Real Property Act Amendment Act 1985 (Qld)

842 ANNO TRICESIMO QUARTO ELIZABETHAE SECUNDAE REGINAE No. 52 of 1985 An Act to amend the Real Property Act 1861-1981 in certain particulars [ASSENTED TO 19TH SEPTEMBER, 1985]

Real Property Act Amendment Act 1985, No. 52 843 BE IT ENACTED by the Queen's Most Excellent Majesty, by and with the advice and consent of the Legislative Assembly of Queensland in Parliament assembled, and by the authority of the same, as follows:- 1. Short title and citation . (1) This Act may be cited as the Real Property Act Amendment Act 1985. (2) In this Act the Real Property Act 1861-1981 is referred to as the Principal Act. (3) The Principal Act as amended by this Act may be cited as the Real Property Act 1861-1985. 2. Amendment of s. 3. Interpretation of certain terms. Section 3 of the Principal Act is amended by omitting the definitions "Mortgage", "Mortgagor" and "Mortgagee" and substituting- (a) for the definition "Mortgage", the following definition:- "Mortgage" shall mean any charge on land created under or in accordance with the provisions of this Act for securing- (a) the repayment of a loan or the satisfaction of an existing debt; (b) the repayment of future advances or the payment or satisfaction of any future or unascertained debt or liability, contingent or otherwise; (c) the payment to the holders for the time being of any bonds, debentures, bills of exchange, promissory notes or other securities, negotiable or otherwise, made or issued before or after the creation of that charge; (d) the payment to any person or persons by yearly or periodical payments or otherwise of any annuity, rent- charge or sum of money other than a debt"; (b) for the definition "Mortgagor" the following definition:- "Mortgagor" shall mean- (a) the proprietor (other than a mortgagee) of land charged with a mortgage; or (b) the proprietor (other than a mortgagee) of land who intends to create a charge on the land such as is referred to in the definition "mortgage" "; and (c) for the definition "Mortgagee" the following definition:- "Mortgagee" shall mean the person in whose favour a charge on land such as is referred to in the definition "mortgage" is or is intended to be created". 3. New s. 9A. The Principal Act is amended by inserting after section 9 the following section:- "9A. Prescribed forms of instruments , etc. (1) The Governor in Council may from time to time make regulations prescribing

8 44 Real Property Act Amendment Act 1985, No. 52 the forms of instruments that may be lodged in the office of or issued by the Registrar of Titles. (2) Notwithstanding any other provision of this Act, an instrument lodged in the office of or issued by the Registrar of Titles shall be in a form prescribed by regulation: Provided that, if a form of an instrument is prescribed in a form of the Schedule to this Act and a form of that instrument is also prescribed by regulation, that instrument may be in either form.". 4. Amendment of s. 11 . Powers of Registrar . Section 11 of the Principal Act is amended by- (a) omitting paragraph (1) and substituting the following paragraph:- "(1) To inspect documents . He may require- (a) any proprietor or other person making application to have land brought under the provisions of this Act; or (b) any proprietor or other person interested in land under the provisions of this Act in respect of which any transfer, lease, mortgage, encumbrance or other dealing or any release from any mortgage or encumbrance is about to be effected or in respect of which any transmission is about to be registered or registration abstract is about to be granted under this Act; or (c) the proprietor or other person recorded in the register book as interested in land under the provisions of this Act particularized in a grant or certificate of title in respect of which an application to change or correct a name of such proprietor or other person has been made, to produce to him all deeds, wills, instruments or other documents (whether of the same or a different description) in the possession or within the control of the proprietor, mortgagee or other person affecting such land or affecting or evidencing the title thereto or relevant to such application"; (b) inserting after paragraph (4) the following paragraph:- "(4A) To change or correct names. He may upon such evidence as shall appear to him sufficient record in the register book any change or correction in the name of a proprietor or other person recorded in a register book as interested in land under the provisions of this Act whether the change or correction is consequent upon the marriage of the proprietor or other person or upon any other act or circumstance: Provided always that such recording shall not erase or render illegible the original name"; (c) adding at the end of the section the following paragraphs:- "(7) To simplify descriptions of parcels . He may simplify the description of parcels of land by altering the real property description of any parcel of land contained in a grant or a

Real Property Act Amendment Act 1985, No. 52 845 certificate of title to a lot-on-plan description related to the plan by which that parcel of land was created. (8) To cancel superfluous registrations . If he and The Master of Titles is each satisfied that a registration in the register book does not affect the land to which the registration relates, he may cancel the registration in such manner as he and The Master of Titles consider to be appropriate and for that purpose he may call in any instrument and correct or cancel the instrument as the case requires. An application for the recording of a change of or correction to a name pursuant to paragraph (4A) shall be made to the Registrar of Titles in the appropriate form D of the Schedule and shall be accompanied by the relevant grant or certificate of title.". 5. Amendment of s. 35. Upon entry of particulars instruments deemed to be part of register book. Schedule. Section 35 of the Principal Act is amended by omitting the words "for the same purpose may be authorised as herein provided" and substituting the words "may be authorized or prescribed by this Act and every plan". 6. New s. 76A. The Principal Act is amended by inserting after section 76 the following section:- "76A. Incorporation of provisions contained in memorandum. (1) In this section, "memorandum" means a memorandum recorded by the Registrar of Titles setting forth provisions which are capable of being covenants and conditions in an instrument of a class which is specified in the memorandum. (2) The Registrar of Titles- (a) shall number and record any memorandum in the prescribed form which has been delivered to him; and (b) may distinctively number and record a memorandum in the prescribed form on his own behalf. (3) A memorandum recorded under subsection (2) shall be retained by the Registrar of Titles and shall, for the purposes only of section 121, be deemed to be part of the register book. (4) Where an instrument is of a class specified in a memorandum recorded by the Registrar of Titles and contains a provision which incorporates (with or without amendment) any or all of the provisions set out in that memorandum, those provisions or, as the case may be, those provisions as amended, shall be deemed to be set out at length in the instrument. (5) Nothing in. subsection (4) shall be construed as limiting the effect, if any, of a provision in an instrument which incorporates in the instrument covenants or conditions or other provisions otherwise than as referred to in that subsection. (6) The Governor in Council may from time to time make regulations prescribing the form of any memorandum.".

846 Real Property Act Amendment Act 1985, No. 52 7. Amendment of s. 112. Registrations. Section 112 of the Principal Act is amended by- (a) omitting subsection (IA) and substituting the following subsection:- -(IA) Notwithstanding subsection (1), the Registrar of Titles may, in his discretion, correct a patent error in any instrument or document lodged in his office for registration- (a) in the case where the instrument or document is a plan of survey by striking through the error in a manner such that he does not erase or render illegible the original words or expressions, supplying the correct information in red ink immediately adjacent to the error and affixing the date on which the correction was made together with his initials; (b) in any other case, by notation in the margin of the instrument or document, and thereupon the instrument or document, as corrected by the Registrar of Titles, shall have the same validity and effect as if the error so corrected had not been made."; (b) in subsection (2), omitting the words "Such a requisition" and substituting the words "A requisition referred to in subsection (1)". 8. New s. 119A. the Principal Act is amended by inserting after section 119 the following section:- "119A. Effect of plan showing easement . (1) An easement does not arise from the registration, lodgment or deposit, whether before or after the commencement of this section, of any plan. (2) A plan may be registered designating the site of an easement intended to be created by an instrument to be registered thereafter, but- (a) in any such plan the designation of that site shall incorporate the word "proposed"; (b) any written reference to the intended easement in any memorial in the Register Book or in any deed of grant or certificate of title in respect of the land recording particulars of registration of the plan shall be preceded by the word "proposed". (3) A designation or reference in accordance with subsection (2) shall not be regarded as indicating a present intention to create an easement. (4) Save as provided in subsection (5), the provisions of subsection (1) apply in respect of all plans whether lodged or registered before or after the commencement of the Real Property Act Amendment Act 1985. (5) The provisions of subsection (1) do not affect any easement whereof the judgment of a court of competent jurisdiction has, before the commencement of the Real Property

Real Property Act Amendment Act 1985, No. 52 847 Act Amendment Act 1985, been pronounced, declaring or giving effect to the existence of an easement designated upon a registered plan and the rights and obligations of any registered proprietor of land under an easement so pronounced, declared or given effect to shall be the rights and obligations of the registered proprietor for the time being of that land save where those rights and obligations are lawfully extinguished by agreement between all persons holding an interest in the easement.". 9. Amendment of Schedule . Forms. The Schedule to the Principal Act is amended by inserting as Form D the following forms:- REQUEST TO CHANGE NAME (By a Corporation) [s. 11] I, do solemnly and sincerely declare- of 1. I am the (Director/Secretary) of (insert name of Corporation) the registered proprietor of the land situated in the County of , Parish of being the land described as and being the whole of the land. contained in DCeeertdif/sicoafteg/ sraonfttitle Volume Folio 2. The said (insert name of Corporation) did on ......(date)....... change its name to (insert new name of Corporation) which name has been officially recorded with the Commissioner for Corporate Affairs at 3. I hereby apply and request that the name (insert name of Corporation ) be changed to (insert new name of Corporation) on the instrument /s of title referred to above. AND I Make this solemn declaration conscientiously believing the same to be true and by virtue of the Oaths Act1867-1981. SIGNED by the abovenamed declarant this day of 19 before me: Declarant NOTE.-This form attracts adhesive Stamp Duty before lodgment in the Titles Office.

848 Rea l Property Act Amendment Act 1985, No. 52 REQUEST TO CHANGE/CORRECT NAME (By a Natural Person) [s. 1 1 ] I, do solemnly and sincerely declare: of (address) 1. I am the registered proprietor of the land situated in the County of Parish of described as and being the whole of the land contained in DCeeertdi/ fsicoafteg/sraonfttitle Volume Folio in the name of *2. On the I day of intermarried with at 19 *2a. My true and correct name is 3. I hereby apply and request that my name of as described in paragraph one above be** ccohrraencgteedd on the instrument/s of title to AND I Make this solemn declaration conscientiously believing the same to be true and by virtue of the Oaths act1867®1981. SIGNED by the abovenamed declarant this day of 19 before me: Declarant * Delete whichever is inapplicable or insert a statement regarding the change or correction of name. ** Delete whichever is inappropriate. NOTE.- This Form attracts adhesive Stamp Duty before lodgment in the Titles Office.