the name of the current registered proprietor

or

- The Identifier/conveyancer/lawyer/mortgagee forms the view that the person executing the instrument appears not to be of the same gender as the current registered proprietor

or

- 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

or

- The Identifier/conveyancer/lawyer/mortgagee forms the view that the details in the passport are not similar to the person presenting the document

or

- The name on the various identity documents are not the same and if relevant are not the same as on the certificate of title.

It is essential that the Identifier/conveyancer/lawyer/mortgagee has the independence to refuse to verify the identity if the evidence presented to them does not meet what is required under this Practice or there is a concern about the authenticity of the evidence provided or if there is some other doubt about the identity.

If an Identifier/conveyancer/lawyer/mortgagee is of the view that a criminal act or improper dealing may be taking place in that a person is attempting a fraudulent real estate transaction, the matter should be immediately reported to:

- WA Police

and

- The Department of 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:

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.

OR

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).

(c) The identification documents as listed below were produced to me and appear to be genuine originals.

(d) The person being identified appears to have similar facial characteristics as the person in the photographs included in the original identity documents referred to at item (c) above.

(e) The Verification of Identity has been conducted in accordance with the Western Australian Commissioner of Titles and Registrar of Titles Joint Practice for Verification of Identity.

Dated this day of Year 20

Identifier’s Signature: …………………………………………………………………

Contact Telephone Number: …………………………………………………………

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

- VOI-04 Verification of Identity and Authority - Electronic Transactions


VOI-03 Western Australian Registrar and Commissioner of Titles Joint Practice: Verification of Identity and Authority. Paper Based Transactions - Foreign Countries

Version 1 – 31/01/2018

The information provided in this guide is not intended to amount to legal advice. Professional assistance may be required to determine the most appropriate action to protect your legal rights. Please read our Terms of Use on the Land Titles Registration policy and procedure guides web page. Landgate accepts no responsibility where parties print this guide and seek to rely on information that is out of date.

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

- 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.

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


VOI-04 Verification of Identity and Authority- Electronic Transactions

Version 1 – 31/01/2018

The information provided in this guide is not intended to amount to legal advice. Professional assistance may be required to determine the most appropriate action to protect your legal rights. Please read our Terms of Use on the Land Titles Registration policy and procedure guides web page. Landgate accepts no responsibility where parties print this guide and seek to rely on information that is out of date.

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:

- 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 Western Australian Registrar and Commissioner of Titles Joint Practice: Verification of Identity and Authority. Paper Based Transactions - Foreign Countries

Self-represented parties cannot undertake electronic conveyancing transactions.

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 4

- ARNECC Guidance Note - Verification of Identity

Encumbrances, Interests and Limitations

CAR-01 Carbon Rights and Carbon Covenants

Version 1 – 11/10/2017

The information provided in this guide is not intended to amount to legal advice. Professional assistance may be required to determine the most appropriate action to protect your legal rights. Please read our Terms of Use on the Land Titles Registration policy and procedure guides web page. Landgate accepts no responsibility where parties print this guide and seek to rely on information that is out of date.

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

or

- Crown land.

It is not essential that a carbon right interest in land relates to a plantation of trees, it may relate to grazing or agricultural land etc.

Note: The proprietor of a carbon right does not have ownership of the carbon in or on the land.

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

or

- land can be used.

Carbon covenants are the terms by which the carbon in the land is effectively protected for the benefit of the proprietor (holder) of the carbon right.

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

The information provided in this guide is not intended to amount to legal advice. Professional assistance may be required to determine the most appropriate action to protect your legal rights. Please read our Terms of Use on the Land Titles Registration policy and procedure guides web page. Landgate accepts no responsibility where parties print this guide and seek to rely on information that is out of date.

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

or

- 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

The information provided in this guide is not intended to amount to legal advice. Professional assistance may be required to determine the most appropriate action to protect your legal rights. Please read our Terms of Use on the Land Titles Registration policy and procedure guides web page. Landgate accepts no responsibility where parties print this guide and seek to rely on information that is out of date.

1 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-02 Caveats - further reading

- CAV-03 Caveats - types of

- CAV-04 Caveats - document preparation and lodgement

- CAV-05 Caveats - removal

- CAV-06 Caveats - removal - document preparation lodgement

- Guides for Lodging or Removing a Caveat


CAV-02 Caveats - further reading

Version 3 -  02/11/2018

The information provided in this guide is not intended to amount to legal advice. Professional assistance may be required to determine the most appropriate action to protect your legal rights. Please read our Terms of Use on the Land Titles Registration policy and procedure guides web page. Landgate accepts no responsibility where parties print this guide and seek to rely on information that is out of date.

1 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 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-01 Caveats - overview

- CAV-03 Caveats - types of

- CAV-04 Caveats - document preparation and lodgement

- CAV-05 Caveats - removal

- Guides for Lodging or Removing a Caveat


CAV-03 Caveats - types of

Version 3 - 06/08/2018

The information provided in this guide is not intended to amount to legal advice. Professional assistance may be required to determine the most appropriate action to protect your legal rights. Please read our Terms of Use on the Land Titles Registration policy and procedure guides web page. Landgate accepts no responsibility where parties print this guide and seek to rely on information that is out of date.

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

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

or

- the caveator/registered proprietor has revoked a power of attorney but has been unable to contact the attorney to give advice of the revocation

or

- the caveator has lost possession of a signed instrument e.g. transfer of land, and has not been paid.

The evidence to support such a caveat would be a statutory declaration by the caveator setting out the facts and repeating the claim of the caveator.

A caveat, correct as to form by a registered proprietor against his or her land would be accepted by the Registrar.

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.

or

- An unregistered interest created pursuant to a management order or vesting where the management order or vesting is created or vested for purposes of another Act.

The registered proprietor panel of the caveat form should show the party to whom the caveat is lodged against. State of Western Australia is shown where they are the only one shown on the Crown title or there is a management order or lease on the Crown title but the caveat evidence is based on an agreement (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

or

- an order of the Court is obtained and served on the Registrar.

The caveat will lapse after thirty days from the date of lodgement if the caveator has not taken proceedings in Court to substantiate his or her claim and served on the Registrar an injunction of the Court restraining the Registrar from bringing the land under the TLA.

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.

9 Also see

- CAV-01 Caveats - overview

- CAV-02 Caveats - further reading

- CAV-04 Caveats - document preparation and lodgement

- CAV-05 Caveats - removal

- Guides for Lodging or Removing a Caveat


CAV-04 Caveats - document preparation and lodgement

Version 2 - 06/08/2018

The information provided in this guide is not intended to amount to legal advice. Professional assistance may be required to determine the most appropriate action to protect your legal rights. Please read our Terms of Use on the Land Titles Registration policy and procedure guides web page. Landgate accepts no responsibility where parties print this guide and seek to rely on information that is out of date.

1 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 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. There 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

An ‘Original Sighted’ copy must be presented.

4.2 Statutory Declaration

The original signed and witnessed statutory declaration must be provided. (See also: DOC-04 Statutory Declarations.)

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-01 Caveats - overview

- CAV-02 Caveats - further reading

- CAV-03 Caveats - types of

- SIG-01 Signing of Documents

- Guides for Lodging or Removing a Caveat


CAV-05 Caveats - removal

Version 5 - 30/08/2018

The information provided in this guide is not intended to amount to legal advice. Professional assistance may be required to determine the most appropriate action to protect your legal rights. Please read our Terms of Use on the Land Titles Registration policy and procedure guides web page. Landgate accepts no responsibility where parties print this guide and seek to rely on information that is out of date.

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

On the presentation for registration of an instrument and on written request signed by:

- a party to the instrument

- a solicitor for the party to the instrument or, if a firm of solicitors, a member of that firm

- a licensed settlement agent, on the letterhead of his or her firm

- a licensed estate agent on the letterhead of his or her firm

or

- the senior security officer of a bank on a bank letterhead;

and on payment of the prescribed fee, fourteen days’ notice will be sent by the Registrar to the caveator at the address or the number for a facsimile machine for service of notice given in the caveat. The notice will require the caveator to take action in Court to substantiate his or her claim, failing which the caveat will lapse and the instrument will be registered.

It should be noted that a caveat lapses only to the extent necessary to permit the registration of the instrument under which the notice was sent. In the case of a paper title, a transfer of one lot out of several in the title results in the lapse of a caveat as to that one lot only.

Notice may not be sent on caveats lodged by the Registrar or caveats lodged by a beneficiary under a will or trust.

3 Caveat (Improper Dealings)

In order to remove a Caveat (Improper Dealings) all the registered proprietor(s) must present themselves in person at the same time at Landgate’s Midland office and satisfy as a minimum the requirements of a 100-point check using original documents (copies are not allowed). Only the registered proprietor(s) of the property can remove the Caveat in person. A Withdrawal of Caveat (Improper Dealings) can only be lodged at the time of witnessing.

A Power of Attorney cannot be used to withdraw the Caveat.

Due to the operation of law the Caveat (Improper Dealings) will not prevent the following, including but not limited to:

- Mortgagee exercising a power of sale would be able to use s.138B of the 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.

4 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.

5 By Order of the Court

On the motion of the registered proprietor, a Judge or the Court may make an order removing a caveat from the register. On receipt of an office copy of the order with an application form and the payment of the required fee, the caveat is removed from the title.

6 By Sale for Rates

With the exception of caveats by the Commissioner for State Taxation, which must be withdrawn, all caveats are automatically removed on the exercise by a Local Government of its power to sell land for non-payment of rates under the Local Government Act, 1995.

7 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.

8 Section 138B of the TLA (21 Days’ Notice)

The registered proprietor(s) of the land in respect of which a caveat is lodged, or the judgment creditor named in a property (seizure and sale) order registered in respect of the judgment debtor’s saleable interest in such land, may make application for the removal of a caveat under s.138B of the TLA. This section requires the caveator to take legal action and obtain a Supreme Court Order substantiating the estate or interest claimed in the caveat within 21 days of the service of notice.

An application under s.138B of the TLA cannot be lodged on the following types of caveat:

- Caveats lodged under Sections 30, 176 or 223A of the TLA.

- Caveats under any other written law which specifically provides for the lodgement of a caveat.

- Caveats lodged by virtue of a Court Order.

- Caveats protecting beneficiaries under a will or settlement.

- Caveats lodged by or on behalf, or with the consent of the Minister for Lands.

- Caveats lodged under any Commonwealth Act.

- Caveats lodged by the Registrar of Titles.

The application must be made on a Form AW describing the land affected, the number of the caveat required to be removed and requesting that 21 days’ notice be sent to the caveator under s.138B of the TLA.

All of the registered proprietors affected by the caveat must be shown as applicants in the application and they must all execute the application in the presence of a witness. If the applicant is a corporation, the application must be formally executed in accordance with the Constitution for that corporation.

No evidence in support of the application is necessary.

Upon lodgement and examination of the application, the caveator is served (at the address shown in the caveat) with a notice requiring that the caveator, within 21 days, obtain from the Supreme Court an order extending the operation of the caveat.

If the caveator fails to obtain a Court Order extending the caveat within the 21 days’ notice period, the caveat will lapse and an entry will be made in the Register removing the caveat.

If a withdrawal of caveat is lodged after the 21 days’ notice has been sent, but before the lapse date shown in the notice has expired, the notice period is terminated and the proprietor can deal with the land immediately.

The caveator will not be able to re-lodge a caveat that has been removed under s.138B of the TLA by virtue of

- the lapsing of the caveat, by either the expiration of the 21 days or as a result of legal action

or

- upon the withdrawal of the caveat by the caveator upon receiving the notice from the Registrar;

unless the caveator has leave of the Court or the consent of the registered proprietor.

If the caveator obtains from the Supreme Court an order extending the operation of the caveat, a copy of the order must be served on the Registrar of Titles within the 21-day period.

Note: The removal of caveats under this s.138B of the TLA is separate and distinct from the processes under Sections 137, 138 and 141A. Once Landgate has sent the 21-day notice or notices under s.138B of the TLA, it is not possible for the applicant to withdraw the application from registration. This type of application is limited to only one caveat (per application) and it must refer to all the land in the caveat.

8.1 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]

8.2 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 8.2]

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

The information provided in this guide is not intended to amount to legal advice. Professional assistance may be required to determine the most appropriate action to protect your legal rights. Please read our Terms of Use on the Land Titles Registration policy and procedure guides web page. Landgate accepts no responsibility where parties print this guide and seek to rely on information that is out of date.

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 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 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.

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 the cases where the caveat is in the name of the partners of a Form the withdrawal should be drawn in the name of the caveator(s) and the attestation should indicate that the solicitor signs as solicitor for the caveator eg: A (the caveator) by his solicitor B or A (the caveator) by his solicitors’ B Legal & Co per B (a member of the firm). The signature of the solicitor must be witnessed in the usual manner.

See also: SIG-01 Signing of Documents.

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:

See also: DOC-01 Document Preparation.

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 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

As sample: ‘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.

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

-DOC-01 Document Preparation

- CAV-01 Caveats - overview

- CAV-02 Caveats - further reading

- CAV-03 Caveats - types of

- CAV-04 Caveats - document preparation and lodgement

- CAV-05 Caveats - removal

- Guides for Lodging or Removing a Caveat


CHA-01 Charges and Removals

Version 1 – 15/03/2018

The information provided in this guide is not intended to amount to legal advice. Professional assistance may be required to determine the most appropriate action to protect your legal rights. Please read our Terms of Use on the Land Titles Registration policy and procedure guides web page. Landgate accepts no responsibility where parties print this guide and seek to rely on information that is out of date.

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 a Form M2 Charge and the registration of that charge. The duplicate certificate of title (If any) must be produced.

A charge is defined in s.4 of the TLA as:

"the instrument creating and charging an annuity."

An annuity is defined as:

"a sum of money payable periodically and charged on land under the operation of the TLA by an instrument there under."

A charge, therefore, is a security for a sum of money paid periodically for the life of the chargee or some shorter defined period. It should have either a commencement date or a date for the payment of the annuity in each year. A charge cannot be for a fixed amount of money. A mortgage is the appropriate security in such a case.

A charge does not operate as a transfer and is treated in much the same fashion as a mortgage. It may be discharged on production of a discharge signed by the chargee or the chargee’s personal representative after transmission.

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 Application By Survivor to be the Registered Proprietor of a Mortgage Charge or Freehold Lease as shown in LTRPM Form Examples - Example 6, with the recital modified as shown in LTRPM Form Examples - Example 3.

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 printed Extension of Mortgage form 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 a Discharge of Charge form for this purpose. A discharge of charge may be:

- total as to annuity and land

- partial as to land, total as to annuity

and

- partial as to annuity, total as to land.

The examples given as a guide for discharges of mortgage may be used to assist in the preparation of discharges of charge.

5 Discharge – Where Annuitant is dead and there is no Personal Representative

The document by which this is achieved is an application on a Form A5 Application with the effect of a discharge. Application may be made to the Commissioner under s.125 of the TLA to remove the charge as an encumbrance.

Proof to the satisfaction of the Commissioner, is required as to the death of the annuitant or the occurrence of the event by which the annuity ceases to be payable and as to the payment of the annuity during the lifetime of the annuitant and up to the date of death, before a charge may be removed as an encumbrance. A charge remains an encumbrance on the land until discharged or removed.

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

- DOC-01 Document Preparation

- MTG-01 Mortgages


CHA-02 Charges under the Health or Bankruptcy Act

Version 1 – 15/03/2018

The information provided in this guide is not intended to amount to legal advice. Professional assistance may be required to determine the most appropriate action to protect your legal rights. Please read our Terms of Use on the Land Titles Registration policy and procedure guides web page. Landgate accepts no responsibility where parties print this guide and seek to rely on information that is out of date.

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 Application form, 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 a Form A5, supported by evidence proving that the debt has been paid or set aside.

If the debt is not paid the Official Trustee or the Trustee in Bankruptcy may sell the land and register a transfer on a modified Transfer of land by mortgagee form, 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

- CHA-01 Charges and removals

- MEM-01 Memorials


COV-01 Covenants

Version 2 – 06/09/2018

The information provided in this guide is not intended to amount to legal advice. Professional assistance may be required to determine the most appropriate action to protect your legal rights. Please read our Terms of Use on the Land Titles Registration policy and procedure guides web page. Landgate accepts no responsibility where parties print this guide and seek to rely on information that is out of date.

Contents:

1  General

2  Types of Restrictive Covenants

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

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 Act. Generally, restrictive covenants must:

- directly control the use of the land of the covenantor

- benefit the land of the covenantee

- be negative in their content

- be intended by the parties creating them to run with the land

and

- not contain personal covenants with third parties such as the original land developer or the Local Government.

Section 15 of the LAA also allows for positive covenants to be created over Crown land or agreement land (see section 7 of this guide).

No covenant may be registered over land encumbered by a mortgage or annuity, unless the consent of the encumbrancer is endorsed on the document.

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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 vendor requires a purchaser to enter into a covenant not to conduct a particular business or trade such a covenant will be accepted as part of a transfer provided that it can be shown that the vendor is the proprietor of land, in the vicinity of the land sold, which can benefit from the covenant.

2.3 Protected View or Outlook Covenants

This type of covenant usually arises where one lot is subdivided and covenants are required from the purchaser not to build out or obscure the view of the vendor. The covenants are related to the height to which the purchaser may erect a dwelling or grow shrubs, etc.

When setting the height for such a covenant, reference should be made to the Australian Height Datum (see 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 benefitted 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) established as a body corporate with perpetual succession known as the National Trust of Australia (WA). The Trust has a common seal and the power (among other things) to acquire, hold and dispose of real property. The Trust is managed by a committee known as the Council of the National Trust of Australia (WA).

The Common Seal of the Trust may only be used by order of the Council and may be affixed to a document in the presence of the President or the Vice President, and the Secretary. The Council may appoint officers and delegate any of its powers (except the power of delegation) to any committee.

The Trust has the role of encouraging public interest in places and things of national or local importance by reason of historic, legendary, artistic or other interest, and of places of national beauty and flora and fauna.

The proprietor of any land may create restrictive covenants, either permanently or for a specified period, in favour of the National Trust of Australia (WA). In accepting the benefit of the covenants, the Trust need not be the owner of adjacent land but the covenant takes effect as if it were (s.21A of the Act).

Such covenants are registered, discharged or modified in the same manner as any other covenant under the TLA. Similar covenants in favour of the Heritage Commission may be registered by a Memorial (see policy and procedure guide MEM-01 Memorials).

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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 a prescribed form but no such form has been prescribed. In practice each covenant is treated on its merits and is generally acceptable provided that:

- it takes the form of a Deed

- the parties to the document (being the owners of two pieces of land in close proximity) are properly described

- the land to be burdened and the land receiving the benefit are accurately defined;

- the covenant is negative in its nature

- it does not contain personal covenants with third parties such as the original developer or the Local Government

and

- it is properly signed and attested.

If the land is subject to a mortgage or charge, written consent from the Mortgagee or annuitant is required.

The Registrar was not required to show a memorandum of a covenant on the paper title to the land receiving the benefit of that covenant (with the exception of protected view or outlook covenants - see 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.

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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.

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5 Restrictive Covenants created by Transfer

Where it is desired to create a restrictive covenant at the same time as the sale of a parcel of land, a 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.

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6 Creation of Restrictive Covenants on Plans of Subdivision under Part IVA (s136D) TLA1

The use of the word Plan is this section means a plan, deposited plan or diagram referred to in s.166 of the TLA or a strata / survey-strata plan within the meaning of the STA as amended.

A proprietor of land that is the subject of a Plan may have noted on the Plan the location of a restrictive covenant to which the land will be subject. The restrictive covenant will have effect even though any land burdened by the restrictive covenant has the same proprietor as any land benefited by restrictive covenant.

An instrument setting out all the relevant information in regard to the restrictive covenant must be lodged with the 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 Office of State Revenue']
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 Plan 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 shall be 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.

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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. A covenant 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 covenant. Consent of the caveator of any encumbering caveat is required for positive covenants being created over Crown land. Consent of the current freehold owner is required for positive covenants over agreement land where the current freehold owner is not a party to the document.

In s.15 of the LAA, covenants may be in gross or in favour of specified land (ie. a covenant with a dominant and servient tenement). The person who may have the benefit of the covenant may be the Minister for Lands, a State instrumentality, a local government body or a prescribed person (as set out in the Land Administration Regulations 1998). The Minister for Lands may be a covenantor or a covenantee.

A covenant may be limited to a leasehold interest over the Crown land. In these instances the covenant is made with the lessee and continues on any transfer of the lease but only remains valid during the term of the affected lease.

If a covenant (not being a s.15 covenant) is made between two separate Crown leasehold estates (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 lessees copy of a lease is not required to be provided with any covenant where the dominant or servient tenement is limited to a lease interest.

8 Also see

- COV-02 Covenants - removal

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COV-02 Covenants - removal

Version 1 – 13/08/2018

The information provided in this guide is not intended to amount to legal advice. Professional assistance may be required to determine the most appropriate action to protect your legal rights. Please read our Terms of Use on the Land Titles Registration policy and procedure guides web page. Landgate accepts no responsibility where parties print this guide and seek to rely on information that is out of date.

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.

To have a restrictive covenant that has expired due to a time limit removed from a Certificate of Title prior to the transfer to a new registered proprietor, a signed letter must be provided by the responsible licensed settlement agent or lawyer and lodged at Landgate at the same time as the transfer document or within one week prior to electronic lodgement of the transfer by emailing the letter to dealings@landgate.wa.gov.au. The content of the letter need only contain the following line:

Restrictive Covenant [doc. #] may have expired and, if so, should be removed from Certificate of Title Volume [#] Folio [#].

Any approved Transfer of Land forms that contain a Limitations, Interests, Encumbrance and Notifications panel that have already been completed and executed, where a restrictive covenant has been left off as it has expired due to a time limitation, will continue to be actioned by Landgate’s Examination Team.

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 8A contains a circle formula to define what is meant by the prescribed area. The prescribed area is determined by reference to proprietorship of lots with the benefit of a single dwelling covenant, located inside a circle of a certain radius from the lot wishing to remove the covenant.

The objective is to encompass 200 lots with the benefit of a single dwelling restrictive covenant. The formula contained in the Regulations stipulate a maximum size of the circles to recognise that there may be occasions when despite the size of the circles, 200 lots will not fall inside the circle.

In summary, under the Regulations:

- A circle with a radius of 250 metres from the centre of the lot that requests the removal of the single dwelling covenant is drawn.

- The size of the circle is increased incrementally by 10 metres, until either, at least 200 lots with the benefit of a single dwelling covenant fall inside the circle, or to a maximum radius of 270 metres, which equates to 3 circles.

The circle or circles must always be drawn by a licensed surveyor. The practical effect of these amendments is to make it more difficult for landowners within a neighbourhood of single dwelling restrictive covenants to obtain a Supreme Court Order to remove that covenant.

Landowners wishing to remove a single dwelling restrictive covenant must first obtain support to do so from the majority of those, within a circle, who are most likely to be affected by such removal.

Note:

The above requirements apply to all single dwelling restrictive covenants no matter how they were created (ie: by transfer, by deed or on plans of subdivision).

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 <