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This is a Bill, not an Act. For current law, see the Acts databases.
New South Wales
Property Legislation Amendment Bill
2005
Contents
Page
1 Name of Act 2
2 Commencement 2
3 Amendment of Real Property Act 1900 No 25 2
4 Amendment of Conveyancing Act 1919 No 6 2
5 Amendment of Strata Schemes (Freehold Development)
Act 1973 No 68 2
6 Amendment of Strata Schemes (Leasehold Development)
Act 1986 No 219 2
7 Amendment of Local Government Act 1993 No 30 2
Schedule 1 Amendment of Real Property Act 1900 3
Schedule 2 Amendment of Conveyancing Act 1919 8
Schedule 3 Amendment of Strata Schemes (Freehold Development)
Act 1973 9
Schedule 4 Amendment of Strata Schemes (Leasehold Development)
Act 1986 10
Schedule 5 Amendment of Local Government Act 1993 11
I certify that this PUBLIC BILL, which originated in the LEGISLATIVE ASSEMBLY,
has finally passed the LEGISLATIVE COUNCIL and the LEGISLATIVE ASSEMBLY of
NEW SOUTH WALES.
Clerk of the Legislative Assembly.
Legislative Assembly,
Sydney, , 2005
New South Wales
Property Legislation Amendment Bill
2005
Act No , 2005
An Act to amend the Real Property Act 1900, the Conveyancing Act 1919, the Local
Government Act 1993 and Acts relating to strata titles to make miscellaneous
provisions concerning real property; and for other purposes.
I have examined this Bill, and find it to correspond in all respects with the Bill
as finally passed by both Houses.
Chairman of Committees of the Legislative Assembly.
Clause 1 Property Legislation Amendment Bill 2005
The Legislature of New South Wales enacts:
1 Name of Act
This Act is the Property Legislation Amendment Act 2005.
2 Commencement
This Act commences on a day or days to be appointed by proclamation.
3 Amendment of Real Property Act 1900 No 25
The Real Property Act 1900 is amended as set out in Schedule 1.
4 Amendment of Conveyancing Act 1919 No 6
The Conveyancing Act 1919 is amended as set out in Schedule 2.
5 Amendment of Strata Schemes (Freehold Development) Act 1973 No 68
The Strata Schemes (Freehold Development) Act 1973 is amended as
set out in Schedule 3.
6 Amendment of Strata Schemes (Leasehold Development) Act 1986
No 219
The Strata Schemes (Leasehold Development) Act 1986 is amended as
set out in Schedule 4.
7 Amendment of Local Government Act 1993 No 30
The Local Government Act 1993 is amended as set out in Schedule 5.
Page 2
Property Legislation Amendment Bill 2005
Amendment of Real Property Act 1900 Schedule 1
Schedule 1 Amendment of Real Property Act 1900
(Section 3)
[1] Section 28EA Ordinary folio may be created in certain cases
Insert at the end of the section:
(2) The Registrar-General may create an ordinary folio of the
Register under this section only for land the boundaries of which,
in the opinion of the Registrar-General, are adequately defined
without further survey definition.
[2] Section 28MC Application for cancellation of caution accompanied by
search
Insert after section 28MC (3) (a):
(a1) the Registrar-General has had regard to a survey report and
an identification survey relating to the land that have been
prepared by a registered surveyor, and
[3] Section 28MC (3) (c)
Insert at the end of section 28MC (3) (b):
, and
(c) the boundaries of the land, in the opinion of the
Registrar-General, are adequately defined without further
survey definition.
[4] Section 36A
Insert after section 36:
36A Notification of permits, licences and permissive occupancies
affecting Crown land
(1) In this section:
enclosure permit means a permit granted under the Crown Lands
Act 1989 to enclose a road or watercourse or part of a road or
watercourse.
licence means a licence granted under the Crown Lands Act 1989
authorising the use or occupation of Crown land.
permissive occupancy has the same meaning as in the Crown
Lands (Continued Tenures) Act 1989.
Page 3
Property Legislation Amendment Bill 2005
Schedule 1 Amendment of Real Property Act 1900
(2) The Registrar-General may record a note in a folio of the Register
to indicate that land has the benefit of an enclosure permit,
licence or permissive occupancy and may alter or remove any
such note.
(3) The Registrar-General is not liable if such a recording:
(a) could be made, but is not made, or
(b) is made or retained, but should not have been made or
retained, or is incomplete or inaccurate.
[5] Section 46 Transfers
Insert at the end of the section:
(2) This section does not apply to the creation of an easement or
profit à prendre that burdens and benefits separate parcels of land
if the same person is the proprietor of the separate parcels of land.
[6] Section 46A
Omit the section. Insert instead:
46A Creation of easements etc over own land by a dealing
(1) An easement, profit à prendre or restriction on the use of land that
burdens and benefits separate parcels of land all under the
provisions of this Act may be created even though the same
person is the proprietor of those separate parcels of land,
notwithstanding any rule of law or equity in that behalf.
(2) Any such easement, profit à prendre or restriction on the use of
land may be created under this section only by registration in the
Register of an instrument that is in the form approved for the
purpose by the Registrar-General.
(3) The Registrar-General may refuse to register such an instrument
if the Registrar-General is not satisfied that the boundaries of the
land concerned, or the site of the easement or the land to which
the profit à prendre or restriction applies, are adequately defined.
(4) The Registrar-General may make such recordings in the Register
as are necessary to give effect to the easement, profit à prendre or
restriction on the use of land.
(5) The instrument creating the easement, profit à prendre or
restriction on the use of land must be executed:
(a) by the registered proprietor of the land burdened and the
land benefited by the easement, profit à prendre or
restriction, and
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Property Legislation Amendment Bill 2005
Amendment of Real Property Act 1900 Schedule 1
(b) by every mortgagee, chargee or covenant chargee under a
mortgage, charge or covenant charge recorded in the folio
of the Register relating to that land.
(6) The Registrar-General may refuse to register any such instrument
unless consents in writing to the registration of the instrument
signed by (or by an agent authorised by) such of the following
persons as the Registrar-General may determine:
(a) the lessee under any lease, or the judgment creditor under
any writ, recorded in the folio of the Register relating to the
land to be burdened or benefited by the easement, profit à
prendre or restriction,
(b) the caveator under a caveat relating to any estate or interest
in that land,
are lodged in the office of the Registrar-General.
Note. This section allows an easement, profit à prendre or restriction on the use
of land to be created by registration of a dealing under this Act as an alternative
to registration of a plan to which section 88B of the Conveyancing Act 1919
applies, if all the land concerned is held under the provisions of this Act by the
same person.
[7] Section 47 Recording, variation and release of easements etc
Insert before section 47 (1):
(1A) In this section, affecting interest means an easement, profit à
prendre or restriction on the use of land.
[8] Section 47 (1)(7)
Omit "easement or profit à prendre" wherever occurring (except where lastly
occurring in section 47 (5A)).
Insert instead "affecting interest".
[9] Section 47 (5A)
Omit the second sentence.
[10] Section 47 (5B) and (5C)
Insert after section 47 (5A):
(5B) The dealing effecting the variation and the plan (if any) must be
executed:
(a) by the registered proprietors of the land burdened, and of
any land benefited, by the affecting interest, and
Page 5
Property Legislation Amendment Bill 2005
Schedule 1 Amendment of Real Property Act 1900
(b) by every mortgagee, chargee or covenant chargee under a
mortgage, charge or covenant charge recorded in the folio
of the Register relating to that land.
(5C) The Registrar-General may refuse to register any such dealing or
plan unless consents in writing to the registration of the dealing
or plan signed by (or by an agent authorised by) such of the
following persons as the Registrar-General may determine:
(a) the lessee under any lease, or the judgment creditor under
any writ, recorded in the folio of the Register relating to
that land,
(b) the caveator under a caveat relating to any estate or interest
in that land,
are lodged in the office of the Registrar-General.
[11] Section 47 (9)
Insert after section 47 (8):
(9) Subsection (7) applies only to a restriction on the use of land
recorded under this section after the commencement of Schedule
1 [10] to the Property Legislation Amendment Act 2005.
[12] Section 55B
Insert after section 55A:
55B Dealings affecting common law leases
(1) Provisions of this Act that apply to and in respect of dealings
affecting registered leases apply to and in respect of any dealings
affecting a lease that is recorded as an encumbrance in a folio of
the Register (a common law lease).
(2) However, registration of a dealing affecting a common law lease
does not:
(a) imply that the lease is registered, or
(b) otherwise alter the effect that lease would have had in the
absence of this section.
(3) The Registrar-General may reject or refuse to register a dealing
lodged for registration that purports to affect a common law
lease:
(a) if not satisfied as to the devolution of the lease, or
Page 6
Property Legislation Amendment Bill 2005
Amendment of Real Property Act 1900 Schedule 1
(b) if, for any other reason, of the opinion that the dealing
would not have been registered if it had been a dealing
lodged for registration that purported to affect a registered
lease.
[13] Section 99 Proprietor may vest estate jointly in himself or herself and
others without limiting any use or without re-assignment
Omit the section.
[14] Schedule 3 Savings and transitional provisions
Insert after Part 1:
Part 1A Real Property (Amendment) Act 1970
1A Construction of references to former section 46A
A reference to section 46A in any other Act or in any instrument,
whether or not made under an Act, is taken to be:
(a) in relation to anything done before the commencement of
the Real Property (Amendment) Act 1970, a reference to
section 46A as in force when the thing was done, or
(b) in relation to anything done after that commencement but
before the commencement of Schedule 1 [6] to the
Property Legislation Amendment Act 2005, a reference to
section 31A (Creation of folio for resumed land).
Page 7
Property Legislation Amendment Bill 2005
Schedule 2 Amendment of Conveyancing Act 1919
Schedule 2 Amendment of Conveyancing Act 1919
(Section 4)
[1] Section 98 Facilitation of redemption in case of absent or unknown
mortgagees
Omit section 98 (1B) (b). Insert instead:
(b) the reasonable costs that would have been incurred by the
mortgagee in discharging the mortgage, whether or not
they would have been payable by the mortgagee.
[2] Section 98 (5)
Omit the subsection.
Page 8
Property Legislation Amendment Bill 2005
Amendment of Strata Schemes (Freehold Development) Act 1973 Schedule 3
Schedule 3 Amendment of Strata Schemes
(Freehold Development) Act 1973
(Section 5)
[1] Section 25 Transfer or lease of common property
Insert after section 25 (2):
(2A) A body corporate may, pursuant to a special resolution, execute
a variation of any such lease or sublease pursuant to section 55A
of the Real Property Act 1900.
[2] Section 25 (4)
Omit "subsection (1), (2) or (3)". Insert instead "this section".
[3] Section 28W Effect of strata management statement
Omit "a by-law or" from section 28W (5).
Page 9
Property Legislation Amendment Bill 2005
Schedule 4 Amendment of Strata Schemes (Leasehold Development) Act 1986
Schedule 4 Amendment of Strata Schemes
(Leasehold Development) Act 1986
(Section 6)
[1] Section 29 Transfer or lease of common property
Insert after section 29 (1):
(1A) A body corporate may, pursuant to a special resolution and with
the consent of the lessor under the leasehold strata scheme,
execute a variation of any such lease or sublease pursuant to
section 55A of the Real Property Act 1900.
[2] Section 29 (3)
Omit "subsection (1) or (2)". Insert instead "this section".
[3] Section 57F Effect of strata management statement
Omit "a by-law or" from section 57F (5).
Page 10
Property Legislation Amendment Bill 2005
Amendment of Local Government Act 1993 Schedule 5
Schedule 5 Amendment of Local Government
Act 1993
(Section 7)
[1] Section 49 Public reserves and drainage reserves dedicated on
subdivision, transfer or conveyance
Insert "or of a transfer or conveyance to a council of land identified in the
transfer or conveyance as being for use as a public reserve," before "the land"
in section 49 (1).
[2] Section 49 (2)
Insert "or transfer" after "plan".
[3] Section 49 (3)
Insert "or of a transfer or conveyance to a council of land identified in the
transfer or conveyance as being for use as a drainage reserve," before "the
land".
Page 11
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