40Estate of registered proprietor indefeasible

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conflicting estates in respect of the same land, in which case the title which was first brought under this Act or the repealed Act defeats the titles subsequently brought under this Act or the repealed Act ;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 purchaser for value without notice of the lease who has lodged a transfer for registration; and