Western Australian Consolidated Acts

TRANSFER OF LAND ACT 1893

TABLE OF PROVISIONS

           Long Title

   1.      Short title  
   2.      Repeal and savings  
   3.      Laws inconsistent not to apply to land under this Act  
   4.      Terms used in this Act  
   4A.     Certain provisions of this Act not to apply to Crown land  

   PART I -- Officers  

   5.      Commissioner of Titles  
   6.      Deputy Commissioner of Titles  
   7.      Registrar of Titles  
   7A.     Offices of Commissioner and Registrar may be held by one person  
   8.      Other designations  
   8A.     Designating statutory officers, generally  
   9.      Certain signatures to be judicially noticed  
   10.     Seal  
   11.     Powers of Assistant Registrar  
   12.     Commissioner and Examiner of Titles not to practise  
   13.     Oaths of office  
   14.     Digital signatures, entries etc. in parts of Register or in graphics that are in digital medium  
   15.     Delegation by Commissioner  
   15A.    Delegation by Registrar  
   16.     Rules relating to surveyors  

   PART II -- Bringing land under the Act  

   20.     Lands alienated in fee before commencement of The Transfer of Land Act 1874 may be brought under this Act  
   20A.    Evidence and restrictions of requisitions  
   21.     How application to be dealt with when no dealing has been registered  
   22.     How application to be dealt with when dealing has been registered  
   23.     Notice of application to bring land under this Act and rescission of previous directions on undue delay  
   24.     Person claiming title by possession to post notice of application on land  
   25.     Land to be brought under this Act unless caveat received  
   26.     Land occupied may be brought under this Act by different description from that in title on special application  
   27.     Applications to bring land under this Act or to amend certificate may be granted as to land occupied under but not described in title deeds or certificate  
   28.     Title may be given to excess of land occupied under Crown grant over land described in Crown grant  
   29.     Excess of land may be apportioned between different owners or proprietors  
   30.     Parties interested may lodge caveat  
   31.     If caveat received, proceedings suspended  
   32.     Caveat to lapse unless proceedings taken within one month  
   33.     Judge may require production of title deeds in support of application to bring land under this Act  
   34.     Applicant may withdraw application  
   35.     Documents of title  
   36.     Subsisting lease to be endorsed and returned  
   37.     Additional evidence to be scheduled  
   38.     Certificate of title to issue in name of deceased  
   39.     Registration of leaseholds  
   42.     Production of lease may be dispensed with on bringing land under this Act  
   43.     Certain memorials to be sufficient evidence of conveyances in fees  
   45.     Commissioner may direct Registrar to bring land under this Act  
   46.     Title to land sold under order or decree may be deemed sufficient  
   47.     Formalities of order  

   PART III -- Certificates of titles and registration  

   48.     Register  
   48A.    Certificates of title  
   48B.    Duplicate certificates of title  
   48C.    Symbols  
   49.     One certificate may be created for lands not contiguous  
   50.     Area of land need not be mentioned in certificate  
   52.     Registration of certificates of title and instruments  
   53.     Priority of registration of instruments  
   54.     Incorporation of terms etc. of certain memoranda  
   55.     Trusts  
   56.     Memorandum to state certain particulars  
   57.     Memoranda of instruments and endorsements  
   58.     Instruments not effectual until registered  
   59.     Notations as to legal disability of proprietor  
   60.     Joint tenants and tenants in common  
   61.     Effect of insertion of the words “no survivorship”  
   62.     Notice to be published before effect is given to order  
   63.     Certificate to be conclusive evidence of title  
   63A.    Certificates may contain statement of easements  
   64.     Certificate conclusive evidence as to title to easements  
   65.     Effect of short forms etc. for easements  
   65A.    Memorandum of easement  
   66A.    No separate certificate for easement  
   67.     Certificate conclusive evidence in suit for specific performance or action for damages  
   68.     Estate of registered proprietor paramount  
   69.     Easements existing under deed or writing and certain conditions to be noted as encumbrances  
   70.     Reversions expectant on leases  
   70A.    Record on title of factors affecting use and enjoyment of land  
   71.     Upon surrender of existing certificates single certificate may be obtained  
   71A.    Proprietor may apply for separate certificate  
   71B.    Power to issue new duplicate certificate of title  
   72.     History of dealings to be preserved  
   74.     Duplicate may be dispensed with in certain cases  
   74A.    Creation of substitute certificate of title  
   74B.    Issue of subsequent duplicate certificates of title  
   75.     Where duplicate certificate lost, destroyed or obliterated  
   76.     Person to whom duplicate certificate or instrument of title has been issued in error or who wrongfully retains such instrument may be summoned  
   77.     Party appearing may be examined on oath  
   78.     Registrar may call in duplicate certificate etc.  
   79.     Person who fails to bring in duplicate certificate etc. may be brought before court or judge  
   81.     Words of inheritance or succession to be implied  

   PART IIIA -- Crown leases  

   81A.    Registration of Crown leases  
   81B.    Registration of Crown leases granted before commencement of this Act  
   81C.    Effect of registration  
   81D.    Registration of transfer etc.  
   81E.    No foreclosure without consent of Minister for Lands  
   81F.    Entry of forfeiture  
   81G.    Crown lessee to be deemed of full age  
   81H.    Certain provisions of this Act and Land Act 1898 not to apply to Crown leases  
   81I.    Mortgage of Crown lease to be transferred to Crown grant  

   PART IIIB -- Registration and recording in relation to Crown land  

           Division 1 -- General  

   81J.    Application of this Part  
   81K.    Terms used in this Part  
   81L.    Creation and registration of certificates of Crown land title and qualified certificates of Crown land title  
   81M.    Lodging etc. of management orders  
   81N.    Crown surveys  
   81O.    No duplicate certificates of Crown land title or duplicate qualified certificates of Crown land title to be issued  
   81P.    Endorsements on certificates of Crown land title and qualified certificates of Crown land title  
   81Q.    Leases and subleases of Crown land  
   81R.    Registration of profits à prendre  
   81RA.   Other encumbrances in respect of fee simple in Crown land  
   81S.    Prerequisites to registration of dealings in respect of Crown land  
   81T.    Registered proprietors etc. protected against ejectment except in certain cases referred to in Land Administration Act 1997  

           Division 2 -- Transitional  

   81U.    Registrar may accept for registration signed and stamped duplicate original documents  
   81V.    Minister for Lands may apply to Registrar for certificates of Crown land title, qualified certificates of Crown land title etc.  
   81W.    Procedure when applications referred to Commissioner  
   81X.    Procedure on lodging of caveats etc.  
   81Y.    Action to be taken by Registrar in consequence of granting applications made under section 81V(1)(a)  
   81Z.    Action to be taken by Registrar in consequence of granting applications made under section 81V(1)(b)  
   81ZA.   Procedure for registration of interests for which no certificate of Crown land title or qualified certificate of Crown land title exists  
   81ZB.   Matters relating to qualified certificates of Crown land title  
   81ZC.   Interests in Crown land not registered within transitional period void as against registered interests in Crown land etc.  
   81ZD.   Registrar may convert Crown leases into leases registered under section 81Q  

   PART IV -- Dealings with land  

           Division 1 -- Transfers  

   82.     Transfers  
   83.     Transfer to include right to sue thereunder  
   84.     Proprietor may vest estate jointly in himself and others without limiting any use etc.  
   85.     Instruments when signed and registered have efficacy of deeds  
   86.     Duplicate certificate to be delivered to Registrar on transfer  
   87.     Total transfer by endorsement on paper title or by entering transferee’s name on digital title  
   88.     Transferee of land subject to encumbrance to indemnify transferor  
   88A.    Memorial of easements to be registered  

           Division 2 -- Leases and subleases  

   91.     Leases of land  
   92.     Covenants to be implied in every lease against lessee  
   93.     Powers to be implied in lessor  
   94.     Short forms of covenants by lessees  
   95.     Covenant to be implied on transfer of lease  
   96.     Recovery of possession by lessors to be entered in Register  
   97.     Mortgagee of interest of bankrupt lessee may apply to be entered as transferee of lease and on default lessor may apply  
   98.     Lease may be surrendered by endorsement by lessee with concurrence of lessor  
   99.     Lessee may sublet  
   100.    Registration of subleases  
   102.    Provisions as to leases applicable to subleases  
   103.    Covenants to be implied in sublease  
   104.    Determination of lease or sublease by re-entry to be entered in Register  

           Division 2A -- Carbon rights and carbon covenants  

   104A.   Terms used in this Division  
   104B.   Registration of carbon right form  
   104C.   Extension of carbon right  
   104D.   Transfer of carbon right  
   104E.   Mortgage of carbon right  
   104F.   Surrender of carbon right  
   104G.   Registration of carbon covenant form  
   104H.   Extension of carbon covenant  
   104I.   Variation of carbon covenant  
   104J.   Transfer of benefits under carbon covenant  
   104K.   Mortgage of carbon covenant  
   104L.   Surrender of carbon covenant  

           Division 2B -- Tree plantation agreements and plantation interests  

   104M.   Terms used in this Division  
   104N.   Registration of tree plantation agreement  
   104O.   Extension of plantation interest  
   104P.   Variation of agreement  
   104Q.   Transfer of plantation interests  
   104R.   Mortgage of plantation interests  
   104S.   Surrender of plantation interests  

           Division 3 -- Mortgages and annuities  

   105.    Mortgages and charges  
   105A.   Extension of mortgage, charge or lease  
   106.    Mortgage or charge not to operate as transfer; and default procedures  
   107.    Written demand equivalent to written notice  
   108.    Power to sell  
   109.    Application of purchase money  
   110.    Registrar to give effect to sale by mortgagee or annuitant  
   111.    Remedies by mortgagee or annuitant  
   112.    Further remedies by mortgagee or annuitant  
   112A.   Abolition of power of distress  
   113.    Covenants to be implied in every mortgage  
   114.    Mortgagee or annuitant of leasehold entering into possession to become liable to lessor  
   115.    Short form of covenant by mortgagor to insure  
   116.    Certain qualities of legal estate annexed to mortgage  
   117.    Mortgagor not to sue at law for same cause of action without written consent  
   118.    Application of moneys obtained from actions by mortgagor for waste of or damage to mortgaged lands  
   119.    Application of moneys obtained from actions by mortgagor in other cases  
   120.    Application of moneys obtained in proceedings by mortgagee  
   121.    Mortgagee may apply for order for foreclosure  
   122.    Application for foreclosure to be advertised  
   123.    Discharge of mortgages and annuities  
   124.    Satisfaction of mortgages executed prior to land being registered and remedies of mortgagees  
   125.    Entry of satisfaction of annuity  
   126.    Mortgage money may be paid to Treasurer if mortgagee absent from Western Australia and mortgage discharged  
   127.    First mortgagee to produce title for registration of subsequent instrument  
   128.    Title to land brought under this Act subject to mortgage to be held good in favour of mortgagee or his purchaser  
   128A.   Another mortgagee may tender payment  

           Division 3A -- Restrictive covenants and the modification, discharge and enforcement of restrictive covenants and easements  

   129A.   Creation of restrictive covenants  
   129B.   Discharge and modification of restrictive covenants  
   129BA.  Restrictive covenants benefiting local governments and public authorities  
   129BB.  Discharge and modification of section 129BA covenants  
   129C.   Judge may vary restriction or easement  

           Division 4 -- Miscellaneous  

   130.    Seal of corporation substitute for signature  
   131.    Implied covenants and powers may be modified or negatived  
   133.    Property (seizure and sale) order, registration of etc.  
   134.    Purchaser from registered proprietor not to be affected by notice  
   135.    Transferee of tenant in tail may be registered for larger estate which tenant in tail can confer  
   136.    Registrar to furnish plan showing land dealt with where memorandum on certificate does not describe such land  

   PART IVA -- Creation of easements and restrictive covenants by notations on subdivision plans and diagrams  

   136A.   Meaning of “plan”  
   136B.   Application of this Part  
   136C.   Notation of easements on subdivision plans  
   136D.   Notation of restrictive covenants on subdivision plans  
   136E.   Consent of certain persons required to creation of easements and restrictive covenants  
   136F.   When easements and restrictive covenants under this Part have effect  
   136G.   Easements and restrictive covenants under this Part may be effective for specified term only  
   136H.   Easements and restrictive covenants under this Part may both burden and benefit land of same proprietor  
   136I.   Recordings in Register  
   136J.   Discharge and modification of easements and restrictive covenants under this Part  

   PART V -- Caveats  

   136K.   Meaning of “section 138A caveat” and application of this PART  
   137.    Lodgment of caveat where land already under this Act  
   138.    Consequences of lodgment of caveat  
   138A.   Caveats to which sections 138B to 138D apply  
   138B.   Certain caveats may lapse unless justified by caveator  
   138C.   Powers of Supreme Court  
   138D.   Restrictions on further lodgment of certain caveats  
   139.    No entry to be made in Register affecting land in respect to which caveat continues in force  
   140.    Compensation for lodging caveat without reasonable cause  
   141.    Endorsing certificates as to, and sending copies of, caveats  
   141A.   Removal of caveat where interest protected has ceased to exist  
   142.    Caveat on behalf of beneficiary under will or settlement does not bar registration in certain cases  

   PART VI -- Powers of attorney and attestation of instruments  

   143.    Powers of attorney and revocation thereof  
   144.    Existing and future powers of attorney when filed available  
   145.    Witnessing of instruments etc.  

   PART VII -- Search certificates and stay orders  

   146.    Persons desiring information as to whether proprietor is free to deal may obtain such certificate  
   147.    Person applying for search certificate entitled to inspect certificate of title  
   148.    Person proposing to deal with proprietor may obtain stay of registration for 48 hours if title is clear  
   149.    Instrument effecting proposed dealing entitled to priority if lodged within 48 hours  
   150.    Instrument to be received and to have priority according to ordinary course if proposed dealing not lodged for registration  

   PART VIII -- Surveys, plans, parcels and boundaries  

   151.    Crown survey boundaries as marked on ground are true boundaries  
   152.    Crown grant or lease conveys land within survey boundaries  
   153.    Aliquot parts of Crown section having excess of area  
   153A.   Land included in certificate by error in survey may be vested in proprietor  
   154.    How survey boundaries may be proved in absence of survey marks  
   155.    Margin of error allowed in description of boundaries  
   156.    Commissioner may require special survey of land  
   157.    Commissioner may require accuracy of survey to be verified  
   158.    Commissioner may disregard minute errors of dimensions  
   159.    Excess of land may be apportioned between different owners or proprietors  
   160.    Commissioner may determine doubtful boundaries of old subdivisions  
   161.    Plan of scheme to be made  
   162.    Notice to be advertised and given to registered owners and proprietors  
   163.    Subdivisional plan to be verified and kept as approved lodged map of subdivision  
   164.    Notice of subdivision and plan to be published in Government Gazette  
   165.    Expense of survey, how paid  
   166.    Application for new certificates of title on subdivision of land  
   166A.   Sketch plans in respect of subdivision of Crown land  
   166B.   Sketch plans of internal interests  
   167.    Number of allotment on plan of subdivision sufficient description for purposes of dealing  
   167A.   Right of way on subdivision to be easement appurtenant  
   168.    Abuttals may be used in description of land in certificate  
   169.    Objects which may constitute abuttals  

   PART IX -- Amendment of certificates and amendment or replacement of graphics  

   169A.   Only Minister for Lands may alter areas, boundaries or positions of parcels of Crown land  
   170.    Proprietor may apply for amendment of certificate to make boundaries coincide with land occupied under certificate  
   171.    Proprietor may apply to have other certificates amended where inconsistent with description of land in his certificate and occupied by him  
   172.    Form of application  
   173.    How application to be dealt with  
   174.    Special notice to be given to certain persons interested in adjoining land affected by application  
   175.    Notice of application to be published and posted in office  
   176.    Person objecting to application being granted may lodge caveat  
   177.    Application may be granted although other certificates may be affected  
   178.    On granting application other certificates, relevant graphics and duplicate certificates may be amended, replaced or reissued  

   PART X -- Special powers and duties of the Commissioner and Registrar  

   180.    Power to Commissioner to require explanation and production of documents  
   181.    Regulations  
   182.    Registrar to carry out order vesting trust estate  
   183.    Power to Commissioner to make vesting order in cases of completed purchase  
   184.    Certain encumbrances which have ceased to affect title may be removed from Register  
   187.    Entry to be made in Register of appointment of executor, administrator or Public Trustee  
   188.    Powers of Registrar  
   189.    Registrar may correct apparent errors in instruments without direction of Commissioner  
   190.    Money received by Registrar  
   191.    Fees to be paid under this Act  
   192.    Defective instrument or document lodged if not amended on notice within time allowed by Registrar may be rejected  
   193.    Power to state case for Supreme Court  

   PART XI -- Restrictions on, and recovery of, payments of compensation by State  

   195.    Moneys paid by State under section 201 may be recovered  
   196.    State not liable in certain cases  

   PART XII -- Actions and other remedies  

   198.    Officers not to be liable for acts done bona fide  
   199.    Registered proprietor protected against ejectment except in certain cases  
   200.    Powers of court to direct cancellation of certificate or entry in certain cases  
   201.    Compensation of party deprived of land  
   202.    Purchasers protected  
   203.    Proprietor may summon Commissioner or Registrar to show cause if dissatisfied  
   204.    Cost of summons and proceedings under section 203 to be in discretion of court  
   205.    Actions for recovery of damages may in certain cases be brought against Registrar as nominal defendant  
   206.    Persons sustaining loss by inaccuracy in Crown survey may recover damages against State  
   207.    Actions against State in certain other cases  
   208.    Persons claiming may before action brought apply to Commissioner in writing for compensation  
   209.    Notice of action to be served  
   210.    Payment of damages etc. from Consolidated Account  
   211.    Limitation of actions  
   212.    Rules of Supreme Court to apply and same right of appeal as in ordinary actions  
   213.    Obligation to make discovery not excluded  

   PART XIII -- Offences  

   214.    Certain fraudulent acts are offences  
   214A.   Failure to lodge duplicate certificate of title or Crown lease  
   214B.   Penalty  

   PART XIV -- Miscellaneous  

   219.    Application on transmission  
   220.    Application, how dealt with  
   221.    Remainder-man or reversioner may apply to be registered  
   222.    Person claiming title under statute of limitations may apply to be registered  
   223.    Application to be referred to Commissioner  
   223A.   Caveat against application  
   227.    Registration of survivor of joint proprietors  
   228.    Proprietors and transferees for time being to stand in place of previous owners  
   229.    Proprietor to allow his name to be used by person interested  
   229A.   Removal of easement not used or enjoyed for 20 years  
   229B.   Cancellation of easement entered on certificate affected  
   230.    Abandonment of easement may be presumed after 20 years’ adverse possession  
   231.    Where encroachment on road has existed 20 years, title may be given  
   232.    Receipt for documents lodged  
   233.    Pending action or suit not to affect dealings with land under this Act  
   234.    Devolution on bankruptcy or insolvency  
   235.    Until assignee registered bankruptcy of proprietor not to affect dealings  
   236.    Tenant in tail  
   237.    Conditions of sale in Twenty-sixth Schedule to apply in absence of other conditions and may be adopted by reference  
   238.    Forms may be modified  
   239.    Inspection of Register and related documents; obtaining copies and print-outs  
   239B.   Evidentiary documents as to current and historical matters  
   240.    Service of notices  
   240A.   Notification of change of address etc.  
   242.    Registration of dispositions off Register  
   243.    Revesting of land held by Crown in fee simple as Crown land  
           FIRST SCHEDULE
           SECOND SCHEDULE
           THIRD SCHEDULE
           FOURTH SCHEDULE
           NINTH SCHEDULE
           SCHEDULE 9A  
           TWELFTH SCHEDULE
           Compilation table