Part 4The bringing of land under the Act

Part 4—The bringing of land under the Act 25—Land in two classes For the purpose of bringing land under the provisions of this Act, it shall be regarded as divided into two classes, as follows: (a) land hereafter alienated in fee from the Crown; (b) land heretofore alienated in fee from the Crown. 26—Land on alienation from Crown to be under Act As to land hereafter alienated in fee from the Crown, the same shall, immediately on alienation, be subject to the provisions of this Act. 27—Lands granted prior to the day on which this Act comes into operation may be brought into operation under this Act As to land heretofore alienated from the Crown in fee but not under the provisions of any of the Real Property Acts (whether such land shall constitute the entire or only part of the land included in any land grant), the same may be brought under the provisions of this Act in the following manner, that is to say—The Registrar-General shall receive applications in the form of Schedule 2 hereto, or in a form to the like effect, if made by any of the following persons, that is to say— (a) by any person claiming to be the person in whom the fee simple is vested either at law or in equity: Provided that wherever trustees, seized in fee simple, have no power to sell the land which they may seek to bring under the provisions of this Act, the persons claiming or appearing to be beneficially entitled to the said land shall consent to such application; (b) by any person having power to appoint or dispose of the fee simple, at law or in equity, in cases where the Registrar-General shall be satisfied that the application is made for the purpose of carrying such power into effect; (c) by any person claiming a life estate, not being a leasehold for a life or lives: Provided that all persons claiming or appearing to be beneficially entitled in reversion or remainder shall join in or consent to such application; (d) the father, or if the father be dead, the mother or other guardian of any infant, or the administrator or committee of the estate of a mentally incapacitated person or the guardian of such a person, may make or consent to an application in the name or on behalf of the infant or mentally incapacitated person; and any person holding a power of attorney authorising the sale of a freehold estate in any land may make the application in respect of such land in the name or on behalf of the proprietor, unless such power shall expressly prohibit his so doing. 28—Undivided shares and mortgaged land may not be brought under Act except upon conditions No such application shall be received from any person claiming to be entitled to an undivided share of any land unless the persons who shall appear to be entitled to the other undivided shares shall join in the application with a view to bringing the entirety under the provisions of this Act; nor from the mortgagor of any land unless the mortgagee shall consent to such application; nor from the mortgagee of any land except in the exercise of or for the purpose of giving effect to a sale under a power of sale contained in the mortgage deed. 29—Provisions as to surrender of documents etc Every applicant shall, when making his application, surrender to the Registrar-General all documents of title in his possession or under his control relating to or in any way affecting the land, and shall furnish a schedule of such documents, and also, if required, an abstract of his title, and shall, in his application, state the nature of his estate or interest in the land, and of every estate or interest therein held by any other person, whether at law or in equity, in possession, reversion, remainder, or expectancy, and give full particulars of every right-of-way or other easement affecting the land of which he is aware, or has had notice, or which he knows to be claimed by any other person, and shall state whether the land be occupied or unoccupied, and if occupied, the name and description of the occupant, and the nature of his occupancy, and whether such occupancy be adverse or otherwise; and shall, when practicable, state the names and addresses of the occupants and proprietors of all lands contiguous to the land in respect of which application is made so far as known to him, and that the schedule so furnished includes all documents of title relating to such land in his possession or under his control, and may, in his application, require the Registrar‑General, at the expense of the applicant, to cause personal notice of the application to be served upon any person whose name and address shall for that purpose be therein stated, and shall give an address to which notices in respect of such application may be sent. 30—Statements to be verified by declaration The statements made in the application shall be verified by the declaration of the applicant or the person acting in his name or on his behalf. 31—Application, how to be dealt with Upon receipt of the application the Registrar-General shall cause the title of the applicant to be examined and reported on by a legal practitioner. 32—Titles in three classes (1) For the purposes of all applications, the titles of applicants shall be divided into three classes as follows: (a) Class I—When applicant is original grantee, and no transactions have been registered when the applicant is the original grantee from the Crown, and the land has been granted on or subsequently to the first day of March, 1842, and no transaction affecting the title has at any time been registered, and the applicant has not required notice of his application to be served personally upon any person; (b) Class II—When applicant is not original grantee, or any transactions have been registered when, although the title does not belong to the first class, the land is held by the applicant for the estate or 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 exists the parties interested therein join in or consent to the application, and the applicant has not required notice of his application to be served personally upon any person; (c) Class III—When evidence of title imperfect when any person beneficially interested in the land otherwise than as lessee, or any person interested in any mortgage or encumbrance affecting the title, is not a party joining in or consenting to the application, or the title or evidence of title set forth by the applicant is imperfect, or the applicant has required notice of his application to be served personally upon any person. (2) If it shall appear to the Registrar-General that the title of the applicant belongs to the first class he shall bring such land under the provisions of this Act forthwith. 33—Procedure under second class If it shall appear to the satisfaction of the Registrar-General that the title of the applicant belongs to the second class, he shall cause notice of the application to be published in the Government Gazette; and shall further limit and appoint a time, not less than one month nor more than twelve months from the date of the publication in the Government Gazette, upon or after the expiration of which he shall, unless he shall in the interval have received a caveat forbidding him so to do, bring the land under the provisions of this Act. 34—Procedure under third class If it shall appear to the satisfaction of the Registrar-General that the title of the applicant belongs to the third class, it shall be lawful for him to reject such application altogether, or in his discretion to cause notice of the application to be served upon all persons other than the applicant, who shall appear to have any interest in the land which is the subject of the application and to be published in the Government Gazette, and in such manner as he may direct; and to limit and appoint a time in his discretion, or as the Court may prescribe, not less than two months nor more than twelve months from the date of the first of such publications in the Government Gazette, upon or after the expiration of which it shall be lawful for the Registrar-General to bring the land under the provisions of this Act, unless he shall in the interval have received a caveat forbidding him so to do. 35—Notice of application to be published The Registrar-General shall cause notice to be published in such manner as aforesaid, or in such other manner as may be prescribed by any order of the Court, that application has been made for bringing the land therein referred to under the provisions of this Act, and shall also cause a copy of such notice to be posted in a conspicuous place in his office, and in such other places as he may deem necessary, and shall forward, by registered or certified post, a copy of such notice addressed to each of the persons, if any, stated in the application to be in occupation of the land, or to be occupiers or proprietors of land contiguous thereto, so far as his knowledge of the addresses of such persons shall enable him, and to such other persons as he may think fit, and in case the applicant shall have required any notice to be personally served upon any person named in his application, then and in such case the Registrar‑General shall cause a copy of such notice to be so served upon such person. 36—Second and third classes brought under this Act If within the time limited and appointed as aforesaid by the Registrar-General, or under any order of the Court, any notice forwarded as aforesaid, shall not be returned to him by the Postmaster-General, and if within the time so limited he shall not have received a caveat, as hereinafter described, forbidding him so to do—and in any case in which personal notice may be required as aforesaid, if he shall have received proof to his satisfaction that such notice has been served, the Registrar-General shall bring the land described in the application under the provisions of this Act. 37—How land to be brought under Act The Registrar-General shall bring land under the provisions of this Act by issuing a certificate for the same to the applicant, or to such person as he or the person applying in his name or on his behalf may by any writing under his hand direct. 38—Action to be taken on return of notices or failure of personal service The Registrar-General, whenever he shall be made aware that any notice required by any applicant to be served personally has failed to be, or cannot be, so served, shall notify the same to such applicant, who, if he think fit, may by writing under his hand, withdraw such requirement, and the Registrar-General thereupon or in case any notice shall be returned to him by the Postmaster-General, may reject the application altogether, or bring the land therein described under the provisions of this Act forthwith, or after such further interval, notification, or advertisement as he may think fit. 39—Caveat against bringing land under Act Any person having or claiming an estate or interest in any land sought to be brought under the provisions of this Act, or the attorney or agent of any such person, may, within the time by the Registrar-General or under any order of the Court for that purpose limited, lodge a caveat in the Lands Titles Registration Office, in the form of Schedule 3 hereto, forbidding the bringing of such land under the provisions of this Act. Every such caveat shall state the nature of the estate or interest claimed by the person lodging the same and the grounds on which such claim is founded, and no caveat shall be received unless some address within South Australia shall be given therein at which notices and proceedings relating to the caveat may be served. 40—If caveat be received within time limited, proceedings stayed The Registrar-General shall, upon receipt of any such caveat, within the time limited as aforesaid give notice thereof to the applicant proprietor, and shall suspend further action in the matter, and the land in respect of which such caveat shall have been lodged shall not be brought under the provisions of this Act until such caveat shall have been withdrawn or shall have lapsed from any of the causes hereinafter provided, or until a decision therein shall have been obtained from the Court having jurisdiction in the matter. 41—Applicant may withdraw his application Any applicant may withdraw his application at any time prior to the issuing of the certificate, and the Registrar-General shall in such case, upon request in writing signed by the applicant, return to him, or to the person, if any, notified in the application as having a lien thereon, all documents of title deposited in support of the application. 42—Documents of title, if they include other property, to be returned to applicant Upon issuing a certificate bringing land under the provisions of this Act the Registrar-General shall endorse a memorandum on every document of title deposited by the applicant in support of his application, stating that the lands described in such certificate have been brought under the Real Property Act. If any such document of title shall relate to or include any property, whether personal or real, other than the land included in the certificate, the Registrar-General shall return such document to the applicant, but otherwise shall retain the same in his office; and no person shall be entitled to the production of any document so retained, except upon the written order of the applicant or of some person claiming through or under him, or upon the order of the Court. 43—Certificate to issue in name of deceased applicant proprietor or his nominee In case an applicant, or the person to whom he or the person applying in his name or on his behalf, may have directed a certificate to be issued, shall die in the interval between the date of the application and the date on which the certificate shall be issued, the certificate shall be issued in the name of the applicant, or in the name of the person to whom it shall have been so directed to be issued as the case may require, and the land shall devolve in like manner as if the certificate had been issued prior to the death of the applicant or of such person. 44—Proceedings under caveat Whenever a caveat shall have been lodged in the Lands Titles Registration Office forbidding land to be brought under the provisions of this Act, the like proceedings as are hereinafter provided for the removal of caveats, in the case of land already under the provisions of this Act, shall be open to the caveatee for removal of the caveat, and for the recovery of costs and damages from the caveator, in case the caveat shall have been lodged by the caveator wrongfully and without reasonable cause. 45—Lapse of caveat Every such caveat shall be deemed to have lapsed after the expiration of 1 month from the day on which the caveat is lodged, unless the person by whom or on whose behalf the same was lodged shall, within that time, have taken proceedings in the Court to establish his or her title to the estate or interest claimed, and give written notice thereof to the Registrar-General, or shall have obtained from the Court an order or injunction restraining the Registrar-General from bringing the land under the provisions of this Act. No such lapsed caveat shall, except with the permission of the Court, be renewed by or on behalf of the same person in respect of the same estate or interest. 46—Reversion expectant on lease not to be extinguished The reversion expectant upon a lease shall not be deemed to have been extinguished in consequence of the land comprised in such lease having been brought under the provisions of this Act, and the registered proprietor of any land which is subject to a lease granted prior to the first certificate being issued in respect of such land, shall be held in all Courts to be seized of the reversion expectant upon such lease, and to have all the powers, rights and remedies to which a reversioner is by law entitled and shall be subject to all covenants and conditions in such lease expressed or implied to be performed on the part of the lessor.