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

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expressly set forth in such instrument, or by this Act declared to be implied
against such party in instruments of a like nature. impUed

262. Every covenant and power by this Act implied in any instrument oormanu
may be negatived or modified by express declaration contained in or indorsed ^^^ oi
on the instrument. (N. 89 ; Q. 61-76 ; V. 66-104.) negatired

263. In any action for a breach of any such covenant, it shall be Jj^JJ^ ^^^
lawful to allege that the party against whom such action is brought did partj mar
covenant precisely in the same manner as if such implied covenant, with or h^J^Jf
without modification, as the case may be, had been expressed in words in he had
such instrument, any law or practice to the contrary notwithstanding ; and ^^^^
every such implied covenant shall have the same force and effect and be ^^^^
enforced in the same manner as if it had been set out at length in such
instrument. {Fotheringham v. Arelier, 10. Q. 161-74 ; V. 66-146.)

264. Where any covenants are by this Act implied against two ^' J™P"*Jt,to
more persons, such implied covenants shall be construed to be joint and b«j^and

Beveral. ieTeraU



lor



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230 SOUTH AUSTRALIAN EBAL PEOPEETT ACT.

Sixteenth 265. Where in any mortgae;e or encumbrance the short form of

^ • covenant given in the Sixteenth Schedule hereto and numbered 1, or where

Short fonnB ^ ^^^ loaso any of the other short forms of covenant given in such Schedule

pfooreiu^ shall be used, the covenant set opposite such short form in the said Schedule

aidSSSf^ shall be implied in such mortgage, encumbrance, or lease as fully and

effectually as if set out at length therein : Provided that the parties to any

such instrument may by express words add to or modify any such short form,

in which case the same shall imply the covenant as set out at length, with

the addition or modification so expressed. (N. 65 ; Z. 167 ; Q. 61-76. ; T.

62-66.)

^T^ 'rws- 266. Whenever, in any application or instrument under this Act, the

ingeS^" following words shall be used " Except and always reserved to all

MdmiiwSa ^^*^*> seams of coal, mines, minerals, and quarries, but paying reasonable
compensation to ," they shall be taken to have the same effect, and

Seventeenth ^^ coustrued as if the form of words contained in the Seventeenth Schedule
Bohedoie hereto had been inserted therein ; and the Eegistrar-G^neral, on issuing a
certificate, shall insert the words so used in the application or instrument,
and the same shall be as binding and effectual as if he had inserted therein
the words at length contained in the said Seventeenth Schedule.
Beiorewhom 267- Instruments under this Act shall be attested by one witness who,
inirtarumenta jf ^j^^ person executing the instrument be personally known to such witness,
•xeonted may be — If the instrument be executed within the limits of South Australia :
the Eegistrar- General, any Deputy Eegistrar-General, or a Notary Public,
Justice of the Peace, or Commissioner for taking Affidavits in the Supreme
Court : If executed within the United Kingdom of Great Britain and
Ireland : The Mayor or other Chief Officer of any City or Corporation, or a
Notary Public, or any Commissioner for taking Affidavits : If executed in
any British possession : the Officer administering the Government of, or a
Judge of any Court of Eecord in, such possession, or a Notary Public or
any Commissioner for taking Affidavits : And if executed at any foreign
Eiehteenth P^*^® ' ^^7 British Consular officer (which expression shall include Consul-
Sc&doie General, Consul, and Yice-Consul, and any person for the time being dis-
charging the duties of any of those offices) : And in such case the execution
of the instrument shall be verified bv such witness indorsing thereon a
certificate in the form of the Eighteenth Schedule hereto. (Be O'Brien^ 34;.
Q. 61-115.
Aito«tati«^ 268. Such witness, whether the instrument be executed within or

in otEOT^ without the limits of South Australia, may also be any other person, but in
such case the execution of the instrument shall be proved before one of the
officers or persons specified in the last preceding section bv the witness
acknowledging his signature to the instrument, and declaring that the party
executing the same was personally known to him, that the signature thereto
is in the handwriting of such party, and that such party did freely and
voluntarily sign the same, and was at that time of sound mind, and such
SohediUe'^ officer or other authorised person shall thereupon endorse on the instrument
a certificate in the form of the Nineteenth Schedule hereto.

GOTendma 269- The Eegistrar- General may, in any case where he is satisfied of

diapoiwe"**^ the duc executiou of an instrument, or in any special case, dispense with the



Kineteenth



proof of execution hereinbefore required.
SaJroSeSt*^ 270. A Corporation may execute instruments under the provisions of
ij Corpora- this Act by affixing thereto its common seal, and such execution shall be
^"^ equivalent to signature. (N. 93 5 Z. 18, 166 ; Q. 61-114 ; V. 66-70, 6.)



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SOUTH AUSTEALIAN EEAL PEOPEBTT ACT. 281

271. The Eegistrar-General may, with the sanction of the G-oyemor, Hegistrar.
license fit and proper persons to be land brokers for transacting business SoenJf^y
under the provisions of this Act, and may, with the like sanction, prescribe broke™
the charges recoyerable by solicitors and brokers for such business, by any

scale not exceeding the charges specified in the Twentieth Schedule hereto, J![®^^^***
and may, upon proof to his satisfaction of the malfeasance or incapacity of
any such licensed broker, and with the sanction aforesaid, or upon non-pay-
ment of the annual fee hereinafter mentioned, revoke such broker's licence,
and may for every such licence charge and receive the fee of Five Pounds
annually. (Z. 205.)

272. Before granting any such licence the Begistrar- General shall Bond to be
receive a bond from the person to whom the same is to be issued in the sum Sli^^^!^on
of Five Hundred Pounds, with two sureties, each in the sum of Two Hundred °»^«
and Fifty Pounds, conditioned that such person shall duly and faithfully act

in the capacity of a licensed land broker in accordance with the provisions of
this Act, and such persons shall make the following declaration before the
Begistrar- G-eneral : — I, A.B., do solemnly and sincerely declare that I will
faithfully, and to the best of my ability, execute and perform all such business
or duties as may be intrusted to or imposed upon me as a licensed land broker,
according to the provisions of " The Eeal Property Act, 1886.*' (Z. 206.)

273. The Begistrar-G^eneral shall not receive any application for Authority to
bringing land under the provisions of this Act, or any instrument purporting '®«*^'

to deal with or affect land, unless there shall be indorsed thereon a certifi-
cate that the same is correct for the purposes of this Act, signed by the
applicant or party claiming under or in respect of such instrument, or by a
solicitor, or licensed land broker. (N. 104; Q. 61, 139; T. 12-107.) No person

274. No person other than a solicitor or licensed land broker shall be S^Sotors
entitled to sue for or receive any fees, costs, or charges for work done in {J^JJS?
reference to applications, transfers, or other dealings relating to land, nor enUded to
to any right of set-off in respect of any such fees, costs, or charges, nor to ^ wSa***
any lien or right to retain any deed, paper, or writing which shall have come ^^'^^^
into his possession in reference to any such work. ^®'

275. Whenever a form in any Schedule hereto is directed to be used, Forms in
such direction shall apply equally to any form to the like effect or for a Schedules
similar purpose authorised in conformity with the provisions of this Act ;

and any variation from such forms, not being in matter of substance, shall
not affect their validity or regularity ; but they may be used with such
alterations as the character of the parties or the circumstances of the case
may render necessary. (N. 90; Z. 215 ; V. 66-127.)

276. Where by this Act notice is required to be given to or served on Notices.
any person, and no special provision is made as to the mode of giving or ^?^*® ^
serving such notice, it shaU be sufiBcient if the same is posted in a registered
letter directed to such person at his usual or last known place of abode in
South Australia, or at his address as appearing in the Begister Book or as
given in any application or caveat ; ana such notice shall be deemed to have

been servea at the time when the same would in the ordinary course of the
post be delivered or reach the post town or office to which or nearest to
which such notice is directed : Provided that the Begistrar- General may,
in any special case, cause or authorise such notice to be given by adver-
tisement in the Oovemment Gazette^ and in such newspapers as he shall
think fit.

In the name and on behalf of Her Majesty, I hereby assent to this Bill.

Wm. 0. F. EOBINSON, Govemor.



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232 SOUTH AUSTRALIAN EEAL PEOPEBTT ACT.

THE FIRST SCHEDULE.

Fees payable Jbr the performance of the several acts, matters^ and things herein

specified,

sjoi. n, 65, YoT bringing land under the provisions of this Act, over and above the
cost of advertisements : —

£ s. d.
When the title consists of a land grant, dated on or subsequent
to the 1st March, 1842, and none of the land included therein
has been dealt with ... ... ... ... ... 2

When the title is of any other description, and the value exceeds

£300 10

Ditto ditto exceeds £200, and does not exceed £300 15

Ditto ditto exceeds £100, and does not exceed £200 10

Ditto ditto when the value does not exceed £100 5

Contribution to the Assurance Fund upon first bringing land under the
provisions of this Act, and upon the transmission of an estate of freehold,
consequent upon the death oi a registered proprietor : —

In the pound sterling ... ... ... ... ... Oi

Other fees : —
For every application, in writing, to bring land under this Act —

for eacn title ... ... .». ... ... 6

For every certificate ... ... ... ... ... 1

Registering memorandum of transfer, mortgage, encumbrance,

or lease ... ... ... ... ... ... 10

Registering transfer, discharge, or extension of mortgage or of
encumbrance, or the transfer, surrender, or extension of a
lease ... ... ... ... ... ... 5

Registering proprietor of any estate or interest derived by set-
tlement or transmission ... ... ... ... 10

On the deposit of a duplicate or attested copy of a power of

attorney ... ... ... ... ... ... 10

Noting power of attorney in Register Book (each time) ... 2

Noting revocation of power of attorney ... ... ... 6

For every registration abstract ... ... ... ... 1

For cancelling registration abstract ... ... ... 050

On the lodging of any caveat ... ... ... ... 10

On removal or withdrawal of caveat, and for every notice to

caveator or caveatee... ... ... ... ... 5

Issuing order for foreclosure ... ... ... ... 100

For every search, including inspection of plans and registered

instruments ... ... ... ... ... 2

For every map or plan deposited and for every alteration therein 5
On the deposit of every instrument declaratory of trusts ... 10

For registering recovery of possession of land, or re-entry by

lessor ... ... ... .. ... ... 10



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SOUTH ATTSTEALIAN EEAL PEOPBETT ACT. 238

For registering vesting of lease in mortgage, consequent on re-
fusal of Official Eeceiver or trastee to accept the same

Por entering notice of marriage or death ...

For entering notice of or satisfaction of decree, writ, or order of
any Court...

For taking acknowledgment of married woman

For taking any declaration of affidavit

For the exhibition or return of any deposited instrument, or for
exhibiting or returning deeds surrendered by applicant pro-
prietor

For certified copy, up to five folios of seventy-two words

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

For every instrument drawn on parchment ...

When any instrument purports to deal with land included in
more than one grant or certificate, for each registration me-
morial after the first

For every entry in the Eegister Book not otherwise provided for

For every diagram on a grant or certificate after first two

For every folio or part of a folio in grant or certificate after the
first four folios

For every inspection of documents lodged by person claiming
right-of-way or other easement

For every notice not otherwise provided for

For registering every instrument not otherwise provided for ...



£ n.


d.


10





10





10





0-5





1


6


2


6


5








8


2


6


2





5





1


6


2





2





5





10






THE SECOND SCHEDULE.

Application to bring Land under the provisions of
" The Beal Property Act, 1886."

I, A. B., of [here insert residence and description'] do declare that I am sec.27
[or that C. D. of (here insert residence find description) is] seized of an
estate of freehold [here state the nature of the estate offreehola\ in all that
piece of land situated in [here state the situation] contaiuing [h&re state the
area] be the same a little more or less [exclusive of roads intersecting the
same, if any] with [here state rights-of-way and other privileges or easements
appertaining, and set forth a sufficient description to identify the land] which
piece of land is of the value of £ and no more, and is [the town

allotment or country section, or is part of the town allotment, or country
section] originally granted to , by land grant under the hand and

seal of , formerly Governor [or Eesident Commissioner] of the

ProTince of South Australia, dated the day of , numbered

in the plan of the [district, township, or country] of , as

delineated on the public maps of the province, deposited in the Survey
Office, Adelaide : And I do further declare that I am not aware of any
mortgage, encumbrance, or claim affecting the said land, or that any person
hath any claim, estate, or interest on or in the said land, at law or in equity,
in possession, reversion remainder or expectancy, or that any person has, or
claims any right-of-way or other easement affecting the said land other than
is set forth and stated as follows, that is to say — [here state particulars of

ao



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284 SOXJTH ATTSTBALIAN BEAL PEOPEBTY ACT.

mortgages^ encumbrances^ dower or others interest to which the land may he
suljecty and of all riaht-qf-wags and other easements which any other person is
entitled to or claims] : And I further declare tbat there is no person in
possession or occupation of the said lands adyersely to my estate or interest
[or the estate or interest of the said C. D. therein] and [that the said land
is now in the occupation of, here state names and descriptions of occupiers^ or
that the said land is now unoccupied], and that the names and addresses of
the owners and occupiers of the lands contiguous thereto, are [here state the
names and addresses of owners and occupiers of lands contiguous thereto, or to
me unknown] and that there are no documents or instruments of title
affecting the land aboTe described in my possession or under my control,
[or in the possession or under the control of the said C. D.] other than those
enumerated in the Schedule hereto, and I do hereby lor if so, on behalf of
the said C. D.] apply to have the land above described brought under the
provisions of "The Eeal Property Act, 1886,*' and I make this solemn
declaration conscientiously believing the same to be true, and appoint [here
insert address within the City of Adelaide'] as the address to which notices in
respect of this application may be sent. Dated at , this

day of , 18 . Made and subscribed by the above-named ,

this day of in the presence of [Signature] To the

Registrar-General. I, A. B., the above declarant, hereby request you to
issue the certificate of title for the land described in the above declaration
in the name of Witness to signature — [Signature.]

The Schedule referred to.
[Here set out a list of all documents and instruments of title.]



THE THIRD SCHEDULE.

Caveat forbidding Lands to he brought under " The Beal Property Act, 1886."

^^•** To the Registrar-General. Take notice that I, A. B., of [here insert

residence and description] claiming [here state the nature of the estate or
interest claimed, and the grownd on which such claim is founded] in the land
described as [here state particulars of description from application] and
mentioned in notice dated the day of , as land in respect of

which an application has been made to have the same brought under the
provisions of " The Real Property Act, 1886," do hereby forbid the bringing
of the said land under the provisions of the said Act; and I appoint [here
insert address within the City of Adelaide] as the place at which notices and
proceedings relating hereto may be served. Dated this day of

, 18 . [Signature.]

THE FOURTH SCHEDULE.

Register Book, vol. , folio

SoTTTH [Royal Arms.] Attsteaxia.
Certificate of litle.

[If the Certificate is issued pursuant to a Transfer or other dealing,

refer to it here.]

Beo. 78 A. B., of [here insert residence and occupation or other description], is

the proprietor of an estate [here describe the estate of freehold] subject

nevertheless to such encumbrances, liens, and interests as are notified by

memorial underwritten or indorsed hereon in [here insert sufficient description



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SOTJTH ATJSTBALIAN EBAL PEOPEETT ACT. 286

io identify the land, and refer to map or plan in margin of or indorsed on
certificate and to the public map deposited in the Office of the Surveyor- General.
The map or plan in the certificate shall, when necessary and whenever
practicable, show the distance from the nearest street, road, or comer of a
sectum]. In witness whereof I have hereunto signed my name and affixed
my seal, this day of 18 . Signed the day of

18 , in the presence of [Signature of Begistrar-

Oeneral] (X. 8,) Begistrar-Gleneral.

THE FIFTH SCHEDULE.

Bight^fWay.

Together with full and free right and liberty to and for the proprietor See, 89
or proprietors for the time being taking or deriving title under or through
this instrument, so long as he or they shall remain such proprietors, and to
and for his and their tenants, servants agents, workmen, and visitors, to
pass and repass for all purposes, and either with or without horses or other
animab, carts, or other carriages.

THE SIXTH SCHEDULE.

Memorandum of Transfer.

I, A. B., [here insert residence and description"] being registered as the Bee. 96
proprietor of an estate [here state the nature of the estate or interest, and if
not an estate of freehold, refer to the instrument of title creating the same},
subject, however, to such encumbrances, liens, and interests as are notified
by memorandum underwritten or indorsed hereon in [here insert sufficient
description to identify the land intended to be transferred, and (or) over which
any right-of-way or other easement is intended to be created or transferred, and
refer to the existing grant or certificate of the land, and state whether the land
intended to be dealt with is the whole or part only of that comprised in the
grant certificate or other instrument of title, and if part only set forth the
boundaries in chains, links, or feet, and refer to the plan delineated in the
margin of or annexed to the transfer, or to a deposited plan showing such
boundaries'] in consideration of [here set forth the consideration, and from
whom it moves; \fa money consideration say : in consideration of the sum of
£ paid to me by C. D., of (here insert residence and description), the
receipt of which sum I hereby acknowledge : if any other consideration set
out the same, and from whom it moves], do hereby transfer [or if an easement
is created say grant] to the said C. D. [or to C. D., of here insert residence
and description] all my estate and interest [or if the transfer is by a mort-
gagee or encumbruncee exercising power of sale, say, all the estate and interest
of (the mortgagor* s or encumbrancer* s name) or tfthe transfer is of a less estate
or of an easement, describe same] in [or over, or as the case may be] the said
land above described. If the easement is appurtenant say together with and
describe the easement.] Li witness whereof I have hereunto subscribed my
name this day of 18 . [Signature.]

THE SEVENTH SCHEDULE.

lorm of Transfer of Land upon Sale under writ of Fieri Facias, or under a

Warrant of Execution.

I, [insert name], as [insert title of officer executing transfer"^ the person s«j. io7
appointed to execute the writ or warrant hereinafter mentioned, in pursuance



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236 SOXJTH ATJSTBALIAN EEAL PEOPEBTT iCt.

of a writ oi fieri facias^ tested the day of, one thousand eight

hundred and and issued out of the Supreme [or as the case may he"]

Court in an action wherein A.B. is plaintiff and C. D. is defendant, which
said A. B. [or C. D.] is registered as the proprietor of an estate \hfire state
nature of the estate'] in the land hereinafter described, subject to the encum-
brances, liens, and interests notified by memorandum underwritten, or
indorsed hereon, in consideration of the sum of £ paid to me by

E. F. [insert residence and description] do hereby transfer to the said E. F.
all the estate and interest of the said A. B. [or C. D.] in all that piece of
land being [here insert description of the land^ and refer to the debtor's grant or
certificate,] Dated the day of one thousand eight hundred

and . [Sheriff's or other officer's signature.]

JSbrm of Transfer of Lease^ Mortgage^ or Encumbrance upon Sale^ under Writ
^ Fieri Facias , or under a Warrant of Execution,

8m. 107 I [insert name], as [insert title of officer executing transfer], the person

appointed to execute the writ or warrant hereinafter mentioned, in pur-
suance of a writ oi fieri facias, tested the day of one
thousand eight hundred and , and issued out of the Supreme [or as
the case may be] Court in an action wherein A.B. is plaintiff and CD. is
defendant, which said A. B. [or C. D.] is registered as the proprietor of a
lease [or mortgage, or encumbrance, as the case inay be] numbered
of [or upon] the land hereinafter described, subject to the encumbrances,
liens, and interests notified by memorandum underwritten, or indorsed
hereon, in consideration of the sum of £ , paid to me by E.F.
[insert residence and description], do hereby transfer to the said E.F. all the
estate and interest of the said A.B. [or CD.] in all that piece q/'land [here
describe the land according to the description in the lease, mortgage, or encum-
brance, or in general terms by reference to the registered instrument,] Dated
the day of , one thousand eight hundred and . [Sheriff's
or other officer's signature.]

Form of Transfer of Land under Decree or Order of Supreme Court.
8«jio7. j^ [insert name], \ti ^\aB\i2i.noe of a decree or order of the Supreme

Court, dated the day of , one thousand eight hundred and

, and entered in the Begister Book, Vol. , folio

hereby transfer to E.F. [insert residence md description], subject to the
encumbrances, liens, and interests notified written or endorsed hereon,

all the estate and interest of CD. of [here state residence and description] in
all that piece of land being [here insert description of the land, and refer to
the grant or certificate], in respect of which the said C.D. is registered as the

Sroprietor of an estate [here state the nature of the estate.] Dated the
ay of one thousand eight hundred and . [Signature.]

Form of Transfer of Lease, Mortgage, or Encumbrance under Decree or Order

of Supreme Court.

8M.107 I, [insert name], in. pursuance of a decree or order of the Supreme

Court, dated the day of , one thousand eight hundred and

and entered in the Begister Book, Vol. , folio

hereby transfer to E.F. [insert residence and description], subject to the
encumbrances, liens, and interests notified by memorandum and under-
written or endorsed hereon, all the estate and interest of CD., ot [here state



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SOXTTfl AXJStBALlAN EEAli PfiOPEETT ACT. 2^7

residence and description'] who is registered as the proprietor of a lease \pr
mortgage, or encumbrance, as the case may fte], numbered of [or



Online LibraryAustraliaThe land transfer laws of Australasia: being the full text with side notes ... → online text (page 43 of 83)