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The land transfer laws of Australasia: being the full text with side notes ... online

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affixed my seal this day of Begistrar-General. Signed

sealed and delivered the day of in the presence of X.Y.

[Schedule referred to,]

N.

Bevocation Order.

I. A.B. of • being seised of an estate [here state the nature of the

estate whether in fee-simple or of a less description] all that piece of land
[here describe land referring to the existing arant certificate or other instrU'
ment of title] hereby revoke the power of mortgaging [or selling] the said



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166 QUEENSLAND EEAL PEOPEETT ACT— No. 1.

land given by me to by a power of attorney dated the day

of In witness whereof I have hereunto subscribed my name this

day of A.B. of . I M.M. Eegistrar-Qeneral hereby certify

that the above-named proprietor has executed this revocation order in
manner above appearing and that the jjarticulars thereof are entered in the
register book. (Signed) Begistrar-G^neral.



Certificate of Begietrar-Generdl upon aehnowledgment of Imtrument to he made

hy a Married Woman.

I certify that this instrument was this day produced before me the
undersimed M.N. Begistrar-GFeneral [judge or Master of the Supreme
Court of Queensland or A.B. a commissioner duly authorised in that behalf
for taking acknowledgements of married women or E.F. the commissioner
named in the commission hereunto annexed or G.H. mayor or police magis-
trate of ^ and was acknowledged by the wife of
therein named bemg oersonally present before me and being of full age and
competent understanding to be her act and instrument previous to which
acknowledgment the said being examined by me separately and
apart from her husband touching her knowledge of the contents of the said
instrument and her consent thereto declared that she fully understood the
nature and effect thereof and that the same was freely and voluntarily
executed by her. As witness my hand this day of
(Signed.)

P.

Certificate of Regittrar-Qeneral Justice of the Peace Sfc. taking Declaration of

Attesting Witneee.

Appeared before me at the day of CD. of

attesting witness to this instrument and acknowledged his signa-
ture to the same and did further declare that A.B. the party executing the
same was personally known to him the said CD. and that the signature of
this said mstrument is in the handwriting of the said A.B. (Signed)
Eegistrar-Qeneral or J.P.

Q.

Certificate qf Segistrar- General or Justice of the Peace before whom imtrument
mag have been executed by the parties thereto.

Appeared before me at the day of A.B. of

the party executing the within instrument and did freely and
voluntarily sign the same. (Signed) Eegistrar-Q-eneral or J.P.

S.

Fees payable for the performance of the several acts matters and things herein

specified.

For the bringing land under the provisions of this Act to be paid to the
Begistrar-Oeneral over and above the cost of all advertisements herein
directed to be published*



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QXTEENSLAND EEAL PEOPEBTY ACT— No. 1. 167



When the title consists of a land grant only...

Wlien the title is of any other description and the value exceeds
^&oOO ••• ... ... ••• ... ...

When the title is of any other description and the value exceeds
£200 and does not exceed £800

When the title is of any other description and the value exceeds
£100 and does not exceed £200

When the title is of any other description and when the value
does not exceed £100...

Contribution to Assurance Fund upon first bringing land under
this Act —

And upon transmission by will or intestacy in the pound sterling 0^

«Other fees —
For every certificate of title or registration abstract ... ...10

For every certificate of title issued to proprietor for balance of



£ 8 B
10

10

15

10

5



land left upon a transfer of portion of the land included
under a former grant or certificate of title

For certificates of title issued under other circumstances

Registering memorandum of sale bill of mortgage bill of encum-
brance lease or nomination of trustees or any direction licence
or order of the Supreme Court or any judgment or writ ...

For registering transfer of mortgage or of encumbrance or release
of mortgage or encumbrance or the transfer or surrender of
a lease or discharge or satisfaction of any judgment or writ...

Begistering a declaration of ownership taken by transmission ...

For every power of attorney

For cancelling power or registration abstract...

For every revocation order

Beceipt and noting of caveat

For every search when the volume and folium is given

For every general search ...

For every map or plan deposited

For every deed or other instrument declaratory of trusts deposited

On deposit of any will or other instrument for safe custody only

For the exhibition or return of any instrument so deposited or for
exhibiting any application or deed surrendered ...

For certified copy first five folios per folio of seventy-two words

For every folio or part folio after first five ...

For every instrument drawn on parchment „•



10
10

10



6





10





10





6





10





10





1





2


6


5





10





10





10





5








8


a


6



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168 QUEENSLAND REAL PEOPEETT ACT— No. 2.

1877.
QUEENSLAOT).

THE LAND TRANSFER ACT

NO. Q.

Preamble TTTHEEEAS it is desirable to amend " The Eeal Property Act of 1861 "

f ? Be it therefore enacted by the Queen's Most Excellent Majesty by

and with the adyice and consent of the Legislative Council and Legislative

Assembly of Queensland in Parliament assembled and by the authority of

MitipBH *^® ^°^® ^ follows : —

SJIJl^ 1. This Act shall be read and construed with and as an amendment of



read as pert

iieaX ^. *„.„ ^^, „„^^ ^^ *««„ „„.

£*^i « The Bead Property^A^^ of 1861



Short title 2. This Act may be cited for all purposes as " The Eeal Property Act

of 1877."

^J''^^*- ^ 3. In the construction and for the purposes of this Act and in all
ono mu jjjgjj^mgu^ purporting to be made or executed thereunder (if not incon-
sistent with the context and subject-matter) the following terms shall have
the respective meanings hereinafter assigned to them that is to say: —
THE PltlNCIPAL ACT shaU mean *' The Eeal Property Act of 1861."
THIS ACT shall mean "The Eeal Property Act of 1861 " as amended by
this Act. PEOPEIETOE shall include any person possessed of or entitled
to any charge unon any land. APPEAISEE shall mean and include anv
person appointea by the Eegistrar-General under this Act to value land.
(N. 8 ; Z. 2 ; S. 180 ; T. 62-8 ; V. 66-4, 107.)

^^epeti 4. Section eighty-five of the Principal Act is hereby repealed.

Attortation 5^ All instruments executed in this colony pursuant to the provisions

iiff^' of this Act unless the execution thereof be proved before the Segistrar-
General a notary public justice of the peace or commissioner for taking
affidavits as provided by section one hundred and fifteen of the Principsd
Act shall be attested by the Eegistrar- General a notary public justice of the
peace commissioner for taking affidavits barrister solicitor or conveyancer.
(N. 94; Z. 160; T. 86-29; V. 66-115, 85-71.)

^wSera^ 6. The Eogistrar- General may from time to time subject to the

Se^lpointed approval of the Governor in Council by an instrument under his hand and

the seal of his office appoint fit and proper persons to be appraisers to value

land under this Act.

Oath of 7^ Every appraiser shall before performing any duties under this Act

■ppr^ take the foUowing oath before the Registrar-General or some Justice of

the Peace who are hereby respectively authorised to administer the same : —

I do solemnly swear that I will faithfully and honestly and to

the best of my skill and ability make any valuation required of me
under the provisions of " The Eeal Property Act of 1861 " and
" The Eeal Property Act of 1877." (N. 129 ; Z. 210.)



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QUEENSLAND EBAL PEOPEETT ACT— No. 2. 169

3, When any person claiming to be entitled beneficially to land for an Effect of
estate of freehold in possession sluill apply to have such land brought under JXremSLt
the proyisions of this Act it shall not be lawful for the Eegistrar-Q-eneral
to reject such application by reason only that a conyeyance by the origisal
grantee of the said land lorming part of the title appears to haye been
executed by such grantee prior to the issue of the grant. (J^eill y.
Lindtay, 94.)

9, It shall not be lawful for any applicant to withdraw or materially AppUoatioii
alter Ids application without the consent oi every person who would in the JJu^SS-
event of such application being granted be entitled to a certificate of title e^ only to
on such application. Such consent shall be evidenced by an endorsement dr«!m5rtth
upon the request mentioned in section twenty-nine of the Principal Act ^^ consent
signed by such person or his solicitor. (See note to See, 29 of 1861 Aot.

N. 14, 24; Z. 27 ; S. 41 ; T. 62-25.)

10, When the Segistrar-Qeneral shall be of opinion that any appli- Supplement-
cation to bring land under the Principal Act is defective on account of ^^SS^*
want of legal or equitable title in the applicant he may instead of rejecting

the same accept the concurrence of the parties entitled to any legal or
equitable estate therein. {Wiggins app., Uammill resp., 88.) Such concur-
rence shall be endorsed on the application or refer thereto by number or
other sufficient description and shall be sufficient if in the following form
or in a form to the like effect : —

I concur in the above [or within] application.

Dated A.B. Witness—

I concur in the application of to bring land [describing it]

under " The Eeal Property Act."

Dated A.B. Witness—

11, Notwithstanding the provisions of section 44 of the Principal Act Leasee not
the estate of a registered proprietor shall not be paramount or have priority ^SJ^^
over any tenancy from year to year or for any term not exceeding three v>9d
years created either before or after the issue of the certificate of title oE

such registered proprietor. (Z. 86 ; S. 116 ; V. 66-76.)

12, Subject to the proviso next hereinafter contarned all instruments 1^^^ ^'
shall be registered in the order in which the same shall be produced to the "**'*'^*"
Eegistrar-General for that purpose and all instruments registered in respect

of or affecting the same estate interest or security shall notwithstanding any
express implied or constructive notice be entitled to priority one over the
other according to the dates of the production of such instruments to the
Eegistrar-G-eneral for registration and not according to the dates of such
instruments. For the purpose of determining such priorities the fiegistrar-
Oeneral shall endorse on every instrument registered by him the day and
hour of the production of such instrument for registration. Provided that
if any instrument shall be produced to the Eegistrar- General for registration
whicn cannot be registered in consequence of the non-production of the
instruments of title relating to the estate or interest or security proposed
to be dealt with and before the registration thereof any other instrument
executed by the same proprietor or owner and purporting to transfer or
otherwise dfeal with the same estate or interest or the same security shall be
produced to the Eegistrar-G-eneral for registration and shall be accompanied
Dy the instruments of title he shall first register that instrument whicn shall



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160 QUEENSLAlfD EEAL PROPEBITT ACT— No. 2.



Begisfcerof
powers of
ftttornej




be produced bj the person producing to him the instruments of title relating
to the estate or interest or security proposed to be dealt with. (JKissUng v.
Mitchelson, 123.)

13. A separate register of powers of attorney affecting lands under the
provisions of this Act or whicn may be the subject of an application to
bring them under such proTisions shau be kept. And wheneyer a power of
attorney shall be brought to the Begistrar-G^neral for the first time he shall
enter a memorial thereof in such register and such entry shall be considered
a compliance with the provision oi section one hundred and four of the
Principal Act requiring that a memorial of such power of attorney shall be
entered in the Begister Book and no entry of such memorial after the first
such entry shall be necessary. It shall not be necessary for the Eegistrar-
General to require proof that at the time of the execution of any inst^ment
executed under any such power and tendered to him for registration such
power was unrevoked.

14* All instruments when registered shall take effect from the date of
the production of such instruments to the Begistrar- General for registration
which date shall be expressed in the certificate of title or other instrument
issued by him. (N. 85 ; Z. 86 ; S. 67 ; T. 62-89 ; V. 66-61.)

16. The date of the production of any instrument to the Begistrar-
G-eneral for registration shall for the purpose of registration be deemed to
be the date of such instrument.

16. It shall not be necessary to execute transfers of an estate in fee-
simple in lands under this Act in duplicate. Leases of lands subject to the
provisions of this Act may be in triplicate. (S. 98 ; T. 86-8 ; V. 86, 42.)

17. Upon the registration of any memorandum of transfer of the fee-
simple comprising the whole of the land described in any grant or certificate
of title it shall not (except where a tenancy in common is thereby created
or cancelled) be necessary for the transferee to take out a certificate of
title in his own name but he may receive the grant or certificate of title of
the transferor or in the case of a sale by a mortgagee the grant or certificate
of title of the mortgagor with a memonal of the transfer endorsed thereon
and sealed with the scuu of the Begistrar- General and the Begistrar-G^neral
shall not after registering anj such transfer enter a memorandum cancelling
such g[rant or cemficate of title. (N. 45, 127 ; T. 62-45.) Each successive
transferee of the whole of such land may at his option ta^e out a certificate
of title in his own name or may receive the same grant or certificate of title
upon which the memorial or memorials of any previous transfer or transfers
have been endorsed as aforesaid but the Begistrar- General whenever in his
opinion any grant or certificate of title shall be incapable of containing with
convenience any further endorsement may require the last transferee to
receive a certificate of title in his own name.

18. Any lease of any land under the provisions of this Act for a term
ti^'yran Dot exceeding three years shall be and be aeemed to have been valid to all
I^emj^be ^*®^*8 ^'^^ puTposcs. If such loaso be executed in the form E or to the
regiatered puiport or onect of f onu E of the schedule to the Principal Act it may be

registered.

ohHw^f ESd 1®* ^^^^0^®' ^^7 la^d subject to any charge or encumbrance shall
iiy mort- have been transferred to the person entitled to such charge or encumbrance
^**^ such person shall be entitled to demand and obtain a certificate of title to

the land discharged from such charge or encumbrance.



InstnxDMit
to take effeot
from date of
prodaotiom
forregistn-
tion

D ate of

infltnunfiiit

TnuBfenof
feeBJmole
not in anpU-
cate

LeaaeamaT
be in tripli-
cate

Bzorat in
oertalnoaaet
notneoee-
■aryfor
fresh oertifl"
oatea of title
toiaaneto
tranafereea



Leaaea for



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QUEENSLAND fiEAL PBOPEBTT ACT— No. 2. 161

20. In case of any sale taking place under the provisions of section ADpiiMtion
fifty-seven of the Principal Act by reason of default in payment of interest of JSennder
only OP of any instalments the mortgagee or encumbrancee may retain out mortgage Ac.
of the purchase money received all principal moneys intended to be secured

by the mortgage or bill of encumbrance in pursuance of which such sale
shall have taken place whether the same shall actually be due or not.
(Miller v. Morissey, 181. N. 56 ; T. 62-64.)

21. Whenever there shall be inserted in any bill of mortgage or bill of Bighta in
encumbrance the words " The money intended to be secured belongs to the S^^^^
mortgagees (or encumbrancees as the case may be) upon joint account" <m» joint
there shall be transmitted to the survivors and survivor of the mortgagees JS^SrV ^
or encnmbrancees the joint right at law as well as in equity to recover and
receive and give discharges for the money and the interest thereon or the
annuity or rent-charge secured by the roistered bill of mortgage or bill of
encumbrance and to exercise ana enjoy in respect of the registered bill of
mortgage or bill of encumbrance all the powers and privileges vested in
mortgagees or encumbrancees by the Principal Act : Provided that such
transmission shall not take effect until the same shall have been registered

in manner hereinafter provided.

22. The treasurer trustees or other officer of every society constituted JJ^'*§3JJ*
or to be constituted under the Acts for the time being in force in this sodetiea ^
colony relating to benefit building or friendly societies shall forward from

time to time to the Eegistrar- General the names of the treasurer trustees
or other officers in whom the property of the society may by law be or
become vested and also notice of the death resignation or removal of existing
and the appointment of new officers and a copy of the rules of the society.
Land under this Act shall be mortgaged or encumbered to such societies
only by bill of mortgage or encumbrance made to such officers denoted by
their official style and not by their own proper names and the persons in
whom the property of the society shall for the time being be vested shall
be deemed to be the registered proprietors of such mortgages or encum-
brances. "When any instrument which shall be presented for registration
affecting the land included in any such mortgage or encumbrance shall
purport to be executed by the persons in whom the property of the society
and right to deal with such land appears to the Registrar- General to have
been vested at the time of the execution of such instrument he shall register
the same and no person claiming under any such instrument shall be affected
by notice express implied constructive or otherwise that the property of the
society was not vested in the person executing the same or that such instru-
ment was executed in contravention of the rules of the society or the terms
of the mortgage and no claim on the assurance fund shall arise from the
fact that the property was not so vested or that such instrument was so
executed as aforesaid. SiSafeJiJwe

23. Land under the provisions of this Act may be transferred subject rabjeot to a
to a charge or security or subject to any easement. SsSKnt^

24. When land under the provisions of this Act is intended to be Tranafer
transferred subject to a charge or a security or subject to any easement the Jh5g?*°*
transferor and transferee shall execute a Memorandum of Transfer and
Charge in one of the forms T of the schedule hereto and every such
memorandum shall be attested by a witness and shall for description of the

land intended to be transferred refer to the grant or certificate of title of
such land or shall give such description as may be sufficient to identify the

91



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162 QUEENSLAND EEAL PEOPERTT ACT— No. 2.



part or portion of land intended to be transferred and shall contain a
statement of the estate or interest intended to be transferred and of the
charge or security intended to be created and a memorandum of all mort-
gages and other encumbrances afEecting the same and if such land be leased
the name and description of the lessee with a memorandum of the lease.

roWMttoft 2^* ^^^ Memorandum of Transfer and Charge creating a charge or

ohM^ tobe security shall be in duplicate and the Eegistrar- General shall reg^ter the
iB dupiioftte game and after such registration the Eegistrar-Q^neral shall retain one of

such Memoranda and shall deliver the other to the person in whose favour

the charge or security shall have been created.

26. Every memorandum of transfer and charge when registered shall
have the same effect so far as relates to the charge or security therein
mentioned as a bill of mortgage would have had executed by the transferee
to the person in whose favour the charge or security shall have been
created.

27* The Eegistrar-G^neral shall note on the certificate of title made
out to the transferee under any registered memorandum of transfer and
charge particulars of the charge security or easement created by such
memorandum.

28. Whenever an easement is created by a memorandum of transfer
and charge or otherwise it shall be lawful for the Eegistrar-G-eneral at any
time upon the application of the transferor or other person in whose favour
the land shall be charged with such easement to deliver to him a certificate
of title for such easement. {Be Beanie^ 58 ; Big^s v. Waterhousey 58 ; re
Wm. BiggB, 59. N. 43, 44 ; Z. 61, 73, 78 ; S. 61-98, 81 ; T. 43, 62-138 ;
V. 66-62, 85, 141.)

29. Wheuever anv bill of mortgage or bill of encumbrance or
memorandum of trans&r and charge executeJ by a married woman shall

njre tobe*" ^*^® \>e%n oxecutod by her with the consent of her husband a memorandum
of such consent sigaed by such husband shall be endorsed thereon and
whenever a bill of mortgage or a bill of encumbrance or memorandum of
transfer and charge executed by a married woman having endorsed thereon
such consent as aforesaid shall be registered the husband of such married
woman shall be bound by all the covenants expressed in such instrument or
inplied therein by virtue of the sixty -ninth section of the Principal Act in
the same manner and to the same extent as if he had been a party to and
had executed such instrument Such memorandum of consent shall be in
the following words or words to the like effect — I consent hereto and to be
liable for covenants.

80- And be it enacted and declared that an equitable mortgage or lien
upon land or any estate or interest in or security upon land under the
provisions of this Act or any instrument afEecting any such land may be created
by deposit of the instrument of title and such deposit shall subject to the
provisions hereinafter contained have the same effect on the estate interest
or security sought to be charged as a deposit of title deeds would have had
before the passing of this Act. Any equitable mortgagee may lodge a caveat
against any dealing^s with the estate interest or security except subject to
such mortgage or lien Every such caveat shall state the amount and nature
of the charge or lien. (S. 149.)



Traaafer
8al>jectto
ohiurge when
registered to
boequivaleat
to a Dill of
mortgage

Certificate of
title to trans-
feree under a
transfer
subject to a
charge to ba
noted as sub-
ject to such
Aargd

Aoertifloata
of title to an
easement
maybe
issued on
cancellation
of transfer
subject
thereto

Hnaband



tohiswife^t



bleon
impUed
corenants



Equitable
mortgage
maybe
created



Gareat ma^
be lodged



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QTTEENSLAND BBAL PEOPBBTT ACT— No. 2. 168

31. Whenever any buildings erected upon any demised property under if bnfldingt
the proTisions of this Act shall be destroyed by fire storm flood or tempest ^^^^
or otherwise by the act of God and without any default on the part of the obiig»tion
lessee then unless it shall be by the lease otherwise stipulated the covenant to bilJ^ded
pay rent and to keep and yield up the demised property in good and tenantable
repair specified in the seventieth section or the rrincipal Act shall be
suspended until the lessor shall have reinstated the buildings in good and
tenantable repair. (Saunders v. Cdbof^ 15; Pannan v. Fannan, 18; re
Strong, 218. Z. 115; S. 170; T. 86-19, 62-3; V. 85-60.)

82. The heir-at-law devisee tenant by the courtesy or dower or other H«ir«tkw
person claiming to be entitled to any estate or interest in land of a deceased ^ytj^to
proprietor may make application in writing to the JEtegistrar-G^neral to be S^^^*»^
registered as proprietor of such estate or interest and shall deposit with him regirtevii m
the certificate of the death the will or an office copy or probate of the will Proprietor
of the deceased proprietor or any settlement under wnicb such applicant
claims or in the case of intestacy such evidence of heirship as he may be



Online LibraryAustraliaThe land transfer laws of Australasia: being the full text with side notes ... → online text (page 32 of 83)