Real Property Act 1881 (SA)

No. 223.

h Act to amend the " Real Property Act, 1861," and for

other purposes.

[Assmted to, Novmbev ~ B t h, 1881.1

ERBAG dmbb have arisen ae to whether under the W -m.

W" or o&er easement, constitute an interest in land capable of being Property Act, 1861," rights-of-way, appurtenant and in gross,	brought under the provisions of the said Act, and in respect of
which caveats may be entered. and whereae it is expedieht to settle nuch doubts-Be i t therefore Enacted bp the Governor of the Province of South Australia, with the advice and consent of the Legislative Council and House of Assembly of the said province, in this present Parliament assembled, as follo~8:

1. In the cunstnzotion and for the purposes of the Red Propertp of

bring such lands under the provisions of the cc Real Property Aot, 1 1861," shall be deemed to be a person having an estate or interest in the land over or in respect of which such Tight-of-way or other 1 easement exists, and 8h.U be entitled to lodge with the Registrar-	.	(Ifeneral a caveat forbidding the bringing of rmch land under the provisions of the Act as doremid, cxcept subject to the said
righbof-way or other eaeement. 3. F, v q

Act, 1861" (if not inmnsktent with the context and sobject matter),

the word "land " shall, in addition to the meaning assigned there- to by seotiim 3 of the said Act, mean and include rights-of-way c~ppnrtenant and rights-of-way in gross, and all other casements of

, any kind whatsoever.

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2. Any pason p d of or entitled to a rightaf-why, appm chwa in nrpsa ol

l mant m in groq or other easements,in, over, under, or across any ri,yhb-&my.

) h d s in r e p e a t of which an application may hereafter be made to

440 & 45" VICTORIE, No. 223.

R+&iwf- W q Act.-1881.

3. Every certificate of title ieaaed after the passing hereof, and containing therein a statement that the land therein deecribed haa appurtensnt thereto a right or rights-of-why or other' easements, or that the person therein named is entitled to any rightof-r ay or other ensernent in gross, or that the said land therein described ia subject to a right or rights-of-way or other easementa, shall fully set forth a true and accurate description, and in the case of a right? of-way contain a plan thereof in the margin of such right or rights. of-way or easements, or shall refer to the hsttument creating such right or rights-of-way or easernent, if such instrument he enrolled or deposited in the G-eneral Registry Office at Adelaide, or in the case of righbof-way to any plan deposited in the General Registry Office, or the Lands Titles Registration Office, on which such rights-of-way are shown; and such certificate shall, if duly authen- ticated under the hand and seal of the Registrar-General, unless in the case of a right-of-way, such right-of-way shall not appear upon the certificate of title of the registered proprietor of the land over which such right or rights or easements are claimed, be received, except in the case of fraud, as conclusive evidence that the right or rights-of-way or eawments therein mentioned and described exist appurtenant to, or in gross, in respect of or over the land in the said certificate mentioned, as the case may be.

4. Upon any land being hereafter brought under the provisions 03

the said " Real Property Act," the registered proprietor thereof shall be deemed to hold the land mentioned in the certificate of title, subject to such rights-of-way only as are mentioned and set forth

in such certificate.

Application to h i a s

lends under tha Act	5. In every application hereafter made to bring land under the bound to include full particulars so far as he is aware of every righb of-way existing in, over, across, or under the mid land, whether such
mu& rst forth rights-	provisions of the Real Property Act of 1861," the applicant s h d be
of.n.ry.
righ~of-way shall have been acquired by grant or otherwise.

Mode of dealing

with cersats. 6. Caveats lodged in respect of rights-oEway or eaaemenb aa

aforesaid shall be deaIt with by the same persons and in like manner as is prescribed for dealing with caveats under the a Real Property Act, X861," and the "Real Property Act Amendment Act, 1878;" and the procedure prescribed by the said Acts for the removal thereof 8haJ.l be the procedure to be ~dopted for the removal of caveat3 lodged by virtue of this Act.

Appliutian for	7. Any person claiming to be entitled to a righhf-way, appnrte
entries04 rightd-

way on cext~i3catae. nant, or in gross, or to any other easement over or in respect of any lands at the passing hereof under the provisions of the "Real Property Act, 1861," may make application to the wstrar - General to have an entry of such righhf-way or other easement made upon the f o b of the certificate of title of the lands over or in respect which such right-of-way or other easement is claimed, and such application shall be in the form in the Schedule A to this

Act

4.4' & 45" VICTORIE, No. 223.

RighBof- Wuy Act.-1881.

Act annexed; and such applicant shall lodge with the Registrar- General all instruments in his possession or under his control, ~howing his title to such ripheof-way or other easement; and such application shall contain a reference to the registered number of the certificate of title of the land over or in respect oE which such right- of-way or other easement is claimed.

8. The proceedings upon every such application shall be as nearly Noti-of . - P P .

as may be similar to the proceedings upon an application to bring land under the provisions of the '' Real Property Act, 1861": Provided that, in addition to the notices required by the said Act to be published in the Government Gazette, express notice of such application shall be given by the Registrar-General to the registwed proprietor of the land over which the righeof-way or easement is claimed: And provided also that .such registered proprietor shall be entitled to inspect all instruments of title lodged with such application.

9. If, within the time limited by any such notice as aforesaid, the $$:$-$b;?t~

Registrar-General shall not have received from the registered pro- rsgidpmpnetm.

prietcr a caveat forbidding the entry of the right-of-way or other

easement claimed in the said application, the Registrar-General shall

make an entry upon the folium of the certificate of title of the said

lands iu the register-book, and also upon the duplicate certificate of

title of the said land, to he produced by the registered owner, or by the mortgagee, encumbrancee, or depositee of the certificate of title, for that purpose, and such entry shall accurately set forth the particu- lars of such righeof-way or other easement, and the name of the peraon entitled thereto; and the plan in the margin of the certificate of title shall be amended by showing therein every such right-of-way and other easement, and a memorandum shall be subscribed under

the said plan showing the date of such amendment.

10. Every entry made in pursuance of this Act of a righeof-way ~ n t q mnalusive

svidenoe of way,

or other easernent over lands under the provisions of the "Real use of

Property Act, 1861," shall be received, except in the case of fraud, fraud.

in all Courts as conclusive evidence of the existence of such right- of-way or other easement and that the person mentioned therein is entitled to such right-of-way or other easement.

U. Subject to the provisions of section 60 of the Real Property %ht+of-rs~ b.rrsd after five years if not

Act Amendment Act of 1878, every person at the time of passing ,-,

certi6.arte.

hereof entitled to a right-of-way over or in respect of land under the provisions of the "Real Property Act, 1861," may, within a period of five years from the passing hereof, make application under the provisions hereof to have an entry of such right-of-way made upon the folium of the oertificate of title of the said land in the register- book, and also upon the certificate of title of the registered owner, to be produced by such owner for that purpose, and after the expira- tion of the period of five years, a9 aforesaid, the registered pro- prietor of land under the provisions of the "Real Property Act,

1861,"

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4.4' & 45' VICTORIX. No. 223.	'1
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Righ*r-of- Way	Act.-1881.	I
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1861," shall hold the l e d mentioned in such certificate free, and	:
discharged from all rights-of-way not entered upon the folium of the	1
certificate of title of the said land; and after such period the person	1
entitled to apply under this section as aforesaid uhall be for ever	?
debarred from claiming any righeof-way over the said land, unless he	i
shall have so applied as aforesaid.	I
E

h b k G & k c d - m ~ 12.

Rights now or hereafter acquired or enjoyed by the public or enjoyed by the public, shall not be deemed to be rights-of-way or

not within tbia Ad. in, over, along, or across any land or way, or other eaaement acquired

i

easementa within the meaning of this Act, or in respect of which applications may be made or caveats entered, and nothing herein contained shall derogate from any of such rights or easements, or be deemed to confer on the registered proprietor of land under the provisions of the'LReal Property Act, 1861," a right to interfere with or obstruct the public use of any way or other easement under such righta as aforesaid.

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~sniw of ootim. 13. All notice8 required to be served and g i ~ e n under this Act

may be given by enclosing the same addressed to the lasbknown place of abode of the person to whom the same is directed, and fop warded as a registered letter through the General Post Office.

F-. 14.

The Registrar-General shall be entitled to charge the several

fees specified in the Schedule hereto marked B, in respect of the

matters in such Schedule mentioned.

M m t e i d 15. Every certificate of title heretofore issued under the provi-

Mm Act	mdudm	sions of the "Real Property Act, 1861," containing therein a state-
a i d a c e of	way
therein -bed	ment that the registered proprietor is seized of the land described in such certificate, subject to or together with any right or rights- of-way therein described and in the plan therein delineated, or together with any easementa therein described, shall be deemed to operate as a grant or reservation, as the case may be, of such right or rightssf-way, or other easementp, and such certificate shall in all Courts, except in the case of fraud, be received as conclusive
evidence of the existence of such right or rights-of-way or other easements: Provided that this section shall not apply to any right
or rights-of-way or other easementa the title to which is a t the time of the passing of this Act the subject of pending litigation in any Court of Law, or to any right or rights-of-way or other easementa, the right to which has been concluded adversely to such righeof-way or easement in any Court of Law.

a;@&-of-~a 16. Whenever any land shall hereafter be brought under the

be Prntsredupoer- pro via ion^ of the Real Property Act of 1861, having appurtenant'

tracstes of	of thereto a rjght-of-way or other easement over lands then under the provisions of such Act, or whenever any rightof-way appurtenant to land under the provisions of the said Act over land also under its provisions, or any other easement, shall hereafter be created or transferred, the Registrar-General shall enter the memorial of the
land.

instrument

44" & 45" VICTORIE, No. 223.

Rights-of- Way Act.-1881.

inntmment granting, creating, or transferring such right-of-way or easement upon the foliums of the register-book, and the certificate

of title of both servient and dominant owners.

'	17. And whergs it is expedient to pravide that' the transfer of	,, motsrs	Deed@ of nodat&-	by pro-
d title to land under the provisions of the "RealProperty Act, 1861,	iw	h,,&

ulsorily taken under the powers and provisions of the " Lands Clawss to h.m

affect of transfm

es Consolidation Act," or of any amendments thereof, and vested reunder by deed poll executed by the promoters of the under- ing in the said Act mentioned, shall appear upon the folium of .,aer

e register-book of the said lauds: Be it enacted-Every deed-poll eretofore executed, and every deed poll hereafter executed, by irtue of which lands under the provisions of the :'Red Property Act, 861," shall-have been or shall hereafter be vested in the promoters f the undertaking as provided by the '' Landa Clauses Consolidation

y amendment thereof, shall, for the purposes of the ;' Real

Act, 1861," have the same effect aa a transfer duly executed

gistered proprietor of the land mentioned and described in

said deed-poll; and the Registrar-General shall, upon any such

poll being lodged with,him by the promoters, rf?gister the same

the f o b of the grant or certificate of title m the register-

of the said lands in like manner as transfers are now registered,

all require the registered proprietor, or any depositee, mort-

, or encumbrancee who may hold the same, to deliver up the

t or certificate of title for the purpose of having the said deed-

entered thereon; and the Registrar-General shall, after such tration and eutries as aforesaid, issue a certificate of title to such

ornotere, and a new certificate of title for the balance of the land such original grant or certificate of title contained, and shall

cel such original grant or certificate: Provided that the expense fa* c h.

obtaining such certificate and balance certificate shall be borne by

e promoters of the undertaking.

, 18. Nothing herein contained shall be deemed to alter or lessen NottosUestanydmd U hanstotm or

the effect of any deed-poll heretofore or hereafter executed as afoi e- L	e~e~!ltad.
transfer subsequent in date to such deed-poll, any estate or interest	said, or to give to any transferee of a registered proprietor under a
in the lands mentioned in such deed-poll, or any priority over
the promoters executing such deed-poll.

1 19. This Aot may be cited for all purposes as the " Righbof- stcrttitle.

m y Act, 1881."

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, In the name and on behalf of Her Majesty, I hereby assent to

g this Bill.

C	'	~
S

c	WM. F. DRUMMOND JERVOIS, Giovemor.
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440 & 45" VICTORIE, No. 223..

Way Act.-1881.

SCHEDULE

Applicalia for entry of Right-of-may, or 0 t h s a m n m l, in Cafiflaals of Zfb.

Jbhn Smith, of 80, King William-atreet, Adelaide, grocer, &ma to be entitled to a

rightof-way [appurtenant, m in gross, a8 ihu caae may 681 over the h d s comprised in

the certificate of title. keginter Book ,vol. folio , for [asrtd, earriaga.,

horses, fool-paasengem, as the caae m y be [or over, under, or r r m. M U s m e

nay 6s the raid. land [if lhs applimtion n for any othw doddl)wnt, claims to be a

entitle d to the following (deaoiption of wnnsnt) in respect of the lands comprised

in certificate of We, Register Book , v. , folio , 1. The title deeda to the

said ri~ht-of-way [or other eaaement] LO claimed are lodged herewith, m d the said

John Smith hereby appliea to have an entry of the said right-of-way	m other ease-
ment] made upon the folium of the abo~e-mentioned
the Act on that behalf

certificate of tit e, purauant to F

Dated this day of 18 .

SCHEDULE B.

Pwa. ".

On ererg upplica.ion for certi0cate for onentry of aright-of-way, or other

e ~ e m e n t ................................................

On the lod~ing of every caveat r p i n r t entry of right-of-way, other

euement, or against bringing right-of-way,or other ewemat, under

the Act ..................................................

For every notice by the Registrar-General ........................

For every produc~ion of instruments lodged by p e r m claiming l i g h t 4

.. .. . .

way. or other eaaement.. ....................................

Adelaide: By authmity, E. BPILL~, Omsmment Rintsr, Nmth-taMs.