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

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of the Act^ be described by its abuttals both in the body of the certificate

Digitized by VjOOQIC







which mMj





with where

the memo-

nuidam on


does not



Und com-
prised in A
need not be
but endorse-
ment of
shall give
it the effect
of a new

Seal of office
for signature
of B^strar
in certain

and in the pkn thereon or in the plan onlj. Any abuttal bo nsed may be
described by the name by which it is commonly known and with or witiiout
the name of its reputed owner ; and if the abuttal is upon or consists of
land under the Act, the number of the certificate of the land constitutini;
the abuttal or on which the abuttal stands shall be mentioned, and abuttals
shall be used in addition to and not in substitution for dimensions, unless
the Commissioner shall specially authorise the land or any boundary of tbe
land being described by abuttaLs only.

49. For the purpose of this Act, any of the objects hereinafter men-
tioned may be menlaoned as an abuttal: — Any building, wall, sectional
diyision of party wall, fence, public or private street or. road, lane or
passage, land dedicated to or reserved for the public, Government reserve,
Crown section, allotment or portion, land described in any certificate of
title, and any bay lake river creek or natural or artificial water-course, and
mention of an aouttal in any certificate of title shall not be deemed to give
title to the abuttal or to be evidence of the title of any person who may be
referred to in the description as owner or occupant of the land upon which
any abuttal stands or of any land constituting an abuttal.

50. Where part only of the land comprised in a certificate has been
dealt with by a registered dealing, but the memorandum of such dealing
endorsed on the certificate does not specify such part, the Registrar shafl
furnish to any person applying for the same on payment of the fee payable
in that behalf a skeleton diagram of the land originally comprised in the
certificate showing by metes and bounds and a distinguishing colour the
position and dimensions of the part included in such dealing and bqjA
diagram shall either be endorsed on or be annexed to such certificate, and
the same shall be stamped with the seal of the Office of Titles. Provided
always that if there be difierent registered dealings afEecting different parti
of the land comprised in the certificate, and a plan be required showing
such different parts, a separate fee shall be paid in respect of each such part
Provided also that where different parcels of lana not contiguous are
included in the certificate, the skeleton diagram hereinbefore mentioned
need on]y be of the parcel or parcels which includes or include the part or
parts so dealt with. {Kirkham v. Carpenter^ 111 ; Stevens v. WiUiame^ 186.)

5L If ft transfer purports to transfer the whole of the land mentioned
in any grant or certificate of title, the Begistrar may, except when a tenancy
in common is thereby created or cancelled, instead of cancelling such grant
or certificate as provided in section sixty-two of the Act, enter in the
Register Book and on the duplicate grant or certificate a memorandum of
such transfer and deliver the duplicate to the transferee, and every grant or
certificate with such memorandum shall be as effectual for the purpose of
evidencing title and for all other purposes of the Act as if the old certificate
had been cancelled and a new certificate had been issued to the transferee in
his own name, and such process in lieu of cancellation may be repeated upon
everj transfer of the whole of the land ; but when in the opmion of the
Registrar any grant certificate or duplicate cannot for want of space or other
cause conveniently bear any further endorsement, he may require cancella-
tion and the issue of a new certificate as heretofore. (N. 73-2 ; T. 86-12.)

52. Notwithstanding sections forty and forty-one of the Act, it shall
not be necessary for the Registrar to sign any memorial entered in the
Register Book or any certificate endorsed by him on any rep;istered instru-
ment which is to be retained in the Office of Titles, but in lieu of sudi

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rignatare the seal of the Office of Titles shall be attached to eyery such
memorial and certificate together with the initials of the officer attaching
the same, and such certificate and memorial shall be received in all courts as
coDclnsiTe evidence that such instrument has been duly registered, and all
persons and judges acting judicially shall take judicial notice of such seal
and initials and shall presume that such seal wasproperlj affixed and that
such initials were properly attached. (Sharpe v. Hadley, 3 ; Ashley v. Oook^
137. Z. 9 ; Q. 61-8 ; S. 21 ; T. 62-91.)

63. The Begistrar may without the direction of the Commissioner Regirtnur
correct atiy patent error appearing on the face of any instrument lodged ^pa^t
for registration without such instrument bemg withdrawn from the office. JJJJiJ^tg
Provided always that such correction be made in compliance with sub- section without
(ii.) of section one hundred and twenty-nine of the Act, and such correction ^^^^
shall have the same validity and effect as if made under the direction of the iioner
Commissioner under the said section.

54. If at the time when any mortgage conveyance or transfer on sale Commis-
of any real property or any application or consent under the " Transfer of bSJSw of
Land Statute, which is liable to duty under " The Stamp Duties Act, ^JJ|^™*y
1879," is left at the Titles Office there is affixed thereto an adhesive stamp stamps on
uncancelled or only partially cancelled it shall be competent for any officer 2J™J^J*ia
authorised by the Commissioner of Titles or Begistrar of Titles to cancel property
such stamp as if he were the person by whom it was affixed, and upon his so

doing such mortgage conveyance transfer application or consent shall be
deemed to be duly stamped and as valid in all respects as if the stamp had
been duly cancelled by the person by whom it was affixed. Provided that
such conveyance or transfer of sale shall be so cancelled subject to the
provisions as to penalties and within the time limited by section sixty-one
of "The Stamp Duties Act, 1879," but if the amount or consideration
thereof be above fifty pounds then such mortgage conveyance or transfer of
sale shall be deemed to be an unstamped instrument within the meaning of
Bection thirty-six of the said last mentioned Act.

55. [E«pealed by Sec. 4, of 1887 Act.]

56. On proof to the Commissioner that any judgment of which a copy Satufaotion
writ of execution has been entered under section one hundred and six of the ^j°be™^*
Act has been satisfied before the period for which such entry is operative J^'®'®^*.
hag elapsed, the Commissioner may write the word "Satisfied" with his exp^tionof
aignature and the date of the signing upon or below the entry of copy writ ^™JJ^*"
in the Begister Book, and thereupon such writ shall cease to affect the land en^ of

as to which the entry was made. ^^^ ^^*

57. [Repealed by Sec. 57, of 1887 Act.]

58. Section one hundred and seventeen of the Act shall be read as ^<ige to
though the words ** or such further period as shall be specified in any order tol^wtT*'
made under this section " were inserted in the section immediately after the JJJ^^
words " but if before the expiration of the period of fourteen days " oaTeat
which occur in the said section. {Be R. C, PaUner, 71.)

59. To determine doubts which have arisen as to the operation of lis LUpeiuUm
pendens on land under the Act, it is hereby declared that no lis pendens or d^iinj^^*
registration of lis pendens shall affect or be deemed to have affected the ^^^^
right of any person to obtain the registration of any dealing under the Act, lot '

or shall deprive or be deemed to have deprived any person dealing under
the Act ot the benefit of section fifty or of any other section of the Act.
(8. 260.)

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In oMe of 60. Every draft certificate of title from which an original certificate is

dMtr'^ed drawn shall be completed so as to accord in all particulars with the certificate
^'"^^mi^^be *°^ ^^^^^ ^ preserved in the office until the cancellation of the certificate;
^Xtitatod and at the time at which the certificate is registered a corresponding number
poM*of^"^ to that upon the certificate shall be put upon the dnrft, and the draft shall
dealing and be signed bj the person signing the certificate ; and in the event of anj
2iSJ°^" original grant or certificate being lost or destroyed or so obliterated as to
become illegible, the Commissioner may cause another certificate to be
prepared from the draft and to be endorsed with all such entries as were
upon the original so far as the same can be ascertained from the records of
the office and inspection of the duplicate, and shall make and sim a memo-
randum upon sucn document stating that the same is a substituted certificate
to be used in place of the original, and what has become of the origin^ so
far as known or supposed, and from the date of such copy being so signed
the same may be bound up in the Eegister Book and usea in place of tbe
original for the purpose of dealings and transmissions. If the draft cannot
be found, the Commissioner shafi be at liberty to prepare the substituted
certificate from the duplicate or such other evidence as shall be available as
to the contents of the original. {Marrissey v. ClemenU^ 115 ; re Strong,
218a. N. 98, 47, 75 ; Z. 116 ; Q. 77-31, 61-117 ; S. 19, 79; T. 62-8, 100,

6L [Eepealed by Sec. 6, of 1887 Act.]
62. [Eepealed by Sec. 7, of 1887 Act.]
Lists of car- 63. Lists of Certificates of title called in for cancellation or rectification
^*2dhi for and not brought in shall be exhibited in the Office of Titles, and shall he
caiweUation advertised in the Oovernment Gazette and in such nevrspapers and at such
bited ^ ' time or times as the Eegistrar shall think fit.

Asmpee of 64. Sections one hundred and seven and one hundred and eighteen of

OTtiUed to *^® -^^^ ^® hereby repealed except as to anything done thereunder prior to
be regis. the comiug iuto operation of this amending Act ; and as to estates already
kn^o" ^ or hereafter to be sequestrated upon the insolvency of the proprietor of anj
7*"t^™**'^ land lease mortgage or charge, or upon any insolvent before obtaining hw
proprietor certificate of discharge becoming proprietor of any land lease mortgage or
order^" charge, his assignee or trustee shall be entitled to be registered as proprietor
sequestra- in rospoct of the Same ; and the Eegistrar, upon the receipt of an office copj
of the appointment of such assignee or trustee accompanied by an application
in writing under his hand to be so registered in respect of any land lease
mortgage or charge of such insolvent therein described or of any estate or
interest to which he was before the sequestration of his estate or after
sequestration and before obtaining his certificate of discharge became entitled
or able to transfer or dispose of under any power of appointment or dispoBi*
tion which he might legally execute for his own benent, shall enter in the
Register Book upon the folium constituted by the grant or certificate of title
of such land or on the lease mortgage or charge a memorandum notifjiog
the appointment of such assignee or trustee ; and upon such entry being
made such assignee or trustee shall become the transferee and be deemed to
be the proprietor of such land lease mortgage or charge estate or interest,
and shall hold the same subject to the equities upon and subject to which
the insolvent held the same, but for the purpose of any dealing therewith
under the provisions of the Act such assignee or trustee shall be deemed to
be the absolute proprietor thereof. {Kideham v. The Queen^ 47. Q. 61-86;
T. 62-76.)


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65. Fntil sacli application shall be made as aforesaid and subject to Until assig.
the operation of any caveat which may be lodged by such assignee dealings Jj^^SJ^i.
by an insolvent proprietor with land under the operation of the Act may be Tenoy of
registered, and thereupon shall not be affected by the order of sequestration Sot?o5ffit
either at law or in equity. dealings

66. [Repealed by Sec. 8, of 1887 Act.]

67. Where any limitation which would heretofore have limited to any TenanoiMin
person an estate tail whether legal or equitable in any land is made after the ^f^^""
passing of this Act, such limitation shall be deemed to give to such person "^p^^

an estate in fee-simple (legal or equitable as the case may be) in such land
(T. 85-6, 86-7, 8.)

68. Where under any will or settlement executed before the passing where sno-
of this Act an estate for life in any land is given to any person, followed by JJJjjJJ J^«
an estate for life in remainder to any child of such person and ultimately giren to
or immediately by an estate tail in remainder to any grandchild of such ^Mid^tfth^
person, if at the time when such child attains the age of twenty-one ®****?^5*." ^
years, such person and the child of such person may together bar thopSSntand'
entail and dispose of the estate as fully and effectually as if the estate given J^^^^
to the child had been instead of an estate for life an estate tail similar to the entau as if
estate tail given to the grandchild ; and this provision shall extend to ufiwwe^
equitable as well as to legal estates. (T. 86-6.) given to the


69. Subject to the provisions of the two last preceding sections an estate Tenant in
tail under the Act shall have the same incidents as a similar estate under JhSlSt*'
the general law and the proprietor of such an estate shall have the same entitled to
power to bar the estate tail and create an estate in fee-simple absolute as theosute
against all persons whose estates are to take effect after the determination jj®^*°'
or in defeasance of the estate tail as is possessed by the owner of a corres- tenant in
ponding estate tail in land not under the Act by virtue of Part VII. of " The J^^^^i
Real Property Statute 1864 " ; but no acknowledgment as therein provided Uw
shall be necessary for dealing with an estate tail under the Act.

70. A transfer or mortgage in the ordinary form by a tenant in tail T^If^
under the Act having power to create an estate in fee-simple shall create taUjsxaj^be
such estate in favour of a transferee mortgagee or transteree under the J^^IJ^
power of sale in the mortgage and a transferee from a tenant in tail or esute which
under a mortgage from a tenant in tail or a mortgagee after foreclosure J^f^* "*
fihall be entitled to be registered and receive a certificate for the larger confer
estate which the tenant in toil is empowered to confer, but a mortgage under

the Act if discharged shall not bar the entail.

71. The following persons in addition to those mentioned in section Sly Sltol?**
one hundred and fifteen of the Act shall be competent attesting witnesses inttnunent*
to the execution of instruments and powers of attorney under the Act "8?^*^
within the limits of Victoria : — Any barrister or clerk to a solicitor of the mentioned
Supreme Court registrar of county court clerk of petty sessions town clerk u6^*Se
shire secretary postmaster postmistress head teacher of State school bank -^°*
manager secretary of building society or minister of religion authorised to
celebrate marriages within Victoria. {Mitdgway v. Davy and Buick, 1)

72. Upon any summons or proceeding under section one hundred and ^^^J^
thirty five of the Act, the Court may, notwithstanding anything in the said and pro.
section to the contrary, make such order as to the costs and expenses of and ^^^Su
attendant upon such summons or proceeding as it shall deem just, and all tion iss of


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the Act to
be in the
of the

of sale in
to apply in
the abeence
of other

under trans-
fer signed
by proprie-
tor may
apply for
remoTal of

Fees to be
paid under


costs and expenpcs to be paid b j tbe Eegistrar under such order sliall be paid
out of the Assurance Fund. (Sharpe v. Hadley, 3 ; St. Qeorge v. Burnett,
175; Bo9t T Victoria Permanent Building Society ^ 180; Be John Eaton,
194. See note to Sec, 135, 1886 Act.)

73. On any sale of land under tbe operation of tbe Act by pabHe
auction or priyate contract, the conditions set out in the table marked A in
the Fifth Schedule hereto may be adopted by inserting the words ^ The
conditions in table A of the ' Transfer of Land Statute ' shall apply to tiiii
contract," and when so adopted the said conditions shall be conatraed si
part of the contract subject to any express modification or exclusion of any
of them which may be contained in the contract.

74. In addition to the pemons mentioned in section one hundred asd
seventeen of the Act any person claiming under any transfer or other
instrument signed by the proprietor the registration of which is obstraeted
by a caveat may apply to have such caveat removed and the same may k
removed in the manner by such section provided, and the said section shall
be read as though the words '* or any person claiming under any transfer or
other instrument signed by the proprietor " were inserted in the sectioQ
immediately after the words " such applicant or proprietor " whicli occur in
the said section. (Z. 14.4. ; Q. 77-38 ; S. 191-6.)

75. Section one hundred and forty of the Act is hereby repealed, and
from the coming into operation of this amending Act it shall be lawful for
the Eegibtrar to demand the fees specified in the Sixth Schedule hereto or
such other fees as shall hereafter irom time to time be appointed bj tiie
Governor in Council in lieu thereof or in addition thereto. (JEx fvie
Pennington, 64 ; re Chat, Williameon, 65 ; re Turner, 66 ; re HiJ^tm a
parte Dibbs, 67 ; re Davis Jones, 68 ; ex parte Vincent, 210. Z. 46-,
S. 22 ; T. 62-108, 67-1.)

Application to Amend Certificate,


ieoi.7 AS To the Eegistrar of Titles. — 1. I, , hereby apply to have tbe

certificate of title No. amended in the following particulars : — [^ait

the nature of proposed amendment, and, in a case in which the description im the
certificate is erroneous or imperfect on the face of it, add the words on the
ground that the certificate \& erroneous or imperfect on the face of it.]

2. That the land which would be described b^ the certificate wfaen
amended in accordance with this application is now in my occupation, snd
has been actually and lonaflde occupied by me or persons holding under oe
since —

3. That the nature of such occupation was as follows ; — [^State generally
how and hg whom the land has been occupied, as, for instance, by myself as s
farm and dwelling ; by my tenants, A.B. and CD., as shops ; or partly bj
me as a dwelling, and partly by my tenant, A.ii., as a shop.].

4. That the names and addresses so far as known to me of the occu-
pants of all lands contiguous to the land so occupied by me are si
follows : —

5. That the names and addresses so far as known to me of the owntf s
of all lands contiguous to the land so occupied by me are as f oUowa ; —

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6. That ta the best of my knowledge and belief the reasons why the
description of the land in the said certificate does not accord with the
description of the land so occupied by me are the following: — [Set out

Dated the day of 188 . Made and subscribed at

in the presence of.

Application to Mectify Register.

To the Registrar of Titles. — 1. I, , the registered proprietor of Seog. 8 & 9

the land which is described as follows in the certificate of title No.
[set out full particulars as in certificate"] — hereby apply to have the Segister
of Titles rectified in the following particulars : — [State the nature of the
proposed rectification, and mention the number ofeoery certificate and the name
of every registered proprietor whose certificate of title ivouldhe affected hy the
proposed rectification.]

2. That to the best of my knowledge and belief the discrepancy between
the description in my certificate of title and that in the other certificates
above-mentioned is due to error in survey or misdescription, and has arisen
[ CHve the supposed cause of discrepancy, or state that the applicant is unable
to assign any specific cause for the discrepancy.]

3. That the title to the land afiected by the proposed rectification has
never been in contest between me or as I believe any one from whom I claim
and any other person in any proceeding under the "Transfer of Land
Statute," or in any court of law or equity.

4. That the land as described in my certificate has been actually and
bona fide occupied by me and persons holding under me since —

5. That the nature of such occupation was as follows: — [State generally
how and by whom the land has been occupied as, for instance, by myself as a
farm and dwelling ; by my tenants, A.B. and CD., as shops ; or partly by
me as a dwelling, and partly by my tenant, A.B., as a shop.]

Dated the day of 188 . Made and subscribed at

in the presence o:




A.B. [insert addition] (hereinafter called the sub-lessor) and who is Seo. u
registered as the proprietor of a lease numbered of the land herein-

after described, su^ect to the encumbrances notified hereunder, herebv
sub-leases to CD. [insert addition] (hereinafter called the sub-lessee) all
that piece of land being [if the sub-lease is of all the land in the lease, copy
here the description of the land given in the lease ; but if only a part, set forth
the boundaries by measurements in links or feet and by abuttals, making the
description coincide, so far as practicable, with that in the lease, and refer to a
map} being [insert, if applicable, part of] the land comprised in the said
lease, to be held by the sub-lessee for the term of [insert term of iub-lease],
at the clear yearly rent of payable [insert terms of payment], subject

to the covenants and powers implied under the ** Transfer of Land Statute "
(unless hereby negatived or modified) and also to the covenants and condi-
tions hereinafter contained [here set forth any special covenants and conditions].

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The following covenants bj tlie sub-lessee are to be construed according to
the seventy-eighth section of the "Transfer of Land Statute:" — [Insert hers
such of the covenants given in the Eleventh Schedule to the " Transfer of Land
Statute '* as may he agreed upon, substituting " sub-lessee " far " lessee " and
" sub-lessor " for " lessor,'' and using the short forms given in column one of
that Schedule.] Dated the day of one thousand eight

hundred and Signed by the said sub-lessor in the presence of

Signed by the said sub-lessee in the presence of

[^Encumbrances referred to,"]


Application for Search Certificate,

ViCTOBiA Office of Titles.

Sec. 28 I hereby request to be informed whether there is any and if any what

obstacle to a dealing by A.B. — [give name of proprietor and number qfeertifi'

cate] — with the land comprised in certificate No.

[Signature of applicant.]

Search Certificate, 1885, No.

The last registered dealing or encumbrance affecting the title of tlie
proprietor to the land comprised in the above certificate of title is noted
upon the certificate as follows : — [Befer to the last entry upon the eertificete
in such a way as distinctly to identify, or if the title be clear state that tha^ it
no deaUna or encumbrance mentioned upon the certificate,'] At the time of
issuing this certificate there is nothing to prevent the registration oft
dealing by the registered proprietor except — [If the title be clear and there h
nothing to prevent dealing, strike out the word " except."] [If there he Mf

Online LibraryAustraliaThe land transfer laws of Australasia: being the full text with side notes ... → online text (page 66 of 83)