Transfer of Land Act Amendment Act 1909 (WA)

WESTERN AUSTRALIA.

ANNO NONO

EDWARDI SEPTIMI REGIS,

L.

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No. 54 of 1909.

AN ACT to further amend the Transfer of

Land Act, 1893.

[Assented to 21st December, 1909.]

Legislative Assembly of Western Australia, in this present Par-BE it enacted by the King's Most Excellent Majesty, by andwith the advice and consent of the Legislative Council and

liament assembled, and by the authority of the same, as follows:—

1. This Act may be cited as the Transfer of Land Act Amend- Short title and

ment Act, 1909, and shall be read as one with the Transfer of Laud	commenceinent.
Act, 1893, hereinafter referred to as the principal Act, and shall come into operation on a day to be fixed by Proclamation.

2. Section four of the principal Act is amended as follows:— Amendment of

56 Vie., No. 14, s.

(a.) By adding to the word "fee," in line twenty-three, the

words "and shall also include Crown Leases."

(b.) By adding the following subsection :—"Crown Lease" shall mean every lease or other holding of Crown Lands under the Land Act, 1898, or any regulation thereby repealed, granted for or extending over a period of five years or more.

1909, No. 54.] Transfer of Land. [9 EDW. VII.

Registration of	3. (1.) Every Crown Lease issued after the commencement of this Act shall be issued in duplicate under seal and be forwarded by the Minister for Lands direct to the Registrar for registration under sections fifty-three and fifty-four of the principal Act.
Crown leases.

(2.) The Registrar shall

(a.) Enter in a journal particulars of the lease, and mark

on each part thereof the number appearing in such

journal, and sign his name to each part;

(b.) Retain one part (to be called the original), and deliver the other part (to be called the duplicate) to the lessee or, in the case of a mortgage, to the mortgagee; and

(c.) Register the original in the Register of Leases.

Registration of	4. (1.) A Crown Lease issued before the commencement of this
Crown leases

granted before	Act may be made subject to and registered under the operation of
commencement of	the principal Act, by an application in the form in the Schedule
Act.	hereto.
(2.) Such application may be made by the lessee or any person claiming through him, or by any mortgagee, and shall be accompanied by

(a.) The instrument of lease and certified copies of all ex- isting mortgages, subleases, and other dealings (if any) registered under the Land Act, 1898 ; and

(b.) A certified copy of the lease to be supplied by the Department of Lands and Surveys to the applicant for such purpose; and

(c.) The writtten consent of all registered mortgagees; and

(d.) In applications by mortgagees, the written consent of

the lessee.

(3.) The Registrar shall refer such application to the Com- missioner for his direction, and if the Commissioner is satisfied as to the title of the applicant he shall direct the Registrar to bring the land under the Act, either forthwith or after advertisement.

(4.) When the Registrar is satisfied that the preceding pro- visions of this section have been complied with, he shall

(a.) Enter in a journal particulars of the lease, and of all existing mortgages and subleases, and mark on the lease and the certified copy the munber appearing in the journal, and endorse on the lease and certified copy all existing mortgages and subleases, and sign his name to the lease and certified copy and such endorsements; and

(b.) Retain and register in the Register of Leases the original lease instrument and deliver the certified copy to the lessee, or, in the case of a mortgage, to the mortgagee.

9 EDW. VII.] Transfer of Land. [1909, No. 54.

(5.) Any mortgage or sublease of a Crown Lease made

prior to the lease being registered under this section, and which

is still operative

(a.) Shall be recorded on the original instrument of lease

and on the certified copy; and

(b.) When so recorded, shall be read as if it contained all the covenants, powers, and conditions which by the principal Act are implied in mortgages or sub- leases or conferred upon the parties thereto, except so far as such mortgage or sublease contains express provisions to the contrary.

5.    When a Crown Lease is signed by the Registrar it shall be Effect of registra-

deemed to be registered and, subject to this Act, may be trans- tion.

ferred, subleased, and dealt with hi like manner as if it had been

granted by a registered proprietor and registered in the ordin-

ary way, and the several provisions of the principal Act with re-

spect to freehold land shall apply to such Crown lease, and every

mortgage or sublease thereof, whether granted before or after the

commencement of this Act, with such variations only as the differ-

ence in the nature of such property requires, or as may be neces-

sary to render such provisions applicable to leaseholds for years.

6.    (1.) No transfer, sublease, or mortgage of a Crown Lease Registration of

or of a sublease thereof shall be registered until the written con- Transfer, etc.

sent thereto of the Minister for Lands or of an officer of the De-

partment of Lands and Surveys thereto authorised by the Minis-

ter for Lands has been filed with the Registrar.

(2.) Nothing in this Act or the principal Act contained shall affect the provisions of the Land Act, 1898, whereby a trans- feree or sublessee is required to be a person who is not disquali- fied under that Act to be a lessee of the land intended to be trans- ferred or sublet.

7.    No order of foreclosure shall be made in respect of a mort- No foreclosure

gage of a Crown Lease without the consent, in writin o. , of the Mini- without the con-	sent of Minister
ster for Lands,	for Lands.

8. (1.) The Registrar, upon receipt of written notice from the Entry of forfeiture.

Minister for Lands that any Crown Lease has been forfeited or determined in whole or in part, shall make an entry to that effect on the original lease and call in the lessee's part thereof.

(2.) If there is a mortgage or sublease registered against the lease so forfeited or determined, the Registrar shall post to the mortgagee or sublessee, at the address appearing in the Register, thirty days' notice of his intention to make such entry within which time the mortgagee or sublessee may carry out the conditions of

1909, No. 54.1 Transfer of Land. 19 Enw.

the lease and apply to the Minister for Lands to waive the forfeit-

ure

(3.) The Minister for Lands may, by notice to the Regis-

trar, allow a longer period than thirty days.

(4.) Unless the forfeiture or determination is cancelled by the Governor in Council under the Land Act, 1898, or is waived by the Minister for Lands under subsection two of this section, then at the expiration of such days or such longer period as the Minister for Lands shall allow, such forfeiture.and deter- mination shall become absolute.

Crown lessee to be	9. (1.) Every person who for the time being is the holder of a Crown Lease shall, for all purposes in connection with transfer- ring, subletting, mortgaging, or otherwise dealing with the lease, have the same capacity as if he were and shall be deemed of full age.
deemed of full age.

(2.) The provisions of this section shall be deemed to have

applied to all holdings under the Land Act, 1898, from the first

day of January, one thousand eight hundred and ninety nine.

(3.) The terms and conditions of any such transfer, sub-lease,

mortgage, or other dealing may be renewed and altered upon appli-

cation in Chambers to a Judge of the Supreme Court.

Certain provisions	10. (1.) Sections ninety-two, ninety-three, and ninety-four of
of the principal Act

and of Land Act,	the principal Act shall not apply to Crown Leases.
1898, not to apply to
Crown leases.	(2.) Sections eighty, one hundred and twenty-two, and one hundred and thirty-eight to one hundred and forty-four (a) inclu-
sive of the Land Act, 1898, and sections seventy-four to eighty- three inclusive of the Land Act Amendment Act, 1906, shall not apply to Crown Leases registered under this Act, and section fifteen of the Land Act Amendment Act, 1900, shall m reference to Crown. Leases registered under this Act be read subject to section nine of this Act.

Amendment of s. 78. 11. Section seventy-eight of the principal Act is amended by in-

serting after the word "sheriff" the words "or the magistrate

of a local court."

Amendment of s. 90. 12.

Section ninety of the principal Act is amended by insert- ing after the word "sheriff" the words "or magistrate of a local

court," and by inserting after the words "fi.14." the words " or

warrant of execution," and by striking out the words "three

months " and inserting " four months " in lieu thereof.

Amendment of 13. Section one hundred and five of the principal Act is re-

s. 105. pealed, and the following section shall be read in lieu thereof :—

9 Enw. Transfer of Land. [1909, No. 54.

105. (1.) The proprietor of any land under the operation of this Act may mortgage the same or may charge the same with the payment of an annuity.

(2.) A mortgage or charge may be in the form in the

Fourteenth and Fifteenth Schedules respectively to this Act.

(3.) if a mortgage includes freehold land and a Crown

Lease the Registrar may require a duplicate or certified copy of the mortgage to he lodged for registration.

(4.) A mortgage, charge. or lease may be extended

by an instrument of extension executed by all the parties to such mortgage. charge, or lease. and stating- the term of the extension and the terms and conditions on which the exten- sion is made.

(5.) On production to the Registrar of such instru-

ment and of the duplicate mortgage, charge. or lease, he shall retain such instrument and enter a memorandum of such extension on the original instrument of mortgage, charge, or lease filed in the Office of Titles and also on the certificate of title or, in the case of a Crown Lease, on the Register of Leases.

(6.) No dealing registered subsequent to any mortgage,

charge, or lease shall 1)7 affected by the extension of any such mortgage, charge, or lease unless the proprietor in whose favour such dealing was registered shall have consented in writing to such extension.

14.    Section one hundred and thirty-three of the principal Act is Amendment of

amended by adding a paragraph as follows Every such writ shall 8. I"'

cease to bind, charge. or affect any land, lease, mortgage, or charge specified as aforesaid unless a transfer upon a sale under such writ shall be left for entry upon the register within four months from the day on which the copy was served."

15.     Any certificate of title may contain a statement therein or Certificates

entry thereon to the effect that the land therein described has 00711:thl sr:dal/1,11f , ea.ernents.

appurtenant thereto any easement. or that the person therein named'. s	3,41
is entitled to any easement in gross. or that the land therein described is subject to any right or right-of.way or other easement.

16.   Every such statement or entry shall set forth a true and Nature of easement.

accurate description of the easement, or if the instrument creating 8 -1 - No. 380, s 5'--

the same is deposited in the Lands Titles Office shall refer to such instrument, and the certificate of title shall contain a plan of the land over which such easement extends, or if a plan showing the extent of such easement is deposited in the Lands Titles Office shall refer to such plan.

1909, No. 54.] Transfer of Land. [9 EDW. VII.

Assurance Fund	17. The Assurance Fund shall not be liable for compensation
not liable for

breach of trust, etc for loss, damage, or deprivation occasioned

S.A. No. 380,	(a.)	by any breach by a registered proprietor of any trust,
s. 211.

whether express, implied or constructive, or by the im- proper exercise of any power of sale expressed or im- plied in any mortgage or encumbrance; or

(b.) to any person claiming under any unregistered instru- ment, document or writing, or any equitable mortgage or charge by deposit or otherwise without writing, or any other interest not protected by caveat, by or in consequence of the issue to any registered proprietor of a special certificate.

Amendment of	18. The forms in the Seventeenth Schedule of the principal Act shall be read with reference to any transfer pursuant to a sale under a warrant of execution issued under the Local Courts
Seventeenth
Schedule.
Act, 1904, as if the words "warrant of execution issued out of a
local court " were inserted in place of "writ of fieri facial issued out of the Supreme Court," and as if the words "magistrate of the local court" were inserted in place of the word "sheriff."

9 EDW. VII] Transfer of Land. [1909, No. 54.

THE SCHEDULE.

Application to register a Crown Lease under the Transfer of Land Act, 1893.

To the Registrar of Titles.

I [insert name, address, and occupation] hereby apply to have the land herein- after described brought under the operation of the Transfer of Land Act, 1893. And I declare-

1.     That I am the lessee [or mortgagee or as the case may be] of a Crown

lease Of ALL THAT

That there are no documents or evidences of title affecting such land in my possession or under my control other than those included in the Schedule hereto.

2.

That I am not aware of any mortgage or encumbrance or sub-lease affecting

the said land or that any other person has any estate or. interest therein at law or

in equity [if there are any add other than as follows and set the same forth].

3.

Dated this day , One thousand nine hundred and

Made and subscribed at

in the presence of

[The applicant if within Western Australia to sign before the Registrar or an Assistant Registrar, or a notary public, justice of the peace, or commissioner for taking affidavits; if abroad before a notary public or a commissioner for taking affidavits in the Supreme Court of Western Australia.]

SOHDEDULE OF DOCUMENTS REFERRED TO.

By Authority : A. CURTIS, Acting Government Printer, Perth.