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1. Vesting Orders (Section 182 of the TLA)
1.1. Overview3
Where land is held in trust by the registered proprietor, any person entitled to be registered may make an application describing the land being dealt with or, if applicable, the mortgage charge or lease, requesting the issue of an order vesting it in the applicant. If the desired result can be achieved by transfer a vesting order will not be granted. The facts relied upon to establish the applicant’s claim must be set out by statutory declaration and such documentary evidence as is necessary to support the claim should be made annexures to the declaration.
This type of application is particularly useful when an administrator breaks the chain of executorship as the administrator cannot apply for transmission in the ordinary way. It is also available to the personal representative of the last surviving trustee. The term personal representative in this case includes executors and administrators.
The personal representative of the last surviving trustee has a power of appointment of new trustees under s.7 of the Trustees Act 1962. The power of appointment is required to be exercised in writing and the appointor may appoint the appointor, or another person to be the trustee of the land, mortgage lease or charge being dealt with.
The new trustee so appointed may then apply for the issue of a vesting order. The form to use is blank application form describing the land affected in every case, and, if a mortgage, lease or charge is involved, the number of that instrument and requesting the granting of a Vesting Order under s.182 of the TLA.
3Updated 07/08/2023 to remove reference to duplicate certificate of title
1.2. Evidence Required
In support of such an application the following evidence is required:
- a statutory declaration of the applicant, the new trustee, setting out the facts and showing how that status was obtained. If applicable, there should be a statement, to the best of the declarant’s knowledge, that the person through whom the declarant claims (the most recently deceased personal representative) had completed the duties as executor or administrator and had continued to hold the land or interest being dealt with as mere trustee
- contract of sale or other document evidencing the acquiring of the land an asset of the trust
- an office copy of any Grant of Probate or Letters of Administration forming evidence of the appointers power to appoint a new trustee, and
- the Deed of Appointment of New Trustee referred to above, together with any other applicable trust deeds
Where possible, documentary evidence should be Landgate sighted or the equivalent.
1.3. Preparation, Stamping and Processing of the Order3
If the Application is granted, the Commissioner will instruct Landgate staff to prepare a vesting order and signs it when prepared.
Vesting Orders are subject to assessment of duty by RevenueWA. The order may then be collected from Landgate by the applicant, or the solicitor for the applicant, or alternatively posted.
Once assessed and endorsed by RevenueWA, the order is returned to Landgate staff, who arrange for final processing.
The procedure is then completed by entering the name of the applicant on the relevant certificate of title (without showing the nature of the trust if such is the case). The interests of persons entitled under the will or intestacy may be protected by a Registrar’s Caveat.
3Updated 07/08/2023 to remove reference to duplicate certificate of title
2. Vesting Orders (Section 183 of the TLA)
2.1. Overview3
Where a person has purchased land from the registered proprietor, completed payment, and has entered into possession with the consent of the vendor and no transfer has been executed because the vendor is dead or is residing out of the State or cannot be found, an application for a Vesting Order may be made by the purchaser.
An application on the blank Application form describing the land and requesting the issue of a vesting order under the section should be made.
Proof of each of the necessary elements set out in the section must be supplied. In particular proof of payment of the purchase price and interest (if any) in the contract of sale or other document of purchase is required. This should take the form of receipts, cheque butts or bank statements and must cover the entire purchase price.
3Updated 07/08/2023 to remove reference to duplicate certificate of title
2.2. Evidence Required
A statutory declaration by the applicant stating the facts with the above proof as annexures is required. Where possible, the annexures should be Landgate sighted or the equivalent.
If the Application is granted, the Commissioner will instruct Landgate staff to prepare a vesting order and signs it when prepared.
Vesting Orders are subject to assessment of duty by RevenueWA. The order may then be collected from Landgate by the applicant, or the solicitor for the applicant, or alternatively posted.
Once assessed and endorsed by RevenueWA, the order is returned to Landgate staff, who arrange for final processing.
The procedure is then completed by having the name of the applicant endorsed on the first schedule of the relevant certificate of title.
3. Vesting/Disposition Orders (Section 242 of the TLA)1
3.1. Overview
If a registered proprietor is unable or refuses to make the requisite transfer or other disposition under the Transfer of Land Act 1893 (TLA) or cannot be found or if for any other reason a transfer or other disposition by him/her under the TLA cannot be obtained, then by request under an application the Registrar of Titles upon the direction of the Commissioner of Titles may give effect to a vesting/disposition application pursuant to section 242 of the TLA.
The vesting may be by the operation of any statute, statutory power or by virtue of any vesting order issued by any court, tribunal or an order appointing a person to convey an interest in land under the TLA.
An Application under section 242 can be used to give effect to, but not limited to, the following:
- Vest the interest of one or more proprietors into another person pursuant to a Court Order;
- Vest the assets of a deregistered company into a new company, as referred to in NAM-01 Name Amendment section 13.2 and where s.182 of the TLA doesn’t apply;
- Where entities such as Associations Companies, Corporations and Local Governments are abolished/dissolved by legislation or Government Gazette and the assets of abolished entity vest to a specified new entity;
- Registering a successor in law pursuant to the Financial Sector (Business Transfer and Group Restructure) Act 1999 (CTH)
- Vesting an equitable interest under the Property Law Act 1969 into a legal interest under the TLA
Applications under section 242 of the TLA can made on a General Application eForm or Vesting Application – Court Order (s242) eForm, depending on reason for application and supporting evidence.
An example of the Reason for Application could be:
“The Applicant hereby applies to the Commissioner of Titles to give effect (pursuant to s.242 of the Transfer of Land Act 1893) to the Order made in the (Supreme Court/Family Court, etc) of Western Australia on the ……...day of ………… 20…… in matter No. … of 20… on the grounds that (Here state nature of grounds).”
Registration fees are payable on these Application types.
1Section updated 16/06/2022
3.2. Evidence Required1
A Statutory Declaration establishing the existence of the grounds referred to in the Application must be filed with the application.
Evidence that supports the Application should be annexed to the statutory declaration. Evidence that supports the chain and change may consist of but are not limited to:
- Supreme Court Order, Federal Court Order, Family Court Order etc
- Deregistration Certificates or letter/Extracts of deregistration issued by the relevant body,
- Registration Certificate issued by ASIC or other relevant body,
- Probate
- Death Certificate
- Unregistered Transfer
Applications of this type are not yet subject to Verification of Identity (VOI). A VOI Statement may be provided but will not be insisted upon.
1Section updated 16/06/2022
3.3. Vesting by Court Order2
An Order by a court may give effect to a severing of tenancy or vesting of the interest of one co-owner to the other co-proprietor or another person/entity in whole or part.
Where no further explanation is required, the Application only need to make reference to the relevant section of TLA and the Order in the reason for application. A copy of the final Order must be lodged with the Application.
Any uncertainty or explanation of the Orders can be addressed in a supporting statutory declaration, if required.
2Section added 16/06/2022
3.4. Transfer of Assets pursuant to the Financial Sector (Business Transfer and Group Restructure) Act 1999 (Mortgagee)2
For bank integration matters, in all instances where a successor in law lodges a power of sale transfer and the former mortgagee’s name is shown on the title, the transfer is required to be preceded by an application by the successor in law asking that the mortgage vest to itself pursuant to Section 242 of the Transfer of Land Act 1893.
The vesting application should be accompanied by a Certificate of Transfer pursuant to the Financial Sector (Business Transfer and Group Restructure) Act 1999 issued by the Australian Prudential Regulation Authority (APRA). A statutory declaration is not usually required to support an application of this type, unless needed for clarification purposes.
A vesting application is not required where the debt has been paid and the Bank/Mortgagee intends to lodge a discharge of mortgage. The Bank/Mortgagee need only recite the change of name by transfer of assets, see section 4 of NAM-01 Name Amendment.
2Section added 16/06/2022
3.5. Incorporated Association now a Company under Corporations Act2
The registration or incorporation under the Corporations Act 2001 (Cth) of an incorporated association under the Associations Incorporations Act 2015 automatically cancels the incorporation of the association under section 99(1) of that Act.
As the Association is cancelled and cannot give effect to a transfer of land, the new Proprietary/Limited company will need to apply pursuant to s242 of the TLA to have the land vested in itself under it’s newname and Australian Company Number (ACN). A Change of Name application cannot be used in this scenario.
This is similar where an Incorporated Association is transferred by statue under legislation.
2Section added 16/06/2022