Land Legislation Amendment Act 2009

Land Legislation Amendment Act 2009

No. 80 of 2009

table of provisions

SectionPage

Part 1—Preliminary

1Purpose

2Commencement

Part 2—Transfer of Land Act 1958

3Definitions

4Registrar not required to keep seal

5Who may bring land under this Act?

6Repeal of section 13

7Lodgment of competing interest

8Notice of creation of ordinary folio or provisional folio for land in identified folio

9Notice of creation of folio or removal of warning

10Caveats

11Register of land

12Recordings in the Register

13Certificates of title

14Power not to destroy certain certificates of title

15Submission of documents to facilitate registration

16Construction of references

17Creation of folio of the Register and certificate of title

18Minors etc.

19Lost grant or certificate etc.

20Instruments entitled to priority according to date of lodgment
for registration

21Repeal of section 35

22Entry of trusts in Register

23Grants and certificates endorsed "no survivorship"

24Agents for lodging electronic instruments must be eligible persons

25Destruction of certificate of title

26Registrar may require production of documents

27Power to Registrar to make a vesting order in cases of completed purchase

28Repeal of section 48

29Registration of personal representatives

30Sale under writ of fieri facias or decree of Supreme Courtetc.

31Registrar to make necessary cancellations entriesetc.

32Registrar to give effect to order vesting trust estate

33Registration of dispositions effected by operation of statute

34New section 59A inserted

59AAmendment of Register to reflect successor at law

35Application for order by person claiming title by possession

36Power to make vesting order

37Leases

38Foreclosure or surrender or mortgaged lease where lessee is bankrupt

39Surrender of lease

40Variation of registered mortgage

41Application of moneys obtained from actions by the mortgagor

42Discharge of mortgages and annuities

43Mortgage money payable to Treasurer if mortgagee absent from Victoria and mortgage discharged

44Notification of restrictive covenants

45Caveats temporarily forbidding dealings with land

46Removal of caveat on application to Registrar

47Except in certain cases caveat to lapse after thirty days notice given to caveator

48No entry to be made in Register affecting land in respect of which caveat in force

49Repeal of Division 2 of Part V

50Restriction on amendment of memorandum articles or rules affecting shares in service company

51Variation of service agreement

52Procedure if Registrar is satisfied that plan is suitable for registration

53Cancellation of plan of building subdivision and registration of the plan of subdivision

54Effect of registration of plan of subdivision

55Power of courts to consent or dispense

56General provision as to correction of errors etc.

57Registrar to require production of documents as evidence etc.

58Registrar to refuse registration if documents or evidence not supplied

59Powers of Registrar

60Fees to be paid under Act

61Entitlement to indemnity

62Service of notices

63Inspection of Register

64Receipt for and return of lodged documents

65Summoning Registrar to show cause

66Application to Court for order requiring production of document

67Compensation for lodging caveat without reasonable cause

68Regulations

69Approved forms

70New sections 129 and 130 inserted

129Creation of certificate of title—transitional provision

130Contracts referring to Table A—transitional provision

71Repeal of Seventh Schedule

72Repeal of Seventeenth and Eighteenth Schedules

Part 3—Surveying Act 2004

73Definitions

74Application for registration

75Qualifications for registration

76Renewal of registration

77New section 7A inserted

7AVariation of registration

78Section 11 substituted

11Duration of registration

79Restoration of name to the register

80The register

81Investigation of complaints

82Outcome of preliminary investigation

83New section 22A inserted

22ABoard may settle matter by agreement

84New section 30A inserted

30ANotification to licensed surveyor

85Notifications to complainant

86Notification

87Claims by persons as to registration

88Functions and powers of Surveyor-General

89Functions of the Board

90Membership of the Board

91Proceedings for offences

92Publication of certain information

93Regulations

Part 4—Geographic Place Names Act 1998

94Extension of term of appointment

Part 5—Subdivision Act 1988

95Definition of master plan

96The procedure for certification and registration of plans

97New section 22A inserted

22ARegistrar may refuse registration

98Effect of registration of plans

99Dealings in common property

100Alteration of subdivision

101Consolidation, subdivision or alteration

102Total consolidation or re-subdivision of land affected by owners corporation

103Staged subdivision

104New section 46A inserted

46AExpiry of registered plan

Part 6—Amendments to the Forests Act 1958

105Licences and permits with respect to forests

Part 7—Repeal of Amending Act

106Repeal of amending Act

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Endnotes

SectionPage

Victoria

SectionPage

Land Legislation Amendment Act 2009[†]

No. 80 of 2009

[Assented to 8 December 2009]

Land Legislation Amendment Act 2009
No. 80 of 2009

The Parliament of Victoriaenacts:

Part 7—Repeal of Amending Act

Land Legislation Amendment Act 2009
No. 80 of 2009

Part 1—Preliminary

1Purpose

The purpose of this Act is to—

(a)amend the Transfer of Land Act 1958,the Subdivision Act 1988andthe Surveying Act 2004as to the application of those Acts; and

(b) amend the Geographic Place Names Act 1998 as to the appointment of a Registrar of Geographic Names; and

2Commencement

s. 2

(1) Subject to subsection (2), this Act comes into operation on a day or days to be proclaimed.

(2) If a provision of this Act does not come into operation before 1 May 2010, it comes into operation on that day.

______

Part 2—Transfer of Land Act 1958

3Definitions

s. 3

See:
Act No.
6399.
Reprint No. 16
as at
23 October 2008.
LawToday:
www.
legislation.
vic.gov.au

In section 4(1) of the Transfer of Land Act 1958—

(a)in the definition of conversion scheme omit "13,";

(b)for the definition of Courtsubstitute—

"court means court of competent jurisdiction;";

(c)in the definition of instrument, after "Register" insert ", and a plan of subdivision, where the context permits";

(d) insert the following definition—

"Register means the Register of land kept under section 27;".

4Registrar not required to keep seal

Sections 6(2) and 6(3) of the Transfer of Land Act 1958are repealed.

5Who may bring land under this Act?

In section 10(2)(b) of the Transfer of Land Act 1958 omit "13 or".

6Repeal of section 13

Section 13 of the Transfer of Land Act 1958 is repealed.

7Lodgment of competing interest

In sections 26B(1), 26B(3) and 26B(4) of the Transfer of Land Act 1958, for "the Court" substitute "a court".

8Notice of creation of ordinary folio or provisional folio for land in identified folio

s. 8

(1) In section 26N(4)(b) of the Transfer of Land Act 1958omit "of competent jurisdiction".

(2) In section 26N(5) of the Transfer of Land Act 1958, for "35 days" substitute "30 days".

(3)In section 26N(8) of the Transfer of Land Act 1958, for "the Court" (wherever occurring)substitute "the court".

(4)In section 26N(9) of the Transfer of Land Act 1958, for "the Court" substitute "a court".

9Notice of creation of folio or removal of warning

(1)In section 26Q(3)(b) of the Transfer of Land Act 1958, for "21 days" substitute "30 days".

(2)In 26Q(4) of the Transfer of Land Act 1958, for "14 days" substitute "30days".

10Caveats

(1)In sections 26R(3)(b)(ii) and 26R(4) of the Transfer of Land Act 1958, for "the Court" substitute "a court".

(2) In section 26R(5) of the Transfer of Land Act 1958—

(a)for "The Court" substitute "The court";

(b)for "the Court" substitute "the court".

(3)In section 26R(6) of the Transfer of Land Act 1958—

(a)for paragraph (a), substitute—

"(a)givennotice in writing to the Registrar that proceedings in a court to substantiate the claim of the caveator in relation to the land and the estate or interest therein in respect of which the application is made are on foot; or".

(b)in paragraph (b), for "the Court" substitute "a court".

(4) In section 26R(8) of the Transfer of Land Act 1958, for "the Court" substitute "the court".

11Register of land

s. 11

For section 27(7)(b) of the Transfer of Land Act 1958substitute—

"(b)except in the case of an identified folio, a description of—

(i)the proprietor; and

(ii)the nature of the interest held by the proprietor; and".

12Recordings in the Register

(1)After section 27A(1) of the Transfer of Land Act 1958 insert—

"(1A)A plan within the meaning of section 3 of the Subdivision Act 1988 that may be registered by the Registrar under section 22 of that Act is registered by—

(a)making recordings in the Register; or

(b)altering recordings in the Register—

to the extent necessary to give effect to the plan.".

(2)Section 27A(4) of the Transfer of Land Act 1958 is repealed.

(3) In section 27A(5) of the Transfer of Land Act 1958, for "must" substitute "may".

13Certificates of title

s. 13

After section 27B(7A) of the Transfer of Land Act 1958 insert—

"(7B)The Registrar is not required to produce a certificate of title for a folio of the Register if—

(a)the person entitled to receive the certificate of title requests that no certificate of title be produced; and

(b)the Registrar is satisfied that the non-production of a certificate of title is appropriate in the circumstances.".

14Power not to destroy certain certificates of title

(1)In section 27BA(1) of the Transfer of Land Act 1958—

(a)after "deleted" insert "or amended";

(b)omit "to support any further transaction in relation to land".

(2)In section 27BA(2) of the Transfer of Land Act 1958—

(a)omit "to support any further transaction in relation to land";

(b)after "deleted" insert "or amended";

15Submission of documents to facilitate registration

Section 27E(a)(i) of the Transfer of Land Act 1958isrepealed.

16Construction of references

In section 27F(3) of the Transfer of Land Act 1958—

(a)in paragraph (g) omit "or the duplicate of a registered instrument";

(b)in paragraph (j)(ii) omit "or duplicate instrument";

(c)in paragraph (o) omit"or on a duplicate instrument".

17Creation of folio of the Register and certificate of title

s. 17

Sections 28(3) and 28(4) of the Transfer of Land Act 1958 are repealed.

18Minors etc.

(1)Insert the following heading to section 30 of the Transfer of Land Act 1958—

"Joint proprietors".

(2)Section 30(1) of the Transfer of Land Act 1958 is repealed.

19Lost grant or certificate etc.

In section 31(1) of the Transfer of Land Act 1958omit ", but shall first give not less than fourteen days notice of his intention so to do in at least one newspaper published in the city of Melbourne or circulating in the neighbourhood of the land described in the certificate of title".

20Instruments entitled to priority according to date of lodgment for registration

In section 34(2) of the Transfer of Land Act 1958, for "duplicate Crown grant certificate of title mortgage charge or lease (as the case may be)" substitute "certificate of title".

21Repeal of section 35

Section 35 of the Transfer of Land Act 1958 isrepealed.

22Entry of trusts in Register

s. 22

(1)In section 37 of the Transfer of Land Act 1958—

(a)omit "a duplicate or";

(b)omit "duplicate or" (where secondly and thirdly occurring).

(2)At the end of section 37 of the Transfer of Land Act 1958 insert—

"(2)Despite subsection (1), on and from the commencement of section 22 of the Land Legislation Amendment Act 2009, a trust may not be deposited with the Registrar.".

23Grants and certificates endorsed "no survivorship"

(1)In section 38(4) of the Transfer of Land Act 1958, for "the Court or of the Registrar" substitute "a court".

(2)In section 38(5) of the Transfer of Land Act 1958, for "the Court or Registrar" substitute
"the court".

(3)In section 38(6) of the Transfer of Land Act 1958—

(a)for"The Court or Registrar" substitute
"The court";

(b)omit "or made by".

24Agents for lodging electronic instruments must be eligible persons

(1)For section 44C(2) of the Transfer of Land Act 1958 substitute—

"(2)For the purposes of this section, eligible person means a person who—

(a)holds insurance of a kind and amount acceptable to the Registrar; and

(b)complies with any other eligibility requirements determined by the Registrar.".

(2)In section 44C(4)(b) of the Transfer of Land Act 1958,for "subsection (2)(c)." substitute "subsection (2)(b).".

25Destruction of certificate of title

s. 25

In section 44I(2) of the Transfer of Land Act 1958—

(a)omit "to support any further transaction in relation to land";

(b)for "relates" substitute "related".

26Registrar may require production of documents

In section 44J(2) of the Transfer of Land Act 1958 for "14 days" substitute "30 days".

27Power to Registrar to make a vesting order in cases of completed purchase

For section 47(c) of the Transfer of Land Act 1958 substitute—

"(c) a transfer cannot be obtained as the registered proprietor is—

(i)a natural person who is deceased or whose signature cannot for any reason be obtained within a reasonable time; or

(ii)a body corporate that is deregistered within the meaning of section 9 of the Corporations Act; or

(iii)a body corporate and the authorised agent of the body corporate cannot be located or his or her signature cannot be obtained within a reasonable time—".

28Repeal of section 48

s. 28

Section 48 of the Transfer of Land Act 1958 isrepealed.

29Registration of personal representatives

In section 49(1) of the Transfer of Land Act 1958 omit "and the day of the death of the proprietor, when ascertainable".

30Sale under writ of fieri facias or decree of Supreme Courtetc.

For section 52(2) of the Transfer of Land Act 1958substitute—

"(2)The Registrar, on being served with a copy of any judgment, decree, order or process of execution of a court that identifies a folio or folios of the Register that are affected by the judgment, decree, order or process of execution, mustrecord notice of the receipt of the judgement, decree, order or process of execution.".

31Registrar to make necessary cancellations entriesetc.

In section 55(3) of the Transfer of Land Act 1958—

(a)for ", duplicate instrument and"substitute "or";

(b)omit "duplicate instruments and".

32Registrar to give effect to order vesting trust estate

In section 58(1) of the Transfer of Land Act 1958—

(a)omit "of competent jurisdiction";

(b) after "trustee" insert "or beneficiary";

(c)after "trustees" insert "or beneficiaries";

(d) for "the Court" substitute "the court".

33Registration of dispositions effected by operation of statute

s. 33

After section 59(3) of the Transfer of Land Act 1958insert—

"(4)In this section, in relation to the disclaiming, surrender, release or other disposal of an interest in land under this Act, a reference to any statute or statutory power includes a reference to a Commonwealth Act or a statutory or other power of the Commonwealth.".

34New section 59A inserted

After section 59 of the Transfer of Land Act 1958 insert—

"59A Amendment of Register to reflect successor at law

(1)Where by operation of law a body corporate is established as the successor in law to a body corporate that is the registered proprietor of land, the Registrar must make any necessary amendments in the Register—

(a)on being requested to do so; and

(b)on delivery of a certificate described in subsection (2).

(2)A request under subsection (1) must be accompanied by a certificate signed bythe chief executive officer (however described) of the successor body corporate certifying that the property, rights or liabilities of the former body corporate specified in the certificate have been vested in, or become the property, rights or liabilities of, the successor in law to the former body corporate.

(3)For the purposes of subsection (1), a certificate described in subsection (2) is admissible as evidence in any proceeding for the purpose of establishing proof that the property, rights or liabilities of the former body corporate specified in the certificate have been vested in, or become the property, rights or liabilities of, the successor in law to the former body corporate, and is conclusive proof of those matters.".

35Application for order by person claiming title by possession

s. 35

(1)In section 60(1) of the Transfer of Land Act 1958, for "notes" substitute "records".

(2)In section 60(3) of the Transfer of Land Act 1958 for "twenty-one days" substitute "30 days".

(3)After section 60(3) of the Transfer of Land Act 1958 insert—

"(3A)A notice under subsection (3) must be posted on the day on which the application is advertised under subsection (2).".

(4)In section 60(4) of the Transfer of Land Act 1958 for "twenty-one days" substitute "30 days".

36Power to make vesting order

(1)For section 62(2)(b) of the Transfer of Land Act 1958 substitute—

"(b)create in the name of the applicant, or of any person the applicant directs, a new folio of the Register, dated as at the date of making the vesting order—

(i) for an estate in fee simple or other estate acquired in the land described in the vesting order, free from all encumbrances extinguished under subsection (1); or

(ii) at the Registrar's discretion, consolidating the land described in subparagraph (i) with any adjoining parcel of land owned by the applicant.".

(2) After section 62(4) of the Transfer of Land Act 1958 insert—

"(5)In this section, encumbrance includes, but is not limited to, any estate, interest, mortgage, charge, right, claim, demand, caveat, lease, sub-lease, restrictive covenant or statutory charge or an agreement under section 173 of the Planning and Environment Act 1987.".

37Leases

s. 37

After section 66(2) of the Transfer of Land Act 1958 insert—

"(3)A lease described in subsection (1) must state the date of commencement and date of expiration of the lease.".

38Foreclosure or surrender or mortgaged lease where lessee is bankrupt

In section 68(2) of the Transfer of Land Act 1958, for "twenty-one days" substitute "30 days".

39Surrender of lease

After section 69(1) of the Transfer of Land Act 1958 insert—

"(1A)A lease may be partially surrendered under subsection (1) where the partial surrender applies to all of the land in a folio.".

40Variation of registered mortgage

s. 40

At the end of section 75A of the Transfer of Land Act 1958 insert—

"(2)For the purposes of this section, the variation of a mortgage does not include the following—

(a)a transfer or assignment of a mortgage; or

(b)an alteration of—

(i)the length of the termof the mortgage; or

(ii)an area of mortgaged land; or

(iii)the parties to a mortgage.".

41Application of moneys obtained from actions by the mortgagor

In section 82(2) of the Transfer of Land Act 1958—

(a)for "the Court" (where first occurring)substitute "a court";

(b)for "the Court" (where secondly and thirdly occurring)substitute "the court".

42Discharge of mortgages and annuities

(1) For section 84(2) of the Transfer of Land Act 1958substitute—

"(2)The Registrar may amend the Register to remove the recording of a mortgage on a folio or folios of the Register if it is proved to the Registrar's satisfaction that—

(a)all principal and interest due in respect of the mortgage have been paid to the person entitled to receive them; and

(b)a discharge of mortgage instrument cannot be obtained because the mortgagee is—

(i)a natural person who is deceased or whose signature cannot for any reason be obtained within a reasonable time; or

(ii)a body corporate that is deregistered within the meaning of section 9 of the Corporations Act; or

(iii)a body corporate and the authorised agent of the body corporate cannot be located or his or her signature cannot be obtained within a reasonable time.".

(2)Section 84(2A) of the Transfer of Land Act 1958 is repealed.

43Mortgage money payable to Treasurer if mortgagee absent from Victoria and mortgage discharged

s. 43

In section 85(2) of the Transfer of Land Act 1958, for "the Registrar addresses to the Treasurer a requisition to pay to any persons concerned the moneys to which they are entitled"substitute
"an application is made to the Treasurer by the mortgagee or other person entitled to the moneys for payment of those moneys".

44Notification of restrictive covenants

(1)For section 88(1) of the Transfer of Land Act 1958 substitute—

"(1)The Registrar has the power, and is taken to have always had the power, to record on a folio of the Register—

(a)a restrictive covenant affecting the parcel or parcels of land to which the folio of the Register relates, if all of the registered proprietors of the land to be affected by the covenant and any mortgagees of such land agree to the creation of the restrictive covenant; and

(b)subject to subsections (1AA), (1AB) and(1AC), any instrument purporting to vary or release the operation of a restrictive covenant.

(1AA) A recording on a folio of a restrictive covenant that was created by a plan of subdivision or consolidation must not be deleted or amended by the Registrar unless the restrictive covenant is released or variedby—

s. 44

(a)a plan of subdivision or consolidation; or

(b)a planning scheme or permit under the Planning and Environment Act 1987; or

(c)an order of a court.

(1AB) A recording on a folio of a restrictive covenant that was authorised by a planning scheme or permit under the Planning and Environment Act 1987must not be deleted or amended by the Registrar unless the restrictive covenant is released orvaried by—

(a)a plan of subdivision or consolidation; or

(b)a planning scheme or permit under the Planning and Environment Act 1987; or

(c)an order of a court.

(1AC) A recording on a folio of a restrictive covenant that was created or authorised in any way other than by—