For an applicant wishing to discharge or modify a restrictive covenant (or similar interest), the steps are as follows.
First, prepare the application in the form authorised by the Recorder. The form is not printed in the Regulations; contact the Recorder of Titles office in Tasmania to obtain the current version. Ensure the form complies with any published guidelines, and include all required information such as the affected land description, the interest to be varied or determined, and the grounds under the Act (e.g., obsolescence, reasonable use, or lack of practical benefit). Attach any relevant title documents or surveys.
Second, pay the applicable lodgment fee prescribed under the Act (not specified in the Regulations; check the Act or fee schedule). Lodge the application with the Recorder together with the printed lodgment form (regulation 15(1)). The Recorder may accept electronic lodgment if deemed reasonable, but do not rely on that; deliver physically to the Recorder’s office in Hobart or by registered post.
Third, the Recorder will review the application and may issue a requisition for further information under regulation 4(2). Upon receipt, respond fully within 90 days. Failing to respond within 90 days risks the application being abandoned. If the requisition asks for documents that are not immediately available, consider seeking a variation or advising the Recorder in writing before the deadline - though an extension is not guaranteed by the Regulations. At the same time, serve notice on all affected persons as required by section 84E of the Act. The notice must fix a time for lodging a notice of appearance; that time will become the default period for appearances under regulation 6(2)(a). Be precise about the date and avoid ambiguous wording.
Fourth, if no notice of appearance is lodged, the Recorder may determine the application without further action (regulation 5(1)). That means the applicant may not be required to attend a hearing or provide additional evidence. However, it is prudent to request a written determination to confirm the result. If a notice of appearance is lodged, expect the process to become adversarial. The applicant may be summoned to a conference (regulation 7) or required to provide proof on specified matters (regulation 8). The applicant should consider legal representation, especially if costs are at stake.
Fifth, for any witness summons or statutory declaration you wish to obtain from a third party, prepare the necessary forms and pay 38 fee units to the Recorder for sealing (regulation 9(2) or 10(2)). The sealed document must be served personally as if it were a subpoena. Ensure that the third party is given sufficient time to comply. If the third party fails to comply, consider prosecution only as a last resort, given the practical difficulty.
Sixth, if the Recorder holds a hearing, attend and bring all evidence. Oral evidence can be cross-examined; statutory declarations may not be. If you want to cross-examine a declarant, consider applying for the Recorder to require that person to give oral evidence, possibly by summons.
Seventh, at the conclusion, the Recorder will determine the application. If the Recorder awards costs against you, pay the specified amount or submit to taxation. If you are awarded costs, bill the Recorder and have them taxed if necessary.
For a person who receives notice of an application and wishes to object: lodge a notice of appearance within the time specified in the notice, or if no time is given, within 30 days of receiving the notice (regulation 6(2)). If you miss the deadline, you can request further time, but that is not automatic. Once you are a party, you have the right to inspect the application (check the Land Titles Regulations for inspection times), to participate in conferences, to give evidence, and to cross-examine. You may also compel evidence from others using the summons and statutory declaration processes. Be aware of the risk of costs if you act unreasonably. If the Recorder’s decision is unfavourable, consider applying to remove the proceedings into the Supreme Court under section 84G of the Act, which then has all the Recorder’s powers (regulation 14).
For a third party served with a requisition for a statutory declaration under regulation 10: you must answer the questions truthfully and lodge the answers and declaration within the time allowed (the regulation does not specify a time, but the requisition will set a deadline). Failure to comply is an offence. If any question would tend to incriminate you, you may refuse to answer that specific question, but you must still answer the rest. You are not entitled to compensation for your time, so compliance is a burden. If you believe the requisition is invalid or has been served incorrectly, seek legal advice promptly.
Finally, all parties should keep a diary of all deadlines, including the 90-day response period for applicants, the appearance period for objectors, and the 30-day post-appearance window before the Recorder can decide. Use the authorised forms consistently, and confirm with the Recorder’s office that any form being used is current. Monitor the fee unit value each financial year to ensure correct payment. The Regulations are administered by the Department of Natural Resources and Environment Tasmania, so initial inquiries can be directed to that department’s contacts for the Recorder of Titles division.