Land Titles Registration Policy and Procedure Guides

SIG-03 Signing by a Corporation

Version 2 - 02/05/2022

1 Overview¹

Despite recent permanent amendments made to the Corporations Act 2001 by the Corporations Amendment (Meetings and Documents) Act 2022 which allow companies to execute documents electronically, due to provisions under:

Transfer of Land Act 1893 (WA);
Transfer of Land Regulations 2004 (WA);
Property Law Act 1969 (WA),

Land Registry documents lodged in paper form continue to be required to be signed in ink, and witnessed, where required.

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

execute documents under seal

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

¹Section updated 02/05/2022

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 2001¹

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:

(a) two directors of the company, or

(b) a director and company secretary of the company, or

(i) the director is also the sole company secretary; or

(ii) the company does not have a company secretary.

One person cannot attest the affixing of the common seal in two different capacities, i.e. as Director and as Director/Secretary unless that person is the sole Director and also the sole Secretary of the company.

If a company executes a document in accordance with s.127(2), as outlined above, persons dealing with the company can rely on the assumptions of regularity in s.129(6).

Where a document is executed using a company’s common seal, the common seal must contain the company’s name and:

the company’s Australian Company Number or the abbreviation ACN and the 9-digit Australian Company Number

the company’s Australian Business Number or the abbreviation ABN and the 11-digit Australian Business Number. (This option is only available where the 9 digits of the company’s ACN are the same, and in the same order as the last 9 digits of the ABN, in accordance with s.123(b)(2) of the Corporations Act 2001.)

Alternately, where a company has as its name the expression ‘Australian Company Number’ followed by the 9-digit number, pursuant to s.148(1) of the Corporations Act 2001, the expression ‘Australian Company Number’ or the abbreviation ACN followed by the 9-digit number must be contained in the company’s common seal. Pursuant to s.153 of the Act, the company identifier set out in the common seal should be the same as the company identifier that first appears in the particular document.

¹Section updated 02/05/2022

2.2 Signing/Execution without a Common Seal in accordance with section 127(1) of the Corporations Act 2001¹

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

(a) two directors of the company, or

(b) a director and company secretary of the company, or

(i) the director is also the sole company secretary; or

(ii) the company does not have a company 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.

¹Section updated 02/05/2022

2.3 Variations to the requirements of section 127(1) and 127(2) of the Corporations Act 2001¹

Variations (as to who may execute documents) may be permitted by the Constitution of an individual company.

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.

¹Section updated 02/05/2022

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, as described above.

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 a sole Director who is also the sole Secretary of the company:¹

The Common Seal of XYZ Co Pty Ltd

was hereunto affixed in the presence of

Signature

(Print Full Name)

Sole Director and Sole Secretary

The following form of execution is applicable to proprietary companies that have a sole director, and the company does not have a company secretary:

The Common Seal of XYZ Co Pty Ltd

was hereunto affixed in the presence of

Signature

(Print Full Name)

Sole Director

¹Section updated 02/05/2022

3.2 Signing/Execution without a common seal¹

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 a sole Director who is also the sole Secretary of the company:

Executed by XYZ Co Pty Ltd ACN . . . . . . . . . . . . . . .

Signature of Director

(Print Full Name)

Sole Director and Sole Secretary

The following form of execution is applicable to proprietary companies that have a sole director, and the company does not have a company secretary:

Executed by XYZ Co Pty Ltd ACN . . . . . . . . . . . . . . .

Signature

(Print Full Name)

Sole Director

¹Section updated 02/05/2022

4 Foreign Registered Corporations

A foreign registered body or Corporation is a Corporation/Company that is not registered in Australia. Documents executed by foreign registered bodies will need to include a letter from a lawyer stating that the company is an overseas company and that they have signed the document in accordance with the laws relating to the jurisdiction of the country in which it is registered.

Please be aware that if the execution of the document by authorised officers of the corporation requires a witness, then that witness must be an authorised witness under the provisions of Section 145 1(b) of the TLA.

If the document is one that is subject to the VOI Practice, then the witness should be an Australian Consular Officer, unless the Registrar of Titles has accepted an alternative witness due to exceptional circumstances.

Written requests to use an alternative witness overseas should be emailed to VOIPractice@landgate.wa.gov.au

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

Natural persons executing a real property document on behalf of a foreign registered corporation are required to be identified, if the document is subject to the VOI Practice. Please also refer to Verification of Identity requirements for applicable documents.

The VOI Statement that accompanies documents executed by a foreign registered corporation may be made by the lawyer representing that foreign registered corporation in the particular transaction. That lawyer may be the in-house lawyer in the foreign registered corporation.

5 Also see

- Verification of Identity web page

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

Version 2 - 23/12/2020

1 Signing/Execution by a Liquidator

A liquidator may be appointed by a company in Voluntary Liquidation or by a Court. Notice of such a resolution or decision must be registered in the Australian Securities & Investments Commission. In general terms, the role of a liquidator is to collect and convert all the assets of a corporation and pay all the debts or an equal share of all the debts due to creditors.

A liquidator does not have an interest or role in continuing the business of a corporation. Appointments made before introduction of the Corporations Law 1989 on 1 January 1991 continue under the new legislation.

The legal estate of real property owned by the company in liquidation remains with the company during the liquidation process on most occasions. A Court may, when making the appointment, also vest the assets (including real property) in the liquidator. Where this is done, the liquidator must become the registered proprietor of the real property, either by transfer or application, before dealing with it. A transfer or application vesting land in a liquidator, not followed by a further dealing, would be followed by a Registrar’s Caveat.

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

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

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

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

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

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

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

¹Paragraph added 23/12/2020

1.1 Examples of Signing/Execution Clauses

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

The Common Seal of Waal & Co Pty Ltd

A.C.N. 123 456 789

was hereto affixed by (Name of Liquidator)

its duly appointed liquidator

) Common Seal

) (Signature of Liquidator)

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

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

by its duly appointed liquidator (Name of Liquidator)

(Signature of Liquidator)

2 Signing/Execution by an Administrator

An Administrator may be appointed to take control of the affairs of a company that is unable to or may become unable to pay its debts, with the view to entering into a Deed of Company Arrangement, under which the Company may be revived.

The Administrator must consent to the appointment and must be a Registered Liquidator. The Administrator may be appointed by:

the Company by a resolution of its Directors (s.436A of the Corporations Act 2001)
the Company’s liquidator (s.436B)

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

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

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

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

by the Administrator on behalf of the Company, or
with the written consent of the Administrator, or
under a Court Order.

A moratorium is placed upon the rights of the proprietor of property (including real property) during the period of administration of a Company that is in possession of property. Consent of the Administrator or a Court Order is required before the proprietor of the property can retake possession.

The Administrator can perform any function and exercise any power that the Company and any of its officers could perform or exercise if the Company were not under administration, including the execution of documents (s.437A and 442A of the Corporations Act 2001). The Administrator has power to sell the real estate of the Company.

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

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

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

¹Paragraph added 23/12/2020

2.1 Examples of Signing/Execution Clauses

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

The Common Seal of ABC Company Pty Ltd

A.C.N. 001 234 789 was

hereto affixed by (Name of Administrator)

its duly appointed Administrator

) Common Seal

) (Signature of Administrator)

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

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

by its duly appointed Administrator (Name of Administrator)

(Signature of Administrator)

3 Execution by an Official Manager

In general terms, an official manager is a person appointed by a creditor or creditors to manage the affairs of a corporation, usually with the view of having it trade out of its debt. Most appointments are as receiver and manager. Appointments made before the introduction of the Corporations Law 1989 on 1 January 1991 continue under the new legislation.

Most financial agreements, whether intended for registration in the Torrens System, in a strict sequence of priorities or as a floating charge or debenture, empower the lender to appoint a person to be the (mortgagor) company’s receiver and manager at any time after the principal monies secured become payable.

The appointment can be made either privately (out of the Courts) or by order of the Court. In each case, notice of the appointment must be filed within a designated time in the Australian Securities & Investments Commission (ASIC). The primary powers of the appointed receiver/manager are those set out in the loan agreement (for private appointments) or those set out in the Court Order (for Court appointments). Supplementary powers are created in the legislation.

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

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

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

Also to be produced (where applicable) is:

a certified copy issued by the Australian Securities and Investment Commission of the notice of appointment
a certified copy of the Debenture or Court Order that was the basis of the appointment

and

such written consents as may be necessary to give effect to the sale.

¹Paragraph added 23/12/2020

3.1 Examples of Signing/Execution Clauses

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

The Common Seal of Cole & Co Pty Ltd

A.C.N. 123 456 789

was hereto affixed by (Name of Official Manager)

its duly appointed Official Manager

) Common Seal

) (Signature of Official Manager)

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

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

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

(Signature of Official Manager)

4 Signing/Execution by a Receiver

In general terms, a receiver is a person appointed by a particular creditor to collect and convert the assets of a company to pay the debt due to that creditor. The appointment of a receiver does not necessarily result in the liquidation of the company. Appointments made before the introduction of the Corporations Law 1989 on 1 January 1991 continue under the new legislation.

Section 420(2) of the Corporations Act 2001 gives a receiver a wide range of powers to deal in the land of the corporation, subject to the terms of the Debenture or Court Order by which the appointment was made. The property owned by the corporation does not vest in the receiver but he or she becomes an Agent of the corporation with power to sell, mortgage, etc. (subject to the conditions of appointment).

The Corporations Act 2001 also gives the receiver the power to use the common seal of the corporation.

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

If the receiver cannot obtain the cooperation of the Directors to attest the common seal or prefers to complete the transaction personally, a signed copy of the Debenture (or a copy of the Debenture certified correct by the Australian Securities & Investments Commission) may be lodged at Landgate as a power of attorney.

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

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

A certified copy of the certificate of appointment as receiver issued by the Australian Securities and Investment Commission must be annexed to the statutory declaration.

¹Paragraph added 23/12/2020

4.1 Examples of Signing/Execution Clauses

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

The Common Seal of XYZ Co Pty Ltd

A.C.N. 123 456 789

was hereto affixed by (Name of Receiver)

its duly appointed Receiver

)

) (Signature of Receiver)

)

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

Signed by XYZ Co Pty Ltd

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

as Receiver

)

) Signature of Receiver

5 Also see

SIG-05 Signing by an Incorporated Association

Version 4 - 24/02/2023

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 a document creating or disposing of an interest in land.

2 Signing/Execution under Common Seal

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

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

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

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

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

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

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

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

3 Examples of Signing/Execution Clauses

The Common Seal of XYZ Incorporated

was hereunto affixed in the presence of

Signature of President

(Print Full Name)

President

Signature of Secretary

(Print Full Name)

Secretary

Where documents are executed without a common seal, the persons signing should show the position they hold in the company and print their name under their signature

Executed by XYZ Incorporated in accordance with

the constitution in the presence of

Signature of President

(Print Full Name)

President

Signature of Secretary

(Print Full Name)

Secretary

4 Evidence to support signing/execution of documents

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

MODEL DECLARATION - INCORPORATED ASSOCIATIONS

TRANSFER OF LAND ACT 1893

STATUTORY DECLARATION

I/We (name address and occupation of person or persons making declaration) do jointly and severally, sincerely declare as follows:

1. I am/we are (one of) the persons authorised by Rule ...... of the Rules of (name of incorporated body) the Association to affix or countersign the affixing of the Common Seal of the Association to documents.

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

3. At the time I/we affixed or countersigned the affixing of the Seal of the Association to the said transfer, I/we was/were duly authorised to do so and I/we signed in the capacity of ......./, ....... and ......... respectively of the Association.

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

This declaration is made jointly and severally under the Oaths, Affidavits and Statutory Declarations Act 2005 at ................... (place) on ....... day of ........... 20...... by

Signature of person making the declaration

In the presence of

Signature of authorised witness (Print the full name, address and qualification below the signature of the authorised witness) Where two or more persons declare, then a separate attestation is required for each person.

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

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

MODEL DECLARATION - INCORPORATED ASSOCIATIONS

TRANSFER OF LAND ACT 1893

STATUTORY DECLARATION

I/We (name address and occupation of person or persons making declaration) do jointly and severally, sincerely declare as follows:

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

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

3. At the time I/we affixed or countersigned the affixing of the Seal of the Association to the said client authorisation, I/we was/were duly authorised to do so and I/we signed in the capacity of ......./, ....... and ......... respectively of the Association.

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

This declaration is made jointly and severally under the Oaths, Affidavits and Statutory Declarations Act 2005 at ................... (place) on ....... day of ........... 20...... by

Signature of person making the declaration

In the presence of

¹Section 5 added 23/12/2020

6 Exemption from evidence requirement

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

All other documents should be supported by the declaration.

7 Masonic Lodges

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

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

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

b) with perpetual succession

c) with a common seal

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

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

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

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

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

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

7 Also see

SIG-06 Signing of Electronic Documents

Version 1 - 16/06/2017

1 Client Authorisation

To transact electronically on behalf of a client, it will be necessary to obtain written authority from your client i.e. Client Authority.

The Client Authorisation (CA) form and a description of the terms can be found in the Western Australian Participation Rules. The CA is in addition to the usual appointment to act or retainer agreement.

The CA provides for instructions for a specific transaction, standing instructions for a time period or a batch of transactions. The CA was developed in conjunction with the Law Council of Australia (LCA) and the Australian Institute of Conveyancers (AIC).

The CA authorises digital signing of documents by the Subscriber for the Client, lodgement of documents with Landgate and financial settlement. The CA must be signed by the Client before the Subscriber digitally signs documents for the Client.

Where a person enters into the CA on behalf of the Client; for example, an authorised representative of a corporate client, the Subscriber must take reasonable steps to verify the authority of that person to sign the CA.

2 Verification of Identity (VOI) of Client

At the time of entering into the CA, the Subscriber must take reasonable steps to verify the identity of their client. For electronic transactions, all clients will need to be identified.

A Subscriber can determine what constitutes "reasonable steps" in the circumstances. However, if a Subscriber complies with the Verification of Identity Standard, in the Western Australian Participation Rules, the Subscriber is deemed to have taken reasonable steps. A person providing an identifier declaration, used when the client is unable to provide documentary evidence of identity, also needs to be identified.

VOI is also required for each of the following circumstances:

the Subscriber’s signers, before giving them a digital certificate
where a Subscriber represents a mortgagee, the mortgagor (unless the mortgagee has already verified the identity of the mortgagor)
a person to whom a duplicate certificate of title is handed, unless that person is another Subscriber.

3 Client Entitled to Deal

A Subscriber must also take reasonable steps to verify that its Client is entitled to enter into the conveyancing transaction referred to in the CA.

4 Using Digital Certificates

Documents prepared electronically are signed by the Subscriber on behalf of the Client using a digital signature.

A Subscriber is liable for the use of digital certificates issued in the name of the Subscriber or at the request of the Subscriber to any person, like an employee.

A document that is digitally signed binds the Subscriber and its Client and can be relied on by the Registrar of Titles and by other parties to a conveyancing transaction.

Compliance by Subscribers with the obligations in the Western Australian Participation Rules relating to system security and integrity is fundamental to the integrity of NEC. The consequences under the Participation Rules for non-compliance by a Subscriber include restriction, suspension or termination from use of the Electronic Lodgment Network (ELN).

A Subscriber must:

take reasonable steps to comply with the ELN’s Security Policy, including security of digital certificates
ensure that only persons authorised by the Subscriber can access and use the ELN
ensure only those authorised to Sign for the Subscriber do so
take reasonable steps to ensure its Signers are persons of good character
revoke authority of those no longer authorised to sign or access the ELN
ensure that information provided to any authority is correct
ensure that Users are trained
take immediate action if a security item like a digital certificate has been compromised or used improperly, un-sign any affected document and notify the Electronic Lodgement Network Operator (ELNO).

5 Certifications

At the time of attaching a digital signature on behalf of a client, the Subscriber makes certain certifications. These certifications appear on the registry instrument and are set out in the Western Australian Participation Rules.

The certifications relate to:

the taking of reasonable steps to verify a party's identity
the holding of a Client Authorisation
the retention of supporting evidence for the electronic document (including the CA; verification of identity documentation; documentation supporting authority to enter into the transaction. Documents or a copy to be retained for 7 years)
the correctness of the instrument and compliance with Registrar’s requirements
verification of the identity of a mortgagor and the retention of a counterpart mortgage signed by the mortgagor.

5.1 False Certifications

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

As at 08 January 2016, section 214 (3)(b) states that making or giving a false certification is an offence.
The penalty for an offence is imprisonment for 10 years and a fine of $100,000 (s.214(1)).
The summary conviction penalty for an offence is imprisonment for 3 years and a fine of $40,000 (s.214(1)).
Section 214(2) states that an offence under subsection (1) is a crime.

6 Supporting Evidence

A Subscriber will be required to obtain any supporting evidence necessary for the transaction and to retain copies of the evidence for the required period of seven years. This will include the VOI documents, copies of marriage certificates, etc.

Unlike current paper lodgement practice, some types of supporting evidence will not be required to be lodged with Landgate for electronic transactions. Instead, the Registrar will rely on the certification given by the Subscriber in the electronic instrument that the supporting evidence for the transaction is held.

In the future, the Registrar may adopt certifications for some supporting evidence for paper documents as well.

The Registrar and the Commissioner will have the ability to set requirements for supporting evidence (for example, what must be obtained and retained by a Subscriber; what must be lodged; how supporting evidence can be submitted).

Where supporting evidence is not required to be lodged, the Registrar and the Commissioner will have the power to call in that supporting evidence if it is considered necessary. If the supporting evidence is not provided within the specified time, the document can be rejected from registration.

The Registrar and Commissioner will also be able to require a statutory declaration be provided to verify any matter.

7 Also see

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

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

Version 3 - 09/04/2020

1 Overview

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

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

Signatures on documents, witnessing requirements

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

(i) a notary public; or

(ii) an Australian consular officer; or

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

(iv) a judge or magistrate; or

(v) qualified and entitled to practise law; or

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

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

(viii) qualified as a school teacher; or

(ix) a university lecturer; or

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

(xi) a person with managerial responsibility in a bank¹

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

(Also see Verification of Identity web page.)

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

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

When reasonable likeness is confirmed, the ACO:

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

The ACO hands to the person transacting the:

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

The ACO will not advise the person transacting of the documents required to be sighted and certified; this is the responsibility of that person’s Australian representative, such as the Conveyancer/Lawyer/Mortgagee, who must provide written instructions to the person transacting.

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

Witnessing of Documents - Outside Australia - COVID-19 Emergency²

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

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

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

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

2 Also see

- Verification of Identity web page

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

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

Version 4 23/03/2023

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 ................

Signed for and on behalf of (Name of Donor) by

It’s duly appointed Attorney

the presence of

Witness

(Witness Full Name, Address and Occupation)

)

) (Signature of Attorney)

) (full name of Attorney)

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

Signing by an Attorney by role description

Signed by (Name of Attorney) (Role) as

Attorney for (Name of Donor) in

the presence of

Witness

(Witness Full Name, Address and Occupation)

)

) (Signature of Attorney)

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

Signing by Joint Attorney¹

Signed by (Name of Attorney) and (Name of Attorney)

as Attorneys for (Name of Donor) under

(Power of Attorney number)

(Signature of Attorney)

(Signature of Witness)

(Witness Full Name, Address and Occupation)

(Signature of Attorney)

(Signature of Witness)

(Witness Full Name, Address and Occupation)

¹Example added 23/08/2022

3 Also see²

- POA-01 Power of Attorney

- POA-02 Power of Attorney – types of

POA-03 Power of Attorney – enduring

²Section updated 20/03/2023

SIG-09 Signing by a Local Government

Version 2 - 02/09/2020

1 Overview

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

Sample

The Common Seal of ……………………….

was hereunto affixed in the presence of

Signature of Mayor or President

(Print Full Name)

Mayor or President

Signature of CEO or Authorised Officer

(Print Full Name)

CEO or Authorised Officer

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

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

Sample

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

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

by it’s Authorised Person.

Signature of CEO or Authorised Person

(Print Full Name)

CEO or Authorised Officer

¹ Section added 02/09/2020

2 Also see

SIG-10 Signing by a Minor

Version 1 - 30/06/2017

1 Overview

Any person who is under the age of eighteen years is a minor and as such is incapable of dealing in real property. However, a minor can become the registered proprietor of land. Section 59 of the TLA requires the Registrar to show the age of the minor on a certificate of title registered in the name of a minor.

Where a minor is required to execute an instrument as accepting party, it is a matter of discretion as to whether such instrument can be signed by the minor or should be signed by a parent or guardian on the minor’s behalf. A Court Order is required, appointing a person to sign instruments under the Act, where it is necessary or desirable for a minor to sell or mortgage land (see s.82 of the Trustees Act 1962).

The instruments are prepared in the name of the minor and executed by the person appointed in the Order. The Order must be produced when the instruments are lodged. A form of attestation suitable to such cases is:

Signed by (Name of the Minor) as

by (his or her) guardian ad litem

(Name of Guardian) in

the presence of

Witness

(Full Name, Address and Occupation)

)

) (Signature of Guardian)

)

To overcome this restriction, land held beneficially by a minor is frequently registered in the name of a trustee pursuant to a declaration of trust.

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

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

2 Also see

SIG-11 Signing by a Partnership

Version 1 - 30/06/2017

1 Overview

A partnership is not a separate legal entity and almost all dealings in land by a partnership must be carried out by listing the names of the individual partners and where appropriate, converting their share in the partnership to a like share of the interest shown in the document.

A group of partners lending money as a mortgagee must show the individuals as mortgagees in the mortgagee panel, preferably with their shares also disclosed. The contractual part of the mortgage may, however, contain a reference to the partnership by its trading name.

A caveat can also, after listing the members of a partnership by their individual names as caveators, show that they are operating as a partnership (by use of the trading name). Any subsequent withdrawal of such caveat must be made collectively by the partners individually. If the withdrawal is not signed by all caveators, a statutory declaration by at least one of the partners must provide with the withdrawal a statutory declaration setting out a list of the partners and the authority of that partner to withdraw the caveat and sign the withdrawal of caveat on the other partners’ behalf.

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

2 Also see

SIG-12 Signing by a Registered Friendly Society

Version 1 - 30/06/2017

1 Overview

Section 15(4) of the Friendly Societies Act 1894 provided that all the property of a Society shall vest in the trustees of the Society for the time being. Section 16 of the Friendly Societies Act 1894 gave the trustees power to sell and mortgage land except land granted/transferred by the Crown for a specific purpose. A mortgage of such land required the consent of the Governor or Minister as the case may be in writing.

A transfer and mortgage by the trustees of the Society required attestation by all the trustees of the Society and a discharge or partial discharge could be signed by the trustees or a majority of them.

A certificate in the form of the Sixth Schedule to the above Act, under the hand of the Registrar of Co-operative and Financial Institutions of the names of the trustees of any Society or branch was sufficient evidence that the persons named are the trustees of that Society or branch. That certificate when registered at Landgate on payment of the required fee remained in force until superseded by a later certificate.

The certificate was numbered and recorded on the internal Landgate computer system locally known as Ditbook. Any dealing by a Friendly Society could be checked against Ditbook to verify the correctness of the attestation by the trustees.

The Friendly Societies Act 1894 was repealed by the Friendly Societies (Western Australia) Act 1999, which in turn was repealed by the Acts Amendment and Repeal (Financial Sector Reform) Act 1999. Friendly Societies in Western Australia are now regulated by the Commonwealth and are now registered under the Corporations Act 2001 and regulated by the Australian Prudential Regulation Authority (APRA). As an example, the Trustees for the United Ancient Order of Druids is now the Druids Friendly Society Limited.

Documents that are executed by Friendly Societies are now executed in the same manner as any other corporation.

2 Also see

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

Version 2 - 24/11/2021

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/Indigenous corporations. The terms can be interchangeable, a reference to one in this guide can mean the other.

The Office of the Registrar of Indigenous Corporations established by the Act is responsible for the registration of Indigenous 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

CAP-01 Capacity of Parties

SIG-14 Signing by a Strata Company

Version 4 - 03/11/2022

1 Overview

Under the Strata Titles Act 1985 (STA) section 118(3), a document is duly executed by a strata company if:

the common seal of the strata company is applied to it in accordance with section 118(1);

the document is signed on behalf of the strata company by a person or persons in accordance with an authority conferred under section 118(2).

Some things to note are:

A common seal is optional for strata companies and may be electronic.
If a common seal is used it must be attested (witnessed) by any 2 members of council.
An ordinary resolution is necessary to determine when the strata company may use the common seal (if it has one).
An ordinary resolution must authorise which persons can sign documents on behalf of the strata company (without a common seal).

2 Execution Requirements²

A strata company can execute a document:

With common seal, by applying the strata company’s common seal to the document as authorised by ordinary resolution of the strata company and attesting use of the seal by the signatures of two council members of the strata company;

Without common seal, by having the document signed by a person or persons authorised by an ordinary resolution of the strata company to sign documents on behalf of the strata company. Under STA section 118(2), the person or persons must be a member of the council, members of the council acting jointly (this could be more than two members of council) or a strata manager of the strata company.

Be aware that section 118(1) requires 2 members of council to witness the affixing of the common seal, regardless of how many owners are in the scheme. If there is a sole owner of all the lots and therefore only one member of council, the strata company could execute the document under the signature of the sole council member under section 118(2 ) (without common seal) provided the strata company has passed an ordinary resolution authorising its sole council member to sign documents on its behalf.

If only 1 member of council has witnessed affixing the seal to a document, this is contrary to the requirements of the STA. Landgate will requisition the document.

An attorney of a council member does not have authority to sign documents on behalf of the strata company or witness the affixing of the common seal.

If you are purchasing a common seal, it must contain the name of the strata company. See STA section 14(2).

The name of the strata company is made up of:

the words “The Owners of”; and
the scheme name; and
the scheme type (i.e. strata scheme or survey-strata scheme); and
the scheme number.

For plans registered before 1 May 2020 – the scheme name, scheme type and scheme number are shown on the scheme plan or Amendment of Scheme Notice where an amendment has been registered.

For schemes registered on or after 1 May 2020 – the scheme name, scheme type and scheme number are shown on the Scheme Notice or Amendment of Scheme Notice where an amendment has been registered.

²Section updated 03/11/2022

3 Examples of Signing/Execution Clauses

3.1 Common Seal

The common seal of The Owners of 20 Perfect Place Pleasantville Strata Scheme 999999 is fixed to this document in accordance with the Strata Titles Act 1985 section 118(1) in the presence of:

Member of Council:

Signature

Full name

Member of Council:

Signature

Full name

3.2 No Common Seal

Signed for and on behalf of The Owners of 20 Perfect Place Pleasantville Strata Scheme 999999 in accordance with the Strata Titles Act 1985 section 118(2):

☐ Member of Council / ☐ Strata Manager of strata company¹:

Signature

Full name

☐ Member of Council / ☐ Strata Manager of strata company¹:

Signature

Full name

¹Select the applicable option.

SIG-16 Signing by a Plenary Administrator under SAT Order

Version 2 - 15/09/2022

1 Overview

Where a person has been deemed incapable and can no longer legally sign legal documents a responsible person should seek an Order from the State Administrative Tribunal (SAT) which may grant all or limited powers under the Act for the said person. The Supreme Court may also appoint a Manager in similar cases.

The proper style of execution by an administrator/manager is shown below but in practice any form of attestation will be accepted provided it is clear that the attorney is signing as administrator/manager.

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 SAT or Court Orders should comply with the Transfer of Land Act 1893 (TLA) witnessing requirements. It is preferable that each administrator/manager signature is independently witnessed.

A copy of the SAT Order/Court order plus the required statutory declaration must also accompany the relevant transaction in paper or electronically, see CAP-02 Incapable Persons for more information.¹

¹Paragraph updated 15/09/2022

2 Examples of Signing/Execution Clauses

A proper execution by an attorney is:

Signed by (Name of Administrator) as

Plenary Administrator for (Name of incapable person)

Pursuant to State Administrative Tribunal Order (SAT) (Signature of Administrator)

(order number) made the (date of order)

the presence of

Witness (Signature of witness)

(Full Name, Address and Occupation)

And/or

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 (Signature of witness)

(Full Name, Address and Occupation)

3 Also see

CAP-02 Incapable Persons

Lodgement and Registration

LOD-01 Lodging of Electronic Documents

Version 5 - 29/11/2021

1 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. A successful title verification shows that the title can be dealt on electronically but it does not mean that all electronic transactions will be eligible. A Subscriber should undertake a title search to determine the current interests/encumbrances/notifications and how they may affect the proposed transaction.
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. TACs will be triggered automatically by the system or requested manually by a Subscriber.
Lodgement Verification (LV) - The objective of this service is to request Landgate to validate that a given lodgement case is acceptable for lodgement. This service is invoked automatically by the ELNO when:
- All documents in the lodgement case (the lodgement instructions, all registry documents or administrative notices) have been prepared, are complete, but not yet necessarily certified or signed
- All documents in the lodgement case have been certified and signed by all the relevant subscribers
- A TAC response of ‘Yes’ is returned in a lodgement case involving settlement
Lodgement Verification Status (LVS) – This service provides a means for Landgate to communicate back to the originating ELNO workspace the status of a lodgement verification request. Upon receipt of a lodgement verification request, Landgate will complete verification of all documents in the lodgement case and confirm their acceptability for lodgement. Landgate will compile the lodgement verification compliance report and the lodgement fee estimate and send the lodgement verification status advice to the ELNO. If the lodgement case:
- passes verification – Landgate returns a successful lodgement verification compliance report (compliance indicator = "Yes"). This includes warning and information messages.
- fails verification – Landgate will return an unsuccessful lodgement verification compliance report (compliance indicator = "No"). This includes error and warning messages which detail required documents missing from the lodgement case as well as documents in the lodgement case which fail verification, and reason(s) why identified documents are not eligible for lodgement.

Some examples of critical errors which would result in documents being unacceptable for lodgement include but are not limited to:

the land title is not current
the land title is not valid
incorrect fees paid
digital signature is missing
subscriber organisation in the digital signature does not match execution
subscriber does not exist. A title status can change from 'able to be dealt with electronically' to 'unable to be dealt with electronically' during the life of the workspace. This can happen as a result of the title becoming ‘in order for dealing’ due to a recent lodgement that is as yet registered. Subscribers should investigate any returned warning and take appropriate action as required.
Lodgement (L) – This service provides a means for the ELNO to submit a case for lodgement.
Lodgement Case Status (LCS) – This service provides a means for Landgate to communicate back to the originating ELNO workspace the status of a lodgement case. Notwithstanding prior successful lodgement verification, Landgate may or may not accept a case for lodgement. The lodgement case status returns the status of the case (Not Accepted, Lodged, Completed).

2 Attaching Evidence to Electronic Documents

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

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

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

3 Duplicate Certificates of Title

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

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

3.1 Duplicate Holding Details and Issuing Instructions¹

In relation to the duplicate holding details and issuing instructions - if an outgoing mortgagee enters duplicate holding details, one of the parties in the workspace will be required to enter issuing instructions. Which party instructs the issuing, depends on the documents being lodged.

For example:

For a standalone discharge, the outgoing mortgagee would need to enter the issuing instructions
For a discharge and transfer, the transferee’s representative would enter the issuing instructions
For a discharge, transfer and mortgage, the incoming mortgagee would enter the issuing instructions

¹Section 3.1 added 29/11/2021

LOD-02 Lodging of Paper Documents

Version 5 - 08/03/2022

1 Overview

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

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

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

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

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

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

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

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

Discharge of Mortgage/Mortgage
Transfer
Caveat/Withdrawal of Caveat

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

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

FAQs

Who needs to provide the coversheet?

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

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

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

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

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

What is an eligible transaction?

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

What happens if I don’t provide the coversheet?

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

Who can sign the coversheet?

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

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

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

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

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

²Section added 21/10/2020

3 Lodgement Acceptability Check

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

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

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

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

The LAC process reviews paper documents for correctness in the following general criteria:⁴

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 (letters explaining inconsistency of signatures can be copies)³
documents are duty noted or duty certificate provided (where applicable)

³Clarification of dot point added 23/11/2021

⁴Criteria updated to remove consent/s provided are original

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

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

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

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

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

4 Lodging a Series of Documents (Joint Lodgement)

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

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

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

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

5 Lodgement by Post¹

Documents may be lodged by post.

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

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

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

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

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

The postal address for document lodgement is:

Landgate

Document Lodgement Section PO Box 2222

MIDLAND WA 6936

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

6 Also see

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

LOD-03 Fees and Transfer Duty

Version 5 - 02/12/2022

1 Fees

1.1 Payment of Fees

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

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

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

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

1.2 Ad Valorem Fees¹

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

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

¹Section 2.1 added 06/07/2020

2 Duty

2.1 General²

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 RevenueWA for a duty assessment (either via the Online Services Portal or manually) 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 assessed and duty noted by RevenueWA (Duties Division) before the document can be presented to Landgate for lodgement.

RevenueWA 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 and where not exempt, the duty has been paid. 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.

²Section updated 02/12/2022

2.2 Cocos (Keeling) Islands and Christmas Island

From 1 January 1994, dealings in land in either the Cocos (Keeling) Islands or Christmas Island require stamp duty to be paid on the same basis as eligible documents dealing in land in Western Australia. The duty is payable on documents entered into (signed) after 31 December 1993.

2.3 Additional Stamping

Documents tendered for registration or deposit, which have obviously been noted and stamped by OSR, will be regarded as sufficiently stamped unless it would seem that fresh matter, which would render the document liable to further duty, has been added since the date of stamping.

In the latter case, a requisition will be made and the lodging party advised to submit the document again to Revenue WA.

2.4 Documents that Require Stamping

Unless covered by statutory exemptions (as in transfers or leases to the Crown, Crown Instrumentalities and Local Governments) and marked exempt from duty by the Commissioner for State Taxation, the undermentioned documents must be sufficiently stamped before registration:

Conveyance and Amalgamation Order
Declaration of Trust
Disposition statement filed with a strata/survey-strata plan application
Family Court Orders vesting land
Grant of Easement
Lease, Sub-lease (if consideration is paid or agreed to be paid)
Order for Foreclosure
Profit à Prendre (s.91(1) Land Administration Act 1997)
Surrender of Easement
Surrender of Lease (if consideration is paid or agreed to be paid)
Surrender of Profit à Prendre (if consideration is paid)
Surrender of Tree Plantation Interests (if consideration is paid)
Transfer of freehold estate in land
Transfer of leasehold estate in land
Transfer of Profit à Prendre
Transfer of Tree Plantation Interests
Vesting Order

Conveyances and other deeds created for the purpose of registration under the Registration of Deeds Act 1856, which create the same interests listed above, must also be stamped before memorialisation.

Orders made by the State Administrative Tribunal in strata title matters are exempt from Stamp Duty.

Note: Revenue WA is to be contacted concerning assessment of stamp duty on documents, and evidence in support of a document which may be subject to stamp duty assessment prior to lodgement at Landgate.

3 Also see

- LOD-04 Registration

LOD-04 Registration

Version 1 - 12/09/2017

1 Overview

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

2 From 1 September 2015

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

3 How Registration May Be Prevented or Delayed

Registration may be prevented or delayed by:

lodgement of a caveat
service of a Property (Seizure and Sale) Order (s.133 of the TLA)
an order for stay of registration (s.148 of the TLA)
lodgement of a notice of intention to take or a Taking Order under Part 9 of the Land Administration Act 1997 (LAA)
a notice of intention to acquire by the Commonwealth of Australia
a memorial lodged pursuant to certain statutory provisions prohibiting dealings with the estate and interest of the registered proprietor until withdrawn or until the body lodging the memorial consents in writing to such dealings
lodgement of a statutory charge
any order of the Supreme Court directing the Registrar to delay registration of any dealing presented for registration
creation of Registrar Packet
creation of Stopper
an embargo notice issued by virtue of the provisions of the Misuse of Drugs Act, 1981 or the Crimes (Confiscation of Profits) Act 1988

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

It should be noted that the memoranda for all the above procedures are not shown on the duplicate certificate of title. Preparation of documents from the duplicate certificate should never be attempted without first obtaining an up-to-date search of the original certificate of title from Landgate.

In the case of Supreme Court orders and embargo notices, because they are not shown on the Register, the title for the land becomes subject to what is known as a Registrar’s Packet.

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

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

4 Also see

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

Version 4 - 25/10/2022

1 Overview

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

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

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

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

Where a request for urgency is accepted and approved this does not guarantee registration, it simply escalates the document or plan to an Officer for examination, in priority of other transactions. The Document or Plan will be subject to standard examination and Stopped if found to be erroneous or defective. Also See LOD-07 Stopped Documents.¹

Where complex documents are referred to the Commissioner of Titles and Landgate’s In-house legal team for legal assessment and instruction, the document(s) will be considered based on priority with other urgent matters.²

¹Paragraph updated 25/10/2022

²Paragraph inserted 25/10/2022

Note: Verbal requests cannot be considered.

2 Financial Hardship

Requests must be supported by evidence of the hardship. Evidence may include copy/s of letters from financial institutions (set out on a letterhead of the financial institution).
Evidence can also be provided by providing an originally signed statutory declaration from the person making the request.
A photocopy or facsimile copy of a statutory declaration will be accepted with the request to expedite the processing of plans and documents but the original signed declaration must be forwarded to Landgate within 2 working days. The statutory declaration made must clearly set out the details of the financial hardship.

3 Contract or Definitive Settlement Date

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

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

4 Also see

- LOD-06 Issue of Instruments after Registration

- LOD-04 Registration

- LOD-07 Stopped Documents

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

LOD-06 Issue of Instruments after Registration

Version 1 - 18/12/2017

1 Overview

Documents of which there is only one copy, e.g. transfers and discharges of mortgages, are retained by Landgate.

The duplicate certificate of title (if any), Crown lease under the Land Act 1933 or leases of Crown Land under the LAA and duplicate copies of any other document are returned to the lodging party through a system of issuing boxes similar to Post Office Boxes.

Regular customers are allocated a numbered box in the Perth and Midland Offices and issued a key to it. Documents to issue to private customers are held in a series of alphabetically labelled boxes under staff supervision for collection by the customer. The customer must produce either the document receipt or some other form of proof of identity such as a driver’s licence before the documents are handed over. A computer record of the party receiving the document is maintained.

Where the documents are to issue to a person other than the person designated at the time of lodgement, an authority is required signed by the person entitled to receive the document or certificate giving specific instructions as to delivery.

Documents and certificates may be issued by ordinary mail if a request is made at the time the document is lodged. A full postal address for the addressee must be supplied.

2 Issuing Receipts

2.1 From 1897 to 1963

In the period 1897 to December 1963, whenever a duplicate title was issued, a receipt number was written on the original title on the front top left hand corner. If the duplicate title was issued more than once over a series of years a new number was added each time. The numbers consisted of a number and year, e.g. 1234/45.

Receipt books completed in the receipt number order are still held by Landgate in a secondary storage warehouse and access to the books or the information can be arranged by contact with the Land Registration Centre in the Landgate building in Midland or by telephone on +61 (0)8 9273 7314.

2.2 From 1964 to 1969

In the period 1964 to 1969, at the completion of the registration of a document, a receipt number was stamped on the front of it (the document) to create a record of the issuing of the title. Receipt books completed in the receipt order number are still held by Landgate in secondary storage warehouse and a microfilm copy of the books is also kept. A print of the information can be obtained by arrangement with the Land Registration Centre.

2.3 From 1970 to 30 April 1984

In the period 1970 to 30 April 1984, a separate issuing card was created for each duplicate title issued (and other items such as Grants of Probate and duplicate documents). The cards were allocated the same number as the number of the document with which the duplicate title was produced and microfilm records were made of the cards and the cards destroyed. A print of the information held on microfiche can be obtained by arrangement with the Land Registration Centre.

2.4 From May 1984 to March 1992

In the period 1 May 1984 to 22 March 1992, a separate issuing card was created for each duplicate title (and other items) issued. Issuing cards for items issued between this period of time were not microfilmed. After a period (usually 12 months) the cards were destroyed and the titles are deemed to have been issued in accordance with the issuing instructions made on the document at the time of lodgement.

2.5 From 23 March 1992 to 13 August 1993

In the period 23 March 1992 to 13 August 1993, a separate issuing card was created for each duplicate title (and other items) issued. The cards were allocated the same number as the number of the document with which the duplicate was produced and microfilm records were made of the cards and the cards destroyed. A print of the information held on microfiche can be obtained by arrangement with the Land Registration Centre.

2.6 From 14 August 1993 to 22 October 1993

In the period 14 August 1993 to 22 October 1993, no separate issuing records were created and duplicate titles (and other items) issued are deemed to have been issued in accordance with the issuing instructions made on the document at the time of lodgement.

2.7 From 25 October 1993 to 17 January 1995

From 25 October 1993 to 17 January 1995, at the completion of the registration of a document a record was made of the issuing party to whom the duplicate title was issued. The duplicate title and a computer record printout showing the title number and recipient was placed in the appropriate customer’s locked issuing box.

If the customer collected the document from the box and left the Landgate premises without reference to the staff, the duplicate title was deemed to have been issued in accordance with the computer record. Access to the information held on record can be arranged by contact with the Land Registration Centre in the Landgate building in Midland or by telephone on +61 (0)8 9273 7314.

2.8 From 18 January 1995 to 13 January 2017

On 18 January 1995, the present Document Issuing System (DIS) was introduced. The main features of the new system are:

a computer record of all items issued back to the Client from 18 January 1995;
the production of Issuing Lists for signing by the Client detailing any items which have been collected; and
free on-line enquiry facilities for My Landgate subscribers.

The Issuing Lists are uniquely numbered and produced in duplicate. Both copies of the Issuing List are placed in the Client’s issuing box with the items being issued. Clients are required to check that the items noted on the Issuing List have been received, then sign and date the Landgate copy and place it in the collection box located at the Issuing Counter.

2.9 From 16 January 2017 to present

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

the removal of batch printing

and

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

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

The Client retains the Issuing List for their records.

3 Also See

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

- LOD-04 Registration

- LOD-07 Stopped Documents

LOD-07 Stopped Documents

Version 6 - 02/11/2021

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 party⁸ 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).

⁸the words "and preparing party" removed 06/08/2021

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 192A 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 Uplifting⁷

Documents requiring uplifting may be collected at:

Midland office (in person or by courier)

Perth (Cloisters) office (by person specified by lodging party

Posted to lodging party or authorised person.

⁷Updated to include collection from Perth (Cloisters) office 13/05/2021

Request to uplift documents must:

be on a company letterhead
signed personally by the principal or an authorised person of the lodging party
contain document reference number and name of the Landgate document Examiner (if known)

and

identify the person uplifting the document. (If a courier company, the name of the courier company).

To ensure that the documents that are to be collected in person or by courier are correctly prepared for collection, a faxed copy of the uplift authority letter should be sent to the document Examiner at least one (1) day before collecting the uplifted documents.

To assist the courier company when they collect the documents please provide them with the full details of the documents to be collected (i.e. document number, examiners’ name and telephone

number).

The person who authorises the uplifting of the document(s) must take full responsibility for the return of the document to Landgate within three working days (72 hours). Documents not returned within three working days (72 hours) may be rejected.

4.2 Returning Uplifted Documents

Uplifted documents can be returned to Landgate:

by post to the Midland office

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

Corrected documents should be placed inside a sealed envelope addressed to the Landgate Examiner by name (if known), including the examination group number and document number.

Conveyancers should advise the Landgate document Examiner when returning documents via the Perth (Cloisters) office, as in most instances the documents will not reach the Examiner until the next working day.

5 Fixing Stopped Documents

Where requisitions are raised by Landgate on documents lodged for registration and amendments are required to those documents, such amendments must be authorised. In general, alterations should be initialled by all signatories, including witnesses, unless otherwise stated.²

²Sentence amended 05/03/2021

Note: Liquid paper/correction fluid/white out is not acceptable for use on land transaction documents and cannot be used to make alterations or corrections to original documents that have been uplifted from Landgate as part of the requisition process.³

³Paragraph added 5/03/2021

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 transferees 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 (including the land description, document type, parties to the document, etc)⁴
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

⁴Further clarification added 09/03/2021

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) as follows (include/detail the amendments that are to be made to the relevant document/s).⁵

Signed: …………………….

Witnessed: …………………….

Dated: …………………….

⁵Amended 10/03/2021

5.1 Substitution/Replacement of Documents¹

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

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

5.2 Amendment to Time Date Priority of lodged Documents¹

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

¹Sections 5.1 and 5.2 added 06/07/2020

6 Withdrawal of Documents from Registration

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

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

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

If the lodging party does not hold a Landgate account and is entitled to a refund, a separate signed letter including the BSB, account number and account name can be advised for the refund to be deposited into a bank account.⁶

⁶Paragraph added 10/3/2021

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

Where a case is subject to a requisition and after the expiry of the specified timeframe to correct, if no action is taken to remedy the defect the ‘whole’ case will be subject to and be considered for rejection. It is not the Registrar of Titles' role to apply discretion if document/s within the requisitioned case are to proceed to registration and others to be rejected as the Registrar will not be aware of the broader implications or ramifications that may arise from partial registration/rejection.⁸

⁸Paragraph added 02/11/2021

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

- DOC-03 Amendment of Documents

- Guide to Getting it Right

Proprietor

ADD-01 Change of address

Version 2 - 04/10/2018

1 Overview

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

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

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

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

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

2 By a Registered Proprietor with or without a Mortgage

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

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

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

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

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

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

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

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

¹ [Section 1-3 updated on 04/10/2018]

4 Amend Address for Service of Notice for a Caveator

The caveator may make application under s.240A of the Transfer of Land Act 1893 to change the address or fax number given on a caveat for service of notice. The address for service of notices to the caveator is most important. Caveators and persons acting on their behalf should ensure that such address is kept current.

The caveator’s responsibility for the caveat does not end when the caveat is lodged. Caveators must deal with any statutory notice sent to them, as their rights will always be affected. If they do not understand the nature or effect of the notice, they should immediately seek legal advice.

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

a description of the land caveated, Extent, Volume and Folio number
the name and address of the caveator
the document number of the caveat
a request to amend the address or the number for a facsimile machine for service of notices from the old address or facsimile number to the new address or facsimile number
the date and signature of the caveator and witness (where the caveator is a company, the appropriate execution under the Corporations Act 2001 will be required.).

Standard document lodgement fees are payable for this Application.

5 Also see

- DOC-01 Document Preparation

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

Version 5 - 29/05/2023

This guide has been rewritten as at 29/07/2022

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.

1.1 Execution of the Application

Where the Trustee in Bankruptcy is the Official Trustee in Bankruptcy the Trustee should affix the Official Seal and execution clause and sign, there is no witness required.

Where private or individual Trustee/s are appointed, the Trustee/s will need to sign and have their signature witnessed.

1.2 Effect of Application on the Title¹

Upon the registration of the Application, the tenancy will be severed if the land was held as joint tenants, see DOC-05 Tenancy. The Trustee in Bankruptcy will be recorded in the first schedule of the title in said capacity as registered proprietor.

The Trustee in Bankruptcy can then proceed to sell the land as the transferor in a Transfer of Land.

¹Section added 27/10/2022

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 by reference to the full legal land description (Lot on Plan and Volume/Folio)
state who the current registered proprietor or proprietors of the subject land is (or at least one of them, if more than one) and identify the proprietor as the bankrupt person,
state at the time of signing the application bankruptcy still existed
state that the appointment of the trustee is still current and has not been varied or terminated; and
address are any discrepancies in the name of the bankrupt person as shown on the title to the certificate of appointment as one and the same

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 Bankrupt²

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.

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.

NOTE: Where the Application severed tenancy, if the parties seek to hold a joint tenancy again then then all persons should be a party to the Transfer. Otherwise, a tenants in common in equal shares will be created.

5.1 Sample

Transfers of this nature may be prepared in the following way:

Estate: fee simple

Transferor: A as Trustee in Bankruptcy for B

Consideration: monetary amount or Deed

Transferee: B of etc.

Estate: fee simple

Transferor: A as Trustee in Bankruptcy for B and D

Consideration: monetary amount or Deed AND a desire to be joint tenants

Transferee: B and D of etc as joint tenants.

5.2 Evidence to Support the Transfer

The evidence specified in 2.2 above should accompany the Transfer.

²Section updated 29/05/2023

6 Caveats by the Trustee in Bankruptcy

Where the Trustee in Bankruptcy has lodged a caveat to indicate a proprietor was or has been declared Bankrupt, the Trustee should lodge a withdrawal of caveat at the same time as the Application.

7 Also See

COT-02 Duplicate title

DOC-04 Statutory Declarations and Supporting Evidence

SIG-01 Signing and witnessing of documents

CAP-01 Capacity of Parties

Version 1 - 19/03/2018

1 Minors

Any person who is under the age of eighteen years is a minor and as such is incapable of dealing in real property. However, a minor can become the registered proprietor of land. Section 59 of the Transfer of Land Act 1893 (TLA) requires the Registrar to show the age of the minor on a certificate of title registered in the name of a minor.

Signed by (Name of the Minor) )

by (his or her) guardian ad litem )

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

the presence of )

Witness

(Full Name, Address and Occupation)

To overcome this restriction, land held beneficially by a minor is frequently registered in the name of a trustee pursuant to a declaration of trust.

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

1.1 Verification of Identity of a Minor

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

2 Partnerships

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

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

In almost all dealings in land by a partnership it must be carried out by listing the names of the individual partners and where appropriate, converting their share in the partnership to a like share of the interest shown in the document.

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

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

2.1 Removal of an encumbrance by a Partnership

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

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

Signed by…………..

as Partner for …………….

In the presence of (witness).

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

CAP-02 Incapable Persons

Version 4 – 03/08/2020

1 Before 7 September 1990

Before the introduction of the GA Act (WA), the Supreme Court could declare a person incapable of managing his or her own affairs. The power to do so was contained in Part VI of the Mental Health Act 1962. The Court could appoint a person, the Public Trustee or a Trustee Company as manager of the estate of the incapable person (s.64). The Court could, by Order, authorise or direct the manager to exercise all or any of powers set out in s.68. Notwithstanding the introduction of the new legislation, actions commenced under the previous legislation and not then completed still continue under the previous legislation.

2 After 7 September 1990

For actions commencing from 7 September 1990 the Guardianship and Administration Board (the Board) may declare a person incapable of managing his or her own affairs. The Board may appoint a person or a Trustee Company as administrator of the estate of the incapable person (s.64). The Board may, by Order, either grant plenary powers or authorise or direct the administrator to exercise all or any of powers set out in Schedule 2 Part A of the Act.

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

3 Orders (SAT)

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

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

4 Dealings by a Manager or Administrator

A document must be drawn in the name of the incapable person and supported by the original copy from the office where it was issued or a Landgate Sighted copy or Australia Post certified copy of the Order under which the manager or plenary administrator proposes to act and statutory declaration. Care should be taken that the powers given by the Order are not exceeded and that the terms of the Order are strictly observed.

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

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

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

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

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

²Paragraph inserted 03/08/2020

4.1 Execution samples

A suitable form of attestation for instruments dealing with the estate of incapable person is:

Signed by (name of manager) )

the Manager of (name of incapable ) (signature of Manager)

person) pursuant to an Order of the )

Supreme Court of Western Australia )

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

presence of )

Witness

(Full Name, Address and Occupation)

Signed by (name of Administrator) )

as the Plenary Administrator of (name of )

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

of the State Administrative Tribunal )

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

in the presence of )

Witness

(Full Name, Address and Occupation)

5 Dealings by the Protective Commissioner of New South Wales

The Protective Commissioner of New South Wales is an independent public official whose office is constituted under the Protected Estates Act 1983 (NSW) (the Act). This public official has responsibilities similar to that of the Guardianship and Administration Board in Western Australia.

Under the Act, the Protective Commissioner is appointed to protect and administer the financial affairs and property of people unable to make financial decisions for themselves and where there is no other person suitable or able to assist.

The office was established in 1985, forms part of the Human Rights Program of the New South Wales Attorney General’s Department, and provides a wide range of legal, technical, financial, specialist, disability and other services. It is required, by law, to make decisions that are in the best interests of the person whose affairs are under management, and decisions are guided by the principles set out under the Guardianship Act 1987 (NSW).

The Office of the Protective Commissioner and the Office of the Public Guardian work in tandem, the Office of the Protective Commissioner deals with management of the financial and property interests of its clients, and the Office of the Public Guardian deals with personal and lifestyle issues.

Although each agency is independent of the other, with separate staff and different legislation, the one person holds both positions of Protective Commissioner and Public Guardian.

5.1 Appointment

The Protective Commissioner may be appointed following an application for a financial management order. A financial management order is a legal decision to appoint the Protective Commissioner, or a private individual under the supervision of the Protective Commissioner, to manage someone’s affairs and is made by either the New South Wales Guardianship Tribunal, the Supreme Court Equity Division, or, in certain circumstances, a magistrate or the Mental Health Review Tribunal.

Where the court appoints a private individual, the Protective Commissioner provides direction, supervision and support for the person so appointed.

5.2 Legislation

The Protective Commissioner may delegate all functions, other than the power of delegation, to any member of staff (s.5A and 5). Powers that the Protective Commissioner’s office can exercise over estates of protected persons is set out in s.24 of the Act.

Section 24(3) limits the Protective Commissioner, with respect to the granting of leases, and no lease exceeding five years can be entered into without the direction of the Court. Section 26 of the Act gives the Commissioner the power to execute documents on behalf of the protected person.

The management of an estate is terminated by a revocation order of the Court, where the person under guardianship has ceased to be a person under guardianship, or upon the death of the protected person.

5.3 Reciprocating States under NSW Legislation

Section 65 of the Act allows for reciprocating States to be recognized by notification in the Government Gazette. Western Australia has been declared a reciprocating State by NSW Government Gazette No. 99 of 10 June 1988 at page 3083.

Under s.67 of the Act, where a protected person, under the New South Wales legislation, has property in a reciprocating State, the Protective Commissioner may authorize an officer charged by the laws of the reciprocating State with the care, recovery, collection, preservation and administration of the property of the incapable person to collect, recover, manage, sell or otherwise dispose of and administer that property in accordance with the law in force in the reciprocating State as if the protected person was resident in the reciprocating State.

The Guardianship and Administration Act 1990 (WA) (GA Act) has similar provisions for reciprocal arrangements. No. 7 of 1996 provides that the Minister may, by notice published in gazette, declare any State to be a reciprocating State.

The Guardianship and Administration Board has advised that Western Australia has recognized New South Wales under this reciprocal arrangement in Government Gazette, WA, 21 July 1998.

As a result, an order, made in New South Wales by a New South Wales Court of competent jurisdiction, appointing the Protective Commissioner will be effective in Western Australia, as if the order were made by a Court of competent jurisdiction within Western Australia.

There is no requirement for the Court order made in New South Wales to go through the formality of being placed before the Guardianship and Administration Board for approval before it can be effective in Western Australia.

5.4 Landgate’s Requirements

The Protected Estates Act 1983 (NSW) allows for the appointment of both estate managers within the office of the Protective Commissioner as well as private individuals who are supervised in the management of estates, by the Protective Commissioner’s office. Therefore, Landgate needs to ensure that the person signing any transfer, or other document, on behalf of a protected person in New South Wales, has the proper authority.

Landgate will, in principle, recognize the authority of the Protective Commissioner or his delegate to execute transfer documents and other dealings relating to real estate within Western Australia on behalf of person’s subject to a financial management order from the competent New South Wales jurisdiction which appoints the Protective Commissioner or his delegate to manage their affairs.

Should the Protective Commissioner or his delegate, wish to lodge transfer documents, or other dealings, with Landgate under such an order, Landgate will require that he, or his delegate lodge, with the transfer document, or other dealing:

the instrument which must be drawn in the name of the incapable person
a certified or sealed copy of the order under which the Protective Commissioner or his delegate was appointed
a certified copy of the power of delegation for the person signing on behalf of the incapable person
a copy of New South Wales Government Gazette No. 99 of 10 June 1988, page 3083, and a copy of the Government Gazette WA of 21 July 1998, page 3829, each of which formalize the reciprocal arrangement between the two States and
a statutory declaration in support, made by the Protective Commissioner or his delegate, setting out the background of the matter and stating that the incapacity still exists, the incapable person is still alive, that the appointment had not been revoked at the time of the signing of the instrument, and annexing the above documentation.

The Protective Commissioner is incorporated as a corporation sole (s.5B (1)). The seal of the corporation sole is to be affixed to a document only in the presence of the Commissioner, Deputy Commissioner, or member of staff who holds a delegation with attestation by the signature of that person affixing the seal (s.5B (1)(2)).

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

The provisions of s.31 of the Public Trustees Act 1941 (PTA) empowers the Public Trustee to execute documents on behalf of an incapable person domiciled outside Western Australia, provided that the WA Public Trustee has been given the necessary certificate (instrument in writing under seal) by the relevant authority in a State, or a Territory of the Commonwealth (including New Zealand) having jurisdiction over the incapable person.

The certificate must authorise the WA Public Trustee to collect, manage, sell or otherwise dispose of or administer any property in Western Australia which the person named in the instrument is possessed of or is entitled to have an interest.

The Public Trustee shall then have with respect to the property of the incapable person plenary functions within the meaning of s.71 of the GA Act as though such functions had been vested in him under s.69 of that Act.

This certificate must be produced with any document lodged that is executed by the Public Trustee pursuant to s.31 of the PTA.

The above mentioned provisions of the PTA were meant by parliament to operate in conjunction with the provisions of Division 3 of Part 6 of the GA Act which is broader in its application. Division 3 provides that inter-jurisdictional arrangements may be made between Western Australia and any other country and States and Territories of Australia in respect of administration orders.

Administration orders that have been made in other jurisdictions may authorise the Public Trustee or a relevant official to administer Western Australian properties on behalf of the foreign administrator.

It should be noted however that Division 3 of Part 6 of the GA Act has not yet come into operation, as the Minister, under the GA Act, has not yet published the required notices in the Government Gazette. If the provisions of Division 3 of Part 6 of the GA Act do come into effect, it will not abrogate the provisions of s.31 of the PTA. The provisions with regard to incapable persons under both these Acts can co-exist.

7 Also see

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

DEC-01 Deceased Proprietor

Version 1 - 27/07/2017

1 Overview

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

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

2.1 Joint Tenants

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

If you are a joint tenant it means:

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

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

2.2 Tenants in Common

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

If you are a tenant in common, it means:

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

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

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

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

2.3 Sole Registered Proprietor

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

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

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

3 Also see

- DEC-02 Survivorship Applications

DEC-02 Survivorship Applications

Version 10 - 15/08/2022

This guide has undergone a full review and rewrite of content on 02/08/2022

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.

All the surviving joint tenants must join and sign the Application.

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

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

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

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

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

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

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

Applicants should check the record of certificate of title for any encumbrances that may delay or prevent registration, such as mortgages, caveats and memorials.

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

identify the declarant(s); and
identify the land being dealt with by its volume and folio reference in all cases, and where a mortgage, charge or lease of land is being dealt with, the number of that instrument; and
contain the statement:
- "I am (we are) registered as a joint tenant of the land, (lease, charge, mortgage) described above".
identify the date of death as stated on the evidence of death
identify the deceased joint tenant as being one and the same as the person shown on the certified copy of the death certificate (quoting the registration number of the death certificate), or other evidence of death produced. The full name and address of the deceased as shown on the Certificate of Title must be stated. A suitable clause may read “The person shown as (full name) of (address as shown on the Certificate of Title) on Certificate of Title Volume XXXX Folio XXX is one and the same as (deceased full name) described on the death certificate.” It is not necessary to amend the name of the deceased where there is a discrepancy between the evidence of death and certificate of title, however any differences in the name or address of the deceased or the surviving joint tenant(s) must be explained in the statutory declaration; and
contain the statement “The joint tenancy with the deceased proprietor of the land and/or interest described above has not been severed at the date of death of the deceased proprietor”.
Where the Application is being signed by the Applicants Attorney under a registered Enduring Power of Attorney (EPA), the declaration must make reference to the EPA.
Where the Application is being signed by the Applicants Plenary Administrator under a SAT Order, the declaration must make reference to the Order and contain the appropriate non-revocation clauses as set out in CAP-02 Incapable Persons

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

NOTE: Where tenancy has been severed by Court Order or Bankruptcy the Applicant should seek legal advice. For more information of severing of tenancy please see DOC-05 Tenancy.

1.1 Forms

Where a Survivorship Application is lodged in paper it can be presented for lodgement using a A2 Application (PDF) with a B3 Statutory declaration (PDF) or the Survivorship eForm.

The Survivorship eForm contains a generated statutory declaration based on the execution type selected by the Applicant. A supplementary statutory declaration is not required where the correct information is entered into the eForm along with the correct execution block.

1.2 Amend Name of Surviving Joint Tenant

An application to amend name may not be required where the surviving joint tenants name differs in any way from that shown on the Register (see Exceptions to lodging an application to amend name in NAM-01 Name Amendment). The surviving joint tenant can update their name by showing the ibn the applicant panel the following:

Jane Elizabeth Smith (formerly or incorrectly shown as Jane Elizabeth Smyth)

The operative wording of the survivorship application will need to be modified to request the title be amended to show the correct name of the surviving joint tenant (see Form Example 4).

1.3 Absolute Caveat

An Absolute caveat will bar the registration of this transaction type, with a few exceptions specified in section 142 of the Transfer of Land Act 1893. An Absolute caveat should be removed to enable the registration of a Survivorship. See CAV-05 Caveats – removal for removal options.

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’s Plenary Administrator or Attorney
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 Lodgement via and Electronic Lodgement Network

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

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

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

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

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.

6 Death of a Joint Trustee

Where the land was held in trust by joint trustees, the surviving trustee will need to lodge a Survivorship Application prior to the Transfer of Land to the new or replacement trustee.

7 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.

8 Also see

- DEC-01 Deceased Proprietor

- DEC-03 Transmission Applications

- DOC-05 Tenancy

- TFR-06 Life Estates.

- NAM-01 Name Amendment

- CAP-02 Incapable Persons

- CAV-05 Caveats - removal

DEC-03 Transmission Applications

Version 8 - 08/11/2022

1 Transmission Applications (Section 219 of the TLA)

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

1.1 On Death of Registered Proprietor

A transmission application is required from the Executor or Administrator of a deceased registered proprietor in order that such Executor or Administrator may be entered on the Register as the proprietor of the estate or interest of the deceased proprietor.

The effect of the application is to place the Executor or Administrator on the Register as if he or she was a transferee and the absolute proprietor of the estate or interest being dealt with.

Where the name of an Executor or Administrator shown in a Grant of Probate or Letters of Administration differs to that shown in a transmission application a new or amended Grant of Probate or Letters of Administration will be required from the Probate Office. Where a formal change of name is made after the date of the grant, proof will be required as to the correct name and the reason for the error in the grant before an application for transmission can be entered.

The executor or administrator holds the land subject to the same equities upon which the deceased held the land. In support of a Transmission Application (see LTRPM Form Examples - Example 1) the following must be produced:

An office copy or the original Grant of Probate or Letters of Administration as issued by the Probate Office or a Landgate Sighted copy or Australia Post certified or Solicitor/Settlement Agent 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 Grant of Probate or Letters of Administration granted in another jurisdiction (i.e. interstate or overseas) must be re-sealed by the Western Australian Probate Office.

A statutory declaration, identifying the deceased if the name and address 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).

²Dot point updated 30/07/2021

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

The duplicate certificate of title (if any) must be provided
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.

Applicants should check the record of certificate of title for any encumbrances that may delay or prevent registration, such as mortgages, caveats and memorials.³

³Sentence added 11/08/2021

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. An Enduring Power of Attorney is for personal use only and cannot be used where the Donor is an appointed Executor/Administrator of another’s estate. In some cases, the Supreme Court may appoint the Attorney for the incapable Executor or Administrator in the Probate or Letters of Administration.⁴

⁴Sentence added 05/01/2022

1.2 Absolute Caveat⁵

An Absolute caveat will bar the registration of this transaction type, with a few exceptions specified in section 142 of the Transfer of Land Act 1893. An Absolute caveat should be removed to enable the registration of a Transmission. See CAV-05 Caveats – removal, for removal options.

⁵Section added 15/09/2022

1.3 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.

1.4 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.

1.5 Who May Not Apply

The following persons cannot apply to be registered as proprietor by transmission:

the administrator of a deceased executor
the administrator or executor of a deceased administrator with the will annexed
the administrator or executor of a deceased administrator
the administrator or executor of a deceased proprietor holding the land as Trustee.

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

2 Endorsement on Title

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

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

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

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

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

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

⁶Paragraph added 08/11/2022

3 Death of an Encumbrance Holder

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

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

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

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

4 Simultaneous Death of Joint Tenants¹

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

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

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

¹Section 4 added 06/07/2020

5 Also see

- DEC-01 Deceased Proprietor

- DEC-02 Survivorship Applications

- DOC-05 Tenancy

- VES-01 Vesting Orders

FOR-01 Foreclosure(Section 121 of the TLA)

Version 1 - 26/02/2018

1 Overview

The TLA provides the machinery whereby a mortgagee may foreclose a mortgage and become the registered proprietor of the land formerly mortgaged. This procedure is a last resort by the mortgagee to protect an investment after having been unsuccessful in the attempts to sell the land.

Note: Part of the procedure leading to a foreclosure is the offer for sale, by Landgate, of the subject land. For this reason, where a mortgagee is both first and second mortgagee, action to apply for a foreclosure order should be taken on the second mortgage. If action is taken on the first mortgage and an offer to purchase, sufficient to cover the debt, interest and expenses of that mortgage is received, then the moneys owing under the second mortgage could not be recovered and would be lost to the mortgagee.

2 How to Apply

The application is made by the mortgagee on a blank Application setting out the land affected and asking that an Order of the Commissioner of Titles, foreclosing the interest of the mortgagor in a specified mortgage, be granted.

3 Requirements

Before a foreclosure order may be granted it must be proved that:

default had occurred and continued for a period of six months after the time for payment of the mortgage
the land had been offered for sale at public auction and no bid or an insufficient bid (state the highest amount) had been received
notice of the intention to apply for a foreclosure order had been served on the mortgagor (registered proprietor)

and

notice of intention to apply for a foreclosure order had been served on every encumbrancer subsequent to the mortgage the subject of the application and, in the case of memorials, that these have either been withdrawn or the written consent of the body lodging the memorial has been obtained.

4 Notice of Default

Notice of default in the payment of interest or principal by the mortgagor must be made as set out in s.106. These matters are fully covered in TFR-08 Transfer by Mortgagee, Debenture Holder or Annuitant (Chargee) Exercising Power of Sale and are the same as those required where a mortgagee has exercised the power to sell.

The mortgagee must declare that:

notice of default was sent and when
default had continued for six months
the attempt to sell at public auction was unsuccessful
notice of intention to apply for a foreclosure order had been served on the mortgagor
notice of intention to apply for a foreclosure order had been served on all subsequent encumbrancers or if there are none, that there is no subsequent encumbrancer

and

at the date of the application for a foreclosure order the mortgagee had not received full and sufficient payment from the mortgagor, i.e.: that default under the mortgage still continued.

5 Evidence Required

The following evidence must be supplied as annexures to a statutory declaration by the person or persons sending the notices of default and intention to apply for a foreclosure order:

a copy of the notice of default
proof of service of the default notice e.g. a Post Office receipt, which should show the full names of the mortgagor and the full address (refer to DOC-02 Parties to Documents - name and address requirements for address requirements for Western Australia’s land registry forms.
a copy of the notice (to the mortgagor) of intention to apply for a foreclosure order
proof of service of the notice (to the mortgagor) of the mortgagee’s intention to apply for foreclosure
a copy of the notice (to subsequent encumbrancers (if any)) of intention to apply for a foreclosure order

and

proof of service of the notice to subsequent encumbrancers.

6 Certificate of Auctioneer

This certificate in the form of a statutory declaration made by the auctioneer should state that:

the auctioneer is a licensed auctioneer
the auction of the mortgaged land was held at a specific place, date and time

and

no bid was received or that the highest bid received (to be stated) was insufficient to cover the mortgage debt and costs incidental to the mortgagee’s exercise of power of sale.

7 Conditions of Sale

The conditions of sale under which the auction was held must also be produced as an annexure to the declaration by the auctioneer.

8 Copies of Advertisements

Full pages of the newspapers in which the notice of intention to sell by auction appear must be produced as annexures to a statutory declaration either by the solicitor for the applicant or by the applicant.

Such advertisements should contain:

a description of land by its local situation (ie: number in a certain street and its town)
a reference to the lot, plan and certificate of title number, and area
sufficient detail to make the property attractive to a prospective purchaser
an allowance of sufficient time for inspection by a prospective purchaser

and

a statement that it is a mortgagee’s sale.

In general, the advertisements should properly identify the property, permit time for inspection, and contain nothing calculated to deter a prospective purchaser from buying. The onus is on the mortgagee to obtain the best price possible when exercising a power of sale.

Failure to advertise the sale to the satisfaction of the Commissioner could result in the advertising and the sale having to be conducted for a second time.

9 Attempt to Sell by Landgate

Before the order is granted the land the subject of the mortgage is again offered for sale by the Commissioner. An advertisement, at the expense of the mortgagee, is placed in three consecutive weekly issues of a newspaper circulating in the City of Perth offering the land for sale and setting a time, being not less than one month from the first advertisement, after which an Order for Foreclosure would be issued.

10 Final Declaration of Mortgagee

Upon the Commissioner being satisfied that the requirements of the TLA have been fulfilled and before the Foreclosure Order is made, a statutory declaration by the mortgagee is required, referring to the application, and declaring that no sufficient payment had been received from the mortgagor nor had the mortgagee’s solicitors received such payment up to the date of the declaration.

11 Preparation, Stamping and Processing of the Order

The order is then prepared in Landgate and signed by the Commissioner of Titles.

The order may then be collected from Landgate by the applicant or the solicitor for the applicant and submitted to Revenue WA (Stamp Duties Division) for assessment of stamp duty.

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

12 Effect of Order

On completion of the processing of the order the estate and interest of the registered proprietor/mortgagor is vested in the mortgagee and the right of the mortgagor to redeem the land is foreclosed.

Any encumbrances subsequent to the mortgage under which the order is made are removed and no longer affect the land and the new certificate of title which is created and registered is subject only to prior encumbrances and to those encumbrances (easements and leases) to which the mortgagee had given an unqualified consent. Memorials which encumber the land continue as encumbrances if the consent of the statutory body which lodged them is obtained.

NAM-01 Name Amendment

Version 11 24/02/2023

Contents

1 Overview

2 Form to Use

3 Evidence Required to Support a Change of Name

4 Exceptions to Lodging a Change of Name Application

5 Simple or Minor Amendment of Name

6 Amendments of Name to Correct an Error (not a simple error)

7 Change of Name after Marriage

8 Return to Birth/Maiden Surname

9 Amendment of Name by Change of Name Certificate

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

11 Multiple Reasons for Change of Name

12 Change of Name by Repute and Usage

13 Change of Name by Licence to Change Name or Deed Poll

1 Overview

Where a registered proprietor is shown in a Certificate of Title (“title”) by other than their full true and correct name then, as a general rule (for Exceptions see paragraph below under that heading) their 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 have changed their name by change of name certificate, the title should be updated to show their new true and correct name/s.

It is recommended that a search of the Certificate of Title be undertaken prior to preparing any documents. A title search will show what name/s are on the title and the address for service of notices. Where an address is out of date on the title, the updated address can be included in any change of name application.

The names of interest holders registered on titles may 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 or lessee.

1.1 What do I need for my application

More information on these points can be found further below in the guide.

Title Search (recommended) – used to complete the application form
Change of Name e-form
Statutory Declaration Form B3
Evidence
Duplicate Certificate of Title (if issued)
Consent to subsequent lodgement where a title shows a registered mortgage (if non-issue)
Registration fees payable to Landgate

2 Form to Use

A Change of name application is prepared using an electronic e-form or A5 PDF, printed for signing and witnessing in ink then lodged together with a statutory declaration in all cases, appropriate evidence to support the change of name and any other requirements set out in this guide.

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

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

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

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 the Registry of Births, Deaths and Marriages.

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

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

NOTE: A statutory declaration that references ID Documents by identification number/s may not be accepted for lodgement or registration on the basis it may breach privacy.

Evidential requirements are discussed in detail in the sections below.

The original certificate can be:
- sighted by Landgate and returned at lodgement; or
- taken to Australia Post who will provide a certified copy for a fee. That certified copy must then be provided to Landgate at lodgement; or
- certified by a legal practitioner or licensed settlement agent who will follow the steps outlined in DOC-04 Statutory Declarations and Supporting Evidence
Where a certificate is printed in a foreign language, the official/certified certificate must be translated by a translator who has accreditation from the National Accreditation Authority for Translators and Interpreters in Australia (NAATI).¹
The original/certified certificate must be provided to Landgate, together with the originally signed NAATI translated certificate. Landgate will sight both certificates and return both certificates at lodgement, retaining the sighted certificates as evidence.
A legal practitioner or licensed settlement agent may also provide certified copies of the certificates as outlined in Doc-04 Statutory Declarations and Supporting Evidence
The certificates can also be taken to Australia Post who will provide a certified copy of both certificates for a fee. Landgate will then retain the Australia Post certified copies as evidence.

¹Dot point reworded 24/02/2023

Note: A copy certified by a Justice of the Peace or any other person who may witness statutory declarations is not acceptable for registration purposes.

Evidence for ELNO lodgements by industry professionals

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

3.1 Applications signed by attorneys

Applications are occasionally signed by attorneys on behalf registered proprietors or other interest holders. If a change of name application 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 applications. Registration fees are payable when lodging a P/A or EPA.

The change of name application must be signed and witnessed as set out in SIG-08 Signing by an Attorney under Power of Attorney/Enduring Power of Attorney .

The supporting statutory declaration is made/declared by the attorney with reference to the registered P/A or EPA in the first clause, for example:

I am the attorney for [insert proprietor’s full name] under Enduring Power of Attorney/Power of Attorney [insert P/A or EPA number].

3.2 Duplicate Certificates of Title for paper lodgement

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

If issued and there is no mortgage registered on the title, the hard copy duplicate title must be produced with the change of name application.
If issued and the title shows a registered mortgage, the lender holding the mortgage (mortgagee) will need to produce the duplicate title to Landgate before the change of name application can be lodged. Note: there will be additional registration fees payable, refer to Production Fee in the fee schedule.
If the title has a status of “not issued” and shows a registered mortgage, the consent of the mortgagee is required to be provided on a signed letterhead from the mortgagee.⁶
If the status of the title is “not issued” and not mortgaged, then the original signed change of name application together with a statutory declaration, relevant evidence and required fee can be lodged.

3.3 Duplicate Certificate of Title for ELNO lodgements via industry professional

Where a duplicate certificate of title currently exists, the responsible subscriber in the workspace must complete the Duplicate Holding details, and destroy or make invalid in accordance with WA Participation Rules.

If the duplicate title has a status of “not issued” and the property is under mortgage, the consent of the mortgagee is required to be provided on a signed letterhead and attached to the document in the workspace.

4 Exceptions to Lodging a Change of Name Application

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

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

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

For statutory declarations (required in all cases) and other evidence requirements see the relevant section in this guide below, based on the reason for change of name.

The application should refer to the new name and include reference to the former name that is shown on the certificate of title.

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

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

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

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

4,1 Operative clauses and reasons for application

The e-forms provide for a change of name and will update the operative clause appropriately. Where the PDF form is used the operative clause may require amendment, such as a Survivorship. For example:

“THE APPLICANT as the surviving joint tenant HEREBY APPLIES to be registered as the proprietor by survivorship of the land above described by virtue of the death of the abovenamed deceased, and the Title amended to show the correct name”

Where the change is being requested in a general application e-form or A5 PDF, the additional request to update the name must also be stated in the Reason for application panel.

5 Simple or Minor Amendment of Name

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

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

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

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

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

Where a middle name has been omitted, for example:

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

Proprietors names are entered into the Register based on the name/names stated in the Transfer or other acquiring document (not a Mortgage). Where a Transferee has only one name (such as given name/s and no surname) but may contain two (2) parts or where a surname contains multiple parts, it must be made clear in the Transferee panel by underlining or some other means.⁸

The names of the Transferee will be entered into the data fields pursuant to the Australian naming convention where there is no underlining, for example:

Mohamed Isa will be entered Given name Mohamed and surname Isa, unless otherwise stated as Mohamed Isa (one name).
Tabitha Jones Smith will be entered as Given names Tabitha Jones and surname Smith, unless otherwise stated as Jones Smith (two part surname).⁸

Note: Names that contain st, de, de la, der, van, von or a combination of those will be classed as part of the surname, for example Jane Mary Jorre de st Jorre or Jane de Silva.⁸

Note: If a person was changing the spelling of a given name/surname and adding an additional middle name, this is two changes and does not qualify as a simple amendment. For example, if a certificate of 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 being made to the name of the registered proprietor on the certificate of title.

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

5.1 Forms to complete

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

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

5.2 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 declarant’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 certificate of 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)
Where there is no change to the spelling or order of the names, the declaration need to be clear it’s an amendment to the data fields to separate or combine given or surname.⁹

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.

5.3 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.

5.4 Duplicate Certificate of Title

Refer to section 3.2 and 3.3 Duplicate Certificate of Title of this guide

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.

6 Amendments of Name to Correct an 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 a simple error.

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

There are strict evidential standards applied to change of name applications, 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.

6.1 Forms to complete and evidence to be provided

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

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

6.2 Statutory Declaration

The statutory declaration must state the following:

The true and correct name, address and occupation of the declarant (the person/s making the declaration)
The status of the person making the declaration in relation to the Certificate of Title (e.g. as one of the registered proprietors) and how they are currently described on the title, including reference to the incorrect name (and former address if applicable)
The legal land description of the certificate of 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 certificate of 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 certificate of title (e.g. the person shown on the Certificate of Title as Steven Jones is one and the same person as Steven Alan Jones shown on the birth certificate and as the declarant and the applicant)

6.3 Attorney signing the application

Refer to section 31. And 5.3 Attorney Signing the Application of this guide.

6.4 Duplicate Certificate of Title

Refer to section 3.2 and 3.3 Duplicate Certificate of Title of this guide.

7 Change of Name after Marriage

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

Adopting and replacing - Simone Smith to Simone Jones
Adopting and hyphenating - Simone Smith to Simone Smith-Jones
Adopting as two part surname - Simone Smith to Simone Smith Jones

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 certificate of title in a former name, it would be prudent to consider updating the name registered on the certificate of 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 change of name application.

7.1 When is it no longer just a change of name by marriage?

Where a proprietor seeks to move a surname to a given name and adopt a new surname by marriage, the two part change cannot be done using just the Marriage Certificate. This is different to adopting a new surname by marriage or by joining it to the existing as shown in the above samples. A Change of Name Certificate as issued by Births Deaths and Marriages will need to form part of the application.

7.2 Forms to Complete and Evidence Required

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

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

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

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

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

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

7.4 Attorney signing the application

Refer to section 31. And 5.3 Attorney Signing the Application of this guide.

7.5 Duplicate Certificate of Title

Refer to section 3.2 and 3.3 Duplicate Certificate of Title of this guide.

8 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 birth name is registered as an owner of land or has an interest registered on a certificate of title in a former name, it would be prudent to consider updating the name registered on the certificate of title.

8.1 Forms to Complete and Evidence to be Provided

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

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

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

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

8.3 Attorney Signing the Application

Refer to section 31. And 5.3 Attorney Signing the Application of this guide.

8.4 Duplicate Certificate of Title

Refer to section 3.2 and 3.3 Duplicate Certificate of Title of this guide.

9 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 certificate of title, it would be prudent to consider updating the name registered on the certificate of title.

9.1 Forms to Complete and Evidence Required

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

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

9.2 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 capacity of the person making the declaration in relation to the Certificate of Title (e.g. I am 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 certificate/s of title 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.
What changed and when (e.g. “On [date] I changed my name from [former name] to [new name] as shown in the certified copy of the change of name certificate [number].)”
The statement “My true and correct name is now [full name].”
That the person (full name) described on the Certificate of Title (include status or capacity, e.g. as registered proprietor) is identical with and one and the same person as the person (full name) described on the change of name certificate.

If a birth certificate also includes a change of legal name it is OK to refer to this in the declaration as “birth certificate” or “change of name certificate” or even “birth certificate incorporating a change of name”.

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.

9.3 Attorney Signing the Application

Refer to section 31. And 5.3 Attorney Signing the Application of this guide.

9.4 Duplicate Certificate of Title

Refer to section 3.2 and 3.3 Duplicate Certificate of Title of this guide.

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

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

Note: A change of company name for the purpose of this section can only be used where the company is one and the same entity, being they have the same Australian Company Number (ACN). Where the company ACN differs this may not be a change of name but a Transfer of Land or Vesting Application.¹

10.1 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 certificate of title must complete and provide:

an application form. (All forms are available by clicking on this link: https://www0.landgate.wa.gov.au/titles-and-surveys/forms-and-fees/land-titling-forms)

duplicate Certificate of Title and/or consent (as applicable)
registration fee which is payable at lodgement. (See: Search and Lodgement Fees.)

AND ONE OF THE FOLLOWING

The original of the change of name certificate issued by the Australian Investment and Securities Commission “ASIC” or a copy of the ASIC online change of name certificate (not just a photocopy)

Original of the change of name certificate issued by the Department of Mines, Industry Regulation and Safety Consumer Protection or a copy of the online change of name certificate (not just a photocopy)

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

For information on how a company may execute (sign) a document please refer to SIG-03 Signing by a Corporation. On how an Incorporated Association may execute (sign) a document please refer to SIG-05 Signing by an Incorporated Association.

A witness to the signing is not required.

10.2 Incorporated association change to a corporation

Where an Incorporated Association registered under the Associations Incorporation Act 2015 (formerly Associations Incorporation Act 1987 - now repealed) changes to a Corporation under the Corporations Act 2001, this is not a change of name for the purpose of this sections. Please see VES-01 Vesting Applications.

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

10.3 Duplicate Certificate of Title

Refer to section 3.2 and 3.3 Duplicate Certificate of Title of this guide.

11 Multiple Reasons for Change of Name

Where a proprietor has changed their name multiple times due to various life events, the proprietor can make one application that must clearly set out the events and provide the appropriate evidence in support.

The supporting statutory declaration may contain elements of one or more reasons, events and evidence as covered in the above scenarios.

11.1 Forms to Complete and Evidence to be Provided

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

an application form. (All forms are available by clicking on this link: https://www0.landgate.wa.gov.au/titles-and-surveys/forms-and-fees/land-titling-forms)
a statutory declaration (Form B3)
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.)

11.2 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 certificate/s of title 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.
Address the changes of name by reference to the event and date and the inclusion of the evidence to support. Repeat as required. An example of a set of events could look like:
- On dd/mm/yyyy I married John Smith as appears in the certified copy of my marriage certificate produced herewith and I assumed the name Susan Mary Smith.
- On or about dd/mm/yyyy I divorced John Smith and I reverted back to my maiden name of Susan Brown as appears in the certified copy of my birth certificate produced herewith.
- When the land was transferred to me, I did not realise my middle Mary had been shown. Mary is a confirmation name and is not part of my legal nameas it does not appear on my birth certificate
My true and correct name is Susan Brown.The new true and correct married name following the events.
That the person (full name) described on the Certificate of Title (include status or capacity e.g. as registered proprietor) is identical with and one and the same person as the person (full name) described on the evidence.

11.3 Attorney Signing the Application

Refer to section 31. And 5.3 Attorney Signing the Application of this guide.

11.4 Duplicate Certificate of Title

Refer to section 3.2 and 3.3 Duplicate Certificate of Title of this guide.

12 Change of Name by Repute and Usage

Under s.36 of the Birth, Deaths and Marriages Act 1998 (referred to as the Act in this section), a person is not prevented from establishing a change of name by repute or usage where the change is made after the commencement of the Act. This Act was proclaimed on 14 April 1999.

Where a person is seeking to change their name by repute and usage and they permanently reside in Western Australia, changing to the repute and usage name on the certificate of 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 certificate of title by repute and usage difficult, any person changing their name by repute and usage may wish to consider the change of name process provided by the Registry of Births, Deaths and Marriages as an alternative to changing a name by repute and usage.

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

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

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

12.1 Forms to Complete and Evidence Required

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

12.2 Duplicate Certificate of Title

Refer to section 3.2 and 3.3 Duplicate Certificate of Title of this guide.

13 Change of Name by Licence to Change Name or Deed Poll

Based on the repeal of the Change of Names Regulation Act 1923 on 14 April 1999, a person no longer needs to formally change his or her name by deed poll or licence. They can now assume a new name if they can show that the new name was established by repute or usage (see paragraph 12 relating to Repute and Usage ).

From the above-mentioned date, the Registrar of Births, Deaths and Marriages will not accept deed polls and licences for registration. However, it is possible to formally change a name by registration of that name at the office of the Registrar of Births, Deaths and Marriages and receive a certificate issued under s.57 of the Birth, Deaths and Marriages Act 1998. This may be advisable at times because other authorities (eg: the Passport Office) may require documentary proof of the person’s correct name. The appropriate change of name by certificate should be used (see paragraph 11 relating to change of name certificate).

NAM-02 Name Suppression

Version 3 07/07/2021

1 Overview

Name Suppression is available to eligible people to apply to the Registrar of Titles to have their name 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 a suppressed name from name searching indices and from datasets/data extracts administered by Landgate.

Name Suppression prevents enquirers from using a suppressed name as a starting point from which to discover an address. It will not completely prevent a Name Suppression applicant’s details from being discovered, because a suppressed name (and address) may still be discovered by using other search criteria such as an address, undertaking a title search or a lot on plan search.

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

2 Eligibility for Name Suppression

People who are eligible for Name Suppression are people (and/or their family members) who have been subjected to direct threats of violence. However, if you can prove that you have become a silent elector then this will remove the need to establish to the Registrar of Titles that you have been subject to direct threats of violence.

Applicants are eligible if they:

own a property
hold an interest in property
have lodged a purchaser’s caveat over property

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

All applicants must provide evidence of their eligibility. For applicants who are a silent elector registered with the Western Australian Electoral Commission and/or the Australian Electoral Commission, production of proof of Silent Elector Status is sufficient that a threat exists.

The nature of an applicant’s occupation does not itself give rise to a right to have that person’s name suppressed under the requirements for having their name suppressed.

3 How to Apply for Name Suppression ¹

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

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

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

If you are a silent elector registered with the Electoral Commission, you will need to complete and submit the Application form NS, and a Statutory Declaration to verify your identity in relation the Certificate of Title or any other document to which you wish the suppression to apply, and to confirm that you are the same person as identified in your silent elector letter from the Electoral Commission. You will need to sign the Statutory Declaration in the presence of an authorised witness.

If you are not a silent elector you also need to complete the Application form NS and Statutory Declaration however the declaration in addition to verifying your identity in relation to the Certificate of Title or any other document to which you wish the suppression to apply, will need to state why you believe that you or your family are at risk of harm and provide evidence to substantiate your claim. You will need to sign the Statutory Declaration in the presence of an authorised witness.

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

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

¹Section updated 02/09/2020

4 How to Submit your Name Suppression Application

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

‘CONFIDENTIAL’

Landgate

Name Suppression Officer

PO Box 2222

MIDLAND WA 6936

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

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

5 Extent of Name Suppression

A suppressed name will remain suppressed until a formal Withdrawal of Suppression request has been completed by the applicant and processed by Landgate. Applicants of a Withdrawal of Suppression will need to provide evidence to satisfy a 100-point identification check.

You will need to make a new Name Suppression Application:

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

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

²6 Who can access my suppressed details other than Landgate?

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

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

²Section 6 added 02/09/2020

7 Also see

- NAM-01 Name Amendment

POA-01 Powers of Attorney

Version 7 - 14/09/2022

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.

There is a fee payable for the lodgement of a Power of Attorney . Refer to Lodgement and Search Fees.

2 Noting and Filing

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

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

A Power of Attorney document under the TLA is subject to the Verification of Identity Practice issued jointly by the Western Australian Registrar of Titles and Commissioner of Titles. Please refer to the VOI webpage.

It is strong recommended that a Power of Attorney is deposited and noted before any land transactions are lodged.²

²Sentence added 23/07/2021

When a power of attorney is lodged it is retained by Landgate. If a power is required to deal with other matters in addition to land, consideration might be given to the preparation of separate powers. One could be in schedule form, with variations or additions as required and could be lodged for filing and noting by Landgate.

The other, in customary form, could contain the other powers required and be retained by the parties for general use. Alternatively, two signed copies of the power of attorney document should be lodged, one of which will be retained as part of the Landgate records, and the other identified as the ‘Client Original’ will be returned to the lodging party once recorded.

An original power of attorney, a properly attested duplicate power of attorney or a copy of a power of attorney certified by the Australian Securities & Investments Commission may be lodged on payment of the prescribed fee.

If a Power of Attorney has a limited life between the donor and the donee, then it can only be lodged during the currency of that life, e.g. a power limited to a defined period of absence from the State of the donor can only be lodged before or during that period.

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

2.1 Older than 3 months (Non-Revocation)³

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 or varied by the donor
state when and how the donee(s) last saw or communicated with the donor(s) within the last 7 days.

Once the declaration has been signed by the donee the declaration and the Power of Attorney should be promptly deposited.

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) within the last 7 days.

Once the declaration has been signed by the donor the declaration and the Power of Attorney should be promptly deposited.

³Section updated 14/09/2022

¹Where a Company Power of Attorney is deposited with the Registrar of Titles for noting and is older than 3 months, the Power of Attorney must be accompanied by a statutory declaration of non-revocation. The declaration should come from one of the Company Directors and include an authority to declare clause on behalf of the Company. In that declaration the Director should include:

identify the declarant as the Director for the Company/Donor and their authority to make the declaration on behalf of the Company
identify the power of attorney by reference to the donor and the date of execution
confirm all the named attorneys are willing to act or, all the named roles/positions have not been altered
state that the Company is still registered and has not be de-registered or placed into administration or liquidation.
state that the power of attorney has not been revoked or varied

If a declaration cannot be provided by a Company Director or Secretary, declarations from all named attorneys may be accepted.

¹Section added 23/07/2021

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

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

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

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

3 Production for Sighting

There are occasions where a power of attorney need only be produced for sighting and not lodged. Where the attorney is signing as transferee (Purchaser) of a transfer of land on behalf of the donor, and the power of attorney has not previously noted and filed, production for sighting is all that is required. The power of attorney will be noted and filed if requested but it is not strictly necessary. However, it is important that the power of attorney when presented conforms with the standards required for registration. The power of attorney must be:

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

4 Limited Powers of Attorney

Powers of attorney may be deposited where the scope or extent of the attorney’s power to act on behalf of the donor is limited. Any limitation should be clearly stated in the space provided or within the Deed.

Where a power of attorney is given to the donee(s) to act during the donor’s absence from the State, before any dealing executed by the attorney may be registered, a statutory declaration is required to the effect that the donor is outside the State.

A power of attorney may also be limited to the performance of a single act, e.g. the sale or purchase of a specified piece of land or the mortgage thereof. The land should be clearly identified by the legal land description, being Lot on Plan and Volume/Folio.

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

5 Limit of Attorney’s Power - Conflict of Interest

Unless expressly authorised by the power of attorney the donee(s) of a power may not transfer land of the donor to himself or herself, nor may he or she discharge in the donor’s name a mortgage given to the donor by himself or herself, nor may he or she make a gift of land in the donor’s name (see TFR-07 Transfers by an Attorney).

6 Variations in Donor/Donee Names

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

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

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

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

7 Comparing the different Power of Attorney Documents

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

TLA / Deed Style Power of Attorney

Limited to property transactions and property related documents
Can be made by a person or corporation
Unlimited Donors
Unlimited Attorneys
Can be limited in time
Can be limited to a specific transaction
Can be limited to a specific property
Can contain additional powers to appoint sub-attorneys and include Trustee powers under the Trustee’s Act
Verification of Identity for the Donor/s required²

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
Not subject to the Verification of Identity requirements²

²Dot points added 02/11/2021

8 Also see

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

- Verification of identity

POA-02 Powers of Attorney - types of

Version 4 - 15/03/2019

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

1 Schedule Form

The Western Australian Supreme Court case of Clazy v Registrar of Titles (1902) 4 WALR 113 emphasised that a power of attorney created for noting and filing under the TLA in Western Australia must be in the form of, or substantially in the form of, the form set out in the Nineteenth schedule of the TLA.

An examination of the form reveals the following features:

the donee must be a natural person or a corporation (legal entity)
the attorney must be given a power or powers to deal in land registered under the TLA
after listing a comprehensive set of powers to deal in land registered under the Act, the form provides for the insertion of express words that restrict those comprehensive powers to those inserted in this section. (See LTRPM Form Examples - Example 21.)

and

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

Powers of attorney to be noted and filed, whether on a printed form or on a typed form, must contain the same elements:

The attorney may be the person holding a particular position. As an example, a financial institution may appoint the person holding the position of Loans Manager as an attorney to lodge and withdraw caveats.
The power of attorney document must name a person, or may appoint a position where the above described conditions are met. The power of attorney document may also qualify the appointment of a named person by naming the position held by that person (in which case the person would only remain the attorney during the period the stated position was held).
The power of attorney document must expressly or by necessary implication refer to real property in Western Australia, e.g. the appointment, by a donor from outside Western Australia, of a Western Australian Attorney will constitute necessary implication; and,
The power of attorney document must give both the power to deal in land in very specific terms (eg: to sell, to mortgage, to lease, etc.) and then the authority to carry out those specific powers (giving the power to sign a transfer, mortgage or lease, etc.).

2 Power of Attorney by a Corporation

A corporation may appoint an attorney by executing a power of attorney under its common seal. The authority for a corporation to act by an attorney is contained in s.88 of the Property Law Act 1969 and s.129 of the Corporations Act 2001 (Cwlth). A Company Power of Attorney should substantially comply with the nineteenth schedule in order to be registered under section 143 of the TLA. The Registrar of Titles is prepared to accept Power of Attorney documents by a Corporation where:

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

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

2.1 A named position within a corporation

The Registrar of Titles is prepared to accept the appointment of a named position within a corporation where a clause to the following effect is included in such powers of attorney documents.

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

Entitled to rely on execution of any document by that person as conclusive evidence that:
- the person holds the office set out in the power;
- the power of attorney has come into effect;
- the power of attorney has not been revoked;

the right or power being exercised or being purported to be exercised is properly exercised and that the circumstances have arisen to authorise the exercise of that right and power.

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

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

2.2 A Category of Officer within the corporation

The Registrar of Titles is also prepared to accept the appointment of attorneys identified as a Category of Officer within the corporation if all the powers to be exercised are common to each category of officer. This means that it is possible to authorise an officer in Category 1 and an officer in Category 2 acting jointly to exercise all the powers in the power of attorney.

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

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

Entitled to rely on execution of any document by that person as conclusive evidence that:
- the person is an Officer of the Category set out in the power;
- the power of attorney has come into effect;
- the power of attorney has not been revoked;

the right or power being exercised or being purported to be exercised is properly exercised and that the circumstances have arisen to authorise the exercise of that right and power.

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

3 Power of Attorney by Trustee

Trustees of a Trust may appoint an attorney to act in their place under the provisions of s.54 of the Trustees Act 1962 (referred to as the Act in this section). The Trust/Trustee may appoint another person to carry out the functions of the Trust where trustees are:

incapacitated by reason of ill health
absent from the State

a member of the armed forces;

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

The donee of such a power may not be the only other co-trustee unless that co-trustee is a trustee corporation.

Where the trustee is not the sole trustee, the consent of all other trustees must be obtained to the power of attorney before noting and filing.

Every dealing by the attorney for a trustee must be accompanied by a statutory declaration to the effect that at the date of the exercise of the power the donor was still either:

incapacitated
absent from the State

a member of the armed forces.

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

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

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

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

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

Entitled to rely on execution of any document by that person as conclusive evidence that:
- the person is authorised to execute the document under the power of attorney on behalf of the donor in the donor’s capacity as trustee as set out in the power of attorney;
- the power of attorney has come into effect;
- the power of attorney has not been revoked;
- the right or power being exercised or being purported to be exercised is properly exercised and that the circumstances have arisen to authorise the exercise of that right and power.

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

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

4 Powers of Attorney in a General Lien, etc.

Commercial documents in the nature of a mortgage, such as General Liens, Equitable Charges and Debentures, usually contain a power for the lender, on default by the borrower, to appoint a receiver or a receiver and manager. It is usual also for the document to create the appointed receiver the attorney of the borrower with all the powers set out in the document.

Provided the document creates a power of attorney and it is properly witnessed as set out in s.145 of the TLA, it may be registered as a power of attorney. Registration depends on the evidence provided in support, which should take the form of a statutory declaration by the receiver declaring that:

default has occurred on a specified date in the payment of moneys owing under the document of loan (to be identified);
notice to remedy the default has been given to the borrower, but the default was not remedied within the notice period;
the declarant has been appointed a receiver of the borrower by the lender and that such appointment is still current (a copy of the notice of appointment, as lodged with the Australian Securities & Investments Commission and certified correct by the Commission must be produced with the declaration);
the declarant is the attorney for the borrower under the terms of the loan document;
default has continued to the date of sale; and,
the land being dealt with is land to which the loan document applied.

Powers of attorney of this nature are usually deposited at the same time as a transfer of the land affected is presented for registration.

5 Irrevocable Power of Attorney

The Property Law Act 1969 at Part V111 permits the creation of an irrevocable power for valuable consideration (s.86) or an irrevocable power for a fixed time (s.87).

To be filed under the TLA an irrevocable power for valuable consideration would have to meet the normal requirements of form (i.e. be substantially in the form of the Nineteenth Schedule to the TLA) in addition to disclosing the fact that the power was given for valuable consideration, and confirmation of the parties’ intention that the power be irrevocable. It is not necessary for the precise amount of consideration to be shown in the power of attorney. A purchaser obtaining land in an instrument signed by such an attorney gains a valid title despite any lack of consent of the donor to the transaction, or the death, mental incapacity or bankruptcy of the donor.

To be filed under the TLA an irrevocable power of attorney for a fixed time (not exceeding two years) would also have to meet the normal requirements of form, in addition to disclosing whether or not a valuable consideration was involved, and confirmation of the parties’ intention that the power be irrevocable for a specific term. A purchaser obtaining land in as instrument signed by an attorney in these circumstances is protected in a similar manner.

6 Powers Contained in Leases, Contracts, etc.

Leases, contracts for sale and other contracts such as strata management agreements and retirement village agreements often contain clauses appointing the vendor or lessor the attorney of the purchaser or lessee for the purpose of withdrawing caveats or signing transfers.

A signed copy of the lease or contract can be filed with the Registrar as a valid power of attorney so long as the relevant clauses of the document are substantially in the form of the Nineteenth Schedule to the TLA. Where the power of attorney is activated by a specific event (eg: refusal to withdraw a caveat) then at the time the power is filed a statutory declaration will be required proving that the conditions precedent to the power becoming operative have occurred.

The declaration will usually also have to meet the requirement of the Registrar for proof of non-revocation for powers dated more than three months prior to filing. Where the power arises from a donor living in a retirement village the declarant must also include a reference to the capacity of the donor to understand the nature of the demand made (e.g. to sign a withdrawal or transfer) to obtain compliance with the conditions precedent to the activation of the power.

7 Powers Contained in Mortgages

Mortgages usually contain a clause appointing the mortgagee or an officer to be later designated, as attorney for the mortgagor. To be effective the powers must be expressed substantially in the form of the Nineteenth Schedule to the TLA, and the powers are only noted by the Registrar when a signed copy of the mortgage is filed as a power of attorney document.

Where the power of attorney is activated by a specific event (such as default) then at the time the power is filed a statutory declaration will be required proving that the conditions precedent to the power have been met. The declaration will also usually have to meet the requirements of the Registrar for proof of non-revocation for powers dated more than three months prior to filing.

Where the mortgage is a short form mortgage linked to a Memorandum of Common Provisions, a signed copy of the short form mortgage will be accepted for filing.

Conveyancers are advised that the Registrar will not register transfers by the mortgagee as attorney for a Mortgagor as an alternative to exercising a power of sale, and registering the transfer form designed for that purpose (ie: T4 Transfer form).

8 Execution of Documents by Attorney

8.1 Most common form of execution by attorney

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

1.1.1 Named person

Signed by (Name of Attorney) )

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

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

Witness

(Full Name, Address and Occupation)

1.1.1 Execution by attorney appointed in named position

Signed by (Name of Attorney) the )

Loans Manager of (Name of Donor) as ) (Signature of Attorney)

attorney for (Name of Donor) in ) P/A Number (insert number)

the presence of )

Witness

Full Name, Address and Occupation

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

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

9 Also see

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

POA-03 Powers of Attorney - enduring

Version 5 - 16/04/2021

1 General

The Guardianship and Administration Act 1990 (GA Act) created a new, general power of attorney form, authorising the donee(s) to do anything that the donor could legally do except appoint a substitute.

The form is designed for and survives any subsequent legal incapacity of the donor. An enduring power of attorney is effective for the purposes of the Transfer of Land Act 1893 (TLA) (and Property Law Act 1969) as if it were in the form provided for by s.143 of the TLA.

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

Note:

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

An enduring power of attorney must be substantially in the form set out in the third schedule of the GA Act, and has three features that very clearly distinguish it from the TLA format, being:

a general power for the donee(s) to do anything the donor can lawfully do
an optional choice section where the power may be activated immediately on execution, or at a later date on the occurrence of the incapacity of the donor as certified by the State Administrative Tribunal

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

Any person over the age of 18 years with full legal capacity can be appointed as an Attorney. A maximum of two (2) primary donees may be appointed in an enduring power of attorney (see the decision of the Supreme Court in Ricetti –v- Registrar of Titles CIV 1587 of 1999) and two(2) substitute donees. An attorney does not need to live in Western Australia, although their availability and ability to make urgent property and financial decisions on your behalf from another State or country should be considered.

Where more than one (1) donee has been appointed they must state the capacity in which they act. (e.g. Jointly or Jointly and Severally).

An enduring power of attorney in the form of the third schedule of the GA Act may include restrictions on the general powers granted. Where a donor includes express powers in an enduring power of attorney the Registrar will interpret those provisions as limiting or restricting the plenary powers of the attorney. In simple terms these could be seen as a way of the Donor making some of their wishes known, while you have capacity. However, it is not possible to include any condition or restriction which would in some way prevent the attorney from being able to properly manage the Donors’ property and financial matters.

An enduring power of attorney cannot provide for alternate appointments of attorneys upon certain conditions. An example of such improper appointment of attorneys is where a donor has appointed two attorneys in clause 1 of the schedule form and then clause 3 of the schedule form sets out conditions upon which the second attorney may exercise the powers granted to that attorney.

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

Specifying powers that the donee is authorised to exercise, (including conflict of interest clauses that grant transactions between the donor and the donee, including family members), in clause 3 of the enduring power of attorney is not acceptable. (For further information on conditions and restrictions, see 'A Guide to Enduring Power of Attorney in Western Australia', available at http://www.publicadvocate.wa.gov.au).

For Transfer by an Attorney under Enduring Power of Attorney or by an Administrator under Board Order to them self or a family member (see TFR-07 Transfers by an Attorney).

There is a fee payable for the lodgement of an Enduring Power of Attorney . Refer to Lodgement and Search Fees.

1.1 EPA's made in another State or Territory¹

Enduring powers of attorney created under the provisions of legislation in other States, Territories and Countries may be deposited at Landgate if they are accompanied by an Order of the State Administrative Tribunal (SAT) under s.104A of the GA Act as amended.

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

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

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

2 Appointment of Substitutes

As from 4 December 2000, sections 102 and 104 of the GA Act were amended to allow for the appointment of a person to be a substitute donee of the power only on, or during, the occurrence of events or circumstances specified in the enduring power of attorney. Events or circumstances such as

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

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

2.1 Statutory declaration when Substitute is to Act

When the substitute donee(s) execute a document lodged for registration at Landgate, the document must be accompanied by a statutory declaration made by the substitute donee(s) similar to a declaration of non-revocation which includes the minimum statements:

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

Note: Section 21 of the GA Act retrospectively validates, subject to certain exceptions contained in s.21 (2), the appointment of a person who was incorrectly appointed as a substitute donee before 4 December 2000.

3 Duration

The duration of an enduring power of attorney cannot be limited to only operate for a certain period of time, e.g. for a period of 12 months commencing on 1st January 2000.

The GA Act does not provide for a time limitation and it would create a conflict or inconsistency between the power of attorney and s.107(c) of the Act which states that the attorney cannot renounce his appointment during the incapacity of the donor.

This means that if the donor became incapacitated before an expiry date shown in the power of attorney, the appointment of the attorney could not cease on the date shown for expiry.

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

4 Noting and Filing

If the attorney(s) wishes to deal in the land of the donor, a original signed copy of the power of attorney (not a photocopy) must be lodged with the Registrar of Titles, who will retain it as part of the permanent records of Landgate justifying the registration of dealings signed by the Attorney. For the purpose of noting and enduring power of attorney under the TLA requires original signed documents.

It is recommended that two (2) Original Signed Enduring Power of Attorney documents are deposited at Landgate. Landgate will retain one original document and the second will be returned to the lodging party. If there is only one originally signed EPA, then that originally signed document will be retained by Landgate as part of the permanent records. Photocopies of EPA documents are not acceptable for registration purposes

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

4.1 Older than 3 months (Non-Revocation)

Where the power of attorney document to be lodged is dated more than three months previous to the registration date, a statutory declaration of non-revocation or variation made by the donee(s) including any substitute donee(s), and must be lodged with the power of attorney. The declaration of non-revocation or variation must state the following:

identify himself / herself as the donee
identify the enduring power of attorney by reference to the donor and date of execution
that the donor is still alive
when and how the donee last saw or communicated with the donor (within the last 7 days)
that the enduring power of attorney has not been revoked by the donor
that the State Administrative Tribunal or an appointed Administrator has not varied or revoked the enduring power of attorney
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 must state:

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
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.

4.2 Upon Loss of Capacity

Where an enduring power of attorney is conditional upon a loss of legal capacity of the donor (option 'B'), as certified by an order of the SAT, a copy of the order must be lodged with each instrument signed by the attorney on behalf of the donor. The instrument must comply with any terms or conditions listed in the order of the SAT.²

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

identify himself / herself as the donee
identify the enduring power of attorney by reference to the donor and date of execution
that the donor is still alive
that the Order issued by SAT is still current
that the State Administrative Tribunal or an appointed Administrator has not varied or revoked the enduring power of attorney or Order

and

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

² [Guide updated on 29/10.2018 to remove sentence: 'Enduring powers of attorney created under the provisions of legislation in other States, Territories and Countries may be deposited at Landgate if they are accompanied by an Order of the SAT under s.104A of the GA Act as amended.']

4.3 Death of an Attorney prior to Lodgement

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

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

5 Witnessing Requirements

Section 104(2)(a) of the GA Act states that there must be two (2) attesting witnesses to the enduring power of attorney, both of whom are 18 years of age or older, and at least one of whom is authorised by law to take declarations. Neither of the two witnesses are a person who is being appointed as an attorney or substitute attorney, and must state their full name, address and occupation. For a list of who can witness a statutory declaration in Western Australia see DOC-04 Statutory Declarations.

On 15 February 2010 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 2010 must contain the two qualified witnesses.³

³Paragraph amended 16/04/2021

5.1 Outside of Western Australia but within Australia

An enduring power of attorney can be executed outside Western Australia. Where it is executed in another State of Australia (i.e. outside Western Australia), the following persons may witness the document:

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

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

5.2 Outside of Australia

If an enduring power of attorney is executed in any other place, the following persons may witness the document:

A prescribed consular official who is performing official functions at that place
A person who is a justice or notary public under the law of that place
A person who has authority under the law of that place to administer an oath to another person or to take, receive or witness a statutory, solemn or other declaration.

A prescribed consular official means:

an Australian Consular Officer, or an Australian Diplomatic Officer, within the meaning of the Consular Fees Act 1955 of the Commonwealth
a British consul or vice consul, or
an official prescribed by the regulations to be a prescribed consular official.

As one signed copy is retained, it is recommended that two signed copies be created on each occasion so that following lodgement, an authenticated and recorded document identified as the ‘Client Original’ will be returned to the lodging party to produce with other institutions.

6 Making Amendments to an Enduring Power of Attorney

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

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

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

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

7 Execution of Documents by Attorney

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

Signed by (Name of Attorney)

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

in the presence of ) EPA (insert number)

Witness

(Full Name, Address and Occupation)

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

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

8 Also see

- CAP-02 – Incapable persons

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

Enduring power of attorney checklist and coversheet

POA-04 Powers of Attorney - revocation or termination

Version 3 - 15/03/2019

1 Revocation of (TLA) Power of Attorney

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

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

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

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

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

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

Revocation occurs in the following cases:

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

by renunciation of the power by the attorney.
determination by operation of law:
by expiration of the time limited for the exercise of the authority
by a change in the condition of either party, eg: lunacy or bankruptcy (but it must be noted that a change in the legal capacity of the donor of an enduring power of attorney under the Guardianship and Administration Act 1990 (GA Act) will not affect the power)
by the death of either party
where the purpose for which the power created is fulfilled

- (in the case of an enduring power of attorney made under the GA Act) by an order of the State Administrative Tribunal; and,
Where a substitute attorney has been appointed by an attorney, a revocation of the head power of attorney operates to revoke the appointment of any substitute attorney.

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

2 Revocation of an Enduring Power of Attorney

An enduring power of attorney made under the GA Act may be revoked in a similar manner to any other power of attorney. It may be revoked by lodging a signed copy endorsed with the word revoked and a date supported by the signatures of the donor and a witness (who must state their full name, address and occupation). Revocation of an enduring power of attorney is also achieved by lodging with the Registrar a simple document (see above) signed by the donor (and witnessed).

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

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

Standard lodgement fees are payable on this application.

2.1 SAT Order submitted with another transaction

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

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

3 Notification of Death of the Donor

When the donor of either a normal TLA power of attorney or an enduring power of attorney dies, the power of attorney is terminated and can no longer be used.

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

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

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

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

a copy of evidence of death certified by the Registrar General

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

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

Lead Consultant, Dealings

Registrations

Landgate

PO Box 2222

MIDLAND WA 6936

This notification will not incur any lodgement fees.⁶

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

⁵ [Section updated on 19/09/2018 to replace: 'Landgate will revoke the power of attorney if a statutory declaration is made by one of the following persons: the donee (or one of the donees if there are more than one) of the power of attorney; a substitute donee in the case of an enduring power of attorney; an executor or administrator of the deceased donor, or a solicitor acting for the donee or the executor of the deceased donor' with 'The Registrar will record the termination/extinguishment of the Power of Attorney or an Enduring Power of Attorney upon formal notification of the death of the Donor. Formal notification requires any person to notify the Registrar of Titles of the death of the Donor and provide proof of death and supporting statutory declaration.']

⁶ [New sentence added on 19/09/2018]

4 Also see

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

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

Version 3 - 24/06/2020

1 General

The Registrar cannot enter trusts on a certificate of title but declarations of trust may be deposited with the Registrar under s.55 of the Transfer of Land Act 1893 (TLA). The original is¹ deposited and a Registrar’s Caveat is lodged to protect the interests of the beneficiaries under the trust deed.

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

2 Form Requirements

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

the name and address of the registered proprietor/interest holder² (the trustee)
the name and address of the beneficiary
an accurate description of the land, and where applicable, the interest²
a declaration by the trustee that the land/interest² specified is held in trust for the beneficiary

and

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

²Interest holder/interest added 24/06/2020

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

3 Removal Options

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

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

3.1 By Transfer

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

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

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

3.2 By Vesting / Winding Up / Termination of the Trust

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

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

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

3.3 By Discharge/Surrender/Removal of the protected interest

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

³Section 3.3 added 24/06/2020

4 Also see