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Transfer of Land Amendment Act 2014
No. of 2014
TABLE OF PROVISIONS
Clause Page
1 Purpose 1
2 Commencement 2
3 Definitions 2
4 Register of land 3
5 Recordings in the Register 3
6 Verification of identity 3
7 Certificates of title 4
8 New section 27BAA inserted 5
27BAA Declaration voiding certificates of title 5
9 Repeal of section 27E 5
10 Instruments not effectual until registered 5
11 Leases 5
12 Variation of registered leases 5
13 Surrender of lease 6
14 Creation and nature of mortgages and charges 6
15 Power of sale under a mortgage or charge 7
16 First mortgagee to produce certificate of title for registration of
subsequent instrument 7
17 New sections 87A to 87E inserted 8
87A Mortgagee to verify identity of mortgagor for execution
of mortgage or variation of mortgage 8
87B Transfer of mortgage--transferee to confirm, or verify,
identity of mortgagor 10
87C Mortgagee or annuitant consent required for lease,
easement or restrictive covenant 12
87D Registered proprietor in case of fraudulent mortgage 12
87E Amount recoverable by mortgagee under section 77 in
case of fraudulent mortgage 13
18 Notification of restrictive covenants 13
19 New Division 11 inserted in Part IV 14
Division 11--Mortgagee or annuitant may apply for
removal or reinstatement of a lease, easement or restrictive
covenant 14
88A Mortgagee or annuitant may apply for removal or
reinstatement of lease if no consent 14
i
Clause Page
88B Mortgagee or annuitant may apply for removal, or
removal of a variation, of easement or restrictive
covenant if no consent 15
20 No entry to be made in Register affecting land in respect of
which caveat in force 17
21 New Division 1B inserted in Part V 17
Division 1B--Priority notices 17
91C Priority notice 17
91D Lodgement of priority notice 17
91E Instruments lodged after priority notice 18
91F Certain instruments not affected by priority notice 18
91G Expiry or withdrawal of priority notice 18
91H Instrument lodged must match instrument described in
any applicable priority notice 19
91I Proceedings may be brought by a person adversely
affected by priority notice 19
91J Compensation for lodging priority notice without
reasonable cause 19
22 New Divisions 2A and 2B inserted in Part V 20
Division 2A--Client authorisation 20
91K Client authorisations 20
91L Effect of client authorisation 20
Division 2B--Signatures 21
91M Reliance on, and repudiation of, signatures 21
23 Registrar to require production of documents as evidence etc. 23
24 New section 106A inserted 24
106A Registrar's requirements for paper conveyancing
transactions 24
25 Entitlement to indemnity 25
26 Repeal of amending Act 26
ENDNOTES 27
ii
Transfer of Land Amendment Act 2014
No. of 2014
[Assented to ]
The Parliament of Victoria enacts:
1 Purpose
The main purpose of this Act is to amend the
Transfer of Land Act 1958--
(a) to facilitate the alignment of paper and
electronic conveyancing requirements; and
(b) to make various amendments to mortgage
provisions in that Act; and
(c) to make other miscellaneous amendments.
1
Transfer of Land Amendment Act 2014
No. of 2014
s. 2
2 Commencement
This Act comes into operation on the day after the
day on which it receives the Royal Assent.
3 Definitions
See: Insert the following definitions in section 4(1) of
Act No.
6399. the Transfer of Land Act 1958--
Reprint No. 17
as at "administrative notice means a notice in the
9 May 2013
and
approved form;
amending
Act Nos authorised representative means a person who--
7/2013, 9/2013,
70/2013 and (a) is entitled to conduct a conveyancing
17/2014. transaction in accordance with the law
LawToday:
www. of this State; and
legislation.
vic.gov.au (b) is representing a party to a
conveyancing transaction; and
(c) has entered into a client authorisation
with that party in accordance with
Division 2A of Part V;
client authorisation has the meaning given by
section 91K;
conveyancing transaction has the same meaning
as it has in the Electronic Conveyancing
National Law (Victoria);
priority notice means a notice described in
section 91C;
relevant person, in Division 2B of Part V, means
a person who signs, or purports to sign, an
instrument or other document in connection
with a conveyancing transaction;
subscriber has the same meaning as it has in the
Electronic Conveyancing National Law
(Victoria);".
2
Transfer of Land Amendment Act 2014
No. of 2014
s. 4
4 Register of land
(1) In section 27(2) of the Transfer of Land Act
1958, for "Subject to the regulations, the"
substitute "The".
(2) In section 27(9) of the Transfer of Land Act
1958, for "substitute" substitute "cancel".
(3) Section 27(10) of the Transfer of Land Act 1958
is repealed.
(4) In section 27(11) of the Transfer of Land Act
1958--
(a) for "substitutes" substitute "cancels";
(b) in paragraph (a), for "substitution"
substitute "cancellation";
(c) in paragraph (b), for "substituted" substitute
"cancelled".
(5) After section 27(11) of the Transfer of Land Act
1958 insert--
"(11A) For the purposes of subsection (11)(b), the
Registrar may treat a certificate of title as
destroyed without calling it in if the
Registrar is provided with a certification that
is in terms satisfactory to the Registrar.".
5 Recordings in the Register
In section 27A(3) of the Transfer of Land Act
1958, for "Subject to the regulations, the"
substitute "The".
6 Verification of identity
Section 27AB(2) and (3) of the Transfer of Land
Act 1958 are repealed.
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Transfer of Land Amendment Act 2014
No. of 2014
s. 7
7 Certificates of title
(1) In section 27B(3) of the Transfer of Land Act
1958, for "Subject to the regulations, a certificate"
substitute "A certificate".
(2) Section 27B(4) of the Transfer of Land Act 1958
is repealed.
(3) In section 27B(5) of the Transfer of Land Act
1958, for "Subject to the regulations, the"
substitute "The".
(4) In section 27B(7) of the Transfer of Land Act
1958, for "subsection (7A)" substitute
"subsections (7A) and (7B)".
(5) For section 27B(7B) of the Transfer of Land Act
1958 substitute--
"(7B) The Registrar is not required to produce a
certificate of title for a folio of the Register if
satisfied that it is appropriate in the
circumstances to not produce a certificate of
title.
(7C) The Registrar may produce a certificate of
title for a folio if--
(a) a person entitled to receive the
certificate of title requests a certificate;
and
(b) a certificate does not already exist; and
(c) the Registrar is satisfied that the request
is appropriate in the circumstances.
(7D) A request under subsection (7C)(a) must be
in the approved form.".
(6) In section 27B(10) of the Transfer of Land Act
1958, for "or lost" substitute ", obliterated or
lost".
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Transfer of Land Amendment Act 2014
No. of 2014
s. 8
8 New section 27BAA inserted
After section 27B of the Transfer of Land Act
1958 insert--
"27BAA Declaration voiding certificates of title
(1) The Registrar, by notice published in the
Government Gazette, may declare
certificates of title or classes of certificate of
title to be void and of no effect.
(2) A declaration published by notice under
subsection (1) takes effect from the date
specified in the notice that is not earlier than
the date of publication of the notice in the
Government Gazette.
(3) Any certificate of title, or a certificate of title
in a declared class of certificates of title, in
existence immediately before the date
specified in the notice referred to in
subsection (1) is, on and after that date, void
and of no effect.".
9 Repeal of section 27E
Section 27E of the Transfer of Land Act 1958 is
repealed.
10 Instruments not effectual until registered
Section 40(2) of the Transfer of Land Act 1958
is repealed.
11 Leases
Section 66(2) of the Transfer of Land Act 1958
is repealed.
12 Variation of registered leases
Section 67A(2) of the Transfer of Land Act
1958 is repealed.
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Transfer of Land Amendment Act 2014
No. of 2014
s. 13
13 Surrender of lease
In section 69(1) of the Transfer of Land Act
1958 omit ", with the consent of any mortgagee
and of the holder of any charge over the lease,".
14 Creation and nature of mortgages and charges
(1) For section 74(1) of the Transfer of Land Act
1958 substitute--
"(1) By instrument in the approved form, the
registered proprietor of any land may--
(a) mortgage the land; or
(b) charge it with the payment of an
annuity.
(1A) The Registrar may register a mortgage if the
mortgagee has--
(a) signed the mortgage; and
(b) certified that--
(i) the mortgagee holds a mortgage
granted by the mortgagor; and
(ii) the mortgage held by the
mortgagee is in the same terms as
the mortgage lodged for
registration.".
(2) After section 74(2) of the Transfer of Land Act
1958 insert--
"(3) A mortgage held by a mortgagee in
accordance with subsection (1A) must be
retained by the mortgagee until the mortgage
is discharged.
(4) If a mortgage registered in accordance with
subsection (1A) ceases to be retained by the
mortgagee--
6
Transfer of Land Amendment Act 2014
No. of 2014
s. 15
(a) the mortgage is no longer taken to be a
mortgage or charge on the land and is
void; and
(b) the mortgagee must discharge the
mortgage as soon as practicable.
(5) A registered mortgage does not operate as a
mortgage or charge on the land if for any
reason the mortgage is, or is found to be,
void or not enforceable at law or in equity
and the mortgagee must discharge the
mortgage as soon as practicable.".
15 Power of sale under a mortgage or charge
In section 77(4) of the Transfer of Land Act
1958--
(a) omit "except--";
(b) paragraphs (a) and (b) are repealed.
16 First mortgagee to produce certificate of title for
registration of subsequent instrument
(1) Insert the following heading to section 86 of the
Transfer of Land Act 1958--
"First mortgagee to produce certificate of title
for registration of subsequent instrument".
(2) In section 86 of the Transfer of Land Act 1958,
for "if he holds the certificate of title concerned
shall, upon being requested so to do by the
proprietor or person entitled as aforesaid but at the
cost of the person making such request, produce
such certificate of title to the Registrar."
substitute "must--
(a) if the first mortgagee holds the certificate of
title concerned, on being requested by the
registered proprietor or person entitled to the
benefit of the subsequent instrument and at
the cost of the person making the request,
7
Transfer of Land Amendment Act 2014
No. of 2014
s. 17
produce the certificate of title to the
Registrar; or
(b) if the certificate of title does not exist, on
being requested by the registered proprietor
or person entitled to the benefit of the
subsequent instrument for production of the
certificate, if the Registrar requires, provide
an administrative notice to the Registrar.".
17 New sections 87A to 87E inserted
After section 87 of the Transfer of Land Act
1958 insert--
"87A Mortgagee to verify identity of mortgagor
for execution of mortgage or variation of
mortgage
(1) At the time of execution of a mortgage or a
variation of mortgage, a mortgagee must take
reasonable steps to verify the authority and
identity of a mortgagor to ensure that the
person executing the mortgage, or on whose
behalf the mortgage is executed, as
mortgagor is the same person who is, or is to
become, the registered proprietor of the land
that is security for the payment of the debt to
which the mortgage relates.
(2) For the purposes of subsection (1), the
mortgagee is considered to have taken
reasonable steps to verify the authority and
identity of the mortgagor if the mortgagee
has taken steps consistent with any
verification of identity and authority
requirements--
(a) determined by the Registrar in
accordance with section 106A; or
8
Transfer of Land Amendment Act 2014
No. of 2014
s. 17
(b) set out in the participation rules (within
the meaning of the Electronic
Conveyancing National Law
(Victoria)).
(3) If, in relation to a mortgage, the Registrar is
satisfied that the mortgagee did not take
reasonable steps to verify the authority and
identity of the mortgagor and the registered
proprietor of the land did not grant the
mortgage, the Registrar may--
(a) if the mortgage has not been registered,
refuse to register the mortgage; or
(b) if the mortgage has been registered,
remove the mortgage from the Register.
(4) If, in relation to a variation of mortgage, the
Registrar is satisfied that the mortgagee did
not take reasonable steps to verify the
authority and identity of the mortgagor and
the registered proprietor of the land did not
grant the mortgage, the Registrar may--
(a) if the variation of mortgage has not
been registered, refuse to register the
variation; or
(b) if the variation of mortgage has been
registered, remove the variation from
the Register.
(5) If the Registrar removes a mortgage from the
Register under subsection (3)--
(a) the mortgagee no longer has an
indefeasible interest in the mortgaged
land; and
(b) the mortgage is void.
(6) If the Registrar removes a variation of
mortgage from the Register under
subsection (4) the variation is void.
9
Transfer of Land Amendment Act 2014
No. of 2014
s. 17
87B Transfer of mortgage--transferee to
confirm, or verify, identity of mortgagor
(1) At the time of execution of a transfer of
mortgage, a transferee mortgagee must--
(a) take reasonable steps to confirm that
the original mortgagee took reasonable
steps; or
(b) take reasonable steps themselves--
to verify the authority and identity of the
mortgagor to ensure that the person who
executed the mortgage, or on whose behalf
the mortgage was executed, as mortgagor is
the same person who is the registered
proprietor of the land that is security for the
payment of the debt to which the mortgage
relates.
(2) For the purposes of this section, a transferee
mortgagee is considered to have taken
reasonable steps to verify the authority and
identity of the mortgagor if--
(a) the transferee mortgagee confirms that
the original mortgagee took steps
consistent with any verification of
identity and authority requirements--
(i) determined by the Registrar in
accordance with section 106A; or
(ii) set out in the participation rules
(within the meaning of the
Electronic Conveyancing National
Law (Victoria)); or
10
Transfer of Land Amendment Act 2014
No. of 2014
s. 17
(b) the transferee mortgagee takes steps
consistent with any verification of
identity and authority requirements--
(i) determined by the Registrar in
accordance with section 106A; or
(ii) set out in the participation rules
(within the meaning of the
Electronic Conveyancing National
Law (Victoria)).
(3) If, in relation to a transfer of a mortgage, the
Registrar is satisfied that the transferee
mortgagee or the original mortgagee did not
take reasonable steps and the registered
proprietor of the land did not grant the
mortgage, the Registrar may--
(a) if the transfer of mortgage has not been
registered, refuse to register the transfer
of mortgage and remove the mortgage
from the Register; or
(b) if the transfer of mortgage has been
registered, remove the mortgage and
the transfer of mortgage from the
Register.
(4) If the Registrar removes a mortgage from the
Register, or removes a mortgage and a
transfer of a mortgage from the Register,
under subsection (3)--
(a) the mortgagee no longer has an
indefeasible interest in the mortgaged
land; and
(b) the mortgage and any transfer of
mortgage is void.
11
Transfer of Land Amendment Act 2014
No. of 2014
s. 17
87C Mortgagee or annuitant consent required
for lease, easement or restrictive covenant
The creation, variation or surrender of a
lease or the creation or variation of an
easement or restrictive covenant, in respect
of land subject to a mortgage or charge, is
not valid or binding against a mortgagee or
annuitant unless the mortgagee or annuitant
has consented in writing to (as the case
requires)--
(a) the creation, variation or surrender of
the lease; or
(b) the creation or variation of the
easement or restrictive covenant.
87D Registered proprietor in case of
fraudulent mortgage
(1) This section applies to a registered proprietor
of land if--
(a) the land has been mortgaged
fraudulently; and
(b) the registered proprietor is not a party
to that fraud; and
(c) the registered proprietor is entitled to be
indemnified under this Act because of
that fraud.
(2) If this section applies to a registered
proprietor, any amount payable to the
mortgagee by the registered proprietor for
the purposes of obtaining a discharge of
mortgage must not exceed the amount
payable under section 110(4)(c).
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Transfer of Land Amendment Act 2014
No. of 2014
s. 18
87E Amount recoverable by mortgagee under
section 77 in case of fraudulent mortgage
(1) This section applies if--
(a) land has been mortgaged fraudulently;
and
(b) the registered proprietor of the land is
not a party to that fraud; and
(c) the registered proprietor is entitled to be
indemnified under this Act because of
that fraud; and
(d) the land has been sold under a
mortgage or charge in accordance with
section 77.
(2) If this section applies, the amount to be
applied in accordance with section 77(3)
must not exceed the amount payable under
section 110(4)(c) in respect of the payment
of money due or owing (as appropriate)--
(a) on the first mortgage or charge, in
accordance with section 77(3)(b); or
(b) in respect of subsequent mortgages and
charges, in accordance with section
77(3)(c); or
(c) on the first mortgage or charge and
subsequent mortgages and charges, in
accordance with section 77(3)(b) and
(c).".
18 Notification of restrictive covenants
(1) In section 88(1)(a) of the Transfer of Land Act
1958 omit "and any mortgagees of such land".
(2) In section 88(1AC)(d) of the Transfer of Land
Act 1958 omit "and any mortgagees of such
land".
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Transfer of Land Amendment Act 2014
No. of 2014
s. 19
19 New Division 11 inserted in Part IV
After Division 10 of Part IV of the Transfer of
Land Act 1958 insert--
"Division 11--Mortgagee or annuitant may
apply for removal or reinstatement of a lease,
easement or restrictive covenant
88A Mortgagee or annuitant may apply for
removal or reinstatement of lease if no
consent
(1) A mortgagee or annuitant may apply to the
Registrar for the removal of a lease, the
removal of a variation of a lease or a
reinstatement of a lease if--
(a) section 77 applies; and
(b) the written consent of the mortgagee or
annuitant was not obtained before the
registration of--
(i) the lease; or
(ii) the variation of the lease; or
(iii) the surrender of the lease.
(2) An application under subsection (1) must be
in the approved form.
(3) If an application is made under subsection
(1), the Registrar must serve on a person
benefited by the lease, or the variation of the
lease or the surrender of the lease, notice--
(a) of the application of the mortgagee or
annuitant; and
(b) requiring the person to produce
evidence, by a day specified in the
notice that is not less than 30 days after
service of the notice, of the written
14
Transfer of Land Amendment Act 2014
No. of 2014
s. 19
consent of the mortgagee or annuitant
to--
(i) the lease; or
(ii) the variation of the lease; or
(iii) the surrender of the lease.
(4) The Registrar may grant and process an
application made under subsection (1) if--
(a) no evidence is produced as required by
the notice in subsection (3) within the
time specified in that subsection; or
(b) the evidence produced by the person
served with a notice under subsection
(3) does not prove to the satisfaction of
the Registrar that the mortgagee or
annuitant provided written consent to--
(i) the lease; or
(ii) the variation of the lease; or
(iii) the surrender of the lease.
88B Mortgagee or annuitant may apply for
removal, or removal of a variation, of
easement or restrictive covenant if no
consent
(1) A mortgagee or annuitant may apply to the
Registrar for the removal of an easement or
restrictive covenant or the removal of a
variation of an easement or restrictive
covenant if--
(a) section 77 applies; and
(b) the written consent of the mortgagee or
annuitant was not obtained before the
registration or recording of--
(i) the easement or restrictive
covenant; or
15
Transfer of Land Amendment Act 2014
No. of 2014
s. 19
(ii) the variation of the easement or
restrictive covenant.
(2) An application under subsection (1) must be
in the approved form.
(3) If an application is made under subsection
(1), the Registrar must serve on a person
benefited by the easement or restrictive
covenant, or the variation of the easement or
restrictive covenant, notice--
(a) of the application of the mortgagee or
annuitant; and
(b) requiring the person to produce
evidence, by a day specified in the
notice that is not less than 30 days after
service of the notice, of the written
consent of the mortgagee or annuitant
to--
(i) the easement or restrictive
covenant; or
(ii) the variation of the easement or
restrictive covenant.
(4) The Registrar may grant and process an
application made under subsection (1) if--
(a) no evidence is produced as required by
the notice in subsection (3) within the
time specified in that subsection; or
(b) the evidence produced by the person
served with a notice under subsection
(3) does not prove to the satisfaction of
the Registrar that the mortgagee or
annuitant provided written consent to--
(i) the easement or restrictive
covenant; or
16
Transfer of Land Amendment Act 2014
No. of 2014
s. 20
(ii) the variation of the easement or
restrictive covenant.".
20 No entry to be made in Register affecting land in
respect of which caveat in force
In section 91(2A) of the Transfer of Land Act
1958--
(a) for "moneys--" substitute "moneys.";
(b) omit "unless the caveat claims that the
unregistered mortgage charge or other
document is for any reason binding upon the
mortgage or annuitant.".
21 New Division 1B inserted in Part V
After Division 1A of Part V of the Transfer of
Land Act 1958 insert--
"Division 1B--Priority notices
91C Priority notice
A recorded priority notice gives any
instrument specified in the notice, for the
purposes of registration or recording of the
specified instrument, priority for 60 days
from the date the notice is lodged.
91D Lodgement of priority notice
(1) A priority notice--
(a) must be in the approved form; and
(b) may only be lodged using an ELN; and
(c) may be in respect of any type of
instrument and regardless of the
proposed method of lodgement of the
instrument specified in the priority
notice.
17
Transfer of Land Amendment Act 2014
No. of 2014
s. 21
(2) If a priority notice is in the approved form,
the Registrar may accept lodgement of the
priority notice as sufficient evidence that the
applicant who lodged the priority notice, or
who had the priority notice lodged on their
behalf, is entitled to lodge the priority notice.
(3) The Registrar is not required to give any
person notice of a priority notice recorded in
the Register.
91E Instruments lodged after priority notice
Subject to section 91F, any instrument
lodged after a priority notice but before the
instrument specified in the priority notice is
lodged must not be registered until--
(a) after the instrument specified in the
priority notice is registered or recorded;
or
(b) the priority notice ceases to have effect.
91F Certain instruments not affected by
priority notice
An instrument that is capable of being
recorded is not affected by a priority notice
and may be lodged and recorded at any time.
Examples
Examples of instruments that are recorded include
caveats, warrants, statutory charges and notifications.
91G Expiry or withdrawal of priority notice
(1) A priority notice expires on the earlier of--
(a) registration or recording of the
instrument specified in the priority
notice; or
(b) 60 days after the date of lodgement of
the priority notice.
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Transfer of Land Amendment Act 2014
No. of 2014
s. 21
(2) A priority notice may be withdrawn at any
time before its expiry by lodging a
withdrawal of priority notice.
(3) A withdrawal of priority notice--
(a) must be in the approved form; and
(b) may only be lodged using an ELN.
91H Instrument lodged must match instrument
described in any applicable priority notice
(1) If an instrument lodged is not consistent with
the details of an instrument specified in any
priority notice, the instrument must not be
registered or recorded.
(2) If a priority notice contains incorrect details,
the priority notice--
(a) may not be corrected; and
(b) may be withdrawn and a new priority
notice lodged.
91I Proceedings may be brought by a person
adversely affected by priority notice
Any person who is adversely affected by a
priority notice may bring proceedings in a
court against the applicant specified in the
priority notice for the removal of the priority
notice and the court may make any order the
court thinks fit.
91J Compensation for lodging priority notice
without reasonable cause
If a priority notice is lodged without
reasonable cause under this Part, the
applicant specified in the priority notice is
liable to compensate any person who
sustains damage as a result of the recording
of that notice as the court considers
appropriate.".
19
Transfer of Land Amendment Act 2014
No. of 2014
s. 22
22 New Divisions 2A and 2B inserted in Part V
Before Division 3 of Part V of the Transfer of
Land Act 1958 insert--
"Division 2A--Client authorisation
91K Client authorisations
(1) In this Act, a client authorisation is a
document--
(a) that is in the form required by the
Registrar; and
Note
See section 106A.
(b) by which a party to a conveyancing
transaction authorises an authorised
representative to do one or more things
on that party's behalf in connection with
the transaction.
(2) Without limiting subsection (1)(b), a client
authorisation may authorise an authorised
representative to do any of the following--
(a) sign instruments or other documents;
(b) present instruments or other documents
for lodgement;
(c) authorise or complete any associated
financial transaction.
91L Effect of client authorisation
(1) A properly completed client authorisation--
(a) has effect according to its terms; and
(b) is not a power of attorney for the
purposes of any other law relating to
powers of attorney.
20
Transfer of Land Amendment Act 2014
No. of 2014
s. 22
(2) If a client authorisation is properly
completed, the requirements of any other law
relating to the execution, signing, witnessing,
attestation or sealing of documents must be
regarded as having been fully satisfied.
(3) This section does not limit or affect the
application of any law relating to powers of
attorney in relation to--
(a) the execution of client authorisations
under a power of attorney; or
(b) a client authorisation executed under a
power of attorney.
Division 2B--Signatures
91M Reliance on, and repudiation of,
signatures
(1) Subject to subsection (2), if a relevant person
signs an instrument or other document in
connection with a conveyancing
transaction--
(a) the signature is binding, in relation to
that instrument or other document,
on--
(i) the relevant person; and
(ii) any other person for whom the
relevant person acts under a client
authorisation with respect to that
conveyancing transaction; and
(b) the signature is binding, in relation to
that instrument or other document, for
the benefit of--
(i) each of the parties to that
conveyancing transaction; and
21
Transfer of Land Amendment Act 2014
No. of 2014
s. 22
(ii) each authorised representative
who acts under a client
authorisation with respect to that
conveyancing transaction; and
(iii) any person claiming through or
under any person to whom
subparagraph (i) applies; and
(iv) the Registrar, once the instrument
or other document is lodged.
(2) A relevant person may repudiate the
signature with respect to an instrument or
other document if the relevant person
establishes--
(a) that the signature was not the relevant
person's signature; and
(b) that the signature was not the signature
of a person who, at the time of signing
the instrument or other document--
(i) was an employee, agent,
contractor or officer of the
relevant person; and
(ii) had the relevant person's express
or implied authority to sign any
document; and
(c) that neither of the following enabled the
signing of the instrument or other
document--
(i) a failure of the relevant person, or
any of the relevant person's
employees, agents, contractors or
officers, to fully comply with the
Registrar's requirements;
22
Transfer of Land Amendment Act 2014
No. of 2014
s. 23
(ii) a failure by the relevant person, or
any of the relevant person's
employees, agents, contractors or
officers, to take reasonable care.
(3) For the purposes of subsection (2)(b)(ii), it
does not matter whether the authority was--
(a) general; or
(b) limited or restricted to documents of a
particular class or to a particular
document or in any other way.".
23 Registrar to require production of documents as
evidence etc.
(1) Insert the following heading to section 104 of the
Transfer of Land Act 1958--
"Registrar to require production of
documents".
(2) In section 104(1) of the Transfer of Land Act
1958, for "documents" substitute "certificate of
title, instrument, administrative notice or other
document".
(3) After section 104(6) of the Transfer of Land Act
1958 insert--
"(7) The Registrar may for the purposes of this
Act or any other Act require a person to
provide a certification in accordance with
section 106A in place of evidence.".
23
Transfer of Land Amendment Act 2014
No. of 2014
s. 24
24 New section 106A inserted
After section 106 of the Transfer of Land Act
1958 insert--
"106A Registrar's requirements for paper
conveyancing transactions
(1) The Registrar may from time to time
determine requirements for paper
conveyancing transactions, which may
include the following--
(a) the verification of identity and authority
including any of the following--
(i) the standards to which identity
and authority are to be verified;
(ii) the classes of person in respect of
whom identity and authority are to
be verified;
(iii) the classes of document in relation
to which verification of identity
and authority requirements apply;
(iv) the classes of person who can
undertake verification of identity
and authority;
(v) any supporting evidence and
retention requirements;
(b) the retention of documents supporting
or authenticating instruments generally,
including periods of retention;
(c) setting out matters to be certified or
relating to the certification of matters
for the purposes of conveyancing
transactions, including any of the
following--
(i) the form of certifications;
24
Transfer of Land Amendment Act 2014
No. of 2014
s. 25
(ii) the classes of person who may
certify those matters;
(iii) any supporting evidence and
retention requirements;
(d) the classes of instrument that must be
lodged using an ELN;
(e) the classes of person who must lodge
specified classes of instrument;
(f) client authorisations, including any of
the following--
(i) the form of a client authorisation;
(ii) the classes of instrument to which
a client authorisation applies;
(iii) any supporting evidence and
retention requirements;
(g) the classes of mortgagee able to certify
the matters specified under section
74(1A).
(2) The Registrar must publish notice in the
Government Gazette of any requirements
determined under this section.".
25 Entitlement to indemnity
In section 110(4) of the Transfer of Land Act
1958--
(a) in paragraph (b), for "amendment."
substitute "amendment;";
(b) after paragraph (b) insert--
"(c) subject to paragraphs (a) and (b), in the
case of a fraudulent mortgage where the
mortgagee has complied with section
87A or 87B, the principal amount
together with any interest, the rate of
which must not exceed the Bank
25
Transfer of Land Amendment Act 2014
No. of 2014
s. 26
Accepted Bills rate (within the meaning
of the Taxation (Interest on
Overpayments) Act 1986).".
26 Repeal of amending Act
This Act is repealed on the first anniversary of its
commencement.
Note
The repeal of this Act does not affect the continuing operation of
the amendments made by it (see section 15(1) of the
Interpretation of Legislation Act 1984).
26
Transfer of Land Amendment Act 2014
No. of 2014
Endnotes
ENDNOTES
Minister's second reading speech--
Legislative Assembly:
Legislative Council:
The long title for the Bill for this Act was "A Bill for an Act to amend the
Transfer of Land Act 1958 and for other purposes."
By Authority. Government Printer for the State of Victoria.
27
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