Tasmanian Consolidated Acts

LAND TITLES ACT 1980 - SECT 28

      (1AA) In this section,

"instrument" means any deed, judgment, will, letters of administration or other document or writing affecting or intended to affect land in this State.

      (1) When –

(a) on the bringing of land under this Act, it appears to the Recorder that the land is subject to a legal mortgage by conveyance of the fee simple;

(b) a legal mortgage by conveyance of the fee simple is to be recorded in the Register pursuant to section 22; or

(c) in the case of land of the Crown for which a folio of the Register is created under section 27A(2), it appears to the Recorder that the land is subject to a legal mortgage –

      (2) Where –

(a) on the bringing of land under this Act, it appears to the Recorder that an instrument registered under the Registration of Deeds Act 1935 or Part 2K.2 of the Corporations Act creates an estate or interest in that land (other than the estate claimed by the person making application to bring land under this Act or the person who is to be registered as proprietor) that could have been created by an instrument registered under this Act if at the time of its creation the land were under this Act; or

(b) he is required to record the estate or interest referred to in paragraph (a) on the relevant folio of the Register pursuant to section 22 –

(c) it is not in the form of an appropriate instrument; and

(d) it discloses the existence of other estates or interests that may not otherwise be registered under this Act.

      (3) Subsection (2) allows the recording of an equitable mortgage or charge as a legal mortgage or encumbrance.

      (4) Where an instrument is recorded on a folio of the Register pursuant to this section or is referred to on the folio –

(a) the Recorder shall–

(i) certify on the instrument that it is so recorded;

(ii) make a copy of the instrument, which he shall retain, and which shall for all purposes be deemed to be the original instrument; and

(iii) return the instrument to the person from whom he received it, and that instrument shall be produced to the Recorder whenever the duplicate instrument is required by this Act to be produced to him;

(b) dealings with the estate or interest so recorded are subject to this Act; and

(c) the proprietor of the estate or interest so recorded has all the rights of a registered proprietor of such an estate or interest instead of any rights of a like nature enjoyed by him before that registration.

      (5) Where an instrument is registered under the Registration of Deeds Act 1935 or Part 2K.2 of the Corporations Act, the Recorder is not bound to require production of the instrument or to comply with subsection (4)(a)(i).

      (6) In registering instruments under this section the Recorder shall, in the absence of proof to the contrary, preserve such priority as they appear to have by virtue of the Registration of Deeds Act 1935 and for that purpose may assume that all instruments registered under that Act have been executed or taken in good faith by the purchasers.

      (7) A power of sale arising from an instrument registered pursuant to this section shall be exercised, and the estate or interest sold shall be transferred, in accordance with this Act and not otherwise.

      (8) Foreclosure of a mortgage registered pursuant to this section shall be effected by an application under section 85 and an order made and registered pursuant to section 86, and not otherwise.

      (9) Where a person is aggrieved by a decision of the Recorder –

(a) to register or refrain from registering an instrument under subsection (1) or subsection (2); or

(b) on the priority of an instrument so registered –

      (10) Where –

(a) on the bringing of land under this Act, it appears to the Recorder that the land is subject to an equitable interest incapable of registration under this Act; or

(b) the Recorder is required under section 22 to record on a qualified title an equitable interest incapable of registration under this Act –

      (11) A caveat recorded pursuant to subsection (10) –

(a) may be withdrawn by the Recorder, upon proof to his satisfaction that the equitable interest no longer exists, or by the person protected by the caveat; and

(b) is otherwise subject to the same provisions as if it were a caveat lodged by that person.

      (12) Where–

(a) on the bringing of land under this Act, it appears to the Recorder that a judgment registered under the Registration of Deeds Act 1935 affects that land; or

(b) the Recorder is required under section 22 to record the interest of the judgment creditor under such a judgment–

      (13) A caveat recorded pursuant to subsection (12) –

(a) may be withdrawn by the Recorder upon proof to his satisfaction that the judgment has been satisfied, or by the person to whom the money payable under the judgment is payable or by his legal practitioner for him and on his behalf;

(b) unless sooner withdrawn or lapsed, lapses at the expiration of 5 years after the date of the first registration of the judgment, or the latest re-registration of the judgment before the land was brought under this Act, whichever is the later date; and

(c) is otherwise subject to the same provisions as if it were a caveat lodged by a judgment creditor.

      (14) On recording an estate or interest referred to in subsection (2), (10) or (12), it is sufficient compliance with this section if the Recorder refers to an instrument registered under the Registration of Deeds Act 1935 which records that estate or interest, whether it was created in that instrument or in another instrument registered in the Registry of Deeds.