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Amendment Bill 1997
Explanatory note
This explanatory note relates to this Bill as introduced into Parliament.*
the effect of uplifting caveats after lodgment,
caveats against cancellation of notifications of easements,
the severance of joint tenancies by unilateral action,
·
notice of severance of joint tenancies,
the effect of the death of a co-owner on proceedings for partition or
sale,
the power of the Registrar-General to give notice of the registration,
recording or amendment of plans,
various consequential matters.
* Amended in committee--see table at end of volume.
Outline of provisions
Clause 1 sets out the name (also called the short title) of the proposed Act.
Clause 2 provides for the commencement of the proposed Act on 1 January
1998.
Clause 3 is a formal provision giving effect to the amendments to the Real
Property Act 1900 set out in Schedule 1.
Clause 4 is a formal provision giving effect to the amendments to the
Conveyancing Act 1919 set out in Schedule 2.
Schedule 1
Amendment of Real Property Act 1900
Effect of uplifting caveats after lodgment
The Real Property Act 1900 (in this Schedule called the Principal Act) is
amended to make it clear that a caveat that is uplifted from the Land Titles
Office after lodgment is ineffective and does not act as an injunction against
the recording or registration of any dealing or the granting of any application
(the recording, registration or granting of which is prohibited by the caveat)
until the caveat is relodged. This provision formally places caveats that are
uplifted in a similar position to dealings that are lodged for registration and
subsequently uplifted, such dealings being deemed by the Principal Act not
to be in registrable form.
In the past, the Land Titles Office has viewed dealings and caveats that are
uplifted as occupying a similar position. However, the Supreme Court in J A
Westaway & Son Pty Ltd v Registrar General & ors (Young J, Equity
Division, 6 September 1996, unreported) has held that a caveat that is under
requisition and has been uplifted from the Land Titles Office remains
effective as an injunction against the registration of dealings as long as
reference to it is noted in the Register. As noted above, the proposed
amendment restores previous practice by placing caveats on the same footing
as dealings so far as uplifted documents are concerned. (See Schedule 1 [2].)
Schedule 1 [1] and [7] make consequential and other minor amendments.
Explanatory note page 2
Caveats against cancellation of notifications of easements
Provisions are inserted in the Principal Act to enable a person who claims to
have an interest in an easement to lodge a caveat to prohibit the cancellation
of the notification of the easement as the result of an application for such
cancellation that is lodged with the Registrar-General before the lodgment of
the caveat.
The proposed amendments will bring the treatment of such an application in
line with that of other types of applications, such as primary applications and
possessory applications, that are publicised before being granted and the
grant of which can be prevented by the lodgment of caveats after the
applications are made. (See Schedule 1 [4] and [6].)
Schedule 1 [3], [5], [8] and [9] make consequential amendments.
Severance of joint tenancy by unilateral action
It is proposed that the Principal Act be amended to include a provision,
declaratory of the common law, confirming that a joint tenant may sever a
joint tenancy unilaterally by transferring his or her interest in the land that is
the subject of the joint tenancy to himself or herself.
If a joint tenancy is severed by unilateral action on the part of one joint tenant
or a third party (such as on the lodgment of a bankruptcy application in
relation to one joint tenant), the Registrar-General may require the person
who effects the severance to provide the Registrar-General with the names
and addresses of the joint tenants and a statement that the person is not aware
of any impediment to his or her capacity or entitlement to sever the joint
tenancy.
The Registrar-General may also call on the person to provide additional
information concerning other persons who may be affected by the severance
or any possible limitation or restriction on the person's capacity or
entitlement to sever the joint tenancy. (The information provided may, if the
Registrar-General considers it appropriate, be used by the Registrar-General,
in the exercise of powers under Part 2 of the Principal Act, to give notice of
the severance to persons who may be affected by it, including joint tenants.)
The proposed amendment is not intended to displace any private or statutory
obligation pursuant to which a joint tenant is required to continue to hold his
or her interest in a joint tenancy with the other joint tenants. (See Schedule 1
[10].)
Explanatory note page 3
Schedule 2
Amendment of conveyancing Act 1919
Notice of severance of joint tenancy
A provision is inserted in the Conveyancing Act 1919 (in this Schedule called
the Principal Act) to require a person who unilaterally severs, or causes the
severance of, a joint tenancy in land to which the Real Property Act 1900
does not apply to give notice of the severance to all joint tenants who have an
interest in the land. The notice is to be given in a form approved by the
Registrar-General. Failure to give the notice does not invalidate or otherwise
affect the severance of the joint tenancy. (See Schedule 2 [l].)
Effect of death of co-owner on proceedings for partition or sale under
section 66G
The Principal Act is amended to expressly provide that any action for the
partition or sale of property held in co-ownership survives the death of any
co-owner against or for the benefit of the deceased co-owner's estate despite,
in the case of a joint tenancy, the rule of survivorship. (See Schedule 2 [2].)
Power of Registrar-General to give notice of registration, recording or
amendment of plans
The Principal Act is amended to give the Registrar-General the power to
serve notice of the intention to register, record or amend plans (including
plans creating easements, restrictions on the use of land or positive
covenants) under that Act on any person who the Registrar-General considers
may be. affected by the taking of such action.
The terms of the inserted provision are similar to those of section 12A of the
Real Property Act 1900 that empower the Registrar-General to give notice to
affected persons of proposed action, such as the registration of a dealing, in
respect of the Register maintained under that Act. (See Schedule 2 [3].)
Explanatory note page 4