Conveyancing and Law of Property Act 1884

The Act's reach is broad. Vendors and purchasers of realty are directly regulated by Part II and Part VII. A purchaser of land sold under contract is relieved of the obligation to investigate title beyond the statutory root (s.35(1)), cannot be fixed with constructive notice of matters outside reasonable inquiry (s.5), and takes the benefit of implied covenants for title when the vendor conveys as beneficial owner (s.7(1)(a)). Conversely, vendors must bear the cost of producing documents in their possession (s.3(5)) and may face summary determination of requisitions (s.39).

Landlords, tenants, and their assignees are governed by Part III. Rent and lessee covenants run with the reversion notwithstanding severance (s.10); lessor covenants bind the reversion (s.11). Relief against forfeiture for breach of covenant (other than non-payment of rent) is available on equitable terms (s.15(2)), but covenants against assignment or underletting are excluded (s.15(6)). Attornment is largely abolished (s.11A).

Mortgagors and mortgagees (including banks) receive detailed rights and powers in Part IV. A mortgagor entitled to redeem may require the mortgagee to transfer rather than reconvey (s.17). Mortgagees in possession may lease (s.19) and, after notice, sell free of the equity of redemption (ss.21–23). Receivers appointed by mortgagees are the mortgagor's agents (s.26(2)), and insurance moneys are applied according to statutory priorities (s.25). The statutory mortgage form (Part V and Schedule 1) implies covenants that bind subsequent owners.

Owners of dominant and servient tenements are affected by the easement provisions in Part VIA and s.90A. Parking easements may be created without a dominant tenement (s.34G(1)), run with the land (s.34I), and may be varied or terminated only by registered instrument (ss.34J–34L). Overriding interests (including easements and restrictive covenants) may be declared, extinguished, or modified by the Recorder or Supreme Court on grounds of obsolescence, planning conflict, or public interest (ss.84B–84C).

Infants, trustees, and personal representatives benefit from management powers (ss.46–47) and protection from future lease liabilities after distribution (s.33). The devolution of trusts to the personal representative of the last surviving trustee (s.34) simplifies administration.

Local authorities and the Crown may take easements in gross (s.90A) and covenants in gross (s.90AB), which run with the servient land without a dominant tenement.

Developers and bodies corporate under strata or community titles interact with the Act through ss.34F(1)(d), 75A–75C, and 75CB–75CI, which regulate buildings erected over rivulets and chambers.

Legal practitioners are protected when acting for fiduciaries if they rely on the Act's implied powers and covenants (s.84), provided they act in good faith.

In practice, the Act touches every property transaction in Tasmania except those wholly under the Torrens system where Schedule 4 excludes certain provisions.

Duties are primarily negative and positive covenants implied by statute. A vendor must disclose incumbrances (s.7(1)(a)) and cannot rely on pre-root title defects (s.3(2)). A mortgagor must insure (if the mortgage so provides—s.25), repair, and pay outgoings (implied by use of short forms in Schedule 5). A lessee must observe head-lease covenants (s.7(1)(b) and s.15). Owners of servient tenements must not interfere with registered parking easements or access ways (s.34I(2)).

Rights are more extensive. Purchasers enjoy the benefit of implied covenants for title, quiet enjoyment, and further assurance (s.7(1)(a)–(d)). Mortgagees have powers of sale after one month's notice (s.22), appointment of receivers (s.26), and insurance (s.21(b)). A person entitled to an overriding interest may apply to the Recorder or Court for its declaration or modification (ss.84B–84C). Infants' trustees may apply income for maintenance (s.47) and the Court may authorize lease renewals (s.48). The proprietor of a parking easement may enforce rights of exclusive occupation (s.34E(3)) and obtain variation or termination on statutory grounds (ss.34J–34K).

The Act balances these by requiring notice (s.85), court oversight (ss.4, 15(2), 27, 39, 84F–84G), and compensation on extinguishment (s.84C(7)). Covenants in gross (s.90AB) and easements without dominant tenements (s.90A) expand the range of enforceable interests available to public authorities.

The Act contains few direct criminal penalties; enforcement is civil. Breach of implied covenants gives rise to damages or specific performance (s.7(4)). Wrongful exercise of a mortgagee's power of sale exposes the mortgagee to damages (s.23(2)), although the purchaser's title is protected. Forfeiture of leases is restricted: the lessor must serve notice specifying the breach and, if remediable, allow a reasonable time to remedy it (s.15(1)). The lessee may then seek relief on terms (s.15(2)).

Failure to register a parking easement or variation renders it ineffective against third parties (s.34L(3)). The Recorder may refuse registration until planning approval is evidenced (s.34L(5)). Damages for breach of the duty to notify restrictive covenants (s.35A(2)) are guaranteed by the Minister (s.35A(3)).

Contempt of court orders made under the Act (e.g. production of documents under s.9(7) or sale directions under s.27) is punishable in the ordinary way. Costs are at the discretion of the Court or Recorder (ss.39, 84H(3), 92(6)).

The Act is not a code; it expressly cross-references and yields to other statutes. Section 2 adopts the meaning of "Register" from the Land Titles Act 1980 and incorporates schedules of easements under the Local Government (Building and Miscellaneous Provisions) Act 1993. Torrens land is excluded from many provisions (Schedule 4), but the Act still supplies implied covenants and easement rules that appear on folios (s.91).

Planning controls prevail: a parking easement cannot take effect unless the use conforms with an approval under the Land Use Planning and Approvals Act 1993 (s.34F(3)). Variation or termination of an easement created to satisfy a planning condition likewise requires fresh approval (ss.34J(2)(b), 34K(2)).

The Strata Titles Act 1998 interacts with Part VIA (s.34F(1)(d)) and the rivulet-building provisions (s.75CE). The Corporations Act registers of charges need not be searched (s.5(1A)).

Common-law doctrines are modified but not abolished: part performance survives the writing requirement (s.36(2)); the rule against perpetuities is untouched. Imperial statutes preserved by the Act (e.g. Inheritance Act 1833 via s.88 and Schedule 3) continue to operate.

Federal bankruptcy law intersects via the expanded definition of "bankruptcy" in s.2. The Mercantile Law Act 1935 is disapplied in respect of ministerial guarantees under s.35A(3).

The most significant modern amendments occurred in 1978 (Part XVA—determination of overriding interests), 1994 (s.90AB—covenants in gross), 1998 (comprehensive parking-easement regime in Part VIA), and 2000 (rivulet-building plans in ss.75CB–75CI). The 1978 changes responded to obsolete restrictive covenants that impeded redevelopment; the "appropriate tribunal" mechanism (Recorder or Supreme Court) was introduced to provide a cheap, flexible override where planning schemes or public interest so required (s.84C(1)(b)–(c)).

The 1998 parking-easement amendments addressed urban parking shortages. By permitting easements in gross, exclusive occupation rights, and registration without a dominant tenement (ss.34E–34G), the legislature enabled commercial car-parks, employee parking, and disabled bays to be traded separately from freehold titles. Conformity with planning approval was mandated to prevent conflict with local schemes (s.34F(3)).

The 2000 amendments validated historical buildings erected over Hobart rivulets by allowing building-title plans to vest fee simple in the airspace and supporting works (s.75CD). This cured title defects that had persisted since the 19th century and aligned with the Strata Titles Act 1998.

These changes reflect a policy shift from static deeds registration toward dynamic, planning-integrated property rights that facilitate urban intensification while protecting public amenity.

Tasmanian courts have rarely been called upon to interpret the Act's core provisions; most litigation concerns Part XVA applications and mortgagee sales. In Re Application by A Pty Ltd (Supreme Court, 1985), the Court confirmed that "practical benefits of substantial value" under s.84C(6)(a) include amenity and privacy, not merely financial advantage. The Recorder's jurisdiction as "appropriate tribunal" was upheld in Tasmanian Perpetual Trustees Ltd v. Attorney-General (2009), provided natural justice is observed.

Mortgagee sales under s.23 have generated controversy when notice under s.22 is alleged to be inadequate. The Court has held that a general notice of intention to sell (s.22(2)) suffices provided one month elapses (s.22(3)), but a mortgagor may waive notice in writing (s.22(4)). Challenges based on improvident sale price have succeeded only where the mortgagee acted in bad faith (Parker-Tweedale v. Dunbar Bank plc (English authority applied locally)).

The introduction of parking easements produced early disputes over whether "vehicle" includes boats or aircraft (s.34D). The Recorder has accepted that the definition is deliberately wide, but planning compliance remains a flashpoint.

No High Court challenge has directly tested the Act, but its interaction with the Land Use Planning and Approvals Act 1993 has been considered in planning appeals where an easement variation would alter a use approved under a permit.

Most practitioners overlook that s.35(5) deems a purchaser unaffected by pre-root matters even if the contract recites them, unless the purchaser actually investigates. The "unless the contrary appears" qualifier in s.3(3)–(4) is frequently misread as requiring positive evidence; mere recital of a superior lease is insufficient to displace the statutory assumption.

Section 7(4A) imposes personal liability on a person who purports to convey in a fiduciary capacity even if that representation is false—a trap for administrators and attorneys. Parking easements (Part VIA) are registrable only if the easement plan complies with the Recorder's form requirements (s.34F(2)(c)); an omitted pedestrian access route renders the entire easement ineffective.

The statutory mortgage in Schedule 1 implies half-yearly interest payments even if the deed is silent (s.28(2)). Many lawyers delete the half-yearly reference without realising that the covenant for further advances (if any) then falls back on the general law.

Finally, s.84C(7A) allows the tribunal to order compensation on extinguishment of a parking easement to achieve "appropriate apportionment" of historic costs—an open-textured power that has produced unpredictable outcomes.

Due diligence: Always commence title investigation at the statutory root (20 years—s.35(1)) and obtain a s.5(1A) declaration that no Corporations Register search is required. Use the short forms in Schedules 1, 2 and 5 only after confirming that the implied covenants match the commercial deal; vary them expressly by deed (s.7(5)).

Drafting: Insert "unless a contrary intention appears" where statutory defaults are unacceptable. For leases, expressly exclude s.15 relief if commercial certainty is required (s.15(8)). When creating parking easements, attach an approved plan delineating the bay, vehicular route, and pedestrian route (s.34F(2)(c)) and obtain planning approval before lodgment (s.34F(3)).

Registration: For Torrens land, lodge transfers, mortgages, and easement instruments with the Recorder; ensure the folio notes the easement (s.34L(2)). For old-system land, register under the Registration of Deeds Act 1935. Use s.31A memoranda for discharges.

Disputes: Apply to the Recorder first for s.84B–84C orders; only remove into the Supreme Court if complex title or compensation issues arise (s.84G). On mortgagee sale, give the precise s.22 notice and keep detailed records of marketing to defeat later improvidence claims.

Ongoing compliance: Trustees of infant land must account for accumulations (s.46(5)). Mortgagees appointing receivers must ensure the receiver insures and applies receipts in the statutory order (s.26(7)–(8)). Owners of dominant tenements under parking easements must monitor expiry or planning changes that could trigger termination (s.34K(2)).

By treating the Act as a default-rule statute rather than a menu, and by documenting any contrary intention clearly, parties can minimise risk and keep transactions off the Court list.