Land Titles Act 1925

1 Name of Act This Act is the Land Titles Act 1925.

2 Dictionary The dictionary at the end of this Act is part of this Act. Note 1 The dictionary at the end of this Act defines certain terms used in this Act, and includes references (signpost definitions) to other terms defined elsewhere in this Act. For example, the signpost definition ‘registrable form, for an instrument—see section 4.’ means that the term ‘registrable form’ is defined in that section. Note 2 A definition in the dictionary (including a signpost definition) applies to the entire Act unless the definition, or another provision of the Act, provides otherwise or the contrary intention otherwise appears (see Legislation Act, s 155 and s 156 (1)).

3 Notes A note included in this Act is explanatory and is not part of this Act. Note See the Legislation Act, s 127 (1), (4) and (5) for the legal status of notes.

4 Meaning of registrable form For this Act, an instrument is in registrable form if— (a) the instrument does not require a material correction, alteration or addition; and (b) the instrument is in the form (if any) approved under section 140 (Approved forms); and (c) any document that is required to be produced under section 14 (1) (a) or (c) for the instrument is produced when the instrument is lodged; and

Preliminary Part 1 (d) certification under section 48BA or section 48BB, or verification under section 48BC, is provided for the instrument; and (e) any document for the instrument that is required to be provided under section 48BH (2) is provided when the instrument is lodged; and (f) the instrument is otherwise in accordance with this Act or another law in force in the ACT. Note A reference to an Act includes a reference to the statutory instruments made or in force under the Act, including any regulation (see Legislation Act, s 104).

5 Application to married women’s property Nothing in this Act is taken to affect or control any other territory law which deals with married women’s property.

7 Registrar-general’s seal of office etc A reference in this Act to the seal of office, or the signature, of the registrar-general, deputy registrar-general or acting registrar-general includes a reference to a production by electronic means of the seal or signature, as the case may be.

Part 3 General powers of registrar-general

14 Powers of registrar-general (1) The registrar-general may— (a) require the proprietor or other person making application to have any land brought under this Act, or the proprietor or mortgagee or other person interested in any land under this Act, in respect of which any transfer, lease, mortgage, encumbrance or other dealing or any release from any mortgage or encumbrance has been presented to the registrar-general for registration under this Act, or in respect of which any transmission is about to be registered or which or any portion of which has been resumed or withdrawn, to produce any grant, conveyance, deed, mortgage, lease, will or other document or instrument in his or her possession or within his or her control affecting the land or the title thereto; and (b) summon any such proprietor, mortgagee or other person mentioned in paragraph (a) to appear and give any explanation respecting the land or the documents or instruments affecting the title thereto; and (c) for an instrument lodged under section 48BA or section 48BB— require the legal practitioner or mortgagee corporation to produce a document in relation to which certification under those sections was given; and Note The registrar-general may also require documents in relation to an instrument from a legal practitioner or mortgagee corporation under s 48BH. (d) keep a record of administrative interests on the register; Note Administrative interest—see s 69A.

(e) administer oaths or may take a statutory declaration in lieu of administering an oath; and (f) correct or alter the register to the extent and in the manner provided by sections 160, 161 and 162A; and (g) on the application of a registered proprietor and on production of any evidence that the registrar-general requires—record in the register that an interest in land has been extinguished by merger; and (h) enter a caveat on behalf of any person under a legal disability or who is absent from Australia, or on behalf of the Commonwealth, to prohibit the transfer or dealing with any land belonging or supposed to belong to any such person, and also to prohibit the dealing with any land in any case in which it appears to him or her that an error has been made by misdescription of the land or otherwise in any document or instrument, or for the prevention of any fraud or improper dealing; and (i) without erasing or rendering illegible the original measurements, alter— (i) grants, the register and entries made therein; and (ii) any maps, plans, documents and instruments deposited or lodged with him or her, whether under this or any other Act; so as to express in metric units, to the 3rd decimal place, any measurements contained therein that are expressed in imperial units.

(2) The registrar-general has, and may exercise, if a notice of a determination made under the Rates and Land Rent (Relief) Act 1970, section 3, or a memorandum of discharge under that Act, section 18, is presented to him or her for registration, all or any of the powers conferred by subsection (1) as if the notice were a mortgage, or the memorandum of discharge were a discharge of a mortgage, presented to him or her for registration under this Act. (3) If notice in writing is given to the registrar-general that land, or an interest in land, is affected by— (a) a Territory or Commonwealth law; or (b) anything done under a Territory or Commonwealth law; the registrar-general must make a record in the register that the land or interest has been so affected. (4) For subsection (3), the following provisions apply: (a) subject to any relevant provision of the Territory or Commonwealth law, a record made under that subsection takes effect accordingly; (b) that subsection does not apply to a matter if a provision of a Territory or Commonwealth law makes provision (however expressed) for making a record in the register in respect of the matter. (5) If a record— (a) was made in the register before the date of commencement of subsection (3) (the commencement date); and (b) was not, when made, authorised or required by a Territory or Commonwealth law to be made in the register; and

(c) could, on and after the commencement date, have been made under that subsection; the record takes effect, on and after the commencement date, as a record made under that subsection. (6) If— (a) the register contains a record in relation to land or an interest in land; and (b) the lease of the land is surrendered by the lessee; and (c) a new lease of the land comprised in the surrendered lease is granted to the lessee; the registrar-general must make a corresponding record in the register in relation to the new lease. (7) The registrar-general may allow a document that is required or permitted to be presented or lodged with the registrar-general for this or any other Act to be presented by such means, including electronic means, as the registrar-general thinks fit. (8) The registrar-general may deal with any document the registrar-general is required or permitted to deal with under this Act or another territory law electronically or by any other means the registrar-general considers fit.

15 Penalty for obstructing registrar-general (1) If any person upon requisition in writing made by the registrar-general under section 14 (1) (a), (b) or (c)— (a) refuses or neglects to produce any document or instrument or to allow it to be inspected; or (b) refuses or neglects to give any explanation; he or she commits an offence. Maximum penalty: (a) for paragraph (a)—50 penalty units, imprisonment for 6 months or both; and (b) for paragraph (b)—50 penalty units. (2) The registrar-general, if any document or instrument so withheld appears to him or her to be material, shall not be bound to proceed with the bringing of the land under this Act, or with the registration of the transfer or other dealing, as the case may be.

Part 4 Future grants of freehold and of certain Crown leaseholds Part 4 Future grants of freehold and of certain Crown leaseholds 17 Crown grants and certain Crown leases under Act (1) Each grant of freehold and each grant for a term exceeding 5 years granted by or in the name of the Commonwealth or by the Territory after the commencement of this Act shall be given to the registrar-general, and, in addition to proper words, shall refer to a map of the land. (2) On the registration of the grant, the registrar-general must tell the grantee, in writing, about the registration. (3) The registration shall be deemed to be an enrolment of record of the grant, and the enrolment shall relate back to the date of the grant, and 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 date thereof.

Requirements of applications Division 5.1

Part 5 Applications to bring land under Act and proceedings on applications

18 Land brought under Act (1) Land not subject to this Act may be brought under its provisions. (2) The registrar-general shall receive applications for that purpose if made by— (a) any person in Australia claiming to be the person in whom the fee simple is vested in possession either at law or in equity: Provided that in any case where trustees, seized in fee simple, have no express power to sell the land which they seek to bring under the operation of this Act, the person claiming to be beneficially entitled for the first life estate, or other greater estate than a life estate in the land, shall join in the application; or (b) any person in Australia claiming a life estate in possession, or a leasehold for a life or lives, or having a term of not less than 25 years then current, and any person in Australia claiming a leasehold estate under a Crown lease having a term not less than 5 years then current: Provided that all persons claiming to be beneficially entitled in reversion or remainder shall join in the application: Provided further that nothing in the preceding proviso shall be construed as requiring the concurrence of a lessor in an application by a lessee; or (c) any person in Australia who has the power of appointing or disposing of the fee simple of any land absolutely; or

(d) the attorney in the ACT, under a power of attorney, of a corporation having the power to hold or dispose of land in fee simple: Provided that— (i) the power of attorney shall be under the common seal of the corporation, and shall authorise the attorney to apply; and (ii) the application shall be made for and on behalf of the corporation; and (iii) the requisite declaration shall be made by him or her to the best of his or her knowledge, information and belief; and (iv) the application shall be subscribed in his or her own name as such attorney; and (v) the interest in the land must be registered in the name of the corporation; or (e) the attorney in the ACT of any person absent Australia who would be entitled to apply if resident in Australia, provided that the attorney is constituted such by an instrument under seal authorising him or her, at his or her absolute discretion— (a) to sell and convey land for an absolute estate in fee simple, and to give effectual discharges to purchasers; or (b) as regards applications in respect of a life estate or a leasehold, to deal with life estates and leaseholds respectively; and the requisite evidence of non-revocation of the power by the grantor’s death or otherwise is furnished; or (f) a parent or guardian of an infant, in the name of the infant; or

Requirements of applications Division 5.1 (g) the manager of a person’s property under the Guardianship and Management of Property Act 1991. (3) No such application shall be received— (a) from a person who has contracted to purchase any land unless either the vendor consents to or joins in the application or the whole of the purchase money has been paid to the vendor or his or her authorised attorney or agent; or (b) from a person claiming to be entitled to an undivided share of any land unless the person who appears to be entitled to the other undivided share joins in the application with the view of bringing the entirety under this Act; or (c) from the mortgagor of any land unless the mortgagee joins in the application; or (d) from the mortgagee of any land except in the exercise of a power of sale contained in the mortgage deed; or (e) in respect of any land subject to the lien of any judgment or execution creditor unless the creditor consents to the application. (4) The bringing of any leasehold under this Act shall not be held to extinguish the reversion expectant thereon. (5) In the event of land being brought under this Act under an application by any person mentioned in subsection (2) (c), the application shall be deemed, both at law and in equity, to be an exercise of the power vested in that person.

19 Judge may order production of deeds for purpose of application (1) The judge of the court may, on the application of any person seeking to bring land under this Act, order any specified person who has in his or her possession or under his or her control any deed, document, instrument or evidence of title relating to or affecting the land, to produce, at the office of the registrar-general, on a day to be named in the order, the deed, document, instrument or evidence for the perusal of the registrar-general. (2) Any order under subsection (1) shall be upon such terms and subject to such conditions as to costs or otherwise as the judge deems fit.

20 Applicant to surrender documents of title and to furnish abstract if required (1) Every applicant to bring land under this Act shall, when making his or her application— (a) deposit with the registrar-general all documents in his or her possession or under his or her control constituting or in any way affecting his or her title, and in the case of a leasehold a certified copy of the lease, and of any other document under which the applicant claims title, and furnish a schedule of those documents, and also, if required, an abstract of his or her title; and (b) state in his or her application the nature of his or her interest, and of every interest held therein by any other person whether at law or in equity, in possession, or in futurity or expectancy, and whether the land be occupied or unoccupied (and, if occupied, the name and description of the occupant and the nature of his or her occupancy, and whether the occupancy be adverse or otherwise), and the names and addresses of the occupants and proprietors of all lands contiguous to the land in respect to which application is made so far as known to him or her, and that the schedule so furnished includes all documents

of title to the land in his or her possession or under his or her control; and (c) make and subscribe a declaration to the truth of the statement. (2) The applicant may in his or her application require the registrar-general, at the expense of the applicant, to cause notice of his or her application to be served upon any person whose name and address is for that purpose therein stated.

21 Applications to be considered by registrar-general (1) Upon the receipt of an application, the registrar-general shall cause the title of the applicant, for such period as he or she considers sufficient, to be examined, and shall thereafter take the case into his or her consideration. (2) If it appears to the registrar-general that the applicant is the original grantee from the Crown of the land in respect of which the application is made, and that no sale, mortgage, or other encumbrance or transaction affecting the title of the land has at any time been registered in New South Wales or in the ACT, and that the applicant has not required notice of his or her application to be served upon any person, the registrar-general may bring the land under this Act forthwith by registering the applicant’s interest in the land.

22 When applicant is not original grantee or any transactions registered If it appears to the registrar-general that the land in respect of which application has been made is held by the applicant for the interest described in the application free from mortgage, encumbrance or other beneficial interest affecting the title thereto, or, if any such mortgage, encumbrance or interest remain unsatisfied, that the parties interested therein are also parties to the application, and that the applicant has not required notice of his or her application to be served on any person, the registrar-general must require public notice of the application to be given, and must further limit and appoint a time not less than 1 month nor more than 12 months from the date of notification of the application under the Legislation Act 2001 (see section 24 (Notice of application to be published)) upon or after the expiration of which the registrar-general may, unless he or she has in the interval received a caveat forbidding him or her so to do, proceed to bring the land under this Act. newspaper circulating in the ACT (see Legislation Act, dict, pt 1).

23 When evidence of title imperfect (1) If it appears to the registrar-general that any parties interested in any unsatisfied mortgage or encumbrance affecting the title to the land or beneficially interested therein are not parties to the application, or that the evidence of title set forth by the applicant is imperfect or that the applicant has required notice of his or her application to be served personally upon any person, the registrar-general may reject the application altogether, or require notice of the application to be served upon all persons who appear to him or her to have any interest in the land the subject of the application, and public notice of the application to be given and advertisements to be published in the official Gazettes of each of the States, at the times and intervals the registrar-general considers appropriate, and must also limit and appoint a time, not less than 2 months nor more than 2 years after the date of the earliest of

the Gazette advertisements, or notification of the application under the Legislation Act 2001 (see section 24 (Notice of application to be published)), whichever is earlier, upon or after the expiration of which he or she may bring the land under this Act, unless he or she has in the interval received a caveat forbidding him or her to do so. newspaper circulating in the ACT (see Legislation Act, dict, pt 1). (2) The registrar-general may, in his or her discretion, notwithstanding that certain persons are not parties to the application, or that the evidence of title set forth by the applicant is imperfect, take the steps provided in section 22, and may bring the land under this Act; but in that case he or she may require payment to him or her of such special fee as he or she considers adequate in addition to that provided under section 139.

24 Notice of application to be published (1) The registrar-general shall, of his or her own motion or under any order of the court, require notice to be published, in such manner as he or she determines or as the order prescribes, that application has been made for bringing the land therein referred to under this Act, and shall also cause a copy of the notice to be posted in a conspicuous place in his or her office and in such other places as he or she deems necessary, and shall forward by registered letter through the post office, a copy of the notice addressed to the persons (if any) who he or she thinks ought to be served with the notice, and to the persons (if any) stated in the declaration by the applicant to be in occupation of the land or to be occupiers or proprietors of land contiguous thereto, so far as his or her knowledge of the addresses of those persons may enable him or her, and, if the applicant has required any such notice to be personally served upon any person named in his or her application, the registrar-general shall require a copy of the notice to be so served upon that person.

(2) The notice of the application is a notifiable instrument. (3) The registrar-general must give additional public notice of the notice of application. newspaper circulating in the ACT (see Legislation Act, dict, pt 1). The requirement in s (3) is in addition to the requirement for notification on the legislation register as a notifiable instrument.

25 Registrar-general bringing land under Act If, within the time limited by the registrar-general or under any order of the court, any notice forwarded by registered letter in accordance with section 24 is not returned by the postmaster-general, and if within the time so limited the registrar-general has not received a caveat as described in this Act forbidding him or her so to do, and, in any case in which personal notice has been required as aforesaid, if the registrar-general has received proof to his or her satisfaction that the notice has been served, the registrar-general shall bring the land described in the application under this Act by registering the applicant’s interest in the land.

26 On a return of notices or failure of personal service, registrar-general may proceed or give further directions (1) Whenever the registrar-general is made aware that any notice required by any applicant to be served personally has failed to be or cannot be so served, he or she shall notify that fact to the applicant, who may, by writing, withdraw the requisition.

(2) Upon the withdrawal of the requisition, or upon the return to the registrar-general by the postmaster-general of any letter containing any notice, the registrar-general may reject the application altogether, or bring the land therein described under this Act forthwith, or after such further interval, notification or advertisement as he or she deems fit.

27 Applicant may withdraw application Any applicant may withdraw his or her application at any time before the registrar-general registers the applicant’s interest in the land, and the registrar-general shall in that case, upon request in writing signed by the applicant, return to him or her or the person (if any) notified in the application as having a lien upon the documents, the abstract and all documents of title deposited by the applicant for the purpose of supporting his or her application.

28 Land occupied may be brought under Act by different description from that in title on special application On any application to bring land under this Act in which the land actually and bona fide occupied by or under the applicant differs in boundaries, area or position from the land described in his or her documents of title, the applicant may apply to bring under this Act the land so occupied; and in any such case the applicant shall state in his or her application, in addition to the other particulars required by this Act, that the land as so occupied and as to which he or she applies for registration is not correctly described in the documents of title lodged in support of the application, and shall specify to the best of his or her knowledge and belief the reasons for the discrepancy between the land as so occupied and the land as described in the documents of title.

29 Applications to bring land under Act may be granted for land occupied under, but not described in, title deeds On an application to bring land under this Act by a description different from that in the documents of title or for the amendment of a grant or the register, the registrar-general may grant the application as to the land occupied by or under the applicant if the discrepancy between the land as so occupied and as described in the documents of title, grant or register appears to be due to the inaccuracy of any survey or plan or description on the sale of the land by the Crown or on any subsequent dealing therewith or to any discrepancy between the actual measurements or bearings at any time made or marked on the ground and those represented or mentioned in any plan or description.

30 Parties interested may enter caveat (1) Any person having or claiming an interest in any land advertised as provided in division 5.2, or the legal practitioner or agent in the ACT of any such person, may within the time limited by the registrar-general for that purpose lodge a caveat with the registrar-general, forbidding the bringing of the land under this Act, and every such caveat shall particularise the interest, lien or charge claimed by the caveator. (2) No such caveat shall be received by the registrar-general unless some address within the ACT is appointed therein as the place at which notices and proceedings relating to the caveat may be served.

Caveats against original applications Division 5.3 (3) Any person lodging any caveat with the registrar-general without reasonable cause shall be liable to make to any person who has sustained damage thereby such compensation as is just, and the compensation shall be recoverable in an action at law by the person who has sustained damage from the person who lodged the caveat.

31 If caveat be received within time limited proceedings stayed Upon receipt of any such caveat within the time limited by him or her for the purpose, the registrar-general shall notify the receipt thereof to the applicant, and shall suspend further action in the matter, and the lands in respect of which the caveat is lodged shall not be brought under this Act until the caveat has been withdrawn or has lapsed from any of the causes provided in section 32, or until a decision has been obtained from the court.

32 Caveats lapse unless proceedings taken within 3 months After the expiration of 3 calendar months from the receipt thereof, every such caveat shall be deemed to have lapsed unless the caveator has, within that time— (a) taken proceedings in the court to establish his or her title to the interest, lien or charge therein specified, and given written notice thereof to the registrar-general; or (b) obtained from the court an order or injunction restraining the registrar-general from bringing the land therein referred to under this Act, either absolutely or until the further order of the court.

33 Special case (1) Where a caveat against an application to bring land under this Act has been lodged by a caveator claiming the land or a portion thereof or an interest therein adversely to the applicant, the applicant may state a case for the opinion and direction of the court upon the matter, and the caveator may under section 32 apply for an injunction until the further order of the court, and the court may direct the caveator to lodge in the court, on or before a certain day, a case on his or her own behalf, stating whether he or she claims in his or her own right or under another person, together with such other particulars (if any) as the court thinks fit to order. (2) The court shall thereupon direct issues to be tried as to any facts, or, should no fact be in contest, may decide the matter upon the case stated, and, for those purposes, may make all such orders as the court thinks fit. (3) The decision of the court finally upon the matter shall be conclusive on the parties and on the registrar-general. (4) The costs of every proceeding under this section shall be borne by the party finally unsuccessful.

Caveats against original applications Division 5.3

34 Where caveator fails to prosecute proceedings Where a caveator has under section 32 given notice to the registrar-general that he or she has taken proceedings to establish his or her title, but the proceedings have not, within 6 months after the date of writ or commencement of the proceedings, been continued to such a state as to have resulted in a decision, judgment or order by the court in which the proceedings are pending, the registrar-general, on giving 1 month’s notice to the caveator or to the legal practitioner whose name appears on the caveat of his or her intention to proceed, or, if neither of such courses be practicable, then on posting or exhibiting the notice on the land for a period of 30 days, may proceed with the application, notwithstanding section 31, and may bring the land, the subject of the application and of the caveat, under this Act, unless in the meantime an order or injunction restraining the registrar-general from further proceeding with the application has been served on him or her.

Part 6 Bringing land under the Act—miscellaneous Part 6 Bringing land under the Act— miscellaneous 35 Documents of title how to be dealt with (1) On registering an interest bringing land under this Act, the registrar-general shall cancel every document of title deposited by the applicant when making his or her application, and in the case of a leasehold shall endorse upon the lease so deposited a memorandum stating that the lease has been brought under this Act, and shall certify the memorandum by his or her signature and seal, and shall, in the case of a Crown lease, file the lease in his or her office, and, in other cases, return the lease to the applicant, and shall file in his or her office the certified copy of such lease directed by section 20 to be furnished by the applicant. (2) If any such document relates to or includes any property, whether personal or real, other than the land included in the register, the registrar-general shall endorse thereon a memorandum cancelling the document in so far only as relates to the land included in the register, and shall return the document to the applicant. (3) The registrar-general shall retain in his or her office all documents so cancelled, except such documents as he or she is by this section directed to return to the applicant, and no person shall be entitled to the production of any such document so cancelled except upon the written order of the applicant or of some person claiming through or under him or her or upon the order of the judge of the court.

37 Crown grants Where any person entitled to a grant dies before the grant has been made, the grant may be made to and issue in the name of that person, and the land, the subject of the grant, shall devolve in like manner as if the grant had been made prior to the death of that person.

Land registered under Real Property Act 1900 (NSW) Part 7

Part 7 Land registered under Real Property Act 1900 (NSW)

38 Bringing under this Act of land to which State Act applies (1) This section applies to land in the ACT that is under the Real Property Act 1900 (NSW) (RPA land). (2) The registrar-general may declare that RPA land described in the declaration is, by force of the declaration, brought under this Act. (3) For subsection (2), a description of land as the land comprised in a specified Crown grant or in a specified certificate of title under the Real Property Act 1900 (NSW) is a sufficient description of the land. (4) A declaration under subsection (2) is a notifiable instrument. (5) On notification under the Legislation Act 2001 of the declaration, the land described in the declaration is under this Act. (6) The registrar-general may state in the declaration the folio of the register in which each grant or certificate of title, as the case may be, is to be registered.

39 Transfer of records The Governor-General may arrange with the Governor of New South Wales for the handing over to the Commonwealth of all duplicate grants and certificates of title, and other documents registered or lodged with the registrar-general of that State in respect of land in the ACT, which, at the date of the commencement of this part, is under the Real Property Act 1900 (NSW), or for the delivery to the Commonwealth of copies of those grants, certificates of title and documents duly certified by the registrar-general of the State as correct copies.

Part 7 Land registered under Real Property Act 1900 (NSW)

40 Recognition of transferred records The duplicate grants and certificates of title and other documents or the certified copies thereof, as the case may be, handed over or delivered to the Commonwealth under section 39, shall be deemed for all purposes thereafter to be duplicate grants and certificates of title and other documents duly registered and authenticated by the registrar-general or lodged with the registrar-general under this Act.

41 Duplicate grant etc handed over to be deemed original grant (1) The original of any duplicate grant or certificate of title which, or a certified copy of which, is handed over or delivered to the Commonwealth under section 39 shall, as from the date of the handing over or delivery, be deemed to be an original grant or certificate of title delivered under this Act to the proprietor entitled to the land described therein. (2) Any instrument or document relating to land included in a grant or certificate of title (the duplicate or a certified copy of the duplicate of which is handed over or delivered to the Commonwealth under section 39) which— (a) was executed prior to the date of the commencement of this part; and (b) would have been entitled to registration under the Real Property Act 1900 (NSW) if the land were under that Act; may be registered under this Act notwithstanding that the instrument or document is not in the form prescribed by this Act.

Land registered under Real Property Act 1900 (NSW) Part 7

42 Land referred to in pt 7 to be subject to certain reservations etc All land referred to in this part which is subject to any reservation, exception, easement, obligation, trust, encumbrance, mortgage or charge at the time when this part commences shall continue subject thereto until it is lawfully removed or discharged.

43 Registrar-general to keep register (1) The registrar-general shall keep a register relating to land. (2) The registrar-general may— (a) keep the register— (i) in such form or combination of forms; and (ii) on such medium or combination of media; and (iii) in such manner; as the registrar-general thinks fit; and (b) at any time, vary the form or medium in which the register or part of the register is kept. (3) A reference to a medium in subsection (2) includes but is not limited to— (a) a computer; or (b) microfilm; or (c) paper. (4) The register consists of folios of the register, instruments, plans and registered documents. (5) Where the registrar-general is satisfied— (a) that the register contains an entry relating to an instrument or document affecting land; and (b) that the land is no longer affected by the instrument or document; the registrar-general may cancel the entry in the register.

44 Form of certificate of title (1) Every certificate of title shall set forth the nature of the estate of freehold or leasehold in respect of which it is issued. (2) The registrar-general shall note thereon in such manner as to preserve their priority the particulars of all unsatisfied mortgages or other encumbrances, and of any other interests to which the land is subject, and if the certificate of title be issued to an infant or to a person otherwise under disability he or she shall state the age of the infant or the nature of the disability so far as known to him or her, and shall cause a certificate of title to be delivered to the proprietor entitled to the land described therein.

45 One certificate may be issued for lands not contiguous The registrar-general may issue 1 certificate of title for several parcels of land even if they are not contiguous.

46 Registering fee simple estate for which leasehold interest registered Before bringing under this Act an estate in fee simple in relation to which a leasehold interest has been registered, the registrar-general must— (a) close the folio of the register for the leasehold interest; and (b) enter on the folio of the register for the estate in fee simple all interests on the register affecting the leasehold interest.

47 When instruments etc taken to be registered (1) A grant lodged for registration is taken to be registered under this Act when it is marked by the registrar-general with a folio and volume of the register for the land.

(2) A memorandum of transfer or other instrument purporting to transfer or otherwise deal with or affect an interest in land is taken to be registered under this Act when a memorial of the instrument is entered on the folio of the register for the land. (3) The person named in the registered grant or instrument as the person owning or taking legal possession of (however described) the land or interest in land is taken to be the registered proprietor of the land or interest when the grant or instrument is registered.

47A Registration of transfers of mortgages, subleases etc (1) Notwithstanding anything contained in section 47 a transfer of a mortgage or encumbrance or a transfer or mortgage of a lease (other than a Crown lease) or sublease, or a sublease granted by a lessee other than a Crown lessee, or by a sublessee or of variation of mortgage, shall be deemed and taken to be duly registered when a memorial thereof has been entered in the register on the folio for the land. (2) Every memorial prepared under this section shall state the nature of the instrument to which it relates and such other particulars as the registrar-general directs, and shall be signed by the registrar-general.

47B Registration of memoranda of provisions A memorandum of provisions shall be deemed to be registered when a memorial of registration is endorsed upon it and signed by the

47C Registration of instruments effecting dutiable transaction (1) This section applies to an instrument that effects a dutiable transaction, other than the following: (a) a declaration of trust over dutiable property; (b) a cancelled agreement for the sale or transfer of dutiable property;

(c) a grant of a commercial lease with premium. (2) The transferee must lodge the instrument with the registrar-general for registration. Note The registrar-general must register an instrument lodged in registrable form (see s 48 (1)). (3) If the instrument is an agreement for the transfer of dutiable property in conformity with the agreement, it must be lodged with the registrar-general within 14 days after the day the agreement is completed, or any longer time determined by the commissioner. (4) A determination is a notifiable instrument. commercial lease with premium—see the Duties Act 1999, section 6A. dutiable property—see the Duties Act 1999, section 10. dutiable transaction—see the Duties Act 1999, section 7 (2). transfer—see the Duties Act 1999, dictionary.

48 Instruments—registration and priority (1) The registrar-general shall register an instrument lodged in registrable form. (2) The registrar-general may require a specified class of instruments to be lodged in duplicate. (3) An instrument lodged, other than— (a) an order of the court; or (b) a grant; or (c) a memorandum of provisions; or

(d) a notice of determination or memorandum of discharge under the Rates and Land Rent (Relief) Act 1970; shall be attested by a witness. (4) Subject to subsection (5), instruments lodged for registration shall be registered in the order of time in which they are lodged in registrable form. (5) Where a person lodges 2 or more instruments that affect the same land immediately one after the other, the registrar-general may register the instruments in the order that will give effect to the intentions of the parties as expressed in, or apparent from, those instruments. (6) Where 2 or more instruments are registered in respect of, or affecting, the same interest in land, the instruments shall, notwithstanding any express, implied or constructive notice, have priority according to the date and time of registration. (7) When an instrument is registered, the registrar-general shall enter a record of that instrument in the register. (8) On registration, an instrument, other than a memorandum of provisions or a caveat, shall be taken to be part of the register and shall have the effect of a deed duly executed by the parties. (9) In this section: instrument includes a caveat.

48A Refusal to accept instruments for lodgment The registrar-general may refuse to accept an instrument for registration if it is not in registrable form.

48B Lodgment of instruments—registrable form (1) The registrar-general shall not register any instrument purporting to transfer or otherwise deal with or affect any interest in land except— (a) as required or permitted by a Territory or Commonwealth law; and (b) in the manner provided by this Act. (2) Where an instrument is lodged that is not in registrable form, the (a) refuse to register it and require— (i) 1 or more of the parties to the instrument to— (A) alter or correct the instrument; or (B) provide a stated document under section 14 (1) (a); or (ii) for an instrument lodged under section 48BA or section 48BB—the legal practitioner or mortgagee corporation to— (A) alter or correct the instrument; or (B) provide certification under section 48BA or section 48BB in appropriate form; or (C) provide a stated document under section 14 (1) (c) or section 48BH (2); or (b) reject it. registration—see section 48BA (5).

48BA Lodgment of instruments by legal practitioners— certification (1) This section applies if a legal practitioner lodges an instrument purporting to transfer or otherwise deal with or affect an interest in land with the registrar-general for registration on behalf of a party to the instrument. (2) The registrar-general must not register the instrument unless, for each person who is a party to the instrument, the legal practitioner for the person certifies in the appropriate form— (a) that the person has authorised the legal practitioner under a client authorisation to lodge the instrument and do all other things necessary to ensure the instrument is registered; and (b) that the legal practitioner has verified the person’s identity in accordance with the verification of identity rules as in force at the time of verification; and (c) that the legal practitioner has verified the person’s authority to deal with the land under the instrument in accordance with the verification of authority rules as in force at the time of verification; and (d) that any document relevant to certification under this section that is required to be kept by the legal practitioner under this Act and, if relevant, the E-Conveyancing Law, has been kept; and (e) that the legal practitioner has complied with any other requirement in relation to the instrument under this Act and, if relevant, the E-Conveyancing Law; and (f) that the legal practitioner has complied with any requirement (3) Certification under subsection (2) may only be provided by a legal practitioner who has personal knowledge of the matter the legal practitioner is certifying.

(4) The registrar-general may exempt a legal practitioner, or an instrument prescribed by regulation, from a certification requirement under subsection (2). registration, means— (a) for an instrument lodged electronically under the E-Conveyancing Law—certification that complies with the participation rules; or (b) in any other case—the form required by the registrar-general. client authorisation means— (a) for an instrument lodged electronically under the E-Conveyancing Law—see the E-Conveyancing Law, section 10; or (b) in any other case—an authorisation in a form required by the participation rules—see the E-Conveyancing Law, section 23. party, to an instrument, includes a person acting on behalf of another person (under a power of attorney or otherwise) but does not include a legal practitioner acting under a client authorisation. 48BB Lodgment of instruments by mortgagee corporations— certification (1) This section applies if a mortgagee corporation lodges a mortgage or other instrument purporting to deal with or affect an interest in land with the registrar-general for registration. Note 1 Section 48BA applies to a mortgagee represented by a legal practitioner. Note 2 Section 48BC applies to a mortgagee who is not a corporation and not represented by a legal practitioner.

(2) The registrar-general must not register the instrument unless the mortgagee certifies in the appropriate form— (a) that the mortgagee has verified the mortgagor’s identity in accordance with the verification of identity rules as in force at the time of verification; and (b) that the mortgagee has verified the mortgagor’s authority to deal with the land under the instrument in accordance with the verification of authority rules as in force at the time of verification; and (c) that any document relevant to certification under this section that is required to be kept by the mortgagee under this Act and, if relevant, the E-Conveyancing Law, has been kept; and (d) that the mortgagee has complied with any other requirement in relation to the instrument under this Act and, if relevant, the (e) that the mortgagee has complied with any requirement (3) Certification under subsection (2) may only be provided by an employee of the mortgagee corporation who has personal knowledge of the matter the employee is certifying. (4) The registrar-general may exempt a mortgagee corporation, or an instrument prescribed by regulation, from a certification requirement under subsection (2). registration—see section 48BA (5). participation rules—see the E-Conveyancing Law, section 23.

48BC Lodgment of instruments by self-represented parties— verification of identity and authority (1) This section applies if a party to an instrument purporting to transfer or otherwise deal with or affect an interest in land lodges the instrument, in person, with the registrar-general. (2) The registrar-general must not register the instrument unless the registrar-general— (a) is reasonably satisfied that the party’s identity has been verified in accordance with the verification of identity rules as in force at the time of verification; and (b) has verified the party’s authority to deal with the land under the instrument in accordance with the verification of authority rules as in force at the time of verification. party, to an instrument—see section 48BA (5). 48BD Signature and witnessing requirements—legal practitioners and mortgagee corporations (a) an instrument is lodged by a legal practitioner or mortgagee corporation under section 48BA or section 48BB; and (b) the instrument is not lodged electronically under the (c) the legal practitioner or mortgagee corporation provides certification in relation to the instrument under section 48BA or section 48BB. Note The E-Conveyancing Law, pt 2, div 1 contains similar provisions for instruments lodged electronically. (2) Any requirement under this Act for the instrument to be executed, signed, witnessed, attested or sealed is taken to have been satisfied.

48BE Verification of identity rules (1) The registrar-general may make rules (the verification of identity rules) about— (a) how a person must be identified for section 48BA (2) (b), section 48BB (2) (a) and section 48BC (2) (a); and (b) what documents must be kept for the purpose of verifying the person’s identity under section 48BA (2) (d) and section 48BB (2) (c); and (c) how long the documents must be kept; and (d) any other relevant matter. (2) A rule is a disallowable instrument. 48BF Verification of authority rules (1) The registrar-general may make rules (the verification of authority rules) about— (a) how a person’s authority to deal with land under an instrument is verified for section 48BA (2) (c), section 48BB (2) (b) and section 48BC (2) (b); and (b) what documents must be kept for the purpose of verifying the person’s authority under section 48BA (2) (d) and section 48BB (2) (c); and (c) how long the documents must be kept; and (d) any other relevant matter. (2) A rule is a disallowable instrument.

48BG Compliance audits—lodgments by legal practitioners and mortgagee corporations (a) an instrument is lodged by a legal practitioner or mortgagee corporation; and (b) the instrument is not lodged electronically under the (c) the legal practitioner or mortgagee corporation provides certification in relation to the instrument under section 48BA or section 48BB. Note The registrar-general has a similar power to this provision for an instrument lodged electronically under the E-Conveyancing Law (see the Law, s 33 and s 34). (2) The registrar-general may, at any time, give the legal practitioner or mortgagee corporation a written request to provide stated information about— (a) the accuracy of the matters certified by the legal practitioner or mortgagee corporation under section 48BA (2) or section 48BB (2) in relation to the instrument; or (b) whether section 48BA or section 48BB have otherwise been complied with by the legal practitioner or mortgagee corporation in relation to the certification for the instrument. (3) The request must state a reasonable period for the information to be provided. (4) The legal practitioner or mortgagee corporation must provide the information in accordance with the request.

48BH Non-compliance—registrar-general may require additional documents (a) a legal practitioner or mortgagee corporation has not complied with a request under section 48BG; or (b) the registrar-general is reasonably satisfied in relation to an instrument lodged by a legal practitioner or mortgagee corporation that— (i) the matters certified by the legal practitioner or mortgagee corporation under section 48BA (2) or section 48BB (2) in relation to the instrument are not accurate; or (ii) the legal practitioner or mortgagee corporation has not otherwise complied with section 48BA or section 48BB in relation to the certification for the instrument; or (c) a legal practitioner’s or mortgagee corporation’s authorisation to use an electronic lodging network under the E-Conveyancing Law or a corresponding law is restricted, suspended or terminated for non-compliance with that law. (2) The registrar-general may, after giving the legal practitioner or mortgagee corporation at least 14 days written notice (the notice period), require the legal practitioner or mortgagee corporation to provide stated compliance assurance documents for stated instruments lodged by the legal practitioner or mortgagee corporation from the day the notice period ends until— (a) the end date stated in the notice; or

(b) a stated event happens. Example—event If a legal practitioner or mortgagee corporation is suspended from using an electronic lodging network for non-compliance—the suspension ends. Note The instrument is not in registrable form if a document required under s (2) is not provided (see s 4 (e)). (3) Subsection (2) does not apply to an instrument lodged electronically under the E-Conveyancing Law. compliance assurance document, for an instrument lodged for registration, means a document relevant to certification under section 48BA or section 48BB for the instrument. Examples 1 a client authorisation 2 a copy of a document used to verify a client’s identity or authority 3 for a transfer of land—a copy of the contract of sale for the land 4 for a mortgage—a copy of the loan agreement corresponding law—see the E-Conveyancing Law, section 3. 48BI Power to refer to appropriate authority (1) This section applies if the registrar-general— (a) receives a complaint from a person in relation to a legal practitioner or mortgagee corporation indicating that— (i) the matters certified by the legal practitioner or mortgagee corporation under section 48BA (2) or section 48BB (2) in relation to an instrument are not accurate; or (ii) the legal practitioner or mortgagee corporation has not otherwise complied with section 48BA or section 48BB in relation to the certification for an instrument; or

(b) reasonably suspects a circumstance mentioned in paragraph (a) applies to a legal practitioner or mortgagee corporation. (2) The registrar-general may, instead of or in addition to, taking action under section 48BH refer the matter to an appropriate authority. (3) If the registrar-general refers a matter under subsection (2), the registrar-general may give the appropriate authority any information held by the registrar-general that is reasonably relevant to the matter. appropriate authority—see the E-Conveyancing Law, section 35 (1). Note Appropriate authority includes a law enforcement agency, a regulatory body or professional disciplinary body.

48C Correction of errors prior to registration Where an instrument containing a patent error is lodged, the registrar-general may correct the error by marginal notation on the instrument and the instrument as so corrected shall be as valid and effectual as if the error had not been made.

51 Instruments not to be registered (1) The registrar-general shall not register— (a) an instrument executed on or after 1 July 1969 and before 1 August 1987, being an instrument included in a class of Duty Act 1969 (Cwlth), schedule 1, item 4, 5, 6 or 7; or (b) an instrument executed on or after 1 January 1986 and before 1 September 1987 being an instrument included in a class of Duty Act 1969 (Cwlth), schedule 1, item 9; or

(c) an instrument executed on or after 1 January 1987 and before 1 August 1987, being an instrument included in a class of Duty Act 1969 (Cwlth), schedule 1, item 6A; (d) the instrument is duly stamped within the meaning of the Australian Capital Territory Taxation (Administration) Act 1969 (Cwlth); or (e) the instrument bears a stamp impressed on it under that Act to the effect that no stamp duty is payable; or (f) the instrument, being a counterpart of another instrument that has been so duly stamped, bears a stamp impressed on it under that Act to that effect. (2) The registrar-general shall not register an instrument executed on or after 1 August 1987 and before 1 March 1999, being an instrument of a kind referred to in the Stamp Duties and Taxes Act 1987 (repealed), section 17 (1) (a), (b), (ca), (c) or (d), unless the instrument has been duly stamped within the meaning of that Act.

52 Issue of new certificate of title after change in register (1) If an interest in land is registered, the registrar-general must give the party that lodged the relevant instrument for registration a certificate of title showing the interest. (2) The registrar-general must keep— (a) each registered instrument; and (b) any document lodged with the instrument. instrument includes a caveat, grant or Crown lease.

53 Evidence as to title (1) The register is conclusive evidence— (a) as to the interests held in land under the Act; and (b) that the registered proprietor of each such interest is entitled to that interest. (2) A certified copy of a part of the register, furnished under section 65 and signed and sealed by the registrar-general, is conclusive evidence of the matters stated in the certified copy, as at the date on which the certified copy was furnished. (3) A certificate of title signed and sealed by the registrar-general is evidence of the matters stated in the certificate. (4) If the register contains a statement to the effect that the person named therein is entitled to any easement therein specified, the statement shall be conclusive evidence that he or she is so entitled. (5) If the register contains the words ‘Together with a right of carriageway over the road delineated and coloured brown on the said map’ or words to the like effect, those words shall have the same effect as if the words contained in schedule 1 had been in their stead.

54 Joint tenants and tenants in common (1) A transfer to 2 or more persons shall not be registered unless those persons are expressed to be either joint tenants or tenants in common. (2) Where 2 or more persons listed in the register as joint proprietors, but not as tenants in common, they shall be taken to be registered as joint tenants. (3) The share of a person registered as a tenant in common must be included on the register.

55 Survivor of joint tenants In any of the following cases, that is to say: (c) upon the death of any person registered together with any other person as joint tenant of the same interest in any land; or (d) when the life estate in respect of which an interest in land has been registered has determined, and the estate next registered in remainder or reversion has become vested in possession or the person whose interest in land has been registered or a purchaser has become entitled to the land for an estate in fee simple in possession; the registrar-general may, upon the application of the person entitled and proof to his or her satisfaction of any such occurrence as mentioned in this section, register that person as proprietor of the interest in manner prescribed by this Act for the registration of a like interest upon a transfer or transmission.

56 Remainderperson or reversioner may be registered as such Whenever an interest has been registered in respect of a life estate in any land, any person entitled in reversion or remainder to the land may apply to be registered as so entitled, and the registrar-general shall cause the title of the applicant to be investigated, and thereafter, upon consideration of the case, may, unless otherwise directed by the court, either reject the application altogether or direct that the applicant be registered forthwith or be so registered unless a caveat is lodged after the notice or advertisement and within such period as he or she thinks fit.

58 Estate of registered proprietor paramount (1) Notwithstanding the existence in any other person of any interest, whether derived by grant from the Crown or otherwise, which but for this Act might be held to be paramount or to have priority, a person becoming registered as proprietor of land or of any interest in land under this Act shall, except in case of fraud, hold the land or interest, subject to such interests as are notified on the folio of the register for the land, but absolutely free from all other interests whatsoever except as to— (a) the interest of a proprietor claiming the same land under a prior entry in the register; and (b) any right of way or other easement created in or existing upon the same land which is not described, or is misdescribed in the register; and (c) any portion of land that may by wrong description of parcels or of boundaries be included in the register as land or an interest held by the registered proprietor, not being a purchaser or mortgagee thereof for value, or deriving from or through a purchaser or mortgagee thereof for value; and (d) any prior tenancy for a term not exceeding 3 years; and (e) any leases, licences or other authorities granted by the Territory and in respect of which no provision for registration is made; and (f) any unpaid duty, rates, taxes or other moneys which are expressly declared by any Act or law to be a charge upon land. (2) The land which is included in the register is taken to be subject to the reservations, exceptions, conditions and powers (if any) contained in the grant thereof.

59 Purchaser from registered proprietor not to be affected by notice Except in the case of fraud no person contracting or dealing with or taking or proposing to take a transfer from the registered proprietor of any registered interest shall be required or in any manner concerned to inquire or ascertain the circumstances in or the consideration for which the registered proprietor or any previous registered proprietor of the interest in question is or was registered or to see to the application of the purchase money or any part thereof, or shall be affected by notice, direct or constructive, of any trust or unregistered interest, any rule of law or equity to the contrary notwithstanding; and the knowledge that any such trust or unregistered interest is in existence shall not of itself be imputed as fraud.

60 Protection as to notice of transferee before registration (1) For the purposes of determining whether a person has notice of a prior interest in land under this Act, the interest taken by the person under a dealing that— (a) is registrable under this Act; or (b) will, when signed by or on behalf of the person, be registrable under this Act; shall, before registration of that dealing, be deemed to be a legal estate. (2) No person contracting or dealing in respect of an interest in land under this Act shall be affected by notice of any instrument, fact, or thing merely by omission to search in a register not kept under this Act.

64 Registrar-general may require map to be deposited (1) The registrar-general may require the proprietor applying to have any land brought under this Act, or desiring to transfer or otherwise to deal with the land or any portion thereof, to deposit at the office of the registrar-general a map or plan of the land, certified by a registered surveyor. (2) If the proprietor neglects or refuses to comply with the requirement as to the deposit of a map or plan or, if the map or plan deposited by the registered proprietor is not approved by the surveyor-general, or an officer appointed by him or her in that behalf, it shall not be incumbent on the registrar-general to proceed with the bringing of the land under this Act or with the registration of the transfer or lease.

65 Certified copies of register On application, the registrar-general must give the applicant a certified copy of any part of the register.

66 Searches (1) A person shall have access to the register for the purpose of inspection during office hours, or such other hours as the registrar-general from time to time determines. (2) The registrar-general may provide access of the kind referred to in subsection (1) by way of certificate, visual display unit, computer print-out, microfiche reader or any other means. (3) In subsection (2): computer print-out means a document that— (a) is— (i) a record of; or (ii) an extract from; or

(iii) derived from; information stored in, or processed by, a computer; or (b) is produced by a computer, or a series or combination of computers, directly or (with or without human intervention) with the aid of other equipment.

67 Issue of uncertified copies The registrar-general may provide an uncertified copy of any part of the register or of any information contained in the register.

68 Registrar-general may register as proprietor person entitled to land by operation of statute or by defeasance of estate (1) Whenever— (a) by the operation of any law or Act either directly or by reason of anything done under it; or (b) by the defeasance of any estate of any person registered as proprietor under this Act; any land under this Act has become or becomes vested in some person other than the registered proprietor either alone or jointly or in common with the registered proprietor, or some such person has become or becomes entitled to have any such land so vested, or the site or any part of the site of any closed road whether belonging to the Commonwealth or to any person has become or becomes vested in the person registered as proprietor under this Act of adjoining land, the registrar-general may, at the written request of a person in whom there has been such a vesting or who has become so entitled, on such evidence as appears to the registrar-general to be sufficient, and after such notice (if any) to such person as the registrar-general deems proper, register the person in whom any such land or site or part thereof is vested or who has become so entitled, as the proprietor of the estate therein as is appropriate, and for that purpose may make

every such entry, cancellation and correction in the register as appears to the registrar-general to be necessary or proper. (2) This section does not apply to a case for which express provision is made by this Act or any other law.

69 Statute of limitations not to run against land under Act No title to land adverse to or in derogation of the title of the registered proprietor shall be acquired by any length of possession by virtue of any statute of limitations relating to real estate, nor shall the title of any such registered proprietor be extinguished by the operation of any such statute.

Record of administrative interests Part 8A

Part 8A Record of administrative interests

69A Meaning of administrative interest—Act In this Act: administrative interest, in relation to a parcel of land— (a) means a decision under a law in force in the Territory by an authorised entity in relation to the use of land that may affect a decision of a person proposing to deal with land, whether or not the land is the parcel affected or another parcel; and (b) if an authorised entity may or must give notice to the registrar-general of the happening of a thing that relates to the use of the land and may affect a decision of a person proposing to deal with land, whether or not the land is the parcel affected or another parcel—includes the happening of the thing; and (c) if the land is affected residential premises within the meaning of the Dangerous Substances Act 2004, section 47I—includes the following: (i) whether the premises have been included in the affected residential premises register under the Dangerous Substances Act 2004, section 47P, and, if so, that— (A) any transfer or transmission of the premises will place an occupancy prohibition on the premises; and (B) the premises may be acquired by the Territory under the Lands Acquisition Act 1994; (ii) whether the premises have been removed from the affected residential premises register under the Dangerous Substances Act 2004, section 47P;

(iii) whether there is an occupancy prohibition for the premises under the Dangerous Substances Act 2004, section 47S; but (d) does not include an interest in land registrable under another part of this Act. Examples—administrative interests 1 a development approval under the Planning Act 2023 for the use of land 2 if notice of a development approval for the use of land was given to the registrar-general under the Planning Act 2023—the ending, by surrender, of the development approval 3 the effect of the Planning Act 2023, s 307 (1) (a) (ii) on the assignment, transfer, subletting etc of a community lease

69B Meaning of authorised entity—pt 8A In this part: authorised entity means any of the following: (a) the registrar-general; (b) the Territory; (c) a territory authority; (d) an entity prescribed by regulation; (e) an employee of an entity mentioned in paragraph (a), (b), (c) or (d).

69C Record of administrative interests (1) This section applies if the registrar-general keeps a record of administrative interests on the register. (2) The registrar-general may include, in the record, the following information about an administrative interest that is a decision: (a) the date of the decision;

Record of administrative interests Part 8A (b) the particulars of the decision; (c) the law under which the decision was made. (3) The registrar-general may include in the record any relevant information about an administrative interest mentioned in section 69A (c) that the registrar-general considers necessary to describe the interest. (4) If the registrar-general includes in the record information about an administrative interest mentioned in section 69A (c), the registrar-general must notify the Minister responsible for the Dangerous Substances Act 2004 about the inclusion. (5) The registrar-general may include, in the record, the following information about a parcel of land to which an administrative interest relates: (a) if the parcel is leased—the name of the lessee; (b) the block and section; (c) the address of the parcel; (d) any other information the registrar-general considers necessary in relation to the parcel. (6) However, if the registrar-general includes information mentioned in subsection (5) in relation to the parcel of land, the information must not include information other than information already available on the register in relation to the parcel.

69D Protection from liability—administrative interests (1) This section applies if the registrar-general takes reasonable steps to bring the effect of subsection (2) to the attention of people given access to the record of administrative interests in accordance with section 66 (Searches). (2) Neither the registrar-general nor an authorised entity incurs liability for any omission, misstatement or inaccuracy in the information.

(3) A regulation may prescribe what are reasonable steps for subsection (1).

Crown leases Part 9

70 Registration of Crown leases (1) The registrar-general shall register in the register every Crown lease for a term of not less than 12 months granted by or in the name of the Commonwealth by entering the lease in a folio of the register. (2) The registrar-general may register in the register a Crown lease for a term of less than 12 months, being a Crown lease granted by or in the name of the Commonwealth after the date of commencement of the Real Property (Amendment) Act (No. 3) 1986, by entering the lease in a folio of the register.

71 Dealings with Crown leases (1) Every Crown lease, upon registration, shall be subject to this Act, and (subject to the Act under which the Crown lease was granted and to the Crown lease) may be transferred, mortgaged and dealt with for the same purposes, and in like manner, as if it had been granted by a proprietor of land under this Act and registered in the register. (2) Any entries which, in the case of a lease granted by a proprietor of land under this Act, would require to be made in the register shall, in the case of a registered Crown lease, be made in the register on the folio constituted by the Crown lease.

72A Registration of variations (1) If the territory planning authority has executed a variation of a Crown lease under the Planning Act 2023, the authority must lodge a copy of the variation with the registrar-general. (2) On receipt of a copy of a variation under subsection (1), the registrar-general shall endorse on the folio of the register for the land under the Crown lease a memorial in accordance with this Act.

(3) The variation takes effect when the registrar-general endorses on the folio of the register for the land under the Crown lease the memorial mentioned in subsection (2). 72AB Registration etc of orders under Planning Act 2023 (1) This section applies if the registrar-general receives a notice under either of the following provisions of the Planning Act 2023 about an order under that Act that appears to affect a Crown lease: (a) section 430 (Notice of making of controlled activity orders); (b) section 435 (Notice ending controlled activity orders). (2) The registrar-general must endorse on the folio of the register for the land under the Crown lease a memorial in accordance with this Act about the making or ending of the order.

72B Dealing with land before grant or registration of Crown (1) An instrument signed by a person to whom a Crown lease of land is or has been granted, or signed by a person claiming through or under such a person, and purporting to pass such an interest in the land as may be registered under this Act shall be deemed to confer on the person intended to take the interest in the land under the instrument, and on any other person claiming through or under the person intended to take that interest, the right, upon the registration of the Crown lease under this Act, to have the instrument registered under this Act. (2) The right conferred by subsection (1) to have an instrument registered is conferred notwithstanding that the Crown lease had not been granted or registered when the instrument was signed, but is otherwise conferred subject to this Act.

Crown leases Part 9

72C Memorial of compliance with building and development provision in lease (a) a Crown lease is registered under this Act; and (b) a building and development provision of the lease has been fully complied with and the lessee has applied, under the Planning Act 2023, section 368 (1) for a certificate of compliance; and (c) the registrar-general is satisfied that the territory planning authority has issued a certificate of compliance under the Planning Act 2023, section 368 in relation to the lease. (2) The registrar-general may enter in the register a memorial to the effect that the building was completed in accordance with the building and development provision of the lease. (3) A memorial under subsection (2) is, for the Planning Act 2023, section 368, conclusive evidence of the matter in relation to which the registrar-general has stated in the memorial that the registrar is satisfied. building and development provision, in relation to a lease—see the Planning Act 2023, section 256.

72D Memorial of application of certain provisions etc under Planning Act 2023 (1) If the territory planning authority tells the registrar-general that any of the following provisions or things under the Planning Act 2023 apply to a lease, the registrar-general must enter in the register a memorial to that effect: (a) section 280 (Restriction on transfer, assignment and parting with possession);

(b) section 282 (Restriction on transfer, assignment and parting with possession—certain University of NSW leases); (c) a declaration under section 366 (Declared leases). (2) The registrar-general must enter in the register— (a) for a declared land sublease—a memorial that it is a declared land sublease under the Planning Act 2023, section 365 (1); and (b) for a lease of a unit or common property under a units plan that subdivides land under a declared land sublease—a memorial that the lease is over land under a declared land sublease; and (c) for land under a scheme under the Community Title Act 2001 that subdivides land under a declared land sublease— a memorial that the land is land under a declared land sublease.

Transfers Division 10.1

73 Memorandum of transfer (1) An interest in land under this Act may be transferred by registration of a memorandum of transfer. (2) The registrar-general must not register a memorandum of transfer (a) if the transfer is lodged by— (i) a legal practitioner on behalf of a party—the legal practitioner provides the certification under section 48BA; or (ii) a mortgagee corporation—the mortgagee corporation provides the certification under section 48BB; or (b) in any other case—the transfer has been executed by the registered proprietor of the land and accepted by the transferee or the transferee’s legal practitioner on the transferee’s behalf. Note The transferee’s identity and authority to transfer the land must also be verified (see s 48BC). (3) An acceptance under subsection (2) (b) shall be evidenced— (a) in the case of an individual—by his or her signature; or (b) in the case of a corporation—in accordance with the Corporations Act, section 127 (Execution of documents (including deeds) by the company itself).

77 Transferee—interests and obligations (1) On the registration of a transfer, the interest in land described in the transfer, shall pass to the transferee.

(2) In the case of a transfer of a mortgage, encumbrance or lease the transferee shall be subject to and liable for, while he or she remains the registered mortgagee, encumbrancee or lessee, all the obligations that the transferor was subject to, or liable for, before the transfer. (3) Where a registered lessee of a Crown lease transfers his or her interest, he or she shall not be liable for any obligation under the lease accruing after the registration of the transfer.

78 Transfer of mortgage or lease—right to sue By virtue of every transfer of a mortgage, encumbrance or lease, the right to sue upon the memorandum of mortgage, encumbrance or lease, and to recover any debt, sum of money, annuity or damages thereunder (notwithstanding that the right may be deemed or held to constitute a chose in action), and all interest in any such debt, sum of money, annuity or damages shall be transferred so as to vest it in the transferee thereof.

79 Proprietor may vest estate jointly in self and others without limiting any use or without reassignment The registered proprietor of any land or of any interest in land, under this Act, whether of the nature of real or personal property, may, by any of the forms of instruments of transfer provided by this Act, modified as is necessary, transfer the land or interest, or any part thereof, to his or her domestic partner, or the registered proprietor may make the transfer to himself or herself jointly with any other person, or create or execute any powers of appointment, or limit any estates whether by remainder or otherwise, without limiting any use or without any reassignment being executed; but upon the registration of the transfer, the land or interest shall vest in the registered proprietor jointly with any other person, or in the person taking under the limitation, or in whose favour any power has been executed, or otherwise according to the intent and meaning appearing in the instrument and thereby expressed. Note For the meaning of domestic partner, see Legislation Act, s 169.

80 Endorsement when land becomes Crown land Upon any land under this Act becoming Crown land (whether or not held by the Commonwealth in its capacity as a body corporate conferred by the Lands Acquisition Act 1955 (Cwlth), section 61), the registrar-general shall cause a notification to the effect that the land has become vested in the Commonwealth as Crown land, to be made

81 Short words for creation of right of way In any transfer or lease the words—‘Together with a right of carriageway over the road delineated and coloured brown on the said map’, or words to the like effect, shall have the same effect as if the words contained in schedule 1 had been used instead thereof.

82 Form of lease (1) A lease in registrable form for a life or lives or a term that expires on a date specified in the lease, may be registered under this Act. (2) Each registered lease must be identified by the volume and folio of the register and the folio identifier for the land. (3) A lease may incorporate by reference, with or without amendment, any or all of the provisions contained in a memorandum of provisions. (4) Where a lease— (a) incorporates by reference provisions contained in a memorandum of provisions; or (b) incorporates by reference, with amendment, provisions contained in a memorandum of provisions; those provisions, or those provisions as amended, as the case may be, shall be deemed to be set out at length in the lease.

83 Right of purchase or covenant to purchase may be inserted (1) In any lease other than a lease from the Commonwealth a right to purchase the fee simple of the land thereby demised may be granted to the lessee, or a covenant to purchase the fee simple of the land may be entered into by the lessee. (2) The true amount of the purchase money to be paid, the period within which the right may be exercised or within which the covenant is to be performed, and any other particulars necessary to explain the terms of the right or covenant, shall be stated in the lease. (3) If the lessee pays the purchase money stipulated and otherwise observes his or her covenants expressed and implied in a registered lease, the lessor shall execute a transfer to the lessee of the fee simple, and perform all acts required by this Act to be done for the purpose of transferring the fee simple of the land.

84 Mortgagee etc not bound by lease unless consent given No lease of land subject to a mortgage or encumbrance shall be valid or binding against the mortgagee or encumbrancee unless he or she has consented to the lease before it is registered.

85 Certain unregistered leases valid, but not rights of purchase or renewal under them (1) A registered lease is subject to any prior unregistered lease, or agreement for a lease, for a term not exceeding 3 years. (2) No right or covenant to purchase the freehold or to assign the reversionary interest of the lessor contained in any lease or agreement, and no right or covenant to or for the renewal of any lease or agreement, shall be valid as against any subsequent purchaser of the reversion, lessee, mortgagee or encumbrancee unless the lease or agreement is registered.

86 Surrender of lease (1) Where any registered lease is intended to be surrendered and the surrender is effected otherwise than through the operation of a surrender in law or than under any law for the time being in force relating to insolvent or bankrupt estates, there may be endorsed upon the lease or on the counterpart thereof the word ‘Surrendered’ with the date of the surrender or a memorandum of surrender may be executed. (2) The endorsement or memorandum of surrender shall be signed by the lessee and by the lessor as evidence of the acceptance of the surrender, and shall be attested by a witness. (3) Where the Commonwealth is the lessor, the endorsement or memorandum of surrender may be signed— (a) in the case of national land—by the Commonwealth Minister for the time being administering the National Land Ordinance 1989; and (b) in the case of Territory land—by the Minister for the time being administering the Acts relating to the leasing of Crown land in the ACT; and that signature shall constitute and be evidence of the acceptance by the Commonwealth of the surrender. (4) If an owners corporation surrenders the lease on behalf of a lessee under the Unit Titles Act 2001, section 167A, the endorsement or memorandum of surrender must be— (a) signed by the owners corporation; and

(b) accompanied by evidence of the resolution of the owners corporation mentioned in the Unit Titles Act 2001, section 167A (2) (c). (5) Subject to this section, the registrar-general shall, upon production to him or her of— (a) the lease or counterpart endorsed in accordance with this section; or (b) a memorandum of surrender executed in accordance with this section; enter in the register a memorial recording the date of the surrender. (6) Upon the making of the entry required by subsection (5) the interest of the lessee in the land shall revest in the lessor or in the person in whom, having regard to intervening circumstances (if any), the land would have vested if the lease had not been executed. (7) No lease subject to a registered mortgage or encumbrance shall be surrendered without the consent of the mortgagee or encumbrancee. (8) Where a lease subject to a registered mortgage is intended to be surrendered with a view to the acceptance of a new lease in its place, the registrar-general shall not enter in the register a memorial of the surrender unless he or she is satisfied, on reasonable grounds— (a) that the mortgage has been discharged; or (b) that— (i) the mortgagee consents to the continuation of the mortgage under section 91B; and (ii) the priority of the mortgage relative to each other mortgage (if any) continuing in force under section 91B, can be clearly defined; and (iii) the land comprised in the new lease includes all or part of the land comprised in the lease to be surrendered.

(9) Where a lease out of which any registered sublease is derived is intended to be surrendered with a view to the acceptance of a new lease in place thereof, the endorsement to be made upon the lease or the counterpart thereof shall be the words ‘Surrendered with a view to the acceptance of a new lease’, with the date of the surrender or, if a memorandum of surrender is executed, the memorandum shall include the words ‘This surrender is with a view to the acceptance of a new lease’. (10) Upon production to him or her of the endorsement or memorandum of surrender, the registrar-general shall not make any entry in the register until there is presented for registration a new lease from the same lessor to the same lessee of the whole or part of the land comprised in the surrendered lease which new lease is, subject to registration of the surrender of the surrendered lease, in every respect entitled to registration. (11) Immediately after making an entry in the register of the surrender of a lease pursuant to an endorsement or memorandum of surrender made in accordance with subsection (9), the registrar-general shall register the new lease and shall endorse thereon a memorial of every sublease which is continued in force by section 91A, and shall include in the memorial the words ‘Continued in force by the Land Titles Act 1925, section 91A’, or words to the like effect. (12) For subsection (11), a reference in a memorial to section 90A is taken to be a reference to section 91A.

87 Registration of re-entry by lessor (1) The registrar-general, upon proof to his or her satisfaction of re-entry by the lessor under any power in that behalf contained in the lease or declared by this Act to be implied, or of recovery of possession by the lessor by any proceeding in law or of determination, cancellation or forfeiture of a Crown lease, shall note the re-entry, recovery of possession, determination, cancellation or forfeiture by entry in the register, and the estate of the lessee in the land shall thereupon determine. (2) The determination shall not release the lessee from his or her liability in respect of the breach of any covenant expressed or implied in the (3) The person having the lease in his or her possession or within his or her control shall, when required by the registrar-general, deliver it up to the registrar-general for cancellation and the registrar-general shall cancel it accordingly. (4) Any person who so fails to deliver a lease up to the registrar-general when required commits an offence. Maximum penalty: 10 penalty units.

87A Entry of expiration of lease in register The registrar-general may, upon being satisfied that the term of a lease has expired, note the expiration of the lease by entry in the register.

87B Resumption and withdrawal of land from lease (1) Where, under any power contained in that behalf in any lease or under any law in force in the ACT, any portion of the land comprised in a lease is resumed or withdrawn by the lessor from the lease, the registrar-general, upon proof to his or her satisfaction of the resumption or withdrawal, shall note such resumption or withdrawal by entry in the register and the estate of the lessee in the portion of the land so resumed or withdrawn shall thereupon determine. (2) If the resumption or withdrawal is brought about by the Territory on behalf of the Commonwealth, a Minister may prepare a notice of the resumption or withdrawal. (3) The notice is a notifiable instrument.

87C Extension or variation of lease (1) The registrar-general may, in respect of a lease, other than a Crown lease, register a memorandum of variation that— (a) varies the term of the lease; or (b) varies, revokes or supplements a covenant, condition or restriction contained or implied in the lease. (2) A memorandum of variation shall— (a) be signed by the lessor and lessee; and (b) be registered in the same manner as the current lease; and (c) be registered before the expiry of the term of the current lease. (3) On registration, a memorandum of variation shall— (a) have the same effect as if it were a registered memorandum of lease— (i) for the varied term; or

(ii) containing the covenants, conditions or restrictions as varied; and (b) be deemed to be subject to all interests (except interests to have effect as varied by the memorandum of variation) to which the lease was subject at the time of registration of that memorandum. (4) For this section, a reference in any Territory law or in any instrument or other document to a lease or to the interest of a lessee includes a reference to the lease or the interest as affected by any memorandum of variation. (5) If a person has a registered interest in land, as mortgagee or otherwise, at the time of registration of a memorandum of variation affecting that land, the person is not bound by the memorandum unless the person has consented, in writing, to be so bound.

88 Lessee may sublet (1) The proprietor of any registered lease may, subject to any provisions in his or her lease or to any Act affecting his or her right to do so, sublet by signing a sublease for a life or lives or a term that expires on a date specified in the sublease. Note A sublease of land must be approved by the territory planning authority (see Planning Act 2023, s 284 and this Act, s 88B). (2) A sublease may incorporate by reference any or all of the provisions contained in a memorandum of provisions. (3) Where a sublease incorporates by reference provisions contained in a memorandum of provisions, the provisions so incorporated shall be deemed to be set out at length in the sublease. (4) No sublease of any land subject to a mortgage or encumbrance shall be valid or binding against the mortgagee or encumbrancee unless he or she has consented to the sublease before it is registered.

88A Application of land sublease provisions (1) Section 88B to section 88J do not apply to— (a) a sublease of land granted before the commencement of this section; or (b) if a units plan subdivides a parcel of land under a declared land sublease—a lease granted or arising under the Unit Titles Act 2001. Note Land sublease does not include a building sublease (see Planning Act 2023, dictionary). (2) Nothing in this Act, by itself, creates an obligation on the sublessor under a land sublease to grant the sublessee a further or new sublease. Note The Unit Titles Act 2001, s 167AA provides for the grant of further leases of units and common property if a declared land sublease is subdivided by a units plan.

88B Land subleases—registration The registrar-general must not register a sublease of land unless the sublease has been approved, in writing, by the territory planning authority under the Planning Act 2023, section 284 (Restriction on subletting of land).

88C Land subleases—mortgages (1) A mortgage of land under a land sublease is not valid or binding against the sublessor, or the sublessor’s mortgagee (if any), unless the sublessor and the sublessor’s mortgagee consent, in writing, to the

(2) In this section: mortgage includes an encumbrance. mortgagee includes an encumbrancee.

88D Land subleases—transfers (1) The registrar-general must not register a memorandum of transfer of a land sublease unless— (a) the sublessor consents, in writing, to the transfer; and (b) the registrar-general tells the territory planning authority, in writing, about the transfer. (2) For subsection (1) (a)— (a) the sublessee must request the sublessor’s consent in writing; and (b) within 10 working days after receiving the request, or any longer period agreed by the sublessee and sublessor, the sublessor may, in writing, ask the sublessee to give the sublessor information about the following: (i) the proposed transferee’s financial standing, including details of any approved finance of the proposed transferee; (ii) the proposed use of the land under the sublease by the proposed transferee; (iii) the proposed transferee’s ability to comply with the conditions of the sublease; and

(c) if the sublessor has mortgaged the land under the Crown lease and the consent of the sublessor’s mortgagee is required under the mortgage to the transfer of a sublease of the land— (i) the sublessor must— (A) tell the sublessor’s mortgagee that the request by the sublessee has been made and of the terms of the request; and (B) if asked by the mortgagee—ask the sublessee for the information mentioned in paragraph (b) and give the information to the mortgagee; and (ii) the sublessor’s mortgagee must consent or refuse consent (including reasons for the refusal), in writing, to the sublessor and the sublessee within 10 working days after— (A) being told about the sublessee’s request; or (B) if the mortgagee asks for information under paragraph (c) (i) (B)—receiving the information; and (iii) the sublessor must consent or refuse consent (including reasons for the refusal), in writing, to the sublessee; and (d) if paragraph (c) does not apply—the sublessor must consent or refuse consent (including reasons for the refusal), in writing, within 10 working days after— (i) receiving the sublessee’s request; or (ii) if the sublessor asks for information under paragraph (b)— receiving the information; and

(e) the sublessee is responsible for the reasonable costs of the sublessor, and the sublessee’s mortgagee, in making a decision about whether to consent to the transfer of the sublease (not including any costs incurred in relation to an order under subsection (3) (c) (ii)). Note If no time is provided for doing a thing under this subsection, the thing must be done as soon as possible (see Legislation Act, s 151B). (3) For subsection (2) (c) and (d)— (a) a person to whom a request for consent is made (the request receiver) is taken to have consented to the proposed transfer if the request receiver does not consent or refuse consent within the relevant period mentioned in subsection (2) (c) (ii) and (d); and (b) a request receiver may only refuse consent if the request receiver has reasonable grounds for believing— (i) the proposed transferee is not financially sound; or (ii) the proposed transferee intends to use the land under the sublease for a purpose not allowed under the sublease; or (iii) the proposed transferee cannot otherwise comply with the conditions of the sublease; or (iv) the proposed transferee, or the use of the land under the sublease, will not be compatible with other sublessees under the Crown lease; or (v) the sublessee is in breach of the sublease; and (c) if a request receiver refuses consent— (i) the sublessee may apply to the Magistrates Court for an order that the request receiver has refused consent otherwise than in accordance with this section; and

(ii) if the Magistrates Court is satisfied the request receiver has refused consent otherwise than in accordance with this section, the Court must order— (A) that the request receiver is taken to have consented to the request; and (B) the person in possession of the Crown lease for the land to which the sublease relates to present the lease to the registrar-general to allow registration of the transfer of the sublease. mortgage includes an encumbrance. mortgagee includes an encumbrancee.

88E Land subleases—no further subleases A sublease of land under a land sublease is not valid or binding.

88F Land subleases—surrender A sublessee may surrender a land sublease— (a) with the written consent of the sublessor; or Note If a land sublease is subject to a registered mortgage or encumbrance, the mortgagee or encumbrancee must also consent to the surrender (see s 86 (7) and s 89). (b) if consent to the transfer of a land sublease is refused under section 88D.

88G Withdrawal of land under land sublease (a) before the end of the term of a sublease, the sublessor withdraws all or part of the subleased land from the lease under a provision of the sublease; and (b) the sublessee has fully complied with the provisions (if any) of the sublease relating to the construction of improvements on the land under the sublease. (2) Section 88H and section 88I apply in relation to the withdrawn land as if the sublease was surrendered on the day of the withdrawal. improvement, in relation to land—see section 88H (6).

88H Surrender etc of land sublease—payment for improvements (a) a land sublease is surrendered or ends; and (b) there are improvements in relation to the land under the sublease— (i) that did not exist at the commencement of the sublease; and (ii) the cost of which the sublessee was responsible for; and (c) the sublessee— (i) is not granted a further sublease of the land under the old sublease; or

(ii) is granted a new sublease of only part of the land under the old sublease. (2) The sublessor is liable to pay the sublessee— (a) if no further sublease of the land under the old sublease is granted—the value of the improvements as worked out under the Planning Act 2023, section 362 as if the sublessor were the territory planning authority and the sublease were a Crown lease; or (b) if a new sublease of only part of the land under the old sublease is granted—the value of the improvements on the part of the land not leased under the new sublease as worked out under the Planning Act 2023, section 362 as if the sublessor were the territory planning authority and the sublease were a Crown (3) Subsection (4) applies if— (a) a sublease ends; and (b) the sublessee has not given the sublessor at least 6 month’s written notice before the sublease ended, or any shorter period agreed by the sublessee and sublessor, that the sublessee did not intend to apply for a further sublease. (4) The sublessor may deduct the amount of any expenditure reasonably incurred by the sublessor in subleasing the land, or part of the land, under the old sublease to someone else from the amount payable by the sublessor to the sublessee under this section. (5) The sublessor must give the sublessee a notice stating the amount worked out for subsection (2) and subsection (4) (if any) and how the amount is worked out.

(6) In this section: improvement, in relation to land, means a building or structure on or under the land.

88I ACAT review of value of improvements on land under land sublease etc (a) a sublessor is liable to pay an amount under section 88H; and (b) the sublessor gives the sublessee a notice under section 88H (5). (2) The sublessee may apply to the ACAT for review of the amount (the original amount). (3) On application, the ACAT must— (a) make a decision substituting an amount for the original amount; or (b) confirm the original amount.

88J Recovery of land under land sublease if sublessee in unlawful possession (1) This section applies if a person who has been a sublessee under a land sublease remains in possession of the land after— (a) the term of the sublease has ended; or (b) the sublease has been surrendered or ended. (2) The sublessor, by written notice to the person (the unlawful occupier), may demand that the unlawful occupier give possession of the land to the sublessor within a reasonable period stated in the demand.

(3) If a demand is not complied with— (a) the sublessor may apply to the Magistrates Court for an order that possession of the land be given to the sublessor; and (b) the court may issue a warrant authorising a police officer, within 20 working days after the day the warrant is issued, to enter the land with the assistance and by the force that is reasonable, and give possession of the land to the sublessor.

89 Provisions as to leases to apply to subleases The provisions of this Act affecting leases, lessors and lessees shall apply to subleases, sublessors and sublessees with such modifications and exceptions as the difference between a lease and a sublease requires.

90 Determination of lease to determine sublease Subject to section 91A, if a registered lease is determined from any cause, the determination shall determine any sublease thereunder.

91 Covenants to be implied in subleases In addition to the covenants declared by this Act to be implied in every registered lease, there shall be implied in every registered sublease the following covenant with the sublessee by the sublessor, that is to say: That the sublessor will during the term thereby granted pay the rent reserved by, and perform and observe the covenants and agreements contained in, the head lease, and on his or her part to be paid, performed and observed.

91A Surrender of lease not to affect sublease (a) a lease of land under this Act is surrendered by the lessee; and (b) the lessor grants to the lessee a new lease of the land comprised in the surrendered lease; and (c) the lessee has granted, under the surrendered lease, a sublease that is still in force when the lease is surrendered; and (d) the whole of the land comprised in the sublease is within the new (2) The sublease continues in force, unless otherwise terminated, as a sublease under the new lease. (3) The sublessor has the same rights and remedies against the sublessee, and the sublessee has the same rights and remedies against the sublessor, under the sublease as if the lease had not been surrendered. (4) The lessor has the same rights and remedies against the sublessee, by entry onto the land, as the lessor would have had if the surrendered lease had not been surrendered. (5) However, subsection (4) does not confer a right or remedy on the lessor if, or to any extent that, the lessor would not have a similar right or remedy against the sublessee of a sublease of land comprised in the new lease. (6) In this section, a reference to a lessor, lessee, sublessor or sublessee includes a reference to a successor in title to the lessor, lessee, sublessor or sublessee.

Surrender of lease Division 10.2A

91B Surrender of lease not to affect mortgage (a) a lease of land under this Act is surrendered by the lessee; and (b) the lessor grants to the lessee a new lease of the land comprised in the surrendered lease; and (c) the lessee has given a mortgage of the land comprised in the surrendered lease; and (d) the mortgage is still in force when the lease is surrendered. (2) The mortgage continues in force, unless otherwise terminated or discharged, as a mortgage of the land comprised in the new lease. (3) The mortgagor has the same rights and remedies against the mortgagee, and the mortgagee has the same rights and remedies against the mortgagor, under the mortgage as if the lease had not been surrendered. (4) The mortgage is to be read subject to any changes necessary to give effect to subsections (2) and (3). (5) The lessor has the same rights and remedies against the mortgagee, by entry onto the land, as the lessor would have had if the surrendered lease had not been surrendered. (6) However, subsection (5) does not confer a right or remedy on the lessor if, or to any extent that, the lessor would not have a similar right or remedy against the mortgagee of a mortgage of the land comprised in the new lease. (7) In this section, a reference to a lessor, lessee, mortgagor or mortgagee includes a reference to a successor in title to the lessor, lessee, mortgagor or mortgagee.

91C New lease—continuation of interests noted on surrendered lease If a lease is surrendered by the lessee and a new lease of the land comprised in the surrendered lease is granted to the lessee, the following provisions apply to any interest in the land noted on the surrendered lease at the time of the surrender: (a) the interest must be noted on the new lease; (b) unless varied, terminated or discharged, the interest applies to the new lease in the same way as it applied to the surrendered

92 Land—how mortgaged or encumbered (1) Whenever any land or interest in land under this Act is intended to be charged or made security in favour of any mortgagee, the mortgagor may execute a memorandum of mortgage. (2) Whenever any such land or interest is intended to be charged with or made security for the payment of an annuity, rent charge or sum of money in favour of any encumbrancee, the encumbrancer may execute a memorandum of encumbrance. (3) Every such instrument shall contain an accurate statement of the interest intended to be mortgaged or encumbered, and shall for description of the land intended to be dealt with refer to the folio identifier for the land together with a statement of all mortgages and other encumbrances (if any) affecting the land. (4) A memorandum of mortgage or a memorandum of encumbrance, may incorporate by reference, with or without amendment, any or all of the provisions contained a memorandum of provisions.

(5) Where a memorandum of mortgage, or a memorandum of encumbrance— (a) incorporates by reference provisions contained in a memorandum of provisions; or (b) incorporates by reference, with amendment, provisions contained in a memorandum of provisions; those provisions, or those provisions as amended, as the case may be, shall be deemed to be set out at length in the memorandum of mortgage or encumbrance, as the case requires.

92A Mortgage or encumbrance—postponement of priority (1) In this section: mortgage includes an encumbrance, and mortgagee and mortgagor have corresponding meanings. (2) Where— (a) 2 or more memoranda of mortgage on land, or on an interest in land, under this Act have been registered under this Act; and (b) the land charged by each of those mortgages is the same and no other land is charged by any of those mortgages; the relative priorities that those 2 or any 2 or more of those memoranda have by reason of section 48 (6) or of this section may, by memorandum of variation, be varied so that those memoranda shall be entitled in priority the one over the other in the order in which, by the memorandum of variation, they are expressed to have priority. (3) A memorandum of variation referred to in subsection (2) shall be signed in the presence of a witness— (a) by the mortgagee under each of the mortgages the priority of the memorandum of which is to be varied; and

(b) where the assent of the mortgagor is necessary in order to render the variation effective against him or her, by the mortgagor. (4) If— (a) in addition to the memoranda of mortgage the priorities of which are to be varied, there is registered under this Act another memorandum of mortgage charging the whole or any part of the land charged by those memoranda; and (b) that other memorandum of mortgage has priority over 1 or more of those memoranda of mortgage but not over the remaining memorandum or memoranda of mortgage; and (c) it is not intended that the priority that that other memorandum of mortgage has by reason of section 48 (3) or of this section be varied by the memorandum of variation; the memorandum of variation shall also be signed in the presence of a witness by the mortgagee under that other memorandum of (5) After lodgment of a memorandum of variation, the registrar-general shall— (a) register the memorandum of variation; and (b) make such entries in the register as are necessary, in relation to— (i) the memoranda of mortgage the relative priorities of which are to be varied; and (ii) any other memorandum of mortgage of the kind referred to in subsection (4).

(6) After the registration of a memorandum of variation, the memoranda of mortgage the relative priorities of which are affected by the memorandum shall be entitled in priority the one over the other in the order in which, by the memorandum of variation, they are expressed to have priority.

93 Mortgage or encumbrance—effect (1) Any mortgage or encumbrance under this Act shall, have effect as a security but shall not operate as a transfer of the land thereby charged. (2) If default is made in the payment of the principal sum, interest, annuity or rent charge, or any part thereof, secured by the mortgage or encumbrance, or in the observance of any covenant expressed in any memorandum of mortgage or of encumbrance registered under this Act, or that is in this Act declared to be implied in the instrument, and the default is continued for the space of 1 month or for such other period of time as is therein for that purpose expressly limited, the mortgagee or encumbrancee may— (a) give to the mortgagor or encumbrancer notice in writing to pay the money then due or owing on the memorandum of mortgage or of encumbrance, or to observe the covenants therein expressed or implied, as the case may be, and that sale will be effected unless the default be remedied; or (b) leave the notice on the mortgaged or encumbered land or at the usual or last-known place of abode in the ACT of the mortgagor or encumbrancer or other person claiming to be then entitled to the land or with his or her agent in the ACT.

94 Power to sell (1) If the default in payment or in observance of covenants continues for the further period of 1 month after the service of the notice, or for such other period as is in the instrument for that purpose limited, the mortgagee or encumbrancee may sell all the interest of the mortgagor or encumbrancer in the land so mortgaged or encumbered, or any part thereof, and either altogether or in lots by public auction or by private contract, or both those modes of sale, and subject to such conditions as he or she thinks fit, and may buy in and resell the interest without being liable for any loss occasioned thereby, and may make and execute all such instruments and documents as are necessary for effecting the sale thereof. (2) All sales, contracts, matters and things made, done or executed in pursuance of subsection (1) shall be as valid and effectual as if the mortgagor or encumbrancer had made, done or executed them, and the receipt or receipts in writing of the mortgagee or encumbrancee shall be a sufficient discharge to the purchaser of the land or interest, or of any portion thereof, for so much of his or her purchase money as is thereby expressed to be received. (3) No such purchaser shall be answerable for the loss, misapplication or non-application, or be obliged to see to the application, of the purchase money paid by him or her, nor shall he or she be concerned to inquire as to the fact of any default or notice having been made or given as provided in section 93. (4) The purchase money to arise from any sale under this section shall be applied, first, in payment of the expenses occasioned by the sale; second, in payment of the moneys which are owing to the mortgagee or encumbrancee; third, in payment of subsequent mortgages or encumbrances (if any) in the order of their priority; and the surplus (if any) shall be paid to the mortgagor or encumbrancer, as the case may be.

(5) Where a transfer is made in professed exercise of the power of sale conferred by this Act, the title of the transferee shall not be impeachable on the ground that no case has arisen to authorise the sale or that due notice was not given or that the power was otherwise improperly or irregularly exercised, but any person damnified by an unauthorised or improper or irregular exercise of the power shall have his or her remedy in damages against the person exercising the power. (6) A memorandum of transfer executed by a mortgagee or encumbrancee in exercise of the power of sale conferred by this Act shall be accepted by the registrar-general as sufficient evidence that the power has been duly exercised, and he or she shall not be bound or required to call for proof thereof. (7) Where— (a) after the registration under this Act of a mortgage or encumbrance on a parcel of land, there is registered under this Act a notice of a determination made under the Rates and Land Rent (Relief) Act 1970, section 3 in which the parcel of land referred to is the parcel of land subject to the mortgage or encumbrance; and (b) the mortgagee under the mortgage or the encumbrancee under the encumbrance exercises the rights conferred by this section in relation to the land; the notice of the determination shall, for this section, be deemed to be a mortgage of the land referred to in the notice to the Territory having priority according to the date of its registration under this Act and securing the payment to the Territory of an amount equal to the amount for the time being secured by section 108B.

95 Sale by mortgagee—vesting (1) For the purposes of a sale under section 94, the registrar-general shall register a memorandum of transfer— (a) executed by a mortgagee or encumbrancee; and

(b) lodged in registrable form. (2) Where a transfer is registered under subsection (1), the interest of the mortgagor or encumbrancer in the land comprised in the transfer shall pass to and be vested in the transferee, freed and discharged from all liability on account of— (a) the mortgage or encumbrance; or (b) any other mortgage or encumbrance registered after the registration of the interest of the mortgagor or encumbrancer but before the registration of the transfer; or (c) any other mortgage or encumbrance over which the firstmentioned mortgage or encumbrance has priority under a memorandum of variation registered under section 92A. (3) Where— (a) there is a caveat entered in the register in respect of the land comprised in the transfer; and (b) the caveat was entered in the register after the registration of the interest of the mortgagee or encumbrancee, as the case may be; the registrar-general may register the transfer notwithstanding the existence of the caveat and the caveat lapses on registration of the transfer. (4) The registrar-general may remove from the register a caveat that has lapsed under subsection (3).

95A Sale by court order—application by mortgagor etc (1) A mortgagor or encumbrancer of land may apply to the Supreme court for an order that the land be sold. (2) On an application the court may order a sale of the land on any terms as the court considers just.

(3) In particular, the court may make the operation of the order subject to payment into court of a specified sum to meet the expenses of the sale and to secure the performance of the terms. (4) The court may make an order even if a procedure has been taken, or proceedings have been instituted, by any person to foreclose or realise the mortgage or encumbrance or to sell the land. (5) The court may make an order without deciding the priority of mortgages or encumbrances over the land.

96 Default, entry and possession—action for recovery The mortgagee or encumbrancee upon default in payment of the principal sum or any part thereof, or of any interest, annuity or rent charge secured by any mortgage or encumbrance may— (a) enter into possession of the mortgaged or encumbered land by receiving the rents and profits therefor; or (c) bring an action to recover the land, either before or after commencing to take the rents and profits, and either before or after any sale of the land effected under the power of sale given or implied in his or her memorandum of mortgage or of encumbrance; in the same manner in which he or she might have made the entry or brought the action if the principal sum or annuity were secured to him or her by a conveyance of the legal estate in the land so mortgaged or encumbered.

97 Order for foreclosure on default (1) When default has been made in the payment of the interest or principal sum secured by memorandum of mortgage for 6 months, a registered mortgagee or his or her legal practitioner or attorney in the ACT may make application in writing to the registrar-general for an order for foreclosure.

(2) The application shall state that the default has been so made, and that the land or interest mortgaged has been offered for sale at public auction by a licensed auctioneer, after notice given to the mortgagor, as in this Act provided, and that the amount of the highest bid at the sale was not sufficient to satisfy the money secured by the mortgage, together with the expenses occasioned by the sale, and that notice in writing of the intention of the mortgagee to make the application has been given to the mortgagor by leaving the notice at his or her usual or last-known place of abode, if that place is within 5km of the residence of the mortgagee, or by forwarding the notice by registered letter through the post office, if that place is beyond that distance. (3) The application shall be accompanied by a certificate of the auctioneer by whom the land was put up for sale, and such other proof of the matters stated by the applicant, as the registrar-general requires. (4) The statements made in the application shall be verified by the oath or statement of the applicant or other person applying on his or her behalf. Note It is an offence to make a false or misleading statement, give false or misleading information or produce a false or misleading document (see Criminal Code, pt 3.4).

98 Application—how made effective (1) The registrar-general may prepare a notice offering the land for sale, and shall limit and appoint a time, not less than 1 month from the date of notification of the offer under the Legislation Act 2001, upon or after which the registrar-general may issue to the applicant an order for foreclosure, unless in the interval a sufficient amount has been realised by the sale of the land to satisfy the principal and interest moneys due, and all expenses occasioned by the sale. (2) An offer under subsection (1) is a notifiable instrument.

(3) The registrar-general must also give additional public notice of the offer. newspaper circulating in the ACT (see Legislation Act, dict, pt 1). The requirement in s (3) is in addition to the requirement for notification on the legislation register as a notifiable instrument. (4) Every such order for foreclosure entered in the register shall have the effect of vesting in the mortgagee all the estate and interest of the mortgagor in the land mentioned in the order free from all right and equity of redemption on the part of the mortgagor or of any person claiming through or under him or her.

99 Mortgagee to receive rent (1) Whenever a mortgagee or encumbrancee gives notice of his or her demanding to enter into receipt of the rents and profits of the mortgaged or encumbered land to the tenant or occupier or other person liable to pay or account for the rents and profits thereof, all the powers and remedies of the mortgagor or encumbrancer in regard to receipt and recovery of, and giving discharges for, the rents and profits, shall be suspended and transferred to the mortgagee or encumbrancee until the notice is withdrawn, or the mortgagee or encumbrancee is satisfied, and a discharge thereof duly registered. (2) In every such case, the receipt in writing of the mortgagee or encumbrancee shall be a sufficient discharge for any rents and profits therein expressed to be received, and no person paying the rents and profits shall be bound to inquire concerning any default or other circumstance affecting the right of the person giving the notice beyond the fact of his or her being duly registered as mortgagee or encumbrancee of the land.

(3) Nothing herein contained shall interfere with the effect of any rule, order or judgment of the court in regard to the payment of rent under the special circumstances of any case, or prejudice any remedy of the mortgagor or encumbrancer against the mortgagee or encumbrancee for wrongful entry or for an account.

100 Mortgagee of leasehold entering into possession liable to lessor Any mortgagee or encumbrancee of leasehold land under this Act, or any person claiming the land as a purchaser or otherwise from or under the mortgagee or encumbrancee after entering into possession of the land or the rents and profits thereof shall, during the possession and to the extent of any rents and profits which may be received by him or her, become and be subject and liable to the lessor of the land or the person for the time being entitled to the lessor’s interest in the land to the same extent as the lessee or tenant was subject to and liable for prior to the mortgagee, encumbrancee or other person entering into possession of the land or the rents and profits thereof.

100A Right of Territory if determination revoked and amount secured not paid (1) Where— (a) a determination under the Rates and Land Rent (Relief) Act 1970, section 3 has been revoked under that Act, section 9, 12 or 13; (b) the amount of the payment of which is secured by section 108B has not been paid in full to the Territory; and

(c) a memorandum of discharge under the Rates and Land Rent (Relief) Act 1970 has not been presented to the registrar-general for registration under this Act; the Territory shall be deemed to have, on and after the date on which default has been made in the payment of the whole or part of the amount referred to in paragraph (b), the rights that it would have had under sections 93 (2), 94, 96, 97, 99 and 100 if— (d) the notice of the determination had been a mortgage by the registered proprietor of the land referred to in the notice securing the payment to the Territory of the amount referred to in paragraph (b) and registered on the date of registration of the notice; and (e) the amount were the principal sum secured by the mortgage; and (f) the default in the payment of the whole or part of the amount referred to in paragraph (b) were default in the payment of the principal sum or part of the principal sum secured by the (2) Sections 93 (2) and 94 to 100 apply to and in relation to the exercise by the Territory of the rights that it is to be deemed to have under subsection (1) to the same extent and in the same manner as if the Territory were the mortgagee under a mortgage referred to in subsection (1) (d). (3) For subsection (1), default shall be deemed to have been made in the payment of— (a) the whole of the amount referred to in subsection (1) (b) if an amount equal to that amount has not been paid to the Territory within 1 month after the date on which such an amount has become payable under the Rates and Land Rent (Relief) Act 1970, section 15 (1); and

(b) part of the amount referred to in subsection (1) (b) if an amount equal to that part has not been paid to the Territory within 1 month after the date on which such an amount has become payable to the Territory under that Act, section 15 (2) or (3).

101 Discharge of mortgages and encumbrances (1) The registrar-general may, on lodgment of a discharge of mortgage or encumbrance, register a discharge of the mortgage or encumbrance to the extent specified in the discharge instrument. (2) The discharge of mortgage or encumbrance may discharge the debt or annuity secured in relation to— (a) 1 or more parcels of land; or (b) 1 or more of the mortgagors or encumbrancers, as the case requires; or (c) 1 or more of the mortgagees or encumbrancees, as the case requires. (3) On registration of the discharge of mortgage or encumbrance, the mortgage or encumbrance, as the case requires, is discharged to the extent specified in the discharge instrument.

101A Variation of mortgages (1) A registered mortgage may be varied by registration of a memorandum of variation of mortgage. (2) The memorandum shall be signed in the presence of a witness by each of the parties to the mortgage.

(3) Upon production of a memorandum referred to in subsection (2), the registrar-general shall make such entries in the register as are necessary. (4) The memorandum shall, when registered under this Act, operate so as to vary the mortgage in the manner specified in the memorandum. (5) This section applies to a mortgage made before or after the commencement of this section.

102 Entry of satisfaction of annuity (1) Upon proof of the death of the annuitant, or of the occurrence of the event or circumstance upon which, in accordance with any memorandum of encumbrance, the annuity or sum of money thereby secured ceases to be payable, and upon proof that all arrears of the annuity and interest or money have been paid, satisfied or discharged, the registrar-general shall make an entry in the register noting that the annuity or sum of money is satisfied or discharged, and shall cancel the instrument. (2) Upon the entry being made, the land or interest shall cease to be subject to, or liable for, the annuity or sum of money.

103 Facilitation of redemption in case of absent or unknown mortgagees (1) When any person entitled to receive payment of any money secured by memorandum of mortgage is out of the jurisdiction, cannot be found, or is unknown, or it is uncertain who is so entitled, the court, upon the application of the person entitled to redeem the mortgaged premises, may order the amount of the debt to be ascertained in such manner as the court thinks fit, and direct the amount so ascertained to be paid into court.

(2) The court shall order the amount so paid into court to be paid to the person entitled, upon the application of that person, and on proof that the memorandum of mortgage and all deeds or documents evidencing title which were delivered by the mortgagor to the mortgagee on executing the memorandum of mortgage, or in connection therewith, have been delivered up to the person by whom the amount was so paid into court, or his or her executors, executrices, administrators, administratrices or assigns, or have been otherwise satisfactorily accounted for. (3) Upon production to the registrar-general of the certificate of a registrar of the court that the payment was directed as provided in subsection (1) and has been made— (a) he or she shall make such entries in the register as are necessary; and (b) the entry shall be a discharge of the land from the mortgage: Provided that as between the mortgagor and the person entitled to receive payment, any amount which is eventually shown by the person entitled to the mortgage debt to have been in fact due or payable over and above the amount so paid, shall continue to be a speciality debt due under the mortgage.

103A Registration of memoranda of provisions (1) A person may present for registration a memorandum containing provisions that are to be incorporated by reference in— (a) leases or subleases that are to be prepared or executed by the person; or (b) memoranda of mortgage that are to be prepared or executed by the person; or

Easements and other incorporeal rights Division 10.3B (c) memoranda of encumbrance that are to be prepared or executed by the person. (2) A memorandum referred to in subsection (1) shall be signed by the person for whom it is lodged or by his or her legal practitioner. (3) The registrar-general shall, upon presentation to him or her of a memorandum that is in registrable form, register the memorandum.

Division 10.3B Easements and other incorporeal rights

103B Easements—registration (1) Where a memorandum of easement has been lodged in registrable form, the registrar-general shall register the easement and enter in the register— (a) particulars of the land that is benefited by the easement or of the person in whose favour it is registered; and (b) particulars of the land that is burdened by the easement; and (c) such other particulars as the registrar-general considers necessary. (2) An easement may be limited wholly or partly in height or depth, or both.

103C Easements in gross—registration, transfer and extinguishment (1) The registrar-general may register an easement in gross, being an easement that does not benefit any land and is registered in favour of 1 of the following: (a) the Territory or a body corporate established by or under a Territory law;

(b) the Commonwealth or a body corporate established by or under a Commonwealth law; (c) a State or another Territory or a body corporate established by or under a law of the State or other Territory; (d) a person who is providing a public utility service in the ACT. (2) Where the business of providing a public utility service is transferred, the registrar-general may, on application by the transferee, register the transfer of the benefit of any public utility easement in respect of that business or all such easements, to the transferee. (3) Where— (a) a public utility easement is registered in favour of a person or body; and (b) the person or body ceases to provide the public utility service for the purposes of which the easement was registered; the easement shall— (c) on application by the transferee under subsection (2), be registered in the name of the person or body to whom the business of providing that service is transferred; or (d) where the transfer of the easement has not been so registered within 30 days of the transfer of the business or where there is no such transferee—shall be extinguished. public utility easement, in relation to a business providing a public utility service, means an easement registered in the name of a person or body for the purposes of that business.

Easements and other incorporeal rights Division 10.3B

103D Easements—same owner of benefited and burdened land An easement may be registered even if— (a) the land benefited and the land burdened by the easement have the same registered proprietor; or (b) the registered proprietor of the land benefited by the easement has a registered interest in the land burdened by the easement. 103DA Easements—subdivision of dominant tenement If an easement subsists under the Land Titles (Unit Titles) Act 1970, section 9 for the benefit of units in a units plan, the easement may be registered in relation to the units.

103E Extinguishment of easement (1) A registered easement shall be extinguished— (a) by the registration of a memorandum of extinguishment of easement; or (b) by the surrender of the lease of the land benefited by the easement. (2) Despite subsection (1) (b), a registered easement is not extinguished if, after surrender by the lessee of the lease, a new lease of the land comprised in the surrendered lease is granted to the lessee. (3) On registration of a memorandum of extinguishment of easement, the registrar-general shall make such entries in the register as are necessary to record the extinguishment. (4) A memorandum of extinguishment of easement shall be signed by— (a) the registered proprietor of the land benefited by the easement or the person or body in whose favour the easement is registered; and

(b) each registered mortgagee and lessee (other than a lessee who does not receive a benefit from the easement) of the land benefited by the easement. (5) An easement is not extinguished merely because— (a) the burdened and benefited land in relation to the easement have the same registered proprietor; or (b) the registered proprietor of the land benefited by the easement acquires an interest, or a greater interest, in the land burdened by the easement.

103F Easements—variation (1) Subject to subsection (2), a registered easement may be varied by registration of a memorandum of variation of easement. (2) A registered easement cannot be varied— (a) by changing the location of the easement; or (b) by increasing or decreasing the area of land affected by the easement; or (c) by changing the burdened or benefited land; or (d) if it is an easement registered in accordance with section 103C (1)—by changing the person or body in whose favour the easement is registered. (3) A memorandum of variation of easement shall be signed by— (a) the registered proprietor of the land benefited by the easement or the person or body in whose favour the easement is registered; and (b) each registered mortgagee and lessee (other than a lessee who does not receive a benefit from the easement) of the land benefited by the easement.

103G Incorporeal rights—registration (1) The registrar-general may register a memorandum of incorporeal right that creates an incorporeal right other than an annuity or rent charge. (2) Where the registrar-general registers a memorandum under subsection (1), he or she or she shall enter in the register such particulars of the incorporeal right, and of the land burdened or benefited by the right, as he or she considers necessary.

103H Incorporeal rights—extinguishment (1) The registrar-general may register a memorandum of extinguishment of incorporeal right. (2) On registration of a memorandum of extinguishment of incorporeal right, the registrar-general shall make such entries in the register as are necessary to record the extinguishment and preserve the record.

104 Lodging of caveat (1) A caveat, in relation to land, shall not be entered in the register unless it is lodged by— (a) if the land is to be held by the transferee as trustee—the transferor of the land; or (b) a person claiming an interest in the land or his or her legal practitioner; or (c) where a person claiming an interest in the land so authorises in writing—the agent of that person. (2) Subject to subsections (3) to (5), a caveat may prohibit the registration of any document affecting the land or interest in respect of which it is entered in the register.

(3) A caveat may be restricted in operation by stating— (a) that specified types of documents are not prohibited from registration by the caveat; or (b) that 1 or more of the types of documents referred to in subsection (5) are prohibited from registration by the caveat. (4) A caveat can not prohibit— (a) the registration of a writ or the lapsing, withdrawal, cancellation or removal of a writ; or (b) the registration of a caveat or the lapsing, withdrawal or removal of a caveat; or (c) the registration of an instrument executed by a mortgagee whose interest was registered before lodgment of the caveat; or (d) a correction or alteration of the register by the registrar-general under section 107C (2), 160, 161 or 162A. (5) Unless a caveat states that it prohibits 1 or more of the following types of registration, those registrations are not prohibited: (a) registration of the survivor of joint proprietors under section 55; (b) registration of the vesting of an interest in land under section 68; (c) registration of the resumption and withdrawal of land under section 87B; (d) registration of the discharge of a mortgage or encumbrance under section 101; (e) registration of an easement under section 103B; (f) registration of the extinguishment of an easement under section 103E; (g) registration of the variation of an easement under section 103F; (h) registration of an incorporeal right under section 103G;

(i) registration of the extinguishment of an incorporeal right under section 103H; (j) registration of a transmission by bankruptcy or insolvency under section 132; (k) registration of a transmission by death to an executor, executrix, administrator or administratrix under section 135; (l) registration of new or additional trustees under section 138A; (m) registration of a declaration by an executor or executrix under section 138B; (n) registration of an instrument executed by a lessor whose interest was registered before the caveat if the lessor has power under the lease to execute the instrument. (6) Every such caveat shall state the name and address of the caveator, and shall contain a sufficient description to identify the land and the interest therein claimed by the caveator, and, except in case of caveats lodged by order of the court or by the registrar-general, as in this Act provided, shall be signed by the caveator or by his or her legal practitioner or agent in the ACT. (7) No such caveat shall be received unless some address or place within the ACT is specified in the caveat as the address for service of notices and proceedings relating to the caveat. (8) In this section:

104A Entering caveat in register (1) The registrar-general shall enter in the register a caveat that— (a) does not require a material correction, alteration or addition; and

(b) otherwise complies on its face with the requirements of this Act. (2) Other than for the purpose of determining that a caveat complies with subsection (1), the registrar-general is not required to determine the validity of the caveator’s claim.

104B Withdrawal of caveats A caveat may be withdrawn— (a) by the caveator or his or her legal practitioner; or (b) where the caveator so authorises in writing—by the agent of the caveator; or (c) where the interest claimed in the caveat was, in the caveat, claimed to be held by 2 or more caveators as joint tenants and 1 of those caveators is dead—by the surviving caveator or caveators, as the case requires; or (d) where the caveator is dead and paragraph (c) does not apply— by the executor or executrix of the will, or the administrator or administratrix of the estate, of the caveator; or (e) where the interest claimed in the caveat has vested, pursuant to a law in force in the ACT relating to bankruptcy, in the official trustee in bankruptcy, in a trustee or in any other person—by the official trustee in bankruptcy, that trustee or that other person, as the case requires.

105 Notice of caveat (1) Upon the receipt of a caveat, the registrar-general shall notify the receipt to the person against whose application to be registered as proprietor, or, as the case may be, to the registered proprietor against whose title to deal with land under this Act the caveat has been lodged.

(2) A person who— (a) is an applicant or registered proprietor referred to in subsection (1); (b) has a registered interest in the land; or (c) has an interest in the land under a memorandum of transfer or other instrument registrable under this Act; may apply to the court, on notice to the caveator, for an order that the caveat be removed. (3) The court or judge, upon proof that the caveator has been given notice of the application for the order, may make such order in relation to the land, either ex parte or otherwise, as to the court or judge seems fit.

105A Surrender and regrant of lease of land affected by caveat (1) This section applies, subject to any order of the court, if— (a) a caveat has been registered in relation to land; and (b) the caveat has not lapsed or been removed; and (c) the lease of the land is surrendered by the lessee and a new lease of the land comprised in the surrendered lease is granted to the lessee. (2) The operation or effect of the caveat is not affected by the surrender of the lease and the grant of the new lease. (3) If the registrar–general makes a record in the register of the grant of the new lease, the registrar-general must also make a record of the caveat in relation to the new lease.

106 Caveat lapsing (1) Except in the case of a caveat lodged— (a) by a settlor; or (b) by or on behalf of a beneficiary claiming under a will or settlement; or (c) by the registrar-general; a caveat lodged against a registered proprietor shall, unless the court otherwise orders, lapse 14 days after the date of a notice to the caveator that application has been made for the registration of a document in respect of the land or interest to which the caveat relates. (2) On the registration of the document, in respect of which the notice referred in subsection (1) has been given, the lapsed caveat shall be deemed to be reinstated. (3) Subsection (2) applies even though the lease of land to which the caveat related has been surrendered by the lessee, if a new lease of the land comprised in the surrendered lease is granted to the lessee.

107 Removal of caveat (1) A registered proprietor to whose interest in land a caveat relates may apply to the registrar-general to have the caveat removed. (2) On receipt of an application under subsection (1), the registrar-general shall— (a) give notice of the application to the caveator; and (b) not less than 14 days from the date of service of the notice, remove the caveat from the register, unless the court otherwise orders.

(3) If the registrar-general believes on reasonable grounds that the caveator’s interest has been extinguished by the transfer of the whole of the registered proprietor’s interest to another person, the (a) give notice to the caveator that he or she believes that the caveator’s interest has been extinguished and that he or she intends to remove the caveat from the register; and (b) not less than 14 days from the date of service of the notice, remove the caveat from the register, unless within that time— (i) the caveator shows to the satisfaction of the registrar-general that his or her interest has not been extinguished; or (ii) the court otherwise orders.

107A Effect on dealings (1) While a caveat remains in force prohibiting the registration of a document, the registrar-general shall not register the document, (a) the court otherwise orders; or (b) the caveator consents in writing to the registration of that document. (2) Subsection (1) does not operate to prohibit the registration of a document lodged in registrable form before the caveat was lodged.

107B Removal of caveat by registrar-general Where the registrar-general is satisfied that a caveator has acquired, by registration of a memorandum of transfer or other document, the whole of the land or interest in respect of which the caveat is lodged, the registrar-general may remove the caveat from the register, unless the court otherwise orders.

107C Successive caveats (1) Where a caveat has been removed by the registrar-general in accordance with section 107 (2), the registrar-general shall not enter on the register any subsequent caveat affecting the same land or interest by the same person, or for the same purpose, except by order of the court. (2) Where a subsequent caveat of the kind referred to in subsection (1) has been entered on the register, other than by order of the court, the (a) give notice to the caveator that the caveat will be removed; and (b) not less than 14 days after the date of service of the notice, remove the caveat from the register, unless the court otherwise orders.

108 Compensation for lodging caveat without reasonable cause Any person lodging any caveat with the registrar-general without reasonable cause shall be liable to make to any person who has sustained damage thereby such compensation as is just, and the compensation shall be recoverable in an action at law by the person who has sustained damage from the person who lodged the caveat.

Determinations under Rates and Land Rent (Relief) Act 1970 Division 10.5 Division 10.5 Determinations under Rates and Land Rent (Relief) Act 1970

108A Certain documents under Rates and Land Rent (Relief) Act 1970 to be instruments affecting land (1) Subject to subsection (2), a notice of a determination made under the Rates and Land Rent (Relief) Act 1970, section 3, and a memorandum of discharge under that Act, section 18, shall, on being presented to the registrar-general for registration under this Act each be deemed to be, for this Act, an instrument affecting the land referred to in the notice. (2) Section 67 does not apply to or in relation to a notice or memorandum referred to in subsection (1).

108B Effect of registration of determination A notice of a determination made under the Rates and Land Rent (Relief) Act 1970, section 3 shall, when registered under this Act, have effect as a charge securing the payment to the Territory of an amount equal to the amount for which the person to whom the determination relates becomes, whilst the determination remains in force, indebted to the Territory under that Act and the payment to the Territory of interest payable under that Act, section 4 (3) or 16, or both.

108C Registration of memorandum of discharge Upon the production to the registrar-general of a memorandum of discharge under the Rates and Land Rent (Relief) Act 1970, the registrar-general shall— (a) register the memorandum; and (b) make an entry in the register noting that the charge created by the registration of the notice of the determination referred to in the memorandum is discharged.

Part 11 Implied covenants and short forms of covenants

109 Effect of covenant (1) A covenant whether expressly contained in any instrument or implied therein under this Act shall be deemed to be made with the covenantee, his or her heirs, executors, executrices, administrators, administratrices and assigns, and shall have effect accordingly. (2) A covenant whether express or implied under this Act made with 2 or more jointly to pay money or to do any other act to them or for their benefit shall be deemed to include, and shall by virtue of this Act imply, an obligation to do the act to or for the benefit of the survivor or survivors of them and to or for the benefit of any other person to whom the right to sue on the covenant devolves. (3) This section applies only if and as far as a contrary intention is not expressed in the instrument and shall have effect subject to the instrument.

110 Covenants by person with self and another or others A covenant mentioned in section 109 made by a person with himself or herself and another or others shall be construed and be capable of being enforced in like manner as if the covenant had been made with the other or others.

111 Implied covenants to be joint and several Where a covenant is implied under this Act and more persons than 1 are covenantors such covenant shall be deemed to bind the covenantors and any 2 or greater number of them jointly and each of them severally.

112 Implied covenants may be modified or negatived (1) Every covenant and power to be implied in any instrument by virtue of this Act may be negatived, varied or extended by express declaration in the instrument or endorsed thereon. (2) Any such covenant or power so varied or extended shall, so far as may be, operate in the like manner and with all the like incidents, effects and consequences as if the variations or extensions were implied under this Act. (3) In any pleading in an action for a supposed breach of any such covenant, the covenant alleged to be broken may be set forth, and it shall be lawful to allege that the party against whom the action is brought did so covenant precisely in the same manner as if the covenant had been expressed in words in the memorandum of transfer or other instrument, any law or practice to the contrary notwithstanding. (4) Every such implied covenant or power shall have the same force and effect, and may be enforced in the same manner as if it had been set out at length in the instrument.

113 Benefit of implied covenants The benefit of a covenant implied under this Act shall be annexed and incident to, and shall go with, the interest of the implied covenantee, and shall be capable of being enforced by every person in whom that interest is for the whole or any part thereof from time to time vested.

114 Construction of implied covenants and provisions In the construction of a covenant or proviso or other provision implied by virtue of this Act, words importing the singular or plural number or the masculine gender shall be read as also importing the plural or singular number or as extending to females as the case requires.

115 Implied covenants with mortgagees In any memorandum of mortgage and in any memorandum of transfer of mortgage where there are more mortgagees or transferees than 1, any implied covenant with them shall be deemed to be a covenant with them jointly in equity as well as at law, unless the amount secured is expressed to be secured to them in shares or distinct sums, in which latter case the implied covenant with them shall be deemed to be a covenant with each severally in respect of the share or distinct sum secured to him or her.

116 General covenants to be implied in instruments In every instrument creating or transferring any interest in land under this Act there shall be implied a covenant by the party creating or transferring the interest that he or she will do such acts and execute such instruments as, in accordance with this Act, are necessary to give effect to all covenants, conditions and purposes expressly set forth in the instrument, or by this Act declared to be implied against the party in instruments of a like nature.

117 Transferring of land subject to mortgage, encumbrance or charge to indemnify transferor (1) In every instrument, transferring an interest in land under this Act, subject to mortgage or encumbrance, there shall be implied the following covenant by the transferee: That the transferee will pay the interest, or annuity, or rent charge secured by the mortgage or encumbrance after the rate and at the time specified in the instrument creating the mortgage or encumbrance, and will indemnify and keep harmless the transferor from and against the principal sum secured by the instrument, and from and against all liability in respect of any of the covenants therein contained, or by this Act implied on the part of the transferor.

(2) In every instrument transferring an interest in land under this Act subject to a charge securing the payment of an amount to the Territory under section 108B, there shall be implied the following covenant by the transferee: That the transferee will pay to the Territory the amount secured by the charge on the land and will indemnify and keep harmless the transferor against the amount secured by the charge, and from and against all liability in respect of the failure by the transferor to pay the amount secured by the charge within the period of 1 month after the transfer.

118 Covenant implied in mortgage In every memorandum of mortgage there shall be implied against the mortgagor a covenant that he or she will keep all buildings or other improvements erected and made upon the land in as good and substantial repair as they were in at the date of the mortgage, and that the mortgagee may, at all convenient times, until the mortgage is discharged, be at liberty, with or without surveyors or others, to enter into, and upon, the land to view and inspect the state of repair of the buildings and improvements.