Part 21Miscellaneous

Part 21—Miscellaneous 241—Plans and maps (1) Where, in the opinion of the Registrar-General, a plan or map is necessary or desirable for the purpose of registering or recording any dealing with land, he may require the person who has lodged documents in connection with the dealing to lodge an appropriate plan or map. (2) A plan or map lodged with the Registrar-General must comply with his requirements as to— (a) the dimensions of the plan or map; and (b) the scale to which it is drawn; and (c) the information that it includes. (3) The Registrar-General may reject a plan or map that— (a) does not comply with his requirements under this section; or (b) is inaccurate or deficient in any respect. 242—Diagrams of land in certificates of title Every certificate of title for land brought under the provisions of this Act after the passing hereof (except a certificate for a strata lot within the meaning of the Community Titles Act 1996 or a unit within the meaning of the Strata Titles Act 1988) must include a diagram (or have a diagram attached to it), showing the measurements of the land contained therein, such plan to be supplied by the Surveyor-General when practicable without involving any cost to the Government, or shall refer to a plan deposited, or accepted for filing, in the Lands Titles Office showing such measurements. 242A—Cases where measurements not required It shall not be necessary to supply, show, or state the dimensions, measurements, or bearings of any closed road or reserve or any closed part of any road or reserve for any purpose of this Act unless those dimensions, measurements, or bearings shall be required by the Registrar-General to be supplied, shown, or stated, and the Registrar-General may in any other case dispense with the necessity for supplying, showing, or stating any dimensions, measurements, or bearings for the purposes of this Act. 244—Provision for person under disability of infancy or mental incapacity Where any person who (if not under disability) might have made any application, given any consent, done any act, or been party to any proceedings under this Act, is an infant or mentally incapacitated person, the guardian or the administrator or committee of the estate of such person may make such applications, give such consent, do such acts, and be party to such proceedings as such person himself, if free from disability, might have made, given, done, or been party to, and shall otherwise represent such person for the purposes of this Act. 245—Court may appoint guardian The Court may appoint a guardian of an infant for the purposes of this Act. 246—Unregistered instruments to confer claim to registration Every instrument signed or executed by a registered proprietor, or by any person claiming through or under a registered proprietor, purporting to pass an estate or interest in land for the registration of which estate or interest provision is made in this Act shall, until registered, be deemed to confer upon the person intended to take under such instrument, or any person claiming through or under him or her, a right or claim to the registration of such estate or interest. The Registrar-General, upon application for such registration by any person other than the person immediately claiming from a registered proprietor, may reject the same altogether or may register the applicant as proprietor of the estate or interest, either forthwith or at the expiration of some defined period of time, and may direct such other entries to be made in the Register Book, and such advertisements to be published, as the Registrar‑General considers necessary. 247—Informal documents may be registered The Registrar-General may, in the event of great loss or inconvenience being likely to arise, register any document signed or executed by a registered proprietor, or by any person claiming through or under a registered proprietor, notwithstanding that such document be not in any of the forms prescribed by this Act, nor otherwise in accordance with the provisions hereof: Provided that such document purports to create an estate or interest in land for the registration of which estate or interest provision is made in this Act, and would in equity, apart from the provisions of this Act, be regarded as vesting such estate or interest in the person intended to take under such document. The Registrar-General, upon application for such registration, may reject the same altogether, or may proceed as directed in the last preceding section. 248—Memorial to be entered On registering any such applicant, as mentioned in the two last preceding sections, the Registrar-General shall, so far as possible, enter the like memorial of every document or instrument produced by the applicant in the same manner as if such document or instrument had been presented for registration in its proper order of time: Provided that no such registration shall be made if it would interfere with the right of any person claiming under any instrument previously registered under this Act. 249—Equities not abolished (1) Nothing contained in this Act shall affect the jurisdiction of the Courts of law and equity in cases of actual fraud or over contracts or agreements for the sale or other disposition of land or over equities generally. (2) And the intention of this Act is that, notwithstanding the provisions herein contained for preventing the particulars of any trusts being entered in the Register Book, and without prejudice to the powers of disposition or other powers conferred by this Act on proprietors of land, all contracts and other rights arising from unregistered transactions may be enforced against such proprietors in respect of their estate and interest therein, in the same manner as such contracts or rights may be enforced against proprietors in respect of land not under the provisions of this Act: Provided that no unregistered estate, interest, contract, or agreement shall prevail against the title of any bona fide subsequent transferee, mortgagee, lessee, or encumbrancee, for valuable consideration, duly registered under this Act. 250—Lis pendens not to be registered No lis pendens affecting lands under the provisions of this Act shall hereafter be registered. 251—No title by adverse possession Except as provided in Part 7A of this Act, no person shall acquire any right or title to land under the provisions of this Act by any length of adverse possession, nor shall the right of the registered proprietor to recover possession of any such land be barred by any length of adverse possession. 252—Corporations and district councils to furnish Registrar-General with plans of new streets etc So often as any new street or road shall become vested in any Corporation or District Council by any means other than in pursuance of an order for opening the same the Corporation or Council affected shall immediately furnish the Registrar-General with a map or plan showing particulars of the new street or road so having become vested as aforesaid. 253—Surveyor-General to furnish Registrar-General with particulars of orders confirming opening of new roads etc Whenever an order for opening a new road or closing an old road, or for the exchange of any water or other reserve, through or affecting land under the provisions of this Act shall have been duly confirmed, the Surveyor-General shall forthwith after such confirmation forward to the Registrar-General particulars of the date of such confirmation, and of the width, length, bearings, and measurements of such road, or of the exact dimensions and position of such reserve, and of the land taken in exchange. 254—Alteration of plans The Registrar-General shall make reference to the particulars so furnished to him or her as aforesaid on any plan deposited which is affected thereby, and shall also make an entry on the certificate in the Register Book, and alter any diagram included in, or attached to, the certificate in accordance with such survey maps, plans or particulars. 255—Confused boundaries (1) A plan of the boundaries of land within a Confused Boundary Area that is lodged in the Lands Titles Registration Office under section 51(2) of the Survey Act 1992 must be accompanied by an application in a form approved by the Registrar-General. (2) The Registrar-General must, on the lodging of a plan referred to in subsection (1), examine the plan as if it were a plan lodged under this Act. (3) The Registrar-General may deposit a plan in the Lands Titles Registration Office pursuant to section 51 of the Survey Act 1992 without the consent of a person who appears from the Register Book to have or to claim an estate or interest in land affected by the plan. (4) On the deposit of a plan referred to in subsection (3)— (a) the boundaries of land affected by the plan are by force of this subsection altered to the extent necessary to give effect to the plan; and (b) the Registrar-General may amend the certificate of title, or may issue a new certificate of title, without the production of any other instrument and without the consent of a person who appears to have or to claim an estate or interest in the land, and may amend any other relevant instrument or record. (6) An amendment made to a certificate of title under this section will be taken to have been made prior to the registration or recording of any instrument registered or recorded on the certificate. 258—Reference to Real Property Acts Where, in any Act now in force, reference is made to the Real Property Acts, or any of them, such reference shall be deemed to extend to this Act. 259—General powers of Court not affected Any special jurisdiction by this Act given to the Court shall not prejudice or take away the ordinary jurisdiction of the Court. 260—Valuable consideration may be proved by prior instruments Whenever in any action or other proceeding affecting the title to any land, it shall become necessary to determine the fact whether any person is a purchaser, transferee, mortgagee, encumbrancee, or lessee, for valuable consideration or not, any party to such action or other proceeding may give in evidence any transfer, mortgage, encumbrance, lease or other instrument affecting the title to such land, although the same may not be referred to in the certificate or may have been cancelled by the Registrar-General. 261—General covenants to be implied in instruments In every instrument charging, creating, or transferring any estate or interest in land, there shall be implied the following covenant by the party charging, creating, or transferring such estate or interest, with the party in whose favour such estate or interest is charged or created, or to whom the same is transferred, and his executors, administrators, and transferees, that is to say—That he, the covenanting party, will do such acts and execute such instruments as in accordance with the provisions of this Act may be necessary to give effect to all covenants, conditions, and purposes expressly set forth in such instrument, or by this Act declared to be implied against such party in instruments of a like nature. 262—Implied powers and covenants may be modified or negatived Every covenant and power by this Act implied in any instrument may be negatived or modified by express declaration contained in or endorsed on the instrument. 263—In action for breach, party may be proceeded against as if he had covenanted in express words In any action for a breach of any such covenant, it shall be lawful to allege that the party against whom such action is brought did covenant precisely in the same manner as if such implied covenant, with or without modification, as the case may be, had been expressed in words in such instrument, any law or practice to the contrary notwithstanding; and every such implied covenant shall have the same force and effect and be enforced in the same manner as if it had been set out at length in such instrument. 264—Implied covenants to be joint and several Where any covenants are by this Act implied against two or more persons, such implied covenants shall be construed to be joint and several. 265—Short forms of covenants in mortgages and leases Where in any mortgage or encumbrance the short form of covenant given in Schedule 16 hereto and numbered 1, or where in any lease any of the other short forms of covenant given in such Schedule shall be used, the covenant set opposite such short form in the said Schedule shall be implied in such mortgage, encumbrance, or lease as fully and effectually as if set out at length therein: Provided that the parties to any such instrument may by express words add to or modify any such short form, in which case the same shall imply the covenant as set out at length, with the addition or modification so expressed. 266—Short form for expressing exception of mines and minerals Whenever, in any application or instrument under this Act, the following words shall be used "Except and always reserved to                      all coals, seams of coals, mines, minerals, and quarries, but paying reasonable compensation to                     ," they shall be taken to have the same effect, and be construed as if the form of words contained in Schedule 17 hereto had been inserted therein; and the Registrar-General, on issuing a certificate, shall insert the words so used in the application or instrument, and the same shall be as binding and effectual as if he had inserted therein the words at length contained in the said Schedule 17. 267—Witnessing of instruments (1) If a provision of this Act requires the signing of an instrument by or on behalf of a party to the instrument, the signing of the instrument must be witnessed by a person who either knows the person signing the instrument personally or is satisfied as to his or her identity. (2) The witness— (a) must be aged 18 years or over; and (b) must not be a party to the instrument. (3) The witness must sign his or her name as witness and the full name and address of the witness and a telephone number at which he or she can ordinarily be contacted during business hours must be legibly printed under the witness' signature. 268—Improper witnessing If a person signs an instrument as witness but— (a) does not know the person signing the instrument personally and has no reasonable ground on which to be satisfied as to the person's identity; or (b) knows or has reasonable grounds for suspecting that the person signing the instrument— (i) if signing as a party—is not a party to the instrument; or (ii) if signing on behalf of a party—does not have authority to sign on behalf of the party, the witness is guilty of an offence. 270—Execution of instrument by corporation A corporation may execute instruments under the provisions of this Act in any manner permitted by law. 273—Authority to register (1) Subject to subsection (2), the Registrar‑General must not register or record an instrument purporting to deal with or affect land (including an instrument lodged electronically under the Electronic Conveyancing National Law (South Australia)) unless a prescribed person has, on behalf of each person required to execute the instrument under this Act, provided certification in the appropriate form— (a) in relation to compliance with relevant legislation; and (b) that the requirements of this Act in relation to verification of identity, verification of authority and execution of documents have been complied with in respect of the instrument; and (c) that any document relevant to certification of the instrument that is required to be retained under this Act has been so retained; and (d) that there has been compliance with any other requirements prescribed by regulation for the purposes of this section. (1a) Certification under subsection (1) may only be provided by a natural person who has personal knowledge as to the matters to which he or she is certifying. (1b) If the party required to provide certification under subsection (1) is a body corporate that is a mortgagee, the certification may be given by an employee of the body corporate who has personal knowledge as to the matters to which he or she is certifying. (1c) If an instrument is lodged electronically under the Electronic Conveyancing National Law (South Australia), certification required under subsection (1) in respect of the instrument will be taken to be in the appropriate form if it complies with the participation rules. (2) The Registrar‑General may, in his or her discretion, exempt a prescribed person, or classes of instrument prescribed by regulation, from any or all of the certification requirements under subsection (1). (3) The Registrar-General may vary or revoke an exemption under subsection (2). (4) In this section— prescribed person means— (a) a legal practitioner; or (b) a registered conveyancer; or (c) if the applicant is not represented by a legal practitioner or registered conveyancer—the applicant; or (d) if a party to an instrument is not represented by a legal practitioner or registered conveyancer—that party; or (e) if a provision of this Act requires or permits some other person to provide certification under subsection (1)—that person. 273AA—Proof of authority of unrepresented parties to enter into transaction (1) If a party to an instrument is not represented by a legal practitioner or registered conveyancer, the Registrar‑General must not register or record the instrument in the Register Book or the Register of Crown Leases unless the party has satisfied the Registrar‑General that he or she is authorised to enter into the transaction to which the instrument relates. (2) A party to an instrument who is not represented by a legal practitioner or registered conveyancer referred to in subsection (1) must retain a copy of any document used for the purpose of fulfilling his or her obligations under subsection (1) for the period prescribed by the regulations. (3) In this section— party to an instrument has the same meaning as in section 273A. 273A—Verification of identity requirements (1) The identity of— (a) a party to an instrument; or (b) a person executing a document for the purposes of this Act (other than a legal practitioner or registered conveyancer acting under a client authorisation), must be verified in accordance with any prescribed requirements (the verification of identity requirements). (2) A regulation made for the purposes of prescribing verification of identity requirements under subsection (1) may adopt or apply requirements determined, in writing, by the Registrar‑General, as in force at a particular time or from time to time. (3) If requirements determined by the Registrar‑General are adopted or applied by the regulations— (a) the Registrar‑General must ensure that the following are publicly available on a website maintained by the Registrar‑General and in any other manner the Registrar‑General considers appropriate: (i) the current verification of identity requirements; (ii) all superseded versions of the verification of identity requirements; and (b) if the regulations adopt or apply the requirements as in force from time to time, any new version of the requirements will come into force— (i) on the day on which the version is published on a website maintained by the Registrar‑General; or (ii) on a subsequent day specified by the Registrar‑General in the requirements. (4) The verification of identity requirements may (without limitation)— (a) require verification of identity in relation to all, or specified classes of, instruments or documents; and (b) include a requirement for a person to retain a document or record produced in connection with the verification of another person's identity for a period specified in the requirements. (5) A reference in this Act to the verification of identity requirements, in relation to an instrument or other document, is a reference to the verification of identity requirements in force under this section at the time the identity of a party to the instrument or other document is verified (or purportedly verified). (5a) In civil proceedings (other than review proceedings under this Act) where it is alleged that a person failed to comply with a requirement under the verification of identity requirements, that person bears the onus of proving his or her compliance with the requirement. (6) In this section— party to an instrument includes a person executing an instrument on behalf of another (whether pursuant to a power of attorney or otherwise) but does not include a legal practitioner or registered conveyancer acting under a client authorisation. 273B—Verification of authority guidelines (1) The Registrar-General may issue guidelines (the verification of authority guidelines) to be observed by a party to a transaction, or the legal practitioner or registered conveyancer representing a party to a transaction, where the party, practitioner or conveyancer is required under this Act to verify his or her authority, or the authority of a party to the transaction, to enter into the transaction or to execute an instrument or document in connection with the transaction. (2) The Registrar-General may from time to time cancel, vary or replace the verification of authority guidelines. (3) The Registrar-General must ensure that current and superseded versions of the verification of authority guidelines are publicly available on a website maintained by the Registrar‑General and in any other manner the Registrar‑General considers appropriate. (4) A reference in this Act to the verification of authority guidelines, in relation to an instrument or other document, is a reference to the verification of authority guidelines in force under this section at the time the authority of a party to enter into a transaction is verified (or purportedly verified). 274—Solicitors and conveyancers to be generally entitled to recover fees for work done under this Act (1) Except as allowed by statute, no person other than a solicitor or registered conveyancer shall be entitled to sue for or receive any fees, costs, or charges for work done in reference to applications, transfers, or other dealings relating to land, nor to any right of set-off in respect of any such fees, costs, or charges, nor to any lien or right to retain any deed, paper, or writing which shall have come into his possession in reference to any such work. (2) Where a requisition is made by the Registrar-General in respect of an instrument under this Act on the ground that there is an error in, or omission from, the instrument, and the error or omission arose through the fault of a solicitor or registered conveyancer, the solicitor or registered conveyancer shall not charge or recover any fees or costs for work done in relation to complying with the requisition. (3) Where a person considers that a solicitor or registered conveyancer has, in contravention of subsection (2), charged any fees or costs for work done in relation to complying with a requisition, he may request a Master of the Supreme Court to tax the account of the solicitor or registered conveyancer in order to ascertain whether such fees or costs have been charged. 275—Forms in Schedules Whenever a form in any Schedule hereto is directed to be used, such direction shall apply equally to any form to the like effect for a similar purpose authorised in conformity with the provisions of this Act; and any variation from such forms, not being in matter of substance, shall not affect their validity or regularity; but they may be used with such alterations as the character of the parties or the circumstances of the case may render necessary. 276—Service of notices Where this Act makes no provision for the manner in which a notice is to be served on or given to any person the notice may— (a) be served personally or by registered post; or (b) be served by publication of the notice in a manner directed by the Registrar‑General. 276A—Evidence of instruments lodged electronically (1) A document certified by the Registrar‑General that reproduces the contents of an instrument lodged electronically under this Act or the Electronic Conveyancing National Law (South Australia) (whether in its registered or recorded form or in some other form) must be accepted in legal proceedings as evidence of that instrument. (2) A document referred to in subsection (1) that purports to have been certified by the Registrar‑General must be taken in legal proceedings, in the absence of proof to the contrary, to have been so certified. 277—Regulations (1) The Governor may make such regulations as are contemplated by this Act or as are necessary or convenient for the purposes of this Act. (2) Without limiting the generality of subsection (1), the regulations may— (a) provide that a document or record required to be produced or retained by a person under this Act must be retained by the person for a particular period; and (b) prescribe, and provide for the payment, recovery, waiver, reduction or refund of, fees and charges payable for or in respect of the following: (i) the doing of an act or thing under this Act or the Electronic Conveyancing National Law (South Australia); (ii) doing an act or thing in respect of the Register Book or the Register of Crown Leases required under any other Act; (iii) searching— (A) the Register Book or the Register of Crown Leases (whether electronically or in any other manner); or (B) a document deposited or registered in the Lands Titles Registration Office, for information recorded under this or any other Act; (iv) obtaining copies of material searched for under subparagraph (iii); (v) charges recoverable by solicitors and registered conveyancers for transacting business under the provisions of this Act; (vi) the provision of lodgement support services by the Registrar‑General. (3) Fees or charges prescribed under subsection (2) for registering a transfer of land may be based on the consideration for the transfer, the value of the land transferred or any other basis whether or not the fee or charge exceeds the administrative cost of registering the transfer. (3a) An unpaid fee or charge for registering a transfer of land is, until payment, a first charge in respect of the land. (4) A regulation prescribing fees or charges for registering a transfer of land may also provide that the Registrar‑General may— (a) recover an amount (including interest) as a debt if the Registrar‑General determines, having regard to the capital value of land as determined by the Valuer‑General or any other relevant information, that the value of the transferred land at the time of the transfer was higher than the value of the transferred land used as the basis for calculating the fee or charge; or (b) refund an amount if the Registrar‑General determines, having regard to the capital value of land as determined by the Valuer‑General or any other relevant information, that the value of the transferred land at the time of the transfer was lower than the value of the transferred land used as the basis for calculating the fee or charge. (5) Regulations under this Act— (a) may be of general application or limited application; and (b) may make different provision according to the matters or circumstances to which they are expressed to apply; and (c) may exempt, or empower the Registrar‑General to exempt, persons or classes of persons, or instruments or classes of instruments, from the application of this Act or provisions of this Act, absolutely or subject to conditions. (6) The Governor may, by regulation, make provisions of a saving or transitional nature consequent on the amendment of this Act by another Act. (7) A provision of a regulation made under subsection (6) may, if the regulation so provides, take effect from the commencement of the amendment or from a later day. (8) To the extent to which a provision takes effect under subsection (7) from a day earlier than the day of the regulation's publication in the Gazette, the provision does not operate to the disadvantage of a person by— (a) decreasing the person's rights; or (b) imposing liabilities on the person. (9) Without limiting the operation of subsections (6), (7) or (8), the regulations may, for transitional purposes— (a) provide that this Act or specified provisions of this Act will not apply in relation to a particular person or thing, or a class of person or thing, until a specified day; or (b) modify the application of this Act or provisions of this Act in relation to a particular person or thing, or a class of person or thing, until a specified day.