Transfer of Land Act 1958

The Act has broad reach. Registered proprietors (s.4) hold the paramount title (s.42) and bear duties to maintain insurance under mortgages (s.75) and to verify identity when granting mortgages (s.87A). Purchasers and transferees rely on the Register (s.43) and obtain indefeasible title on registration unless fraud is proven. Mortgagees enjoy extensive powers of sale (s.77), possession (s.78), and foreclosure (s.79), but must comply with identity verification (s.87A) and obtain consent before certain leases or easements can bind them (s.87C). Fraudulent mortgages trigger specific indemnity limits (ss.87D–87E).

Caveators (Division 1 of Part V) can temporarily prevent registration (s.89) but risk compensation if the caveat lacks reasonable cause (s.118). Lessors and lessees operate under implied covenants (s.67) and must record leases exceeding three years (s.66). Easement and covenant holders obtain notification on the folio (s.72, s.88) but may lose rights through abandonment (s.73A) or mortgagee action (s.88B).

Developers and subdividers must comply with survey standards (s.95), plan registration (s.97), and owners corporation rules when converting building subdivisions (ss.98CA–98CF). Legal practitioners and conveyancers certify title on conversion (s.16, Schedule 5A), verify identity, and risk personal liability for defective certificates (s.110(1)(aa)). The Registrar exercises extensive discretions (s.26S, s.106, s.106A) and is protected from liability for bona fide acts (s.117) but can be summoned to justify refusals (s.116).

The Crown is bound (s.3(3)) and must deliver grants to the Registrar (s.8(2)). Acquiring authorities obtain automatic vesting and new folios (s.54). Banks and authorised deposit-taking institutions appear throughout mortgage provisions. Municipal councils must consent to creation or surrender of carriageways (s.73B) and are notified of vesting orders (s.62(4)).

Finally, any person claiming an unregistered interest is affected by the paramountcy of the Register (s.42) and the notice rules (s.43). The Act therefore touches every participant in the Victorian land market.

Registered proprietors have the right to deal with their land (s.45) and enjoy indefeasible title subject to recorded encumbrances and the exceptions in s.42(2). They must produce the certificate of title when required (s.86) and may apply to amend the Register (s.99) or remove caveats (s.89A). Their paramount estate is protected against unregistered interests (s.42(1)) but remains subject to fraud (s.44), short leases (s.42(2)(e)), and adverse possession (s.42(2)(b)).

Mortgagees hold a statutory charge (s.74) with implied covenants (s.75) and extensive default remedies: notice (s.76), sale (s.77), possession (s.78), and foreclosure (s.79). They must verify mortgagor identity (s.87A) and obtain consent before leases or easements bind them (s.87C). A mortgagee exercising power of sale must act in good faith and regard the mortgagor's interests (s.77(1)).

Caveators have the right to prevent registration (s.89, s.91) but must substantiate their claim within 30 days or the caveat lapses (s.90). They may seek compensation if a priority notice is lodged without reasonable cause (s.91J).

The Registrar must keep the Register (s.27), register instruments in lodgment order (s.34), and give effect to court orders (s.103(1)). The Registrar may refuse registration for non-compliance with s.106A requirements, create or cancel folios (s.27(9)), and require identity verification (s.27AB). The Registrar's decisions are reviewable by summons (s.116).

Purchasers are protected by the "no notice" rule (s.43) and obtain priority according to lodgment (s.34). They may rely on the Register as conclusive evidence (s.41).

Beneficiaries of easements, covenants, or leases obtain recording on the folio (ss.72, 88, 66) but must obtain mortgagee consent in certain cases (s.87C). Abandonment of easements after 30 years' non-use can lead to removal (s.73(3)).

Applicants for conversion must lodge deeds, searches, and certificates (ss.14, 15, 23). They gain the benefit of the 15-year warning removal (ss.21, 26C) but cannot subdivide provisional folios (s.26L).

Indemnity rights under s.110 are central: any person suffering loss from Register error, fraud, or Registrar misfeasance may claim against the Consolidated Fund, subject to the exclusions in s.110(3).

The Act creates both civil and criminal sanctions. Fraudulently procuring registration or making false statements attracts up to 25 penalty units or three years' imprisonment (s.119(1)). Lesser breaches attract 5 penalty units (s.119(2)). Lodging a caveat without reasonable cause exposes the caveator to compensation (s.118). Lodging a priority notice without reasonable cause triggers liability to compensate affected persons (s.91J).

Civil enforcement is primarily through the Register itself. Unregistered instruments are ineffective (s.40). A registered proprietor may sue for ejectment or damages where a mortgagee wrongfully exercises power of sale. Mortgagees may recover possession (s.78) or obtain vesting orders (s.47). Caveats are enforced by court order (s.90(3), s.91I). The Registrar may remove caveats (s.89A), cancel folios (s.27(11)), or refuse registration (s.105).

Indemnity claims are brought against the Registrar as nominal defendant (s.110(2)). The Registrar may recover from the person actually responsible (s.109(3)). Court orders under s.103(1) or s.116 are enforced by the Registrar's statutory duty to obey.

The Registrar's powers under s.106 and s.104 provide administrative enforcement: requisitions, production of documents, and cancellation of instruments. Non-compliance allows the Registrar to reject lodgements and forfeit fees (s.105, s.108A).

Recent amendments have added specific sanctions for identity verification failures (ss.87D–87E) and fraudulent mortgages, limiting the mortgagee's recovery to the amount payable under the indemnity cap (s.110(4)(c)).

The Act is expressed to prevail over inconsistent laws (s.3(1)) but carves out the Property Law Act 1958 (s.3(2)) for land under the Torrens system. It expressly applies to the Crown (s.3(3)).

It works in tandem with the Subdivision Act 1988. Plans of subdivision must be approved by the Registrar (s.97) and create new folios (s.27(8)). Easements and covenants created on subdivision are recorded under s.72 and s.88. Conversion of building subdivisions (ss.98CA–98CF) requires compliance with both Acts and the Owners Corporations Act 2006.

The Electronic Conveyancing National Law (Victoria) is integrated through the definitions of "ELN", "conveyancing transaction", and "subscriber" (s.4) and the registry instrument provisions (Part IIIB). Participation rules made under that Law are given force via s.106A.

The Limitation of Actions Act 1958 supplies the 15-year periods for provisional folio conversion (ss.26C, 26Y) and mortgage discharge (s.84(2)). Adverse possession claims are determined under s.60–62.

The Planning and Environment Act 1987 authorises certain easements and covenants that bypass normal notification requirements (s.72(2A), s.88(1A)).

Interaction with bankruptcy law is preserved (s.51(4)). Sheriff sales under writs of fieri facias are regulated by s.52, giving priority to the first lodged transfer.

The Act interfaces with the Conveyancers Act 2006 and Legal Profession Uniform Law through the roles of legal practitioners and conveyancers in certification (s.16, Schedule 5A) and identity verification.

Taxation statutes are accommodated by the requirement to note unpaid land tax and rates (s.42(2)(f)). Carbon and mineral rights are excluded from the definition of "land" (s.4).

Transitional provisions (Part VII) ensure continuity from the general law and earlier Torrens statutes.

The most significant recent amendments were introduced by the Transfer of Land Amendment Act 2014 (No. 70/2014). That Act inserted Division 1B of Part V (priority notices, ss.91C–91J), Division 2A (client authorisations, ss.91K–91L), and Division 2B (signature rules, s.91M). It also inserted ss.87A–87E dealing with identity verification by mortgagees and transferees of mortgages, and amended s.74 to allow mortgage registration on certification rather than production of the original mortgage. These changes were driven by the national move to electronic conveyancing and the need to reduce fraud in mortgage lending.

The Land Legislation Amendment Act 2009 (No. 80/2009) modernised the language around certificates of title, introduced electronic certification (s.44S), and expanded Registrar discretions not to produce certificates (s.27B(7B)). It removed obsolete references to duplicate certificates and aligned the Act with computerised record-keeping.

The Electronic Conveyancing (Adoption of National Law) Act 2013 integrated the national framework, repealed the former Part IIIA, and inserted Part IIIB. Amendments in 2017 (Land Legislation Amendment Act 2017) further refined priority notice extensions (s.91FA), judgment creditor removal of notices (s.52(6A)–(6B)), and mortgage discharge where the mortgagee cannot be located (s.84(2)).

The Statute Law Amendment (References to the Sovereign) Act 2023 updated gender-specific language (e.g. "His Majesty" to gender-neutral terms). The Regulatory Legislation Amendment (Reform) Act 2025 has further adjusted assurance contribution rules (s.108) and Registrar requirements under s.106A.

These changes reflect the shift from paper to digital conveyancing, the need to combat mortgage fraud, and the integration of national electronic systems while preserving the core indefeasibility principles established in 1958.

The classic controversy remains the balance between indefeasibility and justice. In Bahr v Nicolay (No 2) (1988) 164 CLR 604 the High Court held that a registered proprietor who took with notice of a prior unregistered interest could be bound by a constructive trust. Victorian courts have applied s.43 strictly: mere notice does not defeat indefeasibility (Macquarie Bank Ltd v Sixty-Fourth Throne Pty Ltd [1998] 3 VR 133).

Fraud exceptions continue to generate litigation. The meaning of "fraud" in s.42 and s.44 requires actual dishonesty, not constructive notice (Assets Co Ltd v Mere Roihi [1905] AC 176, adopted in Victoria). Recent cases have examined mortgage fraud where identity theft occurs despite purported compliance with s.87A verification (see Bank of Western Australia Ltd v Loiterton [2015] VSC 343). The 2014 amendments (ss.87D–87E) were a direct legislative response, capping recovery and preserving indemnity rights for innocent proprietors.

Possessory title applications under s.60 have produced controversy over the evidentiary threshold. Courts require clear evidence of adverse possession for the full limitation period (Abbatangelo v Whittlesea City Council [2007] VSCA 17). The interaction with provisional folios (s.26K) has led to disputes about whether a warning under Part IV of the Fifth Schedule prevents indefeasibility for boundary errors.

The introduction of priority notices has generated litigation on "reasonable cause" (s.91J). Early cases tested whether a priority notice could be used to protect an equitable mortgage before formal registration.

Registrar discretions under s.106 and s.26S have been challenged on natural justice grounds, though courts generally defer to the Registrar's expertise (Director of Consumer Affairs Victoria v Scully (2013) 303 ALR 168).

Controversy also surrounds the conversion schemes. The 15-year sunset for warnings (ss.21, 26C, 26Y) has been criticised for potentially extinguishing legitimate unregistered interests without sufficient notice.

Overall, courts have upheld the Act's policy of certainty and efficiency while carving out equitable exceptions in cases of clear fraud or unjust enrichment.

Most practitioners know indefeasibility is subject to fraud, but fewer appreciate that "fraud" requires actual dishonesty by the registered proprietor or their agent—mere knowledge of an unregistered interest is insufficient (s.43). The "in personam" exception (constructive trusts) is narrow and requires a recognised legal or equitable cause of action independent of the Register.

The identity verification provisions (ss.87A–87B) are a trap. A mortgagee who certifies compliance but fails to take "reasonable steps" risks the mortgage being voided by the Registrar (s.87D(5)). The safe harbour is strict adherence to the requirements determined under s.106A or the ELN participation rules. Transferees of mortgages must independently verify or confirm the original mortgagee's steps.

Priority notices (s.91C) give 60 days' priority but only for the exact instrument described. Any material mismatch causes rejection (s.91H). The single-extension rule (s.91FA) means tactical use is limited.

Provisional folios cannot be subdivided (s.26L). Many clients discover this too late when attempting to develop land still on a provisional title.

The Registrar's power to dispense with production of certificates (s.27B(7B)) and to treat certificates as destroyed (s.27(11A)) can leave practitioners without physical title documents, complicating enforcement against third parties who rely on the paper instrument.

Section 42(2)(e) preserves the interest of a tenant in possession even if unregistered. This "overriding interest" is frequently overlooked in mortgagee sales.

Caveats lodged by beneficiaries under wills or settlements lapse in certain trustee transactions (s.90(1)(c)), a nuance that can catch inexperienced practitioners.

Finally, the indemnity cap for fraudulent mortgages (s.110(4)(c)) limits recovery to the Bank Accepted Bills rate, which is often lower than the contractual mortgage rate. Mortgagees who fail to verify identity properly may be left significantly out of pocket.

Compliance begins with thorough due diligence. For purchasers, obtain a current folio search, plan of subdivision search, and check for caveats, priority notices, and statutory charges. Verify the vendor's identity against the Register and ensure the contract contains appropriate warranties.

When acting on conversion under Part II, prepare a full title search (s.26J), obtain all deeds (ss.14, 15, 23), and provide a comprehensive legal practitioner's certificate (s.16, Schedule 5A). Disclose every qualification; failure can expose the practitioner to indemnity claims (s.110(1)(aa)).

For mortgages, the mortgagee must verify mortgagor identity in accordance with s.106A requirements or ELN participation rules (s.87A). Retain the original mortgage until discharge (s.74(3)). When transferring a mortgage, the transferee must either confirm the original steps or repeat verification (s.87B).

Electronic lodgements must use an ELN by an authorised subscriber. Client authorisations (s.91K) must be in the exact form approved under s.106A. Retain all supporting evidence for the period stipulated in the Registrar's requirements.

When registering plans of subdivision, obtain council certification, ensure owners corporation documents comply with the Subdivision Act 1988, and record all easements and covenants (s.98). For building subdivision conversions (s.98CA), secure consents from at least half the proprietors or court approval (s.98CE).

To remove caveats or warnings, follow the exact notice and lapse procedures (ss.89A, 90, 26P). Always serve the registered proprietor and allow the full 30-day period.

For mortgagees exercising power of sale, give proper notice (s.76), act in good faith (s.77(1)), and apply proceeds strictly in the statutory order (s.77(3)). Obtain a court order if proceeding without the certificate of title (s.84(2)).

Keep accurate records of all identity checks, certifications, and client authorisations. The Registrar can require production at any time (s.104). Non-compliance risks rejection of the dealing and forfeiture of fees (s.105, s.108A).

When in doubt, use the Registrar's discretion provisions (s.26S, s.106) or seek a court declaration. Regular training on s.106A requirements and ELN rules is essential. Compliance is not merely mechanical; it requires a deep understanding of the interplay between indefeasibility, the fraud exception, and the specific verification and certification obligations imposed on practitioners and lenders.