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LOCAL GOVERNMENT ACT 1995 - SCHEDULE 6.3

LOCAL GOVERNMENT ACT 1995 - SCHEDULE 6.3

[Section 6.68(3)]

1 .         Conditions for exercise of power of sale of land

        (1)         A local government is not to exercise the power of sale until it has caused notice requiring payment of the rates or service charges owing in respect of the land —

            (a)         to be served on the owner of the land by being given to him or her or by being sent by certified mail to the address, if any, appearing in a register kept under the Transfer of Land Act 1893 or in a memorial or record kept under the Registration of Deeds Act 1856 relating to the land or by being advertised under subclause (3); and

            (b)         to be served on such other persons as appear by the records which relate to estates and interests in land to have an estate or interest in the land, by being given to, or by being sent by certified mail to, each of them at their address, if any, appearing in the record, or by being so advertised; and

            (c)         to be published on the local government’s official website and kept on the website for not less than 35 days.

        (2)         The local government is to cause the notice requiring payment —

            (a)         to be in writing and be dated and signed by the CEO; and

            (b)         to specify the land in respect of which the rates or service charges are owing; and

            (c)         to specify the total amounts owing in respect of rates or service charges of which payment is required; and

            (d)         to include a statement that in default of payment of the amounts specified in the notice, the land will be offered for sale by public auction after the expiration of 3 months from the date of the notice at a time appointed by the local government; and

            (e)         to be in, or substantially in, the form prescribed unless subclause (3) applies.

        (3)         If in the case of a person required by this clause to be served, no sufficient address appears in a register kept under the Transfer of Land Act 1893 or in a memorial or record kept under the Registration of Deeds Act 1856 , the local government is to cause the notice requiring payment in, or substantially in, the prescribed form to be served on that person by local public notice and may include in that notice land belonging to more than one owner.

        (4)         The local government is to appoint a time not less than 3 months and not more than 12 months from the service of the notices required by this clause as the time at which the land may be offered for sale by public auction.

        [Clause 1 amended: No. 81 of 1996 s. 153(1); No. 60 of 2006 s. 144(4); No. 16 of 2019 s. 73.]

2 .         Advertisement for sale

        (1)         The local government is to give Statewide public notice of the sale —

            (a)         in, or substantially in, the prescribed form; and

            (b)         by such other means, if any, as the local government considers is necessary or desirable.

        (2)         In the Statewide public notice the local government —

            (a)         may include land owned by more than one owner; and

            (b)         is to so describe the land and improvements, if any, on the land, as to identify the land and to convey to persons likely to be interested in the sale the condition of the land and improvements.

        (3)         The local government is to deliver a memorial of the Statewide public notice to the Registrar of Titles or to the Registrar of Deeds and Transfers, as the case requires, who is to register the memorial and endorse or note the title and land register or record, in respect of each piece of land comprised in the memorial.

        (4)         When the memorial is registered the Registrar of Titles, or the Registrar of Deeds and Transfers, as the case requires, is prohibited from registering and from accepting for registration an instrument affecting the land without the consent of the local government, until the land ceases under section 6.69 or clause 7 to be bound by this subclause but that prohibition does not extend beyond 12 months from the day on which the memorial is so delivered.

        [Clause 2 amended: No. 47 of 2011 s. 16.]

3 .         Power of sale

                The power of sale includes —

            (a)         power to sell the whole or part of the land either together or in lots —

                  (i)         by public auction; or

                  (ii)         by private contract, if having been offered for sale by public auction, it has not been sold,

                subject to such terms and conditions with respect to the payment of the purchase money or any other matter, including power to fix a reserve price, as the local government thinks fit; and

            (b)         power to vary a contract of sale by agreement with the other party to the contract, and to buy in at auction; and

            (c)         power to rescind a contract for sale on default by the other party to the contract, and to resell without being answerable for loss occasioned by the rescission and resale; and

            (d)         power to make such thoroughfares and to grant such easements of right-of-way or drainage over the land as the circumstances of the case require and the local government thinks fit.

4 .         Power of local government to transfer or convey land

        (1)         A local government exercising the power of sale of any land has power —

            (a)         by transfer, where the land is under the Transfer of Land Act 1893 ; and

            (b)         by deed or transfer, where the land is not under that Act,

                to transfer or convey to the purchaser an indefeasible estate in fee simple subject only to the encumbrances specified in section 6.75(1)(c), (d) or (e).

        (2)         The Registrar of Titles or the Registrar of Deeds and Transfers may register a transfer or conveyance of land by a local government under this clause if the transfer is in the approved form and the conveyance is acceptable to the Registrar of Deeds and Transfers.

        [(3)         deleted]

        [Clause 4 amended: No. 81 of 1996 s. 153(1); No. 47 of 2011 s. 16; No. 21 of 2022 s. 60.]

5 .         Application of purchase money

                Where a local government has exercised its power of sale it is required to apply the proceeds of sale in the following manner —

            (a)         firstly — in payment of the costs, charges and expenses properly incurred by the local government in or incidental to the sale or attempted sale or the exercise of any other power conferred upon the local government by Part 6, Division 6, Subdivision 6 or this Schedule; and

            (b)         secondly — in payment of —

                  (i)         unpaid rates or service charges, for the time being due to or imposed by the local government in respect of the land; and

                  (ii)         costs and other money, if any, due to or imposed in favour of the Crown in right of the State or a department, agency, or instrumentality of the Crown in right of the State; and

                  (iii)         other amounts due to the local government under this or another written law,

                in respect of the land at the time of the sale, but where the payments required by paragraph (a) to be made have been made, and the balance of the money then remaining is not sufficient for the payment in full of the items required by this paragraph to be made, the local government is to distribute the balance of the money so remaining, between the Crown, the department, the agency, the instrumentality, and the local government, pro rata with the amounts of their claims, respectively, unless the Governor, or the Minister controlling the department, agency, instrumentality as the case requires, consents to rank after the local government; and

            (c)         thirdly — in payment of the vendor’s costs and expenses of and incidental to conferring upon the purchaser a title to the land; and

            (d)         fourthly — in or towards the discharge of a charge, if any, on the land under a written law relating to the construction of drains and fittings to connect the land with a sewer; and

            (e)         fifthly — in or towards the discharge of other mortgages and encumbrances on the land, both registered and unregistered, according to their priorities at law so far as they can be ascertained by the local government; and

            (f)         sixthly — in payment of the residue of the money within 12 months after the local government has received it to —

                  (i)         the person who would, but for the proceedings for sale, be entitled to the land; or

                  (ii)         if there are several persons who would be so entitled, then to those persons in the proportions in which they would be respectively so entitled,

                but if —

                        (I)         a person is entitled to an estate in reversion or remainder in the land, the local government may pay that residue into the Supreme Court under section 99 of the Trustees Act 1962 ; and

        (II)         within that period of 12 months the local government has not paid the residue to the person entitled to it, it is to, on the expiration of that period, pay that residue into the Supreme Court under that section of that Act; and

        (III)         at the expiration of 6 years after the money is so paid into the Supreme Court, proceedings have not been commenced or are not pending and the Court has not made an order to the contrary the money is to be paid into the Consolidated Account.

        [Clause 5 amended: No. 77 of 2006 s. 4.]

6 .         Receipt by local government sufficient discharge

                A receipt in writing issued by the local government is a sufficient discharge for money paid to the local government on the exercise by it of the power of sale and a person paying it is not bound to inquire whether money remains due to the local government for rates or service charges or otherwise in respect of the land sold.

7 .         If sale not completed within 12 months after commencement, proceedings lapse

        (1)         If at the expiration of 12 months from the date the land is offered for sale pursuant to the power of sale a contract for sale has not been entered into the proceedings for the exercise of the power of sale cease to have effect.

        (2)         Where, under subclause (1), proceedings have ceased to have effect, the local government may again commence proceedings for sale of the land and the provisions of this Schedule relating to the procedure for the exercise of the power of sale again apply.

8 .         Transfer of land to Crown or local government under s. 6.71

        (1)         The Registrar of Titles or the Registrar of Deeds and Transfers may register a transfer or conveyance of land by a local government under section 6.71, or by the Minister under section 6.74(3), if the transfer is in the approved form or the conveyance is acceptable to the Registrar of Deeds and Transfers.

        [(2)         deleted]

        (3)         Notwithstanding the provisions of the Transfer of Land Act 1893 , or any other written law —

            (a)         upon the registration of a transfer or conveyance pursuant to the power referred to in section 6.64(1)(c), the land becomes, and may be dealt with as, Crown land free from mortgages, leases, tenancies, encumbrances, charges and reservations of every kind; and

            (b)         the registration of the transfer or conveyance pursuant to the power referred to in section 6.64(1)(d) vests in a local government an indefeasible estate in fee simple in the land subject only to the encumbrances specified in section 6.75(1)(c), (d) or (e).

        (4)         If the land referred to in subclause 3(a) is under the Transfer of Land Act 1893 , the Registrar of Titles is to cancel the certificate of title to the land and remove the land from the operation of that Act and thereafter the land may be dealt with as if it had never been alienated from the Crown.

        (5)         Duty under the Duties Act 2008 is not chargeable on the transfer or conveyance.

        (6)         The procedure for the exercise of the powers referred to in sections 6.71, 6.74 and 6.75 is to be as prescribed.

        [Clause 8 amended: No. 81 of 1996 s. 153(1); No. 49 of 2004 s. 64(2) and (3); No. 12 of 2008 Sch. 1 cl. 21; No. 47 of 2011 s. 16; No. 21 of 2022 s. 61.]