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TASMANIA
__________
LAND TITLES AMENDMENT BILL 2012
__________
CONTENTS
1. Short title
2. Commencement
3. Principal Act
4. Section 3 amended (Interpretation)
5. Section 11 amended (Applications to bring land under this Act)
6. Section 13 amended (Notices)
7. Section 14 amended (Caveat forbidding the bringing of land
under this Act)
8. Section 17 amended (Land may be brought under this Act on
registration of instruments under the Registration of Deeds Act
1935)
9. Section 19 amended (Land may be brought under this Act at the
instance of the Recorder)
10. Section 25 amended (Caution to lapse after 20 years)
11. Section 27A amended (Certain Crown land may be brought
under this Act)
12. Section 33 amended (The Register, certificates of title and
registration)
13. Section 36 amended (Searches of public records)
14. Section 40 amended (Estate of registered proprietor indefeasible)
15. Section 46 amended (Folio of the Register void in certain cases)
[Bill 28]-III
16. Section 48 amended (Dealings to be attested; order of
registration; priority of dealings)
17. Section 48A substituted
48A. Lodgment of dealings and instruments
18. Section 48B amended (Authority for lodgment by electronic
process)
19. Section 48C amended (Lodgment of supporting documents)
20. Section 50 amended (Dealings not to be registered except in
accordance with this Act)
21. Section 51 amended (Recording of dealing on certificate of title,
&c.)
22. Section 54 amended (Delivery of certificate of title or duplicate
registered dealing)
23. Section 58 amended (Transfer)
24. Section 61 amended (Sale under writ)
25. Section 63 amended (Severance of joint tenancy)
26. Section 71 amended (Folio of the Register for a leasehold estate)
27. Section 76 amended (Postponement of mortgages and
encumbrances)
28. Section 78 amended (Power to sell and appropriation of
proceeds)
29. Section 102 amended (Covenants which run with freehold
registered land)
30. Section 104A inserted
104A. Discharge of covenants in gross
31. Section 108 amended (Release and extinguishment of easements
and profits à prendre)
32. Section 110 amended (Rectification of easements, &c., in old
subdivisions)
33. Section 136A inserted
136A. Cancellation of caveat on application of proprietor of
estate or interest
34. Section 137 amended (No registration affecting land in respect
of which caveat lodged)
35. Section 138D amended (Recorder may make vesting order in
certain circumstances when purchaser in possession)
2
36. Section 138E amended (Caveat forbidding granting of
application under section 138D)
37. Section 138F amended (Restriction on renewal of caveats)
38. Section 138H substituted
138H. Application to unregistered land
39. Section 138J substituted
138J. Acquisition of easements by possession
40. Section 138K amended (Applicant to notify owner of servient
tenement)
41. Section 138L amended (Requirements for application)
42. Section 138V amended (Requirements for title by possession)
43. Section 138W amended (Registered proprietor to hold land on
trust)
44. Section 138X amended (Power of Recorder to make vesting
order)
45. Section 142 substituted
142. Rectification of boundaries, area or position of land
46. Section 143C amended (Recorder may correct errors on plans)
47. Section 144 amended (Proprietor if dissatisfied may summon
Recorder to show cause)
48. Section 146 amended (Mortgagee, encumbrancee or lessor may
obtain possession in certain cases)
49. Section 150 amended (The assurance fund)
50. Section 153 amended (When action may lie against Recorder as
nominal defendant)
51. Section 154 amended (Date of deprivation in certain cases)
52. Section 155 amended (Person sustaining loss may apply for
compensation)
53. Section 158 amended (Limitation of actions)
54. Section 162 amended (Recorder may require map to be
deposited)
55. Section 168 amended (Service, &c., of notices)
56. Section 170 amended (Regulations)
57. Repeal of Act
3
4
LAND TITLES AMENDMENT BILL 2012
(Brought in by the Minister for Primary Industries and Water,
the Honourable Bryan Alexander Green)
A BILL FOR
An Act to amend the Land Titles Act 1980
Be it enacted by His Excellency the Governor of Tasmania, by
and with the advice and consent of the Legislative Council and
House of Assembly, in Parliament assembled, as follows:
1. Short title
This Act may be cited as the Land Titles
Amendment Act 2012.
2. Commencement
This Act commences on the day on which this
Act receives the Royal Assent.
3. Principal Act
In this Act, the Land Titles Act 1980* is referred
to as the Principal Act.
*No. 19 of 1980
[Bill 28] 5
Land Titles Amendment Act 2012
Act No. of
s. 4
4. Section 3 amended (Interpretation)
Section 3(1) of the Principal Act is amended as
follows:
(a) by inserting the following definitions
after the definition of duplicate
registered dealing:
electronic communication has the
same meaning as in the
Electronic Transactions Act
2000;
electronic dealing means a dealing
that is an electronic
communication;
(b) by omitting "the" second occurring from
the definition of encumbrance and
substituting "a current, future or
contingent";
(c) by inserting "survey," after "plan," in the
definition of instrument;
(d) by inserting the following definitions
after the definition of mortgagor:
newspaper does not include a
newspaper published solely in
electronic form;
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
6
Land Titles Amendment Act 2012
Act No. of
s. 5
Declarations to be a true copy of
the order;
5. Section 11 amended (Applications to bring land
under this Act)
Section 11(1) of the Principal Act is amended as
follows:
(a) by omitting from paragraph (e)
"application." and substituting
"application;";
(b) by inserting the following paragraph after
paragraph (e):
(f) the legal practitioner acting for a
person referred to in
paragraph (a), (b), (c), (d) or (e).
6. Section 13 amended (Notices)
Section 13 of the Principal Act is amended by
omitting subsection (1) and substituting the
following subsection:
(1) 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) post on the land, or at such place
as the Recorder directs, and keep
so posted for not less than one
7
Land Titles Amendment Act 2012
Act No. of
s. 7
month before the granting of the
application; and
(b) publish, not less than one month
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.
7. Section 14 amended (Caveat forbidding the
bringing of land under this Act)
Section 14 of the Principal Act is amended as
follows:
(a) by omitting from subsection (2)(b) "the
Supreme Court." and substituting "a
court of competent jurisdiction.";
(b) by omitting from subsection (3)(b) "the
Supreme Court" and substituting "a court
of competent jurisdiction";
(c) by omitting subsection (4) and
substituting the following subsection:
(4) Unless permitted by a Supreme
Court order, a caveat that has
lapsed under subsection (3) may
not be renewed and a new caveat
8
Land Titles Amendment Act 2012
Act No. of
s. 8
may not be lodged by or on
behalf of the same person in
respect of the same estate or
interest.
8. Section 17 amended (Land may be brought under
this Act on registration of instruments under the
Registration of Deeds Act 1935)
Section 17 of the Principal Act is amended as
follows:
(a) by omitting from subsection (1) "Except
as may be otherwise prescribed under
subsection (4), a person who on or after
the appointed day lodges for registration
under the" and substituting "A person
who lodges for registration under the";
(b) by omitting from subsection (1)(b)
"simple -" and substituting "simple; or";
(c) by inserting the following paragraph after
paragraph (b) in subsection (1):
(ba) any other instrument that affects
land -
(d) by omitting from subsection (1)
"Registrar of Deeds" and substituting
"Recorder";
(e) by omitting from subsection (1A)
"Registrar of Deeds" and substituting
"Recorder";
9
Land Titles Amendment Act 2012
Act No. of
s. 8
(f) by omitting from subsection (2)
"Registrar of Deeds" and substituting
"Recorder";
(g) by omitting from subsection (2) "fee
simple" and substituting "fee simple,
another instrument that affects land";
(h) by omitting from subsection (3)
"mortgage" first occurring and
substituting "mortgage, other
instrument";
(i) by omitting from subsection (3)
"Registrar of Deeds shall give it, and the
statement and instruments referred to in
subsection (1) or (1A), to the Recorder,
who may then" and substituting
"Recorder may";
(j) by omitting from subsection (3)(a)
"mortgage" and substituting "mortgage,
other instrument";
(k) by omitting from subsection (3)(b)
"retain" and substituting "return";
(l) by omitting from subsection (3)(b)
"mortgage or forestry right and" and
substituting "mortgage, other instrument
or forestry right and any";
(m) by omitting from subsection (3)(b)
"custody." and substituting "custody to
the lodging party.";
(n) by omitting subsection (4).
10
Land Titles Amendment Act 2012
Act No. of
s. 9
9. Section 19 amended (Land may be brought under
this Act at the instance of the Recorder)
Section 19(3) of the Principal Act is amended by
omitting "Act within 10 years after the appointed
day." and substituting "Act.".
10. Section 25 amended (Caution to lapse after 20
years)
Section 25(3) of the Principal Act is amended by
omitting "section 117(4), or section 119(4)" and
substituting "section 138W(4) or
section 138X(4)".
11. Section 27A amended (Certain Crown land may be
brought under this Act)
Section 27A of the Principal Act is amended as
follows:
(a) by omitting subsection (6) and
substituting the following subsection:
(6) In an application made under
subsection (2), the Director-
General of Lands may -
(a) create any easement,
covenant, limitation,
exception, reservation,
condition or restriction
that he or she considers
appropriate; and
11
Land Titles Amendment Act 2012
Act No. of
s. 12
(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.
(b) by inserting in subsection (8) "easement,
covenant," after "any".
12. Section 33 amended (The Register, certificates of
title and registration)
Section 33 of the Principal Act is amended as
follows:
(a) by omitting from subsection (6) "for -"
and substituting "for any of the
following:";
(b) by omitting from subsection (6)(c) "or"
second occurring;
(c) by omitting from subsection (6)(d)
"land." and substituting "land;";
(d) by inserting the following paragraph after
paragraph (d) in subsection (6):
(e) any other estate or interest in
land.
12
Land Titles Amendment Act 2012
Act No. of
s. 13
(e) by omitting from subsection (8) "he
shall" and substituting "the Recorder
may";
(f) by omitting from subsection (10) "shall
number it with a distinctive number, or
letter and number" and substituting "is to
ensure it is marked with a distinctive
number, letter or code or marked in some
other manner approved by the Recorder".
13. Section 36 amended (Searches of public records)
Section 36(1)(d) of the Principal Act is amended
by omitting "maps and plans" and substituting
"maps, plans and surveys".
14. Section 40 amended (Estate of registered proprietor
indefeasible)
Section 40(3) of the Principal Act is amended as
follows:
(a) by omitting from paragraph (e)(i) "land;
and" and substituting "land; or";
(b) by omitting subparagraph (ia) from
paragraph (e) and substituting the
following subparagraphs:
(ia) an easement created by deed but
unintentionally omitted from the
folio of the Register for the
servient land when that servient
13
Land Titles Amendment Act 2012
Act No. of
s. 15
land was brought under this Act
or the repealed Act; or
(ib) an easement that has been created
under this Act but unintentionally
omitted from the folio of the
Register for the servient land; or
(c) by omitting from paragraph (h) "section
117," and substituting "section 138W,".
15. Section 46 amended (Folio of the Register void in
certain cases)
Section 46 of the Principal Act is amended as
follows:
(a) by omitting from paragraph (a) "section
10;" and substituting "section 10; or";
(b) by omitting from paragraph (b) "section
117(3)" and substituting "section
138W(4)";
(c) by omitting from paragraph (b) "section
119 -" and substituting "section 138X;
or";
(d) by omitting from paragraph (c) "section
123" and substituting "section 138D".
14
Land Titles Amendment Act 2012
Act No. of
s. 16
16. Section 48 amended (Dealings to be attested; order
of registration; priority of dealings)
Section 48(3) of the Principal Act is amended by
omitting "the person who lodges the second or
subsequent dealing must advise the Recorder in
writing of the order in which the dealings are to
be registered and".
17. Section 48A substituted
Section 48A of the Principal Act is repealed and
the following section is substituted:
48A. Lodgment of dealings and instruments
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) by the lodgment of an electronic
communication that -
(i) is set out in a format
approved by the
Recorder; and
15
Land Titles Amendment Act 2012
Act No. of
s. 18
(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.
18. Section 48B amended (Authority for lodgment by
electronic process)
Section 48B of the Principal Act is amended as
follows:
(a) by omitting subsection (1) and
substituting the following subsection:
(1) 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.
(b) by omitting from subsection (2)(b) "of
the priority notice, caveat, plan,
withdrawal of priority notice or
16
Land Titles Amendment Act 2012
Act No. of
s. 19
withdrawal of caveat." and substituting
"by electronic communication of the
dealing or instrument.";
(c) by omitting from subsection (3) "priority
notice, caveat, plan, withdrawal of
priority notice or withdrawal of caveat"
and substituting "dealing or instrument".
19. Section 48C amended (Lodgment of supporting
documents)
Section 48C of the Principal Act is amended as
follows:
(a) by inserting "preparation and" after "to
the";
(b) by omitting "a priority notice, caveat,
plan, withdrawal of priority notice or
withdrawal of caveat" and substituting
"the dealing or instrument".
20. Section 50 amended (Dealings not to be registered
except in accordance with this Act)
Section 50 of the Principal Act is amended as
follows:
(a) by omitting from subsection (6) "in the
margin of the dealing";
(b) by omitting subsection (11) and
substituting the following subsections:
17
Land Titles Amendment Act 2012
Act No. of
s. 21
(11) The Recorder is not to register a
dealing that purports to be
executed under or in pursuance of
a power of attorney unless he or
she 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) 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.
21. Section 51 amended (Recording of dealing on
certificate of title, &c.)
Section 51 of the Principal Act is amended as
follows:
18
Land Titles Amendment Act 2012
Act No. of
s. 22
(a) by inserting the following paragraph after
paragraph (b) in subsection (2):
(ba) 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;
(b) by omitting from subsection (2)(e)
"section 119, section 120, section 121, or
section 123." and substituting
"section 138A, section 138B,
section 138D or section 138X;";
(c) by inserting the following paragraph after
paragraph (e) in subsection (2):
(f) any other dealing where the
Recorder considers that the
production of the certificate of
title, grant or registered dealing is
not required.
(d) by omitting from subsection (4) "certify"
and substituting "note";
(e) by omitting from subsection (4)
"certificate" and substituting "notation".
19
Land Titles Amendment Act 2012
Act No. of
s. 22
22. Section 54 amended (Delivery of certificate of title
or duplicate registered dealing)
Section 54(2) of the Principal Act is amended by
omitting "The Recorder may assume that a
person who lodges any dealing or other
document with him has" and substituting "A
person who lodges any dealing or other
document with the Recorder is taken to have".
23. Section 58 amended (Transfer)
Section 58(2) of the Principal Act is amended by
omitting "and privileges" and substituting
"privileges, requirements and liabilities".
24. Section 61 amended (Sale under writ)
Section 61 of the Principal Act is amended by
omitting subsection (6) and substituting the
following subsection:
(6) After a writ is issued but before it is
recorded in accordance with
subsection (3), a person dealing with the
registered proprietor or with a mortgagee
or encumbrancee exercising a power of
sale may lodge a transfer for registration
and, if that transfer is registered, the
person is entitled to take his or her
interest in priority even if the person had
actual or constructive notice of the issue
of the writ.
20
Land Titles Amendment Act 2012
Act No. of
s. 25
25. Section 63 amended (Severance of joint tenancy)
Section 63 of the Principal Act is amended by
inserting after subsection (3) the following
subsections:
(4) On the registration of a declaration of
severance of a joint tenancy under this
section, the joint tenants become tenants
in common with equal shares in the land.
(5) Nothing in subsection (4) prevents the
tenants in common referred to in that
subsection executing a transfer so as to
provide that the shares in the land are
held by them in other than equal shares.
26. Section 71 amended (Folio of the Register for a
leasehold estate)
Section 71 of the Principal Act is amended as
follows:
(a) by omitting paragraphs (a), (b) and (c)
from subsection (1) and substituting the
following paragraphs:
(a) is to record the creation of that
folio on the folio of the Register
evidencing the lessor's title; and
(b) is to register on that leasehold
folio all dealings with the lease.
(b) by omitting from subsection (2)
"Register for the leasehold estate," and
21
Land Titles Amendment Act 2012
Act No. of
s. 27
substituting "Register, or the edition of
the folio of the Register, for the leasehold
estate,";
(c) by omitting from subsection (2) "folio of
the Register for the leasehold estate"
second occurring and substituting "folio,
or the edition of the folio, of the Register
for the leasehold estate".
27. Section 76 amended (Postponement of mortgages
and encumbrances)
Section 76 of the Principal Act is amended by
omitting subsection (2) and substituting the
following subsection:
(2) An instrument referred to in
subsection (1) that postpones the priority
of a mortgage or encumbrance must be
executed by the registered proprietor of
the mortgage or encumbrance that is
postponed.
28. Section 78 amended (Power to sell and
appropriation of proceeds)
Section 78 of the Principal Act is amended as
follows:
(a) by omitting from subsection (1) "one
month" and substituting "30 days";
22
Land Titles Amendment Act 2012
Act No. of
s. 29
(b) by omitting from subsection (2)(e)
"covenants." and substituting "covenants;
and";
(c) by inserting the following paragraph after
paragraph (e) in subsection (2):
(f) enter into an agreement under
Part 5 of the Land Use Planning
and Approvals Act 1993.
29. Section 102 amended (Covenants which run with
freehold registered land)
Section 102(9) of the Principal Act is amended
by omitting "containing the titles of" and
substituting "for".
30. Section 104A inserted
After section 104 of the Principal Act, the
following section is inserted in Division 8:
104A. Discharge of covenants in gross
A covenant that is a covenant in gross
within the meaning of the Conveyancing
and Law of Property Act 1884 may be
discharged by a dealing in a form
approved by the Recorder.
23
Land Titles Amendment Act 2012
Act No. of
s. 31
31. Section 108 amended (Release and extinguishment
of easements and profits à prendre)
Section 108 of the Principal Act is amended as
follows:
(a) by inserting in subsection (1) "by the
person having the benefit of that
easement or profit à prendre" after
"partly";
(b) by inserting in subsection (2) "in whole
or in part," after "the easement or profit à
prendre,";
(c) by omitting subsection (3) and
substituting the following subsection:
(3) In considering whether an
easement or profit à prendre has
been abandoned, the Recorder, if
satisfied on evidence that the
easement or profit à prendre has
not been used for a period of at
least 20 years, is to treat that
failure to use as conclusive
evidence that the easement or
profit à prendre has been
abandoned.
32. Section 110 amended (Rectification of easements,
&c., in old subdivisions)
Section 110 of the Principal Act is amended as
follows:
24
Land Titles Amendment Act 2012
Act No. of
s. 33
(a) by omitting from subsection (6)
"subsection (4) -" and substituting
"subsection (4) or (14) -";
(b) by inserting the following subsections
after subsection (12):
(13) The Recorder may, of his own
motion or on the application of
any person interested, cancel an
order made under this section
after it has been registered or
recorded and make a fresh order.
(14) Before taking action under
subsection (13), the Recorder
must give notice of the intention
to cancel the order and make a
fresh order in accordance with
subsection (6).
(15) If a fresh order is made under
subsection (13), that fresh order is
taken to be an order made under
this section.
33. Section 136A inserted
After section 136 of the Principal Act, the
following section is inserted in Division 1:
136A. Cancellation of caveat on application of
proprietor of estate or interest
(1) On application by a registered proprietor
against whom a caveat is lodged, the
25
Land Titles Amendment Act 2012
Act No. of
s. 34
Recorder is to serve on the caveator a
notice in accordance with subsection (3).
(2) An application under subsection (1) is to
be in a form approved by the Recorder.
(3) A notice under subsection (1) is to state
that the Recorder will cancel the caveat
on the expiry of 28 days after the day on
which the notice is served unless -
(a) an order is made by the Supreme
Court extending the operation of
the caveat -
(i) for such further period as
is specified in the order;
or
(ii) until the further order of
that Court; and
(b) that order, or an office copy of
that order, is lodged with the
Recorder.
(4) If an order referred to in subsection (1)
has not been obtained and lodged with
the Recorder before the expiry of the 28-
day period referred to in subsection (3),
the Recorder is to cancel the caveat on
the expiry of that 28-day period.
26
Land Titles Amendment Act 2012
Act No. of
s. 34
34. Section 137 amended (No registration affecting land
in respect of which caveat lodged)
Section 137(3) of the Principal Act is amended
as follows:
(a) by inserting the following paragraph after
paragraph (b):
(ba) a declaration of severance of a
joint tenancy pursuant to
section 63;
(b) by omitting paragraph (e) and
substituting the following paragraphs:
(e) if the caveat lapsed pursuant to
section 136 so as to allow
registration of a lease, mortgage
or encumbrance, a subsequent
dealing by the proprietor of the
lease, mortgage or encumbrance
(including a dealing that is an
extension or variation of that
lease, mortgage or encumbrance);
(ea) if the caveator consented to the
registration of a lease, mortgage
or encumbrance, a subsequent
dealing by the proprietor of the
lease, mortgage or encumbrance
(other than a dealing that is an
extension or variation of that
lease, mortgage or encumbrance);
(c) by omitting from paragraph (o) "section
119, section 121, or section 123;" and
27
Land Titles Amendment Act 2012
Act No. of
s. 35
substituting "section 138B, section 138D
or section 138X;";
(d) by omitting from paragraph (p) "section
120;" and substituting "section 138A;".
35. Section 138D amended (Recorder may make vesting
order in certain circumstances when purchaser in
possession)
Section 138D of the Principal Act is amended as
follows:
(a) by inserting the following subsection
after subsection (1):
(1A) An order under subsection (1)
may be made only with respect to
the whole of the land described in
a folio of the Register.
(b) by omitting paragraph (a) from
subsection (5) and substituting the
following paragraph:
(a) direct that notice be given in a
form approved by the Recorder 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; and
28
Land Titles Amendment Act 2012
Act No. of
s. 36
36. Section 138E amended (Caveat forbidding granting
of application under section 138D)
Section 138E of the Principal Act is amended as
follows:
(a) by omitting subsections (3) and (4) and
substituting the following subsections:
(3) The Recorder must not proceed
with the application to which the
caveat relates unless -
(a) the caveat has been
withdrawn; or
(b) the caveat has lapsed; or
(c) if grounds for the caveat
have been lodged within
the time specified in
subsection (2), the
Recorder has carried out
an investigation of the
caveat.
(4) In investigating the caveat, the
Recorder may make such
investigations as the Recorder
considers necessary for the proper
determination of the caveat,
including conducting an inquiry
under section 160(2).
(4A) On completing the investigation
of the caveat, the Recorder may
grant or refuse to grant the
29
Land Titles Amendment Act 2012
Act No. of
s. 37
application to which the caveat
relates.
(b) by omitting from subsection (5) "of the
Recorder or".
37. Section 138F amended (Restriction on renewal of
caveats)
Section 138F of the Principal Act is amended by
omitting subsection (1) and substituting the
following subsection:
(1) Unless permitted by a Supreme Court
order, a caveat that has lapsed or been
withdrawn under section 138E 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.
38. Section 138H substituted
Section 138H of the Principal Act is repealed
and the following section is substituted:
138H. Application to unregistered land
This Part applies to a dealing with land
that is not registered land where that
dealing with that land is not otherwise
covered by this Act.
30
Land Titles Amendment Act 2012
Act No. of
s. 39
39. Section 138J substituted
Section 138J of the Principal Act is repealed and
the following section is substituted:
138J. Acquisition of easements by possession
(1) A person who has exercised rights which
may amount to an easement at common
law for a period of not less than 15 years,
or not less than 30 years if the owner of
the land is a person under disability, may
apply, in accordance with Division 3, to
the Recorder for an order vesting an
easement in respect of those rights in the
person.
(2) An application is to be in a form
approved by the Recorder.
(3) The Recorder may make an order
referred to in subsection (1) in favour
of -
(a) an applicant who, after giving
notice under section 138K(1),
continues to exercise rights which
the Recorder considers may
amount to an easement; or
(b) an applicant who, after giving
notice under section 138K(1), has
been prevented or hindered in the
exercise of rights which the
Recorder considers may amount
to an easement by the direct or
31
Land Titles Amendment Act 2012
Act No. of
s. 40
indirect action of the owner of the
servient tenement; or
(c) an applicant who has exercised
rights in accordance with
subsection (1) which the
Recorder considers may amount
to an easement but, before giving
notice under section 138K(1), has
been prevented or hindered in the
further exercise of those rights by
the direct or indirect action of the
owner of the servient tenement if
the applicant gives notice under
section 138K(1) within 6 months
after first becoming so prevented
or hindered in the further exercise
of those rights.
40. Section 138K amended (Applicant to notify owner
of servient tenement)
Section 138K(1) of the Principal Act is amended
by omitting "claim" and substituting "claim, in
the approved form,".
41. Section 138L amended (Requirements for
application)
Section 138L of the Principal Act is amended as
follows:
32
Land Titles Amendment Act 2012
Act No. of
s. 42
(a) by omitting from subsection (1) "other"
second occurring and substituting
"disinterested";
(b) by omitting from subsection (2) "field"
and substituting "survey".
42. Section 138V amended (Requirements for title by
possession)
Section 138V of the Principal Act is amended by
omitting "other" second occurring and
substituting "disinterested".
43. Section 138W amended (Registered proprietor to
hold land on trust)
Section 138W of the Principal Act is amended as
follows:
(a) by omitting from subsection (7) "field"
and substituting "survey";
(b) by omitting paragraph (a) from
subsection (8) and substituting the
following paragraph:
(a) publish, 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 that -
33
Land Titles Amendment Act 2012
Act No. of
s. 44
(i) is in a form approved by
the Recorder; and
(ii) states that the applicant
intends to make the
application; and
(c) by omitting from subsection (8)(b) "an
approved form" and substituting "a form
approved by the Recorder";
(d) by omitting from subsection (8)(c) "in
writing";
(e) by inserting in subsection (8)(c) "in a
form approved by the Recorder" after
"application";
(f) by inserting in subsection (8)(d) "referred
to in paragraph (a)" after "notice".
44. Section 138X amended (Power of Recorder to make
vesting order)
Section 138X(2) of the Principal Act is amended
by inserting "conclusive" after "as".
45. Section 142 substituted
Section 142 of the Principal Act is repealed and
the following section is substituted:
34
Land Titles Amendment Act 2012
Act No. of
s. 45
142. Rectification of boundaries, area or position
of land
(1) An interested person may apply to the
Recorder for the taking of action or the
making of an order under
subsection (14).
(2) The application is to be -
(a) in the approved form; and
(b) accompanied by the prescribed
fee; and
(c) accompanied by such evidence in
support of the application as the
Recorder requires.
(3) On receipt of an application, or on the
Recorder's own motion, the Recorder
may give notice as specified in
subsections (5) and (6) if the Recorder is
satisfied that the case can properly be
dealt with under this section, rather than
by an application under section 138W(4),
and if -
(a) it appears to the Recorder that the
boundary, area or position of the
land described in a folio of the
Register -
(i) was established without
the benefit of a survey or
a survey that the Recorder
considers sufficient; and
35
Land Titles Amendment Act 2012
Act No. of
s. 45
(ii) differs from the actual
boundary, area or position
of the land as shown in
the supporting evidence
accompanying the
application or, if no better
evidence is available, as
shown by the occupation
of the land in good faith
by the registered
proprietor as being the
land described in that
folio; or
(b) it appears to the Recorder that the
description of land in that folio is
based on erroneous or imperfect
information; or
(c) it appears to the Recorder that the
boundary, area, position or
description of the land contained
in a forestry right -
(i) was established without
the benefit of a survey or
a survey that the Recorder
considers sufficient; and
(ii) differs from the actual
boundary, area or position
of the land contained in
the forestry right as
shown in the supporting
evidence accompanying
the application or, if no
36
Land Titles Amendment Act 2012
Act No. of
s. 45
better evidence is
available, as shown by the
use of the land in good
faith by the registered
proprietor as being the
land contained in that
forestry right; or
(d) it appears to the Recorder that the
boundary, area, position or
description of the land contained
in a forestry right is based on
erroneous or imperfect
information.
(4) The Recorder may only act on his or her
own motion if it appears to the Recorder
that there is no interested person to make
the application.
(5) If the Recorder gives notice under
subsection (3), he or she is to give the
notice to the council of the municipal
area in which the land is situated and
also -
(a) in the case of registered land
which it is proposed to affect or
which may be affected, to every
person appearing by the Register
to have an interest in the land;
and
(b) in the case of land, other than
registered land, which it is
proposed to affect or which may
37
Land Titles Amendment Act 2012
Act No. of
s. 45
be affected, to every person
whom the Recorder has found by
searching the Registry of Deeds
to have an interest in the land;
and
(c) in the case of land subject to a
highway which it is proposed to
affect or which may be affected,
to the highway authority
concerned.
(6) The notice is to be accompanied by -
(a) in the case of notice given to a
council and to a person referred
to in subsection (5)(a) or (b), a
plan showing the extent to which
the land is proposed to be or may
be affected; and
(b) in the case of notice given to a
highway authority, a plan
showing the extent to which the
highway is proposed to be or may
be affected.
(7) If, after reasonable enquiry, an address
for a person entitled to notice under
subsection (5) cannot be ascertained, the
Recorder may give the notice and
relevant plan to The Public Trustee.
(8) On receipt of a notice under
subsection (7), The Public Trustee may -
(a) act on that person's behalf; and
38
Land Titles Amendment Act 2012
Act No. of
s. 45
(b) have a lien on that person's
interest for expenses incurred in
so acting.
(9) A person who has received a notice
under subsection (5) may lodge a written
objection with the Recorder within the
period of not less than 21 days specified
in the notice.
(10) An objection must specify the grounds
on which it is based.
(11) If an objection has been lodged, the
Recorder may conduct such
investigations as he or she considers
necessary for the proper determination of
the matter.
(12) In conducting an investigation under
subsection (11), the Recorder -
(a) may hold a hearing for the
purpose of receiving evidence
and representations; and
(b) may require a person to attend a
hearing; and
(c) at a hearing, may require a
person -
(i) to make an oath or
affirmation to answer
relevant questions
truthfully; and
39
Land Titles Amendment Act 2012
Act No. of
s. 45
(ii) to answer relevant
questions; and
(d) at a hearing, may require a person
to produce documents; and
(e) may retain documents produced
at a hearing for such reasonable
time as the Recorder thinks
appropriate for the purposes of
the investigation and make copies
of those, or parts of those,
documents; and
(f) is to proceed as expeditiously and
with as little formality and
technicality as is consistent with
the requirements of this Act and
the proper investigation of the
matter; and
(g) is not bound by the rules of
evidence and may gather
information in any way the
Recorder considers appropriate;
and
(h) may, subject to this Act and the
rules of natural justice, determine
the procedures to be followed;
and
(i) may enter on relevant land for the
purpose of the investigation at
any reasonable time after giving
reasonable notice to the owner or
occupier of that land.
40
Land Titles Amendment Act 2012
Act No. of
s. 45
(13) A person must not, without reasonable
excuse, refuse or fail to comply with a
requirement made under subsection (12).
(14) If no objection has been lodged within
the specified time, or on the completion
of an investigation, the Recorder is to
decide the matter and may do one or
more of the following:
(a) amend any plan, folio of the
Register, certificate of title, grant
or registered dealing;
(b) order any person benefited by an
amendment of a folio of the
Register, certificate of title, grant
or registered dealing to pay
compensation to any person
adversely affected by this section;
(c) order payment of compensation
out of the assurance fund;
(d) order the rectification of an
instrument registered in the
Registry of Deeds;
(e) order the execution and
registration of an instrument;
(f) vary, and order the registration
of, an unregistered easement;
(g) redefine the boundaries of a
highway;
41
Land Titles Amendment Act 2012
Act No. of
s. 45
(h) amend a sealed plan of
subdivision under the Local
Government (Building and
Miscellaneous Provisions) Act
1993 if the amendment does not
materially change the scheme of
the subdivision;
(i) determine that no further action is
to be taken in respect of the
boundaries, area, position or
description of the relevant land in
a folio of the Register or a
forestry right;
(j) make such order as to the costs of
a person attending a hearing
under subsection (12) as he or she
thinks fit;
(k) take any other action necessary or
convenient to give effect to his or
her decision.
(15) The Recorder is to give a copy of his or
her decision under subsection (14) to
each person to whom notice has been
given under subsection (5).
(16) The Recorder may refuse to proceed or to
proceed further under this section -
(a) if the Recorder considers that -
(i) a party ought to bring an
action, suit or other
proceeding; or
42
Land Titles Amendment Act 2012
Act No. of
s. 45
(ii) a party ought to apply for
an order under
section 138W(4); or
(iii) the Recorder cannot bring
the matter to a satisfactory
conclusion; or
(b) until a plan has been amended
under Part 3 of the Local
Government (Building and
Miscellaneous Provisions) Act
1993 or an action, suit or other
proceeding has been finalised.
(17) A decision under subsection (14) may be
registered in the Supreme Court and may
be enforced, subject to subsection (18),
as if it were a judgment of that Court.
(18) A decision under subsection (14) is not to
be acted on for 30 days and within that
period a person affected by the decision
may appeal to the Supreme Court which
may do any one or more of the
following:
(a) stay proceedings on the decision
wholly or in part;
(b) quash or vary the decision;
(c) substitute for the decision any
other decision that the Recorder
was entitled to have made and do
any thing that the Recorder could
do under that subsection;
43
Land Titles Amendment Act 2012
Act No. of
s. 45
(d) order the Recorder to amend any
plan, folio of the Register,
certificate of title, grant or
registered dealing or do any other
thing that he or she was entitled
to do under that subsection.
(19) The powers conferred by this section are
in addition to, but are not substituted for,
any powers of correction, rectification or
amendment conferred by any other
provision of this Act.
(20) A rectification or amendment made
under this section is be taken to have
been made prior to the registration of the
instrument that is so rectified or
amended.
(21) In this section -
interested person includes, but is not
limited to -
(a) the registered proprietor,
mortgagee, lessee or
encumbrancee of the
relevant land; and
(b) the council of the
municipal area in which
the relevant land is
situated; and
(c) if the relevant land is a
highway, the highway
44
Land Titles Amendment Act 2012
Act No. of
s. 46
authority for that land;
and
(d) the Crown in right of
Tasmania; and
(e) any other person the
Recorder considers to be
an interested person.
46. Section 143C amended (Recorder may correct
errors on plans)
Section 143C of the Principal Act is amended as
follows:
(a) by omitting from subsection (1) "a patent
error" and substituting "an error";
(b) by omitting subsection (3) and
substituting the following subsections:
(3) A person may object to the
correction proposed to be made
by the Recorder before the end of
the period specified in the notice
given under subsection (2).
(3A) An objection must be in writing
and state the grounds on which it
is based.
(c) by inserting the following paragraph after
paragraph (b) in subsection (4):
45
Land Titles Amendment Act 2012
Act No. of
s. 47
(ba) amend the plan in accordance
with the notice given under
subsection (2); or
47. Section 144 amended (Proprietor if dissatisfied may
summon Recorder to show cause)
Section 144 of the Principal Act is amended by
inserting after subsection (1) the following
subsection:
(1A) A requirement under subsection (1) must
be lodged with the Recorder within 3
months after the relevant refusal,
direction or order is given by the
Recorder, or such longer period as the
Recorder allows.
48. Section 146 amended (Mortgagee, encumbrancee or
lessor may obtain possession in certain cases)
Section 146 of the Principal Act is amended as
follows:
(a) by omitting from subsection (1)(c)
"landlord" and substituting "lessor";
(b) by omitting from subsection (3)(a)
"landlord" and substituting "lessor";
(c) by omitting from subsection (5)(c)
"landlord" and substituting "lessor";
46
Land Titles Amendment Act 2012
Act No. of
s. 49
(d) by omitting from subsection (8)
"landlord" and substituting "lessor".
49. Section 150 amended (The assurance fund)
Section 150(3) of the Principal Act is amended
as follows:
(a) by omitting "$250 000," and substituting
"$2 000 000,";
(b) by omitting "under section 169" and
substituting "in Schedule 3".
50. Section 153 amended (When action may lie against
Recorder as nominal defendant)
Section 153(1)(b) of the Principal Act is
amended by omitting "section 119 or section
123" and substituting "section 138D or
section 138X".
51. Section 154 amended (Date of deprivation in certain
cases)
Section 154 of the Principal Act is amended as
follows:
(a) by omitting "section 119 or section 123,"
and substituting "section 138D or
section 138X,";
47
Land Titles Amendment Act 2012
Act No. of
s. 52
(b) by omitting from paragraph (a) "section
119," and substituting "section 138X,";
(c) by omitting from paragraph (b) "section
123," and substituting "section 138D,".
52. Section 155 amended (Person sustaining loss may
apply for compensation)
Section 155 of the Principal Act is amended by
omitting subsection (2) and substituting the
following subsections:
(2) If the Recorder admits the claim, or any
part of the claim, and the Minister
certifies the claim, or part of the claim, as
so admitted -
(a) in a case where the claim, or part
or the claim, that is so admitted
and certified is less than $10 000,
the Minister may, in his or her
discretion, issue a warrant to the
Treasurer for payment of the
amount so certified out of the
assurance fund; or
(b) in a case where the claim, or part
of the claim, that is so admitted
and certified is $10 000 or more,
the Governor may, in his or her
discretion, issue a warrant to the
Treasurer for payment of the
amount so certified out of the
assurance fund.
48
Land Titles Amendment Act 2012
Act No. of
s. 53
(3) The Treasurer is to pay the amount so
certified in accordance with a warrant
issued under subsection (2).
53. Section 158 amended (Limitation of actions)
Section 158(2) of the Principal Act is amended
by omitting "section 119 or section 123," twice
occurring and substituting "section 138D or
section 138X,".
54. Section 162 amended (Recorder may require map
to be deposited)
Section 162(1) of the Principal Act is amended
as follows:
(a) by inserting "applying under section 108
for the release or partial release of an
easement or profit à prendre," after
"Act,";
(b) by omitting "Land Surveyors Act 1909."
and substituting "Surveyors Act 2002.".
55. Section 168 amended (Service, &c., of notices)
Section 168 of the Principal Act is amended by
inserting after subsection (5) the following
subsection:
(6) If the Recorder considers it desirable in
the interests of procedural fairness and
49
Land Titles Amendment Act 2012
Act No. of
s. 56
the administration of this Act, he or she
may require a person depositing or
lodging an application, dealing,
instrument or other document to do one
or more of the following:
(a) advertise in one or more
newspapers published and
circulating in Tasmania, as
determined by the Recorder;
(b) give notice to a person the
Recorder considers to have an
interest in the application,
dealing, instrument or other
document;
(c) post notice of the application,
dealing, instrument or other
document on the relevant land.
56. Section 170 amended (Regulations)
Section 170(2)(c) of the Principal Act is
amended by omitting "any form prescribed by
the regulations" and substituting "any approved
form or other form approved by the Recorder".
57. Repeal of Act
This Act is repealed on the ninetieth day from
the day on which it commences.
50 Government Printer, Tasmania