Part I General

1 Short title

This Act may be cited as the Land Titles Act 1980 .

2 Commencement

(1)  This section and section 1 shall commence on the date of assent to this Act.

(2)  Except as provided in subsection (1) , this Act shall commence on such date as may be fixed by proclamation.

3 Interpretation

[Section 3 Subsection (1) amended by No. 29 of 1984, s. 3 and Sched. 1 ][Section 3 Subsection (1) amended by No. 2 of 1987, s. 4 ][Section 3 Subsection (1) amended by No. 11 of 1990, s. 11 and Sched. 1 ][Section 3 Subsection (1) amended by No. 48 of 1990, s. 4 ][Section 3 Subsection (1) amended by No. 68 of 1994, s. 3 and Sched. 1 ]**[Section 3 Subsection (1) amended by No. 21 of 1996, s. 4 ]

(1)  *[Section 3 Subsection (1) amended by No. 46 of 1981, s. 4 ]*In this Act, except in so far as the context or subject matter otherwise indicates or requires –

approved form means a form approved by the Recorder under section 169A ;

Assistant Recorder of Titles means an Assistant Recorder of Titles appointed pursuant to section 4 (3A) ;

assurance fund means the assurance fund referred to in section 150 ;

caveator means the person by whom or on whose behalf a caveat has been lodged;

[Section 3 Subsection (1) amended by No. 4 of 2001, s. 5, Applied:12 Apr 2001]

[Section 3 Subsection (1) amended by No. 4 of 2001, s. 5, Applied:12 Apr 2001] dealing means any document in writing (other than a grant) which is registrable or capable of being made registrable under this Act or in respect of which any recording in the Register is by this or any other Act required or permitted to be made and includes a priority notice, but for the purposes of Part IX does not include a caveat or a withdrawal of a caveat;

Deputy Recorder means the Deputy Recorder of Titles appointed pursuant to section 4 (3) ;

duplicate registered dealing means the duplicate of a registered dealing delivered pursuant to section 48 (6) ;

[Section 3 Subsection (1) amended by No. 36 of 2012, s. 4, Applied:13 Nov 2012] electronic communication has the same meaning as in the Electronic Transactions Act 2000 ;

[Section 3 Subsection (1) amended by No. 36 of 2012, s. 4, Applied:13 Nov 2012] electronic dealing means a dealing that is an electronic communication;

[Section 3 Subsection (1) amended by No. 36 of 2012, s. 4, Applied:13 Nov 2012] encumbrance means any charge on land created for the purpose of securing a current, future or contingent payment of an annuity, rent-charge, or sum of money other than a debt;

encumbrancee means the proprietor of an encumbrance;

encumbrancer means the registered proprietor of land subject to an encumbrance;

forestry right has the meaning assigned to that expression in the Forestry Rights Registration Act 1990 ;

grant means the grant of any land of the Crown;

[Section 3 Subsection (1) amended by No. 36 of 2012, s. 4, Applied:13 Nov 2012] instrument includes any grant, certificate of title, conveyance, assurance, deed, map, plan, survey, will, probate, or exemplification of will or probate, or any other document in writing relating to the disposition, devolution, or acquisition of land or evidencing title to land;

land includes –

(a) messuages, tenements and hereditaments, corporeal and incorporeal, of every kind and description (whatever may be the estate or interest in them), together with all paths, passages, ways, waters, watercourses, liberties, privileges, easements, plantations, gardens, mines, minerals and quarries and all trees and timber on land or lying or being under land; and

(b) any structure which is above land but permanently anchored to, or otherwise kept in place above, the land;

[Section 3 Subsection (1) amended by No. 66 of 2007, Sched. 1, Applied:31 Dec 2008]

[Section 3 Subsection (1) amended by No. 66 of 2007, Sched. 1, Applied:31 Dec 2008] legal practitioner means an Australian legal practitioner;

lessee means the registered proprietor of a lease;

lessor means the registered proprietor of the reversion immediately expectant upon the expiration of a registered lease;

mortgage means any charge on land created merely for securing a debt;

mortgagee means the proprietor of a mortgage;

mortgagor means the registered proprietor of land subject to a mortgage;

[Section 3 Subsection (1) amended by No. 36 of 2012, s. 4, Applied:13 Nov 2012] newspaper does not include a newspaper published solely in electronic form;

[Section 3 Subsection (1) amended by No. 36 of 2012, s. 4, Applied:13 Nov 2012] office copy, in relation to an order, means a copy of the order that is certified by a legal practitioner, a justice or a Commissioner for Declarations to be a true copy of the order;

proclaimed date means the date fixed by proclamation under section 2 (2) ;

proprietor means any person seised or possessed of any estate or interest in land at law or in equity, in possession, in futurity, or in expectancy;

public record means a public record referred to in section 36 ;

qualified title means a folio of the Register on which is recorded a caution in accordance with section 21 (2) ;

Recorder means the Recorder of Titles appointed pursuant to section 4 (1) ;

Register means the register of title referred to in section 33 ;

registered means registered under this Act or any of the Acts specified in Schedule 2 ;

registered land means land which is subject to this Act;

registered proprietor means any person appearing by a folio of the Register, or by any registered dealing, to be the proprietor of any estate or interest in registered land;

repealed Act means the Real Property Act 1862 ;

transfer means the passing of any estate or interest in land under this Act, whether for valuable consideration or otherwise;

transmission means the acquisition of title to, or an interest in, land, consequent on the death, will, intestacy, or bankruptcy of a proprietor.

(2)  [Section 3 Subsection (2) amended by No. 4 of 2001, s. 5, Applied:12 Apr 2001] The describing of any person as owner, proprietor, transferor, transferee, mortgagor, mortgagee, encumbrancer, encumbrancee, lessor, or lessee, or as seised of or having or taking any estate or interest in any land, shall include the executors, administrators, and assigns of that person.

3A Crown to be bound

[Section 3A Inserted by No. 4 of 2001, s. 6, Applied:12 Apr 2001] This Act binds the Crown, not only in right of Tasmania but also, so far as the legislative power of Parliament permits, the Crown in all its other capacities.

Part II Administration

4 Appointment of Recorder, &c.

[Section 4 Substituted by No. 29 of 1984, s. 3 and Sched. 1 ]

(1)  [Section 4 Subsection (1) substituted by No. 5 of 1990, s. 3 and Sched. 1 ][Section 4 Subsection (1) substituted by No. 86 of 2000, Sched. 1, Applied:01 May 2001] The Governor may appoint a State Service officer or State Service employee to be Recorder of Titles, and that officer or employee is to hold that office in conjunction with State Service employment.

(2)  [Section 4 Subsection (2) amended by No. 23 of 2021, s. 21, Applied:01 Jan 2022] *[Section 4 Subsection (2) substituted by No. 2 of 1987, s. 5 ]*A person is not eligible for appointment as Recorder of Titles unless the person is –

(a) a legal practitioner of not less than 5 years' standing; or

(b) [Section 4 Subsection (2) amended by No. 66 of 2007, Sched. 1, Applied:31 Dec 2008] an Australian lawyer who has been a legal practitioner for at least 5 years.

(3)  [Section 4 Subsection (3) substituted by No. 5 of 1990, s. 3 and Sched. 1 ][Section 4 Subsection (3) substituted by No. 86 of 2000, Sched. 1, Applied:01 May 2001] The Governor may appoint a State Service officer or State Service employee to be Deputy Recorder of Titles, and that officer or employee is to hold that office in conjunction with State Service employment.

(3A)  [Section 4 Subsection (3A) inserted by No. 48 of 1990, s. 5 ][Section 4 Subsection (3A) substituted by No. 86 of 2000, Sched. 1, Applied:01 May 2001] The Governor may appoint State Service officers and State Service employees to an office of Assistant Recorder of Titles and officers and employees so appointed are to hold office in conjunction with State Service employment.

(4)  [Section 4 Subsection (4) amended by No. 86 of 2000, Sched. 1, Applied:01 May 2001] [Section 4 Subsection (4) amended by No. 68 of 2000, s. 62, Applied:04 Apr 2001] *[Section 4 Subsection (4) added by No. 5 of 1990, s. 3 and Sched. 1 ]*Subject to and in accordance with the State Service Act 2000 , such persons as may be considered necessary may be appointed or employed for the purposes of this or any other Act.

5 Seal of office

The Recorder shall have and use a seal of office, bearing the impression of the arms of the State, and having inscribed in the margin thereof the words "Recorder of Titles, Tasmania".

6 Powers and immunities of Deputy Recorder, &c.

*[Section 6 Amended by No. 48 of 1990, s. 6 ]*Anything that is by law or practice appointed, authorized, or required to be done by the Recorder may lawfully be done by the Deputy Recorder or a person appointed to the office of Assistant Recorder of Titles who when so doing has the same immunities and protection from suits as the Recorder.

7 Documents purporting to be sealed or signed by Recorder or Deputy Recorder, &c., to be received in evidence

[Section 7 Amended by No. 48 of 1990, s. 7 ][Section 7 Amended by No. 23 of 2021, s. 22, Applied:01 Jan 2022] All documents, whether purporting to be issued or written by or under the direction of the Recorder, and purporting either to be sealed with the Recorder’s seal of office or signed by the Recorder or by the Deputy Recorder or a person appointed to the office of Assistant Recorder of Titles, shall, if admissible, be received in evidence, and shall be deemed to have been issued or written by or under the direction of the Recorder, without further proof, unless the contrary is shown.

8 Facsimile signature of Recorder or Deputy Recorder, &c.

[Section 8 Amended by No. 48 of 1990, s. 8 ][Section 8 Amended by No. 23 of 2021, s. 23, Applied:01 Jan 2022] Whenever it is required or permitted by this or any other Act that the Recorder, the Deputy Recorder or an Assistant Recorder of Titles sign any document, memorial, recording, certificate, endorsement, or plan, the Recorder, Deputy Recorder or an Assistant Recorder may –

(a) [Section 8 Amended by No. 23 of 2021, s. 23, Applied:01 Jan 2022] attach; or

(b) authorize an officer to attach –

a facsimile of the signature of the Recorder, Deputy Recorder or Assistant Recorder of Titles, respectively, to the document, memorial, recording, certificate, endorsement, or plan and the facsimile so attached has the same force and effect as if the Recorder, Deputy Recorder or an Assistant Recorder, as the case may be, had personally signed the Recorder’s, Deputy Recorder’s or Assistant Recorder of Titles’ name in the place of the facsimile signature, and all courts and judges shall take judicial notice of the facsimile signature of the Recorder, Deputy Recorder and Assistant Recorder and shall presume that it was properly attached.

Part III Bringing land under this Act

Division 1 Crown grant

9 Unalienated land, when alienated in fee, to be subject to this Act

Except as provided in section 10 (3) , all unalienated lands of the Crown, when alienated in fee, become subject to this Act.

10 Transfers to be used instead of grant deeds

(1)  *[Section 10 Subsection (1) amended by No. 21 of 1996, s. 19 ]*Except as provided in subsection (3) , land of the Crown that is not under this Act shall not be granted by letters patent but shall be granted by transfer in an approved form as if it had already been brought under this Act.

(2)  The Recorder, upon receiving a transfer under subsection (1) , shall create a folio of the Register for the land comprised in the transfer, and upon a folio being created the transfer shall be deemed to be duly registered, and duly enrolled of record.

(3)  When the Crown grants an easement to be appurtenant only to land that is not registered land, the grant shall be effected by letters patent as if this section had not been enacted.

(4)  Where an easement is granted by letters patent in pursuance of subsection (3) , the letters patent shall be registered under the Registration of Deeds Act 1935 as an instrument and delivered to the grantee.

(5)  On the registration of letters patent as provided in subsection (4) , the letters patent shall be deemed to have been duly enrolled of record.

Division 2 Application

11 Applications to bring land under this Act

(1)  *[Section 11 Subsection (1) amended by No. 21 of 1996, s. 19 ]*Subject to subsection (2) , land may be brought under this Act on the application in writing in an approved form of any of the following persons:

(a) the person claiming to be the owner of the fee simple either at law or in equity;

(b) the person claiming to be entitled to a grant in fee from the Crown of any land under or by virtue of a contract with the Crown (other than a contract under any Act relating to the sale of Crown lands), or in equity and good conscience;

(c) the tenant for life, or person having the powers of a tenant for life, under the Settled Land Act 1884 ;

(d) [Section 11 Subsection (1) amended by No. 33 of 1996, Sched. 1, Applied:01 Sep 1997] the guardian of an infant or the administrator of the estate of a person under the Guardianship and Administration Act 1995 , if –

(i) the infant or patient would have been entitled, if not under disability, to apply under paragraph (a) , paragraph (b) , or paragraph (c) ; and

(ii) the application contains a direction that the infant or patient shall be registered as proprietor;

(e) [Section 11 Subsection (1) amended by No. 36 of 2012, s. 5, Applied:13 Nov 2012] [Section 11 Subsection (1) amended by No. 23 of 2021, s. 24, Applied:01 Jan 2022] a person holding power of attorney authorizing the sale of a freehold estate in the land in the name of the proprietor of that land, unless the power expressly prohibits the person making such an application;

(f) [Section 11 Subsection (1) amended by No. 36 of 2012, s. 5, Applied:13 Nov 2012] the legal practitioner acting for a person referred to in paragraph (a) , (b) , (c) , (d) or (e) .

(2)  An application under this section shall not be made by –

(a) 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 shares of the land joins in the application with a view to bringing the entirety under this Act; or

(b) a tenant for life, or person having the powers of a tenant for life, under the Settled Land Act 1884 unless –

(i) [Section 11 Subsection (2) amended by No. 23 of 2021, s. 24, Applied:01 Jan 2022] the tenant for life, or the person having the powers of a tenant for life, is selling or exchanging the fee simple pursuant to a provision of that Act or the Settled Land Act 1911 and directs that the purchaser or person to whom the fee simple is given in exchange shall be registered as proprietor; or

(ii) in the case of a life tenant in possession –

(A) where there is a vested estate in expectancy in the land (other than an estate vested in an infant), the application contains a direction that the person entitled to that estate shall be registered as proprietor of that estate; or

(B) where there is a vested estate in expectancy in the land to which an infant is entitled, or there is an estate in expectancy in the land capable of taking effect on the happening of a future event, the application contains a direction that the trustee of the settlement under which the estate in expectancy was created shall be registered as proprietor of that estate –

so that upon the granting of the application and compliance with the direction, all the vested estates in the land are brought under this Act.

(3)  [Section 11 Subsection (3) amended by No. 23 of 2021, s. 24, Applied:01 Jan 2022] A person who lodges an application under this section or a mortgagee or other person who has, in the person’s possession or under the person’s control, instruments constituting or in any way affecting the title of the land to which the application relates shall lodge those instruments and also, if required, an abstract of the title to that land with the Recorder.

(4)  A person referred to in subsection (3) shall not lodge with the Recorder any instruments which a purchaser of the land to which the application relates would not be entitled to require pursuant to section 35 of the Conveyancing and Law of Property Act 1884 .

(5)  A chamber in a building standing on land that is not under this Act shall not be brought under this Act separately from the land and building.

12 How application dealt with

(1)  The Recorder may –

(a) [Section 12 Subsection (1) amended by No. 23 of 2021, s. 25, Applied:01 Jan 2022] do or require to be done such things as will, in the opinion of the Recorder, justify the Recorder in bringing the land to which an application under section 11 relates under this Act; and

(b) subject to sections 13 and 14 , bring the land under this Act by creating a folio of the Register for the land.

(2)  [Section 12 Subsection (2) amended by No. 23 of 2021, s. 25, Applied:01 Jan 2022] In considering an application under section 11 in respect of land unalienated in fee from the Crown, the Recorder shall be guided by equity and good conscience and by the best evidence that can or may be procured, even though it is not such as the Recorder might require in other cases.

(3)  [Section 12 Subsection (3) amended by No. 23 of 2021, s. 25, Applied:01 Jan 2022] Where, on considering an application under section 11 , the Recorder is of the opinion that the applicant's title is open to objection but is nevertheless a title the holding under which will not be disturbed, the Recorder may bring the land under this Act with a title other than a qualified title.

(4)  [Section 12 Subsection (4) amended by No. 23 of 2021, s. 25, Applied:01 Jan 2022] Where an application under section 11 by a person claiming a life estate in possession directs that the person entitled to a vested estate in expectancy in the land shall be registered as proprietor of the estate in expectancy, the Recorder may refuse to bring the land to which the application relates under this Act unless the Recorder approves the title to the life estate and the vested estate in expectancy, and brings all the vested estates in the land under this Act.

13 Notices

(1)  [Section 13 Subsection (1) amended by No. 4 of 2001, s. 7, Applied:12 Apr 2001] [Section 13 Subsection (1) substituted by No. 36 of 2012, s. 6, Applied:13 Nov 2012] Where an application under section 11 is based on a claim by possession under a statute of limitations (other than a claim against the Crown), the applicant is to –

(a) [Section 13 Subsection (1) amended by No. 23 of 2021, s. 26, Applied:01 Jan 2022] post on the land, or at such place as the Recorder directs, and keep so posted for not less than 30 days before the granting of the application; and

(b) [Section 13 Subsection (1) amended by No. 23 of 2021, s. 26, Applied:01 Jan 2022] publish, not less than 30 days before the granting of the application, in at least one newspaper that is published, and circulating generally, in Tasmania and that is available in the locality in which the relevant land is situated –

a notice of the application in such form as the Recorder directs.

(2)  [Section 13 Subsection (2) amended by No. 23 of 2021, s. 26, Applied:01 Jan 2022] The Recorder may refuse to bring land under this Act in a case to which subsection (1) applies until it has been proved to the Recorder’s satisfaction that the requirements of that subsection have been complied with.

(3)  [Section 13 Subsection (3) amended by No. 23 of 2021, s. 26, Applied:01 Jan 2022] [Section 13 Subsection (3) amended by No. 4 of 2001, s. 7, Applied:12 Apr 2001] A notice under this section shall specify a time (being not less than 30 days) after the expiration of which the Recorder may, unless a caveat is lodged forbidding it, bring the land under this Act.

14 Caveat forbidding the bringing of land under this Act

(1)  *[Section 14 Subsection (1) amended by No. 21 of 1996, s. 19 ]*A person who claims an estate or interest in land that is the subject of an application under section 11 may, before the creation of a folio of the Register for that land, lodge a caveat with the Recorder in accordance with an approved form forbidding the bringing of the land under this Act.

(2)  [Section 14 Subsection (2) amended by No. 7 of 2023, s. 4, Applied:13 Jun 2023] The Recorder, on the lodgement of a caveat pursuant to subsection (1) , shall notify the person who lodged an application under section 11 in respect of the land and shall not proceed with the application until –

(a) the caveat has been withdrawn or has lapsed as provided in subsection (3) ; or

(b) [Section 14 Subsection (2) amended by No. 36 of 2012, s. 7, Applied:13 Nov 2012] a judgment or order in the matter has been obtained from a court of competent jurisdiction.

(3)  [Section 14 Subsection (3) amended by No. 7 of 2023, s. 4, Applied:13 Jun 2023] On the expiration of 30 days after lodgement, a caveat lodged pursuant to subsection (1) lapses and ceases to have any effect unless the caveator has, within that period –

(a) [Section 14 Subsection (3) amended by No. 23 of 2021, s. 27, Applied:01 Jan 2022] [Section 14 Subsection (3) amended by No. 23 of 2021, s. 27, Applied:01 Jan 2022] commenced proceedings in a court of competent jurisdiction to establish the caveator’s title to the estate or interest specified in the caveat and has given written notice that the caveator has commenced proceedings to the Recorder, in which case the Recorder shall not proceed with the application until those proceedings have been determined; or

(b) [Section 14 Subsection (3) amended by No. 36 of 2012, s. 7, Applied:13 Nov 2012] obtained and served on the Recorder an injunction or order of a court of competent jurisdiction restraining the Recorder from bringing the land under this Act, in which case the Recorder shall not proceed with the application while that injunction or order is in force.

(4)  [Section 14 Subsection (4) substituted by No. 36 of 2012, s. 7, Applied:13 Nov 2012] Unless permitted by a Supreme Court order, a caveat that has lapsed under subsection (3) may not be renewed and a new caveat may not be lodged by or on behalf of the same person in respect of the same estate or interest.

(5)  Section 133 (5) and (6) and section 135 apply to a caveat lodged pursuant to subsection (1) .

15 Withdrawal of application to bring land under Act

[Section 15 Amended by No. 23 of 2021, s. 28, Applied:01 Jan 2022] An applicant may withdraw the applicant’s application to bring land under this Act at any time before the creation of a folio of the Register for that land, and on the withdrawal of the application the Recorder shall return the muniments of title lodged in support of the application to the person from whom the Recorder received them.

Division 3 Completing the Register

16 Appointed day

(1)  The expression appointed day, in relation to a provision of this Division, means such day as the Governor, by order, declares to be the appointed day for the purposes of that provision.

(2)  The Governor may declare different appointed days in respect of the provisions of this Division.

17 Land may be brought under this Act on registration of instruments under the Registration of Deeds Act 1935

[Section 17 Subsection (1) amended by No. 21 of 1996, s. 19 ]

(1)  [Section 17 Subsection (1) amended by No. 36 of 2012, s. 8, Applied:13 Nov 2012] [Section 17 Subsection (1) amended by No. 36 of 2012, s. 8, Applied:13 Nov 2012] *[Section 17 Subsection (1) amended by No. 46 of 1981, s. 5 ]*A person who lodges for registration under the Registration of Deeds Act 1935  –

(a) a conveyance on sale; or

(b) [Section 17 Subsection (1) amended by No. 36 of 2012, s. 8, Applied:13 Nov 2012] a legal mortgage by conveyance of the fee simple; or

(ba) [Section 17 Subsection (1) amended by No. 36 of 2012, s. 8, Applied:13 Nov 2012] any other instrument that affects land –

shall leave with the Recorder, in addition to the documents required by section 12 of that Act  –

(c) [Section 17 Subsection (1) amended by No. 66 of 2007, Sched. 1, Applied:31 Dec 2008] a statement in an approved form signed by the purchaser or mortgagor or by the legal practitioner acting for and on behalf of the purchaser or mortgagor and addressed to the Recorder, which shall state the facts of the ownership of the land and such further information as may be required by the form; and

(d) [Section 17 Subsection (1) amended by No. 23 of 2021, s. 29, Applied:01 Jan 2022] all instruments, in the person’s possession or under the person’s control, constituting or in any way affecting the title to the land except any instruments which a purchaser of the land to which the statement relates would not be entitled to require pursuant to section 35 of the Conveyancing and Law of Property Act 1884 , and also, if required, an abstract of that title.

(1A)  [Section 17 Subsection (1A) amended by No. 36 of 2012, s. 8, Applied:13 Nov 2012] *[Section 17 Subsection (1A) inserted by No. 11 of 1990, s. 11 and Sched. 1 ]*A person who lodges for registration under the Registration of Deeds Act 1935 a forestry right shall leave with the Recorder, in addition to the documents required by section 12 of that Act  –

(a) [Section 17 Subsection (1A) amended by No. 66 of 2007, Applied:31 Dec 2008] a statement in a form approved by the Recorder signed by the owner of the land over which the forestry right is granted or by the legal practitioner acting for and on behalf of that owner and addressed to the Recorder, which shall state the facts of the ownership of the land and such further information as may be required by the form; and

(b) [Section 17 Subsection (1A) amended by No. 23 of 2021, s. 29, Applied:01 Jan 2022] all instruments, in the person’s possession or under the person’s control, constituting or in any way affecting the title to the land except any instruments which a purchaser of the land to which the statement relates would not be entitled to require pursuant to section 35 of the Conveyancing and Law of Property Act 1884 , and also, if required, an abstract of that title.

(2)  [Section 17 Subsection (2) amended by No. 36 of 2012, s. 8, Applied:13 Nov 2012] [Section 17 Subsection (2) amended by No. 36 of 2012, s. 8, Applied:13 Nov 2012] *[Section 17 Subsection (2) substituted by No. 11 of 1990, s. 11 and Sched. 1 ]*The Recorder may refuse to register a conveyance on sale, a legal mortgage by conveyance of the fee simple, another instrument that affects land or a forestry right unless it is accompanied by a statement and other instruments as required by subsection (1) or (1A) .

(3)  [Section 17 Subsection (3) amended by No. 23 of 2021, s. 29, Applied:01 Jan 2022] [Section 17 Subsection (3) amended by No. 36 of 2012, s. 8, Applied:13 Nov 2012] [Section 17 Subsection (3) amended by No. 36 of 2012, s. 8, Applied:13 Nov 2012] *[Section 17 Subsection (3) amended by No. 11 of 1990, s. 11 and Sched. 1 ]*On registering under the Registration of Deeds Act 1935 a conveyance, mortgage, other instrument or forestry right to which subsection (1) or (1A) applies the Recorder may, if the Recorder thinks fit –

(a) [Section 17 Subsection (3) amended by No. 36 of 2012, s. 8, Applied:13 Nov 2012] bring the land comprised in the conveyance, mortgage, other instrument or forestry right under this Act by creating a folio of the Register for that land; and

(b) [Section 17 Subsection (3) amended by No. 36 of 2012, s. 8, Applied:13 Nov 2012] [Section 17 Subsection (3) amended by No. 36 of 2012, s. 8, Applied:13 Nov 2012] [Section 17 Subsection (3) amended by No. 36 of 2012, s. 8, Applied:13 Nov 2012] [Section 17 Subsection (3) amended by No. 23 of 2021, s. 29, Applied:01 Jan 2022] for the purposes of so bringing the land under this Act, return the conveyance, mortgage, other instrument or forestry right and any other instruments in the Recorder’s custody to the lodging party.

(4)  [Section 17 Subsection (4) amended by No. 11 of 1990, s. 11 and Sched. 1 ][Section 17 Subsection (4) omitted by No. 36 of 2012, s. 8, Applied:13 Nov 2012] .  .  .  .  .  .  .  .

17A Land to be brought under this Act upon subdivision

[Section 17A Inserted by No. 48 of 1990, s. 9 ]

(1)  On and after the appointed day the owner of land which is not registered land shall not subdivide any land –

(a) held under the same title; or

(b) included in one subsisting legal mortgage by conveyance of the fee simple –

unless the owner has made an application under section 11 to bring the land under this Act.

Penalty:  Fine not exceeding 20 penalty units.

(2)  In subsection (1) subdivide, in respect of land, means to divide the surface of that land legally by creating estates or interests giving separate rights of occupation.

18 Land may be brought under this Act upon subdivision

[Section 18 Amended by No. 30 of 1995, s. 3 and Sched. 1 ][Section 18 Amended by No. 23 of 2021, s. 30, Applied:01 Jan 2022] The Recorder may refuse to accept a sealed plan under Part 3 of the Local Government (Building and Miscellaneous Provisions) Act 1993 that is lodged with the Recorder on or after the appointed day and that includes land which is not registered land until all the land –

(a) held under the same title as any of the land included in the plan; or

(b) included in one subsisting legal mortgage by conveyance of the fee simple with any of the land included in the plan –

whichever the Recorder, in the Recorder’s discretion, directs, is brought under this Act.

19 Land may be brought under this Act at the instance of the Recorder

(1)  [Section 19 Subsection (1) amended by No. 23 of 2021, s. 31, Applied:01 Jan 2022] *[Section 19 Subsection (1) amended by No. 21 of 1996, s. 19 ]*The Recorder may on or after the appointed day cause notice to be given to any person requiring the person, within a time specified in the notice, not being a time less than 30 days from the date of the notice –

(a) [Section 19 Subsection (1) amended by No. 23 of 2021, s. 31, Applied:01 Jan 2022] to inform the Recorder in writing whether the person claims an estate or interest in land (not being registered land) specified in the notice;

(b) [Section 19 Subsection (1) amended by No. 23 of 2021, s. 31, Applied:01 Jan 2022] where the person claims an estate or interest by virtue of an assurance or other disposition or by devolution in law –

(i) to furnish to the Recorder a statement in an approved form; and

(ii) [Section 19 Subsection (1) amended by No. 23 of 2021, s. 31, Applied:01 Jan 2022] to produce to the Recorder all instruments constituting or in any way affecting the person’s title to the land that are in the person’s possession or under the person’s control or in the possession or under the control of the mortgagee of the land except any instruments which a purchaser would not be entitled to require pursuant to section 35 of the Conveyancing and Law of Property Act 1884 ; and

(c) [Section 19 Subsection (1) amended by No. 23 of 2021, s. 31, Applied:01 Jan 2022] [Section 19 Subsection (1) amended by No. 23 of 2021, s. 31, Applied:01 Jan 2022] where the person claims an estate by the operation of a statute of limitations, to furnish to the Recorder such evidence in support of that claim as the person possesses.

(2)  [Section 19 Subsection (2) amended by No. 23 of 2021, s. 31, Applied:01 Jan 2022] Where the Recorder has given notice under subsection (1) the Recorder may bring any land specified in the notice under this Act by creating a folio of the Register for that land.

(3)  [Section 19 Subsection (3) amended by No. 23 of 2021, s. 31, Applied:01 Jan 2022] [Section 19 Subsection (3) amended by No. 36 of 2012, s. 9, Applied:13 Nov 2012] The Recorder shall, as far as possible, use the Recorder’s powers under this section so that by the operation of sections 17 and 18 and this section all land (other than Crown land) which is not registered land shall be brought under this Act.

20 Refusal to comply with notice under section 19; making false or misleading statement, &c.

(1)  [Section 20 Subsection (1) amended by No. 23 of 2021, s. 32, Applied:01 Jan 2022] *[Section 20 Subsection (1) amended by No. 43 of 1991, s. 5 and Sched. 1 ]*Any person who wilfully refuses or neglects to comply with any requirement of a notice given to the person under section 19 is guilty of an offence and is liable on summary conviction to a fine not exceeding 5 penalty units and a daily fine not exceeding one penalty unit.

(2)  [Section 20 Subsection (2) amended by No. 23 of 2021, s. 32, Applied:01 Jan 2022] *[Section 20 Subsection (2) amended by No. 43 of 1991, s. 5 and Sched. 1 ]*Any person who makes a statement under section 17 (1) (c) or section 19 (1) (b) , or furnishes the Recorder with evidence under section 19 (1) (c) , that to the person’s knowledge is false or misleading in a material particular is guilty of an offence and liable on summary conviction to a fine not exceeding 50 penalty units or to imprisonment for a term not exceeding 2 years.

Division 4 Qualified title

21 Qualified title

(1)  Land may be brought under this Act with a qualified title where –

(a) an applicant under section 11  –

(i) [Section 21 Subsection (1) amended by No. 23 of 2021, s. 33, Applied:01 Jan 2022] fails to satisfy the Recorder that the applicant is entitled to the estate that the applicant claims;

(ii) [Section 21 Subsection (1) amended by No. 23 of 2021, s. 33, Applied:01 Jan 2022] fails to do or prove to the Recorder's satisfaction such things or matters as the Recorder may have required the applicant to do or prove in order to justify the bringing of the land under this Act; or

(iii) requests the Recorder to register a qualified title;

(b) the proprietor of land to which section 17 applies or a person to whom the Recorder has given notice under section 19 requests the Recorder to register a qualified title;

(c) the Recorder is doubtful whether the title of any person to whom any provision of Division 3 of this Part applies is a title the holding under which will not be disturbed; or

(d) under any Act the Recorder is directed or empowered to register a qualified title.

(2)  Where land is brought under this Act with a qualified title a caution shall be recorded on the folio of the Register for that land and may be –

(a) [Section 21 Subsection (2) amended by No. 23 of 2021, s. 33, Applied:01 Jan 2022] a general caution, that is to say, a caution that the registered proprietor holds the registered proprietor’s estate subject to all estates and interests in the land created before the land was brought under this Act; or

(b) [Section 21 Subsection (2) amended by No. 23 of 2021, s. 33, Applied:01 Jan 2022] [Section 21 Subsection (2) amended by No. 23 of 2021, s. 33, Applied:01 Jan 2022] a particular caution, that is to say, a caution that the registered proprietor holds the registered proprietor’s estate subject to any defect in title or the estate or interest of any person the existence or probable or possible existence of which is indicated in a minute signed by the Recorder and filed in the office of the Recorder.

(3)  The Recorder's minute for the purpose of subsection (2) (b)  –

(a) shall set forth any defect in the title or any estate or interest or probable or possible estate or interest of any person in the land and the acts or matters that ought to be done or proved and the requisitions that ought to be complied with in order to justify the cancellation of the caution recorded on the folio of the Register;

(b) does not form part of the Register; and

(c) shall be made available for inspection by any person on payment of the prescribed fee (if any).

(4)  The Recorder may revise and amend a minute under subsection (2) so as to indicate which of the defects, estates, or interests referred to in the minute have been removed or resolved and which of the acts, matters, or requisitions so referred to have been done, proved, or complied with.

(5)  Where a general caution is recorded on a folio of the Register, the Recorder may at any time cancel that caution and substitute a particular caution.

(6)  [Section 21 Subsection (6) amended by No. 23 of 2021, s. 33, Applied:01 Jan 2022] The Recorder may, upon production to the Recorder of such evidence of title as the Recorder deems sufficient, cancel a caution recorded on a folio of the Register.

22 Subsisting estates and interests to be recorded on qualified title

(1)  [Section 22 Subsection (1) amended by No. 23 of 2021, s. 34, Applied:01 Jan 2022] When bringing land under this Act with qualified title, the Recorder shall record on the relevant folio of the Register any subsisting estate or interest then apparent to the Recorder, but shall not be concerned to make searches or inquiries as to the existence of any such interest.

(2)  The Recorder may, at any time after the creation of a qualified title –

(a) if a general caution is recorded on the qualified title, record on that qualified title any additional subsisting estate or interest in the land comprised in the title; or

(b) if a particular caution is recorded on the qualified title, record on that qualified title any additional subsisting estate or interest the existence or probable or possible existence of which is indicated in the relevant Recorder's minute –

and, in either case, in such a manner as to preserve the priority that the additional estate or interest would have had if it had been recorded on the relevant folio of the Register when the land was first brought under this Act.

23 Certain informal dealings may be registered

[Section 23 Amended by No. 21 of 1996, s. 5 ][Section 23 Amended by No. 29 of 1997, s. 4, Applied:06 Nov 1997] An instrument that affects any land brought under this Act and that might have been registered under the Registration of Deeds Act 1935 if the land had not been brought under this Act may, in the discretion of the Recorder, be registered under this Act notwithstanding that it is not an instrument in an approved form, and when registered has effect for all purposes as if it were such an instrument.

24 Qualified title may be cancelled or corrected in certain circumstances

(1)  [Section 24 Subsection (1) substituted by No. 23 of 2021, s. 35, Applied:01 Jan 2022] If, on application made to the Recorder for that purpose, it appears to the Recorder that the proprietor of an estate or interest in the land comprised in a qualified title has suffered judgment for the recovery of the land or a declaration, injunction, or other judgment destructive of that proprietor's estate or interest wholly or in part, the Recorder –

(a) must cancel or correct the folio of the Register relating to that land; and

(b) must call in and cancel or correct the corresponding certificate of title, if any, as the circumstances may require.

(2)  [Section 24 Subsection (2) amended by No. 23 of 2021, s. 35, Applied:01 Jan 2022] [Section 24 Subsection (2) amended by No. 23 of 2021, s. 35, Applied:01 Jan 2022] Subject to subsection (3) , a person who claims an estate of freehold in the whole or any part of the land comprised in a qualified title of which some other person is the registered proprietor may apply to have the land brought under this Act as if that qualified title had not been created, and the Recorder, if satisfied of the grounds of the applicant’s claim, shall –

(a) correct the folio of the Register; or

(b) cancel the folio of the Register constituting the qualified title and create a folio of the Register in the name of the applicant –

and shall call in the certificate of title, if any, corresponding to the corrected or cancelled folio of the Register and correct or cancel it as the circumstances require.

(3)  [Section 24 Subsection (3) amended by No. 23 of 2021, s. 35, Applied:01 Jan 2022] Where a particular caution is recorded on a folio of the Register, a person may apply under subsection (2) only if the person claims an estate or interest the existence or probable or possible existence of which is indicated in the Recorder's minute or arising from a defect in title indicated in the minute.

25 Caution to lapse after 20 years

(1)  A caution lapses, unless it sooner ceases to have effect, at the expiration of a period of 20 years after the date on which the land was brought under this Act or the repealed Act .

(2)  Where a caution lapses under this section the Recorder shall as soon as practicable cancel the caution.

(3)  [Section 25 Subsection (3) amended by No. 36 of 2012, s. 10, Applied:13 Nov 2012] The lapsing of a caution under this section operates to free the land in respect of which it lapsed from any estates and interests that affected the land at the date on which it was brought under this Act or the repealed Act , except an estate or interest which is preserved by section 40 , section 46 , section 138W(4) or section 138X(4) or which was immediately before the lapsing –

(a) recorded on the relevant folio of the Register; or

(b) the subject of a caveat affecting the land comprised in that folio.

26 Application of this Act to land in qualified title

The provisions of this Act apply in respect of land comprised in a qualified title in like manner as if that qualified title were a title to the land comprised in a folio of the Register upon which no caution is recorded except that –

(a) if a general caution is recorded on the qualified title and the caution has not lapsed, the land comprised in the title is subject to every estate and interest in the land created before the date on which the land was brought under this Act or the repealed Act ; and

(b) if a particular caution is recorded on the qualified title and the caution has not lapsed, the land comprised in the title is subject to any defect in title or any estate or interest of any person the existence or probable or possible existence of which is indicated in the Recorder's minute.

Division 5 General provisions

27 Land not alienated from the Crown may be brought under this Act

Land may be brought under this Act pursuant to Division 2 or Division 3 whether or not it has been alienated from the Crown and, where there appears to be no deed of grant or transfer from the Crown, no such deed or transfer is necessary before the Recorder brings the land under this Act.

27A Certain Crown land may be brought under this Act

[Section 27A Inserted by No. 98 of 1986, s. 4 ]

(1)  This section does not apply to, or in relation to, any land in respect of which an application under section 11 has been made.

(2)  The Recorder may, on the application of the Director-General of Lands, bring under this Act any land of the Crown by creating a folio of the Register for the land.

(3)  Where land is brought under this Act pursuant to subsection (2)  –

(a) the Crown shall be registered as the proprietor of the land for an estate in fee simple;

(b) the land remains subject to any limitation, exception, reservation, condition, or restriction to which it was subject immediately before it was so brought under this Act; and

(c) [Section 27A Subsection (3) amended by No. 23 of 2021, s. 36, Applied:01 Jan 2022] the Recorder may record on the folio created under that subsection such particulars as the Recorder considers appropriate relating to any matter affecting the land in force under the Crown Lands Act 1976 or any other Act.

(4)  [Section 27A Subsection (4) amended by No. 23 of 2021, s. 36, Applied:01 Jan 2022] The Recorder may at any time cancel or amend in such manner as the Recorder considers appropriate an endorsement made on a folio under subsection (3) (c) .

(5)  Where particulars of a lease are recorded in the folio of the Register under subsection (3) (c) , the Recorder may –

(a) create a folio of the Register for the lease; and

(b) record in that folio as the registered proprietor of the lease the name of a person who, in the opinion of the Recorder, is so entitled.

(6)  [Section 27A Subsection (6) inserted by No. 87 of 1997, Sched. 3, Applied:15 Jan 1998] [Section 27A Subsection (6) substituted by No. 36 of 2012, s. 11, Applied:13 Nov 2012] In an application made under subsection (2) , the Director-General of Lands may –

(a) [Section 27A Subsection (6) amended by No. 23 of 2021, s. 36, Applied:01 Jan 2022] create any easement, covenant, limitation, exception, reservation, condition or restriction that the Director-General of Lands considers appropriate; and

(b) request the Recorder to note the creation of that new interest on the relevant folio of the Register for the land and any other limitation, exception, reservation, condition or restriction to which the land is subject in accordance with the Crown Lands Act 1976 .

(7)  [Section 27A Subsection (7) inserted by No. 87 of 1997, Sched. 3, Applied:15 Jan 1998] Where on the commencement of the Crown Lands (Shack Sites) Act 1997 the Crown is the registered proprietor of any land, that land is subject to any limitation, exception, reservation, condition or restriction that is noted on the relevant folio.

(8)  [Section 27A Subsection (8) amended by No. 36 of 2012, s. 11, Applied:13 Nov 2012] [Section 27A Subsection (8) inserted by No. 87 of 1997, Sched. 3, Applied:15 Jan 1998] On application by the Director-General of Lands, the Recorder may amend any easement, covenant, limitation, exception, reservation, condition or restriction noted on the folio.

(9)  [Section 27A Subsection (9) inserted by No. 87 of 1997, Sched. 3, Applied:15 Jan 1998] A transfer of any land of which the Crown is the registered proprietor is, unless the parties otherwise agree, to be subject to any limitation, exception, reservation, condition, restriction, covenant or easement that is noted on the relevant folio under this section.

(10)  [Section 27A Subsection (10) inserted by No. 87 of 1997, Sched. 3, Applied:15 Jan 1998] Where the Recorder brings land under this Act pursuant to an application made under subsection (2) , the application is taken to be a registered dealing.

28 How certain estates and interests dealt with when land brought under this Act

(1AA)  [Section 28 Subsection (1AA) inserted by No. 29 of 1997, s. 5, Applied:06 Nov 1997] In this section,

instrument means any deed, judgment, will, letters of administration or other document or writing affecting or intended to affect land in this State.

(1)  *[Section 28 Subsection (1) amended by No. 98 of 1986, s. 5 ]*When –

(a) on the bringing of land under this Act, it appears to the Recorder that the land is subject to a legal mortgage by conveyance of the fee simple;

(b) a legal mortgage by conveyance of the fee simple is to be recorded in the Register pursuant to section 22 ; or

(c) in the case of land of the Crown for which a folio of the Register is created under section 27A (2) , it appears to the Recorder that the land is subject to a legal mortgage –

the Recorder shall register the mortgage on the relevant folio of the Register notwithstanding that it is not an instrument in the form of a memorandum of mortgage under this Act, and when so registered it has effect for all purposes as if it were such an instrument registered under this Act at the time the land was brought under this Act.

(2)  [Section 28 Subsection (2) amended by No. 23 of 2021, s. 37, Applied:01 Jan 2022] *[Section 28 Subsection (2) amended by No. 9 of 1982, s. 7 and Sched. 10 ]*Where –

(a) [Section 28 Subsection (2) amended by No. 42 of 2001, Sched. 1, Applied:15 Jul 2001] on the bringing of land under this Act, it appears to the Recorder that an instrument registered under the Registration of Deeds Act 1935 or Part 2K.2 of the Corporations Act creates an estate or interest in that land (other than the estate claimed by the person making application to bring land under this Act or the person who is to be registered as proprietor) that could have been created by an instrument registered under this Act if at the time of its creation the land were under this Act; or

(b) [Section 28 Subsection (2) amended by No. 23 of 2021, s. 37, Applied:01 Jan 2022] the Recorder is required to record the estate or interest referred to in paragraph (a) on the relevant folio of the Register pursuant to section 22  –

the Recorder may record that instrument as if it were the appropriate instrument under this Act to create the estate or interest, notwithstanding that –

(c) it is not in the form of an appropriate instrument; and

(d) it discloses the existence of other estates or interests that may not otherwise be registered under this Act.

(3)  Subsection (2) allows the recording of an equitable mortgage or charge as a legal mortgage or encumbrance.

(4)  [Section 28 Subsection (4) amended by No. 29 of 1997, s. 5, Applied:06 Nov 1997] Where an instrument is recorded on a folio of the Register pursuant to this section or is referred to on the folio –

(a) the Recorder shall –

(i) certify on the instrument that it is so recorded;

(ii) [Section 28 Subsection (4) amended by No. 29 of 1997, s. 5, Applied:06 Nov 1997] [Section 28 Subsection (4) amended by No. 23 of 2021, s. 37, Applied:01 Jan 2022] make a copy of the instrument, which the Recorder shall retain, and which shall for all purposes be deemed to be the original instrument; and

(iii) [Section 28 Subsection (4) amended by No. 23 of 2021, s. 37, Applied:01 Jan 2022] [Section 28 Subsection (4) amended by No. 23 of 2021, s. 37, Applied:01 Jan 2022] return the instrument to the person from whom the Recorder received it, and that instrument shall be produced to the Recorder whenever the duplicate instrument is required by this Act to be produced to the Recorder;

(b) dealings with the estate or interest so recorded are subject to this Act; and

(c) [Section 28 Subsection (4) amended by No. 23 of 2021, s. 37, Applied:01 Jan 2022] the proprietor of the estate or interest so recorded has all the rights of a registered proprietor of such an estate or interest instead of any rights of a like nature enjoyed by the proprietor before that registration.

(5)  [Section 28 Subsection (5) amended by No. 42 of 2001, Sched. 1, Applied:15 Jul 2001] *[Section 28 Subsection (5) amended by No. 9 of 1982, s. 7 and Sched. 10 ]*Where an instrument is registered under the Registration of Deeds Act 1935 or Part 2K.2 of the Corporations Act, the Recorder is not bound to require production of the instrument or to comply with subsection (4) (a) (i) .

(6)  In registering instruments under this section the Recorder shall, in the absence of proof to the contrary, preserve such priority as they appear to have by virtue of the Registration of Deeds Act 1935 and for that purpose may assume that all instruments registered under that Act have been executed or taken in good faith by the purchasers.

(7)  A power of sale arising from an instrument registered pursuant to this section shall be exercised, and the estate or interest sold shall be transferred, in accordance with this Act and not otherwise.

(8)  Foreclosure of a mortgage registered pursuant to this section shall be effected by an application under section 85 and an order made and registered pursuant to section 86 , and not otherwise.

(9)  Where a person is aggrieved by a decision of the Recorder –

(a) to register or refrain from registering an instrument under subsection (1) or subsection (2) ; or

(b) on the priority of an instrument so registered –

section 144 applies as if the decision were a refusal as mentioned in subsection (1) (a) of that section.

(10)  [Section 28 Subsection (10) amended by No. 23 of 2021, s. 37, Applied:01 Jan 2022] Where –

(a) on the bringing of land under this Act, it appears to the Recorder that the land is subject to an equitable interest incapable of registration under this Act; or

(b) the Recorder is required under section 22 to record on a qualified title an equitable interest incapable of registration under this Act –

the Recorder shall record a caveat to protect the interest of the person entitled in equity and shall give notice of the caveat to that person and to the registered proprietor.

(11)  A caveat recorded pursuant to subsection (10)  –

(a) [Section 28 Subsection (11) amended by No. 23 of 2021, s. 37, Applied:01 Jan 2022] may be withdrawn by the Recorder, upon proof to the Recorder’s satisfaction that the equitable interest no longer exists, or by the person protected by the caveat; and

(b) is otherwise subject to the same provisions as if it were a caveat lodged by that person.

(12)  [Section 28 Subsection (12) amended by No. 66 of 2007, Sched. 1, Applied:31 Dec 2008] Where –

(a) on the bringing of land under this Act, it appears to the Recorder that a judgment registered under the Registration of Deeds Act 1935 affects that land; or

(b) the Recorder is required under section 22 to record the interest of the judgment creditor under such a judgment –

the Recorder shall record a caveat to protect the interest of the judgment creditor, and shall give notice of the caveat to the judgment creditor or to the legal practitioner who registered the judgment, and to the registered proprietor.

(13)  A caveat recorded pursuant to subsection (12)  –

(a) [Section 28 Subsection (13) amended by No. 66 of 2007, Sched. 1, Applied:31 Dec 2008] [Section 28 Subsection (13) amended by No. 23 of 2021, s. 37, Applied:01 Jan 2022] [Section 28 Subsection (13) amended by No. 23 of 2021, s. 37, Applied:01 Jan 2022] may be withdrawn by the Recorder upon proof to the Recorder’s satisfaction that the judgment has been satisfied, or by the person to whom the money payable under the judgment is payable or by the person’s legal practitioner for the person and on the person’s behalf;

(b) unless sooner withdrawn or lapsed, lapses at the expiration of 5 years after the date of the first registration of the judgment, or the latest re-registration of the judgment before the land was brought under this Act, whichever is the later date; and

(c) is otherwise subject to the same provisions as if it were a caveat lodged by a judgment creditor.

(14)  [Section 28 Subsection (14) inserted by No. 29 of 1997, s. 5, Applied:06 Nov 1997] On recording an estate or interest referred to in subsection (2) , (10) or (12) , it is sufficient compliance with this section if the Recorder refers to an instrument registered under the Registration of Deeds Act 1935 which records that estate or interest, whether it was created in that instrument or in another instrument registered in the Registry of Deeds.

28A Restraining orders not affected when land brought under Act

*[Section 28A Inserted by No. 47 of 1996, s. 8 and Sched. 1 ]*If land that is brought under this Act is subject to a restraining order within the meaning of the Criminal Injuries Compensation Act 1976 , the Recorder is to record particulars of the restraining order on the relevant folio of the Register.

29 Notice to be given in Registry of Deeds

*[Section 29 Amended by No. 98 of 1986, s. 6 ]*When land is brought under this Act (otherwise than pursuant to Division 1 or section 27A ), the Recorder shall give notice of that fact in the Registry of Deeds in the prescribed manner.

30 Disposal of antecedent documents of title

[Section 30 Subsection (1) amended by No. 68 of 1994, s. 3 and Sched. 1 ]

(1)  *[Section 30 Subsection (1) amended by No. 48 of 1990, s. 10 ]*Where land is brought under this Act or the repealed Act , the Recorder –

(a) [Section 30 Subsection (1) amended by No. 23 of 2021, s. 38, Applied:01 Jan 2022] shall return to the person from whom the Recorder received them documents relating to any property other than the land included in the relevant folio of the Register; and

(b) may, in relation to any other documents –

(i) [Section 30 Subsection (1) amended by No. 23 of 2021, s. 38, Applied:01 Jan 2022] retain them in the office of the Recorder;

(ii) transfer them to the Tasmanian Library Board, to be dealt with as if they were State records within the meaning of the Archives Act 1983 ; or

(iii) subject to subsection (2) , sell or destroy them.

(2)  The Recorder shall not destroy a document pursuant to subsection (1) unless –

(a) where the land was brought under this Act or the repealed Act with a title other than a qualified title, a period of at least 12 years has expired since the land was brought under this Act or the repealed Act ; or

(b) where the land was brought under this Act or the repealed Act with a qualified title, the title has ceased to be qualified and a period of at least 12 years has expired since it ceased to be qualified.

(3)  [Section 30 Subsection (3) amended by No. 23 of 2021, s. 38, Applied:01 Jan 2022] *[Section 30 Subsection (3) amended by No. 48 of 1990, s. 10 ]*Instead of selling or destroying a document under the authority of subsection (1) , the Recorder may deliver it to any person who satisfies the Recorder that the person intends to preserve the document for historical purposes.

(3A)  *[Section 30 Subsection (3A) inserted by No. 48 of 1990, s. 10 ]*If an application is made by a person who had an estate or interest in the land specified in a document at the time that document was lodged or deposited with the Recorder, the Recorder shall, if the Recorder considers that the document is of no value for the purpose of the Register, give possession of the document to that person free of charge.

(4)  *[Section 30 Subsection (4) amended by No. 48 of 1990, s. 10 ]*Before selling, returning or delivering a document pursuant to this section, the Recorder shall mark the document as cancelled so far as it relates to land brought under this Act or the repealed Act .

(5)  A person is not entitled to the production of a document retained by the Recorder, or transferred to the Tasmanian Library Board, pursuant to subsection (1) , except upon the order of the Recorder or of the Supreme Court.

(6)  In this section, document means, in relation to land brought under this Act or the repealed Act , an instrument constituting, or in any way affecting, the title to the land, being an instrument that is left with or surrendered to the Recorder by the applicant or any other person, other than an instrument that is registered pursuant to section 28 .

31 Persons to produce deeds

(1)  [Section 31 Subsection (1) amended by No. 23 of 2021, s. 39, Applied:01 Jan 2022] Where, by any provision of this Part, a proprietor is required to produce to the Recorder instruments constituting, or in any way affecting, the proprietor’s title, a mortgagee or other person who holds those instruments shall, upon being requested to do so by the proprietor, at the cost of the proprietor, produce those instruments to the Recorder.

(2)  [Section 31 Subsection (2) amended by No. 23 of 2021, s. 39, Applied:01 Jan 2022] The Supreme Court may, on the application of the Recorder or of a person who is required by any provision of this Part to produce it to the Recorder, order any specified person who has in the person’s possession or under the person’s control an instrument evidencing title to land to which that person claims title, within such time as may be limited by the order, to produce and leave that instrument at the office of the Recorder, upon such terms and subject to such conditions as to costs or otherwise as the Court considers necessary.

(3)  Production of instruments to the Recorder under subsection (1) does not affect a lien which the person producing the instruments may have, and an order made under subsection (2) may preserve a lien.

(4)  [Section 31 Subsection (4) substituted by No. 23 of 2021, s. 39, Applied:01 Jan 2022] A person producing instruments to the Recorder under subsection (1) may do so subject to the condition that, upon the bringing under this Act of the land, or any part of the land, to which the instruments relate, the Recorder must create for that land a folio of the Register.

(5)  [Section 31 Subsection (5) inserted by No. 23 of 2021, s. 39, Applied:01 Jan 2022] An order made under subsection (2) may contain a similar condition to the condition referred to in subsection (4) .

32 Land may be described by verbal description if no survey available, &c.

[Section 32 Subsection (2) amended by No. 26 of 1992, s. 4 ]

(1)  [Section 32 Subsection (1) amended by No. 23 of 2021, s. 40, Applied:01 Jan 2022] *[Section 32 Subsection (1) amended by No. 26 of 1992, s. 4 ]*Where, on the bringing of land under this Act pursuant to this Part (other than Division 1 ), there is not available to the Recorder a survey such as the Recorder could require under section 162 , the land may be described by a verbal description or by a plan prepared from information contained in a verbal description.

(2)  *[Section 32 Subsection (2) amended by No. 48 of 1990, s. 11 ]*Where, pursuant to subsection (1) , land is described by a verbal description or by a plan prepared from information contained in a verbal description, or where, under section 143E (1) , the remainder of any land included in a title is described by a plan prepared from information contained in a verbal description –

(a) subject to subsection (2A) , an action is not to be brought against –

(i) the Recorder; or

(ii) the assurance fund; or

(iii) in the case of a plan prepared by a surveyor – that surveyor –

by reason or in respect of any difference between the area of land or the position or dimensions of the boundaries so described and the actual area, position or dimensions as found by survey; and

(b) [Section 32 Subsection (2) amended by No. 66 of 2007, Sched. 1, Applied:31 Dec 2008] a legal practitioner who acts for any party taking or proposing to take any estate or interest in the land is not under any duty to check that that description agrees with the description in the antecedent documents of title; and

(c) [Section 32 Subsection (2) amended by No. 23 of 2021, s. 40, Applied:01 Jan 2022] on such evidence of boundaries as the Recorder deems sufficient, the Recorder may alter the description to accord with that evidence.

(2A)  *[Section 32 Subsection (2A) inserted by No. 26 of 1992, s. 4 ]*Where, pursuant to subsection (1) , the Recorder describes land by –

(a) a verbal description; or

(b) a plan prepared from information contained in a verbal description –

subsection (2) (a) does not exempt the Recorder from any liability under section 153 as a result of any omission, mistake or misfeasance of the Recorder or any of the Recorder's officers in respect of that description.

(3)  [Section 32 Subsection (3) amended by No. 23 of 2021, s. 40, Applied:01 Jan 2022] *[Section 32 Subsection (3) amended by No. 26 of 1992, s. 4 ]*The fact that land comprised in a folio of the Register is described by a verbal description or by a plan prepared from information contained in a verbal description shall be conclusive evidence that at the time the verbal description or plan was first inserted in that folio no survey such as the Recorder could require under section 162 was available to the Recorder.

(4)  *[Section 32 Subsection (4) substituted by No. 26 of 1992, s. 4 ]*The Recorder may, at any time –

(a) add to a verbal description a plan prepared from information contained in that description; or

(b) replace a verbal description with a plan prepared from information contained in that description or with a plan from actual survey; or

(c) replace a plan prepared from information contained in a verbal description with an amended or corrected plan of the same kind or with a plan from actual survey.

(4A)  *[Section 32 Subsection (4A) substituted by No. 26 of 1992, s. 4 ]*A plan prepared from –

(a) information contained in a verbal description; or

(b) a plan prepared from information contained in a verbal description –

is to be endorsed "sketch by way of illustration only".

(5)  *[Section 32 Subsection (5) amended by No. 26 of 1992, s. 4 ]*A plan or sketch by way of illustration only shall not in any way govern, control, restrict, or enlarge the verbal description from which it has been prepared.

(6)  In this section verbal description means a description –

(a) by metes and bounds; or

(b) in such form as may be prescribed.

Part IV The Register and Certificates of Title

33 The Register, certificates of title and registration

(1)  Subject to this section, the Recorder shall keep or cause to be kept a register of title to land which is subject to this Act.

(2)  Regulations may prescribe the manner in which the Register is to be kept.

(3)  *[Section 33 Subsection (3) amended by No. 21 of 1996, s. 6 ]*Subject to any regulation under this section the Register may be kept wholly or partly –

(a) on paper, on microfilm, or in or on such other medium as may be approved by the Recorder; or

(b) in such device for storing or processing information as may be approved by the Recorder.

(4)  The Register shall comprise –

(a) the folios of the Register;

(b) the dealings registered under this Act and any of the Acts specified in Schedule 2 ; and

(c) [Section 33 Subsection (4) amended by No. 10 of 2000, s. 10, Applied:28 Apr 2000] schemes under the Strata Titles Act 1998 –

but shall not include any other maps and plans or documents deposited with the Recorder.

(5)  Each folio of the Register shall –

(a) be the record of the title to one or more parcels of land, or to an estate in one or more parcels of land being an estate of a kind referred to in subsection (6) ;

(b) be numbered or otherwise identified as prescribed;

(c) contain a record of such matters as the Recorder is, by or under this or any other Act, required to record on the folio; and

(d) contain such other particulars as may be prescribed.

(6)  [Section 33 Subsection (6) amended by No. 23 of 2021, s. 41, Applied:01 Jan 2022] [Section 33 Subsection (6) amended by No. 36 of 2012, s. 12, Applied:13 Nov 2012] The Recorder may, if the Recorder deems it convenient to do so, create a folio of the Register for any of the following:

(a) a leasehold estate created by a lease registered under this Act;

(b) a life estate;

(c) [Section 33 Subsection (6) amended by No. 36 of 2012, s. 12, Applied:13 Nov 2012] an estate in remainder or other future estate;

(d) [Section 33 Subsection (6) amended by No. 36 of 2012, s. 12, Applied:13 Nov 2012] an undivided share in land;

(e) [Section 33 Subsection (6) amended by No. 36 of 2012, s. 12, Applied:13 Nov 2012] any other estate or interest in land.

(7)  Land becomes subject to this Act when the Recorder creates a folio of the Register for it.

(8)  [Section 33 Subsection (8) amended by No. 36 of 2012, s. 12, Applied:13 Nov 2012] Except as may otherwise be prescribed, when the Recorder creates a folio of the Register, the Recorder may in the prescribed manner prepare a certificate of title to the same land.

(9)  *[Section 33 Subsection (9) amended by No. 21 of 1996, s. 19 ]*A certificate of title shall be in an approved form and contain the prescribed particulars.

(10)  [Section 33 Subsection (10) amended by No. 7 of 2023, s. 5, Applied:13 Jun 2023] [Section 33 Subsection (10) amended by No. 36 of 2012, s. 12, Applied:13 Nov 2012] On the lodgement of a dealing, the Recorder is to ensure it is marked with a distinctive number, letter or code or marked in some other manner approved by the Recorder.

(11)  [Section 33 Subsection (11) amended by No. 23 of 2021, s. 41, Applied:01 Jan 2022] The Recorder shall register a dealing by making such recording or alteration on the folio of the Register or registered dealing to be affected thereby as, in the Recorder’s opinion, may be necessary to give effect to the dealing.

(12)  Where land is removed from a title, the Recorder shall create a new folio of the Register for that land, and shall cancel the folio from which the land is removed, so far as it relates to that land.

(13)  [Section 33 Subsection (13) amended by No. 23 of 2021, s. 41, Applied:01 Jan 2022] [Section 33 Subsection (13) amended by No. 23 of 2021, s. 41, Applied:01 Jan 2022] The Recorder may at any time, if the Recorder thinks fit, rearrange parts of the Register by creating a new folio containing the whole or part of land in one or more existing folios or in such other manner as may appear to the Recorder to be convenient.

(14)  [Section 33 Subsection (14) amended by No. 23 of 2021, s. 41, Applied:01 Jan 2022] *[Section 33 Subsection (14) amended by No. 30 of 1995, s. 3 and Sched. 1 ]*In exercising the Recorder’s powers under subsection (13) , the Recorder –

(a) shall not create a new folio so as to permit the subdivision of land contrary to the provisions of Part 3 of the Local Government (Building and Miscellaneous Provisions) Act 1993 ; and

(b) in creating a new folio, shall distinguish the parcels comprised in the new folio which may lawfully be separately alienated immediately before the proclaimed date.

(15)  Any parcels comprised in a new folio created pursuant to subsection (13) which may lawfully be separately alienated immediately before the proclaimed date may, on and after that date, be separately alienated.

(16)  [Section 33 Subsection (16) amended by No. 23 of 2021, s. 41, Applied:01 Jan 2022] Where the Recorder creates a new folio of the Register pursuant to subsection (13) , the Recorder shall cancel the folio of the Register from which the land comprised in the new folio is taken, so far as it relates to that land.

(17)  [Section 33 Subsection (17) amended by No. 23 of 2021, s. 41, Applied:01 Jan 2022] [Section 33 Subsection (17) amended by No. 23 of 2021, s. 41, Applied:01 Jan 2022] Where the Recorder creates a new folio of the Register pursuant to subsection (12) or subsection (13) , the Recorder may call in any certificate of title or grant referring to the same land and cancel it to the same extent as the Recorder has cancelled the corresponding folio of the Register.

(18)  [Section 33 Subsection (18) amended by No. 23 of 2021, s. 41, Applied:01 Jan 2022] The Recorder may, upon registering a dealing, or whenever the Recorder considers it convenient to do so –

(a) create a new edition of a folio of the Register containing the subsisting recordings only;

(b) [Section 33 Subsection (18) amended by No. 23 of 2021, s. 41, Applied:01 Jan 2022] prepare a new edition of a certificate of title containing the subsisting recordings only, whether or not the Recorder has created a new edition of the relevant folio pursuant to paragraph (a) ; and

(c) destroy the superseded edition of a certificate of title –

but shall retain a record of the registration of dealings which have ceased to affect the land comprised in that folio which record shall remain part of the Register.

(19)  [Section 33 Subsection (19) omitted by No. 15 of 2001, Sched. 2, Applied:01 Jul 2001] .  .  .  .  .  .  .  .

34 Power of Recorder to make transparencies

(1)  [Section 34 Subsection (1) amended by No. 23 of 2021, s. 42, Applied:01 Jan 2022] *[Section 34 Subsection (1) amended by No. 68 of 1994, s. 3 and Sched. 1 ]*The Recorder may cause to be made a transparency of any dealing, map, plan, or document that is in the Recorder’s possession or custody or under the Recorder’s control and may, subject to the Archives Act 1983 , keep that transparency in lieu of, or in addition to, the dealing, map, plan, or document of which it is a transparency.

(2)  [Section 34 Subsection (2) amended by No. 23 of 2021, s. 42, Applied:01 Jan 2022] Where the Recorder, pursuant to subsection (1) , keeps a transparency in lieu of a dealing, map, plan, or document, the Recorder may –

(a) [Section 34 Subsection (2) amended by No. 23 of 2021, s. 42, Applied:01 Jan 2022] deliver the dealing, map, plan, or document to any person who satisfies the Recorder that the person intends to preserve it for historical purposes; or

(b) destroy the dealing, map, plan, or document.

(3)  [Section 34 Subsection (3) substituted by No. 80 of 2001, Sched. 1, Applied:01 Jul 2002] In this section,

transparency, in relation to any dealing, map, plan or document, means –

(a) a developed negative or positive photograph of that dealing, map, plan or document (in this definition referred to as an original photograph) made on a transparent base by means of light reflected from, or transmitted through, the dealing, map, plan or document; or

(b) a copy of an original photograph made by the use of photosensitive material on a transparent base placed in surface contact with the original photograph; or

(c) any one of a series of copies of an original photograph, the first of the series being made by the use of photosensitive material on a transparent base placed in surface contact with a copy referred to in paragraph (b) , and each succeeding copy in the series being made in the same manner from any preceding copy in the series.

34A Power to sell, destroy or otherwise dispose of certain documents

[Section 34A Inserted by No. 48 of 1990, s. 12 ]

(1)  The Recorder may, with the written permission of the State Archivist given in accordance with section 20 (2) (b) of the Archives Act 1983 , sell, destroy or otherwise dispose of any document or any class of document in the possession of the Recorder which the Recorder considers to be of no value for the purposes of the Register.

(2)  Before selling or disposing of a document the Recorder shall mark it as no longer valid.

(3)  For the purposes of this Act the Recorder is the Head of Agency for the purpose of section 3 of the Archives Act 1983 .

(4)  If an application is made by a person who had an estate or interest in the land specified in a document at the time that document was lodged or deposited with the Recorder, the Recorder shall, if the Recorder considers that the document is of no value for the purpose of the Register, give possession of the document to that person free of charge.

(5)  In this section document includes an instrument, a dealing, map, plan and transparency made in accordance with section 34 .

35 Lost certificate of title, folio of the Register, or duplicate registered dealing

(1)  [Section 35 Subsection (1) substituted by No. 23 of 2021, s. 43, Applied:01 Jan 2022] If the Recorder –

(a) receives proof to the Recorder’s satisfaction that a certificate of title or duplicate grant has been lost, mislaid or destroyed; and

(b) accepts an application for the issue of a new certificate of title under this subsection –

the Recorder may issue a new certificate of title.

(1A)  [Section 35 Subsection (1A) inserted by No. 23 of 2021, s. 43, Applied:01 Jan 2022] The Recorder may, before issuing a new certificate of title under subsection (1) , require the applicant to give an advertisement, notice, or indemnity, to the satisfaction of the Recorder.

(1B)  [Section 35 Subsection (1B) inserted by No. 23 of 2021, s. 43, Applied:01 Jan 2022] If the Recorder issues a new certificate of title under subsection (1) , the Recorder must record on the relevant folio of the Register that the Recorder has done so pursuant to this section.

(2)  Where a new certificate of title is issued under subsection (1) , the new certificate of title shall be produced to the Recorder whenever production of the certificate of title or duplicate grant is required.

(3)  [Section 35 Subsection (3) amended by No. 23 of 2021, s. 43, Applied:01 Jan 2022] [Section 35 Subsection (3) amended by No. 23 of 2021, s. 43, Applied:01 Jan 2022] If a folio of the Register or registered dealing forming part of the Register is lost or destroyed, or so obliterated as to become illegible, the Recorder may create a substituted folio or dealing from such evidence as is available to the Recorder as to the contents of and entries upon the original, and where the Recorder creates a substituted folio or dealing the Recorder shall record on it that it is a substituted folio or dealing.

(4)  Where a substituted folio or dealing is created under subsection (3) , the substituted folio or dealing shall be used for all purposes in place of the original folio or dealing.

(5)  [Section 35 Subsection (5) amended by No. 23 of 2021, s. 43, Applied:01 Jan 2022] [Section 35 Subsection (5) amended by No. 23 of 2021, s. 43, Applied:01 Jan 2022] [Section 35 Subsection (5) amended by No. 23 of 2021, s. 43, Applied:01 Jan 2022] The Recorder, on application for that purpose and proof to the Recorder’s satisfaction that a duplicate registered dealing has been lost or destroyed, may, subject to such advertisement, notice, or indemnity as the Recorder requires, issue a substituted duplicate registered dealing in place of the lost duplicate, and where the Recorder issues a substituted duplicate registered dealing the Recorder shall record on the original dealing that the substituted duplicate has been issued.

(6)  Where a substituted duplicate registered dealing is issued under subsection (5) , the substituted duplicate shall be produced to the Recorder whenever production of the duplicate registered dealing is required.

36 Searches of public records

[Section 36 Subsection (1) amended by No. 21 of 1996, s. 7 ]

(1)  *[Section 36 Subsection (1) amended by No. 48 of 1990, s. 13 ]*The following records are public records:

(a) the Register;

(b) dealings in the office of the Recorder awaiting registration, or re-execution, completion, or correction to make them registrable and instruments and documents lodged, deposited or filed in support of a dealing or instrument;

(c) caveats and priority notices;

(d) [Section 36 Subsection (1) amended by No. 36 of 2012, s. 13, Applied:13 Nov 2012] maps, plans and surveys deposited with the Recorder under this or any other Act whether or not they are capable of being withdrawn or rejected;

(e) any index of unregistered dealings kept in the office of the Recorder.

(2)  Any information in a public record shall be available at the prescribed times, in the prescribed manner, and upon payment of the prescribed fee (if any).

37 Copies of public records

(1)  [Section 37 Subsection (1) amended by No. 23 of 2021, s. 44, Applied:01 Jan 2022] The Recorder shall, on application and payment of the prescribed fee, furnish a person with a certified copy of any public record in the Recorder’s custody.

(2)  *[Section 37 Subsection (2) amended by No. 48 of 1990, s. 14 ]*A copy for the purposes of this section may, in the Recorder's discretion, be –

(a) in writing;

(b) made by such photocopying, facsimile or electronic transmission process as the Recorder determines; or

(c) made partly in accordance with paragraph (a) and partly in accordance with paragraph (b) .

(3)  *[Section 37 Subsection (3) amended by No. 48 of 1990, s. 14 ]*In this section –

certified copy in relation to a public record, means a copy of that public record that –

(a) is certified by the Recorder or some officer acting on the Recorder's behalf to be a copy of the public record; or

(b) in the case of a copy created by a facsimile or electronic transmission process – has recorded upon it by that process an indication that the transmission creating the copy was initiated in an office of the Recorder and a record of the time and date of the transmission;

[Section 37 Subsection (3) amended by No. 80 of 2001, Sched. 1, Applied:01 Jul 2002]

[Section 37 Subsection (3) amended by No. 80 of 2001, Sched. 1, Applied:01 Jul 2002] machine copy, in relation to a public record, means a copy of the record made by –

(a) a machine in which, or a process by which, a latent image of the contents of the document is produced from surface contact with the document or by the use of photosensitive material other than transparent photographic film; or

(b) the electrostatic process known as Xerography or any similar process;

photocopying process, in relation to a copy of a public record, means the process of making a photographic copy or machine copy of the public record;

photographic copy, in relation to a public record, means a print made from a transparency of the public record;

[Section 37 Subsection (3) amended by No. 80 of 2001, Sched. 1, Applied:01 Jul 2002]

[Section 37 Subsection (3) amended by No. 80 of 2001, Sched. 1, Applied:01 Jul 2002] transparency, in relation to a public record, means transparency as defined in section 34(3) .

(4)  [Section 37 Subsection (4) added by No. 48 of 1990, s. 14 ][Section 37 Subsection (4) omitted by No. 80 of 2001, Sched. 1, Applied:01 Jul 2002] .  .  .  .  .  .  .  .

38.

[Section 38 Subsection (1) amended by No. 48 of 1990, s. 15 ] [Section 38 Subsection (2) substituted by No. 48 of 1990, s. 15 ] [Section 38 Subsection (3) amended by No. 48 of 1990, s. 15 ] [Section 38 Repealed by No. 80 of 2001, Sched. 1, Applied:01 Jul 2002]

Part V The Effect of Registration

39 Folio of the Register conclusive evidence of title, &c.

(1)  A folio of the Register is evidence of the particulars recorded in the folio.

(2)  Except as otherwise provided in this Act, a folio of the Register is conclusive evidence that –

(a) the person named in the folio as registered proprietor of or as taking an estate or interest in the land described in the folio is entitled to that land for that estate or interest; and

(b) that land has been duly brought under this Act.

40 Estate of registered proprietor indefeasible

(1)  For the purposes of this section indefeasible, in relation to the title of a registered proprietor of land, means subject only to such estates and interests as are recorded on the folio of the Register or registered dealing evidencing title to the land.

(2)  Subject to subsections (3) and (4) , the title of a registered proprietor of land is indefeasible.

(3)  *[Section 40 Subsection (3) amended by No. 24 of 1993, s. 3 and Sched. 1 ]*The title of a registered proprietor of land is not indefeasible –

(a) [Section 40 Subsection (3) amended by No. 23 of 2021, s. 45, Applied:01 Jan 2022] in the case of fraud, in which case the person defrauded has, except as otherwise provided in sections 41 and 42 , all rights and remedies that the person would have had if the land were not registered land;

(b) where 2 or more folios of the Register subsist for conflicting estates in respect of the same land, in which case the title which was first brought under this Act or the repealed Act defeats the titles subsequently brought under this Act or the repealed Act ;

(c) so far as regards the omission or misdescription of any reservations, exceptions, conditions, and powers contained in the Crown grant of the land, or of any right to the use and flow of water in a river, stream, watercourse, lake, pond, or marsh, or of any public right of way;

(d) so far as regards the interest of a tenant under –

(i) a periodic tenancy;

(ii) a lease taking effect in possession for a term not exceeding 3 years (whether or not the lessee is given power to extend the term) at the best rent that can be reasonably obtained without taking a fine; and

(iii) [Section 40 Subsection (3) amended by No. 67 of 2003, s. 28, Applied:05 Mar 2004] a lease capable of taking effect in equity only, except as against a bona fide purchaser for value without notice of the lease who has lodged a transfer for registration; and

(iv) [Section 40 Subsection (3) amended by No. 67 of 2003, s. 28, Applied:05 Mar 2004] a residential tenancy agreement to which the Residential Tenancy Act 1997 applies;

(e) so far as regards –

(i) [Section 40 Subsection (3) amended by No. 36 of 2012, s. 14, Applied:13 Nov 2012] an easement arising by implication or under a statute which would have given rise to a legal interest if the servient land had not been registered land; or

(ia) [Section 40 Subsection (3) amended by No. 29 of 1997, s. 6, Applied:06 Nov 1997] [Section 40 Subsection (3) amended by No. 36 of 2012, s. 14, Applied:13 Nov 2012] an easement created by deed but unintentionally omitted from the folio of the Register for the servient land when that servient land was brought under this Act or the repealed Act; or

(ib) [Section 40 Subsection (3) amended by No. 36 of 2012, s. 14, Applied:13 Nov 2012] an easement that has been created under this Act but unintentionally omitted from the folio of the Register for the servient land; or

(ii) an equitable easement, except as against a bona fide purchaser for value without notice of the easement who has lodged a transfer for registration;

(f) so far as regards any portion of land that may be erroneously included in the folio of the Register or registered dealing evidencing the title of that registered proprietor by a wrong description of parcels or boundaries;

(g) so far as regards any money charged on land under any Act; and

(h) [Section 40 Subsection (3) amended by No. 36 of 2012, s. 14, Applied:13 Nov 2012] subject to section 138W , so far as regards rights acquired, or in the course of being acquired, under a statute of limitations; and

(i) so far as regards land which under the Land Acquisition Act 1993 has vested in an acquiring authority, within the meaning of that Act, and in respect of which that authority has not been registered as proprietor.

(3A)  [Section 40 Subsection (3A) inserted by No. 29 of 1997, s. 6, Applied:06 Nov 1997] The application of subsection (3)(e)(ia) extends to any land that was brought under this Act or the repealed Act before the commencement of the Land Titles Amendment (General Law Easements and Records) Act 1997 .

(4)  [Section 40 Subsection (4) amended by No. 23 of 2021, s. 45, Applied:01 Jan 2022] If the estate of a registered proprietor is a leasehold estate, the estate of the registered proprietor is subject also to the provisions of the lease and of this Act affecting leases, lessors, and lessees, and subleases, sublessors, and sublessees.

(5)  In every case, other than those mentioned in subsections (2) , (3) , and (4) , the title of a registered proprietor of land prevails, notwithstanding –

(a) the existence in any other person of any estate or 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; and

(b) any want of notice or insufficient notice of any application, or any error, omission, or informality in any application or proceedings under this Act.

(6)  In this section, interest means –

(a) any interest, mortgage, encumbrance, charge, reservation, or right in respect of land;

(b) any covenant, the burden of which runs with freehold land; or

(c) any claim or demand in respect of land –

whether at law or in equity.

41 Purchaser from registered proprietor not to be affected by notice

(1)  Subject to section 40 (3) (d) (iii) and to section 40 (3) (e) (ii) , except in the case of fraud, a person contracting or dealing with, or taking, or proposing to take a transfer from, the registered proprietor of any registered estate or interest shall not be required to inquire or ascertain the circumstances in or the consideration for which the registered proprietor or any previous registered proprietor of the estate or interest in question is or was registered, or to see to the application of the purchase-money, or of any part of that money, or shall not be affected by notice direct or constructive of any trust or unregistered interest.

(2)  The knowledge that any trust or unregistered interest is in existence shall not of itself be imputed as fraud.

42 Purchasers and mortgagees protected

[Section 42 Amended by No. 23 of 2021, s. 46, Applied:01 Jan 2022] Nothing in this Act shall be so interpreted as to leave subject to action for recovery of damages as provided in section 152 , or to action of ejectment as provided in section 149 , or to deprivation of the estate or interest in respect to which the purchaser or mortgagee is registered as proprietor, any purchaser or mortgagee in good faith for valuable consideration of registered land on the plea that the purchaser’s or mortgagee’s vendor or mortgagor may have been registered as proprietor through fraud or error, or under any void or voidable instrument, or may have derived from or through a person registered as proprietor through fraud or error, or under any void or voidable instrument, whether that fraud or error consists in wrong description of the boundaries or of the parcels of any land or otherwise.

43 Validity of registration in name of deceased person

The creation of a folio of the Register, or registration of a grant or a dealing, in a case where the person named in the folio as registered proprietor or the person taking an estate or interest under the grant or dealing died before the date of creation of the folio or registration of the grant or dealing, is as valid and effectual, and the estate and interest of that registered proprietor or person devolves in like manner, as if the creation or registration had been effected before the death of that registered proprietor or person.

44 Persons jointly registered to be joint tenants

Two or more persons who are named in a dealing as transferees or proprietors of an estate or interest shall, in the absence of words of severance, be entitled as joint tenants, and every such dealing, when registered, takes effect accordingly.

45 In suit for specific performance, folio of the Register conclusive evidence of title, &c.

In any action for specific performance brought by a registered proprietor of registered land against a person who not having notice of any fraud affecting the title of the vendor may have contracted to purchase that land, the folio of the Register certifying the title of the registered proprietor is conclusive evidence that the registered proprietor has a good and valid title to the land, and for the estate or interest mentioned or described in the folio.

46 Folio of the Register void in certain cases

Any folio of the Register –

(a) [Section 46 Amended by No. 36 of 2012, s. 15, Applied:13 Nov 2012] created upon the first bringing of land under this Act or of the repealed Act other than a folio created upon the registration of a grant or transfer from the Crown under section 10 ; or

(b) [Section 46 Amended by No. 36 of 2012, s. 15, Applied:13 Nov 2012] which names an applicant under section 138W(4) as proprietor pursuant to a vesting order made under section 138X ; or

(c) [Section 46 Amended by No. 36 of 2012, s. 15, Applied:13 Nov 2012] which names an applicant under section 138D as proprietor pursuant to that section –

and every folio or new edition of a folio created in respect of the same land, or any part of the land, which names as proprietor of the land any person claiming or deriving title under or through the applicant proprietor, shall be void as against the title of any person adversely in actual occupation of, and rightfully entitled to, that land, or any part of that land, at the time when that land was so brought under this Act or the repealed Act , or the applicant was so registered as proprietor, and continuing in that occupation at the time of any subsequent folio or new edition of a folio being created in respect of the land.

47 Certificate, recording, &c., procured by fraud void as between all parties to fraud

If any person –

(a) fraudulently procures, assists in fraudulently procuring, or is privy to the fraudulent procurement of any certificate of title or recording in the Register or of any cancellation or alteration in any recording in the Register, or in any instrument or form issued by the Recorder;

(b) fraudulently uses, assists in fraudulently using, or is privy to the fraudulent use of, any form purporting to be issued or sanctioned by the Recorder; or

(c) knowingly misleads or deceives any person authorized by this Act to demand explanation or information in respect of any land or the title to any land which is the subject of an application to bring it under this Act, or in respect of which any dealing or transmission is proposed to be registered or recorded –

any certificate of title, recording, cancellation, or alteration so procured or made by fraud is void as between all parties or privies to that fraud.

Part VI Estates and Interests in Land and Registration of Dealings

48 Dealings to be attested; order of registration; priority of dealings

(1)  Every dealing lodged for registration shall –

(a) except as may otherwise be prescribed, be attested by a witness who is not a party to the dealing;

(b) be lodged singly, in duplicate, or otherwise as prescribed; and

(c) comply with the prescribed requirements.

(1A)  *[Section 48 Subsection (1A) inserted by No. 21 of 1996, s. 8 ]*A dealing or instrument is taken to be lodged with the Recorder when a record is made in a device for storing or processing information approved under section 33 (3) (b) or 143A (3) (b) .

(2)  [Section 48 Subsection (2) amended by No. 23 of 2021, s. 47, Applied:01 Jan 2022] Where two or more dealings affecting the same land are lodged for registration at the same time by the same person and are awaiting registration, the Recorder shall register the dealings in the order in which the Recorder is requested in writing to do so by the person lodging the dealings.

(3)  [Section 48 Subsection (3) amended by No. 23 of 2021, s. 47, Applied:01 Jan 2022] [Section 48 Subsection (3) amended by No. 36 of 2012, s. 16, Applied:13 Nov 2012] *[Section 48 Subsection (3) amended by No. 21 of 1996, s. 8 ]*Where two or more dealings, lodged by different persons, or lodged by the same person at different times, affect the same land, the Recorder shall, subject to subsection (4) , register them in the order which will give effect to the intentions of the parties as expressed in, or apparent to the Recorder from, the dealings.

(4)  *[Section 48 Subsection (4) amended by No. 21 of 1996, s. 8 ]*Where the intentions of the parties referred to in subsection (3) appear to the Recorder to conflict, the order of registration shall be determined in the order in which a record is made in a device for storing or processing information approved under section 33 (3) (b) or 143A (3) (b) .

(5)  When registered, dealings affecting the same estate or interest shall, notwithstanding any express, implied, or constructive notice, be entitled in priority the one over the other according to the order in which they are registered and not according to the date of each dealing itself.

(6)  [Section 48 Subsection (6) amended by No. 23 of 2021, s. 47, Applied:01 Jan 2022] The Recorder, upon registering a dealing, shall deliver any duplicate of the dealing to the person appearing to the Recorder pursuant to section 54 to be entitled to the duplicate.

(7)  When registered, a dealing shall have the effect of a deed duly executed by the parties who signed it.

48A Lodgement of dealings and instruments

[Section 48A Inserted by No. 21 of 1996, s. 9 ][Section 48A Amended by No. 4 of 2001, Sched. 1, Applied:12 Apr 2001] [Section 48A Amended by No. 4 of 2001, Sched. 1, Applied:12 Apr 2001] [Section 48A Substituted by No. 36 of 2012, s. 17, Applied:13 Nov 2012] A dealing or instrument that may be lodged with the Recorder under this or another Act may be so lodged –

(a) by delivery of the original dealing or instrument; or

(b) if authorised by the Recorder, by the transmission, by electronic communication, of a copy of the original dealing or instrument; or

(c) [Section 48A Amended by No. 7 of 2023, s. 6, Applied:13 Jun 2023] by the lodgement of an electronic communication that –

(i) is set out in a format approved by the Recorder; and

(ii) allows the Recorder to produce the appropriate dealing or instrument in the approved form, the form approved by the Recorder or other form required by, or allowed under, this or another Act; or

(d) in any other manner approved by the Recorder.

48B Authority for lodgement by electronic process

[Section 48B Inserted by No. 21 of 1996, s. 9 ]

(1)  [Section 48B Subsection (1) amended by No. 4 of 2001, Sched. 1, Applied:12 Apr 2001] [Section 48B Subsection (1) substituted by No. 36 of 2012, s. 18, Applied:13 Nov 2012] The Recorder may make an agreement with a person authorising the person to prepare, lodge or prepare and lodge any dealing or instrument that may be lodged with the Recorder under this or another Act otherwise than by production of the original dealing or instrument.

(2)  An agreement must provide that the procedures to be followed –

(a) are comparable with the normal procedures adopted by the Recorder and will not adversely affect the register of title referred to in section 33 or the register of plans; and

(b) [Section 48B Subsection (2) amended by No. 4 of 2001, Sched. 1, Applied:12 Apr 2001] [Section 48B Subsection (2) amended by No. 36 of 2012, s. 18, Applied:13 Nov 2012] will ensure the accurate transmission by electronic communication of the dealing or instrument.

(3)  [Section 48B Subsection (3) amended by No. 23 of 2021, s. 48, Applied:01 Jan 2022] [Section 48B Subsection (3) amended by No. 36 of 2012, s. 18, Applied:13 Nov 2012] [Section 48B Subsection (3) amended by No. 4 of 2001, Sched. 1, Applied:12 Apr 2001] The Recorder may require a person seeking to lodge a dealing or instrument by electronic means to produce documentary evidence that the person is authorised to do so.

48C Lodgement of supporting documents

[Section 48C Inserted by No. 21 of 1996, s. 9 ][Section 48C Amended by No. 4 of 2001, Sched. 1, Applied:12 Apr 2001] [Section 48C Amended by No. 36 of 2012, s. 19, Applied:13 Nov 2012] [Section 48C Amended by No. 7 of 2023, s. 7, Applied:13 Jun 2023] The application of sections 48A and 48B extend to the preparation and lodgement by electronic means of any document required by the Recorder in support of the dealing or instrument.

49 Instruments not effectual until registered

(1)  An instrument shall not be effectual to pass any estate or interest in registered land, or to render that land liable as security for the payment of money; but upon the registration of any instrument in accordance with this Act the estate or interest specified in the instrument shall pass, or the land shall become liable as security, in the manner and subject to the covenants, conditions, and contingencies set forth and specified in the instrument or by this Act declared to be implied in instruments of a like nature.

(2)  [Section 49 Subsection (2) amended by No. 23 of 2021, s. 49, Applied:01 Jan 2022] A person on whom the right to be registered as the proprietor of registered land has –

(a) devolved by reason of the death or bankruptcy of the registered proprietor or otherwise by operation of law; or

(b) been conferred by a dealing –

may, subject to such conditions (if any) as may be prescribed, execute and lodge for registration instruments dealing with the land before the person is registered as proprietor.

(3)  An instrument lodged for registration pursuant to subsection (2) is, when registered, as valid and effectual as if the person executing it had been registered as proprietor at the date of execution of the instrument.

(4)  [Section 49 Subsection (4) amended by No. 7 of 2023, s. 8, Applied:13 Jun 2023] Where two or more dealings which affect the same land are awaiting registration the Recorder may, if he thinks fit, register those dealings by making a single recording in the Register, referring in the recording to the lodgement numbers of those dealings or otherwise identifying them.

(5)  For the purposes of Part XI , a person expressed in a dealing registered pursuant to subsection (4) as taking an estate or interest in registered land shall be deemed to have become registered as proprietor of that estate or interest according to the tenor of the dealing.

50 Dealings not to be registered except in accordance with this Act

(1)  Subject to this section, the Recorder shall not register any dealing except as provided in this Act and unless the dealing is in accordance with this Act.

(2)  Where a dealing that is not in accordance with this Act is lodged for registration, the Recorder shall –

(a) require it to be amended as provided in subsection (4) ;

(b) [Section 50 Subsection (2) amended by No. 23 of 2021, s. 50, Applied:01 Jan 2022] amend it as provided in subsection (6) ; or

(c) refuse to register it.

(3)  [Section 50 Subsection (3) amended by No. 23 of 2021, s. 50, Applied:01 Jan 2022] Notwithstanding any other provision of this Act, the Recorder may, in the Recorder’s discretion, register a dealing notwithstanding any error in or omission from the dealing and where a dealing is so registered the error or omission does not invalidate its registration.

(4)  [Section 50 Subsection (4) amended by No. 23 of 2021, s. 50, Applied:01 Jan 2022] If, in the opinion of the Recorder, a dealing which is lodged with the Recorder for registration is erroneous, incomplete, or defective in any particular, the Recorder may by notice in writing require the person by whom the dealing was lodged, or the person’s agent, to re-execute, complete, or correct the dealing or procure the re-execution, completion, or correction of the dealing in such manner as may be specified in the notice.

(5)  [Section 50 Subsection (5) amended by No. 23 of 2021, s. 50, Applied:01 Jan 2022] [Section 50 Subsection (5) amended by No. 23 of 2021, s. 50, Applied:01 Jan 2022] If a person to whom a notice under subsection (4) is forwarded fails, within the prescribed period, to re-execute, complete, or correct the dealing, or to procure the re-execution, completion, or correction of the dealing in accordance with the notice, the Recorder shall, after such delay (if any) as the Recorder thinks proper, deal with the dealing as if the Recorder had not required any amendment.

(6)  [Section 50 Subsection (6) amended by No. 23 of 2021, s. 50, Applied:01 Jan 2022] [Section 50 Subsection (6) amended by No. 36 of 2012, s. 20, Applied:13 Nov 2012] The Recorder may, of the Recorder’s own motion, correct a patent error in a dealing lodged for registration by notation, and after an error is so corrected the dealing has the same validity and effect as if the error so corrected had not been made.

(7)  [Section 50 Subsection (7) amended by No. 23 of 2021, s. 50, Applied:01 Jan 2022] The Recorder may refuse to register a dealing which in the Recorder’s opinion cannot be registered because another dealing is required to be registered before it, and that other dealing has not been lodged, or is not in order, for registration.

(8)  [Section 50 Subsection (8) amended by No. 23 of 2021, s. 50, Applied:01 Jan 2022] [Section 50 Subsection (8) amended by No. 23 of 2021, s. 50, Applied:01 Jan 2022] Where the Recorder refuses to register a dealing, the Recorder shall notify the person by whom the dealing was lodged or the person’s agent of the Recorder’s refusal, and may retain one-half of the fees paid on the lodging of the dealing.

(9)  [Section 50 Subsection (9) amended by No. 23 of 2021, s. 50, Applied:01 Jan 2022] [Section 50 Subsection (9) amended by No. 23 of 2021, s. 50, Applied:01 Jan 2022] [Section 50 Subsection (9) amended by No. 23 of 2021, s. 50, Applied:01 Jan 2022] Where the Recorder refuses to register a dealing, the Recorder may also refuse to register a dealing which appears to the Recorder to be intended to be registered subsequent to the first-mentioned dealing, or which, in the Recorder’s opinion, could only be registered after the registration of the first-mentioned dealing.

(10)  [Section 50 Subsection (10) amended by No. 4 of 2017, Sched. 1, Applied:01 Jul 2019] [Section 50 Subsection (10) amended by No. 9 of 2003, Sched. 1, Applied:16 Apr 2003] All fees retained by the Recorder in accordance with subsection (8) shall be paid into the Public Account.

(11)  [Section 50 Subsection (11) amended by No. 23 of 2021, s. 50, Applied:01 Jan 2022] [Section 50 Subsection (11) amended by No. 68 of 2000, s. 62, Applied:04 Apr 2001] [Section 50 Subsection (11) substituted by No. 36 of 2012, s. 20, Applied:13 Nov 2012] The Recorder is not to register a dealing that purports to be executed under or in pursuance of a power of attorney unless the Recorder is satisfied that –

(a) the power of attorney is registered under the Powers of Attorney Act 2000 ; or

(b) in the case of a foreign power of attorney within the meaning of the Powers of Attorney Act 2000 , the foreign power of attorney is registered under, or taken to be registered in Tasmania for the purposes of, that Act.

(11A)  [Section 50 Subsection (11A) inserted by No. 36 of 2012, s. 20, Applied:13 Nov 2012] If satisfied as specified in subsection (11) , the Recorder is entitled to assume that the execution of the dealing is within the powers conferred on the attorney by the relevant power of attorney or foreign power of attorney.

(12)  [Section 50 Subsection (12) amended by No. 23 of 2021, s. 50, Applied:01 Jan 2022] [Section 50 Subsection (12) amended by No. 23 of 2021, s. 50, Applied:01 Jan 2022] If the Recorder is of the opinion that by reason of amendments made or to be made in a dealing the dealing will be inconvenient for subsequent use, the Recorder may require the person by whom it was lodged, or the person’s agent, to lodge within 30 days from the date of the requisition a fresh dealing to the same effect as the original dealing has, or would have, after amendment.

(13)  [Section 50 Subsection (13) amended by No. 7 of 2023, s. 9, Applied:13 Jun 2023] A dealing lodged pursuant to subsection (12) has effect as if it had been lodged in place of the original dealing, and if validly made in fact is not invalid merely because it could not have been validly made at the date of lodgement of the original dealing.

(14)  A requirement or refusal made by the Recorder under this section in respect of a dealing shall be notified in writing to the person by whom the dealing was lodged or his agent.

(15)  [Section 50 Subsection (15) amended by No. 66 of 2007, Sched. 1, Applied:31 Dec 2008] Where a legal practitioner is acting as or for the agent referred to in subsection (14) the notification shall be sent to that legal practitioner.

(16)  For the purposes of this section –

registration includes all methods of recording in the office of the Recorder;

the prescribed period means –

(a) in the case of a caveat, or a writ referred to in section 61 , a period of 21 days; and

(b) [Section 50 Subsection (16) amended by No. 23 of 2021, s. 50, Applied:01 Jan 2022] in any other case, a period of 90 days –

after the date of the notice under subsection (4) .

51 Recording of dealing on certificate of title, &c.

(1)  [Section 51 Subsection (1) substituted by No. 23 of 2021, s. 51, Applied:01 Jan 2022] The Recorder must not register a dealing unless –

(a) the certificate of title, if any; or

(b) the grant, if any; or

(c) the duplicate registered dealing, if any –

to be affected by the dealing has been lodged with the Recorder for the purpose of registering that dealing.

(2)  Subsection (1) does not apply to the following dealings:

(a) the recording of a writ (referred to in section 61 ) and the registration of a transfer pursuant to a writ under section 61 ;

(b) discharges of mortgages pursuant to section 90 , and discharges of mortgages or encumbrances pursuant to sections 91 and 148 ;

(ba) [Section 51 Subsection (2) amended by No. 36 of 2012, s. 21, Applied:13 Nov 2012] in respect of the registration of a transfer on the exercise of a power of sale by a mortgagee or encumbrancee under section 78 , the memorandum of mortgage or the memorandum of encumbrance;

(c) satisfactions of encumbrances pursuant to section 94 ;

(d) orders under section 110 after notice has been given under subsection (4) of that section;

(e) [Section 51 Subsection (2) amended by No. 36 of 2012, s. 21, Applied:13 Nov 2012] action taken by the Recorder under section 138A , section 138B , section 138D or section 138X ;

(f) [Section 51 Subsection (2) amended by No. 36 of 2012, s. 21, Applied:13 Nov 2012] [Section 51 Subsection (2) amended by No. 23 of 2021, s. 51, Applied:01 Jan 2022] any other dealing where the Recorder considers that the production of the certificate of title, grant or registered dealing, if any, is not required.

(3)  Subsection (1) does not apply –

(a) [Section 51 Subsection (3) amended by No. 23 of 2021, s. 51, Applied:01 Jan 2022] where the Recorder dispenses, pursuant to section 160 (5) , with production of –

(i) a certificate of title, if any; or

(ii) a grant, if any; or

(iii) a duplicate registered dealing, if any; or

(b) [Section 51 Subsection (3) amended by No. 23 of 2021, s. 51, Applied:01 Jan 2022] where by the provisions of this or any other Act the Recorder is, expressly or by necessary implication, required or authorized to make the recording without production of –

(i) a certificate of title, if any; or

(ii) a grant, if any; or

(iii) a duplicate registered dealing, if any.

(4)  [Section 51 Subsection (4) amended by No. 36 of 2012, s. 21, Applied:13 Nov 2012] [Section 51 Subsection (4) amended by No. 36 of 2012, s. 21, Applied:13 Nov 2012] On registering a dealing, the Recorder shall note on the dealing the fact and date of its registration, and that notation shall be conclusive evidence that the dealing was duly registered on that date.

(5)  [Section 51 Subsection (5) amended by No. 23 of 2021, s. 51, Applied:01 Jan 2022] Where under subsection (1) a certificate of title, grant, or duplicate registered dealing is required to be lodged with the Recorder before the Recorder registers a dealing, the Recorder may, except as may otherwise be prescribed –

(a) [Section 51 Subsection (5) amended by No. 23 of 2021, s. 51, Applied:01 Jan 2022] make the same recording on –

(i) the relevant certificate of title, if any; or

(ii) the grant, if any; or

(iii) the duplicate registered dealing, if any –

as the Recorder has made on the folio of the Register or registered dealing to give effect to the dealing; or

(b) issue a certificate of title, or a new edition of the certificate of title, in accordance with the folio of the Register.

(6)  [Section 51 Subsection (6) substituted by No. 23 of 2021, s. 51, Applied:01 Jan 2022] Where the Recorder has registered a dealing without the certificate of title, grant or duplicate registered dealing being produced to the Recorder, then, when the certificate of title, grant or duplicate registered dealing is next produced to the Recorder for any purpose, the Recorder may act as provided in subsection (5) .

(7)  [Section 51 Subsection (7) substituted by No. 23 of 2021, s. 51, Applied:01 Jan 2022] Nothing in this section affects any power of the Recorder to compel production to the Recorder of the certificate of title, if any, the grant, if any, or the duplicate registered dealing, if any.

(8)  A failure by the Recorder to comply with any of the requirements of subsections (1) , (5) , and (6) does not invalidate the registration of a dealing.

(9)  Nothing in this section requires the Recorder to record –

(a) [Section 51 Subsection (9) amended by No. 23 of 2021, s. 51, Applied:01 Jan 2022] on a certificate of title, if any, or a grant, if any  –

(i) a caveat;

(ii) a priority notice; or

(iii) a dealing of a prescribed kind; or

(b) [Section 51 Subsection (9) amended by No. 23 of 2021, s. 51, Applied:01 Jan 2022] on a registered dealing or duplicate registered dealing, if any, any dealing –

which is recorded on the folio of the Register constituting the title to the land affected by the caveat, priority notice, or dealing.