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This is a Bill, not an Act. For current law, see the Acts databases.
South Australia
Statutes Amendment (Real Property) Bill
2008
A BILL FOR
An Act to amend the Bills of Sale Act 1886, the Community
Titles Act 1996, the Real Property Act 1886, the Stock
Mortgages and Wool Liens Act 1924 and the Strata Titles
Act 1988.
Contents
Part 1—Preliminary
1 Short
title
2 Commencement
3 Amendment provisions
Part 2—Amendment of Bills of Sale
Act 1886
4 Insertion of section
11A
11A Standard terms and conditions in bills of
sale
Part 3—Amendment of Community Titles
Act 1996
5 Amendment of section
3—Interpretation
6 Amendment of section 13—Staged development and
development contracts
7 Amendment of section
14—Application
8 Insertion of section
15A
15A Application may deal with statutory
encumbrances
9 Amendment of section 16—Consents to
application
10 Amendment of section 23—Vesting etc of lots etc on
deposit of plan
11 Amendment of section 30—Scheme
description
12 Amendment of section 31—Amendment of scheme
description
13 Amendment of section 34—By-laws
14 Amendment of
section 39—Variation of by-laws
15 Amendment of section
47—Development contracts
16 Amendment of section 50—Variation or
termination of development contract
17 Amendment of section
52—Application for amendment
18 Amendment of section 53—Status of
application for amendment of plan
19 Insertion of section
53A
53A Application may deal with statutory
encumbrances
20 Amendment of section 55—Vesting etc of interests
on amendment of plan
21 Amendment of section 58—Amendment of plan
pursuant to development contract
22 Amendment of section
60—Amalgamation of plans
23 Amendment of section 65—Application
to the Registrar-General
24 Amendment of section 67—Application to the
Court
25 Amendment of section 69—Cancellation
26 Amendment of
section 100—Administrator of community corporation's
affairs
27 Amendment of section 126—Keeping of records
28 Amendment
of section 142— Resolution of disputes etc
29 Insertion of section
145A
145A Registrar-General may rely on
certificates
30 Amendment of section 149—Relief where unanimous
or special resolution required
31 Insertion of section
149A
149A Applications to Magistrates
Court
32 Insertion of section 151A
151A Liability of
community corporation in respect of certification by officer
Part 4—Amendment of Real Property
Act 1886
33 Amendment of section
3—Interpretation
34 Amendment of section 19—Solicitor not to
engage in private practice
35 Amendment of section 56—Priority of
instruments
36 Amendment of section 58—Where 2 or more instruments
presented at same time
37 Insertion of section
78A
78A Issue of new certificate on alteration
etc
38 Amendment of section 80H—Cancellation of
instruments
39 Substitution of section 90A
90A Application
of sections 90B, 90C, 90D, 90E and 90F
40 Amendment of section
90B—Variation and extinguishment of easements
41 Insertion of section
90F
90F Easement subject to existing mortgage etc
42 Insertion of section 96AA
96AA Creation of
easements by reservation
43 Substitution of section
115A
115A Issue of certificate where land is vested by
operation of law
44 Amendment of section 120—Lease may be
surrendered by separate instrument
45 Amendment of section
121—Registrar-General may enter surrender
46 Amendment of section
126—Registrar-General to note particulars of re-entry in Register
Book
47 Amendment of section 129A—Standard terms and conditions of
mortgage or encumbrance
48 Amendment of section 143—Discharge of
mortgages and encumbrances
49 Insertion of section
144
144 Partial discharge of mortgage or encumbrance on grant
of easement
50 Amendment of section 145—Entry of satisfaction of
annuity
51 Amendment of section 148A—Entry in Register Book where
rights of mortgagee barred by Statute
52 Amendment of section
163—Insertion of the words "with no survivorship" in
instruments
53 Amendment of section 164—Trustees may authorise
insertion of those words
54 Amendment of section
169—Disclaimers
55 Amendment of section 176—Application to be
made in such case
56 Amendment of section 179—Where 2 or more executors
or administrators, all must concur
57 Amendment of section 184—Order of
Court vesting land
58 Repeal of section 200
59 Amendment of section
220—Powers of Registrar-General
60 Amendment of section
223LA—Interpretation
61 Amendment of section 223LB—Unlawful
division of land
62 Amendment of section 223LD—Application for
Division
63 Insertion of section 223LDA
223LDA Application
may deal with statutory encumbrances
64 Amendment of section
223LE—Deposit of plan of division in Lands Titles Registration
Office
65 Amendment of section 223LH—Consent to plans of
division
66 Repeal of Part 19AB Division 4A
67 Amendment of section
232—Penalty for certifying incorrect documents
68 Amendment of section
273—Authority to register
69 Amendment of section 274—Solicitors
and conveyancers to be generally entitled to recover fees for work done under
this Act
70 Amendment of section 277—Regulations
71 Substitution of
heading to Schedule 5
72 Amendment of Schedule 6—Short forms of
easements and their interpretation (section 89A)
Part 5—Amendment of Stock Mortgages and Wool Liens
Act 1924
73 Insertion of section
18A
18A Standard terms and conditions in stock mortgages and
agreements for wool liens
Part 6—Amendment of Strata Titles
Act 1988
74 Amendment of section
3—Interpretation
75 Amendment of section 5—Nature of strata plan
and requirements with which it must conform
76 Repeal of Part 2 Division
2
77 Amendment of section 12—Application for amendment
78 Insertion
of section 12A
12A Application may deal with statutory
encumbrances
79 Amendment of section 16—Amalgamation of adjacent
sites
80 Amendment of section 17—Cancellation
81 Amendment of
section 17A—Procedure where the whereabouts of certain persons is
unknown
82 Amendment of section 36G—Keeping of records
83 Amendment
of section 37—Administrator of strata corporation's
affairs
84 Amendment of section 41A—Resolution of disputes
etc
85 Amendment of section 46—Relief where unanimous resolution
required
86 Insertion of section 48A
48A Applications to
Magistrates Court
87 Amendment of Schedule 2—Transitional
provisions
The Parliament of South Australia enacts as
follows:
This Act may be cited as the Statutes Amendment (Real Property) Act
2008.
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 Bills of Sale
Act 1886
After section 11 insert:
11A—Standard terms and conditions in bills of
sale
(1) A person may deposit with the Registrar for filing in the General
Registry Office a document containing terms and conditions for incorporation as
standard terms and conditions in bills of sale under this section.
(2) A bill of sale may provide that standard terms and conditions, as
contained in a document filed by the Registrar in the General Registry Office
under subsection (1)—
(a) are incorporated in the bill of sale; or
(b) are incorporated in the bill of sale subject to exclusions or
amendments specified in the bill of sale,
and, in that event, the bill of sale has effect as if those terms and
conditions were (subject to any exclusions or amendments specified in the bill
of sale) contained in the bill of sale.
(3) Where a bill of sale makes provision for incorporation of standard
terms and conditions (either with or without exclusions or amendments), the
grantee must, before execution of the bill of sale by the grantor, provide the
grantor with a copy of the standard terms and conditions.
Maximum penalty: Division 9 fine.
(4) Non-compliance with subsection (3) does not affect the validity
or effect of a bill of sale.
Part 3—Amendment
of Community Titles
Act 1996
5—Amendment of
section 3—Interpretation
(1) Section 3(1)—after the definition of floor
insert:
holder of a statutory encumbrance means—
(a) in relation to an agreement relating to the management, preservation
or conservation of land lodged under Part 5 of the Development
Act 1993—the Minister, greenway authority or council that entered
into the agreement; or
(b) in any other case—the Minister responsible for the
administration of the Act under which the encumbrance was entered into or is in
force;
(2) Section 3(1)—after the definition of occupier
insert:
officer of a community corporation means the presiding
officer, treasurer or secretary of the community corporation;
(3) Section 3(1), definition of schedule of lot
entitlements—delete "included in" and substitute:
annexed to
(4) Section 3(1), definition of statutory
encumbrance—after paragraph (a) insert:
(ab) an agreement under section 39d of the repealed City of Adelaide
Development Control Act 1976 that is continued in force by virtue of
the provisions of the Acts Interpretation Act 1915;
(5) Section 3(1), definition of statutory
encumbrance—after paragraph (e) insert:
(ea) an access agreement entered into under the Recreational Greenways
Act 2000;
(eb) a management agreement entered into under the River Murray
Act 2003;
(ec) a management agreement entered into under the Upper South East
Dryland Salinity and Flood Management Act 2002;
(6) Section 3(1), definition of statutory encumbrance,
(f)—after "created by" insert:
or under any
6—Amendment of
section 13—Staged development and development
contracts
(1) Section 13(1)—delete "provides for the division of the community
parcel" and substitute:
indicates that the community parcel is to be (or is likely to be)
divided
(2) Section 13(2)—delete "provides for the erection of buildings or
other improvements on a development lot or the common property by the developer"
and substitute:
indicates that the developer is to (or is likely to) erect buildings or
other improvements on a development lot or the common property
(3) Section 13(3)—delete "requires the division or other development
of a community lot" and substitute:
indicates that a community lot is to be (or is likely to be) divided or
otherwise developed
7—Amendment of
section 14—Application
(1) Section 14(4)(e)—delete paragraph (e)
(2) Section 14(4)(g)—delete paragraph (g) and substitute:
(g) if the scheme description indicates—
(i) that the community parcel is to be (or is likely to be) divided in
stages; or
(ii) that the owner of a particular community lot is to (or is likely to)
divide the lot or develop it in any other manner; or
(iii) that the developer is to (or is likely to) make improvements to, or
undertake development work on, a development lot or the common
property,
an appropriate development contract or contracts; and
(3) Section 14(4)(h)—delete "scale prescribed by regulation" and
substitute:
scale determined by the Registrar-General
(4) Section 14(5)(i)—delete "include" and substitute:
have annexed to it
(5) Section 14—after subsection (5) insert:
(5a) The Registrar-General must not deal with the application unless
satisfied that the certificate from the Development Assessment Commission
required by section 51 of the Development Act 1993 has been
given, and is in force, in relation to the development.
After section 15 insert:
15A—Application may deal with statutory
encumbrances
Despite any other statutory provision to the contrary, the
Registrar-General may treat an application under this Part as if it included an
application for the variation or termination of a statutory encumbrance
if—
(a) the application or the plan of community division specifies that
variation or termination of a statutory encumbrance is to be registered or
noted; and
(b) the application is accompanied by—
(i) a certificate signed by or on behalf of the holder of the statutory
encumbrance certifying that the requirements of the Act under which the
encumbrance was entered into, or is in force, as to the variation or termination
of the statutory encumbrance (if any) have been complied with; and
(ii) such other documentary material in relation to the statutory
encumbrance as the Registrar-General may require.
9—Amendment of
section 16—Consents to application
Section 16—after subsection (2) insert:
(3) If the deposit of a plan of community division would result in the
extinguishment of an easement in respect of part of the dominant land, the
consent of a person who has or claims an estate or interest in the servient land
is not required (unless the Registrar-General determines otherwise in a
particular case) in relation to that extinguishment if rights under the easement
continue in existence in respect of some other part of the dominant
land.
10—Amendment of
section 23—Vesting etc of lots etc on deposit of plan
(1) Section 23(6)—delete subsection (6) and substitute:
(6) Subject to this section, where land divided by a community plan is
subject to a registered easement or a registered lease—
(a) in the case of an easement—the easement; and
(b) in the case of a lease—the lease and any encumbrance registered
in relation to the lease,
will be registered on the relevant certificates of title issued under this
section.
(2) Section 23(7)—delete "(other than a statutory encumbrance or an
easement)" and substitute:
(other than a statutory encumbrance, an easement or a lease or encumbrance
registered in relation to a lease)
11—Amendment of
section 30—Scheme description
Section 30(1)—after paragraph (i) insert:
(ia) be endorsed with a certificate in the form prescribed by regulation
from the person who prepared the scheme description certifying that the scheme
description has been correctly prepared in accordance with this Act;
and
12—Amendment of
section 31—Amendment of scheme description
Section 31(3)—after paragraph (a) insert:
(ab) be endorsed with a certificate, in the form prescribed by regulation,
from the person who prepared the amended scheme description or an officer of the
community corporation certifying that the amended scheme description has been
correctly prepared in accordance with this Act; and
13—Amendment of
section 34—By-laws
Section 34(2)—after paragraph (d) insert:
; and
(e) be endorsed with a certificate, in the form prescribed by regulation,
from the person who prepared the by-laws certifying that the by-laws have been
correctly prepared in accordance with this Act.
14—Amendment of
section 39—Variation of by-laws
Section 39—after subsection (5) insert:
(5a) The certified copy of the by-laws must be endorsed with a
certificate, in the form prescribed by regulation, from the person who prepared
the by-laws or an officer of the community corporation certifying that the
by-laws have been correctly prepared in accordance with this Act.
15—Amendment of
section 47—Development contracts
Section 47(2)—after paragraph (k) insert:
(ka) be endorsed with a certificate, in the form prescribed by regulation,
from the person who prepared the development contracts certifying that the
development contracts have been correctly prepared in accordance with this Act;
and
16—Amendment of
section 50—Variation or termination of development
contract
Section 50(7)—delete subsection (7) and substitute:
(7) The certified copy must—
(a) be endorsed with a certificate, in the form prescribed by regulation,
from the person who prepared the development contract or an officer of the
community corporation certifying that the development contract has been
correctly prepared in accordance with this Act; and
(b) be accompanied by the fee prescribed by regulation.
17—Amendment of
section 52—Application for amendment
(1) Section 52(1)—delete subsection (1) and substitute:
(1) An application for the amendment of a deposited community
plan—
(a) may be made by—
(i) the community corporation; or
(ii) subject to subsection (1a), the owners of all community lots
that will be affected by the amendment; and
(b) must be in a form approved by the Registrar-General.
(1a) An application for the amendment of a deposited community plan may
only be made by the owners of all community lots that will be affected by the
amendment if the amendment—
(a) does not affect any common property; and
(b) does not alter the total number of community lots in the community
parcel; and
(c) does not affect the aggregate of the lot entitlements of the community
lots affected by the amendment; and
(d) does not alter the boundaries of the community parcel; and
(e) is not contrary to the scheme description or by-laws or any
development contract; and
(f) in the case of a secondary plan—is not contrary to the scheme
description or by-laws of the primary scheme; and
(g) in the case of a tertiary plan—is not contrary to the scheme
description or by-laws of the primary or secondary scheme.
(2) Section 52(2)—after "The applicant" insert:
or applicants
(3) Section 52(2)(a)—delete paragraph (a) and substitute:
(a) that—
(i) in the case of an application made by a community
corporation—the application is made in pursuance of a unanimous resolution
of the corporation; or
(ii) in the case of an application made by the owners of all community
lots that will be affected by the amendment—that the community corporation
has been notified of the application; and
(4) Section 52(2)(b)—after "owner of the lot" insert:
(other than an owner who is an applicant in accordance with
subsection (1)(a)(ii))
(5) Section 52—after subsection (3) insert:
(3a) Where the amendment of a deposited community plan would result in the
extinguishment of an easement in respect of part of the dominant land, the
consent of a person who has, or claims, an estate or interest in the servient
land is not required (unless the Registrar-General determines otherwise in a
particular case) in relation to that extinguishment if rights under the easement
continue in existence in respect of some other part of the dominant
land.
(6) Section 52(4)(e)—delete paragraph (e)
(7) Section 52(4)(f)(ii)—delete "scale prescribed by regulation" and
substitute:
scale determined by the Registrar-General
(8) Section 52—after subsection (5) insert:
(5a) If the amendment affects the delineation of lots or common property
or creates new lots, the Registrar-General must not deal with the application
unless satisfied that the certificate from the Development Assessment Commission
required by section 51 of the Development Act 1993 has been
given, and is in force, in relation to the amendment.
18—Amendment of
section 53—Status of application for amendment of
plan
Section 53(1)—delete "by a community corporation" and
substitute:
under section 52
After section 53 insert:
53A—Application may deal with statutory
encumbrances
Despite any other statutory provision to the contrary, the
Registrar-General may treat an application for the amendment of a deposited
community plan as if it included an application for the variation or termination
of a statutory encumbrance if—
(a) the application specifies that variation or termination of a statutory
encumbrance is to be registered or noted; and
(b) the application is accompanied by—
(i) a certificate signed by or on behalf of the holder of the statutory
encumbrance certifying that the requirements of the Act under which the
encumbrance was entered into, or is in force, as to the variation or termination
of the statutory encumbrance (if any) have been complied with; and
(ii) such other documentary material in relation to the statutory
encumbrance as the Registrar-General may require.
20—Amendment of
section 55—Vesting etc of interests on amendment of
plan
Section 55(1)—delete "by a community corporation" and
substitute:
under section 52
21—Amendment of
section 58—Amendment of plan pursuant to development
contract
(1) Section 58(3)(d)—delete paragraph (d)
(2) Section 58(3)(e)—delete "scale prescribed by regulation" and
substitute:
scale determined by the Registrar-General
(3) Section 58(4)(e)—delete "include" and substitute:
have annexed to it
(4) Section 58—after subsection (4) insert:
(4a) The Registrar-General must not deal with the application unless
satisfied that the certificate from the Development Assessment Commission
required by section 51 of the Development Act 1993 has been given,
and is in force, in relation to the proposed development of the land.
(4b) The certificate from the Development Assessment Commission under
section 51 of the Development Act 1993 expires at the
expiration of 1 year after the application was lodged with the Registrar-General
unless the Registrar-General extends the life of the certificate.
22—Amendment of
section 60—Amalgamation of plans
(1) Section 60(3)(f)—delete "scale prescribed by regulation" and
substitute:
scale determined by the Registrar-General
(2) Section 60(3)(g)—delete "included in" and substitute:
annexed to
23—Amendment of
section 65—Application to the Registrar-General
Section 65(c)—delete "and the duplicate instruments (if any) for the
registered encumbrances (if any) over the lots"
24—Amendment of
section 67—Application to the Court
Section 67(2)(e)—delete paragraph (e) and substitute:
(e) the duplicate certificates of title for the lots and common property
(except any duplicate certificates exempted from production by the Court);
and
25—Amendment of
section 69—Cancellation
(1) Section 69(3)(b)—delete "included in" and substitute:
annexed to
(2) Section 69(4)—delete "included in" and substitute:
annexed to
26—Amendment of
section 100—Administrator of community corporation's
affairs
Section 100(1)—after "District Court" insert:
or the Magistrates Court
27—Amendment of
section 126—Keeping of records
Section 126(4)—after "this section" insert:
(including copies of receipts under subsection (2)(b))
28—Amendment of
section 142— Resolution of disputes etc
Section 142(2)—delete subsection (2) and substitute:
(2) Subject to this section, an application must be made to the
Magistrates Court.
After section 145 insert:
145A—Registrar-General may rely on
certificates
If a person has, in accordance with this or any other Act, certified as to
any matter or thing, the Registrar-General may, for the purpose of discharging
functions under this Act, rely on the certificate as establishing the matter or
thing so certified.
30—Amendment of
section 149—Relief where unanimous or special resolution
required
(1) Section 149(1)—after "District Court" insert:
or the Magistrates Court
(2) Section 149(1)—delete "Court" second occurring and
substitute:
court
(3) Section 149(2) and (3)—delete "Court" wherever occurring and
substitute:
court
After section 149 insert:
149A—Applications to Magistrates
Court
If an application is made to the Magistrates Court under any provision of
this Act, the Magistrates Court Act 1991 applies, with such
modifications as may be necessary for the purpose or as may be prescribed, in
relation to the application as if the proceedings were a minor civil action
within the meaning of that Act.
After section 151 insert:
151A—Liability of community corporation in respect
of certification by officer
(1) Where a provision of this Act authorises or requires an officer of a
community corporation to certify as to any matter or thing, the officer incurs
no civil or criminal liability in respect of an act or omission in good faith in
the exercise of that function.
(2) A liability that would, but for subsection (1), attach to an
officer of a community corporation attaches instead to the
corporation.
Part 4—Amendment
of Real Property
Act 1886
33—Amendment of
section 3—Interpretation
Section 3(1)—before the definition of appropriate form
insert:
allotment includes—
(a) a community lot, a development lot and common property created by
division under the Community Titles Act 1996; and
(b) a unit and common property created by division under the Strata
Titles Act 1988;
34—Amendment of
section 19—Solicitor not to engage in private
practice
Section 19—delete ", or licensed land broker" and
substitute:
or registered conveyancer
35—Amendment of
section 56—Priority of instruments
(1) Section 56(1)—after "witness, and" insert:
, subject to subsection (1a),
(2) Section 56—after subsection (1) insert:
(1a) Where 2 or more instruments dealing with or affecting the same estate
or interest in land have been produced for registration at the same time, the
Registrar-General may register 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.
(3) Section 56(4)(a)—delete paragraph (a)
36—Amendment of
section 58—Where 2 or more instruments presented at same
time
Section 58—delete "or other instrument evidencing title to such
estate or interest"
After section 78 insert:
78A—Issue of new certificate on alteration
etc
Where—
(a) this Act or another Act or any other law requires the
Registrar-General to enter or endorse a memorial or memorandum or make any other
entry, endorsement or notation on a certificate; or
(b) in the opinion of the Registrar-General he or she should enter or
endorse a memorial or memorandum or make any other entry, endorsement or
notation on a certificate or correct an error in or make any other alteration to
a certificate,
the Registrar-General may issue a new certificate that includes the
memorial, memorandum, entry, endorsement, notation, correction or other
alteration in place of the existing certificate.
38—Amendment of
section 80H—Cancellation of instruments
Section 80H(1)(b)—delete "and instrument"
39—Substitution of
section 90A
Section 90A—delete the section and substitute:
90A—Application of sections 90B, 90C, 90D, 90E and
90F
(1) Sections 90B, 90C, 90D and 90E apply to, and in relation to, an
easement whether the dominant and servient land are under the provisions of this
Act and the easement has been entered on a certificate under this Part or not
and whether the easement is created by instrument or by operation of a provision
of this Act or some other Act or by operation of some other law.
(2) Section 90F only applies to, and in relation to, an easement if the
dominant and servient land are under the provisions of this Act.
40—Amendment of
section 90B—Variation and extinguishment of easements
(1) Section 90B(2)(a)—delete "land registered under this Act" and
substitute:
land under the provisions of this Act
(2) Section 90B(2)(b)—delete "land not registered under this Act"
and substitute:
land that is not under the provisions of this Act
After section 90E insert:
90F—Easement subject to existing mortgage etc
If, when an easement is created over servient land, the dominant land, or
any part of it, is subject to a mortgage or an encumbrance, the easement is also
subject to the mortgage or encumbrance if—
(a) the instrument granting the easement provides that it is subject to
the mortgage or encumbrance; and
(b) the mortgagee or encumbrancee has endorsed his or her consent to that
on the instrument.
After section 96 insert:
96AA—Creation of easements by
reservation
An easement may be created on the transfer under this Act of an estate of
freehold or the granting of an estate of leasehold under this Act by reservation
of the easement to the transferor or lessor in the instrument of transfer or the
lease.
43—Substitution of
section 115A
Section 115A—delete the section and substitute:
115A—Issue of certificate where land is vested by
operation of law
Despite anything in this Act or any other Act or law, if the
Registrar-General is satisfied that an estate or interest in land has become
vested in a person by operation of an Act, the Registrar-General may (whether or
not an appropriate application has been made by that person)—
(a) in the case of land under the provisions of this Act—without the
execution or production of any instrument or document whatsoever, register the
person as the proprietor of that estate or interest in the land and enter on the
certificate of title a memorial of the vesting of the estate or interest;
or
(b) in the case of land not under the provisions of this Act—without
the execution or production of any instrument or document whatsoever, bring the
land under the provisions of this Act, register the person as the proprietor of
that estate or interest in the land and issue a certificate of title on which
has been entered a memorial of the vesting of the estate or interest.
44—Amendment of
section 120—Lease may be surrendered by separate
instrument
Section 120(2)—delete subsection (2) and substitute:
(2) On registering an instrument under subsection (1), the
Registrar-General must enter a memorial of the surrender in the Register Book
and may, if in the Registrar-General's opinion it is necessary or desirable to
do so, endorse the surrender on the duplicate certificate.
45—Amendment of
section 121—Registrar-General may enter surrender
Section 121—delete ", and also endorse on the lease a memorandum
recording the fact of such entry having been so made in the Register
Book"
46—Amendment of
section 126—Registrar-General to note particulars of re-entry in Register
Book
Section 126—delete ", and the Registrar-General shall cancel such
lease if delivered up to him for that purpose"
47—Amendment of
section 129A—Standard terms and conditions of mortgage or
encumbrance
(1) Section 129A(1)—delete "mortgages" and substitute:
mortgages or encumbrances
(2) Section 129A(2)—delete "mortgage" wherever occurring and
substitute in each case:
mortgage or encumbrance
(3) Section 129A(3)—delete subsection (3) and substitute:
(3) Where a mortgage or encumbrance makes provision for incorporation of
standard terms and conditions (either with or without exclusions or amendments),
the mortgagee or encumbrancee must, before execution of the mortgage or
encumbrance by the mortgagor or encumbrancer, provide him or her with a copy of
the standard terms and conditions.
(4) Section 129A(4)—delete "mortgage" and substitute:
mortgage or encumbrance
48—Amendment of
section 143—Discharge of mortgages and encumbrances
Section 143(3)—delete subsection (3) and substitute:
(3) Production of the duplicate mortgage or encumbrance is not required on
registration of the discharge of the mortgage or encumbrance unless the
Registrar-General requires production of the duplicate.
After section 143 insert:
144—Partial discharge of mortgage or encumbrance on
grant of easement
Where—
(a) an easement is granted over land that is subject to a mortgage or an
encumbrance; and
(b) the mortgagee or encumbrancee has endorsed his or her consent to the
easement on the instrument granting the easement,
the mortgage or encumbrance is partially discharged so that it is subject
to the easement.
50—Amendment of
section 145—Entry of satisfaction of annuity
(1) Section 145—delete ", and on the encumbrance,"
(2) Section 145—delete ", or other instrument of title of the
encumbered land, and also on the duplicate encumbrance, when respectively
produced to him" and substitute:
of the encumbered land when produced to him or her
51—Amendment of
section 148A—Entry in Register Book where rights of mortgagee barred by
Statute
(1) Section 148A(1)—delete "and on the mortgage"
(2) Section 148A(1)—delete "or other instrument of title and on the
duplicate mortgage if produced to him for any purpose"
(3) Section 148A(3)—delete "or instrument" wherever
occurring
52—Amendment of
section 163—Insertion of the words "with no survivorship" in
instruments
(1) Section 163—delete "Upon the transfer of any" and
substitute:
Where an instrument grants or transfers an
(2) Section 163—delete "the transferor or transferees to insert in
the transfer the words "no survivorship"" and substitute:
a party to the instrument to insert in it the words "with no
survivorship"
(3) Section 163—delete "transfer" third occurring and
substitute:
instrument
53—Amendment of
section 164—Trustees may authorise insertion of those
words
(1) Section 164—delete "no survivorship" and substitute:
with no survivorship
(2) Section 164—delete ", or other instrument of title,"
(3) Section 164—delete ", or filed in his office, and also upon the
duplicate of such instrument"
54—Amendment of
section 169—Disclaimers
Section 169(3)—delete "or other instrument of title" first
occurring
55—Amendment of
section 176—Application to be made in such case
(1) Section 176—delete ", or other instrument of title,"
(2) Section 176—delete "an office copy" and substitute:
a copy
56—Amendment of
section 179—Where 2 or more executors or administrators, all must
concur
Section 179—delete "real estate" and substitute:
land
57—Amendment of
section 184—Order of Court vesting land
Section 184—delete "an office copy" and substitute:
a copy
Section 200—delete the section
59—Amendment of
section 220—Powers of Registrar-General
(1) Section 220(c)—delete ", or other instrument of title"
(2) Section 220(c)—after "to be entered or made thereon, or"
insert:
the production of a duplicate certificate or other instrument of title is
required
(3) Section 220(k)—delete paragraph (k)
60—Amendment of
section 223LA—Interpretation
(1) Section 223LA(1)—after the definition of electricity
entity insert:
holder of a statutory encumbrance means—
(a) in relation to an agreement relating to the management, preservation
or conservation of land lodged under Part 5 of the Development
Act 1993—the Minister, greenway authority or council that entered
into the agreement; or
(b) in any other case—the Minister responsible for the
administration of the Act under which the encumbrance was entered into or is in
force;
(2) Section 223LA(1)—after the definition of service
easement insert:
statutory encumbrance means—
(a) an Aboriginal heritage agreement entered into under the Aboriginal
Heritage Act 1988;
(b) an agreement under section 39d of the repealed City of Adelaide
Development Control Act 1976 that is continued in force by virtue of
the provisions of the Acts Interpretation Act 1915;
(c) an agreement relating to the management, preservation or conservation
of land lodged under Part 5 of the Development Act 1993;
(d) any agreement or proclamation registered or noted on the title to land
immediately before the commencement of the Development Act 1993 that
is continued in force by virtue of the provisions of the Statutes Repeal and
Amendment (Development) Act 1993;
(e) a heritage agreement entered into under the Heritage Places
Act 1993;
(f) a heritage agreement entered into under the Native Vegetation
Act 1991;
(g) an access agreement entered into under the Recreational Greenways
Act 2000;
(h) a management agreement entered into under the River Murray
Act 2003;
(i) a management agreement entered into under the Upper South East
Dryland Salinity and Flood Management Act 2002;
(j) any other encumbrance created by or under any statute and prescribed
by the regulations for the purposes of this definition;
(3) Section 223LA(3)—after "allotments" insert:
(including part allotments)
(4) Section 223LA(4)—after "allotments" first occurring
insert:
(including part allotments)
(5) Section 223LA(4)—after "allotments" second occurring
insert:
or part allotments
(6) Section 223LA(4)—after "allotment" insert:
or part allotment
61—Amendment of
section 223LB—Unlawful division of land
(1) Section 223LB(1)—after paragraph (b) insert:
; or
(c) an allotment or allotments and a series of 2 or more part allotments
each of which is contiguous with the part allotment or part allotments next to
it and at least 1 of which is also contiguous with 1 or more of those allotments
and the allotment or allotments and part allotments are comprised within the
same certificate.
(2) Section 223LB(2)(a)(ii)—delete subparagraph (ii) and
substitute:
(ii) an allotment or allotments and a part allotment that is contiguous
with that allotment or with 1 or more of those allotments; or
(iii) an allotment or allotments and a series of 2 or more part allotments
each of which is contiguous with the part allotment or part allotments next to
it and at least 1 of which is also contiguous with 1 or more of those
allotments; and
(3) Section 223LB(2)(b)—after subparagraph (ii) insert:
; or
(iii) constitutes an allotment or allotments and a series of 2 or more
part allotments each of which is contiguous with the part allotment or part
allotments next to it and at least 1 of which is also contiguous with 1 or more
of those allotments.
62—Amendment of
section 223LD—Application for Division
(1) Section 223LD(3)(c)—delete paragraph (c)
(2) Section 223LD(5)—delete "or (c)"
(3) Section 223LD—after subsection (5) insert:
(5a) The Registrar-General must not deal with an application (other than
an application of a kind prescribed by regulation) for the division of land
unless satisfied that the certificate from the Development Assessment Commission
required by section 51 of the Development Act 1993 has been given,
and is in force, in relation to the proposed division.
(4) Section 223LD(6)—delete "(3)(c)" and substitute "(5a)"
63—Insertion of
section 223LDA
After section 223LD insert:
223LDA—Application may deal with statutory
encumbrances
Despite any other statutory provision to the contrary, the
Registrar-General may treat an application under this Part as if it included an
application for the variation or termination of a statutory encumbrance
if—
(a) the application or the plan of division specifies that variation or
termination of a statutory encumbrance is to be registered or noted;
and
(b) the application is accompanied by—
(i) a certificate signed by or on behalf of the holder of the statutory
encumbrance certifying that the requirements of the Act under which the
encumbrance was entered into, or is in force, as to the variation or termination
of the statutory encumbrance (if any) have been complied with; and
(ii) such other documentary material in relation to the statutory
encumbrance as the Registrar-General may require.
64—Amendment of
section 223LE—Deposit of plan of division in Lands Titles Registration
Office
Section 223LE(3)(a)—delete "the proprietor of an estate or interest"
and substitute:
the registered proprietor of an estate in fee simple
65—Amendment of
section 223LH—Consent to plans of division
(1) Section 223LH(1)—delete subsection (1) and substitute:
(1) An application for division must be endorsed with—
(a) where it appears from the Register Book that deposit of the plan of
division in the Lands Titles Registration Office will affect the estate or
interest of a person in the land to be divided or in any other land—a
certificate signed by that person certifying that they have consented to the
deposit of the plan; and
(b) where it appears from the Register Book that a person, apart from the
registered proprietor or a person referred to in paragraph (a) has, or
claims, an estate or interest in the land to be divided—a certificate
signed by that person certifying that they have consented to the deposit of the
plan; and
(c) where the land to be divided is subject to a statutory
encumbrance—a certificate signed by or on behalf of the holder of the
statutory encumbrance certifying that the holder of the statutory encumbrance
has consented to the deposit of the plan.
(2) Section 223LH—after subsection (2) insert:
(2a) Where the deposit of a plan of division would result in the
extinguishment of an easement in respect of part of the dominant land, the
consent of a person who has, or claims, an estate or interest in the servient
land is not required in relation to that extinguishment if rights under the
easement continue in existence in respect of some other part of the dominant
land.
66—Repeal of Part
19AB Division 4A
Part 19AB Division 4A—delete Division 4A
67—Amendment of
section 232—Penalty for certifying incorrect
documents
(1) Section 232—delete "application or instrument" first occurring
and substitute:
application, instrument or other document that is required to be
certified
(2) Section 232—delete "application or instrument" second occurring
and substitute:
application, instrument or document
68—Amendment of
section 273—Authority to register
Section 273(1)—delete subsection (1) and substitute:
(1) Subject to this section, the Registrar-General must not receive an
application for bringing land under the provisions of this Act, or an instrument
purporting to deal with or affect land, unless there is endorsed on the
application or instrument—
(a) in the case of an application—a certificate signed by the
applicant certifying that the application is correct for the purposes of this
Act; or
(b) in the case of an instrument—
(i) if it is an instrument of a prescribed class—a certificate
signed by each party to the instrument certifying that contents of the
instrument are, as it relates to that party, correct for the purposes of this
Act; or
(ii) if it is not an instrument of a prescribed class—a certificate
signed by the party claiming under or in respect of the instrument that the
instrument is correct for the purposes of this Act.
(1a) A certificate referred to in subsection (1) may, instead of
being signed by a person referred to in that subsection, be signed by a
solicitor or registered conveyancer.
69—Amendment of
section 274—Solicitors and conveyancers to be generally entitled to
recover fees for work done under this Act
Section 274—delete "licensed land broker" wherever occurring and
substitute in each case:
registered conveyancer
70—Amendment of
section 277—Regulations
Section 277(1)(b)—delete "licensed land brokers" and
substitute:
registered conveyancers
71—Substitution of
heading to Schedule 5
Heading to Schedule 5—delete the heading and substitute:
Schedule 5—A free and unrestricted right-of-way
(section 89)
72—Amendment of
Schedule 6—Short forms of easements and their interpretation (section
89A)
(1) Schedule 6—after the entry relating to "an easement for the
transmission of television signals by underground cable" insert:
|
an easement for the transmission of telecommunication signals by
underground cable |
the right personally or by servants or agents at any time— |
|
|
(a) to lay under the surface of the land (described for that purpose in
this instrument) ducts, pipes and cables; and (b) to inspect, alter, maintain, repair and replace those ducts, pipes and
cables; and (c) to use the cables for the purposes of receiving and transmitting
telecommunication signals; and (d) to break the surface of, dig, open up and use the land for any of
those purposes; and (e) to enter the land at any time (if necessary with vehicles and
equipment) for any of those purposes. |
|
an easement for the transmission of telecommunication signals by overhead
cable |
the right personally or by servants or agents at any time— |
|
|
(a) to suspend cables across the land (described for that purpose in this
instrument) and construct supports for those cables; and (b) to inspect, alter, maintain, repair and replace those cables and
supports; and (c) to use the cables for the purposes of receiving and transmitting
telecommunication signals; and (d) to break the surface of, dig, open up and use the land for any of
those purposes; and (e) to enter the land at any time (if necessary with vehicles and
equipment) for any of those purposes. |
(2) Schedule 6—after the entry relating to "an easement for eaves
and gutters" insert:
|
an easement for support |
the right personally or by servants or agents at any time— |
|
|
(a) to erect an embankment, wall or other structure on the land (described
for that purpose in this instrument) to support, or for the support of, the
dominant land and any building or other structure erected on it; and (b) to inspect, alter, maintain, repair and replace that embankment, wall
or other structure; and (c) to break the surface of, dig, open up and use the land for any of
those purposes; and (d) to enter the land at any time (if necessary with vehicles and
equipment) for any of those purposes. |
|
an easement to park a vehicle |
the right personally and for his or her invitees, licensees, servants,
agents or tenants to use the land (described for that purpose in this
instrument) at any time for the purpose of parking a vehicle and to enter the
land, with a vehicle, at any time for that purpose. |
|
a right of way on foot |
the right personally and for his or her invitees, licensees, servants,
agents or tenants to use the land (described for that purpose in this
instrument) at any time to pass and repass on foot. |
Part 5—Amendment
of Stock Mortgages and Wool Liens
Act 1924
After section 18 insert:
18A—Standard terms and conditions in stock
mortgages and agreements for wool liens
Section 11A of the Bills of Sale Act 1886 applies in relation
to stock mortgages and agreements conferring a preferable lien on wool as
if—
(a) a reference to a bill of sale were a reference to a stock mortgage or
an agreement conferring a preferable lien on wool; and
(b) the reference in subsection (3) of that section to the grantee of a
bill of sale were a reference to the mortgagee under a stock mortgage or the
lienee under an agreement conferring a preferable lien on wool; and
(c) a reference in that subsection to the grantor of a bill of sale were a
reference to the mortgagor under a stock mortgage or the lienor under an
agreement conferring a preferable lien on wool.
Part 6—Amendment
of Strata Titles
Act 1988
74—Amendment of
section 3—Interpretation
(1) Section 3(1)—after the definition of floor
insert:
holder of a statutory encumbrance means—
(a) in relation to an agreement relating to the management, preservation
or conservation of land lodged under Part 5 of the Development
Act 1993—the Minister, greenway authority or council that entered
into the agreement; or
(b) in any other case—the Minister responsible for the
administration of the Act under which the encumbrance was entered into or is in
force;
(2) Section 3(1), definition of statutory
encumbrance—before paragraph (a) insert:
(aaa) an Aboriginal heritage agreement entered into under the
Aboriginal Heritage Act 1988;
(aa) an agreement under section 39d of the repealed City of Adelaide
Development Control Act 1976 that is continued in force by virtue of
the provisions of the Acts Interpretation Act 1915;
(3) Section 3(1), definition of statutory encumbrance,
(db)—delete paragraph (db) and substitute:
(db) an access agreement entered into under the Recreational Greenways
Act 2000;
(4) Section 3(1), definition of statutory encumbrance,
(e)—delete paragraph (e) and substitute:
(e) a management agreement entered into under the River Murray
Act 2003;
(ea) a management agreement entered into under the Upper South East
Dryland Salinity and Flood Management Act 2002;
(5) Section 3(1), definition of statutory encumbrance,
(f)—after "created by" insert:
or under any
75—Amendment of
section 5—Nature of strata plan and requirements with which it must
conform
Section 5(3)(c)—delete "include" and substitute:
have annexed to it
76—Repeal of Part
2 Division 2
Part 2 Division 2—delete the Division
77—Amendment of
section 12—Application for amendment
(1) Section 12(2)—after paragraph (b) insert:
(c) if units or common property affected by the proposed amendment are
subject to a statutory encumbrance—that the holder of the statutory
encumbrance consents to the amendment.
(2) Section 12—after subsection (2) insert:
(2a) Where the amendment of a deposited strata plan would result in the
extinguishment of an easement in respect of part of the dominant land, the
consent of a person who has, or claims, an estate or interest in the servient
land is not required in relation to that extinguishment if rights under the
easement continue in existence in respect of some other part of the dominant
land.
(3) Section 12(3)(b)—delete paragraph (b)
(4) Section 12—after subsection (3a) insert:
(3b) If the amendment affects the delineation of units or common property,
the Registrar-General must not deal with the application unless satisfied that
the certificate from the Development Assessment Commission required by
section 51 of the Development Act 1993 has been given, and is
in force, in relation to the amendment.
(3c) The certificate from the Development Assessment Commission under
section 51 of the Development Act 1993 expires at the
expiration of 1 year after the application for amendment was lodged with the
Registrar-General unless the Registrar-General extends the life of the
certificate.
(5) Section 12(5)(a)—after "easement" insert:
or statutory encumbrance
(6) Section 12(5a)(a)—after "easement" insert:
or statutory encumbrance
After section 12 insert:
12A—Application may deal with statutory
encumbrances
Despite any other statutory provision to the contrary, the
Registrar-General may treat an application for amendment of a deposited strata
plan under this Division as if it included an application for the variation or
termination of a statutory encumbrance if—
(a) the application specifies that variation or termination of a statutory
encumbrance is to be registered or noted; and
(b) the application is accompanied by—
(i) a certificate signed by or on behalf of the holder of the statutory
encumbrance certifying that the requirements of the Act under which the
encumbrance was entered into, or is in force, as to the variation or termination
of the statutory encumbrance (if any) have been complied with; and
(ii) such other documentary material in relation to the statutory
encumbrance as the Registrar-General may require.
79—Amendment of
section 16—Amalgamation of adjacent sites
Section 16(2)(d)(ia)—delete "included in" and substitute:
annexed to
80—Amendment of
section 17—Cancellation
(1) Section 17(3)(a)—delete "and any duplicate instrument for any
registered interest in a unit or the common property"
(2) Section 17(5)(b)—delete paragraph (b) and substitute:
(b) the duplicate certificates of title for the units and common property
(except any such duplicate certificates exempted from production by the
Court).
81—Amendment of
section 17A—Procedure where the whereabouts of certain persons is
unknown
Section 17A(1)(a)—delete "2 or"
82—Amendment of
section 36G—Keeping of records
Section 36G(4)—after "this section" insert:
(including copies of receipts under subsection (2)(b))
83—Amendment of
section 37—Administrator of strata corporation's
affairs
(1) Section 37—before subsection (1) insert:
(a1) In this section—
relevant court means the Court or the Magistrates
Court.
(2) Section 37(1)—delete "The Court" and substitute:
A relevant court
(3) Section 37(3)—delete "Court" and substitute:
relevant court
(4) Section 37(4)—delete "Court" and substitute:
relevant court
84—Amendment of
section 41A—Resolution of disputes etc
Section 41A(2)—delete subsection (2) and substitute:
(2) Subject to this section, an application must be made to the
Magistrates Court.
85—Amendment of
section 46—Relief where unanimous resolution required
(1) Section 46—before subsection (1) insert:
(a1) In this section—
relevant court means the Court or the Magistrates
Court.
(2) Section 46(1)—delete "the Court" first occurring and
substitute:
a relevant court
(3) Section 46(1)—delete "the Court" second occurring and
substitute:
the court
(4) Section 46(2) and (3)—delete "Court" wherever occurring and
substitute:
court
After section 48 insert:
48A—Applications to Magistrates
Court
If an application is made to the Magistrates Court under any provision of
this Act, the Magistrates Court Act 1991 applies, with such
modifications as may be necessary for the purpose or as may be prescribed, in
relation to the application as if the proceedings were a minor civil action
within the meaning of that Act.
87—Amendment of
Schedule 2—Transitional provisions
Schedule 2, clause 5—delete clause 5