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REAL PROPERTY ACT 1900 - SECT 45D
Application for title by possession
45D Application for title by possession
(1) Where, at any time after the commencement of this Part, a person is in
possession of land under the provisions of this Act and- (a) the land is a
whole parcel of land,
(b) the title of the registered proprietor of an estate
or interest in the land would, at or before that time, have been extinguished
as against the person so in possession had the statutes of limitation in force
at that time and any earlier time applied, while in force, in respect of that
land, and
(c) the land is comprised in an ordinary folio of the Register or
is comprised in a qualified or limited folio of the Register and the
possession by virtue of which the title to that estate or interest would have
been extinguished as provided in paragraph (b) commenced after the land was
brought under the provisions of this Act by the creation of the qualified or
limited folio of the Register,
that person in possession may, subject to this
section, apply to the Registrar-General to be recorded in the Register as the
proprietor of that estate or interest in the land.
(2) Where, at any time
after the commencement of this Part- (a) a person is in possession of part
only of a whole parcel of land, and
(b) any boundary that limits or defines
the land in the person’s possession is, to the extent that it is not a
boundary of the whole parcel of land, an occupational boundary that represents
or replaces a boundary of the whole parcel,
the person may, unless the part of
the whole parcel of which the person is in possession lies between such an
occupational boundary and the boundary of the whole parcel that it represents
or replaces, apply to the Registrar-General to be recorded in the Register as
the proprietor of the same estate or interest in that whole parcel of land as
could have been the subject of an application by the person under subsection
(1) if the land in the person’s possession had been that
whole parcel of land and subsection (1) (b) and (c) had been complied with in
relation thereto.
(2A) A person who- (a) is in possession of part of a
residue lot that could, if it had been a whole parcel of land, have been the
subject of an application by the person under subsection (1), and
(b) is (or
is entitled to be) the registered proprietor of an estate in fee simple in
land that adjoins that lot,
may apply to the Registrar-General to be recorded
in the Register as the proprietor of an estate in fee simple in land
consisting of a consolidated lot comprising the part of the residue lot in the
person’s possession and the adjoining land.
(2B) In subsection (2A),
"residue lot" means an allotment consisting of a strip of land that the
Registrar-General is satisfied- (a) was intended for use as a service lane, or
(b) was created to prevent access to a road, or
(c) was created in a manner,
or for a purpose, prescribed by the regulations.
(3) A possessory application
may not be made in respect of an estate or interest in any land, or in any
part of any land, of which- (a) Her Majesty or a Minister of the Crown,
(b) a
statutory body representing the Crown,
(c) a corporation which is constituted
by an Act and of which, in the case of a corporation aggregate, at least one
of the members is appointed by the Governor or a Minister of the Crown, or
(d) a council, county council or joint organisation within the meaning of the
Local Government Act 1993 , or
(e) the owner of a transacted distribution
system or transacted transmission system under the Electricity Network Assets
(Authorised Transactions) Act 2015 ,
is the registered proprietor.
(4) A
possessory application may not be made in respect of an estate or interest in
land if- (a) the registered proprietor of that or any other estate or interest
in the land became so registered without fraud and for valuable consideration,
and
(b) the whole of the period of adverse possession that would be claimed
in the application if it were lodged would not have occurred after that
proprietor became so registered,
unless the application is made on the basis
that the estate or interest applied for will be subject to the estate or
interest of that registered proprietor if the application is granted.
(5) A
possessory application shall be in the approved form and shall be accompanied
by such evidence and documents of title, and (in the case of an application
under subsection (2A)) such evidence of concurrence on the part of the local
council, as the Registrar-General may require. Note-: With an application made
under subsection (2A), it is not necessary to include a consolidated plan at
first instance.
(6) For the purposes of subsection (2), a reference to an
occupational boundary that represents or replaces a boundary of a
whole parcel of land is a reference to- (a) a fence, wall or other structure
intended to coincide with or represent that boundary of the whole parcel,
(b)
a channel, ditch, creek, river or other natural or artificial feature that is
itself land and is in close proximity to that boundary of the whole parcel, or
(c) a give and take fence with respect to that boundary of the whole parcel.
(7) Where- (a) land to which Part 3 applies has been or is being purchased
from the Crown, and
(b) but for this subsection, a holder of the land at any
time after the commencement of the purchase would not, at that time, have had
an estate in fee simple in the land,
the holder shall, for the purposes of
subsection (1), be deemed to have had such an estate at that time.
(8) Where-
(a) a limitation period for a cause of action to recover land to which Part 3
applies has commenced to run, and
(b) after that commencement a folio of the
Register is created in respect of the land pursuant to Part 3,
the time which
elapsed after the limitation period commenced to run and before the date on
which the folio of the Register was created may be counted in the reckoning of
the limitation period for the purposes of a possessory application in respect
of the land.
(9) Subsection (8) applies to a limitation period for a cause of
action to recover land notwithstanding that- (a) the limitation period
commenced to run, or
(b) the folio of the Register created in respect of the
land pursuant to Part 3 was created,
before the commencement of that
subsection.
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