TRANSFER OF LAND ACT 1893 - SECT 68

TRANSFER OF LAND ACT 1893 - SECT 68

68 .         Estate of registered proprietor paramount

        (1)         Notwithstanding the existence in any other person of any estate or interest whether derived by grant or transfer of the fee simple from the Crown or otherwise which but for this Act might be held to be paramount or to have priority the proprietor of land or of any estate or interest in land under the operation of this Act shall except in case of fraud hold the same subject to such encumbrances as may be notified on the registered certificate of title for the land; but absolutely free from all other encumbrances whatsoever except the estate or interest of a proprietor claiming the same land under a prior registered certificate of title and except as regards any portion of land that may by wrong description of parcels or boundaries be included in the certificate of title or instrument evidencing the title of such proprietor not being a purchaser for valuable consideration or deriving from or through such a purchaser.

        (1A)         Despite subsection (1), the land which shall be included in any certificate of title or registered instrument shall be deemed to be subject to the reservations exceptions conditions and powers (if any) contained in the grant thereof or transfer of the fee simple or otherwise and to any rights subsisting under any adverse possession of such land and to any public rights of way and to any easements acquired by enjoyment or user or subsisting over or upon or affecting such land and to any unpaid rates and to any mining lease or licence issued under the provisions of any statute and to any prior unregistered lease or agreement for lease or for letting for a term not exceeding 5 years to a tenant in actual possession notwithstanding the same respectively may not be specially notified as encumbrances on such certificate or instrument but no option of purchase or renewal in any such lease or agreement shall be valid as against a subsequent registered interest unless such lease or agreement is registered or protected by caveat.

        (2)         Notwithstanding the existence in any other person of any interest in Crown land which but for this Act might be held to be paramount or to have priority, the holder of an interest in Crown land shall, except in case of fraud, hold that interest —

            (a)         subject to such encumbrances as may be notified on the registered certificate of Crown land title for the Crown land; but

            (b)         absolutely free from all other encumbrances whatsoever, except —

                  (i)         the interest of a proprietor claiming the same Crown land under a prior registered certificate of Crown land title; and

                  (ii)         as regards any portion of Crown land that may by wrong description of parcels or boundaries be included in the certificate of Crown land title or other instrument evidencing the Crown title of that proprietor, not being a purchaser for valuable consideration or deriving from or through such a purchaser.

        (3)         Notwithstanding subsection (2), the Crown land included in any registered certificate of Crown land title, registered qualified certificate of Crown land title or registered instrument shall be deemed to be subject to —

            (a)         any reservation, exception, condition, covenant or power to which the relevant interest in Crown land is subject; and

            (b)         any public right of way; and

            (c)         any easement subsisting over or upon or affecting that Crown land; and

            (d)         any unpaid rates; and

            (e)         any mining tenement within the meaning of the Mining Act 1978 ; and

            (f)         any prior unregistered lease or agreement for lease or for letting for a term not exceeding 5 years to a tenant in actual possession,

                even if it is, or they are, not specially notified as an encumbrance on that certificate of Crown land title or instrument, but no option of purchase or renewal of any lease or agreement referred to in paragraph (f) shall be valid as against a subsequent registered interest unless that lease or agreement is registered or protected by a caveat.

        (4)         In subsections (2) and (3), a reference to a certificate of Crown land title or registered instrument does not include a reference to a qualified certificate of Crown land title.

        [Section 68 amended: No. 17 of 1950 s. 16; No. 81 of 1996 s. 40; No. 31 of 1997 s. 99; No. 19 of 2010 s. 51.]