© The State of Victoria Department of Environment, Land, Water and Planning 2015
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Contents
Introduction
Administrative Notices
General issuing rules
Issuing rules if the folio is cancelled
Application of business rules
1. Transferring a parcel when the folio is not mortgaged
2. Transferring a parcel when the folio is mortgaged
3. Plan of subdivision when the folio is mortgaged
4. Plan of subdivision with following transactions when the folio is mortgaged
5. Section 35 plan of subdivision acquiring part of the land when the folio is not mortgaged
6. Section 35 plan of subdivision acquiring part of the land when the folio is mortgaged
7. Section 32A plan of subdivision when all folios are mortgaged
8. Not in Common Ownership (NICO) plan of subdivision of two adjoining folios when one folio is mortgaged
9. NICO plan of subdivision of two adjoining folios when both folios are mortgaged
Explanatory matrix
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Report Title Report Subtitle
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Introduction
The Certificate of Title (CT) document is a conclusive certificate by the Registrar of Titles (the Registrar) of the information on a folio of the Register, as at the date and time the CT is issued by Land Victoria. There are two types of Certificates of Title (CTs) available in Victoria, the paper CT (pCT) and the electronic CT (eCT).
Further information on the different types of CT is available in the Guide to Certificates of Title and Administrative Notices, on the Forms, guides and fees page at guides and fees.
As part of the settlement process, the CT is passed from the party holding it to an incoming first mortgagee; or, if there is no mortgage, the purchaser. This enables each incoming party to gain registration of their interest.
Under the Transfer of Land Act 1958 the CT must be produced for most instruments that are lodged for registration at Land Victoria. The CT can be produced by the lodging party or it can be nominated by a third party to support lodgement of the instrument.
A CT is usually issued by Land Victoria after each registration affecting the interests on a folio. For example, following the registration of a transfer or mortgage.
Administrative Notices
If the CT needs to be nominated to either a paper instrument or electronic Lodgement Case, an appropriate Administrative Notice must be provided by the party making the nomination (the applicant).
If the CT is an eCT, it must be nominated using an electronic Administrative Notice available from PEXA. If the CT is a pCT, it must be nominated using a paper Administrative Notice available from Land Victoria.
Further information on the different types of Administrative Notices is available in the Guide to Certificates of Title and Administrative Notices, on the Forms, guides and fees page at guides and fees.
General issuing rules
In most instances, the CT will issue to the lodging party of a paper instrument; or, if the CT has been nominated to a paper or electronic instrument, it will issue in accordance with the instructions provided in the Administrative Notice.
Examples would be:
DISCHARGE OF MORTGAGE, TRANSFER OF LAND AND MORTGAGE
The discharge of mortgage, transfer of land, mortgage and relevant CT are lodged by Victoria Bank Ltd.
Following registration:
The folio is mortgaged to Victoria Bank Ltd. The CT issues to the lodging party, Victoria Bank Ltd.
SURVIVORSHIP APPLICATION WHEN THE FOLIO IS MORTGAGED
The survivorship application is lodged by Smith & Jones Lawyers against a folio mortgaged to Victoria Bank Ltd.
The CT was previously nominated by Victoria Bank Ltd, with instructions to issue the CT to Victoria Bank Ltd.
Following registration:
The folio remains subject to the mortgage and the CT issues to Victoria Bank Ltd (in accordance with the instructions provided in the Administrative Notice).
Issuing rules if the folio is cancelled
If a folio is cancelled by an instrument or plan, the issuing instructions provided by the applicant no longer apply. Instead, Land Victoria staff apply business rules to determine which party will be issued the CTs for the child folio(s).
In essence, the business rules provide for:
- a folio not subject to a mortgage, in which case the new CT will issue to the lodging party of the instrument or plan
- a folio remaining subject to a mortgage carried forward from a parent folio, in which case the new CT will issue to the party that nominated the mortgaged parent CT
- a child folio Not in Common Ownership (NICO) and subject to a mortgage carried forward from a parent folio, in which case the new CT will issue to the party that nominated the parent CT
- a NICO child folio subject to two or more mortgages carried forward from parent folios, in which case the new CT will issue to the party that nominated the parent CT subject to the mortgage with first priority (this is usually the one registered first in time, but may be otherwise if a parent folio was affected by a variation of priority of mortgage).
Application of business rules
Scenarios illustrating the application of Land Victoria’s business rules are discussed below.
See explanatory matrix at the end of this section detailing the outcomes of each scenario.
1. Transferring a parcel when the folio is not mortgaged
This scenario involves transferring lot 1 from a folio, which contains two transferable parcels – lots 1 and 2. The folio is not mortgaged. The CT was previously nominated by Smith & Jones Lawyers, who held the CT on behalf of the owner.
Transfer of lot 1 is lodged on behalf of the purchaser by Rogers & Brown Lawyers.
Following registration:
The folio is cancelled and separate new folios are created for lot 1 and lot 2. Both CTs issue to Rogers & Brown Lawyers, the lodging party of the transfer. Rogers & Brown Lawyers should send the CT for lot 2, the parcel that remains in the original owner’s name, to Smith & Jones Lawyers.
Note: Land Victoria suggests that in this situation, prior application be made under section 32 of the Transfer of Land Act for the creation of separate folios and therefore overcoming the need for a nomination.
2. Transferring a parcel when the folio is mortgaged
This scenario involves transferring lot 1 from a folio, which contains two transferable parcels – lots 1 and 2. The folio is mortgaged to Victoria Bank Ltd. The CT was previously nominated by Victoria Bank Ltd. A discharge of mortgage over lot 1, the parcel being transferred, is handed to the purchaser at settlement together with the transfer for lot 1. These are lodged on behalf of the purchaser by A1 First Choice Conveyancing. The discharge of mortgage is then processed, followed by the transfer.
Following registration:
The folio is cancelled and separate new folios are created for lot 1 and lot 2: the new CT for lot 1 in the purchaser’s name, which is no longer subject to a mortgage, issues to A1 First Choice Conveyancing, the lodging party of the transfer; the new CT for lot 2, which remains in the original owner's name and remains mortgaged, issues to Victoria Bank Ltd, the mortgagee and applicant cited in the nominating Administrative Notice for the parent CT.
3. Plan of subdivision when the folio is mortgaged
In this scenario the plan of subdivision is lodged against a folio mortgaged to Victoria Bank Ltd. The CT was previously nominated by Victoria Bank Ltd. An application to subdivide land is lodged by Smith & Jones Lawyers.
Following registration:
The folio is cancelled and new folios are created for each lot on the plan. The new folios are subject to the existing mortgage and CTs issue to Victoria Bank Ltd, the mortgagee and applicant cited in the nominating Administrative Notice for the parent CT.
4. Plan of subdivision with following transactions when the folio is mortgaged
In this scenario a plan of subdivision is lodged against a folio mortgaged to Victoria Bank Ltd. The CT was previously nominated by Victoria Bank Ltd. An application to subdivide land is lodged by Smith & Jones Lawyers. After the plan is lodged (but prior to registration) a discharge of mortgage, transfer and new mortgage are lodged by Australia Bank Ltd in respect of one of the new lots on the plan of subdivision.
Following registration:
The folio is cancelled and new folios are created for each lot on the plan. All folios are subject to the existing mortgage. The new CTs, except for the one transferred, issue to Victoria Bank Ltd, the mortgagee and applicant cited in the nominating Administrative Notice for the parent CT. The new CT for the transferred lot issues to Australia Bank Ltd, the lodging party of the new mortgage.
5. Section 35 plan of subdivision acquiring part of the land when the folio is not mortgaged
In this scenario a plan of subdivision under section 35 of the Subdivision Act is lodged for the purposes of acquiring reserve no.1, being part of the land in a folio. The balance land of the folio is identified as lot 1 and is to remain in the name of the owner. The folio is not mortgaged.
The CT was previously nominated by Smith & Jones Lawyers, who held the CT on behalf of the owner. The plan of subdivision is lodged on behalf of the acquiring authority by Rogers & Brown Lawyers. A transfer is also lodged with the plan by Rogers & Brown Lawyers to effect the transfer of reserve no.1 on the plan to the acquiring authority.
Following registration:
The folio is cancelled and two new folios are created for reserve no. 1 and lot 1. Neither folio is subject to mortgage and the CTs issue to Rogers & Brown Lawyers, the lodging party of the plan of subdivision and transfer. Rogers & Brown Lawyers should send the CT for lot 1, the parcel that remains in the original owner’s name, to Smith & Jones Lawyers.
6. Section 35 plan of subdivision acquiring part of the land when the folio is mortgaged
In this scenario a plan of subdivision under section 35 of the Subdivision Act 1988 is lodged for the purposes of acquiring reserve no.1, which is part of the land in a folio. The balance land of the folio is identified as lot 1 and is to remain in the name of the owner. The folio is mortgaged to Victoria Bank Ltd.
The CT was previously nominated by Victoria Bank Ltd. The plan of subdivision is lodged on behalf of the acquiring authority by Rogers & Brown Lawyers. A transfer is also lodged with the plan by Rogers & Brown Lawyers, to effect the transfer of reserve no.1 on the plan to the acquiring authority.
Following registration:
The folio is cancelled and two new folios are created for reserve no 1 and lot 1. Under the provisions of section 24(2) of the Subdivision Act, the new folio for reserve no.1 will not be subject to mortgage and the CT will issue to Rogers & Brown Lawyers, the lodging party of the transfer. The new folio for lot 1 will be subject to the mortgage and the CT will issue to Victoria Bank Ltd, the mortgagee and applicant cited in the nominating Administrative Notice for the parent CT.
7. Section 32A plan of subdivision when all folios are mortgaged
In this scenario a plan of subdivision under section 32A of the Subdivision Act is lodged for the purposes of completely re-subdividing all the land in a subdivision affected by an owners corporation. All the folios are subject to mortgages to different mortgagees. Each mortgagee has previously nominated their respective CT. An application to subdivide the land is lodged by A1 First Choice Conveyancing.
Following registration:
Under the provisions of section 32A of the Subdivision Act, all new folios created from the plan issue free from the existing encumbrances, including the mortgages. All new CTs issue to A1 First Choice Conveyancing, the lodging party of the plan of subdivision.
Note: Land Victoria recommends new mortgages are lodged after lodgement but prior to the registration of the plan. The CTs will then issue to the lodging party of any new mortgage.
8. Not in Common Ownership (NICO) plan of subdivision of two adjoining folios when one folio is mortgaged
In this scenario a two lot plan of subdivision is lodged for the purpose of realigning the boundary that exists between two folios. The first folio is owned by Arthur Albert and mortgaged to Australia Bank Ltd. The second folio is owned by Bill Brown and is not mortgaged (see diagram 1 below). The first CT was previously nominated by Australia Bank Ltd. The second CT is lodged with the plan by A1 First Choice Conveyancing.
DIAGRAM 1
DIAGRAM 2
Following registration:
The boundary realignment results in two new folios for lots 1 and 2, registered in the names of both Arthur Albert and Bill Brown; both are partially subject to the mortgage to Australia Bank Ltd (see diagram 2 above).
As both new folios are subject to the Australia Bank Ltd mortgage, both CTs will issue to Australia Bank Ltd, the mortgagee and applicant cited in the nominating Administrative Notice for the first folio.
Note: to resolve both the creation of NICO folios and Australia Bank Ltd losing its power of sale if the mortgagor defaults, the discharges of mortgage, transfers and new mortgage should be lodged at the same time as the NICO plan (if these documents are lodged, the lodging party of the last registered transaction against the folio will receive that new CT).
For further information refer to What is NICO? available on the Plans of subdivision and consolidation page at >Land titles>Plans of subdivision and consolidation.
9. NICO plan of subdivision of two adjoining folios when both folios are mortgaged
In this scenario a two lot plan of subdivision is lodged for the purpose of realigning the boundary that exists between two folios. The first folio is owned by Arthur Albert, which was mortgaged in 1998 to Australia Bank Ltd. The second folio is owned by Bill Brown, which was mortgaged in 2010 to Victoria Bank Ltd (see diagram 3 below).
DIAGRAM 3
The boundary realignment will result in new folios for both lots 1 and 2, registered in the names of both Arthur Albert and Bill Brown; both are partially subject to the mortgages to Australia Bank Ltd and Victoria Bank Ltd (see diagram 4 below).
The first CT was previously nominated by Australia Bank Ltd. The second CT was previously nominated by Victoria Bank Ltd.
An application to subdivide the land is lodged by Rogers & Brown Lawyers.
DIAGRAM 4
Following registration:
Both CTs will issue to Australia Bank Ltd because the mortgage registered in 1998 was registered prior to the mortgage to Victoria Bank Ltd, which was registered in 2010.
Note: to resolve the creation of NICO folios and both banks losing their power of sale if the mortgagor defaults, the discharges of mortgage, transfers and new mortgages should be lodged at the same time as the NICO plan (if these documents are lodged, the lodging party of the last registered transaction against the folio will receive that new CT).
For further information refer to What is NICO? available on the Plans of subdivision and consolidation page at >Land titles>Plans of subdivision and consolidation.
Explanatory matrix
Reference / Transaction Type / CT lodged with instrument by lodging party / CT nominated by nominating party / Stay/go / Folio cancelled by instrument or plan / Business rules apply / Folio mortgaged after registration / CT issue to lodging party / CT issue to nominating partyScenario 1 / Transfer of lot 1 from multi parcel title / /
Nominated by lawyer for owner / stay / / / /
Both CTs issue to the lodging party /
Scenario 2 / Transfer of lot 1 from multi parcel title, discharge and transfer for lot 1 / /
Nominated by mortgagee / stay / / /
Lot 2 remains mortgaged.
Mortgage discharged for lot 1. /
Lot 1 /
Lot 2
Scenario 3 / Plan of subdivision / /
Nominated by mortgagee / stay / / / / /
Scenario 4 / Plan of subdivision followed by
discharge, transfer, mortgage for lot 1 / /
Nominated by mortgagee / stay / / /
Existing mortgage for all lots except 1, which has new mortgage /
Lot 1 /
All but lot 1
Scenario 5 / Sec 35 plan and transfer / /
Nominated by lawyer for owner / stay / / / /
Both CTs issue to the lodging party /
Scenario 6 / Sec 35 plan and transfer for res1 / /
Nominated by mortgagee / stay / / / /
CT for res 1 /
CT for lot 1
Scenario 7 / Sec 32A plan / /
CTs nominated by
different mortgagees / stay / / / /
All CTs issue to lodging party /
Scenario 8 / NICO /
One CT /
One CT nominated by mortgagee / stay / / / / /
Both CTs issue to mortgagee
Scenario 9 / NICO / /
Both CTs nominated by different mortgagees / stay / / / / /
Both CTs issue to mortgagee that has mortgage with first priority
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Guide to Certificates of Title and Administrative Notices
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Guide to Certificates of Title and Administrative Notices
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