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.
(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
Section 28 - Land Titles Act 1980 - How certain estates and interests dealt with when land brought under this Act | Zoe
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.
(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) 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.
(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.
(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.