Civil Law (Property) Act 2006 (ACT)
Civil Law (Property) Act 2006
A2006-38
Republication No 16
Effective: 27 November 2023
Republication date: 27 November 2023
Last amendment made by A2023‑36
About this republication
The republished law
This is a republication of the Civil Law (Property) Act 2006 (including any amendment made under the Legislation Act 2001, part 11.3 (Editorial changes)) as in force on 27 November 2023. It also includes any commencement, amendment, repeal or expiry affecting this republished law to 27 November 2023.
The legislation history and amendment history of the republished law are set out in endnotes 3 and 4.
Kinds of republications
The Parliamentary Counsel’s Office prepares 2 kinds of republications of ACT laws (see the ACT legislation register at type="disc">
authorised republications to which the Legislation Act 2001 applies
unauthorised republications.
The status of this republication appears on the bottom of each page.
Editorial changes
The Legislation Act 2001, part 11.3 authorises the Parliamentary Counsel to make editorial amendments and other changes of a formal nature when preparing a law for republication. Editorial changes do not change the effect of the law, but have effect as if they had been made by an Act commencing on the republication date (see Legislation Act 2001, s 115 and s 117). The changes are made if the Parliamentary Counsel considers they are desirable to bring the law into line, or more closely into line, with current legislative drafting practice.
This republication includes amendments made under part 11.3 (see endnote 1).
Uncommenced provisions and amendments
If a provision of the republished law has not commenced, the symbol U appears immediately before the provision heading. Any uncommenced amendments that affect this republished law are accessible on the ACT legislation register ( For more information, see the home page for this law on the register.
Modifications
If a provision of the republished law is affected by a current modification, the symbol M appears immediately before the provision heading. The text of the modifying provision appears in the endnotes. For the legal status of modifications, see the Legislation Act 2001, section 95.
Penalties
At the republication date, the value of a penalty unit for an offence against this law is $160 for an individual and $810 for a corporation (see Legislation Act 2001, s 133).
Civil Law (Property) Act 2006
Contents
Page
Chapter 1 Preliminary
1 Name of Act 2
3 Dictionary 2
4 Notes 2
5 Application of Act 2
Chapter 2 Conveyancing
Part 2.1 Conveyancing—preliminary
200 What is a settlement? 3
Part 2.2 General rules about property
Division 2.2.1 Rules of law on certain points
201 Instruments required to be in writing 4
202 Creation of interests in land by word of mouth 5
203 Exceptions to s 201 and s 202 5
204 Proceedings do not lie on certain unwritten agreements 6
205 Assignment of debts and things in action 7
206 Merger 7
207 Equitable waste 8
Division 2.2.2 Property generally
208 Person may assure property to self or to self and others 8
209 Power for corporations to hold property as joint tenants 8
210 Interpretation of conveyance etc of property to 2 or more people together 9
211 Tenants in common of equitable estate acquiring legal estate 9
212 People taking who are not parties 10
213 Presumption of survivorship 10
214 Provisions about supplemental instruments 10
Division 2.2.3 Ending life interests
215 Meaning of life interest for div 2.2.3 11
216 Wrongful holding over of life interest etc 11
217 Vesting of interests on end of life interest—evidence of death 11
218 Vesting orders made in error 13
Part 2.3 General rules about deeds and documents of corporations
Division 2.3.1 Deeds and their effect
219 Signature and attestation of deeds 14
220 Receipt in deed sufficient 14
221 Receipt in deed or endorsed evidence for subsequent purchaser 15
222 How powers of appointment are to be exercised 15
Division 2.3.2 Operation of deeds
223 Limitations may be made by direct conveyance without uses 15
224 In conveyance use of word grant unnecessary 15
225 Rights of entry etc 16
226 Certain conveyance etc void 16
Division 2.3.3 Documents of corporations
227 Execution of documents by or on behalf of corporations 16
Division 2.3.4 Powers of appointment
228 Application—div 2.3.4 18
229 Appointments to be valid despite exclusion of object 18
Part 2.4 Sales and other transactions
Division 2.4.1 Dispositions on trust for sale or with power of sale
230 Meaning of purchaser for div 2.4.1 19
231 Consents to execution of trust for sale etc 19
232 Purchaser not to be concerned with trusts of proceeds of sale 20
233 Settlements of personal property invested in land 20
234 Powers given to trustees for sale 21
235 Application of income of land under trust for sale 21
236 Partition of land under trust for sale 21
237 Powers of Supreme Court if trustees for sale decline to exercise powers 23
Division 2.4.2 Voidable dispositions
238 Meaning of purchaser for div 2.4.2 23
239 Voluntary dispositions to defraud creditors voidable 23
240 Voluntary dispositions of land—how far voidable against purchasers 24
241 Acquisitions of reversions at under value 24
Part 2.5 Partition
242 Definitions—pt 2.5 25
243 Court may order partition of land held in co-ownership 25
244 Power of Supreme Court to order sale instead of partition 25
245 Authority for interested person to bid 26
246 Parties to partition proceedings 27
247 Several sales in same partition proceeding 27
Part 2.6 Apportionment
248 Definitions—pt 2.6 28
249 Application of pt 2.6 to dividends of companies 28
250 Income apportionable in relation to time 28
251 Time when apportioned part is payable 29
252 Recovery of apportioned parts 29
253 Exceptions and application 30
Part 2.7 Children and children’s property
254 Receipts by certain children 31
255 Management of land during childhood 31
256 Power to appoint trustees of child’s property 32
257 Powers and duties of guardian 34
Part 2.8 Rights-of-way
258 No right-of-way by user against Territory etc 35
Part 2.9 Unit titles
Division 2.9.1 Important concepts
259 Definitions—pt 2.9 36
259A Meaning of type 1 matter and type 2 matter 37
Division 2.9.2 Off-the-plan contracts—disclosure
260 Contract for sale of unit before registration of units plan 39
260A Disclosure statement provided late or not at all 42
260B Seller to notify material change to matter in disclosure statement 43
260C Effect of disclosure update provided in time—type 1 matter 44
260D Effect of disclosure update provided out of time—type 1 matter 44
260E Effect of disclosure update—type 2 matter 45
260F Buyer action if no disclosure update notice 46
260G Seller to notify buyer of registration of units plan 46
260H Evidentiary burden—notices 47
Division 2.9.3 Implied warranties
261 Meaning of implied warranties—div 2.9.3 47
262 Purpose—div 2.9.3 47
264 Implied warranties 47
265 Rescission of contract for sale of unit 48
266 Claim for compensation 49
Division 2.9.4 Miscellaneous
267 Operation of part cannot be excluded etc 50
268 Rescission—effect 50
Chapter 3 Mortgages
Part 3.1 Powers in relation to mortgages
300 Application—pt 3.1 51
301 Powers incidental to mortgages 51
302 Receipt for purchase money sufficient discharge 52
303 Notice of sale 52
304 Purported exercise of power of sale 53
305 Application of purchase money by mortgagee 53
306 Property that may be transferred to purchaser 53
307 Mortgagee may call for documents relating to property 54
308 Appointment of receiver 54
309 Receiver taken to be agent of mortgagor 55
310 Powers of receiver 55
311 Ending appointment of receiver etc 55
312 Commission to receiver 55
313 Receiver to insure if required 56
314 Application of amounts received by receiver 56
Part 3.2 Mortgages—other provisions
315 Effect of repayment on ejectment by mortgagee 57
316 Section 315 not to apply in certain cases 58
317 Redemption if mortgagee absent or unknown 58
Chapter 4 Leases
Part 4.1 Leases—general provisions
Division 4.1.1 Lessee’s and lessor’s obligations
400 Lessee’s obligations attach to reversion 60
401 Lessor’s obligations to run with reversion 61
402 Lessee to give notice of ejectment to lessor 61
Division 4.1.2 Renewal of headlease without surrender of sublease
403 Renewal of headlease 62
404 Rights on renewal 62
Part 4.2 Leases to and for children and for absent lessors
405 Leases for children 64
406 Costs of lease authorisation application for child 64
407 Renewal of leases by children 65
408 Renewal of leases for people not amenable to process 65
409 Preconditions for grant or renewal of lease to be satisfied 66
410 Application of amounts paid for lease renewal under pt 4.2 66
411 Validity of surrenders and leases under pt 4.2 66
412 Costs of applications under pt 4.2 66
Part 4.3 Breach of insurance provisions
413 Application—pt 4.3 67
414 Relief against forfeiture for failure to insure 67
415 Record of relief granted 67
416 Limit on relief 67
417 Noncomplying insurance 68
418 Protection of purchaser of leasehold against forfeiture 68
Part 4.4 Restriction of effect of licence or waiver by lessor
419 Application—pt 4.4 70
420 Effect of licence given to lessee 70
421 Operation of partial licences 71
422 Apportionment of conditions of entry on severance 72
423 Waiver of benefit of lease provision 72
Part 4.5 Forfeiture of leases
424 Definitions—pt 4.5 73
425 Application—pt 4.5 73
426 Restrictions on re-entry or forfeiture 73
427 Notices under s 426 (1) 75
428 Protection of sublessees 75
Part 4.6 Leases invalidly granted under powers
429 Pt 4.6 does not bind the Territory 76
430 Leases taken to be granted in intended exercise of power 76
431 Certain invalid leases taken to be agreements to lease 76
432 Certain leases validated 77
433 Acceptance of rent taken to be confirmation of lease 78
434 Lessee bound to accept confirmation 78
435 Pt 4.6 does not affect certain other rights 79
Part 4.7 Recovery of leased premises
436 Application—pt 4.7 80
437 Who is an agent for pt 4.7? 80
438 Recovery of possession 81
Chapter 5 Miscellaneous
Part 5.1 Debts charged on property of deceased person
500 Charges on property of deceased person to be paid primarily out of property charged 82
Part 5.2 Stipulations in contracts
501 Stipulations not of the essence of contracts 84
Part 5.3 Miscellaneous—other provisions
502 Approved forms 85
503 Regulation-making power 85
Dictionary86
Endnotes
1 About the endnotes 92
2 Abbreviation key 92
3 Legislation history 93
4 Amendment history 96
5 Earlier republications 100
6 Expired transitional or validating provisions 101
Civil Law (Property) Act 2006
An Act to amend, simplify and consolidate provisions about the law of property, and for other purposes
Chapter 1Preliminary
Name of Act
This Act is the Civil Law (Property) Act 2006.
Dictionary
The dictionary at the end of this Act is part of this Act.
Note 1The dictionary at the end of this Act defines certain terms used in this Act, and includes references (signpost definitions) to other terms defined elsewhere.
For example, the signpost definition ‘trustee company—see the Trustee Companies Act 1947, dictionary.’ means that the term ‘trustee company’ is defined in that dictionary and the definition applies to this Act.
Note 2A definition in the dictionary (including a signpost definition) applies to the entire Act unless the definition, or another provision of the Act, provides otherwise or the contrary intention otherwise appears (see Legislation Act, s 155 and s 156 (1)).
Notes
A note included in this Act is explanatory and is not part of this Act.
NoteSee the Legislation Act, s 127 (1), (4) and (5) for the legal status of notes.
Application of Act
(1)This Act does not apply in relation to leasehold land (including leases of leasehold land) under the Land Titles Act 1925 so far as there is an inconsistency with that Act.
(2)If a provision of this Act is stated to apply to land under the Land Titles Act 1925, the provision is not taken (unless the contrary intention appears) to apply exclusively to land of that kind.
Chapter 2Conveyancing
Part 2.1Conveyancing—preliminary
What is a settlement?
(1)A settlement is an instrument, or a number of instruments, under which land is—
(a)held by people in limited ownership by succession; or
(b)held in trust for people as limited owners by succession; or
(c)held in trust for a child in possession; or
(d)held in limited ownership by a trust for a child in possession.
Example of settlement
will
(2)If a child is beneficially entitled to land, and because of an intestacy or otherwise there is no instrument under which the interest of the child arises or is acquired, a settlement is taken to have been made by the intestate or the person whose interest the child has acquired.
(3)An interest not disposed of by a settlement, and remaining in or reverting to the settlor (or someone deriving title through the settlor), is an interest included in the settlement and coming to the settlor (or other person) under the settlement.
Part 2.2General rules about property
Division 2.2.1 Rules of law on certain points
Instruments required to be in writing
(1)An interest in land cannot be created or disposed of by a person except—
(a)by writing signed by the person or by the person’s agent properly authorised in writing; or
(b)by the person’s will; or
(c)by operation of law.
Note 1The Legislation Act, dict, pt 1 defines interest, in relation to land and other property, and land.
Note 2See also the Legislation Act, s 168 (References to person with interest in land include personal representative etc).
(2)A declaration of trust by a person in relation to an interest in land must be—
(a)in writing signed by the person; or
(b)made by the person’s will.
(3)A disposition by a person of an equitable interest or trust existing at the time of the disposition must be—
(a)in writing signed by the person or by the person’s agent properly authorised in writing; or
(b)made by the person’s will.
(4)This section—
(a)does not affect the creation or operation of a resulting, implied or constructive trust; and
(b)is subject to section 202 (Creation of interests in land by word of mouth).
Creation of interests in land by word of mouth
(1)This section applies to an interest in land if the interest is—
(a)created by word of mouth; and
(b)not put into writing signed by the person creating it or by the person’s agent properly authorised in writing.
(2)The interest is an interest at will only, whether or not consideration is given for it.
Exceptions to s 201 and s 202
(1)Section 201 (Instruments required to be in writing) and section 202 (Creation of interests in land by word of mouth) do not—
(a)affect the creation by word of mouth of a lease that is at the highest rent reasonably obtainable without taking a fine and that takes effect in possession—
(i)for a term not longer than 3 years without a right for the lessee to extend the term; or
(ii)for a term not longer than 3 years with a right for the lessee to extend the term, at the best rent reasonably obtainable without taking a fine, for a further period, but so that the period of the lease and the period of the extension do not total longer than 3 years; or
(b)invalidate a disposition by will; or
(c)affect an interest validly created before 26 June 1986; or
(d)affect the law about part performance.
NoteA ‘fine’ is an amount paid by a tenant to a landlord for the grant, transfer or renewal of a lease. It is not an amount reasonably demanded to cover the landlord’s expenses, rather an extortionate amount demanded by a landlord without reasonable cause (see Butterworths, Australian Legal Dictionary, p 477).
(2)In this section:
possession—to remove any doubt, possession of land does not include receipt of income from the land.
Proceedings do not lie on certain unwritten agreements
(1)A proceeding does not lie against a person on a contract for the sale or other disposition of land unless the agreement on which the proceeding is brought, or a memorandum or note of the agreement, is in writing signed by the person or by the person’s agent properly authorised in writing.
(2)This section—
(a)applies to contracts whenever they were made; and
(b)applies to land under the Land Titles Act 1925; and
(c)does not affect the law about part performance or sales by a court.
Assignment of debts and things in action
(1)An absolute assignment, in writing signed by the assignor, of a debt or thing in action (other than an assignment expressed to be by charge only) is effective at law to transfer the right to the debt or thing in action if written notice of the assignment is given to the debtor, trustee, or other person, (the liable person) from whom the assignor would have been entitled to receive or claim the debt or thing in action.
NoteA thing in action (also called a chose in action) is an intangible personal property right recognised and protected by the law. Examples include debts, money held at a bank, shares, rights under a trust, copyright, and the right to sue for breach of contract.
(2)The transfer takes effect on the day the notice is given.
(3)Without limiting subsection (1), the assignee may recover or otherwise enforce the debt or thing in action without involving the assignor.
(4)However, the transfer is subject to all equities that would have been entitled to priority over the right of the assignee apart from this section.
(5)If the liable person has notice that the assignment is disputed, or of any conflicting claims to the debt or thing in action, the liable person may—
(a)call on anyone claiming the debt or thing in action to interplead; or
(b)pay any amount in dispute into court.
Merger
An estate in land is merged in another estate by operation of law only if the beneficial interest in the estate is merged or extinguished in equity.
Equitable waste
An estate for life without impeachment of waste does not give the tenant for life a legal right to commit equitable waste, unless an intention to give the tenant for life that right expressly appears in the instrument creating the estate.
Division 2.2.2 Property generally
Person may assure property to self or to self and others
A person may assure property to—
(a)himself or herself; or
(b)himself or herself and anyone else.
Power for corporations to hold property as joint tenants
(1)A corporation may acquire and hold property in joint tenancy in the same way as if it were an individual.
(2)Without limiting subsection (1), if a corporation and an individual become entitled to property under circumstances or an instrument that would have created a joint tenancy if the corporation were an individual, the corporation and individual are entitled to the property as joint tenants.
(3)However, the acquisition and holding of property by a corporation in joint tenancy is subject to the conditions and restrictions that apply to the acquisition and holding of property by a corporation in severalty.
(4)If a corporation that is a joint tenant of property is dissolved, the property devolves on the other joint tenant.
Interpretation of conveyance etc of property to 2 or more people together
(1)A disposition of the beneficial interest in property (whether or not with the legal estate) to or for 2 or more people together beneficially is taken to be made to or for them as tenants in common, and not as joint tenants.
(2)However, this section does not apply—
(a)to people who, under the instrument, are executors, administrators, trustees or mortgagees; or
(b)if the instrument expressly provides that they are to take as joint tenants.
(3)This section applies to the interpretation of an instrument commencing after 8 May 1958.
Tenants in common of equitable estate acquiring legal estate
(1)This section applies if—
(a)2 or more people are beneficially entitled as tenants in common to an equitable estate in property; and
(b)they are or become entitled in their own right (whether as joint tenants or tenants in common) to the legal estate in the property; and
(c)their legal estate in the property is equal to, and coextensive with, their equitable estate in the property.
(2)The legal and equitable estates in the property are both to be held by them as tenants in common unless they otherwise agree.
People taking who are not parties
(1)A person may take an immediate or other interest in land or other property, or the benefit of a condition, right of entry, covenant or agreement over or in relation to land or other property, even though the person is not a party to the assurance or other instrument.
(2)The person may sue, and is entitled to all rights and remedies, in relation to the land or other property as if the person had been a party to the assurance or other instrument.
Presumption of survivorship
(1)If 2 people die at the same time or in an order that is uncertain, the deaths are, for purposes affecting title to land, taken to have happened in order of seniority, and the younger is taken to have survived the elder.
(2)If more than 2 people die at the same time or in an order that is uncertain, the deaths are, for purposes affecting title to land, taken to have happened in order of seniority, and the youngest is taken to have survived the eldest.
(3)This section is subject to the Administration and Probate Act 1929, part 3B (Simultaneous deaths).
Provisions about supplemental instruments
(1)An instrument (the supplemental instrument) expressed to be supplemental to a previous instrument is, as far as practicable, to be read, and has effect, as if the supplemental instrument contained a full recital of the previous instrument.
(2)This section does not operate to give a right to production of the previous instrument.
(3)A purchaser may accept the same evidence that the previous instrument does not affect the title as the purchaser could have accepted if it had only been mentioned in the supplemental instrument.
Division 2.2.3 Ending life interests
Meaning of life interest for div 2.2.3
In this division:
life interest means an interest in property ending on the death of 1 or more people.
Wrongful holding over of life interest etc
(1)This section applies if a person entitled to a life interest in property holds over or continues in possession of the property, the interest in the property, or the rents, profits or income of the property, after the end of the life interest without the express consent of the person next entitled to the property, or to the rents, profits or income of the property, on the ending of the life interest.
(2)The holder of the life interest is liable in damages, to account for the rents, profits or income of the property, or both, to the person entitled to the property, or to the rents, profits or income, after the end of the life interest.
Vesting of interests on end of life interest—evidence of death
(1)If a reversion, remainder or other interest in property is to vest in possession on the death of 1 or more people and the person entitled to the interest believes that the interest has become vested in possession because of the death of the relevant person, the person entitled to the interest (the applicant) may—
(a)apply to a court for appropriate orders in relation to the property; and
(b)give the court evidence of the death of the relevant person.
(2)If the court is satisfied that the relevant person has died, the court may make appropriate orders in relation to the property in which the interest is held.
(3)Without limiting subsection (2), if evidence is given to the court that the relevant person has remained outside Australia, or has been absent from the place in Australia where the person might have been expected to be found, for 7 years or longer, then, unless it is proved to the satisfaction of the court that the relevant person is still alive, the court may order that the person is, for the proceeding, taken to have died and make appropriate orders on that basis.
(4)If judgment is given against the applicant and the applicant later begins another proceeding in a court in which the applicant claims that the relevant person has died, the court in which the other proceeding is begun may order that the proceeding be stayed—
(a)for a stated time; or
(b)until a further order of the court; or
(c)permanently.
(5)In this section:
relevant person, in relation to the vesting in possession of a reversion, remainder or other interest in property, means the person on whose death the interest vests in possession or, if the vesting of the interest in possession happens on the deaths of 2 or more people, the last of them to die.
Vesting orders made in error
(1)This section applies if—
(a)a person with a life interest in property (the interest-holder) has been evicted from the property or deprived of the interest because of an order made by a court on the basis that the life interest has ended; and
(b)in a later court proceeding the court is satisfied that the life interest has not ended, or had not ended when the order was made.
(2)The court hearing the later proceeding may give the interest-holder appropriate relief.
Part 2.3General rules about deeds and documents of corporations
Division 2.3.1 Deeds and their effect
Signature and attestation of deeds
(1)A deed (whether or not it affects property) must be—
(a)signed and sealed; and
(b)attested by at least 1 witness who is not a party to the deed, using any form of words.
(2)Indenting is not necessary.
(3)An instrument executed after 1 July 1920 that is signed and attested in accordance with this section is taken to be sealed if the instrument is expressed to be an indenture or deed or to be sealed.
(4)A deed executed and attested in accordance with this section may be proved in the same way that a deed not required by law to be attested may be proved.
(5)This section does not affect—
(a)the execution of a deed by a corporation; or
(b)a deed executed before 1 November 1951.
Receipt in deed sufficient
A receipt for consideration in the body of a deed is a discharge for the consideration to the person giving it, even though a receipt is not endorsed on the deed.
Receipt in deed or endorsed evidence for subsequent purchaser
A receipt for consideration in the body of a deed (or endorsed on it) is, for a subsequent purchaser without notice that all or part of the consideration has not been given, evidence of the giving of all the consideration.
How powers of appointment are to be exercised
(1)This section applies if a power of appointment by an instrument other than a will is exercised by—
(a)a deed executed and attested in accordance with this Act or the Corporations Act; or
(b)an instrument under the Land Titles Act 1925 executed and attested in accordance with that Act.
(2)The deed or instrument is, in relation to the execution and attestation, a valid exercise of the power, even though the instrument that creates the power requires an additional or another form of execution or attestation.
Division 2.3.2 Operation of deeds
Limitations may be made by direct conveyance without uses
A limitation that may be made by use operating under this Act may be made by direct conveyance without the intervention of uses.
In conveyance use of word grant unnecessary
(1)In a conveyance it is not necessary to use the word ‘grant’ to convey land.
(2)Any words that indicate an intention to convey the land are sufficient.
Rights of entry etc
The following interests in property may be conveyed by deed:
(a)a right of entry;
(b)a contingent remainder;
(c)a contingent, executory, or future estate, right or interest;
(d)a possibility coupled with an interest.
Certain conveyance etc void
(1)This section applies to a conveyance of, or an agreement to convey, a present right of entry to land, other than a conveyance or agreement to convey to the person in possession of the land (A).
(2)The conveyance or agreement to convey is void as against A or anyone claiming through A unless the person conveying or agreeing to convey (B), or the person through whom B claims, has been in possession of the land within 1 year from the date of the conveyance or agreement.
Division 2.3.3 Documents of corporations
Execution of documents by or on behalf of corporations
(1)For an honest purchaser, a document is taken to have been properly executed by a corporation aggregate if the seal of the corporation is fixed to the document and the fixing of the seal is attested by—
(a)the secretary or another officer of the corporation or a deputy of the secretary or other officer; and
(b)a member of the board of directors, council or other governing body of the corporation.
(2)If a document has attached to it a seal purporting to be the seal of a corporation aggregate and the fixing of the seal has been attested by people purporting to hold the positions mentioned in subsection (1), an honest purchaser may assume the document has been executed in accordance with subsection (1).
(3)The board of directors, council or other governing body of a corporation aggregate may, by resolution or other means, appoint an agent to execute documents for the corporation, including registration copies of documents to which the corporation is a party.
(4)If a person is authorised under a power of attorney or a statutory or other power to assure property for a corporation, the person may make the assurance by—
(a)signing it in his or her name in the presence of at least 1 attesting witness and stating in the assurance the power the person has to sign it for the corporation; and
(b)if the assurance is a deed—further executing the assurance in accordance with section 219 (Signature and attestation of deeds).
(5)If a corporation aggregate is authorised under a power of attorney or a statutory or other power to assure property for someone else, an officer or employee of the corporation appointed for the purpose by the board of directors, council or other governing body of the corporation may assure the property for the other person.
(6)If an assurance is made by an officer or employee who purports to be appointed under subsection (5), the assurance is taken, in relation to an honest purchaser, to have been made by a properly appointed officer or employee.
(7)This section applies to deeds and other documents executed after 8 May 1958.
(8)This section does not limit the ways in which a company may execute a document (including a deed), and any method of execution authorised by law or by practice, or by the law, charter, constitution or other instrument establishing the corporation or regulating the affairs of the corporation, is (in addition to the methods authorised by this section) as effective as if this section had not been enacted.
NoteThe Corporations Act, s 127 provides how a company may execute documents (including deeds), and s 128 provides that a person is entitled to make certain assumptions in s 129 in relation to dealings with a company.
Division 2.3.4 Powers of appointment
Application—div 2.3.4
This division applies to appointments made after 26 June 1986 under powers created before, on or after that day.
Appointments to be valid despite exclusion of object
(1)An appointment made under a power to appoint property among 2 or more objects is not invalid only because 1 or more objects of the power is not to take a share in the property.
(2)This section does not affect a provision of the instrument creating the power that declares a share in the property from which an object of the power is not to be excluded.
Part 2.4Sales and other transactions
Division 2.4.1 Dispositions on trust for sale or with power of sale
Meaning of purchaser for div 2.4.1
In this division:
purchaser means a person who acquires an interest in or charge on property for money or money’s worth.
Consents to execution of trust for sale etc
(1)If the consent of 3 or more people is required by a disposition for the execution of a trust for sale of property, or the exercise of a power of sale of property under a trust, then, for a purchaser, the consent of any 2 of those people to the execution of the trust or the exercise of the power or to the exercise of any statutory or other powers vested in the trustees is enough.
(2)If a person whose consent is required by a disposition for the execution of a trust for sale of property, or the exercise of a power of sale of property under a trust, is a person with a legal disability, the person’s consent is, for a purchaser, taken not to be required.
(3)However, for the disposition mentioned in subsection (2), the trustees must get the consent of—
(a)if the person is a child—the parent or testamentary or other guardian of the child; or
(b)if the person is a person with a mental disability—the manager of the person’s property under the Guardianship and Management of Property Act 1991; or
(c)if there is no parent, guardian or manager—the Supreme Court.
Purchaser not to be concerned with trusts of proceeds of sale
(1)A purchaser of property from trustees for sale, or from trustees having a power of sale, need not be concerned with the trusts affecting the proceeds of sale or the income of the property until sale, whether or not the trusts are declared by the same instrument that created the trust for sale or the power of sale.
(2)Despite anything to the contrary in the instrument (if any) creating a trust for sale of property, or a power of sale of property, or in the settlement of the proceeds of sale of property, proceeds of sale or other capital money may only be paid or applied by the direction of at least 2 trustees, unless the trust has only 1 trustee and—
(a)the trustee is a trust corporation; or
(b)the trustee was appointed as the sole trustee by the instrument creating the trust.
(3)However, subsection (2) does not affect the right of a sole personal representative to give valid receipts for, or direct the application of, proceeds of sale or other capital money.
(4)Also, subsection (2) does not make it necessary to have more than 1 trustee unless capital money arises on a transaction.
Settlements of personal property invested in land
(1)If a settlement contains a power to invest money in the purchase of land and land is purchased in the exercise of that power—
(a)the land is held by the trustees on trust for sale; and
(b)the net rents and profits from the land must, after paying the costs of repairs properly payable out of income, insurance and other outgoings, be paid or applied in the same way as the income of investments made from the sale price of the land would have been payable or applicable if the land had been sold and the proceeds invested other than in the purchase of land.
(2)This section applies unless the settlement provides to the contrary.
(3)This section applies only to settlements commencing after 1 December 1957.
Powers given to trustees for sale
(1)If property under a disposition on trust for sale includes land, the trustees may take possession of, hold and manage the land until it is sold.
(2)This section applies unless the disposition provides to the contrary.
Application of income of land under trust for sale
(1)The net rents and profits of land under a disposition on trust for sale must, after paying the costs of repairs properly payable out of income, insurance, and other outgoings, be paid or applied in the same way as the income of investments made from the sale price of the land would have been payable or applicable if the land had been sold and the proceeds invested other than in the purchase of land.
(2)This section applies subject to any contrary intention in the disposition or in a settlement of proceeds of sale under the disposition.
Partition of land under trust for sale
(1)If the net proceeds of sale of land under a disposition on trust for sale have, under the trusts affecting the sale, become absolutely vested in possession in 2 or more people as joint tenants or tenants in common, the trustees for sale may, with the agreement of the people (if any) who are adults and not annuitants and who have interests in possession in the net rents and profits of the land until it is sold—
(a)partition the land remaining unsold or any part of it; and
(b)provide (by mortgage or otherwise) for the payment of equality money.
(2)On a partition being arranged under subsection (1), the trustees for sale must give effect to the partition by conveying the land partitioned in severalty (subject or not to any mortgage created to raise equality money) to the people entitled to it under the partition.
(3)A purchaser of land partitioned under subsection (1) need not be concerned to inquire whether any agreement to the partition required by the subsection had been given.
(4)If a share in the net proceeds belongs to a person who has a physical, mental, psychological or intellectual condition relevant to the Guardianship and Management of Property Act 1991, section 8, the trustees for sale are protected if they obtain the agreement of—
(a)the manager of the person’s property under that Act; or
(b)if there is no manager—the Supreme Court.
(5)If a share in the net proceeds is affected by an encumbrance, the trustees for sale may either—
(a)give effect to the encumbrance; or
(b)provide for the discharge of the encumbrance out of the property allotted in relation to the share.
(6)If a share in the net proceeds is vested absolutely in a child, or in a person who cannot be found or identified, or about whom it is uncertain whether the person is living or dead, the trustees for sale may act for the child or person and keep land or other property that is the person’s share.
Powers of Supreme Court if trustees for sale decline to exercise powers
(1)If trustees for sale decline to sell or exercise any of the powers given by section 234 (Powers given to trustees for sale) or section 236 (Partition of land under trust for sale), or any agreement cannot be obtained, an interested person may apply to the Supreme Court for—
(a)a vesting or other order to give effect to the proposed transaction; or
(b)an order directing the trustees for sale to exercise any of their powers.
(2)The court may make any order it considers appropriate.
Division 2.4.2 Voidable dispositions
Meaning of purchaser for div 2.4.2
In this division:
purchaser means a purchaser for valuable consideration, and includes a lessee, mortgagee or other person who, for valuable consideration, acquires an interest in property.
Voluntary dispositions to defraud creditors voidable
(1)A disposition of property made with intent to defraud creditors is voidable by a person prejudiced by the disposition.
(2)However, this section does not apply to an interest in property disposed of to an honest purchaser who did not have, at the time of the disposition, notice of the intent to defraud creditors.
(3)This section applies to a disposition of property made before or after the commencement of this section.
Voluntary dispositions of land—how far voidable against purchasers
(1)A voluntary disposition of land made with intent to defraud a subsequent purchaser is voidable by that purchaser.
(2)For this section, if the document by which a voluntary disposition of land is made is registered before a subsequent purchase of the land, the voluntary disposition is not taken to have been made with intent to defraud a subsequent purchaser—
(a)only because the disposition was not made for valuable consideration; or
(b)only because of the subsequent purchase.
(3)This section applies to a disposition of land made before or after the commencement of this section.
Acquisitions of reversions at under value
(1)An acquisition of a reversionary interest in property honestly made for money or moneys worth must not be set aside only because it was made for less than full value.
(2)This section does not affect the jurisdiction of a court to set aside or change unconscionable bargains.
(3)In this section:
reversionary interest includes an expectancy or possibility.
Part 2.5Partition
Definitions—pt 2.5
In this part:
interested person, in relation to property, means a person with an interest in the property.
proceeding for partition of property includes a proceeding for sale of the property and distribution of the proceeds.
Court may order partition of land held in co-ownership
If 2 or more people hold an interest in land as joint tenants or tenants in common, the Supreme Court may, on an application made by 1 or more of those people (the applicants)—
(a)order a partition of the interest in the land held by the applicants; and
(b)make any further orders, and give any consequential directions, it considers appropriate.
Power of Supreme Court to order sale instead of partition
(1)In a proceeding for partition of property, instead of ordering partition—
(a)the Supreme Court may, on the application of an interested person, order the sale of the property if the court considers that sale (and a distribution of the proceeds) would be more beneficial than partition because of—
(i)the nature of the property; or
(ii)the number of interested people; or
(iii)the absence or disability of an interested person; or
(iv)any other circumstances; and
(b)the court must (unless it sees good reason not to), on the application of interested people with a collective interest in the property of at least a half share in the property, order the sale of the property; and
(c)the court may, on the application of an interested person, order the sale of the property unless other interested people agree to buy the share of the applying person.
(2)The power of the Supreme Court to order the sale of property includes the power to order the sale of a part of the property and the partition of the rest of the property.
(3)If the Supreme Court orders the sale of property, it may—
(a)appoint trustees to receive and apply proceeds of the sale; or
(b)give any consequential directions it considers appropriate, including, for example, directions about—
(i)the valuation of an interested person’s share in the property; and
(ii)the application, investment and distribution of proceeds of sale.
(4)In a proceeding for partition of property, it is sufficient to claim sale and distribution of the proceeds and it is not necessary to claim a partition.
Authority for interested person to bid
(1)The Supreme Court may allow an interested person in relation to property to bid at the sale of the property under this part on the conditions that the court considers appropriate, including, for example, conditions about—
(a)nonpayment of deposit; or
(b)setting off or accounting for the purchase money or any part instead of paying it; or
(c)anything else.
(2)This section does not limit section 244 (3).
Parties to partition proceedings
(1)A person who, apart from this part, might have brought a proceeding for partition of property may bring the proceeding against any interested person without serving any other interested person.
(2)A defendant in a proceeding cannot object for want of parties.
Several sales in same partition proceeding
(1)This section applies if, in a proceeding for partition of property—
(a)2 or more sales are made; and
(b)a person (the excluded person) is excluded from participation in the proceeds of any of the sales (the excluded sale).
(2)If the excluded person establishes the person’s claim to take part in the proceeds of another of the sales, the shares of the other people interested in the proceeds of that sale must be reduced to the extent that their share of the proceeds of the excluded sale were increased by the exclusion of the excluded person from the proceeds of that sale.
(3)The amount mentioned in subsection (2) must be put towards payment to the excluded person of the share of the proceeds of the excluded sale that the person would have been entitled to if the person had not been excluded.
Part 2.6Apportionment
Definitions—pt 2.6
In this part:
annuity includes salary and pension.
dividend includes—
(a)a payment called a dividend or bonus; and
(b)a payment otherwise made out of the revenue of a company that is divisible between members of the company, whether or not a payment of that kind is usually made or declared at fixed times;
but does not include a return of capital.
rent includes—
(a)a payment under a rent charge or for rent service; and
(b)a periodical payment in the nature of rent, or instead of rent.
Application of pt 2.6 to dividends of companies
For this part, the divisible revenue mentioned in section 248, definition of dividend, paragraph (b) is taken to have accrued by equal daily increments during the period in relation to which the payment out of revenue is declared or expressed to be made.
Income apportionable in relation to time
All rents, annuities dividends and other periodical payments in the nature of income (whether reserved or made payable by an instrument or otherwise) are, like interest on an amount lent, taken to accrue from day-to-day, and must be apportioned in relation to time accordingly.
Time when apportioned part is payable
An apportioned part of a payment mentioned in section 250 is payable or recoverable—
(a)if the payment is a continuing payment—when the entire portion of which the apportioned part forms part becomes payable; or
(b)if the payment is terminated by re-entry, death or otherwise—when the next entire portion of the payment would have become payable if it had not been terminated.
Recovery of apportioned parts
(1)In this section:
lessor means the person who, if the rent for any land had not been apportionable, would have been entitled to the entire or continuing rent for the land.
person includes—
(a)the person’s personal representatives, successors and assigns; and
(b)the personal representatives, successors and assigns of a person whose interest ended on that person’s death.
(2)The person entitled to an apportioned part of a payment mentioned in section 250 (Income apportionable in relation to time) may recover the part, when payable, in the same way as the person could recover the entire payment if entitled to it.
(3)However, an apportioned part of a payment of rent for land is not by itself recoverable from the person liable to pay the rent, but may be recovered from that person by the lessor together with the remaining part of the payment.
(4)If the lessor does so, the person entitled to the apportioned part may then recover it from the lessor.
Exceptions and application
(1)This part does not make apportionable an annual amount payable under a policy of assurance.
(2)This part does not apply to any case in which it is expressly stipulated that apportionment is not to take place.
Part 2.7Children and children’s property
Receipts by certain children
A child in a domestic partnership has power to give valid receipts for all income (including statutory accumulations of income made during childhood) to which the child may be entitled as if the child were an adult.
Management of land during childhood
(1)This section applies if—
(a)a beneficial interest in land is held in trust for a child; and
(b)the trustees of the beneficial interest are—
(i)if the settlement that created the interest appointed trustees of the interest—the trustees appointed; or
(ii)if the settlement that created the interest did not appoint trustees of the interest but there are trustees of the settlement—the trustees of the settlement, unless the settlement or an order of the Supreme Court that appointed the trustees of the settlement or their predecessors in office provides otherwise; or
(iii)in any other case—people appointed as trustees of the beneficial interest by the Supreme Court on the application of a litigation guardian of the child.
NoteSettlement is defined in s 200.
(2)The trustees of the interest may take possession of, hold and manage the land for the child.
(3)This section does not apply so far as a contrary intention appears from the settlement that created the beneficial interest of the child.
Power to appoint trustees of child’s property
(1)This section applies if—
(a)a child is absolutely entitled under the will, or on the intestacy, of a person (the deceased person) to a devise or legacy, or to the residue of the estate of the deceased person, or to a share in the deceased person’s estate; and
(b)the devise, legacy, residue or share is not, under a will of the deceased person, devised or bequeathed to trustees for the child.
NoteA devise is a disposal of real property by a will. To bequeath property is to dispose of personal property (ie property other than real property) by a will.
(2)The personal representatives of the deceased person may, by registered deed, appoint a trust corporation or 2 or more individuals (not more than 4), or both, to be—
(a)trustees of the devise, legacy, residue or share for the child; and
(b)trustees for section 255 (Management of land during childhood) of any land devised or any land that is, or forms part of, the residue or share.
(3)If a trust corporation, or a trust corporation and 1 or more individuals, are the personal representatives of the deceased person, the personal representatives may, by registered deed, appoint the trust corporation either alone or with 1 or 2 individuals to be the trustees for the child.
(4)The personal representatives of the deceased person may—
(a)appoint 1 or more of themselves to be trustees under subsection (2); or
(b)appoint 1 or 2 of themselves who are individuals to be trustees under subsection (3).
(5)On the appointment—
(a)the Trustee Act 1925, section 9 (Vesting on appointment and retirement) applies to the vesting in the trustees of the devise, legacy, residue or share; and
(b)the personal representatives, in that capacity, are discharged from further liability in relation to the devise, legacy, residue or share; and
(c)the rights of the child in relation to the devise, legacy, residue or share are restricted to the property that, under this section and the Trustee Act 1925, section 9, is vested in the trustees for the child and do not extend to any other property; and
(d)the devise, legacy, residue or share may be kept in its existing form or converted into money and the money invested in accordance with the Trustee Act 1925.
(6)If land held under the Land Titles Act 1925 is affected by a registered deed mentioned in this section, the registrar-general must, as the registrar-general considers appropriate—
(a)make an entry in the register of the vesting of the land; or
(b)enter or withdraw caveats.
(7)However, the registrar-general is not required to comply with subsection (6) unless the person the land is to be vested in—
(a)asks, in writing, that the entry be made; and
(b)gives any evidence supporting the request that the registrar‑general reasonably requires; and
(c)gives any notice of the request that the registrar-general reasonably requires to be given.
(8)In this section:
registered deed means a deed registered under the Registration of Deeds Act 1957.
trust corporation does not include the public trustee and guardian.
Powers and duties of guardian
(1)A guardian of a child—
(a)may take into the guardian’s custody, and may manage, the child’s real and personal property (other than property held by a trustee under a trust) until the guardian stops being the guardian of the child; and
(b)holds any of the child’s real and personal property that comes into the guardian’s custody as trustee for the child; and
(c)may bring a proceeding necessary to give effect to all or any of the guardian’s powers under this section, including the guardian’s powers as trustee for the child; and
(d)is responsible for accounting to the child, when the child becomes an adult, for the guardian’s custody and management of the property.
(2)Subsection (1) does not apply in relation to—
(a)the director‑general responsible for administering the Children and Young People Act 2008, when the director‑general has long-term care responsibility for a child because of that Act; or
(b)a testamentary guardian of a child.
Part 2.8Rights-of-way
No right-of-way by user against Territory etc
A right-of-way cannot be created only by continuous use against—
(a)the Territory; or
(b)the Commonwealth; or
(c)a person holding land for a public purpose.
Part 2.9Unit titles
Division 2.9.1 Important concepts
Definitions—pt 2.9
In this part:
buyer action period, for a disclosure update notice, means the period of 21 days from the day the buyer is given the disclosure update notice.
common property—see the Unit Titles Act 2001, section 13.
developer—see the Unit Titles Act 2001, dictionary.
disclosure statement—see section 260 (1).
disclosure update notice—see section 260B (2).
excluded change—see section 259A (4).
material change, to a matter in a disclosure statement, means—
(a)a type 1 matter; or
(b)a type 2 matter.
off-the-plan contract means a contract for the sale of a unit in a units plan before the units plan is registered.
owners corporation—see the Unit Titles (Management) Act 2011, dictionary.
registered means registered with the registrar‑general under the Land Titles Act 1925 or the Land Titles (Unit Titles) Act 1970.
unit—see the Unit Titles Act 2001, section 9.
units plan—see the Unit Titles Act 2001, dictionary.
unit subsidiary—see the Unit Titles Act 2001, section 12.
259AMeaning of type 1 matter and type 2 matter
(1)For this Act, a change to a matter in a disclosure statement for an off‑the-plan contract—
(a)is a type 1 matter if the change (other than an excluded change) is 1 of the following:
(i)a decrease in overall floor area of the unit (excluding any unit subsidiary) of 5% or more;
(ii)a decrease or increase in the unit entitlement estimate of 5% or more;
(iii)a decrease of 10% or more of a courtyard area or balcony area for the unit (whether or not the courtyard or balcony is part of the unit or a unit subsidiary);
(iv)any other prescribed matter; and
(b)is a type 2 matter if the change (other than an excluded change) will, or is likely to, affect the use or enjoyment of the unit and includes a change to the following:
(i)the plan mentioned in section 260 (1) (a) if the change will, or is likely to, affect the use or enjoyment of the unit or the common property;
(ii)the proposed rules of the owners corporation;
(iii)the developer’s estimate of the buyer’s contribution to the general fund if the change is more than the prescribed amount;
(iv)the location of an easement or inclusion of a new easement, that will, or is likely to, affect the use or enjoyment of the unit (other than an easement mentioned in the Unit Titles Act 2001, section 34 and section 35 or the Land Titles Act 1925, section 123D (5));
(v)a development statement for the units plan that will, or is likely to, affect the use or enjoyment of the unit;
(vi)the size of a unit subsidiary for the unit, if the change is a decrease of 10% or more and is not a type 1 matter;
(vii)any other prescribed matter.
(2)Subject to any disallowance or amendment under the Legislation Act, chapter 7, a regulation prescribing a matter for subsection (1) (a) (iv) commences—
(a)if there is a motion to disallow the regulation and the motion is negatived by the Legislative Assembly—the day after the day the disallowance motion is negatived; or
(b)the day after the 6th sitting day after the day it is presented to the Legislative Assembly under that chapter; or
(c)if the regulation provides for a later date or time of commencement—on that date or at that time.
(3)In calculating a change for subsection (1), any potential variation must be disregarded.
(4)In this section:
excluded change, in a disclosure statement for an off‑the‑plan contract means a change to a development statement for the units plan in the disclosure statement—
(a)because the territory planning authority has amended a development statement under the Unit Titles Act 2001, section 30; and
(b)that the buyer has agreed to under the Unit Titles Act 2001, section 30 (2) or (4).
potential variation, in relation to a disclosure statement, means information in the disclosure statement about the allowable change in the layout or size of the unit, unit subsidiary or unit entitlement estimate.
Division 2.9.2 Off-the-plan contracts—disclosure
Contract for sale of unit before registration of units plan
(1)Before the buyer and seller enter an off-the-plan contract, the seller must give the buyer a statement (the disclosure statement) including the following matters:
(a)a plan that shows—
(i)the proposed location and dimensions of the unit in relation to other units and the common property in the units plan; and
(ii)the internal floor plan of the unit; and
(iii)anything else prescribed by regulation;
(b)if a building management statement is required or is proposed for a building, or part of a building, subdivided by the units plan—the building management statement;
NoteA building management statement is required for a unit title application if the units plan subdivides part of a building that includes a lease additional to the units plan lease (see Unit Titles Act 2001, s 17B).
(c)a statement about the proposed use of each unit in the units plan showing—
(i)the full list of potential authorised uses under the lease for the unit; and
(ii)if the developer proposes to restrict the use of a unit to a subset of the potential uses mentioned in subparagraph (i)—
(A)the proposed subset of uses that applies to the unit; and
(B)the conditions (if any) applying to a stated use;
NoteA unit title application under the Unit Titles Act 2001 may include proposed restrictions on use (see that Act, s 17 (6)).
(d)the proposed schedule of unit entitlement for the units plan;
(e)details of each proposed unit subsidiary in the units plan, including the potential uses of the subsidiary;
(f)a statement about the potential for, and type of, easements that may be required for the units plan;
(g)the proposed rules of the owners corporation for the units plan including any special privilege rule;
(h)details of any contract the developer intends the owners corporation to enter, including—
(i)the amount of the buyer’s general fund contribution that will be used to service the contract; and
(ii)any personal or business relationship between the developer and another party to the contract;
(i)the developer’s estimate, based on reasonable grounds, of the buyer’s general fund contribution for 2 years after the units plan is registered;
(j)the method proposed for working out the contribution to be paid into the general fund by each unit;
(k)the method proposed for working out the contribution to be paid into the sinking fund by each unit;
(l)if a staged development of the units is proposed—the proposed development statement and any amendment to the statement;
(m)any other matter prescribed by regulation in relation to the following:
(i)development approval for the building the subject of the proposed units plan under the Planning Act 2023;
(ii)design and construction (including the identity of the developer, licensed builder or design architect);
(iii)sustainability infrastructure;
(iv)provision of utility services.
Examples—par (j) and par (k)
1 the user pays principle
2 unit entitlement value based on the market value of each unit
3 fixed cost for each unit regardless of unit value
(2)For subsection (1), the seller may give the disclosure statement by including some or all of the disclosure statement in the contract.
(3)However, a seller does not contravene subsection (1) only because of a matter included in the disclosure statement is inaccurate or incomplete.
NoteA seller who becomes aware of an inaccurate or incomplete matter in a disclosure statement is required to notify the buyer of the matter (see s 260B).
(4)In this section:
building management statement—see the Land Titles Act 1925, section 123C (1).
default rules—see the Unit Titles (Management) Act 2011, dictionary.
development statement—see the Unit Titles Act 2001, dictionary.
general fund—see the Unit Titles (Management) Act 2011, section 72.
general fund contribution—see the Unit Titles (Management) Act 2011, section 78 (1).
proposed rules means—
(a)the default rules; and
(b)if the developer proposes to register alternative rules of the owners corporation under the Unit Titles (Management) Act 2011, section 27 or section 27A—a document compiling the proposed alternative rules.
sinking fund—see the Unit Titles (Management) Act 2011, section 81.
special privilege rule—see the Unit Titles (Management) Act 2011, section 112A (1).
staged development—see the Unit Titles Act 2001, section 17 (4).
260ADisclosure statement provided late or not at all
(1)This section applies if—
(a)2 parties have entered into an off-the-plan contract; and
(b)the seller did not give the buyer a disclosure statement as required under section 260 (1) before the parties entered into the contract.
(2)The buyer may, by written notice, rescind the contract—
(a)if the seller has not given the buyer the disclosure statement—at any time before the contract is completed; or
(b)if the seller gives the buyer the disclosure statement after the contract is signed—within 21 days after the day the disclosure statement is given to the buyer.
260BSeller to notify material change to matter in disclosure statement
(1)This section applies if—
(a)a seller under an off-the-plan contract gives the buyer a disclosure statement under section 260; and
(b)the seller becomes aware of a material change to a matter set out in the disclosure statement.
(2)The seller must give the buyer a notice setting out the details of the material change (a disclosure update notice), in writing—
(a)no later than 10 working days after the end of the calendar quarter in which the seller first becomes aware of the material change; but
(b)at least 21 days before the day the buyer is required to complete the contract.
(3)The disclosure update notice must contain reasonably sufficient information to enable the buyer to work out whether the buyer will suffer significant prejudice because of the material change.
(4)For this section, a seller is taken to be aware of a material change to a matter in the disclosure statement if the seller has actual knowledge, or ought reasonably to have knowledge, of the change.
(5)In this section:
calendar quarter means a 3-month period ending on the last day of March, June, September or December.
260CEffect of disclosure update provided in time—type 1 matter
(1)This section applies if—
(a)a seller under an off-the-plan contract gives the buyer a disclosure update notice within the period required under section 260B (2); and
(b)the material change in the disclosure update notice is a type 1 matter; and
(c)the buyer is significantly prejudiced because of the material change.
(2)The buyer may, by written notice, given to the seller before the end of the buyer action period—
(a)rescind the contract; or
(b)tell the seller that the buyer will complete the contract and claim compensation for the change.
(3)The buyer must include in the written notice to the seller under subsection (2) a summary of the significant prejudice suffered by the buyer because of the material change.
(4)If, at the end of the buyer action period, the buyer has not taken action under subsection (2), the disclosure statement is taken to be amended by agreement to incorporate the material change in the disclosure update notice.
260DEffect of disclosure update provided out of time—type 1 matter
(1)This section applies if—
(a)a seller under an off-the-plan contract gives the buyer a disclosure update notice later than the period required under section 260B (2); and
(b)the material change in the disclosure update notice is a type 1 matter.
(2)The buyer may, by written notice, given to the seller before the end of the buyer action period—
(a)rescind the contract; or
(b)tell the seller that the buyer will complete the contract and claim compensation for the change.
(3)If, at the end of the buyer action period, the buyer has not taken action under subsection (2), the disclosure statement is taken to be amended by agreement to incorporate the material change in the disclosure update notice.
260EEffect of disclosure update—type 2 matter
(1)This section applies if—
(a)a seller under an off-the-plan contract gives the buyer a disclosure update notice (whether or not in the period required under section 260B (2)); and
(b)the material change in the disclosure update notice is a type 2 matter; and
(c)the buyer is significantly prejudiced because of the material change.
(2)The buyer may, by written notice, given to the seller before the end of the buyer action period—
(a)rescind the contract; or
(b)tell the seller that the buyer will complete the contract and claim compensation for the change.
(3)The buyer must include in the written notice to the seller under subsection (2) a summary of the significant prejudice suffered by the buyer because of the material change.
(4)If, at the end of the buyer action period, the buyer has not taken action under subsection (2), the disclosure statement is taken to be amended by agreement to incorporate the material change in the disclosure update notice.
260FBuyer action if no disclosure update notice
(1)This section applies if a seller under an off-the-plan contract—
(a)is required under section 260B to provide a disclosure update notice to a buyer; and
(b)does not provide the notice.
(2)The buyer may rescind the contract by written notice given to the seller at any time before the contract is completed.
(3)However, if the requirement mentioned in subsection (1) (a) relates to a material change that is a type 2 matter, the buyer—
(a)may only take action under subsection (2) if the buyer is significantly prejudiced because of the material change; and
(b)if taking action under subsection (2)—must include in the written notice to the seller a summary of the significant prejudice suffered by the buyer because of the material change.
260GSeller to notify buyer of registration of units plan
(1)The seller must, before an off-the-plan contract for a unit is completed, give the buyer of the unit a copy of—
(a)the registered units plan; and
(b)if there are alternative rules of the owners corporation registered under the Land Titles (Unit Titles) Act 1970, section 27 or section 27A—the alternative rules.
(2)The buyer is not required to complete the contract earlier than 21 days after the day the seller gives the buyer a copy of the documents mentioned in subsection (1).
260HEvidentiary burden—notices
In a legal proceeding arising out of, or connected with, an off‑the‑plan contract, the seller bears the onus of proving that a notice required to be given to a buyer under this division, including a disclosure statement, was given to the buyer.
Division 2.9.3 Implied warranties
Meaning of implied warranties—div 2.9.3
In this division:
implied warranties—see section 264.
Purpose—div 2.9.3
This division—
(a)sets out warranties that are taken to be part of a contract for the sale of a unit; and
(b)provides a right to rescind a contract for the sale of a unit.
Implied warranties
(1)The warranties (the implied warranties) in this section are taken to be part of a contract for the sale of a unit.
(2)The seller of a unit warrants that, at the date of the contract—
(a)to the seller’s knowledge, there are no unfunded latent or patent defects in the common property or owners corporation assets, other than the following:
(i)defects arising through fair wear and tear;
(ii)defects disclosed in the contract; and
(b)the owners corporation records do not disclose any defects to which the warranty in paragraph (a) applies; and
(c)to the seller’s knowledge, there are no actual, contingent or expected unfunded liabilities of the owners corporation that are not part of the corporation’s normal operating expenses, other than liabilities disclosed in the contract; and
(d)the owners corporation records do not disclose any liabilities of the corporation to which the warranty in paragraph (c) applies.
(3)The seller of a unit who enters an off‑the‑plan contract warrants that the information in the disclosure statement, including any matter incorporated in the disclosure statement by a disclosure update notice, is accurate.
(4)The seller warrants that, at the completion of the contract, to the seller’s knowledge, there are no circumstances (other than circumstances disclosed in the contract) in relation to the affairs of the owners corporation likely to significantly prejudice the buyer.
(5)For subsection (2), a seller is taken to have knowledge of a thing if the seller has actual knowledge, or ought reasonably to have knowledge, of the thing.
Rescission of contract for sale of unit
(1)The buyer of a unit may, by written notice given to the seller, rescind the contract for the sale of the unit if—
(a)in relation to the implied warranty mentioned in section 264 (3)—
(i)there would be a breach of the implied warranty were the contract completed at the time it is rescinded; and
(ii)the buyer is significantly prejudiced by the breach; or
(b)in relation to any other implied warranty—there would be a breach of the implied warranty were the contract completed at the time it is rescinded.
(2)A written notice under subsection (1) must be given to the seller—
(a)for an off‑the‑plan contract—
(i)for a breach of an implied warranty mentioned in section 264 (3)—at any time before the buyer is required to complete the contract; or
(ii)in any other case—not later than 3 days before the buyer is required to complete the contract; or
(b)in any other case—not longer than 14 days after the later of the following happens:
(i)the buyer and seller exchange contracts;
(ii)another period agreed between the buyer and seller ends.
(3)However, the buyer may not rescind the contract under this section only because of the breach of an implied warranty related to an amendment to the development statement that is an excluded change.
Claim for compensation
(1)This section applies if, before completion of a contract for the sale of a unit, the buyer reasonably believes there would be a breach of an implied warranty were the contract to be completed.
(2)The buyer may, by written notice given to the seller—
(a)tell the seller—
(i)about the breach; and
(ii)that the buyer will complete the contract; and
(b)claim compensation for the breach.
(3)A notice under this section must be given—
(a)if the contract for the unit is entered before the units plan for the unit is registered—not later than 3 days before the buyer is required to complete the contract; or
(b)in any other case—not later than 14 days after the later of the following happens:
(i)the buyer’s copy of the contract is received by the buyer;
(ii)another period agreed between the buyer and seller ends.
(4)The buyer may not claim compensation under this section only because the breach of the implied warranty relates to an amendment to the development statement that is an excluded change.
Division 2.9.4 Miscellaneous
Operation of part cannot be excluded etc
(1)A provision of a contract for the sale of a unit, or any other agreement or arrangement, is void if it would, apart from this subsection, have the effect of excluding, changing or restricting the operation of this part.
(2)This part does not affect any right or remedy available otherwise than under this part.
Rescission—effect
If the buyer rescinds a contract under this part, the seller must repay any amount paid by the buyer to the seller under the contract.
Chapter 3Mortgages
Note to ch 3
In this chapter, a reference to a mortgage includes a reference to a charge on property for securing money or moneys worth (see dict, def mortgage).
Part 3.1Powers in relation to mortgages
Application—pt 3.1
(1)This part applies to mortgages made to secure an amount advanced or to be advanced as a loan, or to secure an existing or future debt.
(2)The powers given under this part are subject to anything provided in the mortgage.
(3)The powers given under this part have the same effect as express powers to the same effect in the mortgage would have had and no more.
Powers incidental to mortgages
(1)If a mortgage is made in writing, the mortgagee has, because of this Act, the following powers:
(a)a power to sell or agree with someone else to sell all or any part of the mortgaged property;
(b)a power to appoint or have appointed, in accordance with this part, a receiver of the income of all or any part of the property;
(c)a power to insure from loss or damage all or any part of the property and to add the premiums paid for the insurance to the principal secured at the same rate of interest.
(2)The power of sale under subsection (1) includes the following powers:
(a)a power to sell the property by public auction or private contract on any reasonable conditions the mortgagee considers appropriate;
(b)a power to rescind or vary contracts for sale;
(c)a power to buy in and resell the property with all the powers of sale given by this section.
(3)A mortgagee must not exercise the power given by subsection (1) (a) or (b) until—
(a)1 year after the day the principal becomes payable under the mortgage; or
(b)interest on the principal has been in arrears for longer than 6 months.
(4)A mortgagee may exercise the power given by subsection (1) (c) only if the mortgagor has failed to pay a premium for insurance that the mortgagor is by the mortgage obliged to pay.
Receipt for purchase money sufficient discharge
(1)A receipt for purchase money given by a mortgagee exercising the power of sale given under this part is sufficient discharge to the purchaser.
(2)The purchaser need not be concerned with the application of the purchase money.
Notice of sale
A sale of property may be made under this part only if the person, or 1 of the people, entitled to the property has been given 6 months written notice.
Purported exercise of power of sale
(1)If a sale is purportedly made under this part, the purchaser’s title must not be questioned on the ground that—
(a)no circumstances had arisen to permit the sale; or
(b)the notice required by section 303 had not been given.
(2)If a person suffers loss because of an unauthorised sale under this part, the person may recover damages from the mortgagee.
Application of purchase money by mortgagee
(1)The amount received from a sale under this part must be applied by the mortgagee as follows:
(a)first, in payment of the expenses incidental to the sale or incurred in any attempted sale;
(b)second, in discharge of the interest and costs then owing in relation to the mortgage because of which the sale was made;
(c)third, in discharge of the principal then owing under the mortgage;
(d)finally, in payment of the balance to or on behalf of the person entitled to the property mortgaged.
(2)To remove any doubt, this section is subject to the Taxation Administration Act 1999, section 56H (Tax payable is charge on land).
Property that may be transferred to purchaser
A mortgagee exercising a power of sale over property under this part may transfer to the purchaser, in writing, all the interest in the property that the mortgagor could dispose of.
Mortgagee may call for documents relating to property
At any time after the power of sale under this part has become exercisable, the mortgagee may demand and recover from anyone (other than a person having an interest in the mortgaged property that has priority to the mortgage) every document relating to the property that a purchaser under the power of sale would have been entitled to demand and recover from the person.
Appointment of receiver
(1)A mortgagee entitled to appoint a receiver, or have a receiver appointed, under this part may appoint the receiver, or have the receiver appointed, in accordance with this section.
(2)If the mortgage document nominates the person to be appointed receiver, the mortgagee may appoint that person to be the receiver.
(3)If the mortgage document does not nominate the person to be appointed receiver, the mortgagee may, by written notice given to the person entitled to the mortgaged property, require the person to appoint an appropriate person to be the receiver not later than 10 days after the day the notice is given.
(4)A notice under subsection (3) may be given to the person entitled to the mortgaged property—
(a)by giving the notice to the person entitled to the property, or, if 2 or more people are entitled to the property, to any of them; or
(b)by attaching the notice to a conspicuous part of the mortgaged property.
(5)If a notice under subsection (3) is given to the person entitled to mortgaged property in accordance with subsection (4) and the person fails to appoint an appropriate person to be the receiver not later than 10 days after the day the notice is given, the mortgagee may appoint a person the mortgagee considers appropriate to be the receiver.
Receiver taken to be agent of mortgagor
A receiver appointed under this part is taken to be the agent of the mortgagor and the mortgagor is solely responsible for the receiver’s acts or omissions, unless the document creating the mortgage provides otherwise.
Powers of receiver
(1)A person appointed as receiver under this part may demand and recover all the income of which the person is appointed receiver, by proceeding or otherwise, in the name of either the mortgagor or the mortgagee to the full extent of the interest that the mortgagor could dispose of.
(2)The person may give valid receipts for the income of which the person is appointed receiver.
Ending appointment of receiver etc
(1)The power under this part to appoint a receiver includes power to end the appointment and appoint someone else.
(2)The power to end the appointment of a receiver and appoint a new receiver is exercisable in the same way, and under the same conditions, as the power to make the first appointment.
(3)The Legislation Act, part 19.3 (which deals with appointments) does not apply to the appointment of a receiver.
Commission to receiver
(1)A receiver appointed under this part is not entitled to the payment of costs, charges or expenses but is instead entitled to a commission on the money received.
(2)The commission to which the receiver is entitled is the amount, not more than 8% of the gross amount of all money received, stated in the receiver’s appointment or, if no amount is stated in the appointment, 4% of the gross amount.
Receiver to insure if required
(1)The mortgagee may, in writing, direct a receiver appointed under this part to insure and keep insured from loss or damage all or a stated part of the property included in the mortgage (whether or not a fixture) so far as it is insurable.
(2)The receiver must comply with the direction.
Application of amounts received by receiver
Amounts received by a receiver appointed under this part must be applied as follows:
(a)first, in discharge of all taxes, rates and assessments, in payment of the receiver’s commission, and in payment of insurance premiums;
(b)second, in discharge of the interest then owing under the mortgage because of which the receiver was appointed;
(c)third, in discharge of the principal then owing under the mortgage;
(d)finally, in payment of the balance to or on behalf of the person entitled to the property mortgaged.
Waiver of benefit of lease provision
If a lessor waives the benefit of a provision of the lease in a particular instance, the waiver is not taken—
(a)to extend to an instance, or a breach of a provision of the lease, other than that to which the waiver specially relates; or
(b)to operate as a general waiver of the benefit of the provision.
Part 4.5Forfeiture of leases
Definitions—pt 4.5
In this part:
lease includes—
(a)a sublease; and
(b)an agreement for a lease if the person to be the lessee is entitled to have the lease granted.
lessee includes a sublessee.
lessor includes a sublessor.
sublease includes an agreement for a sublease if the person to be the sublessee is entitled to have the sublease granted.
Application—pt 4.5
(1)This part applies to a lease despite any provision of the lease to the contrary.
(2)However, this part does not apply to a residential tenancy agreement under the Residential Tenancies Act 1997.
Restrictions on re-entry or forfeiture
(1)A right of re-entry or forfeiture under a lease for breach of a provision of the lease is not enforceable by proceeding or otherwise unless—
(a)the lessor gives the lessee a notice—
(i)specifying the breach; and
(ii)requiring the lessee to pay compensation for the breach; and
(iii)if the breach can be remedied—requiring the lessee to remedy the breach; and
(b)the lessee fails within a reasonable time after being given the notice—
(i)to pay reasonable compensation for the breach; and
(ii)if the breach can be remedied—to remedy the breach.
NoteIf a form is approved under s 502 for a notice, the form must be used.
(2)If the lessor under a lease seeks to enforce, by proceeding or otherwise, a right of re-entry or forfeiture under the lease for breach of a provision of the lease, the lessee may apply to the Supreme Court for relief.
(3)If the lessee applies to the Supreme Court for relief, the court may grant or refuse relief.
(4)If the Supreme Court grants relief, it may grant relief on the conditions it considers appropriate, including the granting of an injunction to restrain similar breaches of the lease in the future.
(5)This section does not apply in relation to—
(a)a lease granted by the Territory or the Commonwealth; or
(b)a lease for a term of 1 year or less; or
(c)a provision of a lease for forfeiture on the bankruptcy of the lessee; or
(d)the taking of the lessee’s interest in execution; or
(e)re-entry or forfeiture for nonpayment of rent.
(6)For this section, the term of a lease limited to continue only while the lessee does not breach the lease is taken to be the term for which the lease could continue apart from a breach.
Notices under s 426 (1)
(1)A notice under section 426 (1) must be in writing.
(2)If the lessee is not in the ACT, the notice may be given to the lessee by serving it personally on the lessee’s lawyer or agent in the ACT.
(3)Subsection (2) does not limit any other territory law that allows service of the notice in another way.
Protection of sublessees
(1)If the lessor under a lease seeks to enforce, by proceeding or otherwise, a right of re-entry or forfeiture under the lease for breach of a provision of the lease, a person (the interested person) claiming an interest in all or part of the leased property as sublessee may apply to the Supreme Court for relief.
(2)If the interested person applies to the Supreme Court for relief, the court may grant or refuse relief.
(3)Without limiting subsection (2), the Supreme Court may stay a proceeding brought by the lessor to enforce the right of re-entry or forfeiture under the lease and vest all or a part of the leased property in the interested person as sublessee, or in any other capacity, for a term not longer than the term of the lease.
(4)If the Supreme Court grants relief, it may grant relief on the conditions it considers appropriate.
(5)For this section, the term of a lease limited to continue only while the lessee does not breach the lease is taken to be the term for which the lease could continue apart from a breach.
Part 4.6Leases invalidly granted under powers
Pt 4.6 does not bind the Territory
(1)This part does not bind the Territory.
(2)This section has effect despite the Legislation Act, section 121 (Binding effect of Acts).
Leases taken to be granted in intended exercise of power
If—
(a)a valid power of leasing is vested in or may be exercised by a person granting a lease; and
(b)the lease cannot have effect, or continue to have effect, according to its terms independently of the power (because of the ending of the estate or interest of the person or otherwise);
the lease is, for this part, taken to be granted in the intended exercise of the power, even though the power is not mentioned in the lease.
Certain invalid leases taken to be agreements to lease
(1)This section applies if—
(a)in the intended exercise of a power to lease property, a lease is granted that is invalid against—
(i)the person entitled to the reversionary interest in the property at the end of the interest of the person granting the lease; or
(ii)anyone else who, subject to a lease validly granted under the power, would have an interest in the property; and
(b)the lease is invalid for failure to comply with the terms of the power; and
(c)the lease is honestly granted; and
(d)the lessee or a person claiming under the lessee has entered into possession of the property.
(2)An invalid lease mentioned in subsection (1) is taken in equity to be a contract for the grant, at the request of the lessee, of a valid lease—
(a)under the same power as the invalid lease was granted under; and
(b)in the same terms as the invalid lease apart from any changes necessary to comply with the terms of the power.
(3)Anyone who would have been bound by the invalid lease if it had been validly granted is bound in equity by the contract mentioned in subsection (2).
(4)However, no-one is entitled under the contract mentioned in subsection (2) to obtain a variation of the lease if the other people bound by the contract are willing to confirm the lease without variation.
(5)In this section:
possession—to remove any doubt, possession of land does not include receipt of income from the land.
Certain leases validated
(1)This section applies if—
(a)a lease granted in the intended exercise of a power of leasing is invalid because, when the lease was granted, the person granting the lease could not lawfully grant it; and
(b)the person was at least 18 years old at that time; and
(c)the person can, at a later time, lawfully grant the lease or a similar lease under the power.
(2)If this section applies, the lease is taken to have been granted by the person under the power at the later time.
(3)This part applies to the lease.
Acceptance of rent taken to be confirmation of lease
(1)This section applies if, on or before acceptance of rent under an invalid lease, a written receipt, memorandum or note confirming the lease is signed by the person accepting the rent or by someone authorised by that person.
(2)The acceptance of the rent is, as against the person accepting the rent, taken to be a confirmation of the lease.
Lessee bound to accept confirmation
(1)This section applies if—
(a)a person (the first person) is in possession of land under an invalid lease; and
(b)someone else (the other person) is entitled, subject to the interest of the first person in the land, to possession of the land or to receipt of its rents and profits; and
(c)the other person can confirm the lease without variation.
(2)The first person (or a person deriving title to the lease under or from the first person), or anyone else who would have been bound by the lease if it had been valid, must, if asked by the other person, accept confirmation of the lease by the other person.
(3)The confirmation may be made by a written memorandum or note signed by the other person and the person accepting the confirmation.
(4)On the confirmation of the lease, the lease is taken to have been valid from the time it was granted.
Pt 4.6 does not affect certain other rights
This part does not affect the rights of anyone in relation to a breach of a provision of an invalid lease.
Example
rights of a person named as lessor of an invalid lease to re-entry or forfeiture for breach of a provision of the lease
Part 4.7Recovery of leased premises
Application—pt 4.7
(1)This part does not—
(a)apply to—
(i)a residential tenancy agreement under the Residential Tenancies Act 1997; or
(ii)a lease under the Leases (Commercial and Retail) Act 2001; or
(iii)a residence contract under the Retirement Villages Act 2012; or
(b)bind the Territory.
(2)Subsection (1) (b) has effect despite the Legislation Act, section 121 (Binding effect of Acts).
Who is an agent for pt 4.7?
In this part:
agent means—
(a)a person usually employed by a lessor in leasing premises or collecting rents; or
(b)a person authorised in writing by the lessor of premises to act in relation to the premises.
Recovery of possession
(1)This section applies—
(a)if—
(i)the term of a lease has ended; or
(ii)a lease has been terminated by a notice to quit or a demand for possession; and
(b)the lessee, or a person claiming under the lessee who is occupying the leased premises or a part of the premises, fails to quit and give possession of the premises or a part of the premises to the lessor.
(2)The lessor or the lessor’s agent may apply to the Supreme Court or Magistrates Court for an order for recovery of possession of the premises.
(3)If the court is satisfied that the term of the lease has ended or that the lease has been terminated, it may make an order for recovery of possession of the premises by the lessor and may—
(a)issue a warrant authorising a police officer or someone else to enter (with any reasonable and necessary force) into the premises and give possession to the lessor or the lessor’s agent; or
(b)postpone the issue of a warrant mentioned in paragraph (a), or suspend the execution of the warrant, for a time it considers appropriate.
(4)In this section:
possession—to remove any doubt, possession of land does not include receipt of income from the land.
Chapter 5Miscellaneous
Part 5.1Debts charged on property of deceased person
Charges on property of deceased person to be paid primarily out of property charged
(1)This section applies if a person dies possessing or being entitled to, or, under a general power of appointment, disposes of by will—
(a)property that at the time of the person’s death is charged with the payment of an amount, whether by legal mortgage, equitable charge or in some other way (including a lien for unpaid purchase money); or
(b)land for which an amount is owing at the time of the person’s death under a contract of purchase.
(2)Unless the deceased person has by will indicated a contrary intention, the property charged or land for which purchase money is owing is, as between the different people claiming through the deceased person, primarily liable for the payment of the charge or purchase money and—
(a)each part of property that is subject to a charge must bear a proportionate part of the charge on the whole of the property; and
(b)each part of a parcel of land for which purchase money is owing must bear a proportionate part of the amount owing for the whole parcel.
(3)A contrary intention is not taken to be indicated—
(a)by a general direction in the deceased person’s will for the payment of debts, or all debts, of the person out of—
(i)the person’s personal estate; or
(ii)the person’s residuary real and personal estate; or
(iii)the person’s residuary real estate; or
(b)by a charge in the deceased person’s will of debts, or all debts, of the person on any estate mentioned in paragraph (a).
(4)However, a contrary intention is taken to be indicated by words in the deceased person’s will expressly or by necessary implication indicating an intention that a general direction in the will of the kind mentioned in subsection (3) (a), or a charge in the will of the kind mentioned in subsection (3) (b), is to apply to a charge on property mentioned in subsection (1) (a) or an amount of unpaid purchase money mentioned in subsection (1) (b).
(5)This section does not affect the right of a person entitled to a charge on property mentioned in subsection (1) (a), or to unpaid purchase money mentioned in subsection (1) (b), to obtain payment of the charge or purchase money out of other assets of the deceased person or in some other way.
Part 5.2Stipulations in contracts
Stipulations not of the essence of contracts
Stipulations in a contract, about time or anything else, that, in accordance with the rules of equity, are taken not to be, or not to have been, of the essence of the contract must be interpreted and have effect at law in accordance with those rules.
Part 5.3Miscellaneous—other provisions
Approved forms
(1)The Minister may, in writing, approve forms for this Act.
(2)If the Minister approves a form for a particular purpose, the approved form must be used for that purpose.
NoteFor other provisions about forms, see the Legislation Act, s 255.
(3)An approved form is a notifiable instrument.
NoteA notifiable instrument must be notified under the Legislation Act.
Regulation-making power
(1)The Executive may make regulations for this Act.
NoteA regulation must be notified, and presented to the Legislative Assembly, under the Legislation Act.
(2)A regulation may make provision in relation to the following:
(a)requirements about the way plans for section 260 (1) (a) are prepared;
(b)format requirements for plans required under section 260 (1) (a).
Dictionary
(see s 3)
Note 1The Legislation Act contains definitions and other provisions relevant to this Act.
Note 2For example, the Legislation Act, dict, pt 1, defines the following terms:
· adult
· child
· corporation
· Corporations Act
· domestic partnership (see s 169 (2))
· individual
· instrument (see s 14)
· interest
· land
· person
· police officer
· proceeding
· provision (see s 16)
· public trustee and guardian
· registrar-general
· territory planning authority.
Note 3See also the Legislation Act, s 168 (References to person with interest in land include personal representative etc).
administrator includes anyone to whom administration of the estate of a deceased person is granted, and includes the public trustee and guardian acting under the Administration and Probate Act 1929, part 6.
agent, for part 4.7 (Recovery of leased premises)—see section 437.
annuity, for part 2.6 (Apportionment)—see section 248.
assurance includes a conveyance and a disposition made otherwise than by will.
bankruptcy includes any act or proceeding in law having effects or results similar to those of bankruptcy.
Example
winding-up of a company
buyer action period, for part 2.9 (Unit titles)—see section 259.
common property, for part 2.9 (Unit Titles)—see the Unit Titles Act 2001, section 13.
conveyance includes an assignment, appointment, lease, settlement or other assurance by deed of any property.
deed, in relation to land under the Land Titles Act 1925, includes an instrument that has the effect of a deed under that Act.
developer, for part 2.9 (Unit titles)—see the Unit Titles Act 2001, dictionary.
disclosure statement, for part 2.9 (Unit titles)—see section 260 (1).
disclosure update notice, for part 2.9 (Unit titles)—see section 260B (2).
disposition includes—
(a)a conveyance; and
(b)an acknowledgment under the Administration and Probate Act 1929, section 56 (Executor may sign acknowledgment instead of conveyance); and
(c)a vesting instrument, declaration of trust, disclaimer, release or any other assurance of property by an instrument other than a will; and
(d)a release, devise, bequest or appointment of property in a will.
dividend, for part 2.6 (Apportionment)—see section 248.
encumbrance includes—
(a)a mortgage; and
(b)a trust for securing money; and
(c)a lien or charge of a portion, annuity, or other capital or annual sum.
excluded change, for part 2.9 (Unit titles)—see section 259A (4).
executor means the executor to whom probate has been granted, and includes an executor by right of representation.
implied warranties, for division 2.9.3 (Implied warranties)—see section 264.
income, of land, includes rents and profits.
instrument includes a deed, a will, an agreement for settlement, and a law of the Territory, the Commonwealth, a State or another Territory.
interested person, in relation to property, for part 2.5 (Partition)—see section 242.
lease, for part 4.5 (Forfeiture of leases)—see section 424.
lessee, for part 4.5 (Forfeiture of leases)—see section 424.
lessor, for part 4.5 (Forfeiture of leases)—see section 424.
life interest, for division 2.2.3 (Ending life interests)—see section 215.
material change, for part 2.9 (Unit titles)—see section 259.
mortgage—
(a)for land under the Land Titles Act 1925—see that Act, section 6 (1); and
(b)for other property—includes a charge on property for securing money or money’s worth.
mortgagee—
(a)for land under the Land Titles Act 1925—see that Act, section 6 (1); and
(b)for other property—includes a person taking title to the mortgage under the original mortgagee.
mortgagor—
(a)for land under the Land Titles Act 1925—see that Act, section 6 (1); and
(b)for other property—includes any of the following:
(i)a person taking title to the equity of redemption under the original mortgagor;
(ii)a person entitled to redeem a mortgage, according to the person’s interest in the mortgaged property.
off‑the‑plan contract, for part 2.9 (Unit titles)—see section 259.
owners corporation, for part 2.9 (Unit Titles)—see the Unit Titles (Management) Act 2011, dictionary.
personal representative means the executor or administrator of a deceased person.
person with a legal disability means—
(a)a child; or
(b)a person with a mental disability.
person with a mental disability means—
(a)in relation to a proceeding—a person (other than a child) who is not legally competent to be a party to the proceeding; and
(b)in relation to the doing of something—a person (other than a child) who is not legally competent to do the thing;
and includes such a person even if a guardian or manager has not been appointed for the person under the Guardianship and Management of Property Act 1991.
possession, of land, includes receipt of income from the land.
proceeding for partition of property, for part 2.5 (Partition)—see section 242.
purchaser—
(a)for division 2.4.1 (Dispositions on trust for sale or with power of sale)—see section 230; and
(b)for division 2.4.2 (Voidable dispositions)—see section 238; and
(c)for any other provision—means a purchaser for valuable consideration, and includes—
(i)a lessee or mortgagee; and
(ii)anyone else who acquires an interest in property for valuable consideration.
registered means—
(a)for this Act generally—registered in the appropriate register kept by the registrar-general; and
(b)for part 2.9 (Unit Titles)—see section 259.
rent—
(a)includes yearly or other rent; and
(b)for part 2.6 (Apportionment)—see section 248.
securities includes stocks, funds and shares.
settlement—see section 200.
sublease, for part 4.5 (Forfeiture of leases)—see section 424.
trust corporation means—
(a)the public trustee and guardian or a trustee company; or
(b)the Official Trustee in Bankruptcy under the Bankruptcy Act 1966 (Cwlth); or
(c)the trustee in whom the property of a bankrupt is vested.
trustee company—see the Trustee Companies Act 1947, dictionary.
trustees for sale means the people holding property on trust for sale.
trust for sale means a binding trust for sale, whether or not exercisable at the request or with the consent of anyone, and with or without a discretionary power to postpone sale.
unit, for part 2.9 (Unit Titles)—see the Unit Titles Act 2001, section 9.
units plan, for part 2.9 (Unit Titles)—see the Unit Titles Act 2001, dictionary.
unit subsidiary, for part 2.9 (Unit Titles)—see the Unit Titles Act 2001, section 12.
valuable consideration includes marriage, but does not include a nominal consideration in money.
Endnotes
About the endnotes
Amending and modifying laws are annotated in the legislation history and the amendment history. Current modifications are not included in the republished law but are set out in the endnotes.
Not all editorial amendments made under the Legislation Act 2001, part 11.3 are annotated in the amendment history. Full details of any amendments can be obtained from the Parliamentary Counsel’s Office.
Uncommenced amending laws are not included in the republished law. The details of these laws are underlined in the legislation history. Uncommenced expiries are underlined in the legislation history and amendment history.
If all the provisions of the law have been renumbered, a table of renumbered provisions gives details of previous and current numbering.
The endnotes also include a table of earlier republications.
Abbreviation key
A = Act NI = Notifiable instrument AF = Approved form o = order am = amended om = omitted/repealed amdt = amendment ord = ordinance AR = Assembly resolution orig = original ch = chapter par = paragraph/subparagraph CN = Commencement notice pres = present def = definition prev = previous DI = Disallowable instrument (prev...) = previously dict = dictionary pt = part disallowed = disallowed by the Legislative r = rule/subrule Assembly reloc = relocated div = division renum = renumbered exp = expires/expired R[X] = Republication No Gaz = gazette RI = reissue hdg = heading s = section/subsection IA = Interpretation Act 1967 sch = schedule ins = inserted/added sdiv = subdivision LA = Legislation Act 2001 SL = Subordinate law LR = legislation register sub = substituted LRA = Legislation (Republication) Act 1996 underlining = whole or part not commenced mod = modified/modification or to be expired
Legislation history
Civil Law (Property) Act 2006 A2006-38
notified LR 28 September 2006
s 1, s 2 commenced 28 September 2006 (LA s 75 (1)
remainder commenced 28 March 2007 (s 2 and LA s 79)as amended by
Children and Young People (Consequential Amendments) Act 2008 A2008‑20 sch 3 pt 3.5
notified LR 17 July 2008
s 1, s 2 commenced 17 July 2008 (LA s 75 (1))
s 3 commenced 18 July 2008 (s 2 (1))
sch 3 pt 3.5 commenced 27 October 2008 (s 2 (4) and see Children and Young People Act 2008 A2008-19, s 2 and CN2008-13)Justice and Community Safety Legislation Amendment Act 2010 (No 3) A2010-40 sch 1 pt 1.1
notified LR 5 October 2010
s 1, s 2 commenced 5 October 2010 (LA s 75 (1))s 3, sch 1 pt 1.1 commenced 6 October 2010 (s 2 (1))
Administrative (One ACT Public Service Miscellaneous Amendments) Act 2011 A2011-22 sch 1 pt 1.26
notified LR 30 June 2011
s 1, s 2 commenced 30 June 2011 (LA s 75 (1))sch 1 pt 1.26 commenced 1 July 2011 (s 2 (1))
Unit Titles (Management) Act 2011 A2011-41 sch 5 pt 5.2
notified LR 3 November 2011
s 1, s 2 commenced 3 November 2011 (LA s 75 (1))
sch 5 pt 5.2 commenced 30 March 2012 (s 2 and CN2012-6)Justice and Community Safety Legislation Amendment Act 2013 A2013-7 sch 1 pt 1.2
notified LR 1 March 2013
s 1, s 2 commenced 1 March 2013 (LA s 75 (1))
sch 1 pt 1.2 commenced 4 March 2013 (s 2 and see Retirement Villages Act 2012 A2012-38, s 2 and LA s 79)Marriage Equality (Same Sex) Act 2013 A2013-39 sch 2 pt 2.4
notified LR 4 November 2013
s 1, s 2 commenced 4 November 2013 (LA s 75 (1))sch 2 pt 2.4 commenced 7 November 2013 (s 2 and CN2013-11)
NoteThe High Court held this Act to be of no effect (see Commonwealth v Australian Capital Territory [2013] HCA 55)
Protection of Rights (Services) Legislation Amendment Act 2016 (No 2) A2016‑13 sch 1 pt 1.8
notified LR 16 March 2016
s 1, s 2 commenced 16 March 2016 (LA s 75 (1))sch 1 pt 1.8 commenced 1 April 2016 (s 2 and see Protection of Rights (Services) Legislation Amendment Act 2016 A2016-1 s 2)
Revenue Legislation Amendment Act 2018 A2018-2 sch 1 pt 1.1
notified LR 28 February 2018
s 1, s 2 commenced 28 February 2018 (LA s 75 (1))
sch 1 pt 1.1 commenced 1 March 2018 (s 2)Unit Titles Legislation Amendment Act 2020 A2020-4 pt 2
notified LR 27 February 2020
s 1, s 2 commenced 27 February 2020 (LA s 75 (1))
pt 2 commenced 1 November 2020 (s 2 (1) and CN2020-11)Planning and Unit Titles Legislation Amendment Act 2021 A2021-5 pt 2
notified LR 8 April 2021
s 1, s 2 commenced 8 April 2021 (LA s 75 (1))
pt 2 commenced 9 April 2021 (s 2)Planning and Unit Titles Legislation Amendment Act 2021 (No 2) A2021-25 sch 1 pt 1.1
notified LR 17 November 2021
s 1, s 2 commenced 17 November 2021 (LA s 75 (1))sch 1 pt 1.1 commenced 18 November 2021 (s 2)
Unit Titles Legislation Amendment Act 2023 A2023-24 sch 1
notified LR 23 June 2023
s 1, s 2 commenced 23 June 2023 (LA s 75 (1))
sch 1 commenced 1 July 2023 (s 2)Planning (Consequential Amendments) Act 2023 A2023-36 sch 1 pt 1.8
notified LR 29 September 2023
s 1, s 2 commenced 29 September 2023 (LA s 75 (1))
sch 1 pt 1.8 commenced 27 November 2023 (s 2 (1) and see Planning Act 2023 A2023-18, s 2 (2) and CN2023-10)Amendment history
Commencement
s 2om LA s 89 (4)
Application of Act
s 5am A2010‑40 amdt 1.1
Power to appoint trustees of child’s property
s 256am A2016‑13 amdt 1.30
Powers and duties of guardian
s 257am A2008‑20 amdt 3.13; A2011‑22 amdt 1.91
Unit titles
pt 2.9 hdgins A2011‑41 amdt 5.3
am R16 LA
Definitions—Important concepts
div 2.9.1 hdg ins A2011‑41 amdt 5.3
sub A2020‑4 s 5
Definitions—pt 2.9
s 259ins A2011‑41 amdt 5.3
sub A2020‑4 s 5
def buyer action period ins A2020‑4 s 5
def common property ins A2011‑41 amdt 5.3
sub A2020‑4 s 5
def developer ins A2020‑4 s 5
def disclosure statement ins A2020‑4 s 5
def disclosure update notice ins A2020‑4 s 5
def excluded change ins A2020‑4 s 5
def material change ins A2020‑4 s 5
def off-the-plan contract ins A2020‑4 s 5
def owners corporation ins A2011‑41 amdt 5.3
sub A2020‑4 s 5
def registered ins A2011‑41 amdt 5.3
sub A2020‑4 s 5
def unit ins A2011‑41 amdt 5.3
sub A2020‑4 s 5
def units plan ins A2011‑41 amdt 5.3
sub A2020‑4 s 5
def unit subsidiary ins A2021‑5 s 4
Meaning of type 1 matter and type 2 matter
s 259Ains A2020‑4 s 5
am A2021‑5 ss 5-7; ss, pars renum R12 LA; A2023‑24 amdt 1.1; A2023-36 amdt 1.66
Off-the-plan contracts—disclosure
div 2.9.2 hdg reloc from Unit Titles Act 2001 div 3.4 hdg by A2011‑41 amdt 5.38
sub A2020‑4 s 6
Contract for sale of unit before registration of units plan
s 260reloc from Unit Titles Act 2001 s 31A by A2011‑41 amdt 5.38
sub A2020‑4 s 7
am A2021‑5 s 8; A2021‑25 amdt 1.1; A2023‑24 amdts 1.1-1.3; A2023-36 amdt 1.67
Disclosure statement provided late or not at all
s 260Ains A2020‑4 s 8
Seller to notify material change to matter in disclosure statement
s 260Bins A2020‑4 s 8
Effect of disclosure update provided in time—type 1 matter
s 260Cins A2020‑4 s 8
Effect of disclosure update provided out of time—type 1 matter
s 260Dins A2020‑4 s 8
Effect of disclosure update—type 2 matter
s 260Eins A2020‑4 s 8
Buyer action if no disclosure update notice
s 260Fins A2020‑4 s 8
Seller to notify buyer of registration of units plan
s 260Gins A2020‑4 s 8
am A2023‑24 amdt 1.4, amdt 1.5
Evidentiary burden—notices
s 260Hins A2020‑4 s 8
Implied warranties
div 2.9.3 hdg reloc from Unit Titles Act 2001 pt 7A hdg by A2011‑41 amdt 5.47
Meaning of implied warranties—div 2.9.3
s 261reloc from Unit Titles Act 2001 s 130A by A2011‑41 amdt 5.47
am A2020‑4 s 9
Purpose—div 2.9.3
s 262reloc from Unit Titles Act 2001 s 130B by A2011‑41 amdt 5.47
am A2020‑4 s 10, s 11
Implied warranties and right to cancel—effect
s 263reloc from Unit Titles Act 2001 s 130C by A2011‑41 amdt 5.47
om A2020‑4 s 12
Implied warranties
s 264reloc from Unit Titles Act 2001 s 130D by A2011‑41 amdt 5.47
am A2020‑4 s 13, s 14; ss renum R11 LA
Rescission of contract for sale of unit
s 265reloc from Unit Titles Act 2001 s 130E by A2011‑41 amdt 5.47
sub A2020‑4 s 15
Claim for compensation
s 266reloc from Unit Titles Act 2001 s 130F by A2011‑41 amdt 5.47
am A2020‑4 s 16, s 17
Miscellaneous
div 2.9.4 hdg ins A2020‑4 s 18
Operation of part cannot be excluded etc
s 267ins A2020‑4 s 18
Rescission—effect
s 268ins A2020‑4 s 18
Application of purchase money by mortgagee
s 305am A2018‑2 amdt 1.1
Lessee to give notice of ejectment to lessor
s 402am A2013‑7 amdt 1.2
Application—pt 4.7
s 436am A2013‑7 amdt 1.3
Transitional
pt 5.4 hdgexp 28 March 2009 (s 506)
Regulation-making power
s 503am A2020‑4 s 19
References to repealed Act
s 504exp 28 March 2009 (s 506)
Transitional regulations
s 505exp 28 March 2009 (s 506)
Expiry of pt 5.4
s 506exp 28 March 2009 (s 506)
Repeals and consequential amendments
pt 5.5 hdgom LA s 89 (3)
Legislation repealed
s 507om LA s 89 (3)
Legislation amended—sch 1
s 508om LA s 89 (3)
Transitional—Unit Titles Legislation Amendment Act 2020
pt 5.6 hdgins A2020‑4 s 20
exp 1 November 2023 (s 512)
Meaning of commencement day—pt 5.6
s 510ins A2020‑4 s 20
exp 1 November 2023 (s 512)
Application to certain existing off‑the‑plan contracts—amendments made by Unit Titles Legislation Amendment Act 2020
s 511ins A2020‑4 s 20
exp 1 November 2023 (s 512)
Expiry—pt 5.6
s 512ins A2020‑4 s 20
exp 1 November 2023 (s 512)
Consequential amendments
sch 1om LA s 89 (3)
Dictionary
dictam A2013‑39 amdt 2.9 (A2013‑39 never effective (see Commonwealth v Australian Capital Territory [2013] HCA 55)); A2016‑13 amdt 1.31; A2023-36 amdt 1.68
def administrator am A2016‑13 amdt 1.32
def buyer action period ins A2020‑4 s 21
def common property ins A2011‑41 amdt 5.4
def developer ins A2020‑4 s 21
def disclosure statement ins A2020‑4 s 21
def disclosure update notice ins A2020‑4 s 21
def excluded change ins A2020‑4 s 21
def implied warranties ins A2020‑4 s 21
def material change ins A2020‑4 s 21
def off-the-plan contract ins A2020‑4 s 21
def owners corporation ins A2011‑41 amdt 5.4
def registered sub A2011‑41 amdt 5.5
def trust corporation am A2016‑13 amdt 1.33
def unit ins A2011‑41 amdt 5.6
def units plan ins A2011‑41 amdt 5.6
def unit subsidiary ins A2021‑5 s 9
Earlier republications
Some earlier republications were not numbered. The number in column 1 refers to the publication order.
Since 12 September 2001 every authorised republication has been published in electronic pdf format on the ACT legislation register. A selection of authorised republications have also been published in printed format. These republications are marked with an asterisk (*) in column 1. Electronic and printed versions of an authorised republication are identical.
Republication No and date Effective Last amendment made by Republication for R1
28 Mar 200728 Mar 2007–
26 Oct 2008not amended new Act R2
27 Oct 200827 Oct 2008–
28 Mar 2009A2008‑20 amendments by A2008‑20 R3
29 Mar 200929 Mar 2009–
5 Oct 2010A2008‑20 commenced expiry R4
6 Oct 20106 Oct 2010–
30 June 2011A2010‑40 amendments by A2010‑40 R5
1 July 20111 July 2011–
29 Mar 2012A2011‑22 amendments by A2011‑22 R6
30 Mar 201230 Mar 2012–
3 Mar 2013A2011-41 relocation of provisions from Unit Titles Act 2001 and other amendments by A2011-41 R7
4 Mar 20134 Mar 2013–
6 Nov 2013A2013‑7 amendments by A2013‑7 R8
7 Nov 2013never effective A2013‑39 (never effective) amendments by A2013‑39 R8 (RI)
24 Feb 20147 Nov 2013–
31 Mar 2016A2013‑39 (never effective) reissue because of High Court decision in relation to A2013‑39 R9
1 April 20161 April 2016–
28 Feb 2018A2016‑13 amendments by A2016‑13 R10
1 Mar 20181 Mar 2018–
31 Oct 2020A2018‑2 amendments by A2018‑2 R11
1 Nov 20201 Nov 2020–
8 Apr 2021A2020‑4 amendments by A2020‑4 R12
9 Apr 20219 Apr 2021–
17 Nov 2021A2021‑5 amendments by A2021‑5 R13
18 Nov 202118 Nov 2021–
30 June 2023A2021‑25 amendments by A2021‑25 R14
1 July 20231 July 2023–
1 Nov 2023A2023‑24 amendments by A2023‑24 R15
2 Nov 20232 Nov 2023–
26 Nov 2023A2023‑24 expiry of transitional provisions (pt 5.6)
Expired transitional or validating provisions
This Act may be affected by transitional or validating provisions that have expired. The expiry does not affect any continuing operation of the provisions (see Legislation Act 2001, s 88 (1)).
Expired provisions are removed from the republished law when the expiry takes effect and are listed in the amendment history using the abbreviation ‘exp’ followed by the date of the expiry.
To find the expired provisions see the version of this Act before the expiry took effect. The ACT legislation register has point-in-time versions of this Act.
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