Western Australian Current Acts

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TRANSFER OF LAND ACT 1893 - SECT 129BB

129BB .         Discharge and modification of s. 129BA covenants

        (1)         Either —

            (a)         the proprietor of land burdened by a restrictive covenant created under section 129BA; or

            (b)         a local government or public authority for whose benefit a restrictive covenant has been created under section 129BA (the relevant authority ),

                may apply, in an approved form and on payment of the prescribed fee, for the restrictive covenant to be discharged or to be modified in the manner set out in the application.

        (2)         An application under this section shall be accompanied by either —

            (a)         the written consent of —

                  (i)         the relevant authority; and

                  (ii)         each person who has a registered interest in any land burdened by the restrictive covenant,

                to the discharge or the modification of the restrictive covenant as proposed; or

            (b)         the documents referred to in subsection (3).

        (3)         Where an application under this section is not accompanied by the written consents referred to in subsection (2)(a), it shall be accompanied by —

            (a)         the applicant’s statutory declaration to the effect that —

                  (i)         the relevant authority and each person who has a registered interest in any land burdened by the restrictive covenant (not being the applicant) has been given 28 days’ written notice of both the intention to make the application and the substance of the proposed application; and

                  (ii)         notice of both the intention to make the application and the substance of the proposed application has been published —

                        (I)         at least 28 days before the day on which the application is made;

        (II)         in a newspaper circulating either throughout the State or in the district where the land is situated;

                and

                  (iii)         both of the notices referred to in subparagraphs (i) and (ii) stated —

                        (I)         the applicant’s address for service of notices of objection to the proposed application or any part of the proposed application; and

        (II)         the day, being at least 3 days before the application was proposed to be made, by which notice of objections were to be received;

                and

                  (iv)         up to the time of making the application, the applicant had received no notice of objection to either the proposed application or any part of the proposed application;

                and

            (b)         a copy of the notice referred to in paragraph (a)(ii) showing the name of the newspaper in which it was published and the day of publication.

        (4)         On an application under this section the Registrar, if directed by the Commissioner to do so, shall discharge the restrictive covenant or modify the restrictive covenant in the manner set out in the application.

        (5)         The Commissioner shall not direct the Registrar to discharge or modify a restrictive covenant under this section if the Commissioner is aware of any notice that has been served under subsection (3)(a)(iii) by which an objection has been made to either the application or any part of the application.

        (6)         Where a restrictive covenant is discharged or modified under this section the Registrar shall enter a memorandum of the discharge or modification on each certificate of title in the Register on which is entered a memorandum of the restrictive covenant.

        [Section 129BB inserted: No. 81 of 1996 s. 76.]



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