Real Property Act (NT)
NORTHERN TERRITORY OF AUSTRALIA
REAL PROPERTY ACT
As in force at 1 March 2000
TABLE OF PROVISIONS
Section
1. Short title
2. [Repealed]
PART I - INTRODUCTORY
3. Interpretation
4. – 7. [Repealed]8. Land not to be withdrawn
9. Commencement
PART II – OBJECTS OF THIS ACT
10. Objects
11. Construction
PART III – THE LAND TITLES REGISTRATION OFFICE
12. – 20. [Repealed]
21. Seal of office, &c., to be received in evidence
22. Fees
23. [Repealed]
24. Registrar-General not to be liable for Acts done bona fide
PART IV – THE BRINGING OF LAND UNDER THE ACT
25. [Repealed] (See back note 3)
26. Land on alienation from Crown to be under Act
27. – 46. [Repealed] (See back note 3)
PART V – THE REGISTER
47. Register
48. Entries in Register
48A. Registration of statutory charges49. Certificate as to title
50. Time of registration
51. Record of non-current or historical dealings
52. Evidence
53. Submission of documents to facilitate registration
54. Instruments to be according to Act
55. [Repealed]
56. Instruments entitled to priority according to time of registration
56A. Variation of priority between mortgages and encumbrances
56B. Priority and effect of statutory charges57. Instruments registered, deemed part of Register
58. Where 2 or more instruments presented at same time
58A. Provision for single recording of more than one instrument59.Provision for registration in case of death of party executing instrument
59A. Lodgement of documents
60.Person to whom certificate as to title or instrument issued in error
61. Person refusing to deliver up instrument
62. Court may order delivery of instrument
63. Court may order instrument to be cancelled
64. Powers of court to direct cancellation of certificate or entry
65. Searches of Register
66. Conflict between certificate as to title and Register
PART VI – THE TITLE OF REGISTERED PROPRIETORS
67. Instruments not effectual until registration
68. Registered proprietor
69. Title of registered proprietors indefeasible
70. Title of registered proprietor to prevail
71. Saving of certain rights and powers
71A. Effect of registration of instruments under other laws
71B. Protection against notice before registration72. Knowledge of trust not evidence of want of bona fide
PART VII – CERTIFICATES AS TO TITLE
73. Certificate as to title
74. Persons registered as joint proprietors to be joint tenants
75. – 80. [Repealed]
PART VIII – EASEMENTS
81. Certificate may contain statement of right-of-way or easement
82. Nature of statement
83.Registered proprietor not subject to ways not mentioned in certificate
84. Right-of-way to be entered
85. Land to be held free of rights-of-way
86. Public rights-of-way, &c., not in Act
87. Certificates issued conclusive evidence
88. Rights-of-way to be entered upon certificates as to title
89. Form of describing right-of-way
90. Proprietor may deposit plan showing rights-of-way
PART VIIIA – MODIFICATION AND EXTINGUISHMENT OF EASEMENTS AND RESTRICTIVE COVENANTS
90A. Definition
90B.Modification or extinguishment of easements and restrictive covenants
90C. Notice of application
90D. Effect of order
90E. Powers of Court
PART IX – CROWN GRANTS
91. Definitions
92. Person holding may surrender
93.Issue of certificate as to title in relation to estate in fee simple, &c., under other Acts
94. Registrar-General to enter forfeiture
95. Effect of this Act
PART X – TRANSFERS
96. Transfers
97. Transferee to indemnify transferor
98. – 100. [Repealed]101. Subdivisions of land
102. Memorial of order for sale of land
103. Registration of transfer under order
104. [Repealed]
105. Sale under writ of fi. fa., decree or order of Court
106. Transfer not valid against purchaser until entry of writ
107. Transfer on sale under writ, warrant, decree or order
108. Production of duplicate instrument not required
109. Satisfaction of warrant, decree, or order
110. Lapse of writ, decree, warrant, or order
111. Proprietor may vest estate jointly
112. [Repealed]
113. Registration after statutory vesting or grant
114. – 115. [Repealed]
PART XI - LEASES AND SURRENDERS
116. Land, how leased
117. Contents of lease
118.Leases not to bind non-consenting mortgagees or encumbrancees
119. Lease for one year need not be registered
120. Surrender of lease
121. Registrar-General may enter surrender
122. Effect of entry of surrender
123. Surrender where lease subject to mortgage or under-lease
124. Covenants to be implied in every lease against the lessee
125. Powers to be implied in lessor
126. Registrar-General to note particulars of re-entry in Register
127.Covenants and powers not applicable to residential tenancies
PART XII – MORTGAGES, ENCUMBRANCES AND DISCHARGES
128. Lands, how mortgaged or encumbered
129. [Repealed]
130. Covenant to be implied in every mortgage
131.Subsequent mortgagees or encumbrancees may redeem prior mortgages, &c.
132. Mortgage or encumbrance not to operate as transfer
133. Power of sale
134. Mortgagee's receipt to discharge purchaser
135. Appropriation of proceeds
136. Transfer upon sale by mortgagee or encumbrancee
137. Case of default
138. [Repealed]
139.Mortgagee or encumbrancee of leasehold coming into possession of rent and profits
140.Mortgagee may apply to Registrar-General for order for foreclosure
141. Registrar-General to offer land for sale
142. Effect of order for foreclosure
142A. Statutory charges
142B. Application of other provisions143. Discharge of mortgages and encumbrances, &c.
144. [Repealed]
145. Entry of satisfaction of annuity
146. Payment of mortgage moneys to Public Trustee
147. Discharge of mortgage by Public Trustee
148. [Repealed]
149. Equitable mortgage may be created
150. Transfer of mortgage, lease, or encumbrance
151. Effect of transfer
151A. Alterations of title affecting mortgages, leases and encumbrances
152. Covenants implied in transfer of lease
PART XIII – VARIATIONS
153. Variations of mortgages, encumbrances and leases
154. [Repealed]
155.-160. [PART XIV] [Repealed]
PART XV - TRUSTS AND TRANSMISSIONS
161. Trusts contained in grant to be inserted in certificate as to title
162. No particulars of trust to be entered in register
163. Insertion of "no survivorship" in instruments
164. Trustees may authorize insertion
165. Effect of such insertion
166. Court may direct notice to be published before order is made
167. Court may protect persons interested
168. Survivors may perform duties or transfer to new trustees
169. Persons may disclaim by deed or otherwise
170. Transmission by insolvency or statutory assignment
171. Transmission to be entered in Register book
172. Proceedings in case assignment declared void
173. Bankruptcy or assignment of lessee
174.Entry of surrender or foreclosure not to prejudice cause of action
175. [Repealed]
176. Application to be made on transmission on death
177. Registrar-General shall record details of transmission
178. Effect of such entry
179. Where 2 or more executors or administrators, all to concur
180.Persons registered in place of deceased, bankrupt or assigning proprietor
181. – 183. [Repealed]
184. Order of court vesting land
185. Action may be brought by beneficiary in name of trustee
185A. Vesting orders under Encroachment of Buildings Act186. Purchaser not to be affected by notice of trusts
187. In case of fraud
188.Survivor of joint proprietors, and of remainder man entitled to estate in possession
189. [Repealed]
PART XVI – CAVEATS
191. Caveats
PART XVIA – MEMORIALS INDICATING RESTRICTIONS ON USE
191A. Caution notices
191B. Notices of statutory restrictions
191C. Removal of memorials
191D. No liability on minister, &c.
PART XVIB – RECORD OF ADMINISTRATIVE INTERESTS AND INFORMATION
191E. Record of administrative interests and information
PART XVII – EJECTMENT
192. – 200. [Repealed]
01. – 219. [PART XVIII] [Repealed]
PART XIX – SPECIAL POWERS AND DUTIES OF
REGISTRAR-GENERAL
220. Miscellaneous special powers
220A. Powers where certificate or instrument lost, damaged, &c.221. Registrar-General to show cause
222. Hearing of summons
223. Registrar-General to state case for Court
PART XX – PROCEDURE AND PENALTIES
224. – 224. [Repealed]
226. Form of summons by Registrar-General
227. Refusal or neglect of person summoned
228. Declarations
229. – 231. [Repealed]232. Penalty for certifying incorrect instruments
233. Certain fraudulent acts to be misdemeanors
234. Certificate as to title, &c., procured by fraud to be void
235. – 240. [Repealed]
PART XXI – MISCELLANEOUS
241. Plans and maps
242. – 245. [Repealed]246. Unregistered instruments to confer claim to registration
247. Informal documents may be registered
248. Protection of rights under previously registered instruments
249. Equities not abolished
250. Lis pendens not to be registered
251. No title by adverse possession
252. – 259. [Repealed]260. Valuable consideration may be proved by prior instruments
261. General covenants to be implied in instruments
262. Implied powers and covenants may be modified or negatived
263. Action for breach of implied covenant
264. Implied covenants to be joint and several
265. Short forms of covenant in mortgages and leases
265A. Recording and use of common form provisions266. Short form for expressing exception of mines and minerals
267. Attestation of instruments executed by individuals
268. [Repealed]
269. Registrar-General may dispense with proof
270. Execution of instrument by Corporation
271. and 272. [Repealed]273. Authority to Register
274. Registrar-General may provide particulars of dealings in land
275. Prescribed forms
275A. Delivery of instruments in custody of Registrar-General
275B. Disposal of obsolete documents276. Service of notices
277. Regulations
THE FIRST SCHEDULE – THE FOURTH SCHEDULE
[Repealed]
THE FIFTH SCHEDULE
THE SIXTH SCHEDULE –THE SIXTEENTH SCHEDULE
[Repealed]
THE SEVENTEENTH SCHEDULE
THE EIGHTEENTH SCHEDULE – THE TWENTY-FIRST SCHEDULE [Repealed]
THE TWENTY-SECOND SCHEDULENotes
Table of Amendments
NORTHERN TERRITORY OF AUSTRALIA
____________________
This reprint shows the Act as in force at 1 March 2000. Any amendments that may come into operation after that date are not included.
____________________
REAL PROPERTY ACT
An Act to consolidate and amend the "Real Property Act,
1861," the "Real Property Act Amendment Act, 1878,"
and the "Rights-of-Way Act, 1881," and
for other purposes
1.Short title
This Act may be cited for all purposes as the "Real Property Act". (See back note 1)
[Repealed]
PART I – INTRODUCTORY
Interpretation
In the construction and for the purposes of this Act, and in all instruments made or purporting to be made thereunder, the following terms shall, so far as not inconsistent with the context or subject, and except when such context or subject or the other provisions hereof require a different construction, have the respective meanings hereinafter assigned to them, that is to say –
"Caveatee" shall mean the registered proprietor of any land in respect of which a caveat has been lodged;
"Caveator" shall mean any person lodging a caveat;
"Certificate as to title" means a certificate as to title referred to in section 49;
"Computer" means a device for storing or processing information;
"Computer print-out" means a document that –
(a) is –
(i) a record of;
(ii) an extract from; or
(iii) derived from,
information stored in, or processed by, a computer; or
(b)is produced by a computer, or a series or combination of computers, directly or (with or without human intervention) with the aid of other equipment;
"Court" shall mean the Supreme Court;
"Dealing" shall mean any instrument or matter, whereby any land or the title to any land can be affected, or dealt with;
"Document" means paper or other material containing writing, words, figures, drawings or symbols;
"Dominant land" shall mean any land having a right-of-way or other easement appurtenant thereto or annexed to the ownership thereof;
"Encumbrancee" shall mean the registered proprietor of an encumbrance;
"Encumbrancer" shall mean the registered proprietor of land subject to an encumbrance;
"Folio of the Register" means a folio of the Register referred to in section 47;
"Instrument" means a document capable of registration under this Act or in respect of which an entry is by or under this Act directed, required or permitted to be made in the Register, and includes an entry which is by this or any other Act required or permitted to be made in the Register;
"Land" shall extend to and include all tenements and hereditaments corporeal and incorporeal of every kind and description, and every estate and interest in land;
"Lessee" shall mean the registered proprietor of a lease;
"Lessor" shall mean the registered proprietor of land subject to a Lease;
"Lodge", in relation to a document, includes, in addition to the physical lodgement of the document, such other methods of lodgement permitted by the Registrar-General under section 59A;
"Mortgagee" shall mean the registered proprietor of a mortgage;
"Mortgagor" shall mean the registered proprietor of land subject to a mortgage;
"overriding statutory charge", in relation to land, means a statutory charge that is expressed in the Act by or under which it is established to be an overriding charge within the meaning of this Act or to have priority over all other charges on the land;
"prescribed" in relation to fees, means prescribed under the Registration Act;
"Record of administrative interests and information" means the record of administrative interests and information referred to in section 191E;
"Record of dealings" means the record of dealings referred to in section 51;
"Register" means the Register referred to in section 47;
"Registered proprietor" shall mean any person appearing by the Register to be the proprietor of any land;
"Registrar-General" means the Registrar-General for the Northern Territory and includes a Deputy Registrar-General appointed under the Registration Act;
"Servient land" shall mean land subject to any easement;
"Statutory assignment" shall mean any deed assigning a debtor's estate for the benefit of his creditors, executed under or in pursuance of the Bankruptcy Act 1966 of the Commonwealth, the Corporations Law, or any other Act;
"statutory charge" means a charge on land (other than a mortgage or encumbrance) established by or under a law in force in the Territory that is expressed in the Act by or under which it is established to be a statutory charge within the meaning of this Act or which, after it is registered –
(a)imposes a restriction on the use of or dealing with the land; or
(b)gives a right to a person to deal with the land, including the right of sale,
and, for the purposes of sections 48A, 53, 142A, 142B, 143 and 277 includes an overriding statutory charge;
"Transmission" shall mean the passing of title to land in any manner other than by transfer;
The description of any person as proprietor, transferor, transferee, mortgagor, mortgagee, caveator, caveatee, encumbrancer, encumbrancee, lessor, lessee, or trustee, or as seized of, having, or taking any estate or interest in land shall be deemed to extend to and include the heirs, executors, administrators, and assigns of such person.
4. – 7.[Repealed]
Land not to be withdrawn
No land once subject to the provisions of this Act shall ever be withdrawn therefrom.
Commencement
This Act shall come into operation on 1 January, 1887.
PART II – OBJECTS OF THIS ACT
Objects
The objects of the Act are –
(a)to simplify the title to land;
(b)to facilitate dealings with land;
(c)to secure indefeasibility of title to registered proprietors except in certain cases specified in this Act;
(d)to facilitate access to information about administrative interests and other information in respect of land; and
(e)to facilitate the collection and disposal of information in relation to land or to the buying or selling of land.
Construction
This Act shall always be construed in such manner as shall best give effect to the objects hereinbefore declared.
PART III – THE LAND TITLES REGISTRATION OFFICE
12. – 20.[Repealed]
Seal of office, &c., to be received in evidence
(1) The Registrar-General shall have and use a seal of office bearing the impression approved by the Minister; and every instrument bearing the imprint of such seal, and purporting to be signed or issued by the Registrar-General, or by one of his deputies or by the Acting Registrar-General, shall be received in evidence, and shall be deemed to be signed or issued by or under the direction of the Registrar-General, or Acting Registrar-General, without further proof, unless the contrary be shown.
(2) A reference in subsection (1) to the seal of office or to the signature of the Registrar-General or of one of his deputies or the Acting Registrar-General includes a reference to a production by electronic means of the seal or of the signature, as the case may be.
Fees
(1) The Registrar-General may demand and receive such fees as are prescribed.
(2) The Registrar-General may provide credit facilities for the payment of fees referred to in subsection (1) at such intervals as he thinks fit.
[Repealed]
Registrar-General not to be liable for Acts done bona fide
The Registrar-General shall not individually, nor shall any person acting under his authority, be liable to any action, suit, or proceeding for or in respect of any act or matter bona fide, done or omitted to be done, in the exercise or supposed exercise of the powers of this Act.
PART IV – THE BRINGING OF LAND UNDER THE ACT
[Repealed] (See back note 3)
Land on alienation from Crown to be under Act
As to land hereafter alienated in fee from the Crown, the same shall, immediately on alienation, be subject to the provisions of this Act.
27. – 46.[Repealed] (See back note 3)
PART V – THE REGISTER
Register
(1) The Registrar-General shall keep a Register relating to land.
(2) Subject to this section and the Regulations, the Registrar-General may –
(a) keep the Register –
(i) in such form or combination of forms;
(ii) on such medium or combination of mediums; and
(iii) in such manner,
as he thinks fit; and
(b)at any time, vary the form, medium or manner in which the Register or part of the Register is kept.
(3) A reference to a medium in subsection (2) or (6)(d) includes, but is not limited to –
(a) a computer;
(b) micro film; or
(c) paper.
(4) The Register consists of folios of the Register and registered documents.
(5) The Minister may, by notice in the Gazette, determine a day on and after which a folio of the Register shall be a division of the Register comprising particulars relating to –
(a)one parcel of land; or
(b)one unit of land that is subject to title issued in accordance with the Unit Titles Act,
being one parcel or unit of land for which approval under the Planning Act for the transfer of the parcel or unit of land separate from other land is not required.
(6) A folio of the Register –
(a)shall contain the entries that are required or authorized to be made in the Register by or under this Act or any other law in force in the Territory and that affect the land for which the folio is created;
(b)shall include a distinctive identifying reference for the folio;
(c)may contain records of such other information as the Registrar-General thinks appropriate to record; and
(d)shall describe the parcel of land by reference to a diagram of the land held in a medium.
(7) The Registrar-General creates a folio of the Register by making an entry –
(a)describing the land for which it is created;
(b)identifying the proprietor for the time being of the land for which it is created;
(c)specifying the time and date of registration of an entry; and
(d)recording such other particulars as the Registrar-General thinks fit of –
(i)other estates or interests, if any, affecting the land;
(ii)other information, if any, that relates to the land and is required to be entered on the folio by or under this Act or any other law in force in the Territory; and
(iii)a reservation or restrictive covenant in favour of the Crown or of the Territory, that was noted in the original grant in relation to the land,
and by allocating a distinctive identifying reference to those entries.
(8) On –
(a)the grant of an estate in fee simple or a lease of Crown land;
(b)the approval of a plan of subdivision in accordance with a law for the time being in force relating to the subdivision of land; or
(c)being required by or under any other law in force in the Territory to do so,
the Registrar-General shall create a folio or folios of the Register for the land.
(9) Subject to subsection (8), the Registrar-General may create or amend a folio of the Register where the Registrar-General thinks it appropriate to do so.
(10) The Registrar-General may, when creating a folio of the Register, determine the information to be entered on the folio of the Register by reference to any other records or documents kept by, or available to, the Registrar-General or in any other manner the Registrar-General thinks fit.
(11) If the Registrar-General creates or amends a folio of the Register, the Registrar-General may –
(a)make such other amendments in the Register that he considers necessary because of the creation or amendment of the folio; and
(b)call in and cancel a certificate as to title produced for the folio so created or amended.
Entries in Register
(1) An instrument capable of registration under this Act is registered by making or altering entries in the Register to the extent necessary to give effect to the instrument and to this Act.
(2) The Registrar-General shall note the time of making or altering an entry in the Register.
(3) Other information required or authorized by or under this Act or any other law in force in the Territory to be recorded in the Register is recorded in the Register by –
(a)recording that information in an appropriate part of the Register; or
(b)altering an existing record so as to comprise or include that information.
(4) Subject to the Regulations, the Registrar-General may –
(a) make entries in the Register –
(i) in such form or combination of forms; or
(ii) in such manner,
as he thinks fit; and
(b) at any time, vary the manner and form in which entries are made.
(5) The Registrar-General shall, where necessary, make deletions from, or alterations in, records in the Register so that each folio of the Register contains only records of information concerning subsisting estates or interests in the land to which the folio relates.
(6) The Registrar-General may make an entry in the Register as a substitute for an existing entry if satisfied that the existing record has been lost or destroyed or has become illegible or unavailable.
(7) The Registrar-General may, under subsection (6), determine the information to be recorded by reference to other records or documents kept by or available to the Registrar-General or in such other manner as he thinks fit.
(8) If the Registrar-General makes an entry in the Register, the Registrar-General may make such amendments in the Register as he considers necessary because of the making of the entry.
48A.Registration of statutory charges
(1) A person for whose benefit a statutory charge is established by or under a law in force in the Territory may, in accordance with the prescribed form and on payment of the prescribed fee, apply to the Registrar-General to have the charge registered.
(2) On receiving an application under subsection (1), the Registrar-General shall register the statutory charge in the prescribed manner.
(3) The Registrar-General shall give notice of the registration of a statutory charge to all persons who have a registered interest in the land the subject of the charge.
Certificate as to title
(1) A certificate as to title is a document containing the information, or an extract of the information, on a folio of the Register as at the date of production of the certificate as to title.
(2) A certificate as to title shall –
(a)indicate that it is registered by authority of the Registrar-General, whether by being initialled, signed or sealed by the Registrar-General, or by bearing a facsimile of those initials or the signature or seal, or in such other manner as the Registrar-General thinks fit;
(b)set out all reservations or restrictive covenants, if any, in favour of the Crown;
(c)state –
(i)the distinctive identifying reference of the folio of the Register to which it relates;
(ii)the distinctive identifying reference allocated for the certificate as to title; and
(iii)the date on which it was registered; and
(d) contain, subject to -
(i) a direction from the Minister; or
(ii) another Act,
a diagram describing the parcel of land to which the folio relates.
(3) Subject to the Regulations, a certificate as to title may –
(a)include information that the Registrar-General considers appropriate, whether in diagrammatic form or otherwise;
(b)include information contained in the folio of the Register to which it relates in a form that the Registrar-General considers appropriate, whether or not in the form in which the information is recorded on the folio; and
(c)be in such form and produced in such manner as the Registrar-General considers appropriate.
(4) Without limiting subsection (3), a certificate as to title may be produced –
(a) on paper by manual or mechanical means;
(b) as a computer print-out; or
(c) as a reproduction of a document.
(5) The Registrar-General shall deliver the relevant certificate as to title produced under this section to the person entitled to it.
(6) Subject to subsections (7) and (8), on –
(a)the creation of a folio of the Register;
(b)the registration under this Act of an instrument, other than an instrument not required to be recorded on the certificate as to title; or
(c)being required by or under this Act or any other law in force in the Territory to do so,
the Registrar-General shall produce a new certificate as to title for the folio.
(7) The Registrar-General is not required to produce a new certificate as to title where the folio of the Register, including the diagram for the parcel of land, is not held in the computer medium.
(8) The Registrar-General may record the details of a dealing on a duplicate of an instrument that has been registered or may issue a certificate as to the registration of the dealing.
(9) If the Registrar-General considers it necessary or convenient to do so, the Registrar-General may at any time produce a certificate as to title for a folio of the Register.
(10) For the purpose of producing a new certificate as to title for a folio of the Register, the Registrar-General may call in and cancel a subsisting certificate as to title for the folio.
(11) A person is not required to submit a certificate as to title to the Registrar-General under subsection (10) if the person satisfies the Registrar-General that the certificate has been destroyed or lost.
(12) On –
(a)the production of a new certificate as to title for a folio of the Register; or
(b)the deletion of a folio from the Register,
a certificate as to title subsisting for the folio ceases to have effect and, on its being submitted to the Registrar-General, the Registrar-General shall cancel it.
(13) The Registrar-General may, in the same document, include a certificate as to title and such other information as the Registrar-General considers appropriate, but the other information is not part of the certificate as to title.
Time of registration
The time of –
(a) creation of a folio in the Register; or
(b) registration of an instrument,
is the time when the Registrar-General makes the entry of the creation or the registration in the Register.
Record of non-current or historical dealings
(1) The Registrar-General shall keep a record of all dealings, including non-current or historical dealings, recorded in, or action taken in respect of, a folio of the Register, and such other non-current or historical information in relation to folios of the Register, as the Registrar-General thinks fit.
(2) The record of dealings referred to in subsection (1) is not part of the Register.
(3) The Registrar-General may provide access to the record of dealings referred to in subsection (1) on payment of the prescribed fee, if any, by the person requesting access.
Evidence
(1) In any proceedings, a document certified in writing by the Registrar-General to be a record, as at a particular date, of any information recorded on a folio of the Register or any other record, is conclusive proof without production of the folio of the Register that, at the date, the records to which the document applies were as stated in the document.
(2) A document referred to in subsection (1) may relate to entries on a folio of the Register or to entries of non-current or historical dealings.
(3) Where a document referred to in subsection (1) relates to records other than the entries on a folio of the Register, the records may be based on information derived from other records or documents kept by or available to the Registrar-General.
(4) The Registrar-General shall not be obliged to provide other evidence of title to land otherwise than as referred to in subsection (1).
(5) This section does not affect or limit –
(a) Part IV of the Evidence Act; or
(b) any other mode of proof of facts and documents permitted by law.
Submission of documents to facilitate registration
(1) Subject to subsection (2), the Registrar-General shall not register an instrument under this Act unless there is submitted to the Registrar-General –
(a)in the case of a dealing for which the consent of the person in possession of the certificate as to title is required - the relevant certificate as to title for the land concerned; and
(b)such other document affecting the land concerned as the Registrar-General requires to be submitted.
(2) The Registrar-General may, under section 48A, register a statutory charge without the certificate as to title for the land concerned being produced.
Instruments to be according to Act
The Registrar-General shall not, except as herein otherwise provided, register any instrument purporting to transfer or otherwise deal with or affect any estate or interest in land under the provisions of this Act except in the manner herein provided, nor unless such instrument be in accordance with this Act or the Regulations.
[Repealed]
Instruments entitled to priority according to time of registration
(1) Subject to subsection (2), every instrument presented for registration shall be attested by a witness, and shall be registered in the order of time in which the same is produced for that purpose; and instruments registered in respect of or affecting the same estate or interest shall, notwithstanding any express, implied, or constructive notice, but subject to section 56A, be entitled to priority, the one over the other according to the date of registration, and not according to the date of the instrument itself; and the Registrar-General, upon registration thereof, shall record the registration of the instrument and, subject to the Regulations, deal with such instruments or copies of such instruments in such manner as the Registrar-General thinks fit.
(2) If 2 or more instruments which affect the same land are awaiting registration, the Registrar-General may register those instruments in the order which will give effect to the intentions of all the parties, as expressed in, or apparent to the Registrar-General from, those instruments.
56A.Variation of priority between mortgages and encumbrances
(1) Subject to subsection (2), the Registrar-General may register a memorandum in the prescribed form executed by the holders of 2 or more registered mortgages and purporting to vary the priority of those mortgages as between themselves.
(2) Where there is a registered mortgage intervening between any 2 mortgages whose priority a memorandum under subsection (1) purports to vary, the Registrar-General shall not register the memorandum unless the proprietor of the intervening mortgage is also a party to it.
(3) On the registration of a memorandum under subsection (1), the mortgages held by the parties to the memorandum shall be entitled to priority as between each other as if they had been registered in the order in which they are expressed by the memorandum to have priority.
(4) The Registrar-General shall record the registration of a memorandum under subsection (1) on the certificate of title affected by the mortgages in question.
(5) Nothing in this section affects the validity of any other contractual arrangement between mortgagees relating to priorities between themselves.
(6) In this section, references to a mortgage include an encumbrance or other security for the payment of money.
56B.Priority and effect of statutory charges
(1) An overriding statutory charge prevails over all other interests in the land to which it relates, except a pre-existing overriding statutory charge recorded in the register.
(2) Unless a statutory charge, not being an overriding statutory charge, has been registered –
(a)a restriction imposed by the statutory charge on the use of or dealing with the land does not exist; or
(b)a power arising under the statutory charge in relation to the land is not exercisable.
Instruments registered, deemed part of Register
Every instrument shall, when registered, be deemed part of the Register, and shall have the effect of and be deemed and taken to be a deed duly executed by the parties who have signed the same.
Where 2 or more instruments presented at same time
Should 2 or more instruments executed by the same proprietor, and purporting to affect the same estate or interest, be at the same time presented to the Registrar-General for registration, he shall register that instrument which shall be presented by the person producing to him the certificate as to title or other instrument evidencing title to such estate or interest.
58A.Provision for single recording of more than one instrument
Where 2 or more instruments affecting the same land are lodged and are awaiting registration, the Registrar-General may, despite anything to the contrary in this Act, register the instruments by making one or more recordings in one or more parts of the Register as the Registrar-General considers appropriate instead of recording each instrument separately in the Register.
Provision for registration in case of death of party executing instrument
In case any person, who either before or after his death shall be registered as proprietor of any land, shall die after signing any instrument affecting such land, and before registration thereof, the registration of such instrument may nevertheless be proceeded with in accordance with this Act, and shall be valid notwithstanding such death.
59A.Lodgement of documents
(1) For the purposes of the lodgement of documents under this Act or for the purposes of any other law in force in the Territory, the Registrar-General may, in his discretion, allow the lodgement of documents by such means, including electronic means, as he thinks fit.
(2) In subsection (1) "lodgement of a document" includes depositing of a document pursuant to section 101.
Person to whom certificate as to title or instrument issued in error
In case it shall appear to the satisfaction of the Registrar-General that any certificate as to title or other instrument has been issued in error, or contains any misdescription of land or of boundaries, or that any entry or indorsement has been made in error on any certificate as to title or other instrument, or that any certificate as to title, instrument, entry, or indorsement has been fraudulently or wrongfully obtained, or that any certificate as to title or instrument is fraudulently or wrongfully retained, he may summon the person to whom such certificate as to title or instrument has been so issued, or by whom it has been so obtained or is retained, to deliver up the same for the purpose of being cancelled or corrected, as the case may require.
Person refusing to deliver up instrument
In case such person shall refuse or neglect to comply with such summons, the Registrar-General may apply to the Court to issue a summons for such person to appear before the Court and show cause why such certificate as to title or other instrument should not be delivered up to be cancelled or corrected; and if such person, when served with such summons, shall neglect or refuse to attend before such Court at the time therein appointed, it shall be lawful for such Court to issue a warrant of arrest.
Court may order delivery of instrument
Upon the appearance before the Court of any person summoned or brought up by virtue of a warrant as aforesaid, it shall be lawful for the Court to examine such person upon oath, and to order him to deliver up such certificate as to title or other instrument, and, upon refusal or neglect by such person to deliver up the same pursuant to such order, to commit him to gaol for any period not exceeding 6 months, unless such certificate as to title or instrument shall be sooner delivered up.
Court may order instrument to be cancelled
In such case, or in case a summons by the Registrar-General or a Judge cannot be served upon such person as hereinbefore directed, the Court may direct the Registrar-General to cancel or correct any certificate as to title or other instrument, or any record in the Register relating to such land, and to substitute and issue such certificate as to title or other instrument, or make such entry as the circumstances of the case may require, and the Registrar-General shall give effect to such order.
Powers of court to direct cancellation of certificate or entry
In any proceeding in a court respecting any land, or any transaction, contract, or application relating thereto, or any instrument, caveat, memorial, or other entry affecting any such land, the court in question may direct the Registrar-General to take such action as may be necessary to give effect to any judgment, decree, or order given or made in such proceeding, and the Registrar-General shall obey every such direction.
Searches of Register
(1) The Registrar-General shall, on receipt of the prescribed fee, if any, or in such other circumstances that may include the provision of credit facilities for payment at specified intervals as the Registrar-General thinks fit, provide adequate access to the Register and documents, or copies of them, registered for the purposes of this Act.
(2) The access referred to in subsection (1) may, in the Registrar-General's discretion, be provided by way of certificate, statement, visual display unit, computer print-out, microfiche reader or any other means.
Conflict between certificate as to title and Register
Whenever there shall be any conflict, difference, or variation between the contents of the Register and any certificate as to title the Register shall prevail.
PART VI – THE TITLE OF REGISTERED PROPRIETORS
Instruments not effectual until registration
No instrument shall be effectual to pass any land or to render any land liable as security for the payment of money, but upon the registration of any instrument in manner herein prescribed, the estate or interest specified in such instrument shall pass, or, as the case may be, the land shall become liable as security in manner and subject to the covenants, conditions, and contingencies set forth and specified in such instrument or by this Act declared to be implied in instruments of a like nature.
Registered proprietor
The person named in the Register as the owner or taking any estate or interest in land shall be the registered proprietor thereof.
Title of registered proprietors indefeasible
The title of every registered proprietor of land shall, subject to such encumbrances, liens, estates, or interests as may be recorded in the Register or which were notified on the original grant of title from the Crown for such land, be absolute and indefeasible, subject only to the following qualifications:
I.In the case of fraud, in which case any person defrauded shall have all rights and remedies that he would have had if the land were not under the provisions of this Act: Provided that nothing included in this subsection shall affect the title of a registered proprietor who has taken bona fide for valuable consideration, or of any person bona fide claiming through or under him:
II.In the case of a recording in the Register made as the result of fraud or forgery, or a certificate as to title or other instrument of title obtained by forgery or by means of an insufficient power of attorney or from a person under some legal disability, in which case the recording in the Register or the certificate as to title, or other instrument of title shall be void: Provided that the title of a registered proprietor who has taken bona fide for valuable consideration shall not be affected by reason that a certificate as to title or other instrument of title was obtained by any person through whom he claims title from a person under disability, or by any of the means aforesaid:
III.Where any portion of land has been erroneously included, by wrong description of parcels or boundaries, in the certificate or other instrument evidencing the title of the registered proprietor: In which case the rights of the person who but for such error would be entitled to such land shall prevail, except as against a registered proprietor taking such land bona fide for valuable consideration, or any person bona fide claiming through or under him:
IV.Where a right-of-way or other easement not barred or avoided by the provisions of the "Rights-of-way Act, 1881," or of this Act, has been omitted or misdescribed in any folio of the Register or certificate as to title, or other instrument of title: In which case such right-of-way or other easement shall prevail, but subject to the provisions of the said "Rights-of-way Act, 1881," and of this Act:
V.Where 2 or more folios have been created under any of the Real Property Acts in respect of the same land: In which case the title originally first in date of registration shall prevail:
VI.Any certificate issued upon the first bringing of land under the provisions of any of the Real Property Acts, and every certificate issued in respect of the said land, or any part thereof, to any person claiming or deriving title under or through the first registered proprietor, shall be void, as against the title of any person adversely in actual occupation of, and rightfully entitled to, such land, or any part thereof, at the time which such land was so brought under the provisions of the said Acts, and continuing in such occupation at the time of any subsequent certificate being issued in respect of the said land:
* * * *
VIII.Where at the time when the proprietor becomes registered a tenant shall be in actual possession of the land under an unregistered lease or an agreement for a lease or for letting for a term not exceeding one year: In which case the title of the tenant under such lease or agreement shall prevail.
Title of registered proprietor to prevail
In all other cases the title of the registered proprietor of land shall prevail, notwithstanding the existence in Her Majesty, Her heirs, or successors, or in any person of any estate or interest whatever whether derived by grant from the Crown or otherwise, which but for this Act might be held paramount or to have priority; and notwithstanding any want of notice or insufficient notice of any application, or any error, omission, or informality in any application or proceedings.
Saving of certain rights and powers
Nothing in sections 69 and 70 contained shall be construed so as to affect any of the following rights or powers, that is to say –
I.The power of an officer of a court to sell the land of a judgment debtor under a warrant of execution:
II.The power of a court to order the sale of land:
III.The right of the Official Receiver or of any trustee to land transmitted on the insolvency or statutory assignment of the registered proprietor:
IV.The rights of a person with whom the registered proprietor shall have made a contract for the sale of land or for any other dealing therewith:
V.The right of a cestui que trust where the registered proprietor is a trustee, whether the trust shall be express, implied or constructive.
Provided that no unregistered estate, interest, power, right, contract, or trust shall prevail against the title of a registered proprietor taking bona fide for valuable consideration, or of any person bona fide claiming through or under him.
71A.Effect of registration of instruments under other laws
(1) A person presenting a dealing for registration under this Statute is not to be deemed to have had notice of an instrument or a fact or thing contained in an instrument by virtue only of the registration of the instrument in a register kept under another law in force in the Territory.
(2) [Omitted]
71B.Protection against notice before registration
On presentation for registration of a dealing in respect of land, the person presenting the dealing has the same protection over a prior equitable interest in the land of which he does not then have notice as that given at common law to a person who has, without any such notice, acquired the legal estate in the land.
Knowledge of trust not evidence of want of bona fide
Knowledge of the existence of any unregistered estate, interest, contract, or trust shall not of itself be evidence of want of bona fides so as to affect the title of any registered proprietor.
PART VII – CERTIFICATES AS TO TITLE
Certificate as to title
(1) Subject to subsection (2), the registered proprietor of an estate in land, other than a leasehold for a life or lives, shall be entitled to receive a certificate as to title for the same, which certificate as to title shall be in the prescribed form and shall set forth the nature of the estate in respect of which it is issued.
(2) The Registrar-General may issue a certificate as to title referred to in subsection (1) noted by him as being qualified as to boundaries where he is not satisfied that the description of the land to which it relates accurately identifies the boundaries of the land.
Persons registered as joint proprietors to be joint tenants
Two or more persons registered as joint proprietors of an estate or interest in land shall be deemed to be entitled to the same as joint tenants; and in all cases where 2 or more persons are entitled as tenants in common to an estate of freehold in any land, such persons may receive one certificate as to title for the entirety, describing them as tenants in common, or each may receive a separate certificate as to title for his undivided share.
75. – 80.[Repealed]
PART VIII – EASEMENTS
Certificate may contain statement of right-of-way or easement
The Register may contain a statement therein or entry thereon to the effect that the land therein described has appurtenant thereto any easement, or that the person therein named is entitled to any easement in gross, or that the land therein described is subject to any right or rights-of-way or other easement.
Nature of statement
Every such statement or entry shall fully set forth a true and accurate description of the easement, or, if the instrument creating the same be recorded in the Register, may refer to such instrument.
Registered proprietor not subject to ways not mentioned in certificate
The registered proprietor of land brought under the provisions of the "Real Property Act of 1861" after the passing of the "Rights-of-Way Act 1881" or of land hereafter brought under the provisions of this Act shall be deemed to hold the land comprised in the Register subject to such rights-of-way only as are mentioned and set forth in the folio of the Register.
Right-of-way to be entered
No easement hereafter created by express grant or transfer over or in respect of any servient land under the provisions of this Act, shall be binding on any registered proprietor subsequently taking the land bona fide for valuable consideration, unless such easement shall be entered in the Register.
Land to be held free of rights-of-way
The registered proprietor of any land shall, as from 18 November, 1886, hold the same freed and discharged from all rights-of-way existing on or before that date, and not entered in the Register of such land in pursuance of an application made on or before such date under the "Rights-of-Way Act, 1881".
Public rights-of-way, &c., not in Act
Rights-of-way or other easements now or hereafter acquired or enjoyed by the public, in, over, along, or across any servient land shall not be deemed to be rights-of-way or easements within the meaning of this part of this Act, or in respect of which applications may be made or caveats entered, and nothing herein contained shall derogate from any such rights or easements, or be deemed to confer on the registered proprietor of any such servient land a right to interfere with or obstruct the public use of any way or other easement so acquired or enjoyed as aforesaid.
Certificates issued conclusive evidence
Every certificate issued before 18 November, 1881, containing therein a statement to the effect that the registered proprietor is seized of the land therein described, subject to or together with any right-of-way therein described or delineated, or together with any easement therein described, shall be deemed to operate as a grant or reservation, as the case may be, of such right-of-way or other easement, and such certificate shall, except in the case of fraud, be received in all Courts as conclusive evidence of the existence of such right-of-way or other easement: Provided that this section shall not apply to any right-of-way or other easement, the title to which is now the subject of pending litigation in any Court of Law, or to any right-of-way or other easement, the right to which has been concluded in any Court adversely to such right-of-way or easement.
Rights-of-way to be entered upon certificates as to title
Whenever any right-of-way or other easement appurtenant to land under the provisions of this Act over land also under its provisions shall hereafter be granted or created, the Registrar-General shall enter the memorial of the instrument granting or creating such right-of-way or easement upon the folios of the Register of the dominant and servient lands respectively, and also upon the certificates as to title.
Form of describing right-of-way
The words "together with a free and unrestricted right-of-way" in any instrument shall be deemed to imply the words set forth in the Fifth Schedule hereto so far as they shall be applicable as fully and effectually as if set out at length in such instrument.
Proprietor may deposit plan showing rights-of-way
Any registered proprietor of any land may deposit with the Registrar-General a plan of the said land, showing the rights-of-way intended to be created by such proprietor over such land, and every subsequent registered proprietor of the said land, or any part thereof, shall be entitled to a right-of-way over all the rights-of-way shown in such plan, unless otherwise declared in the Register.
PART VIIIA – MODIFICATION AND EXTINGUISHMENT OF EASEMENTS AND RESTRICTIVE COVENANTS
90A.Definition
In this Part, "restrictive covenant" means a negative obligation in respect of the use, ownership or maintenance of particular land made for the benefit of other land.
90B.Modification or extinguishment of easements and restrictive covenants
(1) Where land is subject to the burden of an easement or a restrictive covenant, the Court may, on application by a person who has an interest in the land, make an order modifying or wholly or partially extinguishing the easement or restrictive covenant.
(2) The Court may not make an order under subsection (1) unless it is satisfied that –
(a)because there has been a change in the user of the land having the benefit of the easement or restrictive covenant, in the character of the area in the vicinity of the land or in any other circumstance that the Court considers material, the easement or restrictive covenant is obsolete;
(b)the continued existence of the easement or restrictive covenant would impede the reasonable user of the land or that the easement or restrictive covenant, in impeding that user, is –
(i)no longer necessary or advantageous to the person or persons entitled to the benefit of the easement or restrictive covenant; or
(ii)contrary to the public interest,
and each person who suffers loss or disadvantage from the modification or extinguishment of the easement or restrictive covenant can be adequately compensated in money for his or her loss or disadvantage;
(c)each adult who is entitled to the use or benefit of the easement or restrictive covenant and who has capacity to do so –
(i)has agreed to the modification or extinguishment of the easement or restrictive covenant; or
(ii)by his or her acts or omissions may reasonably be considered to have abandoned the easement or to have waived the benefit of the restrictive covenant in whole or in part; or
(d)the proposed modification or extinguishment will not substantially injure the persons entitled to the use or benefit of the easement or restrictive covenant.
(3) In determining whether to make the order, the Court must take into account the operation of the Planning Act and in particular the control plan, within the meaning of that Act, applying to the land.
(4) The power of the Court to make an order modifying an easement or restrictive covenant includes power to amend the instrument creating the easement or restrictive covenant to include new terms as to the use, ownership or maintenance of the servient land or land subject to the restrictive covenant.
(5) In making an order under subsection (1), the Court may also make an order directing the applicant to pay a person entitled to the use or benefit of the easement or restrictive covenant the amount that appears to the Court to be just to award consideration for –
(a)any loss or disadvantage suffered as a consequence of the modification or extinguishment; or
(b)any reduction in any compensation received for the land affected by the easement or restrictive covenant when it was created that is attributable to its imposition.
90C.Notice of application
Where an application is made to modify or extinguish an easement or restrictive covenant, the Court may, if it thinks just, direct that the applicant must give notice of the application in the manner and to the consent authority, within the meaning of the Planning Act, or any other person it specifies in the direction.
90D.Effect of order
An order made under section 90B is binding on all persons, whether or not adults or otherwise having capacity, who are or become entitled to the use or benefit of the easement, or are or become interested in enforcing the restrictive covenant, and whether or not they were parties to the proceedings under that section or were served with notice under section 90C.
90E.Powers of Court
(1) In proceedings under this Part, the Court may do any one or more of the following –
(a)direct that a survey is to be made of land and a plan of survey is to be prepared in respect of the land;
(b)order a person to execute an instrument, in registrable or other form, that is necessary to give effect to an order made under this Part;
(c)order a person to produce to another person specified in the order any certificate as to title or other document relating to land;
(d)make an order declaring whether or not land is or would in specified circumstances be affected by an easement or restrictive covenant;
(e)give directions for the conduct of proceedings;
(f)make orders in respect of the costs of any of the matters referred to in this section and of the proceedings generally.
(2) Where a Court makes an order under subsection (1)(d), the order may include a declaration as to any of the following –
(a)the nature and extent of the easement or restrictive covenant;
(b)whether or not the easement or restrictive covenant is enforceable;
(c)if the easement or restrictive covenant is enforceable - who may enforce it and against whom.
PART IX – CROWN GRANTS
Definitions
In this Part –
"Crown lands" does not include land an estate in fee simple in which is held by the Territory;
"Crown lease" means a lease of Crown lands.
Person holding may surrender
Every person now holding any Crown lands under any lease or agreement for sale, granted or made by or on behalf of the Crown may, subject to the approval of the Minister, surrender his lease or agreement for a Crown lease of the land remaining, subject to such lease or agreement upon all the same terms as shall have been applicable to such land prior to the surrender, but so that every person having any estate or interest in the surrendered land shall concur in the surrender.
Issue of certificate as to title in relation to estate in fee simple, &c., under other Acts
(1) The Registrar-General shall issue a certificate as to title in the prescribed form in accordance with a grant of an estate in fee simple, or a lease of Crown land, under a law of the Territory relating to the alienation of land if requested to do so by the Minister responsible for the administration of that law.
(2) A person who is entitled to an estate in fee simple or a lease from the Crown is entitled to receive a certificate as to title as referred to in subsection (1).
Registrar-General to enter forfeiture
The Registrar-General, upon receipt of notice from the Minister that any Crown lease has been lawfully forfeited or determined in whole or in part, shall make an entry to that effect in the Register, and such forfeiture or determination, shall thereupon have effect.
Effect of this Act
Nothing herein contained or hereby implied shall be construed to give any greater effect or different construction to any Crown lease registered pursuant to this part of this Act than would have been given to it if this Act had not been passed, nor shall any right or remedy, which the Crown would otherwise have possessed, be in any way prejudiced or altered.
PART X – TRANSFERS
Transfers
When any land is intended to be transferred, or any right-of-way or other easement is intended to be created or transferred, the dealing shall be effected by a transfer in the prescribed form which shall be executed -
(a)by the registered proprietor or, in the case of a transfer of land by a mortgagee, encumbrancee or receiver exercising a power of sale, that mortgagee, encumbrancee or receiver; and
(b)unless the Registrar-General has directed otherwise with respect to the dealing in question or dealings of a class to which it belongs, by the transferee or grantee.
Amended by No. 32, 1991, s. 23
Substituted by No. 38, 1988, s. 25 as amended by No. 60, 1989, s. 6
Repealed by No. 38, 1988, s. 25
270.(1) Amended by No. 38, 1988, s. 26
270.(2) Added by No. 38, 1988, s. 26Repealed by No. 19, 1955, s. 4; inserted by No. 15, 1965, s. 3; repealed by No. 32, 1991, s. 23
271.(5) Amended by No. 27, 1986, s. 6
Repealed by No. 19, 1955, s. 4
273.(1)Amended by No. 13, 1918, s. 4; No. 38, 1988, s. 27; No. 32, 1991, s. 23; No. 19, 1993, s. 4
273.(2) Added by No. 38, 1988, s. 27
Amended by No. 13, 1918, s. 5; repealed by No. 66, 1989, s. 14; inserted by No. 53, 1991, s. 2
274.(1) Amended by No. 84, 1993, s. 6
Substituted by No. 38, 1988, s. 28
275A. Inserted by No. 38, 1988, s. 29
275B. Inserted by No. 66, 1989, s. 12Substituted by No. 66, 1989, s. 13; amended by No. 59, 1990, s.4
276.(1) Amended by No. 56, 1990, s. 4; No. 32, 1991, s. 23
277.(1) Added by No. 27, 1986, s. 7
277.(2) Added by No. 32, 1991, s. 22
277.(3) Added by No. 76, 1993, s. 12
Heading
"Schedules" Omitted by No. 87, 1973, s. 12
First
ScheduleSubstituted by No. 93, 1978, s. 3; No. 8, 1983, s. 2; repealed by No. 27, 1986, s. 8
Second
Schedule Repealed by No. 66, 1989, s. 14
Third
Schedule Repealed by No. 66, 1989, s. 14
Fourth
Schedule Repealed by No. 38, 1988, s. 30
Sixth -
Fifteenth
Schedule Repealed by No. 38, 1988, s. 30
Eighteenth
Schedule Repealed by No. 38, 1988, s. 30
Nineteenth
Schedule Repealed by No. 38, 1988, s. 30
Twentieth
Schedule Repealed by No. 19, 1955, s. 5
Twenty-
First
Schedule Repealed by No. 66, 1989, s. 15
Twenty-
Third
Schedule Repealed by No. 32, 1991, s. 23
Twenty-
Fourth
Schedule Repealed by No. 32, 1991, s. 23
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