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This is a Bill, not an Act. For current law, see the Acts databases.
South Australia
Real Property (Electronic Conveyancing) Amendment
Bill 2016
A BILL FOR
An Act to amend the
Real
Property Act 1886
; and to make related amendments to various Acts.
Contents
Part 2—Amendment of Real Property
Act 1886
4Amendment of section
3—Interpretation
6Amendment of section 21—Seal of
office
7Amendment of section 39—Caveat against
bringing land under Act
8Amendment of section 44—Proceedings under
caveat
9Amendment of section 45—Lapse of
caveat
10Amendment of section 49—Folios in
Register Book
11Amendment of section 51B—Registration of
title electronically etc
51CIssuing
certificates of title
14Amendment of section 53—Retention of
records
15Substitution of sections 54 and
55
55Non-compliant
documents may be registered or recorded
17Amendment of section 57—Effect of
registration or recording of instruments
19Amendment of section 59—Provision for
registration in case of death of person
20Amendment of section 64—Power of court
to direct cancellation of certificate or entry
21Amendment of section 65—Search
allowed
22Amendment of section 67—Instruments not
effectual until registration
24Amendment of section 69—Title of
registered proprietor indefeasible
25Amendment of section 71—Saving of
certain rights and powers
26Amendment of section 73—Certificate of
title
28Amendment of section 80E—Notice of
application
29Amendment of section 80H—Cancellation of
instruments
30Amendment of section 88—Entry as to
easement to be made on certificates of title
31Amendment of section 90A—Application of
sections 90B, 90C, 90D, 90E and 90F
32Amendment of section 93—Execution and
registration of Crown lease
36Repeal of sections 98 to 100
37Amendment of section 107—Transfer on
sale under writ, warrant, decree or order
38Repeal of sections 112 to 115
39Amendment of section 116—Leasing of
land
40Amendment of section 119—Lease for 1
year need not be registered
41Amendment of section 120—Lease may be
surrendered by separate instrument
121Registrar-General may record
surrender
44Amendment of section 129—Contents of
mortgage or encumbrance
45Amendment of section 129A—Standard terms
and conditions of mortgage or encumbrance
46Amendment of section 143—Discharge of
mortgages and encumbrances
147Cancellation of
registration of mortgage by Registrar-General
152AObligation of
transferee if mortgage transferred
49Amendment of section 153—Renewal or
extension of mortgage etc
50Insertion of sections 153A and
153B
153ARequirements
for renewal or extension of mortgage
52Amendment of section 154B—Effect of
priority notice
156Deposit of
duplicate or attested copy
54Amendment of section 157—Revocation of
power of attorney
163Insertion of the
words "with no survivorship" in instruments
56Amendment of section 164—Trustees may
authorise insertion of "with no survivorship"
57Amendment of section 165—Effect of
record
58Amendment of section 168—Survivors may
perform duties or transfer to new trustees
59Amendment of section
169—Disclaimers
60Amendment of section 171—Transmission to
be recorded in Register Book
61Amendment of section 173—Bankruptcy or
assignment of lessee
62Amendment of section
191—Caveats
63Insertion of sections 210A and
210B
210AValue of land
determined by market value
210BRegistrar-General may use Fund money
64Amendment of section 220—Powers of
Registrar-General
65Amendment of section
221—Reviews
66Amendment of section
223D—Caveats
67Amendment of section 223L—Operation of
corrections
68Amendment of
223LA—Interpretation
69Amendment of section 223LD—Application
for division
70Amendment of section
223LJ—Amalgamation
71Amendment of section
228—Declarations
73Amendment of section
230—Perjury
74Amendment of section 232—Certifying
incorrect documents
75Amendment of section 232A—Offences
relating to verification of identity requirements
232BOffences
relating to verification of authority
77Amendment of section 233—Other
offences
240BEffect of
client authorisation
240CTermination of
client authorisation
240DInstruments to
be executed by natural persons
240EClient
authorisation may be given by Crown or statutory corporation
240FLegal
practitioner and registered conveyancer must obtain authorisation
240GRetention of
client authorisation
79Amendment of section 246—Unregistered
instruments to confer claim to registration
80Amendment of section 247—Informal
documents may be registered
81Amendment of section 255—Confused
boundaries
82Amendment of section 267—Witnessing of
instruments
83Amendment of section 268—Improper
witnessing
84Amendment of section 270—Execution of
instrument by corporation
85Amendment of section 273—Authority to
register
273AAProof of
authority of unrepresented parties to enter into transaction
87Amendment of section 273A—Verification
of identity requirements
273BVerification
of authority guidelines
276AEvidence of
instruments lodged electronically
Part 1—Amendment of Legal Services
Commission Act 1977
1Amendment of section 18A—Legal
assistance costs may be secured by charge on land
Part 2—Amendment
of Registration of Deeds Act 1935
2Amendment of section 6—Registrar-General
of Deeds
Part 3—Amendment of Stamp Duties
Act 1923
3Amendment of section
2—Interpretation
Part 4—Amendment of Worker's Liens
Act 1893
4Amendment of section 10—Lien to be
registered
5Amendment of section 12—Notice to be
deemed caveat
Schedule 2—Related
amendments—duplicate certificates of title
Schedule 3—Transitional
provisions
1Registrar-General and Deputy Registrar-General
of Deeds
The Parliament of South Australia enacts as
follows:
This Act may be cited as the Real Property (Electronic Conveyancing)
Amendment Act 2016.
This Act will come into operation on a day to be fixed by
proclamation.
In this Act, a provision under a heading referring to the amendment of a
specified Act amends the Act so specified.
Part 2—Amendment
of Real Property
Act 1886
4—Amendment
of section 3—Interpretation
(1) Section 3(1)—delete "In the construction and for the purposes of
this Act, and in all instruments made or purporting to be made thereunder, the
following terms shall, so far as not inconsistent with the context or subject,
and except when such context or subject or the other provisions hereof require a
different construction, have the respective meanings hereinafter assigned to
them, that is to say" and substitute:
In this Act, unless the contrary intention appears
(2) Section 3(1)—delete "shall mean" wherever occurring and
substitute in each case:
means
(3) Section 3(1), definition of certificate—delete
"shall extend to and include all plans and entries thereon" and
substitute:
includes all plans and entries on the certificate of title
(4) Section 3(1)—after the definition of certificate
insert:
client authorisation—see section 240A;
(5) Section 3(1), definitions of dealing and document
of title—delete the definitions and substitute:
document includes a document in electronic form;
document of title means a document evidencing or relating to
the title of land not under the provisions of any of the Real Property
Acts;
(6) Section 3(1), definitions of instrument and
instrument of title—delete the definitions and
substitute:
execution includes execution by a legal practitioner or
registered conveyancer under a client authorisation;
instrument means any document capable of registration in the
Lands Titles Registration Office, or in respect of which a record is under an
Act directed, required or permitted to be made in the Register Book, and
includes a document that may be registered or recorded in the Register of Crown
Leases under section 93;
instrument of title means an instrument evidencing or
relating to the title to land under the provisions of any of the Real Property
Acts;
(7) Section 3(1), definition of land—delete "shall
extend to and include" and substitute:
includes
(8) Section 3(1)—after the definition of land
insert:
law practice has the same meaning as in the
Legal
Practitioners Act 1981
;
(9) Section 3(1), definition of registered
proprietor—delete the definition and substitute:
registered proprietor means a person appearing by the
Register Book to be the proprietor of an estate or interest in land registered
under any of the Real Property Acts;
(10) Section 3(1)—after the definition of servient
land insert:
sign a document or instrument—see subsection
(3);
(11) Section 3(1), definition of statutory
assignment—delete "creditors, executed under or in pursuance of
Division 6 of
The
Insolvent Act 1860
or any other Act" and substitute:
or her creditors, executed under an Act
(12) Section 3(1)—after the definition of Tribunal
insert:
verification of authority guidelines—see section
273B;
(13) Section 3—after subsection (2) insert:
(3) If a provision of this Act requires that an instrument or document be
signed by a person, the instrument or document must be—
(a) signed by the person personally; or
(b) signed personally on behalf of the person by another person under a
power of attorney.
5—Repeal
of sections 14 and 15
Sections 14 and 15—delete the sections
6—Amendment
of section 21—Seal of office
(1) Section 21—delete ", and having inscribed in the margin thereof
the words" and substitute:
and the words
(2) Section 21—delete "the imprint of"
(3) Section 21—delete "or by one of his deputies or by a delegate
referred to in section 18A of this Act or by the Acting Registrar-General"
and substitute:
or by a Deputy Registrar-General or a delegate referred to in section
18A
(4) Section 21—delete ", or Acting Registrar-General,"
7—Amendment
of section 39—Caveat against bringing land under Act
Section 39—delete "with the Registrar-General" and
substitute:
in the Lands Titles Registration Office
8—Amendment
of section 44—Proceedings under caveat
Section 44—delete "with the Registrar-General" and
substitute:
in the Lands Titles Registration Office
9—Amendment
of section 45—Lapse of caveat
(1) Section 45—delete "receipt thereof by the Registrar-General" and
substitute:
day on which the caveat is lodged
(2) Section 45—delete "his title to the estate or interest claimed
by him" and substitute:
his or her title to the estate or interest claimed
10—Amendment
of section 49—Folios in Register Book
Section 49—after "original certificate" insert:
of title
11—Amendment
of section 51B—Registration of title electronically
etc
Section 51B(e)—delete paragraph (e) and substitute:
(e) a requirement that a record relating to the land be made in the
Register Book or on the certificate of title for the land will be satisfied if
the Registrar-General makes the record by an electronic, electromagnetic,
optical or photographic process;
12—Substitution
of section 51C
Section 51C—delete the section and substitute:
51C—Issuing certificates of
title
(1) If title to land is registered under this Division, the
Registrar-General must issue a certificate of title setting out the registered
proprietor's estate or interest in the land and the encumbrances, liens or other
interests (if any) to which the estate or interest is subject.
(2) The Registrar-General may cancel a certificate of title and issue a
new certificate in its place—
(a) when registering an instrument dealing with or affecting the
registered proprietor's estate or interest in the land; or
(b) if, in the Registrar-General's opinion, a record should be made on the
title.
(3) Despite subsection (1), the Registrar-General may withhold the issue
of a certificate of title if in his or her opinion proper reasons exist for
doing so.
Section 52—delete the section and substitute:
52—Record of registration
On registering an instrument, the Registrar-General must make a record of
the date and time of registration and the record must be accepted in legal
proceedings as conclusive evidence of the date and time of
registration.
14—Amendment
of section 53—Retention of records
(1) Section 53—after "been" insert:
registered or
(2) Section 53—after "registered" insert:
or recorded,
15—Substitution
of sections 54 and 55
Sections 54 and 55—delete the sections and substitute:
54—Form of instruments
(1) Subject to this Act, the Registrar-General may not register or record
an instrument that purports to transfer or otherwise deal with or affect an
estate or interest in land under this Act unless the instrument complies with
this Act and is in the appropriate form.
(2) However, if an instrument contains a clear error the Registrar-General
may correct the error, and the instrument will then be valid and have effect as
if the error had not been made.
55—Non-compliant documents may be registered or
recorded
The Registrar-General may register or record a document that is not in the
appropriate form, or does not comply with a requirement under this Act
(including where the document is not signed or executed in a manner required
under this Act), despite the fact that the document does not comply with that
form or requirement, if the Registrar-General is satisfied—
(a) that the document substantially complies with the appropriate form or
requirements of this Act (as the case requires); and
(b) that loss or inconvenience would result if the document were not
registered or recorded.
Section 56—delete the section and substitute:
56—Priority of instruments
(1) Instruments must be registered or recorded in the order in which they
are presented to the Registrar-General for registration or recording.
(2) Instruments registered or recorded in respect of or affecting the same
estate or interest in land are entitled (despite any express, implied or
constructive notice) to priority according to the time of registration or
recording.
(3) However, if 2 or more instruments dealing with or affecting the same
estate or interest in land have been presented for registration or recording at
the same time, the Registrar-General may register or record those instruments in
the order that will give effect to the intentions of the parties as expressed
in, or apparent to the Registrar-General from, the instruments.
(4) Subsections (1), (2) and (3) operate subject to Part 13A.
(5) The
Registrar-General may, on application in the appropriate form, vary the order of
priority between 2 or more registered mortgages or encumbrances.
(6) An application under
subsection (5)
—
(a) must be made, with the consent of the mortgagor or encumbrancer, by
every holder of a mortgage or encumbrance that is to have its order of priority
varied; and
(b) if a registered mortgage or encumbrance is, by virtue of the proposed
variation of order of priority, to be postponed to a mortgage or encumbrance
over which it has had priority—must be made with the consent of the holder
of the mortgage or encumbrance that is to be postponed.
(7) The Registrar-General must record a variation of an order of priority
under
subsection (5)
on the certificate of title affected by the mortgages or
encumbrances.
17—Amendment
of section 57—Effect of registration or recording of
instruments
Section 57(3)—delete "who have signed the instrument"
Section 58—delete the section
19—Amendment
of section 59—Provision for registration in case of death of
person
(1) Section 59—after "his" insert:
or her
(2) Section 59—delete "signing" and substitute:
executing
(3) Section 59—after "registration" wherever occurring insert in
each case:
or recording
(4) Section 59—after its present contents as amended by this section
(now to be designated as subsection (1)) insert:
(2) If a person who has completed a client authorisation dies, an
instrument executed pursuant to the client authorisation after the person's
death is valid despite the person's death, and may be registered or recorded in
accordance with this Act.
20—Amendment
of section 64—Power of court to direct cancellation of certificate or
entry
(1) Section 64—delete ", caveat, memorial, or other entry" and
substitute:
or record
(2) Section 64—after "certificate" first occurring insert:
of title
21—Amendment
of section 65—Search allowed
Section 65—after subsection (1) insert:
(1a) If an instrument is lodged electronically, the Registrar-General may
determine that only the instrument as registered is to be accessed.
22—Amendment
of section 67—Instruments not effectual until
registration
Section 67—after "instrument" first occurring insert:
registrable under this Act
Section 68—delete the section
24—Amendment
of section 69—Title of registered proprietor
indefeasible
(1) Section 69—after "original certificate" insert:
of title
(2) Section 69(c)—after "certificate" insert:
of title
(3) Section 69(c)—delete "him" and substitute:
the registered proprietor
(4) Section 69(e)—after "certificates" insert:
of title
(5) Section 69(e)—delete "date" and substitute:
time
(6) Section 69(f)—after "certificate" wherever occurring
insert:
of title
(7) Section 69(i)—delete paragraph (i) and substitute:
(i) Failure of mortgagee to comply with verification
requirement
if—
(i) the person by or on whose behalf a mortgage was signed or executed as
mortgagor (the purported mortgagor) is not the registered
proprietor of land subject to the mortgage; and
(ii) the mortgagee failed to comply with a requirement under this Act or
the
Electronic
Conveyancing National Law (South Australia)
—
(A) to verify the purported mortgagor's identity or authority to enter
into the mortgage; or
(B) if the mortgage was transferred to the mortgagee—to establish
that the transferor complied with an obligation imposed under this Act on the
transferor, as mortgagee, to verify the identity of the purported mortgagor or
to verify the purported mortgagor's authority to enter into the
mortgage,
the mortgagee's interest under the mortgage is not indefeasible.
25—Amendment
of section 71—Saving of certain rights and powers
Section 71(d)—delete "shall have made a contract for the sale of land
or for any other dealing therewith" and substitute:
of land has made a contract for the sale of the land, or in relation to any
other matter affecting the land
26—Amendment
of section 73—Certificate of title
Section 73—after "certificate" insert:
of title
27—Substitution
of section 80B
Section 80B—delete the section and substitute:
80B—Application requirements
(1) An application under section 80A—
(a) must be in the appropriate form; and
(b) must contain a declaration signed by the applicant declaring that all
the statements in it are true.
(2) The applicant must, if required to do so by the Registrar-General,
provide the Registrar-General with a plan of survey of the land.
28—Amendment
of section 80E—Notice of application
(1) Section 80E(1)—delete "he shall cause a notice of the
application in a form fixed by him" and substitute:
, the Registrar-General must cause a notice of the application in the
appropriate form
(2) Section 80E(1)(a)—delete "he" and substitute:
the Registrar-General
29—Amendment
of section 80H—Cancellation of instruments
Section 80H—after "certificate" wherever occurring insert:
of title
30—Amendment
of section 88—Entry as to easement to be made on certificates of
title
(1) Section 88—after "certificates" insert:
of title
(2) Section 88—after "he" insert:
or she
31—Amendment
of section 90A—Application of sections 90B, 90C, 90D, 90E and
90F
Section 90A(1)—after "certificate" insert:
of title
32—Amendment
of section 93—Execution and registration of Crown
lease
Section 93(4)—delete "lodged"
Section 96—delete the section and substitute:
96—Transfers
(1) If—
(a) land is intended to be transferred; or
(b) a right-of-way or other easement is intended to be created or
transferred,
the transferor and the transferee must execute a transfer in the
appropriate form to be lodged for registration in the Lands Titles Registration
Office.
(2) A transfer must include—
(a) a description of the land intended to be dealt with (either by
reference to the certificate of title for the land or by the inclusion of a
description that clearly identifies the land); and
(b) an accurate statement of the estate or interest intended to be
transferred or created; and
(c) a statement indicating that—
(i) the transferee; or
(ii) if the transferee is a child or a mentally incapacitated person
(within the meaning of the
Guardianship
and Administration Act 1993
)—the transferee's guardian or the administrator of his or her
estate,
accepts the transfer or grant of the land, right-of-way or
easement.
(3) Acceptance under this section of a transfer on behalf of a child does
not affect any right of the child, or any person on the child's behalf, to avoid
or disclaim the transfer.
Section 96A—delete the section
35—Amendment
of section 97—Transferee of land subject to mortgage or encumbrance to
indemnify transferor
Section 97—delete "purporting to transfer" and substitute:
transferring
36—Repeal
of sections 98 to 100
Sections 98 to 100 (inclusive)—delete the sections
37—Amendment
of section 107—Transfer on sale under writ, warrant, decree or
order
Section 107—delete "by making an entry thereof in the Register Book,
and on such entry being made" and substitute:
, and on registration
38—Repeal
of sections 112 to 115
Sections 112 to 115 (inclusive)—delete the sections
39—Amendment
of section 116—Leasing of land
Section 116—after "registered proprietor" insert:
and the prospective lessee
40—Amendment
of section 119—Lease for 1 year need not be
registered
(1) Section 119—delete "registered dealing with land shall be" and
substitute:
registered or recorded instrument is
(2) Section 119—delete "shall be" second occurring and
substitute:
, will be
41—Amendment
of section 120—Lease may be surrendered by separate
instrument
Section 120(1)—delete "signed" and substitute:
executed
42—Substitution
of section 121
Section 121—delete the section and substitute:
121—Registrar-General may record
surrender
If a lessee has given written notice to the lessor, or the agent of the
lessor, of his or her intention to give up possession of land comprised in a
registered lease, the Registrar-General may, on application by the lessor in the
appropriate form, and on production of such evidence as the Registrar-General
may require that the lessee has abandoned the occupation of the land comprised
in the lease, make a record in the Register Book, and the record will then
operate as a surrender of the lease.
43—Substitution
of section 128
Section 128—delete the section and substitute:
128—Mortgage of land
(1) If land is to
be charged or made security in favour of a person, a mortgage must be executed
by the registered proprietor and the person.
(2) A mortgage lodged for registration in the Lands Titles Registration
Office must be in the appropriate form.
(3) Certification required under section 273(1) in relation to a mortgage
lodged for registration in the Lands Titles Registration Office must be provided
by the mortgagee.
(4) If certification under section 273(1) is provided by a mortgagee in
relation to a mortgage lodged for registration in the Lands Titles Registration
Office, the mortgage will be taken, for the purposes of this section, to have
been executed by the mortgagee.
(5) The Registrar-General may register a mortgage lodged for registration
in the Lands Titles Registration Office that is executed solely by the
mortgagee—
(a) if the Registrar-General is satisfied that a mortgage on the same
terms as the mortgage lodged for registration (the corresponding
mortgage) has been executed by the mortgagor and the mortgagee as
required under
subsection (1)
and retained by the mortgagee; and
(b) in a case where the mortgagee is not an ADI—if certification
required under section 273(1) in relation to the mortgage has been
provided—
(i) by a legal practitioner or a registered conveyancer; or
(ii) if the Registrar-General has given written approval for another
person to provide the certification—by that person.
(6) If the Registrar-General registers a mortgage that is executed solely
by the mortgagee, the corresponding mortgage—
(a) must be retained by the mortgagee until he or she ceases to be
mortgagee; and
(b) if the mortgage is transferred under section 150—must be given
to the transferee.
Maximum penalty: $5 000.
(7) If a mortgage is transferred under section 150, the corresponding
mortgage must be retained by the transferee until he or she ceases to be
mortgagee.
Maximum penalty: $5 000.
(8) This section only applies to land intended to be charged or made
security under this Act by the registration of a mortgage.
128A—Obligations of mortgagee
(1) A person must
not enter into a mortgage as mortgagee without first verifying the authority of
the intended mortgagor to enter into the mortgage in accordance with the
verification of authority guidelines.
Maximum penalty: $10 000 or imprisonment for 2 years.
(2) A mortgagee must retain a copy of any document used for the purpose of
fulfilling his or her obligations under
subsection (1)
for the period prescribed by the regulations.
Maximum penalty: $10 000 or imprisonment for 2 years.
(3) This section does not apply in relation to a mortgage that is not
intended to be lodged for registration in the Lands Titles Registration
Office.
128B—Encumbrance of land
(1) If land is to be charged with, or made security for, the payment of an
annuity, rent-charge or sum of money in favour of a person, an encumbrance in
the appropriate form must be executed by the registered proprietor and the
person.
(2) This section only applies to land intended to be charged or made
security under this Act by the registration of an encumbrance.
44—Amendment
of section 129—Contents of mortgage or encumbrance
(1) Section 129(1)—delete "such instrument shall" and
substitute:
mortgage or encumbrance to which section 128 or 128B applies must
(2) Section 129(1)—delete "shall" second and third
occurring
(3) Section 129(1)—delete ", and shall also contain or have endorsed
thereon a memorandum of all leases, mortgages, and encumbrances (if any)
affecting such land"
45—Amendment
of section 129A—Standard terms and conditions of mortgage or
encumbrance
(1) Section 129A(1)—delete "with the Registrar-General for filing in
his office" and substitute:
for filing in the Lands Titles Registration Office
(2) Section 129A(2)—delete "with the Registrar-General" and
substitute:
in the Lands Titles Registration Office
46—Amendment
of section 143—Discharge of mortgages and
encumbrances
(1) Section 143(1)—delete "a form approved by the Registrar-General"
and substitute:
the appropriate form
(2) Section 143—delete "signed" wherever occurring and substitute in
each case:
executed
(3) Section 143(3)—delete subsection (3)
After section 146 insert:
147—Cancellation of registration of mortgage by
Registrar-General
(1) The Registrar-General may cancel the registration of a mortgage
if—
(a) the person by
or on whose behalf the mortgage was signed or executed as mortgagor (the
purported mortgagor) is not the registered proprietor of land
subject to the mortgage; and
(b) the mortgagee—
(i) failed to comply with a requirement under this Act or the
Electronic
Conveyancing National Law (South Australia)
to verify the purported mortgagor's identity or authority to enter into
the mortgage; or
(ii) if the mortgage was transferred to the mortgagee—failed to
comply with a requirement under this Act to establish that the transferor
complied with an obligation imposed on the transferor, as mortgagee, to verify
the purported mortgagor's identity or authority to enter into the
mortgage.
(2) The Registrar-General may cancel the registration of a mortgage that
is executed solely by the mortgagee if the mortgagee is unable to produce, at
the request of the Registrar-General, the corresponding mortgage required to be
retained by the mortgagee under section 128.
After section 152 insert:
152A—Obligation of transferee if mortgage
transferred
(1) A person must
not execute a transfer of a mortgage, as transferee, without first taking
reasonable steps to establish that the transferor complied with any obligation
imposed under this Act on the transferor, as mortgagee, to verify the
mortgagor's identity or authority to enter into the mortgage.
Maximum penalty: $10 000 or imprisonment for 2 years.
(2) A transferee must retain a copy of any document used for the purpose
of fulfilling his or her obligations under
subsection (1)
for the period prescribed by the regulations.
Maximum penalty: $10 000 or imprisonment for 2 years.
49—Amendment
of section 153—Renewal or extension of mortgage etc
Section 153(2)—delete "with the Registrar-General" and
substitute:
in the Lands Titles Registration Office
50—Insertion
of sections 153A and 153B
After section 153 insert:
153A—Requirements for renewal or extension of
mortgage
(1) Certification required under section 273(1) in relation to an
instrument lodged for registration in the Lands Titles Registration Office
renewing or extending a mortgage must be provided by the mortgagee.
(2) If certification under section 273(1) is provided by a mortgagee in
relation to an instrument lodged for registration in the Lands Titles
Registration Office renewing or extending a mortgage, the instrument will be
taken, for the purposes of this section, to have been executed by the
mortgagee.
(3) The Registrar-General may register an instrument lodged for
registration in the Lands Titles Registration Office renewing or extending a
mortgage that is executed solely by the mortgagee—
(a) if the Registrar-General is satisfied that a document in the same
terms as the instrument lodged for registration (the corresponding
document) has been executed by the mortgagor and the mortgagee and
retained by the mortgagee; and
(b) in a case where the mortgagee is not an ADI—if certification
required under section 273(1) in relation to the instrument has been
provided—
(i) by a legal practitioner or a registered conveyancer; or
(ii) if the Registrar-General has given written approval for another
person to provide the certification—by that person.
(4) If the Registrar-General registers an instrument renewing or extending
a mortgage that is executed solely by the mortgagee, the corresponding
document—
(a) must be retained by the mortgagee until he or she ceases to be
mortgagee; and
(b) if the mortgage is transferred under section 150—must be given
to the transferee.
Maximum penalty: $5 000.
(5) If the mortgage is transferred under section 150, the corresponding
document must be retained by the transferee until he or she ceases to be
mortgagee.
Maximum penalty: $5 000.
153B—Obligations of mortgagee
(1) A mortgagee
under a registered mortgage must not execute an instrument renewing or extending
the mortgage without first verifying, in accordance with the verification of
authority guidelines, the mortgagor's authority to enter into the transaction
for the renewal or extension of the mortgage.
Maximum penalty: $10 000 or imprisonment for 2 years.
(2) A mortgagee must retain a copy of any document used for the purpose of
fulfilling his or her obligations under
subsection (1)
for the period prescribed by the regulations.
Maximum penalty: $10 000 or imprisonment for 2 years.
Section 154—delete the section
52—Amendment
of section 154B—Effect of priority notice
Section 154B(2)—after paragraph (v) insert:
(va) an application under this Act by a surviving joint proprietor to have
the death of a joint proprietor recorded in the Register Book;
53—Substitution
of section 156
Section 156—delete the section and substitute:
156—Deposit of duplicate or attested
copy
(1) A duplicate or an
attested copy of a power of attorney referred to in section 155 must be
deposited in the Lands Titles Registration Office.
(2) The date and time of depositing must be noted on the duplicate or
attested copy.
(3) The Registrar-General must, before the depositing of a power of
attorney under
subsection (1)
, compare the original power of attorney with the duplicate or attested
copy.
54—Amendment
of section 157—Revocation of power of attorney
(1) Section 157—delete "executing" and substitute:
signing
(2) Section 157—delete "when produced to him, and the day and hour
of its production" and substitute:
including the date and time the revocation is deposited in the Lands Titles
Registration Office
(3) Section 157—delete "his" and substitute:
the
55—Substitution
of section 163
Section 163—delete the section and substitute:
163—Insertion of the words "with no survivorship"
in instruments
If an instrument grants or transfers an estate or interest in land to 2 or
more persons as joint proprietors intended to be held by them as
trustees—
(a) a party to the instrument may use the words "with no survivorship" in
the instrument; and
(b) the Registrar-General must, if the words "with no survivorship" are
used in the instrument, record that fact in the Register Book and on a
conspicuous place on any certificate issued to the joint proprietors.
56—Amendment
of section 164—Trustees may authorise insertion of "with no
survivorship"
(1) Section 164—delete "by writing under their hands" and
substitute:
by executing the appropriate form
(2) Section 164—delete "enter" and substitute:
record
57—Amendment
of section 165—Effect of record
(1) Section 165—delete "entry" and substitute:
record
(2) Section 165—delete "entered" and substitute:
recorded
58—Amendment
of section 168—Survivors may perform duties or transfer to new
trustees
Section 168—delete "or remaining" and substitute:
and remaining
59—Amendment
of section 169—Disclaimers
(1) Section 169(1) and (2)—delete subsections (1) and (2) and
substitute:
(1) If a person (the disclaimant) (whether a trustee or not)
who is registered as proprietor of an estate or interest in land advises the
Registrar-General in writing that the registration occurred without the person's
consent, the Registrar-General must give written notice of that advice (the
disclaimer) to all other persons whose names appear on the
certificate of title and who, in the Registrar-General's opinion, may be
affected by the disclaimer.
(2) Section 169(2a)—delete "shall" and substitute:
must
(3) Section 169(4)—after "his" insert:
or her
(4) Section 169(4)(a) and (b)—delete paragraphs (a) and (b) and
substitute:
(a) the Registrar-General must not take steps to give effect to the
disclaimer except in accordance with an order of the Court under subsection (6);
and
(b) the Registrar-General must give the disclaimant written notice that he
or she does not intend to give effect to the disclaimer except in accordance
with such an order.
(5) Section 169(5) and (6)—delete subsections (5) and (6) and
substitute:
(5) If a notice of
objection is lodged on or before the day specified by the
Registrar-General—
(a) the Registrar-General must not take steps to give effect to the
disclaimer except in accordance with an order of the Court under
subsection (6)
; and
(b) the
Registrar-General must give the disclaimant written notice of the
objection.
(6) A disclaimant
who has received a notice under subsection (4)(b) or
(5)(b)
may apply to the Court for an order that the Registrar-General take such
action as is necessary to give effect to the disclaimer and on such an
application the Court may make any order it considers just.
(6) Section 169(7)—delete "shall release any" and
substitute:
releases a
(7) Section 169(7)—delete "he" and substitute:
the person
(8) Section 169(7)—after "his" insert:
or her
60—Amendment
of section 171—Transmission to be recorded in Register
Book
(1) Section 171—delete "in writing, under the hand of the Official
Receiver or trustee" and substitute:
in the appropriate form executed by the Official Receiver or
trustee
(2) Section 171—delete "shall enter in the Register Book a
memorandum notifying" and substitute:
make a record in the Register Book of
(3) Section 171—delete "entry" and substitute:
record
61—Amendment
of section 173—Bankruptcy or assignment of lessee
(1) Section 173(a)—delete paragraph (a) and substitute:
(a) If lease not subject to mortgage or encumbrance
if the lease is not mortgaged or encumbered under this Act, the
Registrar-General must, on the application in writing of the lessor (being a
lessor in possession of a statement, signed by the Official Receiver, or by the
trustee under the bankruptcy or assignment, certifying his or her refusal to
accept the lease), make a record in the Register Book of the refusal, and the
record will then operate as a surrender of the lease;
(2) Section 173—after its present contents as amended by this
section (now to be designated as subsection (1)) insert:
(2) A lessor, mortgagee or encumbrancee must retain a copy of any document
used for the purpose of fulfilling his or her obligations under subsection (1)
for the period prescribed by the regulations.
Maximum penalty: $10 000 or imprisonment for 2 years.
62—Amendment
of section 191—Caveats
(1) Section 191—after "his" wherever occurring insert:
or her
(2) Section 191—delete "forbidding the registration of any dealing
with such land, either absolutely or unless such dealing shall be expressed to
be subject to the claim of the caveator, or to any conditions conformable to law
expressed therein"
(3) Section 191(a)—delete paragraph (a) and substitute:
(a) Purpose of caveat
a caveat may—
(i) prohibit absolutely the registration or recording of any instrument
dealing with the land; or
(ii) provide that the registration or recording of an instrument dealing
with the land may only occur subject to the claim of the caveator, and provided
that, if any conditions are expressed in the caveat, the instrument complies
with those conditions;
(ab) Instrument subject to claim of caveator
if a caveator lodges a caveat providing that the registration or recording
of an instrument dealing with land will be subject to the claim of the caveator,
any instrument dealing with that land registered or recorded after the lodgement
of the caveat will be taken to be registered or recorded subject to that
claim;
(ac) Form of caveat
a caveat must—
(i) be in the appropriate form; and
(ii) be executed by the caveator or his or her agent; and
(iii) contain an address within South Australia to which notices may be
sent or at which proceedings may be served; and
(iv) contain information (if any) prescribed by the regulations for the
purposes of this paragraph;
(4) Section 191(c)—delete paragraph (c) and substitute:
(c) Not to register or record instruments contrary to
caveat
so long as a caveat remains in force, the Registrar-General must not,
contrary to the requirements of the caveat, register or record an instrument
affecting the land in respect of which the caveat has been lodged; except that
despite the receipt of a caveat, the Registrar-General must, subject to the
other provisions of this Act, proceed with and complete the registration or
recording of any instrument affecting the land produced for registration or
recording before the lodgement of the caveat in the Lands Titles Registration
Office;
(5) Section 191(h)—after "him" insert:
or her
(6) Section 191—after its present contents as amended by this
section (now to be designated as subsection (1)) insert:
(2) Despite subsection (1), the Registrar-General may, after a caveat has
been lodged in accordance with this section, register or record in respect of
the land to which the caveat applies—
(a) another caveat or instrument that has the effect of a caveat;
or
(b) another instrument of a kind prescribed by the regulations, unless the
registration or recording of that instrument is specifically prohibited by the
lodged caveat.
(3) To avoid doubt, a registered proprietor of land may lodge a caveat
under this section in respect of land for which he or she is the registered
proprietor.
(4) In this section—
record means make a record in the Register Book.
63—Insertion
of sections 210A and 210B
After section 210 insert:
210A—Value of land determined by market
value
In determining the compensation payable from the Assurance Fund for any
deprivation or loss under this Part, the value of the land must be determined
according to the market value of the land on the day on which the claimant
institutes proceedings against a person or the Registrar-General for
compensation.
210B—Registrar-General may use Fund
money
Money in the Assurance Fund may be applied for the purpose of meeting any
expenses incurred by the Registrar-General in connection with any claim for
compensation from the Assurance Fund.
64—Amendment
of section 220—Powers of Registrar-General
(1) Section 220—delete "he" wherever occurring and substitute in
each case:
the Registrar-General
(2) Section 220—after "him" wherever occurring insert:
or her
(3) Section 220—delete "powers, that is to say—" and
substitute:
powers:
(4) Section 220(a), (c), (e), (f) and (j)—after "his" wherever
occurring insert:
or her
(5) Section 220(a)—delete ", transmission, or other dealing is about
to be registered, issued or transacted" and substitute:
is about to be registered or recorded
(6) Section 220(a)—delete "issuing of such instrument, transmission,
or dealing" and substitute:
recording of such instrument
(7) Section 220(b)—delete paragraph (b) and substitute:
(b) To administer oaths
the Registrar-General may administer oaths, or, in lieu of administering an
oath, may require a person who is to be examined to make a declaration of the
truth of the statements to be made by the person;
(8) Section 220(d)(v)—after "registration" insert:
or recording in the Register Book
(9) Section 220(e)—after "registered" insert:
or recorded
(10) Section 220(g)—delete paragraph (g) and substitute:
(g) To enter caveats
the Registrar-General may enter caveats prohibiting the registration or
recording in the Register Book of an instrument—
(i) on behalf of the Crown; or
(ii) for the prevention of a fraud or an improper dealing; or
(iii) if it appears to the Registrar-General that an error has been made
by misdescription or otherwise in an instrument; or
(iv) for the protection of any person absent from the State, or under the
disability of infancy, coverture or mental incapacity; or
(v) if the Registrar-General considers it is in the public interest to do
so;
65—Amendment
of section 221—Reviews
Section 221—after subsection (1) insert:
(1a) If a person is dissatisfied with a decision of the Registrar-General
to cancel the registration of a mortgage under section 147, the person may seek
a review of the decision by the Tribunal.
66—Amendment
of section 223D—Caveats
Section 223D(1)—delete "with the Registrar-General" and
substitute:
in the Lands Titles Registration Office
67—Amendment
of section 223L—Operation of corrections
(1) Section 223L—after "registration" insert:
or recording
(2) Section 223L—after "registered" insert:
or recorded
68—Amendment
of 223LA—Interpretation
Section 223LA—after subsection (6) insert:
(7) An application or instrument under this Part may not be executed under
a client authorisation.
69—Amendment
of section 223LD—Application for division
Section 223LD(2)—delete subsection (2) and substitute:
(2) An application under this section must be—
(a) in the appropriate form; and
(b) signed by the applicant; and
(c) accompanied by the prescribed fee.
70—Amendment
of section 223LJ—Amalgamation
Section 223LJ(2)(a)—delete paragraph (a) and substitute:
(a) must be in the appropriate form; and
(ab) must be signed by the applicant; and
71—Amendment
of section 228—Declarations
Section 228—after "Justice of the Peace," insert:
registered conveyancer,
72—Substitution
of section 229
Section 229—delete the section and substitute:
229—Offences
If a person—
(a) forges or procures to be forged or assists in forging, or fraudulently
affixes or procures to be affixed or assists in affixing, the seal of the
Registrar-General, or an impression or part of an impression of the seal, to an
instrument or other document; or
(b) forges or procures to be forged or assists in forging the name,
signature or handwriting of—
(i) the Registrar-General; or
(ii) an officer in any case where the officer is by this Act expressly or
impliedly authorised to affix his or her signature; or
(c) fraudulently stamps or causes to be stamped an instrument or other
document with the seal of the Registrar-General or with a seal purporting to be
the seal of the Registrar-General; or
(d) forges or procures to be forged or assists in forging the name,
signature or handwriting of a person to an instrument or other document that is
under this Act expressly or impliedly authorised to be signed, certified or
executed by the person; or
(e) uses, with an intention to defraud a person—
(i) a document on which an impression or part of the impression of a seal
of the Registrar-General has been forged or fraudulently affixed knowing that
the seal is forged or fraudulently affixed; or
(ii) a document the signature to which has been forged knowing that the
signature has been forged,
the person is guilty of an offence.
Maximum penalty: $50 000 or imprisonment for 10 years.
73—Amendment
of section 230—Perjury
(1) Section 230—delete "instrument, dealing" and
substitute:
document or instrument, or
(2) Section 230, penalty provision—delete the penalty provision and
substitute:
Maximum penalty: $50 000 or imprisonment for 10 years.
74—Amendment
of section 232—Certifying incorrect documents
Section 232(1)—delete subsection (1) and substitute:
(1) If a person
falsely provides a certification under section 273(1), the person is guilty of
an offence.
Maximum penalty: $5 000 or imprisonment for 1 year.
(1a) In proceedings for an offence against
subsection (1)
, it is a defence to prove that—
(a) the defendant was not negligent; and
(b) the act or omission constituting the offence was attributable to an
honest mistake on the defendant's part.
(1b) If—
(a) a person falsely provides a certification under section 273(1);
and
(b) the person knows that the certification is false,
the person is guilty of an offence.
Maximum penalty: $10 000 or imprisonment for 2 years.
75—Amendment
of section 232A—Offences relating to verification of identity
requirements
(1) Section 232A(1), penalty provision—delete the penalty provision
and substitute:
Maximum penalty: $5 000 or imprisonment for 1 year.
(2) Section 232A(2), penalty provision—delete the penalty provision
and substitute:
Maximum penalty: $10 000 or imprisonment for 2 years.
(3) Section 232A(3), penalty provision—delete the penalty provision
and substitute:
Maximum penalty: $5 000 or imprisonment for 1 year.
(4) Section 232A(4), penalty provision—delete the penalty provision
and substitute:
Maximum penalty: $10 000 or imprisonment for 2 years.
(5) Section 232A(5), penalty provision—delete the penalty provision
and substitute:
Maximum penalty: $10 000 or imprisonment for 2 years.
(6) Section 232A(6), penalty provision—delete the penalty provision
and substitute:
Maximum penalty: $10 000 or imprisonment for 2 years.
(7) Section 232A—after subsection (6) insert:
(7) A certification provided under section 273(1) is not a statement for
the purposes of this section.
After section 232A insert:
232B—Offences relating to verification of
authority
(1) If a person falsely states that the authority of another person to
enter into a transaction, or to execute an instrument or document in connection
with a transaction, has been verified in accordance with the verification of
authority guidelines or the participation rules, the person is guilty of an
offence.
Maximum penalty: $5 000 or imprisonment for 1 year.
(2) If—
(a) a person falsely states that the authority of another person to enter
into a transaction, or to execute an instrument or document in connection with a
transaction, has been verified in accordance with the verification of authority
guidelines or the participation rules; and
(b) the person knows the statement is false,
the person is guilty of an offence.
Maximum penalty: $10 000 or imprisonment for 2 years.
(3) If a person makes a false or misleading statement in connection with
verifying the authority of the person, or another person, to enter into a
transaction, or to execute an instrument or document in connection with a
transaction, for the purposes of the verification of authority guidelines or the
participation rules, the person is guilty of an offence.
Maximum penalty: $5 000 or imprisonment for 1 year.
(4) If—
(a) a person makes a false or misleading statement in connection with
verifying the authority of the person, or another person, to enter into a
transaction, or to execute an instrument or document in connection with a
transaction, for the purposes of the verification of authority guidelines or the
participation rules; and
(b) the person knows the statement is false or misleading,
the person is guilty of an offence.
Maximum penalty: $10 000 or imprisonment for 2 years.
(5) A person who, in connection with verifying the authority of the
person, or another person, to enter into a transaction, or to execute an
instrument or document in connection with a transaction, for the purposes of the
verification of authority guidelines or the participation rules, produces a
document or record that he or she knows, or ought to know, is false or
misleading in a material particular, is guilty of an offence.
Maximum penalty: $10 000 or imprisonment for 2 years.
(6) A person who is required under the verification of authority
guidelines or the participation rules to retain a document or record produced in
connection with the verification of another person's authority to enter into a
transaction, or to execute an instrument or document in connection with a
transaction, must retain and safely and securely store the document or record,
or a clearly legible copy of the document or record, for the period during which
retention of the document or record is required under the requirements or rules
as in force when the document or record was produced.
Maximum penalty: $10 000 or imprisonment for 2 years.
(7) A certification provided under section 273(1) is not a statement for
the purposes of this section.
77—Amendment
of section 233—Other offences
(1) Section 233—delete ", the Acting Registrar-General," wherever
occurring
(2) Section 233(d)—after subparagraph (iv) insert:
or
(v) a client authorisation;
(3) Section 233—after paragraph (d) insert:
(da) fraudulently uses, assists in fraudulently using or is privy to the
fraudulent using of a digital signature within the meaning of the
Electronic
Conveyancing National Law (South Australia)
;
(4) Section 233(f)—delete "or dealing"
(5) Section 233—delete "indictable"
(6) Section 233, penalty provision—delete the penalty provision and
substitute:
Maximum penalty: $50 000 or imprisonment for 10 years.
After Part 20 insert:
Part 20A—Client
authorisation
240A—Client authorisation
For the purposes of this Act, a client authorisation is a
document—
(a) that is a client authorisation for the purposes of the
Electronic
Conveyancing National Law (South Australia)
; or
(b) —
(i) that is in the appropriate form; and
(ii) by which the client of a law practice, legal practitioner or
registered conveyancer authorises the practice, practitioner or conveyancer to
execute 1 or more instruments, or do 1 or more other things, on behalf of the
client in connection with a specified transaction or for a specified period of
time.
240B—Effect of client
authorisation
(1) A properly completed client authorisation has effect according to its
terms.
(2) If a client authorisation is properly completed, the requirements of
any other law of this State relating to the execution, signing, witnessing,
attestation or sealing of documents must be regarded as having been fully
satisfied.
(3) This section does not apply in relation to a client authorisation
under the
Electronic
Conveyancing National Law (South Australia)
.
Note—
Section 11 of the
Electronic
Conveyancing National Law (South Australia)
deals with the effect of client authorisations under the Law.
240C—Termination of client
authorisation
(1) A client authorisation terminates if a party to the authorisation
advises the other party by notice in writing that the authorisation is
terminated.
(2) Termination of a client authorisation has effect on receipt of the
termination notice, or on the date and time or happening of an event specified
in the termination notice, whichever occurs first.
240D—Instruments to be executed by natural
persons
If a law practice, or a registered conveyancer that is a body corporate, is
authorised under a client authorisation to execute instruments on behalf of a
person, the instruments must be executed by—
(a) in the case of a law practice—
(i) a person who is a legal practitioner associate of the law practice for
the purposes of the
Legal
Practitioners Act 1981
; or
(ii) a registered conveyancer who is an employee of the law practice;
or
(b) in the case of a registered conveyancer that is a body
corporate—a registered conveyancer who is a director or employee of the
conveyancer.
240E—Client authorisation may be given by Crown or
statutory corporation
The Crown (including an instrumentality of the Crown) or a statutory
corporation may provide for a representative to execute instruments on its
behalf by completing a client authorisation (irrespective of whether it has the
capacity to delegate its powers).
240F—Legal practitioner and registered conveyancer
must obtain authorisation
(1) If a legal
practitioner or registered conveyancer executes an instrument for the purposes
of this Act or the
Electronic
Conveyancing National Law (South Australia)
on behalf of a party to the instrument—
(a) other than in
accordance with a properly completed client authorisation; or
(b) in accordance
with a properly completed client authorisation but without
first—
(i) verifying the identity of the party in accordance with the
verification of identity requirements; and
(ii) verifying the authority of the party, in accordance with the
verification of authority guidelines, to be a party to the instruments
authorised by or under the client authorisation,
the practitioner or conveyancer is guilty of an offence.
Maximum penalty: Imprisonment for 2 years.
(2) Subsection (1) does not apply to a legal practitioner or registered
conveyancer—
(a) who executes a caveat as agent of a caveator otherwise than under a
client authorisation; or
(b) who lodges a priority notice on behalf of a person otherwise than
under a client authorisation; or
(c) in other prescribed circumstances.
(3) In proceedings for an offence against
subsection (1)(a)
or
(b)
, it is a defence to prove that—
(a) the defendant was not negligent; and
(b) the act or
omission constituting the offence was attributable to an honest mistake on the
defendant's part.
240G—Retention of client
authorisation
A client authorisation must be retained by the law practice, legal
practitioner or registered conveyancer for the period prescribed by the
regulations.
Maximum penalty: $10 000 or imprisonment for 2 years.
79—Amendment
of section 246—Unregistered instruments to confer claim to
registration
(1) Section 246—after "signed" insert:
or executed
(2) Section 246—after "him" insert:
or her
(3) Section 246—delete "he may deem" and substitute:
the Registrar-General considers
80—Amendment
of section 247—Informal documents may be registered
Section 247—after "signed" insert:
or executed
81—Amendment
of section 255—Confused boundaries
Section 255(6)—delete subsection (6) and substitute:
(6) An amendment made to a certificate of title under this section will be
taken to have been made prior to the registration or recording of any instrument
registered or recorded on the certificate.
82—Amendment
of section 267—Witnessing of instruments
Section 267(1)—delete subsection (1) and substitute:
(1) If a provision of this Act requires the signing of an instrument by or
on behalf of a party to the instrument, the signing of the instrument must be
witnessed by a person who either knows the person signing the instrument
personally or is satisfied as to his or her identity.
83—Amendment
of section 268—Improper witnessing
(1) Section 268—delete "witness" first occurring and
substitute:
person
(2) Section 268(a)—delete "executing" and substitute:
signing
(3) Section 268, penalty provision—delete the penalty provision and
substitute:
Maximum penalty: $5 000 or imprisonment for 1 year.
84—Amendment
of section 270—Execution of instrument by corporation
Section 270—delete "by affixing thereto its common seal, and such
execution shall be equivalent to signature" and substitute:
in any manner permitted by law
85—Amendment
of section 273—Authority to register
(1) Section 273(1)—delete subsection (1) and
substitute:
(1) Subject to
subsection (2), the Registrar-General must not register or record an
instrument purporting to deal with or affect land (including an instrument
lodged electronically under the
Electronic
Conveyancing National Law (South Australia)
) unless a prescribed person has, on behalf of each person required to
execute the instrument under this Act, provided certification in the appropriate
form—
(a) in relation to compliance with relevant legislation; and
(b) that the requirements of this Act in relation to verification of
identity, verification of authority and execution of documents have been
complied with in respect of the instrument; and
(c) that any document relevant to certification of the instrument that is
required to be retained under this Act has been so retained; and
(d) that there has been compliance with any other requirements prescribed
by regulation for the purposes of this section.
(2) Section 273(2)—delete subsection (2) and substitute:
(2) The
Registrar-General may, in his or her discretion, exempt a prescribed person, or
classes of instrument prescribed by regulation, from any or all of the
certification requirements under subsection (1).
(3) Section 273—after subsection (3) insert:
(4) In this section—
prescribed person means—
(a) a legal practitioner; or
(b) a registered conveyancer; or
(c) if the applicant is not represented by a legal practitioner or
registered conveyancer—the applicant; or
(d) if a party to an instrument is not represented by a legal practitioner
or registered conveyancer—that party; or
(e) if a provision of this Act requires or permits some other person to
provide certification under subsection (1)—that person.
After section 273 insert:
273AA—Proof of authority of unrepresented parties
to enter into transaction
(1) If a party to an
instrument is not represented by a legal practitioner or registered conveyancer,
the Registrar-General must not register or record the instrument in the Register
Book or the Register of Crown Leases unless the party has satisfied the
Registrar-General that he or she is authorised to enter into the transaction to
which the instrument relates.
(2) A party to an instrument who is not represented by a legal
practitioner or registered conveyancer referred to in
subsection (1)
must retain a copy of any document used for the purpose of fulfilling his
or her obligations under
subsection (1)
for the period prescribed by the regulations.
Maximum penalty: $10 000 or imprisonment for 2 years.
(3) In this section—
party to an instrument has the
same meaning as in section 273A.
87—Amendment
of section 273A—Verification of identity requirements
(1) Section 273A(1)—delete subsection (1) and substitute:
(1) The identity of—
(a) a party to an instrument; or
(b) a person executing a document for the purposes of this Act (other than
a legal practitioner or registered conveyancer acting under a client
authorisation),
must be verified in accordance with any prescribed requirements (the
verification of identity requirements).
(2) Section 273A(4)(b)—delete ", specified in the requirements, not
exceeding 10 years" and substitute:
specified in the requirements
(3) Section 273A—after subsection (5) insert:
(5a) In civil proceedings (other than review proceedings under this Act)
where it is alleged that a person failed to comply with a requirement under the
verification of identity requirements, that person bears the onus of proving his
or her compliance with the requirement.
(4) Section 273A(6)—delete subsection (6) and substitute:
(6) In this section—
party to an instrument includes a person executing an
instrument on behalf of another (whether pursuant to a power of attorney or
otherwise) but does not include a legal practitioner or registered conveyancer
acting under a client authorisation.
After section 273A insert:
273B—Verification of authority
guidelines
(1) The
Registrar-General may issue guidelines (the verification of authority
guidelines) to be observed by a party to a transaction, or the legal
practitioner or registered conveyancer representing a party to a transaction,
where the party, practitioner or conveyancer is required under this Act to
verify his or her authority, or the authority of a party to the transaction, to
enter into the transaction or to execute an instrument or document in connection
with the transaction.
(2) The Registrar-General may from time to time cancel, vary or replace
the verification of authority guidelines.
(3) The Registrar-General must ensure that current and superseded versions
of the verification of authority guidelines are publicly available on a website
maintained by the Registrar-General and in any other manner the
Registrar-General considers appropriate.
(4) A reference in this Act to the verification of authority guidelines,
in relation to an instrument or other document, is a reference to the
verification of authority guidelines in force under this section at the time the
authority of a party to enter into a transaction is verified (or purportedly
verified).
After section 276 insert:
276A—Evidence of instruments lodged
electronically
(1) A document
certified by the Registrar-General that reproduces the contents of an instrument
lodged electronically under this Act or the
Electronic
Conveyancing National Law (South Australia)
(whether in its registered or recorded form or in some other form) must be
accepted in legal proceedings as evidence of that instrument.
(2) A document referred to in
subsection (1)
that purports to have been certified by the Registrar-General must be
taken in legal proceedings, in the absence of proof to the contrary, to have
been so certified.
90—Substitution
of section 277
Section 277—delete the section and substitute:
277—Regulations
(1) The Governor
may make such regulations as are contemplated by this Act or as are necessary or
convenient for the purposes of this Act.
(2) Without limiting
the generality of
subsection (1)
, the regulations may—
(a) provide that a document or record required to be produced or retained
by a person under this Act must be retained by the person for a particular
period; and
(b) provide for and prescribe fees and charges payable for or in respect
of the following:
(i) the doing of an act or thing under this Act or the
Electronic
Conveyancing National Law (South Australia)
;
(ii) doing an act or thing in respect of the Register Book or the Register
of Crown Leases required under any other Act;
(A) the Register Book or the Register of Crown Leases (whether
electronically or in any other manner); or
(B) a document deposited or registered in the Lands Titles Registration
Office,
for information recorded under this or any other Act;
(iv) obtaining copies of material searched for under
subparagraph (iii)
;
(v) charges recoverable by solicitors and registered conveyancers for
transacting business under the provisions of this Act;
(vi) the provision of lodgement support services by the
Registrar-General.
(3) Fees or charges prescribed under
subsection (2)
for registering a transfer of land may be based on the consideration for
the transfer, the value of the land transferred or any other basis whether or
not the fee or charge exceeds the administrative cost of registering the
transfer.
(4) A regulation prescribing fees or charges for registering a transfer of
land may also provide that the Registrar-General may recover an amount
(including interest) as a debt if the assessed value of the transferred land is
increased as a result of a reassessment by the Commissioner under the
Taxation
Administration Act 1996
.
(5) Regulations under this Act—
(a) may be of general application or limited application; and
(b) may make different provision according to the matters or circumstances
to which they are expressed to apply; and
(c) may exempt, or empower the Registrar-General to exempt, persons or
classes of persons, or instruments or classes of instruments, from the
application of this Act or provisions of this Act, absolutely or subject to
conditions.
(6) The Governor
may, by regulation, make provisions of a saving or transitional nature
consequent on the amendment of this Act by another Act.
(7) A provision of
a regulation made under
subsection (6)
may, if the regulation so provides, take effect from the commencement of
the amendment or from a later day.
(8) To the extent to
which a provision takes effect under
subsection (7)
from a day earlier than the day of the regulation's publication in the
Gazette, the provision does not operate to the disadvantage of a person
by—
(a) decreasing the person's rights; or
(b) imposing liabilities on the person.
(9) Without
limiting the operation of
subsections
(6)
,
(7)
or
(8)
, the regulations may, for transitional purposes—
(a) provide that this Act or specified provisions of this Act will not
apply in relation to a particular person or thing, or a class of person or
thing, until a specified day; or
(b) modify the application of this Act or provisions of this Act in
relation to a particular person or thing, or a class of person or thing, until a
specified day.
Part 1—Amendment of Legal Services
Commission Act 1977
1—Amendment
of section 18A—Legal assistance costs may be secured by charge on
land
Section 18A(5)—delete "attested by a witness and"
Part 2—Amendment of Registration of Deeds
Act 1935
2—Amendment
of section 6—Registrar-General of Deeds
Section 6(1)—delete subsection (1) and substitute:
(1) The Registrar-General under the
Real
Property Act 1886
is the Registrar-General of Deeds.
(1a) A deputy of the Registrar-General under the
Real
Property Act 1886
is a Deputy Registrar-General of Deeds (a deputy
registrar).
Part 3—Amendment of Stamp Duties
Act 1923
3—Amendment
of section 2—Interpretation
(1) Section 2(1)—after the definition of stamp
insert:
stamp duty identification number means a stamp duty
identification number as determined by the Commissioner;
(2) Section 2—after subsection (11) insert:
(12) If an instrument under the
Real
Property Act 1886
is executed by a legal practitioner or a registered conveyancer on behalf
of a person under a client authorisation (within the meaning of that Act), the
instrument will be taken for the purposes of this Act to have been executed by
the person who provided the authorisation.
(13) If a dutiable instrument to be registered or recorded under the
Real
Property Act 1886
is in electronic form, a requirement under this Act for such an instrument
to be duly stamped will be taken to be satisfied if a stamp duty identification
number appears on the instrument.
Part 4—Amendment of Worker's Liens
Act 1893
4—Amendment
of section 10—Lien to be registered
Section 10(3)—delete "in the prescribed form and accompanied by the
prescribed fee, which notice shall be signed by such person and attested" and
substitute:
executed by the person in a form approved by the Registrar-General,
containing the prescribed information and accompanied by the prescribed
fee
5—Amendment
of section 12—Notice to be deemed caveat
Section 12—delete "forbidding the registration of any dealing with
the estate or interest sought to be affected by the lien, unless such dealing
shall be expressed to be subject to the claim of the person lodging the notice"
and substitute:
for the purposes of section 191 of that Act
Schedule 2—Related
amendments—duplicate certificates of title
The Acts specified in this Schedule are amended in the manner indicated in
the Schedule.
|
Provision amended |
How amended |
|
|---|---|---|
|
|
|
|
Section 48
Delete the section
Section 49
Delete "original"
Section 51A
Delete "an original certificate" wherever occurring and substitute in each
case:
a certificate
Section 51A(2)
Delete "the original certificate" and substitute:
the certificate
Section 51B(b)
Delete paragraph (b) and substitute:
(b) the term certificate or certificate of
title will be taken to mean the records maintained by the
Registrar-General under this section relating to the land;
Section 51B(c) and (d)
Delete paragraphs (c) and (d)
Section 51B(f)
Delete paragraph (f)
Sections 60 to 63 (inclusive)
Delete the sections
Section 64
Delete "notwithstanding that the relevant duplicate certificate has not
been produced to him,"
Section 66
Delete the section
Section 69
Delete "original"
Section 73
Delete the section
Section 74
Delete "such persons may receive one certificate for the entirety, or each
may receive a separate certificate for his undivided share and in each
case"
Section 75
Delete "his" wherever occurring and substitute:
the
Section 75
Delete "may receive"
Section 78
Delete "and the delivering up of such instruments of title,"
Section 78
Delete "duplicates delivered up, and the originals" and
substitute:
certificates
Sections 79 and 80
Delete the sections
Section 84
Delete "original certificate of such land, and also upon the duplicate
certificate" and substitute:
certificate of such land
Section 85
Delete "original"
Section 88
Delete "original and duplicate"
Section 93(1)
Delete subsection (1) and substitute:
(1) The parties to a Crown lease must execute a lease which must be lodged
in the Lands Titles Registration Office for inclusion or recording in the
Register of Crown Leases.
Section 103
Delete "to him"
Section 103
Delete "shall (without requiring the production of the duplicate
certificate)" and substitute:
must
Section 103
Delete "original"
Section 105
Delete "his" and substitute:
the party's
Section 105
Delete "original"
Section 107
Delete "original"
Section 108
Delete the section
Section 120(2)
Delete "and may, if in the Registrar-General's opinion it is necessary or
desirable to do so, endorse the surrender on the duplicate
certificate"
Section 145
Delete "; and the Registrar-General shall make a similar entry on the
duplicate certificate of the encumbered land when produced to him or her for
that purpose"
Section 148A(1)
Delete ", and shall make a similar entry on the duplicate
certificate"
Section 148A(3)
Delete subsection (3)
Section 149
Delete the section
Section 164
Delete "upon the original" and substitute:
on the
Section 169(3)
Delete subsection (3) and substitute:
(3) If no notice of objection is lodged and the Registrar-General is
satisfied that the disclaimant was registered without the disclaimant's consent,
the Registrar-General must give effect to the disclaimer by making such entries,
alterations and corrections in the Register Book as are necessary for that
purpose, and by cancelling any certificate which it is necessary to
cancel.
Section 176
Delete "the duplicate certificate and"
Section 177
Delete "and on the duplicate certificate of title for the land"
Section 184
Delete "the duplicate certificate of title for the land and upon such
entry" and substitute:
such entry being made
Section 220(c)
Delete paragraph (c)
Section 220(m)
Delete paragraph (m)
Section 223G
Delete the section and substitute:
223G—Amendment of title
Every amendment made under this Part may be made by the Registrar-General
making the required alterations on the certificate of title.
Section 223H
Delete the section and substitute:
223H—Notice of amendment of title
On amending a certificate under this Part, the Registrar-General must give
notice in writing of the amendment to the registered proprietor of, and to all
persons appearing in the Register Book to have an interest in, the land included
in that certificate, and the Registrar-General may, in his or her discretion,
issue a new certificate with an amended description.
Section 223LJ(2)(c)
Delete paragraph (c)
Section 233(d)(i)
Delete paragraph (i) and substitute:
(i) a certificate of title filed in the Register Book; or
Section 248
Delete ", and the duplicate certificate, or other instrument of title shall
be delivered up and the like memorials or other entries made thereon"
Section 254
After "him" insert:
or her
Section 254
Delete "in his office"
Section 254
Delete ", and require the registered proprietor, or any mortgagee or
encumbrancee, who may hold the same, to deliver up the duplicate certificate for
the purpose of being cancelled or corrected as the case may require"
Section 255(4)(b)
Delete "original certificate of title, or may issue a new certificate of
title, without the production of any duplicate or" and substitute:
certificate of title, or may issue a new certificate of title, without the
production of any
Section 255(4)(c)
Delete paragraph (c)
Section 255(5)
Delete subsection (5)
Associations
Incorporation Act 1985
|
|
|
|
Section 20(4)(b)
Delete "duplicate instruments of title and other"
Section 22(7)(b)
Delete "duplicate instruments of title and other"
Section 42(4)(b)
Delete "duplicate instruments of title and other"
Community
Housing Providers (National Law) (South Australia) Act 2013
|
|
|
|
Section 23(13)
Delete "and, notwithstanding the
Real
Property Act 1886
|
, production of the duplicate certificate of title will not be required
(but, if the duplicate certificate of title is not produced, the
Registrar-General will cancel the existing certificate of title and issue a new
certificate in the name of the transferee)" |
||
|
Schedule 3, clause 17(1)(b) |
Delete "duplicate instruments of title and other" |
|
|
|
|
|
Section 14(4)(c)
Delete paragraph (c)
Section 52(4)(b)
Delete paragraph (b)
Section 58(3)(c)
Delete paragraph (c)
Section 58(7)
Delete "and for that purpose may require the community corporation to
produce the duplicate certificate of title for the existing common
property"
Section 60(3)(b)
Delete paragraph (b)
Section 65(c)
Delete paragraph (c)
Section 67(2)(e)
Delete paragraph (e)
Section 69(5)(b)
Delete "original"
Section 80(1)(d)
Delete paragraph (d)
Section 154(1)
Delete ", and, notwithstanding the
Real
Property Act 1886
|
, the Registrar-General may, if he or she thinks fit, dispense with the
requirement that a duplicate certificate of title be produced for the purpose of
any dealing to which the person's consent is taken to have been given if the
duplicate certificate of title would normally be produced by that
person" |
||
|
Schedule, clause 2(4)(b) |
Delete "original" |
|
|
Schedule, clause 3(4)(b) |
Delete "original" |
|
|
|
|
|
Section 70K(16)
Delete subsection (16)
Crown
Rates and Taxes Recovery Act 1945
|
|
|
|
Section 13(6)
Delete subsection (6)
Emergency
Services Funding Act 1998
|
|
|
|
Section 20(14)
Delete subsection (14)
|
|
|
|
Section 11(2)(c)(i)
Delete ", duplicate certificate of title"
Free
Presbyterian Church (Vesting of Property) Act 2001
|
|
|
|
Section 8(3)(b)
Delete "duplicate certificate or other"
Ground
Water (Qualco-Sunlands) Control Act 2000
|
|
|
|
Section 59(14)
Delete subsection (14)
Health
Services Charitable Gifts Act 2011
|
|
|
|
Section 27(1)
Delete "and on production of duplicate certificates of title (if any)
relating to the land,"
|
|
|
|
Section 27AC(3)
Delete ", and also upon the original of such certificate, and also upon the
duplicate certificate of title when brought to him for that purpose or when the
same is lodged in the Lands Titles Registration Office for the purpose of any
dealing with the land comprised therein"
Section 27AC(4)
Delete subsection (4)
Section 27AD(b)
Delete ", duplicate certificates of title"
Section 27AE(1)
Delete ", duplicate certificates of title"
|
|
|
|
Section 41(3)
Delete ", and also upon the duplicate certificate of title when brought to
him for that purpose or when the same is lodged in the Lands Titles Registration
Office for the purpose of any dealing with the land comprised therein"
Section 41(4)
Delete subsection (4)
|
|
|
|
Section 5(5)(b)
Delete "duplicate instruments of title and other"
Section 13(9)(b)
Delete "duplicate instruments of title and other"
Section 52(14)
Delete subsection (14)
Lands
for Public Purposes Acquisition Act 1914
|
|
|
|
Section 11(1)
Delete ", duplicate certificate of title,"
Section 11(4)
Delete "or duplicate certificate of title"
|
|
|
|
Section 184(16)
Delete subsection (16)
Section 185(5)
Delete subsection (5)
Section 243(2)(b)(i)
Delete subparagraph (i)
Schedule 1B, clause 9(7)
Delete subclause (7)
|
|
|
|
Section 33I(14)
Delete subsection (14)
Natural
Gas Authority Act 1967
|
|
|
|
Section 14(1)(b)
Delete "(and on any duplicate of the certificate or lease produced to the
Registrar-General)"
Natural
Resources Management Act 2004
|
|
|
|
Section 113(16)
Delete subsection (16)
Renmark
Irrigation Trust Act 2009
|
|
|
|
Section 54(14)
Delete subsection (14)
Roads
(Opening and Closing) Act 1991
|
|
|
|
Section 3(1), definition of document of title
Delete "or a duplicate or copy of such a certificate, lease or
agreement"
Section 30(2)(b)
Delete "(including any document of title)"
South
Australian Water Corporation Act 1994
|
|
|
|
Section 18D(17)
Delete subsection (17)
St.
John (Discharge of Trusts) Act 1997
|
|
|
|
Section 4(2)(b)(ii)
Delete "duplicate certificate of title or"
|
|
|
|
Section 12(3)(a)
Delete paragraph (a)
Section 12(3)(e)
Delete "original"
Section 12(6)
Delete "original"
Section 16(2)(d)(ii)
Delete subparagraph (ii)
Section 17(3)(a)
Delete paragraph (a)
Section 17(5)
Delete subsection (5) and substitute:
(5) If the ERD Court makes an order for the cancellation of a strata plan,
the strata corporation must lodge with the Registrar-General a copy of the order
together with an application to note the order.
Section 17(7a)
Delete "original"
Section 17A(1)
Delete ", and, notwithstanding the
Real
Property Act 1886
|
, the Registrar-General may, if he or she thinks fit, dispense with the
requirement that a duplicate certificate of title be produced for the purpose of
any dealing to which the person's consent is taken to have been given if the
duplicate certificate of title would normally be produced by that
person" |
||
|
Section 38(3)(a) |
Delete paragraph (a) |
|
|
|
|
|
Section 89(2)
Delete "the duplicate certificate or other" and substitute:
an
|
|
|
|
Section 130(14)
Delete subsection (14)
|
|
|
|
Section 7B(1)(a)
Delete "certificates of title" and substitute:
documents
Schedule 3—Transitional
provisions
1—Registrar-General
and Deputy Registrar-General of Deeds
Sections 5(1) and 6 of the
Registration
of Deeds Act 1935
as in force immediately before the commencement of
Schedule 1
Part 2
of this Act continue to apply to a person appointed to be the
Registrar-General of Deeds or a Deputy Registrar-General of Deeds before the
commencement of that Part.