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

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rtoSSa 8*S®®^» 1111I0B8 such other mortgagee or mortgagees shall have consented

SdtSSfoSn- thereto in writing. (S. 154.)

•*°* Easements.

Extension of 26, Whenever any certificate of title, or any duplicate thereof, either
vkt.^o!i6 alreadv registered or issued, or hereafter to be registered or issued, under
any oi the provisions or otherwise under the operation of the Principal Act
shall contain any statement to the effect that the person named in the
certificate is entitled to any easement therein specified, such statement shall
be received in all courts of law ^nd equity as conclusi?e evidence that he is
so entitled.

Creation of 27. Whenever any transfer or any such certificate of title as aforesaid

right-of-way ^i^^jj contain the words " Together with a right of carriage way over
,** (specifying or describing the road or roads over which the
easement is created, and referring to a diagram endorsed whereon such
road or roads is or are distinguished by a green line), such words shall have
the same effect and shall be construed as if there had been inserted in such
transfer or certificate the words contained in the Schedule hereto and
marked B. (Jones v. Fark, 81. S. 81.)

Beferenoe to 28. Form C. of the Schedule to the Principal Act shall be deemed to
orm o oer- ^^^^^ ^ ^^^ setting forth of the easements mentioned in this Act.



Witnesses.

Attestation 29- Instruments executed pursuant to the provisions of the Principal

Siettto^" Act, if attested by one witness, shall be held to be duly attested, and such

witness may be : — Within the limits of Tasmania — ^The Recorder of Titles

or a Justice of the Peace, Notary Public, solicitor of the Supreme Court,

duly certificated conveyancer, clerk to a solicitor or conveyancer. Commissioner



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TASMANIAN EEAL PBOPEETT ACT—No. 5. 811

for taking AfSdavits, Town Clerk, Council Clerk, bank manager, or secretary
or manager of Building Society. Without the limits of Tasmania — Either
a Notary Public or Commissioner for taking Affidavits, or else the M^or or
other chief officer of any city or municipal corporation within the United
Bangdom of Great Britain and Ireland, or the officer administering the
Goyernment of, or the judge of any court of record in, any British possession,
or the British Consular Officer (which expression shall include Consul-
General, Consul, and Yice-Consul, and any person for the time being
discharging the duties of Consul- General, Consul, or Vice-Consul), at any
foreign place. Such witness, whether within or without the limits of proof of
Tasmania, may also be any other person, but in such case he shall appear nBn**^^
before one of the officers or persons aforesaid, who, after making due
enquiries of such witness, shall endorse upon the instrument a certificate in
the Form C. in the Schedule hereto, and such certificate shall be deemed Schedule
sufficient proof of thefdue execution of such instrument. (Re O'Brien^ 34';
Aubrey Y. Scott, 79. N. 94; Z. 160; Q. 61-11-2, 115,77-6; V. 66-115,
85-71.)

COBPOBATIONS, &C.

30. It shall be lawful for a corporation aggregate to appoint by Corpora-
writing, under the common seal of such corporation, any person on their »p|^iS*per.
behalf to sign the certificate or correctness for the purposes of " The Beal ■<>«» *g 8»p»
Property Act'* prescribed by section one hundred and seven thereof; and if ^rrwSnMs^
any such person shall falsely or negligently so certify he shall incur therefor ^^^}J^*

a penalty not exceeding fifty pounds : Provided always, that such penalty
shall not prevent the person who may have sustained any damage or
loss in consequence of error or mistake in any such certified instrument
or any duplicate thereof from recovering damages against the corporation on
whose behalf the same shall have been certified.

31. Upon the winding up of any company incorporated under the Liquidator
provisions of " The Companies Act, 1869," the liquidators shall be entitled fnoorpowSed
to be registered as proprietors in respect of any land, estate, or interest of ^^^"^ ^z
which the company was registered proprietor under the Act, and thoma/be*'*
Recorder of Titles, upon the receipt of a copy of the appointment of such proprietor of
liquidators, if appointed by the Supreme Court of Tasmania, accompanied Undsof
by an application in writing under their hands to be so registered in respect ®*'°*p*"J'
of such land, estate, or interest of such company, shall enter in the Kegister

Book upon the folium constituted by the grant or certificate of title of such
laud, a memorial notifying the appointment of such liquidators, and- upon
such entry being made such liquidators shall be deemed and taken to be the
registered proprietors of the estate or interest of such company in such
land, and shall hold the same subject to the equities upon and subject to
which the company held the same ; but for the purposes of any dealings
therewith under the Act, such liquidators shall be deemed to be absolute
proprietors thereof: Provided always, that in the case of a voluntary
winding up the said application shall be supported by such evidence of the
said appointment having been legally made as the Recorder of Titles may
deem necessary.

MiSCSLLAKEOUS.

32. Any lease or sub-lease produced for registration under the Principal Lwwet, 4o.,
Act may be in tripUcate. (Q. 77-16; 7.86-2,) Spii^



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312 TASMANIAN REAL PEOPERTT ACT— No. 6.

Certain in. 33. Notwithstanding anything to the contrary contained in the Principal

need*^tb« ^^^* *^® following instruments, from and after the commencement of this
in duplicate Act, shall not be required to be in duplicate : Transfers other than transfers
of easements in gross. Surrenders of leases, except in cases where the lease
shall haye been registered in triplicate under toe provisions of this Act.
Discharges of mortgages and encumbrances. Froviaed that if in any case
any such surrender or discharge, as the case may be, shall be partial only, it
shall not be lawful to endorse the same on the lease or memorandum of
mortgage or encumbrance, but every such surrender or discharge, as the case
may be, shall be by an instrument in the Form D and E in the Schedule
hereto respectively, and the Recorder of Titles shall, on the production
thereof, deal with any such surrender or discharge in all respects as if the
same had been carried out by endorsement on the lease, mortgage or encum-
brance, as the case may be. (Z. 88 ; S. 108 ; V. 85-11.)

J>^<?®'*>- 34. It shall be lawful for a duly certificated conveyancer to do and perform

veyanoera any of the acts which, under the Principal Act or this Act, it is competent for

a solicitor to do and perform, and every such conveyancer shall be liable to

incur penalties under the Principal Act in the same manner in every respect

as solicitors are now liable to incur the same thereunder.

Fee on cer- 35, Where, Under the provisions of this Act, any person, instead of

tifl^te of tj^tiQg Qut j^ certificate of title in his own name, shall receive the grant or

certificate with a memorial of the transfer or transmission endorsed thereon,

every such person shall pay the fee for a new certificate specified in the

NoTi?' Schedule to the "I^eal Property Act, No. 3," as if he had taken out a

certificate of title in his own name.

Ai^dment QQ^ All the words after the word " marriage " in the tenth line of

26 vict.^^ ^^ section seventy-eight of the " Eeal Property Act " shall be and the same



No. 16



are hereby expunged from and after the commencement of this Act.



fiepeai 37. So much of scctiou 87 of the Heal Property Act as provides that

tenants in common shall be bound to receive distinct certificates of title,
sections 96, 97, and 98 of the same Act, so much of section 4 of the " Real
Property Act, No. 2," as provides that no application under that section
from a married woman shall be received unless her husband shall consent in
such application, section 9 of the last mentioned Act, and so much of section
53 of tne ** Waste Lands Act" as provides that Crown grants shall be enrolled
and recorded in the Supreme Court of Tasmania, so far as the same section
affects land to be dealt with under the Act, shall be and the same are hereby
repealed.

Acta to be 38. " The Eoal Property Act," and everv Act altering or amending the

tether same, save so far as the same may be altered or amended by this Act, and
this Act, shall be read and construed together as one Act.



SCHEDULE.
A.

Caveat forbidding report to Governor that applicant entitled to grant.

Take notice that I, , of , claiming estate or interest

[here state the nature of the estate, ^c,, claimed^ and the ground on which tueh



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TASMANIIN REAL PEOPERTT ACT— No. 5. 313

claim is founded"] in land described as [here state particulars of description
from declaration of applicant"], in notice dated the day of

18 , advertising the same as land in respect of which a grant will be
issued, do hereby forbid you to report to the Governor that the applicant is
entitled in equity and good conscience to a grant of the said land. And 1
hereby appoint as the place at which notices relating hereto may be

served. Dated this day of , 18 . To the Recorder of

Titles of the Colony of Tasmania.

B.
Creation of Bight of Carriage-way in a tranrfer of freehold land.

ToGETHEB with f uU and free right and liberty to and for the transferee
hereunder, and to and for the registered proprietor or proprietors for the
time being of the land hereby transferred, or any part thereof, and his, her,
and their tenants, servants, agents, workmen, and visitors to go, pass, and
repass at all times hereafter and for all purposes, and either with or without
horses or other animals, carts or other carriages, into and out of and from
the said land, or any part thereof, through, over, and along the road or way,
or several roads or ways, delineated and distinguished by a green line on the
said diagram.

C.

Certificate of Becorder of Titles, ^c, taking declaration of attesting witness,

Appeabeb before me at the day of one thousand

eight hundred and CD., the attesting witness to this instrument,

and declared that he personally knew A.B., the person signing the same,
and whose signature the said C.D. attested, and that the name purporting
to be the signature of the said A.B. is his own handwriting, and that he
freely and voluntarily signed such instrument.

D.
Partial Surrender of Lease,

I, A.B. of being registered as the proprietor of lease No.

liaving received this day of 18 , the sum of hereby

surrender the said lease so far as the same relates to all that piece of land
situated, &c. containing, &c. [here describe land affected at lengthy or

bjf reference to plan endorsed]. Witness — Lessee. Accepted —

liessor.

E.

Partial Discharge of Mortgage,

I, A.B. of being registered as the proprietor of mortgage

No. from to have received this day of

18 , the sum of in full satisfaction and discharge of the said mortgage,
so far as the same relates to all that piece of land situated, ^., containing,
Ac, [here describe land affected at length, or by reference to plan endorsed]

Witness-



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8U



VICTOBIAN LAND TEANSFEB ACT— No. 1.



1866.
VICTORIA.



THE LAND TRANSFER ACT



NO. 1.



Note. — The numbers follcyming any case quoted at the end of a section roill be found to
correspond with the same number in the Digest. The letters T. (Tasmania) ;
Q. (Queensland) ; Z. (New Zealand); N. (A^^ South Wales); S. (Sauth
Australia), followed by a number or numbers, refer to the respective Land Transfer
Acts of the Colonies above-named, and to the number of the section of such Act
where there is only one Act, or to the year and section of Acts where the original
is followed by a further Act or Acts, and all notes to sections will be found in
italics or other distinguishing type.



Preamble TTTHEREA8 it is expedient to give certainty to the title
VV to estates in land and to facilitate the proof thereof
and also to render dealings with land more simple and less
expensive : Be it therefore enacted by the Queen's Most
Excellent Majesty by and with the advice and consent of
the Legislative Council and Legislative Assembly of Victoria
in this present Parliament assembled and by the authority of
the same as follows : —

Short title 1. This Act may be cited for all purposes as the ** Transfer of Land

^li^Sent Statute " and shall commence and take effect on and after the first day of
the second month next after the passing hereof.

Repeal of 2, The several Acts mentioned in the First »J>chedule hereto shall be

existiugActa ^^^ ^|^^ same are hereby repealed to the extent mentioned in such Schedule
scT^ai ^"* ^'^ leases and mortgages made under the " Eeal Property Act " shall
have and be of the same force and effect and shall confer the same estates
rights and powers and the covenants contained or implied therein respec-
tively may be proceeded upon and enforced in the same manner as if this
Act had not been passed and all offences committed and penalties incurred
under any of the said Acts may be punished and recovered and all rights
which have accrued thereunder may be enforced and all applications actions
suits proceedings special commissions to take acknowledgments instruments
registrations and other acts matters and things made commenced pending
issued signed entered or done thereunder before the commencement
of this Act may be proceeded with prosecuted completed and acted on in



Saying of
existing
rights, &e.



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VICTOEIAN LAND TRANSFER ACT— No. 1. 315

the same manner and shall be as good valid and effectual to all intents and
purposes whatsoever as if this Act had not been passed and every Registrar
and Assistant Registrar of Titles under this Act shall have and may exercise
such powers concerning land under the " Real Property Act ** or leases
thereof or mortgages thereon already made or created and may make such
memoranda entries and registrations and do such other acts matters and
things relating thereto respectively as the Registrar- General would have
had or could have exercised made or done if this Act had not been passed
and all land under the " Real Property Act " and all leases thereof and
mortgages and charges thereon shall hereafter be transferred made created
disposed of and dealt with under the provisions of this Act in the same
manner as if the same land had been originally brought under the operation
hereof. Every certificate registration entry memorandum and other act
matter and thing issued made entered signed or done under the said Act by
any Assistant Registrar-General acting under an appointment made or
purporting to be made under the provisions of such Act shall be and the
same is hereby declared to be as good valid and effectual to all intents and
purposes whatsoever as if the same respectively had been issued made
entered signed or done by the Registrar-General. (N. 1 ; Z. 224 ; Q. 61-1 ;
S. 18, 5 ; T. 63-11, 86-38, 74-33.)

3. All laws statutes Acts and rules whatsoever so far as inconsistent Laws incon-
with this Act shall not apply or be deemed to apply to land whether freehold Jo ™iy to
or leasehold which shall be under the operation of this Act. (N. 3 ; Q. i»nd under
61-3, 85-1 ; S. 3 ; T. 62-3, 74- 3.) '*"'^°*

4. In the construction of this Act except where the subject or context interpret*,
or the other provisions hereof require a different construction: — The word ^"^°*^""®
LAND shall include messuages tenements and hereditaments corporeal or
incorporeal and in every certificate of title transfer and lease issued

or made under this Act such word shall also include all easements
and appurtenances appertaining to the land therein described or re-
puted to be part thereof or appurtenant thereto. (N. 3 ; Z. 2 ; Q. 61-3 ;
S. 3; T. 62-3.) The word PROPRIETOR shall mean the owner whether
in possession remainder reversion or otherwise of land or of a lease mort-
gage or charge whose name appears or is entered as the proprietor thereof
in the Register Book and sucn word shall also include the donee of a power
to appoint or dispose of the same. The word GRANT shall mean the
grant by Her Majesty of land whether in fee or for years and shall include
a lease for years by the Board of Land and Works granted under the
authority of the " Amending Land Act 1865." (N. 3 ; Q. 61-3 ; S. 98 ; T.
62-3.) The word ANNUITY shall mean a sum of money payable periodi-
cally and charged on land under the operation of this Act by an instrument
hereunder The word CHARGE shall mean the instrument creating and
charging an annuity. The word ANNUITANT shall mean the proprietor
of an annuity or charge. The word GRANTOR shall mean the proprietor
of land charged with the payment of an annuity. The word ENCUM-
BRANCES shall include all prior estates interests rights claims and
demands which can or may be had made or set up in to upon or in respect
of the land. {JEa: parte Fenninqton, 64 ; re E'ergmson, 128. N. 3 ; Q. 61-3 ;
S. 3 ; T. 62-3.) The word INSTRUMENT shall include a transfer lease
mortgage charge and creation of an easement. (Outhbertson v. Swantii 144.
N. 3 ; S. 3 ; T. 62-3.) The word ADDIIION shall mean the description
as to residence profession trade or occupation of any person. The word



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316 VICTORIAN LAND TBANSFEE ACT— No. 1.

EN^DOBSED sball include anything written npon or in the margin or at the
foot of any document. The word SETTLEMENT shall mean any document
under or by virtue of which any land shall be so limited as to create partial
or limited estates or interests. {Manning v. CrossTnan^ 127.) The word
TSANSMISSION shall mean the acquirement of the ownership of freehold
land under the will or any writing in the nature of a will of the proprietor
or under any settlement. The word PEESON shall include a co rpora tion
whether aggregate or sole. (N. 3 ; T. 62-3 ; Q. 61-3 ; S. 3.) The word XDDaE
shall mean a Judge of the Supreme Court of Victoria. The expression
EXAMINER OF TITLES shall mean one of the Examiners hereby
appointed and any other person being a barrister-at-law or an attorney or
solicitor who shall hereafter be appointed as such Examiner under this Act.
The word SHERIFF shall include the SherilE of Victoria so far as concerns
land within his bailiwick and the Sheriff of any circuit district so far as
concerns land within his bailiwick and any deputy Sheriff or person appointed
to execute any writ ol Jieri faeiat. The expression COMMISSIONEB
FOR TAKIN& AFFIDAVITS shall mean a Commissioner for taking
affidayits in the Supreme Court of Victoria.

ApponrTMEHT OF Officess.
Commu; 6, The present Commissioner of Titles shall be and he is hereby



illnaas or



Bxaminen
of titles and



titiM appointed the Commissioner ot Titles under this Act. The Groyernor in

Council may upon any vacancy occurring in such office by death resignation
or remoyal appoint a person to supply such yacancy. (N. 5 ; S. 13 ; T.
62-6.)
Power to 6. In case of illness or absence the &oyemor in Council may appoint

dSpSty £ ^ person to act as the deputy of any officer appointed by or under this Kct
cwjeo^^^ during such illness or absence and such deputy while acting under such
,1 n^ «r appQintment shall have all the powers and perform all the duties of the
officer of whom he may be deputy. {Biggs y. IVaterhouse, 58 ; D*AlhrdgkUl
y. D'AlhrdyhUl, 82 ; Be John Eaton, 194.)
m Huc» Miu *^* ^® present solicitors shall henceforth be Examiners of Titles, and

re^*^"°" one of such solicitors being the senior solicitor shall be called the chief
examiner and the present senior assistant Registrar-General shall henceforth
be the Registrar of Titles under this Act. (N. 5 ; Z. 20, 23 ; S. 16.)
Appoint- 8. The Goyemor in Council may appoint one or more Assistant

^S^ ud Registrar or Registrars of Titles and any other officers necessary for carry-
rem^of ing out the provisious of this Act and may remove any Commissioner
®*" Examiner Registrar or any other officer whether by this Act appointed or
hereafter to be appointed and supply any vacancy thereby or otherwise
occurring. (N. 5 ; S. 13, 114.)
Ceruin ri^ 9^ All Courts Judgos and persons acting Judicially shall take judicial
jS!^2i^ notice of the signature of the Commissioner of Titles (hereinafter called the
notioed Commissioner) and of the Registrar of Titles (hereinafter called the Regis-
trar^ and of any Assistant Registrar of Titles (hereinafter called an
Assistant Registrar).
^\^ 10. The Registrar shall cause to be prepared a seal bearing the

***"* impression of the Royal Arms and having inscribed in the margin thereof

the words " Office of Titles Victoria " and all certificates of title and other
documents purporting to be sealed with such seal and to Ve signed by the
Registrar or by an Assistant Registrar shall be admissible as evidence
without further proof. (Q. 61-114 j T. 62-95.)



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ViCTOItiAN LAND tRANSFBft ACT-No. 1. 317



IL Every thing by this Act appointed or authorised or required to be Powers of
done or signed by the Registrar may be done or signed by any Assistant JJ^J^J
Registrar and shall be as valid and effectual as if done or signed by the
Registrar himself.

12. The Commissioner shall not nor shall any Examiner of Titles Jjo^^d
under this Act directly or indirectly practise as a barrister or as an attorney exftminer of
or solicitor or participate in the fees of any other person so practising, p^^j^* ***
(S. 199.)

13, Every Registrar and Assistant Registrar shall before executing o^hs of
any of the duties of his office take the following oath before a Judge — I A.B. ^ °®
do solemnly swear that I will faithfully and to the best of my ability
execute and perform the office and duties of Registrar of Titles [_or Assistant
Registrar of Titles] under the " Transfer of Land Statute." So help me
God. (N. 10; Q. 61-6 ; T. 69-7.)

14. The Governor in Council may appoint persons to be sworn valu- ^pJ®*°^
ators under this Act and at pleasure annul the appointment of any such tworn Taioa-
person Every such person shall within fourteen days from his appointment *^"

and before making any valuation under this Act take the following oath
before a Judge— -I A.B. do solemnly swear that I will faithfully and
honestly and to the best of my skill and ability make any yaluation required
of me under the provisions of the ** Transfer of Land Statute *' So help me
God. (N. 27.)

As TO Bbinging Laitd under this Act.

15, The grants in fee or for years of all Crown lands remaining Crown lands
unalienated at the time of the commencement of this Act shall be in dupli- ^sUraatod
cate and in addition to proper words of description shall refer to a map of J^^^^^j^
the land on the scale at present used or on such other scale as the Governor this Act

in Council may from time to time direct and after payment of the fee for
the grant and of the contribution to the Assurance Fund (in cases wherein
such contribution shall be payable) shall be delivered to the Eegistrar who
shall register the same in manner hereinafter directed Such registration
shall be deemed and taken to be an enrolment of record of the grant and
such enrolment shall relate back to the day of the date of the grant and
either part of the grant when registered under this Act shall be sufficient
evidence of a duly enrolled grant of the land therein described to the person
therein named on the day of the date thereof. (JEx parte Bowan, 13 ;
Watson V. Watson, 93 ; re Bern v. Qrice, 200. N. 13 ; Z. 137 ; S. 25, 26.)

16, At the time of the registration of every grant in fee to two orAstomnts
more persons in joint tenancy for any public purpose the Eegistrar shall ^^ob^
endorse thereon and on every subsequent certificate of title the words " no
survivorship *' and shall sign his name thereto. (Saunders v. Cabot, 16 ; St,
George v. Burnett, 57, 175 ; Outhhertson v. Swann, 144 ; Miller v. Stewart,

172. Z. 123, 125 ; Q. 61-80; S. 168, 164; T. 62-68.)

17. Land alienated in fee by Her Majesty before the second day of Luids afien-
October one thousand eight hundred and sixty-two may be brought under SSbre the
the operation of this Act by an application in the form in the Second Ke»i Pro-
Schedule hereto which application may be made by any of the following ^^jht^

Kraons (that is to say) : — (1) The person claiming to be the owner of the nJl^ef^lhig



Online LibraryAustraliaThe land transfer laws of Australasia: being the full text with side notes ... → online text (page 55 of 83)