WAW-02 Writs and Warrants - removal
Version 1 – 16/01/2018
1 Current Removal Options
As a writ or warrant was essentially ignored as an encumbrance there may be a number of titles that are still encumbered by a writ or warrant. In those instances, the following options are available:
1.1 By Application
The Registered Proprietor of the land or other interested party may make an application to have the writ or warrant removed using an A5 Application form.
The reason for application should state ‘For the removal of writ or warrant (Number)’
Each writ or warrant being removed will incur a lodgement fee (similar to any other encumbrance being removed).
Note: Where the writ or warrant is now deemed to be a Property (Seizure and Sale) Order it must be removed as such - see PSS-02 Property (Seizure and Sale) Order - removal.
1.2 By Registrar of Titles upon lodgement of an Instrument
Where an Instrument has been lodged to effect the change of ownership or a new Mortgage, the writ or warrant will be removed to give clean title to the new owner or Mortgagee. The transactions should be lodged subject to the writ or warrant and will be removed simultaneously with the other transactions.
2 Historical Removal Options
2.1 By Application
A judgement creditor can have a writ or warrant removed as an encumbrance by lodging a completed Form A5. Details included on the form could be:
- specifying the land
- identifying the writ or warrant by its number
- requesting that the writ or warrant be removed as an encumbrance
- dated and signed by the judgment creditor.
The application may be signed by the solicitor acting for the judgement creditor where the writ or warrant is being withdrawn from the whole of the land specified therein and the form states that the writ or warrant has been fully paid and satisfied.
Where the application is to withdraw the writ or warrant from part only of the land the application must be signed by the judgment creditor. Incorporated bodies must sign the application by use of their common seal provisions, or by their authorised and noted attorney.
Where the judgment creditor is a firm of legal practitioners, a withdrawal signed by a majority of the partners will be accepted. A declaration by one of the partners identifying the signatures as a majority of the partners will be required to support the application.
2.2 By the Commissioner of Titles
Under s.185 of the TLA, the Commissioner could remove a writ or warrant from the Register upon proof that the judgment had been satisfied. The application on a Form A5 was usually (not necessarily always) made by the registered proprietor and supported by a statutory declaration annexing or introducing proof of satisfaction (payment) of the debt.
Note: This section has now been repealed.
2.3 By Expiry of the Four-month Period
If the writ or warrant was not renewed within the four-month period specified in s.133, then the writ or warrant was no longer effective. It was not removed from the Register but in practice it is ignored as an encumbrance.
2.4 By Taking or Acquisition
Where land subject to a writ or warrant was taken under the Land Administration Act 1997 (LAA)
or compulsorily acquired by the Commonwealth under the LAA, the writ or warrant ceased to have any effect.
2.5 By Exercise of a Mortgagee’s Power of Sale
Where a mortgagee exercised his or her power of sale under a mortgage and transferred the land to a purchaser, any writ or warrant lodged subsequent to the mortgage was removed as an encumbrance.
2.6 By Sale for Rates
Where a local Government exercises its power to sell land for non-payment of rates and lodged a transfer to give effect to such sale, any writ or warrant against the land was removed as an encumbrance
2.7 By Transfer by the Sheriff, Bailiff or Magistrate
A writ or warrant was removed as an encumbrance on the registration of a transfer, by way of sale by the sheriff, bailiff or magistrate.