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

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Act Amendment Act of 1878," and the " liights-of-way Act,
1881 " : Be it therefore enacted by the Governor of the
Province of South Australia, with the advice and consent of
the Legislative Council and House of Assembly of the said
province, in this present Parliament assembled, as follows : —

1, This Act may be cited for all purposes as ** The Real Property Act, short m»
1886."

2. This Act is divided into twenty-one parts, as follows: — PAET I. — DiTidonof
Introductory - S8. 8 to 9. PART 11.— Ohjects of the Act— 88. 10 and 11. ^^otteto
PART Ul.—The Lands Titles Begistration Office— ss. 12 io 24. PART ^""^
lY.—The Bringing of Land wider the Act—ss. 25 to 46. PART Y.—The
Begisirar Book—ss, 47 to 66. PART Nl.—The Title of Begistered Pro-
prietorsss. 67 to 72. PART \ 11,— Certificates of Titless. 73 to 80.
PART \lli,—Easement8S8. 81 to 90. PART IX..— Grown Leases— ss. 91

to 95. PART X,— Transfers— ss, 96 to 115. PART XI.— Leases and
Surrenders — ss, 116 to 127. PAKT XII. — Mortgages, Encumbrances, and
Bischarges—ss, 128 to 152. PART XllL-Bxtenswns-ss. 153 and 154.
PART XIY.— Poivers of Attorney— ss. 155 to 160. PART XY.— Trusts and
Transmissions— ss. 161 to 190. PART XYl.— Caveat— s. 191. PART
XYll.— Ejectment— ss. 192 to 200. PART XYlll.—The Assurance Fund—
ss. 201 to 219. PART XIX.— Special Powers and Duties of Begistrar-
General- ss. 220 to 223. PART XX,— Procedure and Penalties— ss. 224 to
240. PART XXl.— Miscellaneous— ss. 241 to 276.



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178 SOUTH AUSTRALIAN REAL PEOPEBTT ACT.



tiOQcUose



Asmtnaoe
ftind



OaTMt«e

Carefttor
Certifloato



Chiel Seere-
Ury

Court

Dealing



Dooomeofc of
title

Dominant
land

£ncam-
branoee

Bnonni»
brancer

Inslruinent



Inttrnment
of title

Land



Lessee

Lessor
Lonatio



Mortgagee
Mortgagor



PART L

IWTEODUCTOET.

3« In the construction and for the purposes of this Act, and in all
instruments made or purporting to be made thereunder, the following terms
shall, so far as not inconsistent with the context or subject, and except
when such context or subject or the other provisions hereof require a
different construction, have the respective meanings hereinafter assigned to
them, that is to say. (Be Fergusson, 128; N. 3 ; Q. 61-3 ; T. 62-3, 74-3 ; V.
66-3.) :— ASSURANCE FUND shall mean the public revenue of the
province to the extent of the balance for the time being, constituted by the
present amount of the Assurance Fund formed under the Eeal Property
Acts, or any of them, and by the amount of all sums received under sections
201, 218, or 219, of this Act, after deducting all payments hereafter made
by the Treasurer under Part 18 hereof, together with interest on the
said balance after the rate of Four Pounds per centum per annum.
CAVEATEE shall mean any person against whose application for any
purpose a caveat has been lodged, and shall include the registered proprietor
of any land in respect of which a caveat has been lodged. CAVEATOB
shall mean anj person lodging a caveat. CERTIFICATE shall mean a
certificate of title issued under any of the Real Property Acts, or any grant
from the Crown issued after the passing of the "Real Property Act,"
No. 15, of 1857-58, and shall extend to and include all plans and entries
thereon. (N. 31 ; Z. 66-34. ; Q. 61-33 ; T. 62-32.) CHIEF SECRETARY
shall mean the Chief Secretary of the province. COURT shall mean the
Supreme Court of the province, or any Judge thereof. DEALING shall
mean any instrument or matter, whereby any land or the title to any land
can be affected, or dealt with. DOCUMENT OF TITLE shall mean and
include every document evidencing or relating to the title to any land not
under the provisions of any of the Real Property Acts. DOMINANT
LAND shall mean any land having a right-of-way or other easement appur-
tenant thereto or annexed to the ownership thereof. ENCUMBRANCEE
shall mean the registered proprietor of an encumbrance. {Be FerQussan,12S ;
N. 3 ; Q. 61-3 ; T. 62-3 ; V. 66-4.) ENCUMBRANCER shall mean the
registered proprietor of land subject to an encumbrance. INSTRUMENT
shall mean and include every document capable of registration under the
provisions of any of the Real Property Acts, or in respect of which any
entry is by any of the Real Property Acts directed, required, or permitted
to be made in the Register Book. (Outhbertson v. Swann, 144. N. 3 ;
Q. 61-3 ; T. 62-8 ; V. 66-4.) INSTRUMENT OF TITLE shall mean and
include every instrument evidencing or relating to the title to any land
under the provisions of any of the Real Property Acts. LAND shall extend
to and include all tenements and hereditaments corporeal and incorporeal
of every kind and description, and every estate and interest in land. (N. 3;
Z. 2; Q. 61-3; T. 62-3; V. 66-4.) LESSEE shall mean the registered

f)roprietor of a lease. LESSOR shall mean the registered proprietor of
and subject to a lease. LUNATIC shall mean any person who shall have
been found to be a lunatic upon inquiry by the Court, or upon a commission
of inquiry or an inquisition issuing out of the Court in the nature of a
writ de lunatico inquirendo. (N. 18; Q. 61-3; T. 62-3; V. 66-17-6.)
MORTGAGEE shall mean the registered proprietor of a mortgage. {Jones
V. Selliok, 78.) MORTGAGOR shall mean the registered proprietor of
land subject to a mortgage. (Hart v. Straiton, 119. N. 3 ; Q. 61-3 ;



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SOUTH ATJ8TBALIAN REAL PEOPEETT ACT. 179

T. 62-3.) PERSON OF UNSOUND MIND shall mean any person not
an infant, who, not having been found to be a lunatic, shall be incapable,
from infirmity of mind, of managing his own affairs. ( N. 3 ; Z. 18 ; T. 62-3 ;
V. 66-17.) PEOPEIETOE shall mean any person seized or possessed of,
or entitled to land. (N. 3 ; Z. 2 ; T. 62-3 ; V. 66-4, 107.) EEQISTEBED
PEOPEIETOE shall mean any person appearing by the Eegister Book, or
by any registered instrument of title, to be the proprietor of any land.
SERVIENT LAND shall mean land subject to any easement. STATU-
TOET ASSIGNMENT shall mean auy deed assigning a debtor's estate for
the benefit of his creditors, executed under or in pursuance of Division six
of "The Insolyent Act, 1860," or any other Act. THE EEAL PEOPERTY
ACTS shall mean the " Eeal Property Act " (No. 15 of 1857-8), " The Eeal
Property Law Amendment Act" (No. 16 of 1858), the "Eeal Property
Act of 1860 " (No. 11 of 1860), the " Eeal Property Act of 1861 " (No. 22
of 1861), the "Eeal Property Act Amendment Act of 1878" (No. 128 of
1878), the " Eights-of-way Act, 1881 " (No. 223 of 1881), and this Act.
TBANSMISSION shall mean the passing of title to land in any manner
other than by transfer. The description of any person as proprietor,
transferor, transferee, mortgagor, mortgagee, caveator, caveatee, encum-
brancer, encumbrancee, lessor, lessee, or trustee, or as seized of, having, or
taking any estate or interest in land shall be deemed to extend to and
include the heirs, executors, administrators, and assigns of such person.

4, The following Acts or parts of Acts are hereby repealed : —



Person of

unsotmd

mind



Proprietor

Begistered
proprietor



Serrientlaad

SUtatory
assignment

TheBesl
Property
Acts



Transmis-
8i<m

Proprietor
to inolade
representa-
tires



Number.


Title.


Extent of Repeal.


22 of 1861.


" Real Property Act of 1861."


The whole.


128 of 1878.


*» Real Property Act Amendment Act of 1878."


The whole.


223 of 1881.


"Rightfl-of-Way Act, 1881.


The whole.

^ The following words
\ at the end of section






225 of 1881.


Act to amend "The Probate and Succession


J 3, sub-sections 2 and




Duty Act, 1876."


^ 8:— "The estate be-
/ ing exempt under
\ clause 2 of this Act.*'



5. Such repeal shall Dot affect any appointment, regulation, instru- Saring
ment, fund, act, matter, or thing lawfully made, done, executed, or in ^^^^
existence under the authority of the said Acts or any or either of them ;
nor prevent prosecution or punishment for any offence committed or act
done in violation of the provisions of the said Acts or any or either of them ;
or interfere with the recovery of any penalty or of any forfeiture incurred
under the said Acts or any or either of them ; or with tne enforcement,
vmdication, or recovery of any estate, right, title, trust, covenant, contract,
or interest preserved, acquired, accruing?, existing, or entered into under the
provisions of the said Acts or any or either of them ; nor shall such repeal
affect or in any way interfere with any act or thing, prosecution or punish-
ment, enforcement, vindication, or recovery saved or protection given by the
said repealed Acts ; and all applications, actions, suits, proceedings, instru-
ments, registrations, and other acts, matters, and things made, commenced,
pending, signed, entered, or done under the said repealed A cts or any or
either of them before the passing of this Act, may be proceeded with,
prosecuted, completed, and acted on in the same manner and shall be as
valid and effectual as if this Act had not been passed.



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180 ' SOUTH AUSTEALIAN EBAL PEOPEBTT ACT.

Laws inoon- 6. No law, 80 fap as inconsistent with this Act, shall apply to land

Butentnotto Buijjp^t ^o the provisions of this Act, nor shall any future law, so far as

inconsistent with this Act, so apply unless it shall be expressly enacted that

it shall so apply " notwithstanding the provisions of * The Eeal Property

Act, 1886.'" (V. 66-3.)

pwiJi2r^^ 7. All land subject to the provisions of any of the Eeal Property Acts,
Acta to bo shall, on and from the day upon which this Act shall come into operation,
under thi« j^j^j g^jj |^jj^ hereafter brought under the provisions of any of the Eeal
Property Acts, pursuant to any application commenced at the time of this
Act coming into operation, shall from the time of the issuing of the certifi-
cate for such land, be held subject to the provisions of this Act. (N. 18 ;
Z. 10; T. 62-13.)

br^th-**^ 8. No land once subject to the provisions of this Act shall ever be

drawn withdrawn therefrom.

mranfAot ®- ^^^^ -^^ ^^*^^ ^^^ ^^ operation on the first of January, one

thousand eight hundred and eighty-seven. (T. 62-14i3.)

PART II.

Objects op this Act.

Objectt 10. The objects of this Act are to simplify the title to land, and to

facilitate dealing therewith, and to secure indefeasibility of title to all
registered proprietors, except in certain cases specified in this Act.

Conatruotion jj^ This Act shall always be construed in such manner as shall best
give effect to the objects hereinbefore declared.

PART HL

The Lands Titles Eeqistbation Office.
LMdi TitiM 12* The Lands Titles Eegistration Office shall be continued at Adelaide

mtAAeilide for the purposes of this Act.

^^^^ 13. The department of the Eegistrar-Gheneral shall carry out the pro-

GMenI?iind visions of this Act, and shall consist of a Begistrar- General, and such

ofi^<>ento Solicitor and Deputy Eegistrars and other officers and clerks as may be

SutieTunder found ncccssary. The present Eegistrar-General, Solicitor, Deputy Eegis-

*^ ^^^ trars, and other officers and clerks of the said department shall perform all

the duties of their respective offices under this Act: (Eic parte Bond, 90.

N. 6, 20 ; V. 66-68.)

officenT^*'' 14, Every Eegistrar-General, Deputy Begistrar, and Solicitor may be

removed by the Governor for neglect of duty, want of skill, untrustworthi-

ness, or incapacity ; and it shall be lawful for the Governor to remove any

other officer or any clerk of the said department at pleasure, and to fill up

any vacancy occurring in the department. {Chomley v. Firebrace, 21.

V. 66-8.)

GoTemor 15, The Govomor may appoint and at pleasure remove an Acting

mag^appomt Solicitor who shall while holding such appointment perform all the duties

Solicitor of a Solicitor of the department. (Barker v. Weld, Si; re Craig, 76.)

Appoint- \Q^ The Governor, as occasion may require, may appoint an Acting

datieaVf," Ecgistrar- Gen Oral, and in the event of the suspension, absence, or incapacity,

Beri»!nr ^^ *^® Begistrar- General, the Acting Begistrar shall, in his stead, exercise

^^ and execute all the powers and duties of the Begistrar, and the Eegistrar-



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SOUTH ATTSTBALIAN EBAL PBOPBBTT ACT. 181

General shall not have power to act daring sucli time as the Acting Begistrar
shall be lawfully acting. Unless or until an Acting Eegistrar-Generai be
appointed, the senior Deputy Eegistrar for the time being shall ex officio be
Acting Eegistrar-General. {D'Albrdyhill v. D'Albrdyhill, 82. Z. 104 ; Q.
84.-2 ; T. 62-81 ; V. 66-7.)

17. The Acting Eegistrar- General shall act from such time as he shall ^l^J^
receive from the Attorney-General a notice that the Eegistrar-General has Begistrar *
been suspended, or that the Eegistrar-General is about to absent himself or ^^^*^\
has absented himself, or is incapacitated from performing his duties ; and

such Acting Eegistrar-General shall cease to act from such time as he shall
receive from the Attorney-General a certificate under his hand to the effect
that the Eegistrar-General resumes his duties.

18. Whenever, by any law for the time being in force in the said potions of
province, anything is appointed or authorised to be done by the Eegistrar- lu^Sar*
Q-eneral, the same may be lawfully done by any Deputy Eegistrar- (^neral. General

19. It shall not be lawful for any person whilst holding the office of ^^^ij^***
Solicitor under this Act to eneage in private practice as a barrister, attorney, ^
solicitor, or licensed land broker, but this prohibition shall not apply to any
Acting Solicitor. (N. 9 ; T. 63-2.)

20. The following declaration shall be made before a Judge by every Deoiarrtion
Eegistrar-General, Deputy Eegistrar-General, and Acting Eegistrar-General ^^JjSJ^
who may hereafter be appointed, before entering upon the execution of his offU»
office — I, A. B., do solemnly and sincerely declare that I will faithfully, and

to the best of my ability, pursuant to " The Eeal Property Act, 1866,"
execute and perform the office and duties of Eegistrar-G-eneral [or Deputy
Eegistrar-General, or Acting Eegistrar-General, as the case may he'\ for the
Province of South Australia.

21. The Eegistrar-General shall have and use a seal of office bearing Seal ef office
the impression of the Eoyal Arms of England, and having inscribed in the ^^dS
margin thereof the words " Eegistrar-General South Australia," and every •▼idenoe
instrument bearing the imprint of such seal, and purporting to be signed or

issued by the Registrar- General, or by one of his deputies or by the Acting
Eegistrar-General, shall be received in evidence, and shall be deemed to be
signed or issued by or under the direction of the Eegistrar-General, or
Acting Eegistrar-General, without further proof, unless the contrary be
shown. (N. 9 ; Q. 61-81 ; T. 62-91 ; V. 86-52.)

22. The Eegistrar-General may demand and receive such fees in respect Fees
of the several matters provided for in this Act as shall from time to time be
appointed by the Governor, not in any case exceeding the several fees
specified in the First Schedule hereto, and until the Governor shall other- Firrt
wise appoint, shall demand and receive in respect of such matters the several s«*^®^°^«
fees specified in the said Schedule. (Z. 46 ; Q. 61-140 ; T. 62-108, 67-1 ;

V. 85-75.)

23. The Eegistrar-General shall keep a correct account of all sums of Q^SSoto
money received by him in accordance with the provisions of this Act, and paj moneTs
shall pay the same into the public Treasury of the province at such times, ^)^^to
and shall render accounts of the same to such persons, and in such manner r^er

as may be directed by any regulations that may for that purpose be in force, ~*®**^**
or from time to time prescribed by the Governor, and shall address to the
Treasurer requisitions to pay moneys received by him or by the Treasurer,



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182 SOUTH AUSTBALIAN BEAL PEOPEEIT ACT.

in trust op otherwise, on account of absent mortgagees or other persons

entitled, in accordance with the provisions of this Act, which requisitions,

when proved and audited in manner directed by any such regulations, and
SuSedtobe *<^^°^P*Di©d by a warrant for pajrment of the same under the hand of the
pwdbyTren- Grovemor, couutersigued by the Chief Secretary, the Treasurer shall be
propOTw. ^^^<^ *o obey ; and all fines and fees received under the provisions of this
not Act shall (subject to the provisions hereinirfter contained respecting the

Assurance Fund) be carriea to account by the Treasurer as general revenue.

(Bume V. Stewart^ 28 ; Latifffi v. Budwolt, 143 ; Otago Harbour Board v.

Spedding, 165. N. 109 ; Q. 61-141 ; T. 62-109 ; V. 66-142. See note to Sec.

13, ante,)

G^Sl'SrS'ot 24. The Registrar-General shall not individually, nor shall any person

to be liable acting uuder his authority, be liable to any action, suit, or proceeding for or

^ii^Jag ^® in respect of any act or matter bona fide done, or omitted to be done, in the

exercise or supposed exercise of the powers of this Act. (N. 125.)

PART IV.

The Bbikghto op Land Uitdbb this Act.

5jj^ *^o 25. For the purpose of brin^g land under the provisions of this Act,

it shall be regarded as divided into two classes, as follows : — (i) Land
hereafter alienated in fee from the Crown : (2Sr parte Bowan, 13.) (it)
Land heretofore alienated in fee from the Crown. (JEx parte Finlag, 65.
N. 13; Z. 137; V. 66-15, 21.)

iSLtiSn 2®' ^ ^ ^^^^ hereafter alienated in fee from the Crown, the same

from Crown shall, immediately on alienation, be subject to the provisions of this Act.
tebeimder jj 19; Z. 17 ; Q. 61-22; T. 62-20; V. 66-15. 34.)

Landi 27. As to land heretofore alienated from the Crown in fee but not

SriSftoihe under the provisions of any of the ileal Property Acts (whether such land

d»T on which shall Constitute the entire or only part of the land included in anjr land

came^nto g^^^^)^ the same may be brought under the provisions of this Act in the

SST'bi*" following manner, that is to say — The Registrar -General shall receive

b^nght applications in the form of the Second Schedule hereto, or in a form to the like

oMStion of ®^©<^> i^ made by ^ny of the following persons, that is to say — By any person

this Act claiming to be the person in whom the fee-simple is vested either at law or

in equity : Provided that wherever trustees, seized in fee-simple, have no

Second powcr to scU the land which they may seek to bring under the provisions of

this Act, the persons claiming or appearing to be beneficially entitled to the

said land shall consent to such application : By any person having power

to appoint or dispose of the fee-simple, at law or in equity, in cases where

the Registrar- GTeneral shall be satisfied that the application is made for the

purpose of carrying such power into effect : By any person claiming a

life estate, not being a leasehold for a life or lives : Provided that all persons

claiming or appearing to be beneficially entitled in reversion or remainder

shall join in or consent to such application : The father, or if the father be dead,

the mother or other guardian of any infant, or the committee or guardian

of any lunatic or person of unsound mind, may make or consent to such

application in the name or on behalf of such infant, lunatic, or person of

unsound mind ; and any person holding a power of attorney authorising the

sale of a freehold estate in any land may make the application in respect of

such land in the name or on behalf of the proprietor, unless such power

shall expressly prohibit his so doing. (Se^ note to See. 26, ante,)



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SOUTH AUSTRALIAN EEAL PBOPEETT ACT. 183

28. No such application shall be roceiyed from any person claiming to UndiTided
be entitled to an undivided share of any land unless the persons who shall ^^^^
appear to be entitled to the other undivided shares shall join in the applica- ijmds^nd
tion with a view to bringing the entirety under the provisions of this Act ; inj to i^a?'
nor from the mortgagor of any land unless the mortgagee shall consent to Jjj^ JJ!??*
Buch application ; nor from the mortgagee of any land except in the exercise broogbt
of or for the purpose of giving effect to a sale under a power of sale ^^tliwm
contained in the mortgage deed ; nor from a married woman unless her oon^tiona
husband shall consent to such application or unless the land be her separate
property or held for her separate use. (In re Kerr, 6; ex parte Folk, 170 ;

re PylceU, 171.)

29. Every applicant shall, when making his application, surrender to Applicant to
the Registrar- General all documents of title in his possession or under his doSTmentaof
control relating to or in any way affecting the land, and shall furnish a ^"®.'*°^ ^
schedule of such documents, and also, if required, an abstract of his title, »b™rLjt if
and shall, in his application, state the nature of his estate or interest in the '«i»ii'«d
land, and of every estate or interest therein held by any other person,
whether at law or in equity, in possession, reversion, remainder or stt^menta
expectancy, and give full particulars of every right-of-way or other easement ^ J^puJl*
affecting the land of which he is aware, or has had notice, or which he knows ^^^

to be claimed by any other person, and shall state whether the land be
occupied or unoccupied, and if occupied, the name and description of the
occupant, and the nature of his occupancy, and whether such occupancy be
adverse or otherwise; and shall, when practicable, state the names and
addresses of the occupants and proprietors of all lands contiguous to the
land in respect of which application is made so far as known to him, and
that the schedule so furnished includes all documents of title relating to
such land in his possession or under his control, and may, in his application, ^^ req^e
require the Registrar- Q-eneral, at -the expense of the applicant, to cause qJJ^j^J:
personal notice of the application to be served upon any person whose name givepenonai
and address shall for that purpose be therein stated, and shall give an ^^^
address within the city of Adelaide to which notices in respect of such
application may be sent. ( Feaiherstone v. Hanlon, 4 ; Sharpe v. Hadhy, 3 ;
Coker v. Spence 6 ; Davidson v. Browne, 183 ; re Sellars, 32 ; re O^Brien, 34.
N. 14; Z. 19 ; Q. 61-17 ; T. 62-15 ; V. 66-55.)

30. The statements made in the application shall be verified by the to be verified
declaration of the applicant or the person acting in his name or on his ^^q*®^""
behalf.

31. Upon receipt of the application the Registrar- Q-eneral shall cause ^^^^^'
the title of the applicant to be examined and reported upon by the solicitor dealt with
of the department. (N. 14.) Titles in

*^ ^ ^ three cImsm

32. For the purposes of all applications, the titles of applicants shall ^^^ ^^^'
be divided into three classes as follows : — Class I. When the applicant is original
the original grantee from the Crown, and the land has been granted on or ^^^i^^
subsequently to the first day of March, one thousand eight hundred and jj<«»« t»ve
forty-two, and no transaction affecting the title has at any time been tered"^*"
registered, and the applicant has not required notice of his application to be ^St^ m)?*"
served personally upon any person : Class II. When, although the title original
does not belong to the first class, the land is held by the applicant for the S^"^A^
estate or interest described in the application free from mortgage, ^^ hare
encumbrance, or other beneficial interest afEecting the title thereto, or if tered*^^^



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184 SOUTH AUSTEALIAN EEAL PEOPBBTT ACT.



Wheneri-
denoe of title
imperfeot



11nt«lM8to
be brought
under tbU
Act forth,
with

Prooednre
under Moond
class



Procedure
under third



Notice of
Application
to oe pub-
lished



Second and
third classes
brouffht un-
der the Act



any Buch mortgage, encumbrance, or interest exists the parties interested
therein join in or consent to the application, and the applicant has not
required notice of his application to oe served personally upon any person :
(N. 16.) Class m. When any person beneficially interested in the land
otherwise than as lessee, or any person interested in any mortgage or
encumbrance affecting the title, is not a party joining in or consenting to



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