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Land Titles Registration
Practice Manual
Land Titles Registration Practice Manual- Edition 12.0
Land Titles Registration
Practice Manual
Edition 12.0
By
Vikki McRoberts (Assistant Registrar of Titles)
Leanne Herne (Assistant Registrar of Titles)
Published 03 August 2014
© Western Australian Land Information Authority 2014
© Western Australian Land Information Authority- Government of Western Australia
Page 1 of 525
Land Titles Registration Practice Manual- Edition 12.0
Terms of Use
Disclaimer of Liability
The information contained in this Workbook is a guide or information source only. Various
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products. While every effort has been made to ensure accuracy and completeness, no
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Workbook. Landgate do not accept any liability for any loss or damage incurred as a result of
the use of, or reliance upon the information provided in this Workbook or incorporated into it by
reference.
Important
The information in this Workbook should not be regarded as legal advice. In all matters, users
should seek legal advice from an independent legal practitioner.
Copyright ©
Copyright in this Workbook is owned by the Western Australian Land Information Authority
(Landgate) and is protected by the Copyright Act 1968 (Cwlth).
You may use this Workbook for the purpose of a guide or information source in respect of land
registration practice and procedure in Western Australia. Other than for this specified purpose
and for the purposes of and subject to the conditions prescribed under the Copyright Act 1968
(Cwlth) and similar statutes that apply in your jurisdiction, you may not, in any form or by any
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Tel: (08) 9273 7210
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© Western Australian Land Information Authority- Government of Western Australia
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Land Titles Registration Practice Manual- Edition 12.0
Table of Contents
1.
General Information ........................................................................31
1.1
The Legislation and its Purpose .................................................................................. 32
1.2
1.3
1.1.1
Offices and Services ..................................................................................................... 32
1.1.2
Officers.......................................................................................................................... 32
1.1.3
Land in the Cocos (Keeling) Islands and Christmas Island ..........................................33
1.1.4
How Land is Brought under The Torrens System ........................................................33
1.1.5
How Changes in the Register are Caused ................................................................... 34
1.1.6
How Registration May be Prevented or Delayed .........................................................34
1.1.7
The Scheme of this Manual .......................................................................................... 35
The Register ............................................................................................................... 36
1.2.1
General ......................................................................................................................... 36
1.2.2
Duplicate Title ............................................................................................................... 36
1.2.3
Registration ................................................................................................................... 38
Forms of Title to Land ................................................................................................. 39
1.3.1
Crown Grant.................................................................................................................. 39
1.3.2
Paper Certificate of Title ............................................................................................... 40
1.3.3
Digital Certificate of Title ............................................................................................... 41
1.3.4
Record of Certificate of Title ......................................................................................... 41
1.3.5
Crown Lease (Year Numbered Crown Leases)............................................................ 45
1.3.6
Crown Land Record ...................................................................................................... 46
1.3.7
Certificate of Crown Land Title ..................................................................................... 46
1.3.8
Qualified Certificate of Crown Land Title ...................................................................... 47
1.3.9
Subsidiary Certificate of Crown Land Title ................................................................... 47
1.3.10
Qualified Subsidiary Certificate of Crown Land Title ....................................................47
1.3.11
Permit to Occupy under the Land Act 1933.................................................................. 48
1.3.12
Licence to Occupy under the Land Act 1933................................................................ 49
1.3.13
The Present Physical Arrangement of the Register .....................................................50
1.3.14
SmartRegister Titling System ....................................................................................... 51
1.3.15
National Electronic Conveyancing System ................................................................... 52
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1.4
1.5
Searching the Register ............................................................................................... 54
1.4.1
Why Search? ................................................................................................................ 54
1.4.2
What May Be Searched? .............................................................................................. 55
1.4.3
Searching ...................................................................................................................... 55
1.4.4
Enterprise Business Information System (EBIS) ..........................................................55
1.4.5
Searching Online Through Land Enquiry (LEN) ...........................................................56
1.4.6
Searching Digital Title under SmartRegister ................................................................ 57
1.4.7
Purchase of Land Data ................................................................................................. 57
1.4.8
Subject to Dealing Searches ........................................................................................ 58
1.4.9
Searching by Post ......................................................................................................... 58
1.4.10
Searching by Facsimile Request .................................................................................. 58
1.4.11
Certified Copies of Paper Titles .................................................................................... 59
1.4.12
Certified Copies of Digital Titles.................................................................................... 59
1.4.13
Check Search ............................................................................................................... 59
1.4.14
Searches for Mineral Rights ......................................................................................... 60
1.4.15
Historical Searches of Paper Titles .............................................................................. 61
1.4.16
Historical Searches of Digital Titles under SmartRegister ............................................61
1.4.17
Search Certificate ......................................................................................................... 62
1.4.18
Preparation of Documents ............................................................................................ 62
1.4.19
Form of Documents ...................................................................................................... 63
Requirements as to Form ........................................................................................... 64
1.5.1
General ......................................................................................................................... 64
1.5.2
Size, Margins, Quality and Binding ............................................................................... 64
1.5.3
Private Printing ............................................................................................................. 64
1.5.4
Form Approval: ............................................................................................................. 64
1.5.5
Printed Freehold Land Registration Forms................................................................... 66
1.5.6
Amendment of Document Forms Due to SmartRegister ..............................................68
1.5.7
Completing Documents when a SmartRegister Title Exists .........................................69
1.5.8
Memorandum of Common Provisions .......................................................................... 69
1.5.9
Documents for which No Form is Provided .................................................................. 70
1.5.10
Additional Pages ........................................................................................................... 70
1.5.11
Insert Sheets ................................................................................................................. 70
1.5.12
Other Provisions Relating to Documents ...................................................................... 71
1.5.13
Fees .............................................................................................................................. 71
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1.6
1.7
1.8
1.9
1.10
Stamp Duty ................................................................................................................. 72
1.6.1
General ......................................................................................................................... 72
1.6.2
Cocos (Keeling) Islands and Christmas Island ............................................................. 72
1.6.3
Evidence for Caveats .................................................................................................... 72
1.6.4
Additional Stamping ...................................................................................................... 72
1.6.5
Documents that Require Stamping ............................................................................... 73
Parties to Documents.................................................................................................. 74
1.7.1
General ......................................................................................................................... 74
1.7.2
Name ............................................................................................................................ 74
1.7.3
Non Anglicised Names ................................................................................................. 74
1.7.4
Corporation Names ....................................................................................................... 75
1.7.5
Address ......................................................................................................................... 75
Occupation (Shown for Witnesses and Declarations).................................................. 76
1.8.1
Adults ............................................................................................................................ 76
1.8.2
Minors ........................................................................................................................... 76
Land ........................................................................................................................... 77
1.9.1
Estate and Interest ........................................................................................................ 77
1.9.2
Description of Land ....................................................................................................... 77
1.9.3
Sketches in Documents to Identify Part of the Land in a Certificate of Title ................78
1.9.4
Encumbrances .............................................................................................................. 79
Execution of Documents ............................................................................................. 80
1.10.1
General ......................................................................................................................... 80
1.10.2
Execution by Making a Cross or Mark .......................................................................... 81
1.10.3
Examples of Marksman’s Clauses ............................................................................... 81
1.10.4
Execution by an Administrator (and Appointment of) ...................................................84
1.10.5
Execution by an Attorney .............................................................................................. 85
1.10.6
Execution by a Corporation under the Corporations Act 2001 .....................................85
1.10.7
Execution by a Liquidator ............................................................................................. 89
1.10.8
Execution by an Official Manager ................................................................................. 90
1.10.9
Execution by a Receiver ............................................................................................... 91
1.10.10 Execution by a Registered Friendly Society ................................................................. 92
1.10.11 Execution by an Incorporated Association ................................................................... 93
1.10.12 Execution of Statutory Declarations ............................................................................. 94
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1.10.13 Aboriginal and Torres Strait Islander Corporations ......................................................94
1.10.14 Execution by a foreign registered Corporation ............................................................. 94
1.10.15 Execution of Electronic documents .............................................................................. 95
1.11
1.12
1.13
Capacity of Parties...................................................................................................... 98
1.11.1
Minors ........................................................................................................................... 98
1.11.2
Partnerships .................................................................................................................. 98
Incapable Persons ...................................................................................................... 99
1.12.1
Before 7 September, 1990............................................................................................ 99
1.12.2
After 7 September, 1990............................................................................................... 99
1.12.3
Dealings by a Manager or Administrator .................................................................... 100
1.12.4
Dealings by the Protective Commissioner of New South Wales ................................101
1.12.5
Power of the Public Trustee Where an Incapable Person is Domiciled in Other
Jurisdictions ................................................................................................................ 103
Registration .............................................................................................................. 104
1.13.1
Importance of Registration.......................................................................................... 104
1.13.2
Lodging of Documents ................................................................................................ 104
1.13.3
Lodgement by Post ..................................................................................................... 105
1.13.4
Order of Registration .................................................................................................. 105
1.13.5
Payment of Fees ......................................................................................................... 106
1.13.6
Priority of Registration ................................................................................................ 106
1.13.7
Priority of Registration - Computer Failure ................................................................. 106
1.13.8
Computer Record - Unregistered Dealings ................................................................ 107
1.13.9
Followers..................................................................................................................... 107
1.13.10 Amendment of Documents Before Lodgement ..........................................................107
1.13.11 Amendment of Documents After Lodgement ............................................................. 108
1.13.12 Patent Errors ............................................................................................................... 108
1.13.13 Fast Track (Priority) Processing of Documents ..........................................................109
1.13.14 Requests to Expedite the Processing of Plans and Documents ................................111
1.13.15 Lodging of Electronic documents ............................................................................... 113
1.14
Stopped Documents ................................................................................................. 115
1.14.1
General ....................................................................................................................... 115
1.14.2
Power to Require Amendments .................................................................................. 115
1.14.3
Requisition Notices ..................................................................................................... 115
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1.15
1.16
1.17
1.14.4
Uplifting Requisitioned (Stopped) Documents ............................................................ 116
1.14.5
Fixing Stopped Documents......................................................................................... 117
1.14.6
Withdrawal of Documents from Registration .............................................................. 118
1.14.7
Rejection of Documents.............................................................................................. 118
Rectification in the Register and on Instruments (after Registration) ......................... 119
1.15.1
General ....................................................................................................................... 119
1.15.2
Street Address and Local Government Statements ...................................................119
Issue of Instruments after Registration...................................................................... 120
1.16.1
General ....................................................................................................................... 120
1.16.2
Issuing Receipts ......................................................................................................... 120
Service of Court Orders upon the Registrar .............................................................. 123
1.17.1
General ....................................................................................................................... 123
1.17.2
Registrar’s Packets ..................................................................................................... 123
1.17.3
Status Reports (on Registrar’s Packets) .................................................................... 124
2.
Dealings: Transfers, Mortgages, Leases, Charges, Profits a’
Prendre, Carbon Rights, Carbon Covenants and Tree Plantation
Agreements .................................................................................. 125
2.1
Transfers .................................................................................................................. 126
2.1.1
General ....................................................................................................................... 126
2.1.2
Choose the Correct Form ........................................................................................... 126
2.1.3
Describe the Land Being Transferred......................................................................... 127
2.1.4
Describe the Estate or Interest Being Transferred .....................................................127
2.1.5
Set Out Limitations, Interests, Encumbrances and Notifications................................127
2.1.6
Describe the Transferor(s) .......................................................................................... 127
2.1.7
Show the True Consideration ..................................................................................... 128
2.1.8
Describe the Transferee(s) ......................................................................................... 128
2.1.9
Attestation ................................................................................................................... 128
2.1.10
Straightforward Transfer of Land ................................................................................ 128
2.1.11
Transfer - Where Land is Encumbered ...................................................................... 128
2.1.12
Transfers to Joint Tenants .......................................................................................... 129
2.1.13
Transfers to Tenants in Common ............................................................................... 129
2.1.14
Transfer - Tenants in Common and Joint Tenants .....................................................129
2.1.15
Purple Title .................................................................................................................. 130
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2.2
2.3
2.1.16
Transfer by a Tenant in Common of His or Her Entire Interest to a Stranger ............130
2.1.17
Transfer by a Proprietor to Himself ............................................................................. 130
2.1.18
Transfer by a Tenant in Common of Part of His or Her Interest to a Stranger or
Strangers .................................................................................................................... 130
2.1.19
Transfer by a Tenant in Common of the Whole of His or Her Interest to the Other CoTenant or Co-Tenants ................................................................................................. 131
2.1.20
Transfer by a Tenant In Common of Part of His or Her Interest to a Co-Tenant .......131
2.1.21
Transfer by One Joint Tenant to a Stranger ............................................................... 132
2.1.22
Transfers Between Joint Tenants ............................................................................... 132
2.1.23
Transfer to Effect a Partition of Land .......................................................................... 133
2.1.24
Transfer to Effect a Change of Tenancy..................................................................... 133
2.1.25
Transfer by Direction .................................................................................................. 133
2.1.26
Transfer Reciting an Assignment ............................................................................... 134
2.1.27
Creation of Life Estates and Estates in Remainder ....................................................134
2.1.28
Transfer by Life Tenants ............................................................................................. 136
2.1.29
Transfer by Remainderman ........................................................................................ 136
2.1.30
Transfer to a Personal Representative (Executor or Administrator) ..........................136
2.1.31
Transfers by Executors and Administrators With the Will Annexed ...........................137
2.1.32
Transfer by Attorney Under EPA or by Administrator Under Board Order to Self or
Family Member ........................................................................................................... 137
Transfers by an Administrator ................................................................................... 139
2.2.1
General ....................................................................................................................... 139
2.2.2
Transfer by Way of Sale ............................................................................................. 139
2.2.3
Transfer by Way of Distribution or Appropriation .......................................................139
2.2.4
Transfer by Personal Representatives to Themselves or One of Them ....................140
2.2.5
Transfer by Mortgagee Exercising Power of Sale ......................................................141
2.2.6
Transfer by Mortgagee Exercising Power of Sale for Mortgages under the National
Credit Code ................................................................................................................. 145
2.2.7
Transfer by a Debenture Holder ................................................................................. 148
2.2.8
Transfer by Annuitant (Chargee) ................................................................................ 149
2.2.9
Transfers by Sale for Rates (Local Government Act 1995) ........................................149
2.2.10
Transfer Pursuant to a Property (Seizure and Sale) Order ........................................150
Transfer: Land of Deregistered Company ................................................................. 152
2.3.1
Companies Deregistered Prior to 1 January, 1991 (Representative Provisions) .......152
2.3.2
Companies Deregistered Prior to 1 January, 1991(Disposal Provisions) ..................153
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2.4
2.5
2.6
2.3.3
Execution by the Australian Securities & Investments Commission ..........................153
2.3.4
Evidence to Support the Transfer Referred to in Chapter 2.3.1 and 2.3.2 .................154
2.3.5
Companies Deregistered on or After 1 January, 1991 (Representative Provisions)..154
2.3.6
Companies Deregistered on or After 1 January, 1991 (Disposal Provisions) ............155
2.3.7
Attestation and Supporting Evidence ......................................................................... 155
2.3.8
Distribution in Specie .................................................................................................. 155
2.3.9
Beneficiaries ............................................................................................................... 156
2.3.10
Transfers of a Lot on a Strata/Survey-Strata Plan......................................................156
2.3.11
Transfer of Part of The Common Property of a Strata/Survey-Strata Plan ................157
2.3.12
Transfers Creating Easements and Covenants..........................................................158
Transfer of Mortgage, Charge or Lease .................................................................... 159
2.4.1
General ....................................................................................................................... 159
2.4.2
Transfer of Mortgage .................................................................................................. 159
2.4.3
Transfer of Charge ...................................................................................................... 159
2.4.4
Transfer of Lease ........................................................................................................ 160
Transfers to and from the State of Western Australia ................................................ 161
2.5.1
Transfer and Surrender of Fee Simple Land to State of Western Australia ...............161
2.5.2
Leasehold Land .......................................................................................................... 161
2.5.3
Transfer of Crown Land to Fee Simple Land.............................................................. 161
Mortgages and Discharges ....................................................................................... 163
2.6.1
Form of Mortgage ....................................................................................................... 163
2.6.2
Mortgages under the National Credit Code ................................................................ 166
2.6.3
Tenancy of the Mortgagees ........................................................................................ 167
2.6.4
Mortgage by a Tenant in Common of that Interest .....................................................167
2.6.5
Mortgage by a Joint Tenant of that Interest ................................................................ 167
2.6.6
Mortgage by a Life Tenant .......................................................................................... 168
2.6.7
Mortgage by a Remainderman ................................................................................... 168
2.6.8
Mortgage by Life Tenant and Remainderman Together ............................................168
2.6.9
Mortgage by Personal Representative ....................................................................... 168
2.6.10
Mortgages - Double Interest ....................................................................................... 169
2.6.11
Mortgage to a Trustee ................................................................................................ 169
2.6.12
Up Stamping a Mortgage ............................................................................................ 170
2.6.13
Extension of Mortgage ................................................................................................ 170
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2.7
2.8
2.6.14
Discharge of Mortgage ............................................................................................... 171
2.6.15
Discharge - Where Mortgagee Absent from WA ........................................................172
2.6.16
Discharge - Payment to Absent Mortgagee................................................................ 172
2.6.17
Discharge - Where the Mortgage Money has Been Paid and the Mortgagee is Dead or
Absent from the State or Cannot Be Found ............................................................... 173
2.6.18
Mortgage - Merger of Mortgage .................................................................................. 173
2.6.19
Discharge by a Company or Incorporated Body.........................................................173
2.6.20
Discharge by a Friendly Society ................................................................................. 173
Charges and Discharges .......................................................................................... 174
2.7.1
Charge ........................................................................................................................ 174
2.7.2
Discharge of Charge ................................................................................................... 174
2.7.3
Discharge - Where Annuitant is Dead and there is No Personal Representative ......175
2.7.4
Extension of Charge ................................................................................................... 175
Leases of Land ......................................................................................................... 176
2.8.1
Form ............................................................................................................................ 176
2.8.2
Options to Renew a Lease ......................................................................................... 177
2.8.3
Option to Purchase ..................................................................................................... 177
2.8.4
Narrative Description of Buildings .............................................................................. 178
2.8.5
Covenants by the Lessee ........................................................................................... 178
2.8.6
Powers of the Lessor .................................................................................................. 178
2.8.7
Short Form of Covenants ............................................................................................ 178
2.8.8
Memorandum of Common Provisions ........................................................................ 178
2.8.9
Transfer of Lease ........................................................................................................ 178
2.8.10
Surrender of Lease ..................................................................................................... 179
2.8.11
Recovery of Possession by Lessor (Section 96) ........................................................179
2.8.12
Re-Entry by Lessor or Sub-Lessor (Section 104) .......................................................179
2.8.13
Merger of Lease .......................................................................................................... 180
2.8.14
Sub-Lease................................................................................................................... 180
2.8.15
Concurrent Leases ..................................................................................................... 181
2.8.16
Extension of Lease ..................................................................................................... 181
2.8.17
Variation of Lease ....................................................................................................... 182
2.8.18
Removal of Expired Term Lease of Crown Land........................................................182
2.8.19
Forfeiture of Lease of Crown Land ............................................................................. 184
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2.9
2.10
2.11
2.12
2.8.20
Pastoral Leases .......................................................................................................... 184
2.8.21
Removal of Expired Freehold Lease .......................................................................... 185
Profits a’ Prendre ...................................................................................................... 186
2.9.1
General ....................................................................................................................... 186
2.9.2
Profits a’ Prendre under the Conservation and Land Management Act 1984 ............186
2.9.3
Profits a’ Prendre under the Forest Products Act 2000 ..............................................187
2.9.4
Transfer of Profits a’ Prendre under the Conservation and Land Management Act
1984 and the Forest Products Act 2000 ..................................................................... 188
2.9.5
Surrender of Profits a’ Prendre under the Conservation and Land Management Act
1984 and the Forest Products Act 2000 ..................................................................... 189
2.9.6
Profits a’ Prendre Under the LAA in Respect of Crown Land.....................................190
Carbon Rights ........................................................................................................... 192
2.10.1
General ....................................................................................................................... 192
2.10.2
Carbon Rights Act 2003.............................................................................................. 192
2.10.3
Creation of a Carbon Right ......................................................................................... 192
2.10.4
Registration of a Carbon Right ................................................................................... 193
2.10.5
Extension of a Carbon Right ....................................................................................... 194
2.10.6
Transfer of a Carbon Right ......................................................................................... 194
2.10.7
Mortgage of a Carbon Right ....................................................................................... 195
2.10.8
Surrender of a Carbon Right....................................................................................... 195
Carbon Covenants .................................................................................................... 196
2.11.1
General ....................................................................................................................... 196
2.11.2
Carbon Rights Act 2003.............................................................................................. 196
2.11.3
Creation of a Carbon Covenant .................................................................................. 196
2.11.4
Registration of a Carbon Covenant ............................................................................ 197
2.11.5
Extension of a Carbon Covenant ................................................................................ 198
2.11.6
Variation of a Carbon Covenant ................................................................................. 199
2.11.7
Transfer of Benefits under a Carbon Covenant ..........................................................199
2.11.8
Mortgage of a Carbon Covenant ................................................................................ 200
2.11.9
Surrender of a Carbon Covenant ............................................................................... 200
Tree Plantation Agreements ..................................................................................... 201
2.12.1
General ....................................................................................................................... 201
2.12.2
Tree Plantation Agreements Act 2003 ........................................................................ 201
2.12.3
Creation of a Plantation Interest ................................................................................. 201
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2.12.4
Registration of a Tree Plantation Agreement ............................................................. 202
2.12.5
Extension of a Plantation Interest ............................................................................... 203
2.12.6
Variation of a Tree Plantation Agreement .................................................................. 204
2.12.7
Transfer of a Plantation Interest ................................................................................. 205
2.12.8
Mortgage of a Plantation Interest ............................................................................... 205
2.12.9
Surrender of a Plantation Interest ............................................................................... 205
3.
Applications .................................................................................. 207
3.1
Applications .............................................................................................................. 208
3.2
3.3
3.4
3.1.1
General ....................................................................................................................... 208
3.1.2
Effect of Applications .................................................................................................. 208
3.1.3
Forms .......................................................................................................................... 208
3.1.4
General Requirements ................................................................................................ 209
3.1.5
Presentation of Evidence ............................................................................................ 209
Statutory Declarations............................................................................................... 210
3.2.1
Declarations Made for the Purposes of the TLA.........................................................210
3.2.2
Form ............................................................................................................................ 210
3.2.3
Witnessing Statutory Declarations .............................................................................. 211
3.2.4
Authorised Witnesses Inside Western Australia .........................................................211
3.2.5
Authorised Witnesses Outside Western Australia ......................................................213
3.2.6
Content ....................................................................................................................... 213
3.2.7
Declarations by Two or More Persons ....................................................................... 214
3.2.8
Amendments to a Declaration .................................................................................... 214
3.2.9
Evidence Produced ..................................................................................................... 214
3.2.10
Attachments ................................................................................................................ 214
Transmission Applications (Section 219 of the TLA) ................................................. 215
3.3.1
On Death of Registered Proprietor ............................................................................. 215
3.3.2
Who May Apply ........................................................................................................... 216
3.3.3
Who May Not Apply .................................................................................................... 216
Survivorship Applications (Section 227 of the TLA) ................................................... 217
3.4.1
On Death of a Joint Tenant......................................................................................... 217
3.4.2
Who May Apply ........................................................................................................... 218
3.4.3
Bars to Survivorship .................................................................................................... 218
3.4.4
On Death of a Life Tenant .......................................................................................... 219
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3.4.5
3.5
3.6
3.7
3.8
Application by a Trustee in Bankruptcy (Section 234 of the TLA) ..............................219
Amendment of Name ................................................................................................ 221
3.5.1
General ....................................................................................................................... 221
3.5.2
Married Women .......................................................................................................... 221
3.5.3
Form ............................................................................................................................ 221
3.5.4
Evidence Required for Simple Amendment of Name in Case of Error ......................222
3.5.5
Evidence Required for Amendment of Name by Marriage .........................................222
3.5.6
Evidence Required for Amendment of Name by Licence to Change Name or Deed
Poll .............................................................................................................................. 223
3.5.7
Evidence Required for Amendment of Name by Repute or Usage. ...........................223
3.5.8
Evidence Required for Amendment of Name by a Certificate Issued by the Registrar of
Births, Deaths and Marriages ..................................................................................... 224
3.5.9
Evidence Required for Amendment of Name by a Corporation .................................225
3.5.10
Exception to the General Rule .................................................................................... 225
3.5.11
Amending the Address of the Registered Proprietor ..................................................226
Foreclosure (Section 121 of the TLA) ....................................................................... 227
3.6.1
General ....................................................................................................................... 227
3.6.2
How to Apply ............................................................................................................... 227
3.6.3
Requirements ............................................................................................................. 227
3.6.4
Notice of Default ......................................................................................................... 228
3.6.5
Evidence Required ..................................................................................................... 228
3.6.6
Certificate of Auctioneer ............................................................................................. 228
3.6.7
Conditions of Sale ....................................................................................................... 229
3.6.8
Copies of Advertisements ........................................................................................... 229
3.6.9
Attempt to Sell by Landgate........................................................................................ 229
3.6.10
Final Declaration of Mortgagee .................................................................................. 229
3.6.11
Preparation, Stamping and Processing of the Order ..................................................230
3.6.12
Effect of Order ............................................................................................................ 230
Vesting Orders (Section 182 of the TLA) .................................................................. 231
3.7.1
General ....................................................................................................................... 231
3.7.2
Evidence Required ..................................................................................................... 231
3.7.3
Preparation, Stamping and Processing of the Order ..................................................232
Vesting Orders (Section 183 of the TLA) .................................................................. 233
3.8.1
General ....................................................................................................................... 233
3.8.2
Evidence Required ..................................................................................................... 233
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3.9
3.10
Vesting Orders (Section 242 of the TLA) .................................................................. 234
3.9.1
General ....................................................................................................................... 234
3.9.2
Evidence Required ..................................................................................................... 235
New Duplicate Certificate of Title (Section 75 of the TLA) ......................................... 236
3.10.1
General ....................................................................................................................... 236
3.10.2
Declaration in Support ................................................................................................ 237
3.10.3
Evidence Required ..................................................................................................... 238
3.10.4
Advertising of Application (Paper Title, Crown Lease and Lease of Crown Land only)238
3.11
Removal of Caveats (Section 138B of the TLA) ........................................................ 239
3.12
Removal of Caveats (Section 141A of the TLA) ........................................................ 241
3.13
Search Certificates (s.146 and 147 of the TLA) ........................................................ 242
3.13.1
General ....................................................................................................................... 242
3.13.2
Stay Orders (Section 148 of the TLA) ........................................................................ 242
3.14
Amendment of Boundaries, Area or Position ............................................................ 243
3.15
Vesting under Section 197 of the Planning and Development Act 2005 (P&D Act) ... 243
3.16
Name Suppression ................................................................................................... 244
3.16.1
Eligibility for Name Suppression ................................................................................. 244
3.16.2
How to Apply for Name Suppression .......................................................................... 245
3.16.3
How to Submit your Name Suppression Application ..................................................245
3.16.4
Extent of Name Suppression ...................................................................................... 246
3.17
Other Applications Dealt with Elsewhere .................................................................. 246
4.
Caveats, Writs and Warrants, Property (Seizure & Sale) Orders ..247
4.1
Caveats .................................................................................................................... 248
4.1.1
General ....................................................................................................................... 248
4.1.2
Purpose....................................................................................................................... 248
4.1.3
Entry of a Caveat ........................................................................................................ 248
4.1.4
Improper Entry of Caveat............................................................................................ 248
4.1.5
Interest in Land Capable of Supporting a Caveat ......................................................249
4.1.6
Registered Proprietor’s Caveat .................................................................................. 249
4.1.7
Caveat to Prevent Improper Dealings ........................................................................ 250
4.1.8
Traditional Interests that Support a Caveat ................................................................ 251
4.1.9
Nature of the Caveator’s Claim................................................................................... 252
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4.2
4.3
4.4
4.1.10
Registrar’s Role .......................................................................................................... 254
4.1.11
Types of Caveats ........................................................................................................ 254
4.1.12
Forms to Use .............................................................................................................. 254
Caveats Lodged under Section 137 of the TLA and Section 20 of the LAA ............... 255
4.2.1
Who May Lodge a Caveat Over Freehold Land .........................................................255
4.2.2
Who May Lodge a Caveat Over Crown Land ............................................................. 255
4.2.3
How the Claim is Stated ............................................................................................. 256
4.2.4
Supporting Documentary Evidence ............................................................................ 256
4.2.5
Supporting Statutory Declarations .............................................................................. 257
4.2.6
Land ............................................................................................................................ 257
4.2.7
Who May Sign Caveats .............................................................................................. 259
4.2.8
Notice to Registered Proprietors ................................................................................ 259
4.2.9
Address for Service of Notice ..................................................................................... 259
4.2.10
Change of Address for Service of Notice ................................................................... 259
4.2.11
Caveat against Applications to Bring Land under the Operation of the TLA (Section
30) ............................................................................................................................... 260
4.2.12
Caveat against an Application to Rectify the Boundaries or Area of the Relevant
Graphic for a Title (Section 176 of the TLA) ............................................................... 260
4.2.13
Caveat against an Application by Possession of Land Already under The TLA (Section
223A) .......................................................................................................................... 260
Removal of Caveats ................................................................................................. 261
4.3.1
By Withdrawal ............................................................................................................. 261
4.3.2
By Lapse under Section 138 of the TLA (14 Days Notice) .........................................261
4.3.3
Caveat (Improper Dealings)........................................................................................ 262
4.3.4
By Taking or Acquisition ............................................................................................. 262
4.3.5
By Order of the Court .................................................................................................. 262
4.3.6
By Sale For Rates ....................................................................................................... 262
4.3.7
By the Application of the Registered Proprietor under Section 138B .........................262
4.3.8
By the Application of the Registered Proprietor or Any Person Claiming an Interest in
the Land under Section 141A ..................................................................................... 262
4.3.9
By a Sale under a Property (Seizure and Sale) Order ...............................................262
Writs of Fieri Facias and Warrants of Execution........................................................ 263
4.4.1
General ....................................................................................................................... 263
4.4.2
How Lodged ................................................................................................................ 263
4.4.3
Effect of Lodgement.................................................................................................... 264
4.4.4
Interests in Land Protected Against Execution ...........................................................264
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4.5
4.6
4.7
Removal of Writs and Warrants ................................................................................ 265
4.5.1
By Application ............................................................................................................. 265
4.5.2
By the Commissioner of Titles .................................................................................... 265
4.5.3
By Expiry of the Four Month Period ............................................................................ 265
4.5.4
By Taking or Acquisition ............................................................................................. 265
4.5.5
By Exercise of a Mortgagee’s Power of Sale ............................................................. 266
4.5.6
By Sale For Rates ....................................................................................................... 266
4.5.7
By Transfer by the Sheriff, Bailiff or Magistrate ..........................................................266
Property (Seizure and Sale) Orders (PSSO) ............................................................. 267
4.6.1
General ....................................................................................................................... 267
4.6.2
How Lodged ................................................................................................................ 267
4.6.3
Effect of Registration .................................................................................................. 268
4.6.4
Application to Register an Order Extending the Sale Period in a Property (Seizure and
Sale) Order ................................................................................................................. 269
Removal of Property (Seizure and Sale) Orders ....................................................... 270
4.7.1
General ....................................................................................................................... 270
4.7.2
Application to Register a Discharge of a Property (Seizure and Sale) Order ............270
4.7.3
By Exercise of a Mortgagee’s Power of Sale ............................................................. 270
4.7.4
By Transfer by the Sheriff ........................................................................................... 270
5.
Powers of Attorney and Declarations of Trust............................... 271
5.1
Powers of Attorney ................................................................................................... 272
5.1.1
General ....................................................................................................................... 272
5.1.2
Noting and Filing ......................................................................................................... 272
5.1.3
Production For Sighting .............................................................................................. 273
5.1.4
Schedule Form ........................................................................................................... 274
5.1.5
Power of Attorney by a Corporation ........................................................................... 275
5.1.6
Power of Attorney by Trustee ..................................................................................... 276
5.1.7
Powers of Attorney in a General Lien, etc. ................................................................. 278
5.1.8
Limited Powers of Attorney ......................................................................................... 278
5.1.9
Irrevocable Power of Attorney .................................................................................... 279
5.1.10
Powers Contained in Leases, Contracts, etc.............................................................. 279
5.1.11
Powers Contained in Mortgages ................................................................................ 279
5.1.12
Limit of Attorney’s Power ............................................................................................ 280
5.1.13
Execution of Documents by Attorney ......................................................................... 280
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5.2
5.3
Enduring Powers of Attorney .................................................................................... 281
5.2.1
General ....................................................................................................................... 281
5.2.2
Appointment of Substitutes ......................................................................................... 282
5.2.3
Duration ...................................................................................................................... 282
5.2.4
Noting and Filing ......................................................................................................... 283
5.2.5
Witnessing Requirements ........................................................................................... 284
5.2.6
Execution of Documents by Attorney ......................................................................... 284
Revocation................................................................................................................ 285
5.3.1
Revocation of (TLA) Power of Attorney ...................................................................... 285
5.3.2
Revocation of an Enduring Power of Attorney............................................................ 286
5.3.3
Notification of Death of the Donor .............................................................................. 286
5.4
Declarations of Trust (Section 55 of the TLA) ........................................................... 287
6.
Subdivision and Strata/Survey Strata Plans ................................. 289
6.1
Subdivision ............................................................................................................... 290
6.2
6.3
6.1.1
General ....................................................................................................................... 290
6.1.2
Lodgement of Plans .................................................................................................... 290
6.1.3
Lot Synchronisation for New Subdivisions ................................................................. 290
6.1.4
Plans Marked Subject to Examination ........................................................................ 291
6.1.5
The Plan Examination Process .................................................................................. 292
6.1.6
Plan Approval ............................................................................................................. 292
6.1.7
Where a Plan is Shown Certified Correct ................................................................... 293
6.1.8
Where a Plan is Shown In Order for Dealings ............................................................ 293
6.1.9
Where a Plan is Shown Expired ................................................................................. 293
6.1.10
Comments with Internal Impact .................................................................................. 294
6.1.11
Comments with External Impact ................................................................................. 295
6.1.12
Compiled Plans ........................................................................................................... 297
Applications for New Titles ........................................................................................ 298
6.2.1
New Titles for Subdivisions......................................................................................... 298
6.2.2
Balance Titles ............................................................................................................. 299
6.2.3
Separate Titles ............................................................................................................ 300
6.2.4
Reversion to Crown Allotments .................................................................................. 300
Strata/Survey-Strata Plans ....................................................................................... 301
6.3.1
General ....................................................................................................................... 301
6.3.2
Strata / Survey-Strata Plans – Elements in Common ................................................302
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6.4
6.5
6.6
6.7
6.3.3
Strata Plan – Additional Elements .............................................................................. 303
6.3.4
Survey-Strata Plans – Additional Elements ................................................................ 303
6.3.5
Searching a Strata Lot ................................................................................................ 304
6.3.6
Strata Title................................................................................................................... 304
6.3.7
Production of Duplicate Strata Titles .......................................................................... 304
Lodgement and Registration of New Strata/Survey-Strata Plans .............................. 305
6.4.1
General ....................................................................................................................... 305
6.4.2
Easements in Respect of Encroachments (Including Easements of Support) ...........307
6.4.3
Effect of Registration .................................................................................................. 307
6.4.4
Conversion of Share (Purple) Titles to Strata Titles ...................................................308
6.4.5
Disposition Statements For Tenancies in Common ...................................................309
6.4.6
Disposition Statements for Plans of Re-Subdivision ..................................................310
6.4.7
Management Statements............................................................................................ 311
6.4.8
Strata Company .......................................................................................................... 312
6.4.9
Powers and Duties of the Strata Company ................................................................ 312
1996 Single Tier Merger and Conversion Options..................................................... 313
6.5.1
General ....................................................................................................................... 313
6.5.2
Merger by Resolution of Buildings that are Common Property ..................................314
6.5.3
Automatic Merger of Buildings that are Common Property ........................................315
6.5.4
Merger by Resolution of Land that is Common Property ...........................................316
6.5.5
Merger by Resolution of Buildings and Land That Are Common Property ................320
6.5.6
Conversion of Strata Schemes to Survey-Strata Schemes........................................320
Enlargement of the Common Property ...................................................................... 324
6.6.1
General ....................................................................................................................... 324
6.6.2
By Conversion of a Strata/Survey-Strata Lot.............................................................. 324
6.6.3
By Purchase or Lease of Adjoining Land ................................................................... 325
6.6.4
By Inclusion of a Closed Public Road or Other Unallocated Crown Land under Section
87 of the LAA .............................................................................................................. 326
6.6.5
By Inclusion of a Closed Private Road or Right of Way under Section 297A of the
Local Government (Miscellaneous Provisions) Act 1960 ...........................................326
Sale or Lease of Part of the Common Property ......................................................... 327
6.7.1
Sale of Part of the Common Property ......................................................................... 327
6.7.2
Lease of Part of The Common Property ..................................................................... 327
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6.8
6.9
6.10
6.11
6.12
Modifications to an Existing Strata/Survey-Strata Scheme ........................................ 328
6.8.1
General ....................................................................................................................... 328
6.8.2
Change of Name ......................................................................................................... 328
6.8.3
Change of Address for Service of Notices .................................................................. 328
6.8.4
Re-Allocation of Unit Entitlement on a Strata/Survey-Strata Plan ..............................329
6.8.5
Re-Subdivision of Strata/Survey-Strata Plans ............................................................ 330
6.8.6
Consolidation of Two or More Strata/Survey-Strata Lots ...........................................332
6.8.7
Addition, Variation or Removal of Restriction as to Use .............................................333
Variation or Termination of a Strata Scheme ............................................................ 334
6.9.1
Variation Upon Damage or Destruction (section 28 of the STA) ................................334
6.9.2
Termination by Unanimous Resolution (Section 30 of the STA) ................................334
6.9.3
Termination for the Purpose of Creating a New Strata/Survey-Strata Scheme – Where
Encumbrances on Lots are to be Carried Forward ....................................................335
6.9.4
Termination by the Taking of the Whole of the Parcel (Section 29C of the STA) ......335
6.9.5
Termination by Order of District Court (Section 31 of the STA) .................................335
Termination of a Survey-Strata Scheme ................................................................... 336
6.10.1
Termination by Unanimous Resolution (Section 30A of the STA)..............................336
6.10.2
Termination by the Taking of the Whole of the Parcel (Section 29C of the STA) ......336
6.10.3
Termination by Order of District Court (Section 31 of the STA) .................................336
Amendment of By-Laws ............................................................................................ 337
6.11.1
General ....................................................................................................................... 337
6.11.2
Registration of an Amendment of By-Laws ................................................................ 338
6.11.3
Exclusive Use By-Laws .............................................................................................. 338
The State Administrative Tribunal ............................................................................. 339
6.12.1
General ....................................................................................................................... 339
6.12.2
Applications to the State Administrative Tribunal .......................................................339
6.12.3
Orders of the State Administrative Tribunal................................................................ 340
6.12.4
Appeals ....................................................................................................................... 341
6.12.5
Registration of an Order of the State Administrative Tribunal ....................................341
6.12.6
Registration of an Order by the State Administrative Tribunal to Vary the Unit
Entitlement .................................................................................................................. 342
6.12.7
Registration of an Order of the State Administrative Tribunal with Regard to
Retirement Village Disputes ....................................................................................... 342
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7.
Easements and Covenants .......................................................... 343
7.1
Easements................................................................................................................ 344
7.2
7.3
7.1.1
General ....................................................................................................................... 344
7.1.2
Types of Easements ................................................................................................... 344
7.1.3
Essentials for the Registration of an Easement..........................................................345
7.1.4
How Created ............................................................................................................... 345
7.1.5
Easements Created by Deed...................................................................................... 346
7.1.6
Easements Incorporated in a Transfer ....................................................................... 347
7.1.7
Easements Created in a Plan of Subdivision Pursuant to Section 167 of the P&D Act
(Formerly Section 27A of the TP&D Act) .................................................................... 348
7.1.8
Creation of Easements on Plans of Subdivisions under Part IVA of the TLA ............348
7.1.9
Creation of Easements under Section 5D by Notation on Survey-Strata Plans .........351
7.1.10
Easements over Crown Land ..................................................................................... 352
7.1.11
Variation of Easement over Crown Land .................................................................... 353
Removal of Easements ............................................................................................. 354
7.2.1
Surrender .................................................................................................................... 354
7.2.2
Abandonment ............................................................................................................. 354
7.2.3
Merger......................................................................................................................... 356
7.2.4
Taking ......................................................................................................................... 356
7.2.5
By Court Order ............................................................................................................ 356
7.2.6
By Order of the Registrar ............................................................................................ 356
7.2.7
Discharge and Modification of Easements Created under Part IVA ..........................357
7.2.8
Discharge or Variation of Easements Created under Section 5D by Notation on
Survey-Strata Plans .................................................................................................... 358
7.2.9
Cancellation of Easements Over Crown Land............................................................ 359
Covenants ................................................................................................................ 360
7.3.1
General ....................................................................................................................... 360
7.3.2
Restrictive Covenants Created by Deed .................................................................... 360
7.3.3
Restrictive Covenants in Gross .................................................................................. 361
7.3.4
Restrictive Covenants Created by Transfer................................................................ 361
7.3.5
Creation of Restrictive Covenants on Plans of Subdivision under Part IVA of the
Transfer of Land Amendment Act 1996 ...................................................................... 362
7.3.6
Creation of Covenants under the Land Administration Act 1997 ...............................365
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7.4
7.5
7.6
Types of Restrictive Covenants ................................................................................ 366
7.4.1
Estate Covenants ....................................................................................................... 366
7.4.2
Restraint of Business or Trade Covenants ................................................................. 366
7.4.3
Protected View or Outlook Covenants ........................................................................ 366
7.4.4
Covenants with the National Trust .............................................................................. 367
How Covenants are Removed .................................................................................. 368
7.5.1
General ....................................................................................................................... 368
7.5.2
By Agreement (Section 129B of the TLA) .................................................................. 368
7.5.3
By Order of the Court (Section 129C of the TLA) .......................................................369
7.5.4
Single Dwelling Restrictive Covenants s.129C (1a) ...................................................369
7.5.5
By Implementation of a Town Planning Scheme (Section 11 in Schedule 7 of the P&D
Act).............................................................................................................................. 370
7.5.6
Discharge and Modification of Restrictive Covenants Created under Part IVA .........371
7.5.7
Discharge and Modification of Restrictive Covenants in Gross..................................372
7.5.8
Discharge and Modification of Covenants under the Land Administration Act 1997 .373
Easements and Restrictive Covenants Involving Strata Companies ......................... 374
7.6.1
General ....................................................................................................................... 374
7.6.2
Strata Companies Do Not Own the Parcel in Strata Schemes ..................................374
7.6.3
Execution of Easements and Restrictive Covenants by Strata Companies ...............374
7.6.4
Execution of Easements and Restrictive Covenants by Proprietors of Proposed
Strata/Survey-Strata Lots - with Proprietors of Land Outside the Scheme ................375
7.6.5
Easements in Respect of Encroachments.................................................................. 375
8.
Roads and Their Closure.............................................................. 377
8.1
Roads and their Closure ........................................................................................... 378
8.2
Creation of Public Roads .......................................................................................... 379
8.3
8.2.1
Crown Land................................................................................................................. 379
8.2.2
Alienated Land ............................................................................................................ 379
8.2.3
Railway Land .............................................................................................................. 380
8.2.4
Ownership, Care, Control and Access to Roads ........................................................380
Creation of Private Roads ......................................................................................... 382
8.3.1
Private Roads and Rights of Way............................................................................... 382
8.3.2
Pedestrian Accessways and Rights of Way under Section 152 of the Planning and
Development Act 2005 ............................................................................................... 382
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8.4
Closure of Roads, Pedestrian Accessways and Rights of Way ................................. 383
8.4.1
Closure of Public Roads ............................................................................................. 383
8.4.2
Disposal of Land in a Closed Road ............................................................................ 383
8.4.3
Closure of Private Roads and Rights of Way by Application......................................385
8.4.4
Closure of Private Roads and Rights of Way at the Request of Local Governments 386
8.4.5
Closure of Pedestrian Accessways and Rights of Way Vested under Section 20A of
the Town Planning and Development Act 1928 .........................................................388
9.
Bringing Land under the TLA and Possessory Titles
(Adverse Possession)................................................................... 389
9.1
Bringing Land under the Transfer of Land Act 1893 .................................................. 390
9.2
9.1.1
General ....................................................................................................................... 390
9.1.2
Right to Apply ............................................................................................................. 390
9.1.3
How to Apply ............................................................................................................... 390
9.1.4
Form of Application ..................................................................................................... 391
9.1.5
Who May Apply ........................................................................................................... 395
9.1.6
Proving Documentary Title ......................................................................................... 395
9.1.7
Survey Requirements ................................................................................................. 395
9.1.8
Examination of Application ......................................................................................... 396
9.1.9
Caveat Against Application ......................................................................................... 396
9.1.10
Land Brought under the TLA by Operation of Other Statutes ....................................396
Applications for Title by Possession (Adverse Possession) ...................................... 397
9.2.1
How Claim Arises ....................................................................................................... 397
9.2.2
How to Apply ............................................................................................................... 397
9.2.3
Form of Application ..................................................................................................... 398
9.2.4
Proving Possessory Title ............................................................................................ 400
9.2.5
Evidence in Support .................................................................................................... 401
9.2.6
Encumbrances on Land Claimed ............................................................................... 402
9.2.7
Confirmation of Possession ........................................................................................ 402
9.2.8
Whether a Survey is Required .................................................................................... 403
9.2.9
Examination of Application ......................................................................................... 403
9.2.10
Caveat Against Application ......................................................................................... 403
9.2.11
Searching an Application for Adverse Possession .....................................................404
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10.
General Law, Licences, Deeds Poll and Applications to Register
Change of Name .......................................................................... 405
10.1
General Law ............................................................................................................. 406
10.2
10.1.1
Land under the General Law ...................................................................................... 406
10.1.2
Nature of the System .................................................................................................. 406
10.1.3
Method of Registration ................................................................................................ 407
10.1.4
Form of Conveyance .................................................................................................. 408
10.1.5
Effect of Registration .................................................................................................. 408
10.1.6
Satisfaction of Mortgages ........................................................................................... 409
10.1.7
Searches in the Register ............................................................................................ 409
Licences, Deeds Poll and Applications to Register Change of Name ........................ 410
10.2.1
Licences to Change Name ......................................................................................... 410
10.2.2
Deeds Poll................................................................................................................... 410
10.2.3
Application to Register Change of Name ................................................................... 411
11.
Charges, Notifications and Memorials .......................................... 413
11.1
General..................................................................................................................... 414
11.2
Charges .................................................................................................................... 414
11.3
11.4
11.2.1
Bankruptcy Act 1966 (Commonwealth Legislation) ....................................................414
11.2.2
The Health Act 1911 ................................................................................................... 415
Notifications .............................................................................................................. 416
11.3.1
General ....................................................................................................................... 416
11.3.2
Local Government (Miscellaneous Provisions) Act 1960 (Section 364 (2)) ...............416
11.3.3
Environmental Protection Act 1986 (Sections 65, 68A and 70) .................................417
11.3.4
Kambalda Water and Wastewater Facilities (Transfer to Water Corporation) Act 2004419
11.3.5
Planning and Development Act 2005 (Section 165) ...................................................420
11.3.6
Planning and Development Act 2005 (Section 180) ...................................................421
11.3.7
Planning and Development Act 2005 (Section 181) ...................................................422
11.3.8
Town Planning and Development Act 1928 (Section 12A) ........................................423
11.3.9
Transfer of Land Act 1893 (Section 70A) ................................................................... 424
Memorials ................................................................................................................. 425
11.4.1
Aboriginal Heritage Act 1972 ...................................................................................... 425
11.4.2
Agriculture and Related Resources Protection Act 1976 ...........................................425
11.4.3
Contaminated Sites Act 2003 ..................................................................................... 426
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11.4.4
Country Areas Water Supply Act 1947 ....................................................................... 429
11.4.5
Memorial of Advertisement for Unpaid Water Rates ..................................................430
11.4.6
Country Towns Sewerage Act 1948 ........................................................................... 430
11.4.7
Criminal Property Confiscation Act 2000 .................................................................... 431
11.4.8
East Perth Redevelopment Act 1991 ......................................................................... 434
11.4.9
Environmental Protection Act 1986 ............................................................................ 434
11.4.10 Fines, Penalties and Infringement Notices Enforcement Act 1994 ............................435
11.4.11 First Home Owner Grant Act 2000 ............................................................................. 436
11.4.12 Heritage of Western Australia Act 1990 ..................................................................... 438
11.4.13 Home Building Contracts (Home Indemnity Insurance Exemptions) Regulations 2002439
11.4.14 Industrial Lands Development Authority Act 1966 .....................................................441
11.4.15 Land Administration Act 1997 ..................................................................................... 441
11.4.16 Legal Aid Commission Act 1976 ................................................................................. 442
11.4.17 Local Government Act 1995 ....................................................................................... 443
11.4.18 Metropolitan Water Supply Sewerage & Drainage Act 1909 ......................................444
11.4.19 Proceeds of Crime Act 1987 ....................................................................................... 445
11.4.20 Proceeds of Crime Act 2002 ....................................................................................... 446
11.4.21 Retirement Villages Act 1992 ..................................................................................... 447
11.4.22 Rural Adjustment and Finance Corporation Act 1993 ................................................449
11.4.23 Rural Business Development Corporation Act 2000 ..................................................450
11.4.24 Soil and Land Conservation Act 1945 ........................................................................ 450
11.4.25 Taxation Administration Act 2003 ............................................................................... 451
11.4.26 Taxes and Charges (Land Subdivision) Legislation Amendment Act 1996 (Deferral of
Charges and Headworks Contributions)..................................................................... 453
11.4.27 Town Planning and Development Act 1928 (Section 12A) ........................................454
11.4.28 Water Services Licensing Act 1995 ............................................................................ 455
11.4.29 Western Australian Land Authority Act 1992 .............................................................. 456
12.
Crown Land, Crown Reserves and Amalgamations...................... 457
12.1
Crown Land .............................................................................................................. 458
12.1.1
General ....................................................................................................................... 458
12.1.2
Introduction to the Land Administration Act 1997 (LAA) ............................................458
12.1.3
Crown Land Administration- Department of Lands (DoL) ..........................................459
12.1.4
Defining Crown Land .................................................................................................. 459
12.1.5
Transmission of Interests from Crown to Freehold.....................................................460
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12.1.6
Registration of Pre-LAA Crown Documents ............................................................... 460
12.1.7
Minister for Lands Consent for Transactions Over Crown Land ................................463
12.1.8
Internal Interests Plans and Sites ............................................................................... 464
12.1.9
Unqualification and Validation of Qualified Crown Land Titles ...................................464
12.1.10 Subject to Survey – Not for Alienation Purposes........................................................465
12.1.11 Adjustment of Boundaries........................................................................................... 465
12.1.12 Leases of Crown Land and Documents Affecting Leases of Crown Land .................466
12.1.13 Crown Grant in Trust .................................................................................................. 466
12.1.14 Conditional Tenure Land under Section 75 of the Land Administration Act 1997......467
12.1.15 Removal of Trust from Crown Grant ........................................................................... 468
12.1.16 Revestments ............................................................................................................... 469
12.1.17 Department of Lands- Regional Teams...................................................................... 469
12.1.18 Easements and Covenants Over Crown Land ...........................................................472
12.1.19 Transfers for Purchase of Crown Land ....................................................................... 472
12.1.20 Transfers for Surrender of Freehold Land to Crown Land .........................................472
12.2
Crown Reserves ....................................................................................................... 473
12.2.1
Introduction ................................................................................................................. 473
12.2.2
Management Orders ................................................................................................... 473
12.2.3
Vesting of Crown Reserves or Crown Land ............................................................... 474
12.2.4
Revocation of Management Orders ............................................................................ 474
12.2.5
Change of Purpose of Reserve .................................................................................. 475
12.2.6
Amendment of Reserve .............................................................................................. 475
12.2.7
Cancellation of Reserve.............................................................................................. 475
12.2.8
Class A Reserves ....................................................................................................... 475
12.2.9
Class B Reserves ....................................................................................................... 476
12.2.10 Mall Reserves ............................................................................................................. 476
12.3
Amalgamations ......................................................................................................... 477
12.3.1
Conveyance and Amalgamation Order ...................................................................... 477
12.3.2
Amalgamation of Pastoral Lease Order ..................................................................... 477
12.3.3
Lease of Crown Land and Amalgamation Order ........................................................478
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13.
Taking Orders (Resumptions) and Acquisitions ............................ 479
13.1
Taking Orders (Resumptions) ................................................................................... 480
13.1.1
General ....................................................................................................................... 480
13.1.2
Crown Land................................................................................................................. 481
13.1.3
Freehold Land under the TLA ..................................................................................... 481
13.1.4
Freehold Land under the Registration of Deeds Act 1856 .........................................482
13.1.5
Freehold Land under the Strata Titles Act 1985 .........................................................482
13.1.6
Freehold Land Held by the Commonwealth ............................................................... 482
13.1.7
Land Within the DBNGP Corridor or Rail Freight Corridor .........................................482
13.1.8
Taking by Agreement.................................................................................................. 483
13.1.9
Taking Without Agreement ......................................................................................... 483
13.1.10 Authorisation Order ..................................................................................................... 484
13.1.11 Notice of Intention to Resume (Prior to the Introduction of the LAA) .........................484
13.1.12 Notice of Intention to Take .......................................................................................... 485
13.1.13 Consent for Registration of an Instrument Encumbered by a NOITT.........................488
13.1.14 Notice of Entry ............................................................................................................ 488
13.1.15 Resumptions (Prior to the Introduction of the LAA) ....................................................489
13.1.16 Taking Order ............................................................................................................... 490
13.1.17 Variance in Area with Taking Order and NOITT .........................................................492
13.1.18 Amendment or Cancellation of a Taking Order ..........................................................493
13.1.19 Taking Order Designation ........................................................................................... 493
13.1.20 Easements Created by Taking Order ......................................................................... 494
13.2
Acquisitions .............................................................................................................. 495
13.2.1
Acquisition by the Commonwealth of Australia ..........................................................495
13.2.2
Acquisition Order under the LAA ................................................................................ 496
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14.
The Western Australian Registrar and Commissioner of Titles Joint
Practice: Verification of Identity .................................................... 497
14.1
Overview................................................................................................................... 499
14.1.1
Transitional Commencement ...................................................................................... 499
14.1.2
Purpose....................................................................................................................... 499
14.1.3
Title Fraud ................................................................................................................... 500
14.1.4
Application of this Practice.......................................................................................... 500
14.1.5
Sufficient Enquiries Must be Made ............................................................................. 501
14.1.6
Identity Document Production .................................................................................... 502
14.2
Responsibility for Verification of Identity .................................................................... 503
14.3
Verification of Identity Standard ................................................................................ 503
14.4
14.3.1
The Standard .............................................................................................................. 503
14.3.2
Identity Document Production Standard ..................................................................... 504
14.3.3
Visual Verification of Identity....................................................................................... 505
Verification of Identity Practice .................................................................................. 506
14.4.1
Who should be Identified? .......................................................................................... 506
14.4.2
Who Can Do Verification of Identity? .......................................................................... 506
14.4.3
When Verification of Identity Must Occur ................................................................... 507
14.4.4
How to Identify Companies/Incorporated Bodies/Statutory Bodies ............................508
14.4.5
How to Identify a Natural Person in Australia ............................................................. 509
14.4.6
How to Identify a Natural Person Outside of Australia ...............................................511
14.4.7
The Identifier’s Role .................................................................................................... 512
14.5
Identity Documents to be Kept Secure ...................................................................... 515
14.6
Mere Mechanical Compliance Not Sufficient ............................................................. 515
14.7
Amendment .............................................................................................................. 516
14.8
Suggested Identifier Certificates (C-1 and C-2) ......................................................... 517
15.
List of Forms and Examples ......................................................... 521
15.1
List of Freehold Land Registration Forms ................................................................. 522
15.2
List of Freehold Land Registration Forms (cont.) ...................................................... 523
15.3
Freehold Form Examples .......................................................................................... 524
15.4
Crown Land Registration Forms and Crown Form Examples .................................... 524
15.4.1
Crown Land Registration Forms ................................................................................. 524
15.4.2
Crown Form examples ................................................................................................ 524
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Document Amendment Register
Edition
Date Amended
Amended By
1.0
1979
J. L. Jamieson
2.0
1986
R. A. McDonald
3.0
1994
R. A. McDonald
4.0
1997
M. Crane
5.0
1998
M. Crane
6.0
1999
M. Crane
6.1
August 2000
M. Crane
7.0
April 2001
M. Crane
7.01
July 2002
M. Crane
7.02
August 2002
M. Crane
7.1
May 2004
M. Crane
7.2
March 2006
M. Crane
7.3
September 2006
M. Crane
8.0
January 2007
M. Crane
9.0
March 2010
D. Pinker
10.0
August 2012
D. Pinker
10.1
October 2012
N. Curnow
10.2
January 2013
N. Curnow
10.3
July 2013
D. Pinker
11.0
November 2013
D. Pinker & V. McRoberts
© Western Australian Land Information Authority- Government of Western Australia
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Land Titles Registration Practice Manual- Edition 12.0
Changes Since Previous Edition
Since Edition 11.0 was released in November 2013, changes have been made and included in
this new Edition 12.0. Every effort has been made to correct typing errors.
Landgate would like to acknowledge the efforts of Leanne Herne (Assistant Registrar of Titles)
and Vikki McRoberts (Assistant Registrar of Titles) in creating this Edition of the Land Titles
Registration Practice Manual.
The following Chapters in Edition 11.0 have been amended:
•
Chapter 12 has been significantly amended to reflect the creation of the Department of
Lands.
•
References to RDL, throughout this practice manual, have been changed to Department
of Lands, where necessary.
•
Chapter 11 has changed significantly to reflect the new Freehold Land Registration forms
that do not have the Encumbrances panel
The following paragraphs from Edition 11.0 have been amended:
•
1.3.10
•
1.17.3
•
5.1.5
•
1.4.2
•
2.10.6
•
11.4.28.1
•
1.4.11
•
2.2.10
•
13.1.12.4
•
1.4.19
•
2.11.7
•
15.4
•
1.11.2
•
3.10.1
•
8.2.3
•
1.13.2
•
3.16.3
The following paragraphs from Edition 11.0 have been deleted:
•
1.2.2.3
•
11.4.21.3
The following paragraph has been added:
•
2.8.21
Changes to Edition 11.0 that relate directly to the introduction of Electronic
Conveyancing in WA:
•
1.1.7
•
1.8.1
•
1.13.2
•
1.2.2
•
1.9.2
•
1.13.4
•
1.3.15
•
1.9.4
•
1.13.15
•
1.5.4.2
•
1.10.15
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Land Titles Registration Practice Manual- Edition 12.0
Jean Villani, Registrar of Titles
Foreword
The main aim of the Land Titles Registration Practice Manual is to set in place standards and
guidelines, to assist those who are accountable to their clients, for the registration of land
transactions on certificates of title. The Manual seeks to define the registration practices and
procedures and to provide a comprehensive reference for the preparation of documents lodged
for registration.
This manual should be read in conjunction with Customer Information Bulletins subsequently
issued by the Registrar of Titles after the publication of this edition of the Land Titles
Registration Practice Manual. Click here to access the Customer Information Bulletins, which
can also be found on Landgate’s website.
It is acknowledged that no publication of this nature can cover every circumstance, particularly
ones that seeks to interpret changing legislation, instruct, explain and advise on special
requirements. Accordingly, there may be matters which are not adequately explained with
sufficient clarity or depth to address all situations. Additionally there may also be some practices
or procedures which practitioners may wish to challenge. Readers of the Manual are cordially
invited to identify any mistakes, errors or omissions and make suggestions for change or
improvement.
The Practice Manual Change Proforma is the form to use to forward your suggestions for
change or improvement to Landgate, and can be found on Landgate’s website.
Updates of the Land Titles Registration Practice Manual can be downloaded free of charge via
Landgate’s website at www.landgate.wa.gov.au.
The Land Titles Registration Practice Manual promotes best practice in conveyancing and is the
authoritative source of registration practices and procedures for conveyancing in Western
Australia.
Jean Villani
Registrar of Titles
October 2013
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1.
General Information
The following information relates to the legislative requirements and the use and
purpose of the information contained within this manual.
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1.1
The Legislation and its Purpose
The Transfer of Land Act, 1893 as amended, is the statute governing the registration in Western
Australia of titles to Freehold land and dealings on those titles. To avoid constant repetition the
Transfer of Land Act 1893 will be referred to as the TLA in this manual.
Other Statutes affecting land in Western Australia that are referred to extensively in this manual
are:
•
Transfer of Land Regulations 2004
•
Land Administration Act 1997 (LAA) that governs Crown land
•
Planning and Development Act 2005 (P&D Act)
•
Strata Titles Act 1985 as amended (STA); and
•
Strata Titles General Regulations 1996 (STGR).
The TLA, which is a Torrens System enactment, has as its object:
“the simplification of the title to and dealing with estates in land.”
It sets up a public register of titles to land, maintained by the Registrar of Titles whose duty it is
to certify the entitlement of proprietors. A person who attains the status of a registered
proprietor obtains, by the official certification of that interest, indefeasibility of title, subject to the
exceptions set out in the TLA.
The registered proprietor and persons dealing with a registered proprietor may place the utmost
reliance upon the certificate of title. Each title to land is guaranteed by the State and in general,
persons wrongfully deprived of their land or interest may claim the monetary value of the land or
interest from the government to compensate them for their loss.
1.1.1
Offices and Services
The public registry, required to be maintained by the TLA, is administered by Landgate and is
located in Midland Square, Midland. The Land Registration Centre in the Landgate building in
Midland is open for inquiries between the hours of 8.30 am to 5.00 pm on Monday to Friday,
except public holidays.
A branch office is located in the Austmark Building in Stirling Street, Bunbury and another
branch is located on the Terrace Level, 200 St George’s Terrace, Perth, for document
lodgement and searching services.
Dealings such as land transfers can be lodged between the hours of 8.30 am to 4.30 pm only.
1.1.2
Officers
The principal officers appointed under the TLA are the Commissioner of Titles and a Deputy,
the Registrar of Titles and a number of Assistant Registrars of Titles.
Another Statutory Officer in the land titles process is the Inspector of Plans and Surveys,
appointed under the survey regulations, who is responsible for the approval of all freehold
deposited plans. The Inspector has the role of ensuring that all land boundaries are defined with
a high level of integrity.
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1.1.3
Land in the Cocos (Keeling) Islands and Christmas Island
Both the Islands are Commonwealth Territories and are administered by the Commonwealth.
By a series of Commonwealth Acts enacted in 1992 the Shire of Cocos Keeling and the Shire of
Christmas Island were created and the property (and other) laws of Western Australia as
amended by Commonwealth legislation now apply to both areas. The Islands are still
Commonwealth Territories but the laws of Western Australia, as modified and adopted by
Commonwealth legislation, are applied. Surveys of both areas have been lodged at Landgate in
preparation for the creation of certificates of title for the separate land parcels.
Dealings on these titles (and on leases issued and also lodged at Landgate) may be lodged in
the same way as dealings on any other land. Land transaction forms, similar to the normal
transfer and other forms issued under the Commonwealth Act, have been printed and are
available from the Land Registration Centre in the Landgate building in Midland, from the Shire
Offices on the Islands or downloaded free of charge from the Internet via Landgate’s website
(www.landgate.wa.gov.au). Section 8A(1) of the Territories Law Reform Act 104 of 1992
(Commonwealth) provides the legislative base for the application of Western Australian laws to
the Territories.
Some variations in the land registration legislation have been made but most of these are
extensions of the time limits in the notice provisions to allow for transportation delays between
the Midland Office of Landgate and the Territories. Further advice is obtainable from the Advice
Officers in the Land Registration Centre in the Landgate building in Midland. This manual
contains further details applicable to dealings on land on the Cocos (Keeling) and Christmas
Islands under the subject headings.
Information relevant to Commonwealth matters can be obtained from the Department of
Environment, Sports and Territories, from the Director or Assistant Director of the Islands
Liaison Office, Perth on telephone (08) 9481 1705.
1.1.4
How Land is Brought under The Torrens System
Land alienated before 1 July, 1875 may be brought under the TLA by:
•
voluntary application pursuant to the provisions of Part II of the TLA
•
application under the provisions of the Real Property (Commonwealth Titles) Act, 1925
(No 5 of 1925)
and
•
the lodgement of a Memorial in the Deeds Office of a Taking Order under Part 9 of the
LAA.
After 1 July, 1875 land alienated from the Crown was brought under the TLA as amended by
lodgement of a Crown Grant at Landgate, where it was allocated a certificate of title number
pursuant to s.18.
The registration, under Part IIIA of the TLA of a Crown lease issued under the Land Act, 1933
granted for a period of five years or longer, also had the effect of registering the land under the
TLA. With the introduction of the LAA, land alienated from the State is now brought under the
TLA by the lodgement of a transfer.

Note:
All transactions affecting Crown land are now registered under the TLA on the Crown land title
(see s.68 (2), (3) & (4) of the TLA and s.19 of the LAA).
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1.1.5
How Changes in the Register are Caused
The object of conveyancing under the TLA is to secure the desired alteration to the Register
(Title), using a statutory system of documentation. The most common types of document must
be prepared on forms approved by the Registrar (see 15.1 List of Freehold Land Registration
Forms).
Some modifications of these forms, not being matters of substance, are permitted by s.238 of
the TLA. All the above forms, together with the applications listed in paragraph 1.5.6 and other
documents for registration for which no form is prescribed, must still be prepared to the
standards laid down in the Transfer of Land Regulations 2004, published in the Government
Gazette.
Changes in the Register may be brought about by:
•
registration of a document expressed to create, transfer or extinguish rights in land
•
registration as proprietors, pursuant to their application, of persons upon whom title has
devolved by operation of law. An example is the application, commonly called a
transmission application, by the executor or administrator of a deceased registered
proprietor under s.187 of the TLA
and
•
1.1.6
applications requesting an order or direction by the Commissioner. Examples are vesting
orders (sections 182 and 183 of the TLA), foreclosure orders (s.121 of the TLA) and a
direction to remove easements (s.229A of the TLA) or covenants (s.129C of the TLA).
How Registration May be Prevented or Delayed
Registration may be prevented or delayed by:
•
lodgement of a caveat (see Chapter 4)
•
service of a Property (Seizure and Sale) Order (s.133 of the TLA) (see Chapter 4)
•
an order for stay of registration (s.148 of the TLA) (see paragraph 3.13.2)
•
lodgement of a notice of intention to take or a Taking Order under Part 9 of the LAA (see
paragraphs 13.1.12 and 13.1.16)
•
a notice of intention to acquire by the Commonwealth of Australia (see paragraph 13.2.1)
•
a memorial lodged pursuant to certain statutory provisions prohibiting dealings with the
estate and interest of the registered proprietor until withdrawn or until the body lodging the
memorial consents in writing to such dealings (see Chapter 11 for a detailed list of these
Statutes)
•
lodgement of a statutory charge (see Chapter 11)
•
any order of the Supreme Court directing the Registrar to delay registration of any dealing
presented for registration
•
an embargo notice issued by virtue of the provisions of the Misuse of Drugs Act, 1981 or
the Crimes (Confiscation of Profits) Act 1988
or
•
a freezing notice or freezing order issued by virtue of the provisions of the Criminal
Property Confiscation Act 2000.
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It should be noted that the memoranda for all the above procedures are not shown on the
duplicate certificate of title. Preparation of documents from the duplicate certificate should never
be attempted without first obtaining an up to date search of the original certificate of title from
Landgate.
In the case of Supreme Court orders and embargo notices, because they are not shown on the
Register, the title for the land becomes subject to what is known as a Registrar’s Packet.
Registrar’s Packets are held in and monitored by the Complex Dealings Section in the
Registrations Branch of Landgate.
Any certificate of title that is subject to a Registrar’s Packet continues to form part of the public
record and can be searched to ascertain the reason for the status of subject to dealing or
other action. The creation of a Registrar’s Packet may, but does not necessarily prevent the
lodgement or processing of transactions in land for registration.
1.1.7
The Scheme of this Manual
The pages which immediately follow include some notes on:
•
how to prepare instruments
•
how instruments are executed and attested
•
legal capacity
•
lodging instruments for registration
and
•
the process of registration.
It will be observed that this treatment follows, as far as possible, the course of a normal
transaction from preparation of an instrument to its registration.
Where documents are to be prepared and lodged electronically through the Electronic
Lodgement Network (ELN), the relevant Electronic Lodgement Network Operator (ELNO) is to
be contacted directly for information on document preparation
The later parts of the manual treat in detail the different types of applications which may be
made, the different types of dealing with land under the TLA such as caveats, easements,
memorials, covenants and compulsory acquisition of land. Chapter 12 gives details of dealings
in Crown land.
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1.2
The Register
1.2.1
General
The Register kept under the TLA, consists of one copy of each Crown Grant, Crown Lease,
Crown land title and either a paper or digital Certificate of Title and every transfer and the
original of any other instrument registered under the TLA (s.18, 48 and 52) and strata/surveystrata plans.
In relation to land that is the subject of a digital title the Register is also a (historical) record of
the endorsements of the particulars of all relevant dealings that used to affect, but do not
currently affect the land.
In relation to land that is the subject of a paper title the Register is also a record of the entries
of recovery of possession and of surrender made in relation to a sublease of the land.
The Certificates of Title (and any pre-LAA Crown Leases) are created in the name of the
registered proprietor for such estate as is named therein. The original of every certificate of title
(and any pre-LAA Crown Leases) created is retained, as are the survey plans and diagrams,
but at the end of 6 years most of the original documents (which have all been microfilmed or
scanned into the optical disc image system) are destroyed. Transfers containing sketches are
not destroyed.
With the introduction of the LAA Crown Land Title ( CLT ) will be created and registered in the
name of the State of Western Australia and leases of Crown Land are registered on the relevant
CLT.
Every certificate of title, sealed with the Seal of the Registrar of Titles in the manner provided in
s.10 of the TLA, is admissible as evidence in all Courts without further proof. In practice the
original is not produced in Court, a certified copy is produced and retained in the Court records
(see paragraph 1.4.11).
1.2.2
Duplicate Title
A freehold duplicate certificate of title (if required) is issued to the Registered Proprietor or other
person as authorised by the registered proprietor.
Where a certificate of title has been created and registered, a duplicate certificate of title will be
issued unless the Registered Proprietor(s) request, in an approved form that a duplicate
certificate of title not be issued (s.48B of the TLA).
Section 48B of the TLA provides flexibility on the part of the registered proprietors of land to
request the issue or non-issue of the duplicate certificate of title.

Note:
A duplicate of a certificate of Crown land title is never issued.
No duplicate certificate of title will issue as a result of and electronic dealing.
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1.2.2.1
Request for non-issue of the duplicate title
Where a duplicate title has been created and issued, the registered proprietor(s) may in an
approved form, request the non-issue of the duplicate title.
If a request for the non-issue of a duplicate certificate of title is made, no duplicate will be issued
upon the lodgement of subsequent documents unless the current registered proprietor(s)
request, in an approved form that a duplicate certificate of title is to issue (see below).
Only the registered proprietor(s) can make a request for non-issue of the duplicate title. If there
is more than one registered proprietor, all of them must make the request. However, a
registered proprietor of an undivided share in land may, in an approved form, request the nonissue of the duplicate title for their undivided share in the land.
Requests for non-issue of a duplicate title may be made in one of the following ways:

•
The Registered Proprietor(s) may request the non-issue in Forms A6 and A8.
•
The Mortgagor/ Transferee may request the non-issue in Forms M1, M2, T2, T4, T5 and
T7.
•
Where a duplicate certificate of title has issued, the registered proprietor(s) may make
application under s.48B (4) on a Form A9, without payment of a registration fee, for the
cancellation and non issue of the duplicate title.
Note:
If the land, the subject of a request for the issue of a duplicate certificate of title, is
ENCUMBERED by a registered mortgage(s) or a registered charge(s), a requisition (no fee) will
be raised to clarify the matter. The issue of a duplicate title may be against the wishes of the
mortgagee and it would not benefit the registered proprietors because they are not entitled to
physical possession of a duplicate title that is encumbered by a mortgage or charge.
A mortgagee that wants the mortgagors (Registered Proprietors) to request non-issue of the
duplicate title upon registration of the mortgage, may like to insert a clause in the mortgage to
the effect that the mortgagors will not request the issue of the duplicate title until the mortgage
has been discharged.
When a request for the non-issue of a duplicate certificate of title is made, the paper or digital
certificate of title (whichever is applicable) will contain the following endorsement:
“DUPLICATE CERTIFICATE OF TITLE NOT ISSUED AS REQUESTED BY DEALING”
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1.2.2.2
Request for issue of the duplicate title
This document is subject to the Verification of Identity Practice issued jointly
by the Western Australian Registrar of Titles and Commissioner of Titles.
Please refer to Chapter 14.
Where a duplicate title has not been created and issued, the registered proprietor(s) may in an
approved form, request the issue of the duplicate title.
If a request for the issue of a duplicate certificate of title is made, a duplicate will be issued upon
the lodgement of subsequent documents unless the current registered proprietor(s) request, in
an approved form, the non-issue of the duplicate certificate of title (see above).
Only the registered proprietor(s) can make a request to issue the duplicate title. A registered
proprietor of an undivided share in land may, in an approved form, request a separate duplicate
title to issue for their undivided share in the land.
Requests for issue of a duplicate title may be made in one of the following ways:
•
The Mortgagor/ Transferee may request the issue of the duplicate title in Forms M1, M2,
T2, T4, T5 and T7.
•
Where a duplicate certificate of title has not previously issued, the registered proprietor(s)
may make application on a Form A7, without payment of a registration fee, for a duplicate
title to issue.
The duplicate certificate of title (if any) must be produced to the Registrar when any dealing or
application concerning the land is lodged for registration. However, the Registrar at the direction
of the Commissioner may dispense with the production of the duplicate certificate of title (s.74 of
the TLA).
1.2.3
Registration
Legal estates and interests in land do not pass by the act of the parties in executing an
instrument but by the official act of registration of that instrument (s.58 of the TLA), which takes
place when a memorandum of the instrument or dealing is entered on the relative certificate of
title. Registration is completed by the memorandum and the certification of registration on the
instrument or dealing (as required by s.56 and 57of the TLA) being authenticated in the manner
provided by s.10.
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1.3
Forms of Title to Land
1.3.1
Crown Grant
A Crown Grant is a title to land, formerly Crown land, granted by the Queen (by her Western
Australian representative, the Governor) to a person, company, statutory body or incorporated
association. The grant may be made for a cash consideration or on the completion of certain
developments that will benefit the State or for a mixture of both.
Every Crown Grant is subject to reservations to the Crown of the minerals in the land and the
land grant is usually limited in depth, either to a depth of 12.19 metres or a depth of 60.96
metres (these limits are the metric equivalents of the imperial measurements of 40 feet and 200
feet).
Each Crown Grant also reserves to the Crown the right to resume (now called Taking under the
LAA) the land or use part of it for the construction of public works.
Crown Grants created and registered in the name of the Commonwealth of Australia are
unlimited in depth and do not contain mineral reservations or a right for the Crown (the State) to
resume the land.
Community Service or religious organisations may have been granted land free of cost for
specific purposes beneficial to the community. In this case the land must be used only for that
specific purpose and the Crown Grant was said to be a Crown Grant in Trust (see paragraph
12.1.13). When the land is no longer required for its stated purpose it may be sold and the value
of the land returned to the Government, leaving the value of the building on the land as the
revenue to be returned to the organisation.
Most titles for freehold land in Western Australia were derived from a subdivision of land
contained in an earlier Crown Grant and all titles derived from a grant are held subject to the
same conditions as those listed in the grant.
With the introduction of the LAA Crown Grants are no longer created and registered. Land
alienated from the Crown is now brought under the TLA by the lodgement and registration of a
transfer after a settlement (similar to a Settlement of freehold land) has taken place. This will
result in the cancellation of the Crown land title and the creation and registration of a certificate
of (freehold) title.

Note:
Even though Crown Grants are no longer created and registered, search copies of all those
previously created and registered are available from Landgate.
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1.3.2
Paper Certificate of Title
Paper title means a certificate of title in a paper medium.
The paper original certificate of title (s.25, 48 and 66 of the TLA) constitutes a separate folium
or page of the Register and the Registrar is required to record on it particulars of all instruments,
dealings and other matters and, so as to preserve their priority, note the day and time of their
registration (s.53 and 56 of the TLA).
The Registrar is also required to note on a certificate of title such information as will enable the
title to be traced back to the original grant (s.72 of the TLA).
The essential matters included on a paper certificate of title are:
1.
the name and address of the proprietor of the estate in respect of which the certificate is
created and registered
2.
the description of the estate or interest, eg: an estate in fee simple or, where the estate or
interest is less than fee simple, a description of that estate
3.
a sufficient description of the land comprised in the certificate
4.
encumbrances, easements, etc to which the estate is subject
5.
a reference to enable the previous title or grant to be found
6.
the volume and folio number in the Register
7.
the date of its registration
and
8.

the Seal of the Registrar of Titles.
Note:
With the introduction of SmartRegister a digital title (see paragraph 1.3.3 below) is created in
place of the former original certificate of title (a paper title) in most cases. Where possible, all
original paper certificates of title in existence will be converted to a digital title.
Because some certificates of title are not suitable for conversion to a digital title (see paragraph
1.3.14), a paper certificate of title for some pieces of land will continue to exist.
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1.3.3
Digital Certificate of Title
Digital title means a certificate of title in a medium in which the data comprising the certificate of
title is stored and retrieved by digital means.
Under SmartRegister the digital databases become the certificate of title for a piece of land. The
digital databases are the Register and persons will be searching the digital register and
obtaining copies of the Register by receiving a Record of the Certificate of Title (see paragraph
1.3.4 below) that is taken from the databases. The digital Register will comprise a digital record
of the following five elements:
•
Reference to the reservations, conditions and depth limits contained in the original grant,
but not the specifics of the reservations, conditions and depth limits themselves.
•
Land description.
•
Registered proprietor and the estate or interest of the Registered Proprietor.
•
Limitations, Interests, Encumbrances and Notifications.
•
History of previous dealings in the register.
While the legal title will be the digital information that is stored in the various databases, a paper
duplicate certificate of title (if required) will be automatically created and issued to the current
registered proprietor or first mortgagee at the conclusion of the registration process.
For some general information about SmartRegister, see paragraph 1.3.14.
1.3.4
Record of Certificate of Title
Under SmartRegister, the computer record (digital data) becomes the certificate of title. A paper
printout of what is contained in the digital register for a particular piece of land will be made
available to those wishing to search the title. The paper printout (search) of the title is called a
Record of Certificate of Title.
A Record of Certificate of Title may, in many respects, look like an actual paper-based
certificate of title but it is merely a search or printout of the digital Register.
A Record of Certificate of Title will be printed on plain white A4 photocopy paper. It will only
show current information relevant to the title being searched. No sketch for the land, or other
interests is shown on the Record of Certificate of Title.
1.3.4.1
Two main Features of a Record of Certificate of Title are:
1.
Register Number: This is the lot on survey reference for a particular piece of land. It is
located in a box at the top right-hand corner.
As an example, the Register Number for Lot 2 on Deposited Plan 123456 would be
2/DP123456. In the case of a Strata Plan, the alpha characters used are SP. A Register
Number for a SmartRegister Title is not the same thing as a Certificate of Title Volume
and Folio number. SmartRegister does not use a Volume and Folio number to identify
land.
2.
The Volume and Folio Number: Us this in all search and documentation. Do not use the
Register Number.
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1.3.4.2
Duplicate edition
A SmartRegister title only contains current information, therefore every transaction (with some
exceptions) results in the creation of a new edition of the duplicate certificate of title (if required).
The Duplicate Edition panel indicates the number of times a new duplicate certificate of title
has been issued under SmartRegister. This panel is located in a box immediately under the
Register Number.

Note:
When a duplicate certificate of title is lodged with a dealing, settlement agent’s etc must ensure
that the duplicate title they receive prior settlement is the correct (latest) edition. In other words
the duplicate edition number as shown on the duplicate certificate of title must be the same
number as that shown on the current Record of Certificate of Title.
Superseded duplicates, if in the possession of Landgate, will be destroyed.
1.3.4.3
Date duplicate issued
The Date Duplicate Issued panel indicates the date that the latest document or documents
lodged were completed by Landgate. This panel is located in a box immediately under the
Register Number.
1.3.4.4
Issuing Box details
Shown on the top left-hand corner is the issuing box to which the last edition of the duplicate
title issued.
Issuing details are still maintained in the separate Document Issuing System (DIS).
1.3.4.5
Land description
Under SmartRegister the land description for a piece of land has been simplified to show only
the Lot on Survey information. Interests previously shown in the land description (like depth
limits etc) are now shown in the Limitations, Interests, Encumbrances and Notifications
section (see below).
1.3.4.6
Registered Proprietor (First Schedule)
The ownership particulars disclosed in the Registered Proprietor section is an aggregation of
the current ownership. In other words it will not be necessary to look at a number of
endorsements (as in the case of some paper titles) to ascertain the current proprietorship of the
land.
The reference to the document number and registration date in the first schedule is the last
dealing affecting the current ownership. Any other dealings affecting current ownership lodged
previously will be shown in the Historical Database (see paragraph 1.4.16).
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1.3.4.7
Limitations, Interests, Encumbrances and Notifications (Second Schedule)
All interests previously shown in the land description and second schedule of a paper title are
now shown in this section. Other notations affecting the land formerly shown on a paper title are
now also included in the second schedule. Some of these interests are as follows:
•
Reference to the reservations, conditions and depth limits contained in the original grant,
but not the specifics of the reservations, conditions and depth limits themselves.
•
Easements that benefit and/or burden the land.
•
Less Portion Resumed or Less Portion Dedicated notations that were formerly shown
on the sketch of a paper title.
•
Any other encumbrances etc. that were formerly shown in the second schedule of a
original (paper) title.
and
•
Crown Grants in Trust.
The endorsements in the Second Schedule can be divided into what is known as Prime and
Sub endorsements. Sub-endorsements are those affecting a prime endorsement. Primary
endorsements are things like mortgages, charges and leases.
If for example, a mortgage has been extended, the mortgage becomes the prime endorsement
and the extension is the sub-endorsement. Sub-endorsements are shown directly under
(indented) the prime endorsement, without regard to document number or date registered (i.e.
documents are now not necessarily shown in registration order.
With respect to the primary endorsement, the last sub-endorsement affecting the proprietorship
of a primary endorsement contains an aggregation of the outcome of the endorsements
affecting the proprietorship of the prime endorsement. This means that you only need to search
the last sub endorsement to ascertain the total position in respect to the prime Limitation,
Interest, Encumbrance or Notification.

Note:
The endorsement This Edition was Issued Pursuant to Section 75 of the TLA is not
required to be shown.
An asterisk preceding an endorsement indicates that the notation or endorsement following is
not shown on the current edition of the duplicate certificate of title (if any).
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1.3.4.8
Statements
This is additional information provided that is not guaranteed by the government. It is
information relevant to the land, but not (in most cases) previously available on the paper title.
Statements appear toward the bottom of the Record of Certificate of Title after the words:
“-----END OF CERTIFICATE OF TITLE-----.”
This section includes the following information:
•
reference to where the sketch for the land may be obtained
•
the previous title for the land
•
the property street address of the land
•
the local government for the land
•
the responsible agency (crown titles and freehold certificates of title for land held by the
State of Western Australia, Commonwealth of Australia or instrumentality, authority or
agency representing the State or Commonwealth)
and
•

any Notes (see below)
Note:
This section contains any other recording of information that does not fit into the previously
categories as outlined above. Notes do not form part of the title. It is used as the electronic
means to replace the old practice of making pencil notations on the paper original title. Notes
include the following information:
•
pending surveys (previously noted in the top right-hand corner of the paper original title)
•
lodged dealing where the title is subject to dealing
•
no duplicate issued information
and
•

lapsed s.138D caveats.
Note:
The Notes section does not appear on the duplicate certificate of title (if any).
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1.3.5
Crown Lease (Year Numbered Crown Leases)
Under the Land Act, 1933 a Crown lease is the term applied to Crown land alienated for a
leasehold term for conditional purchase, homestead, farm, pastoral or any other purpose as set
out in that Act.
Since 1909, leases for a five year term or longer, were issued in duplicate by Landgate and
registered as Crown leases under s.52 of the TLA. One copy was marked as the original and
retained by Landgate and the other copy, the duplicate, was issued to the person entitled to
receive it.
For administrative convenience, leases from the Crown for a term less than five years were also
(from 1989) filed at Landgate in sequence with the longer term leases. These leases were still
registered under the provisions of the Land Act 1933 as were any documents lodged against
them. Leases of land on Christmas Island, granted under s.5 of the Lands Ordinance, 1987
from 1992 were also registered at Landgate.
Leases were entered in a Register of Leases and numbered consecutively in years, eg:
16/1976.
With the introduction of the LAA, Crown leases are no longer issued but those still current at
that time are still valid and deemed to be issued under the LAA. Over the course of time a
Crown land title or qualified Crown land title will be created and registered for these portions of
Crown land and the lease registered against it.
Upon the creation and registration of a certificate of (freehold) title for any land for which a
Crown lease has been registered in Landgate, and is still current, the lease is cancelled and any
encumbrances noted on the lease are carried forward to the certificate of title.
The manner in which existing Crown leases may be dealt with is set out in Part IIIA of the TLA
and further information on dealing in Crown land is contained in Chapter 12 of this manual.

Note:
Even though Crown leases are no longer issued, search copies of all those previously issued
are available from Landgate.
For a lease of Crown land under the LAA see paragraph 2.8.1.
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1.3.6
Crown Land Record
A Crown land record was an administrative device in the form of a title that was only created for
defined portions of Crown land administered under the provisions of the Land Act 1933 as
amended. It differed from a certificate of title in that the Crown was always shown as the
registered proprietor. Other interests in the (Crown) land were shown and these interests
included leases (under the Land Act 1933), easements, reservations to a particular use, and if
appropriate, the name of the Local Government or statutory body in which care and control of
the land was vested.
A particular convenient use of the Crown land record was to show the leases to sporting and
other bodies of areas of recreation reserves. Caveats and mortgages could also be registered
under the provisions of the Land Act 1933 against the Crown land record.
With the introduction of the LAA, no more Crown land records will be issued and all existing
Crown land records will become qualified certificates of Crown land titles (see paragraph 1.3.8).

Note:
For historical purposes, search copies of all Crown land records ever issued are available from
Landgate.
1.3.7
Certificate of Crown Land Title
A certificate of Crown Land Title (CLT) is a guaranteed title for a defined parcel of Crown land.
A CLT, like a freehold certificate of title is conclusive, evidence subject to s.68 of the TLA, of the
indefeasibility of title for the Crown interests and encumbrances registered against a defined
parcel of Crown land.
The CLT is in a format similar to a current freehold certificate of title. The State of Western
Australia remains the registered proprietor of all Crown land titles and this is stated in the
preamble of each Crown title. A Crown title also displays the Status of the Land and the Primary
Interest Holder.
The Registrar of Titles creates a CLT under s.81L of the TLA, upon application from the Minister
for Lands in the name of the State of Western Australia. The Registrar of Titles under s.81O of
the TLA will only issue an original CLT.
All actions affecting a Crown land parcel must be registered or lodged under the TLA against
the CLT to be effectual.
A CLT validated by the Commissioner or Registrar of Titles that all actions have been registered
or lodged against it is a guaranteed (indefeasible) title.
Interest holders may request the Minister for Lands to make application for a CLT.

Note:
Qualified certificates of Crown land title are not guaranteed (indefeasible) titles (see paragraph
1.3.8 below).
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1.3.8
Qualified Certificate of Crown Land Title
A qualified Crown land title (QCLT) is a Crown land title that has not had verification (by the
Commissioner of Titles) that all the tenure, interests, rights and dedications have been lodged
or registered in respect of the land.
A person having a registered interest on a QCLT does not by the certification of that interest
obtain a guaranteed (indefeasible) title, and therefore has no claim for damages against the
Registrar of Titles for any error or priority of any interest endorsed on a QCLT.
A QCLT provides a simple registration system. Unlike a CLT, a QCLT can be created and
registered where all current approved interests may not have been registered or recorded at the
time of its creation. When a QCLT has been created, any unidentified interests and / or new
interests may be lodged for registration against the QCLT.
Landgate treats dealings and interests on QCLTs with the same duty of care as dealings and
interests on guaranteed CLTs. Registration of dealings on QCLTs will also provide a basis for
searching transactions affecting Crown land and will enable Crown land information to be
maintained on Landgate’s computerized land register system.
When all interests for a parcel of Crown land have been identified, a QCLT may be unqualified
and converted to a guaranteed CLT (see paragraph 12.1.9).
1.3.9
Subsidiary Certificate of Crown Land Title
A Subsidiary of Crown Land Title (SCLT) is a guaranteed title for an interest in a reserve or
lease over a defined portion of a land parcel and will refer back to the head CLT. A Site number
is allocated to each defined portion set out on an internal interest deposited plan to support the
recording of multiple interests (see paragraph 12.1.8) and each SCLT created displays the Site
number allocated to it.
A SCLT will only contain information relating specifically to the individual interests contained
within the site. Reference to the land tenure, primary interest in the land (i.e. the Management
Order) and the primary lease in the land (i.e. the head lease) will be endorsed on the Head
CLT.
When searching or examining documents registered on a SCLT, it is vital to obtain a search of
the Head CLT. For example, easements are only shown on the Head CLT.
The Minister for Lands will apply to the Registrar of Titles under s.81L of the TLA for the
creation of a SCLT when the number of existing interests on the reserve or lease is such that it
would be impracticable to lodge or register the additional interests on the head CLT.
1.3.10
Qualified Subsidiary Certificate of Crown Land Title
A Qualified Subsidiary Crown land title (QSCLT) is a subsidiary Crown land title that has not
had verification (by the Commissioner for Titles) that all the tenure, interests, rights and
dedications as to the reserve or lease have been lodged or registered against the parcel of land
that the titles is over.
A person having a registered interest on a QSCLT does not by the certification of that interest,
obtain a guarantee (indefeasible) title and as such has no claim for damages, against the
Registrar of Titles for any error or priority of any interest endorsed on a QSCLT.
When all interests for a Site on a Crown internal deposited plan have been identified, a QSCLT
may be unqualified and converted to a guaranteed SCLT (see paragraph 12.1.9).

Note:
At present Qualified Subsidiary Crown land titles cannot be converted into a SmartRegister
digital title (see paragraph 1.3.14).
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1.3.11
Permit to Occupy under the Land Act 1933
Where Crown land was alienated (sold) and the purchaser had fulfilled the conditions and
desired to deal with the land before the creation of the Crown Grant, a permit to occupy could
be issued by the Minister for Lands (s.142 of the Land Act 1933).
When a permit to occupy was required, the documents to be registered at Landgate were
produced at the Sales, Leasing and Securities Section of the Land Operations Division. Section
73 of the TLA provided the machinery for the Registrar to receive a permit and to receive and
record upon the permit such instruments as were lodged for registration.
The consent of the Minister for Lands was not a pre-condition to be met before any dealings on
the permit were registered. The following points should be noted:
•
a permit did not bring the land under the TLA, only the instruments registered thereon
were under the TLA
•
a permit was only received and recorded on the production of one or more instruments, ie:
a transfer, mortgage, lease or charge. A permit was not registered on the production of an
application, for example for a transmission application, unless the application was
accompanied by an instrument
•
dealings were endorsed on the permit
•
on receipt of the Crown Grant, all dealings on a permit were brought forward onto the
Crown Grant and the permit was cancelled
•
a permit lodged to replace a registered Crown lease, which was encumbered, was noted
as to the number only of any encumbrance endorsed on the Crown lease
•
normally, an instrument dealing with part of the land in a permit would not have been
accepted for registration. In certain circumstances, a transfer of one whole lot out of two or
more whole lots on a permit, would not have been refused
•
instruments dealing with undivided shares could be registered
and
•
a transfer by a mortgagee in exercise of the power of sale could be taken on a permit but
when the Crown Grant was created and registered, it was cancelled and a new certificate
of title was created showing the present proprietor.
Since 1989 very few permits have been issued and with the introduction of the TLA, a permit to
occupy is no longer issued.

Note:
Even though permits to occupy are no longer issued, search copies of all those previously
issued are available from Landgate for historical purposes.
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1.3.12
Licence to Occupy under the Land Act 1933
Where Crown land was alienated (sold) and the purchaser had paid a deposit but had not
fulfilled the conditions and desired to deal with the land before the creation of a Crown Grant, a
licence to occupy may have been issued by the Minister for Lands. In most cases the desired
dealing was a mortgage to fund the development required by the sale conditions.
Unlike a permit to occupy, a licence was not registrable under the TLA and all action on it took
place under the provisions of the Land Act 1933. The licence was recorded as an encumbrance
on a Crown land record in the same manner as a freehold lease is registered on a certificate of
title.
Dealings such as caveats and mortgages could be registered against the licence by virtue of
s.143 to 160 of the Land Act 1933.
Licences were numbered in the series allocated to leases registered at Landgate (eg: 17/1993)
and dealings on the licences were numbered in the normal document system (eg: F123456).
With the introduction of the LAA licence under the Land Act 1933 is no longer issued and those
still in existence at that time are still valid but will eventually disappear (within 2 or 3 years) when
they are either converted to freehold or forfeited.
Even though licences are no longer issued, search copies of all those previously issued are
available from Landgate.

Note:
A licence under the Land Act 1933 is completely different to a license under the LAA. A Licence
under the LAA is a right to occupy and use Crown land for a specific purpose and term
(generally) less than 12 months. The licence is not an interest in land and is therefore not
registered on a Crown land title.
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1.3.13
The Present Physical Arrangement of the Register
All original certificates of title (paper titles) are filed as separate documents and an image of
each title is held on optical disc. Microfilm copies of almost all documents lodged before
October 1991 are held on roll film.
Copies of documents lodged after then are held on optical disc, as are all freehold surveys and
strata plans. Crown surveys have been filmed (in colour) and produced as microfiche.
For security reasons, and to avoid damage or loss, the original documents are not usually
available to the public for search purposes. Section 239(3) of the TLA authorises the Registrar
to supply a print in lieu of producing the original. The search fee includes the cost of such a
print.
Where it is essential that the original document be sighted, for instance where a reference is
made to a section of the land indicated in a colour, arrangements to do so may be made at the
Customer Centre in the Landgate building in Midland.
Members of the staff are required to use, where practicable, prints or photo copies of original
documents.
All documents and instruments registered up to the end of 1962 are numbered consecutively by
year according to their nature, eg: there is a Transfer 1/1962, a Mortgage 1/1962, an Application
1/1962 and so on and they are filed in their respective categories.
From 1963 to June, 1967 the documents were numbered and filed consecutively as a
progressive number followed by a year, eg: 24687/67.
From July, 1967 continuous numbering and filing in the A series of documents began, eg:
A123456 and is continued through the B, C, D, E, F, G, H, I, J, K to the current L series and all
documents are now numbered in such alpha numerical series.
All documents, paper titles and surveys are recorded by filming or optical scanning following the
initial registration process and are re-filmed or re-scanned following any later amendment.
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1.3.14
SmartRegister Titling System
Since 1992 Landgate has used image technology to provide its core searching services. These
systems have been supported by a paper certificate of title and a paper based registration
process for the recording of change in ownership and encumbrances. When a change is
recorded on the original (paper) title, it is then scanned and stored on the image system, making
it available for searching.
In June 1997, Landgate reviewed its future directions for moving into the electronic commerce
environment. The key outcome was the need to establish a digital register that would provide
the foundation for electronic commerce applications. This would allow conveyancers, in
particular, to capitalize on the functionality already provided as part of the Electronic Advice of
Sales system.
The options available to Landgate were either to develop its own digital register, or to acquire
an existing system from another land Registry within Australia. A comprehensive investigation
revealed that the New South Wales Integrated Titling System (ITS) appeared capable of
meeting Landgate’s requirements.
ITS has been redeveloped by Landgate into an automated title registration process suitable for
Western Australia that supports a digital register in a text format with an associated survey plan.
SmartRegister (SMR) is an internal Landgate system to automate the recording of changes to
interests on a certificate of title. With the release of the first phase of SmartRegister on 11th
December 2000 Landgate created and registered Western Australia’s first digital certificates of
title.
The implementation of this first phase of SmartRegister has not changed the customers’ current
business processes. They will continue to use existing document forms with some minor
changes and lodge them in the usual manner.
A major feature of the digital register is that now only current details are displayed and any
superseded data is removed to an historical file that is still searchable. While there will no longer
be (with some exceptions) paper original Certificates of Title created, paper duplicates will still
be issued, if required.
While there are variations as to where and how data will be displayed on the digital title, the
basic registration processes and principles remain unchanged in this initial phase of
SmartRegister.
The introduction of the first phase of SmartRegister has made a few changes to the mechanism
for searching titles. Eventually Landgate’s tenure inquiry and searching facilities will be
enhanced to allow direct access to search the Digital Register.
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1.3.14.1
Back capture of existing paper original certificates of title
To implement SmartRegister, it has been necessary to back capture the information on the preexisting paper original certificates of title into the digital databases that now comprise the
Register.
To ensure that all certificates of title the subject of current or future transactions have been
converted to a digital title and ready for processing in SmartRegister, the initial trigger for the
conversion of titles will be the lodgement of a dealing.
The original paper title that is converted to SMR is not cancelled. Once converted it will bear a
superseded watermark. The title will not be removed from file or be marked subject to
dealing.
The SMR title uses the same Volume and Folio number as the paper title from which it was
converted. The paper title becomes the previous version of the current digital title.
The format of paper titles not suitable for conversion to SMR will, on cancellation, be changed to
be similar to a Record of Certificate of Title produced under SmartRegister.
A certificate of title not suitable for conversion (at this time) includes:
•
titles without a lot on survey land description
•
part lots (this not include balance lots which can be converted)
•
titles that refer to Plans with sections
and
•
1.3.14.2
titles that have a Lot number with fractions, under-numbers or suffixes.
Future development of SmartRegister
The initial release of SmartRegister is actually a combination of Release 1 and Release 2A. In
the future, depending on resources and funding, it is planned to incorporate more features and
capture the paper titles that are at present unsuitable for conversion to a digital title.
1.3.15
National Electronic Conveyancing System
In 2008 the Council of Australian Governments (COAG) included in the National Partnership
Agreement to Deliver a Seamless National Economy an initiative for the implementation in
Australia of a National Electronic Conveyancing System (NECS).
NECS is a joint government and industry initiative to develop a legislative and business
environment for the:
•
Preparation and lodgement of registry instruments with Land Registries electronically.
and
•
Settlement of real property transactions electronically.
The objectives of this initiative are to:
•
Provide a common electronic interface for conveyancing in all States and Territories.
•
Deliver efficiencies throughout Australia in property conveyancing.
and
•
Reduce the costs of property transactions.
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NECS is being implemented through an Electronic Lodgement Network (ELN) provided and
operated by an Electronic Lodgement Network Operator (ELNO). The ELN essentially provides
a “hub” for the parties to a conveyancing transaction to electronically prepare and lodge the
documents for registration at the Land Registry electronically.
The first ELN is being implemented by Property Exchange Australia Limited (previously known
as National E-Conveyancing Development Ltd (or NECDL)) and is known as Property
Exchange Australia (PEXA). Only approved Subscribers will be able to conduct conveyancing
transactions through the ELN. It will not be accessible to the general public.
The ELN will also provide a mechanism for the electronic settlement of the financial aspects of a
transaction.
Online Lodgement System (OLS) is Landgate’s technology solution to provide an interface
between existing Landgate applications, eg. SmartRegister, the ELN and Landgate staff.
A council of the Registrars of all Jurisdictions has been established by the Intergovernmental
Agreement to ensure a uniform approach to electronic conveyancing throughout Australia.
Australian Registrars National Electronic Conveyancing Council (ARNECC) is responsible for
implementing the legal framework for NECS and for promoting consistent business practices
nationally between the Land Registries.
Legislation Key Components:
•
Intergovernmental Agreement (IGA): Entered into by all States and the Northern Territory,
committing to implement national uniform legislation, establishes ARNECC to oversee
implementation of the legal framework and to work towards consistent business
practices.
•
Electronic Conveyancing National Law (ECNL): Passed in New South Wales, and
adopted in Victoria, Queensland, the Northern Territory, South Australia and Tasmania.
(The ECNL has been adopted in Western Australia (WA) as corresponding legislation,
The Electronic Conveyancing Act 2014 with some minor amendments necessary to
reflect WA’s statutory framework.)
•
Model Operating Requirements (MOR): Developed by ARNECC and adopted as
subsidiary legislation by Registrars of Title in each State and Territory. Sets out the
requirements for an Electronic Lodgement Network Operator.
•
Operating Agreement (OA): A contract made between an ELNO and the Registrar or, in
the case of WA, Landgate. The OA incorporates the Operating Requirements as
contractual terms.
•
Model Participation Rules (MPR): Developed by ARNECC and adopted as subsidiary
legislation by Registrars of Title in each State and Territory. These set out the rules on a
Subscriber to an Electronic Lodgement Network.
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1.4
Searching the Register
1.4.1
Why Search?
With the principle of indefeasibility of the title of a registered proprietor well established, it is
generally not necessary to examine retrospectively the title to any land under the TLA.
However, a person dealing with the proprietor of land under the TLA should search the Register
to establish that the proprietor is registered as proprietor of the interest the subject of the
dealing, free of encumbrances other than those already disclosed.
It is emphasised that it is unsafe to rely on an inspection of the duplicate certificate of title, as a
substitute for a search of the Register. Some reasons why the Register must be searched are:
•
The whole or part of the land may be the subject of a notice of intention to take or may
have been resumed under the provisions of the Public Works Act 1902 (s.17 and 18),
acquired by the Commonwealth (Act 3 of 1925) or taken under Part 9 of the LAA the
relevant notification being shown only on the original certificate.
•
The Registrar may have dispensed with production of the duplicate and allowed
instruments to be registered (s.74 of the TLA) or created and registered a new or special
certificate (s.75 of the TLA).
•
Caveats, property (seizure and sale) orders and some other obstacles to registration are
endorsed only on the original certificate (see paragraph 1.1.7).
•
Instruments lodged and awaiting registration may be discovered (see paragraphs 1.4.8
and 1.13.8).
In the case of strata titles, the title for the lot and the strata/survey-strata plan must be searched
as not all encumbrances appear on the certificate of title. The plan itself may contain an
endorsement of an easement or change of by-laws or an amended schedule of unit entitlement
or even changes to the lot outlines and restriction as to the use of common property.
A reference to a trust created on the original Crown Grant and not yet removed is only shown
on the original title by a rubber stamp endorsement placed near the former title number. In the
case of a digital title, it appears in the second schedule on the Record of Certificate of Title and
the duplicate Certificate of Title.
In no circumstances will search information be given by telephone.
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1.4.2
What May Be Searched?
Landgate maintains a public office, open for inquiries from 8 am to 5 pm, Monday to Friday and
upon payment of the required search fee [s. 239(3) of the TLA] the Register, comprising digital
titles, paper titles, Certificates of Crown Land Title, Crown leases, documents, plans, diagrams
and strata/survey-strata plans, may be searched.
Applications to bring land under the operation of the TLA may not be searched without the
permission of the Principal Consultant of Complex Dealings.
Wherever possible a person searching is supplied with a photographic copy or print of the
original document, certificate or survey.
This is designed to reduce the handling of originals by the public and so prevent loss or damage
and to reduce the time spent by a searcher at Landgate.
1.4.3
Searching
To assist a person searching in the Register there is:
•
a series of computerised indices to land, including a list of land owners, which give the
volume and folio number of the required title
and
•
1.4.4
a series of survey plans and diagrams, including a computerised map and related indices
known as the land information access system, which also give the volume and folio
number of the required title.
Enterprise Business Information System (EBIS)
EBIS is a customer accounting system similar in operation to a credit card. EBIS enables
conveyancers to have Landgate’s registration and search fees for their searches, inquiries and
stopped document registrations charged to their account. EBIS can be used whether the
searches are requested via Land Enquiry (LEN), fax or by personal attendance.
Currently EBIS facility also allows for survey lodgement fees (for survey plans and
strata/survey-strata plans) to be debited but does not extend to dealing lodgement.
Enrolment of clients for EBIS is made by completing a Landgate Account Application Form that
is available from the Customer Services Branch in the Landgate building in Midland.
Users of EBIS are subject to conditions of use, which are very specific in respect to
confidentiality and security. While EBIS credit facilities are interest free and the credit limit
offered is at Landgate’s discretion, the full balance owed must be paid each month.
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1.4.5
Searching Online Through Land Enquiry (LEN)
Land Enquiry is a convenient online searching and ordering tool available to Landgate Account
holders. Searches can be ordered 24 hours a day, seven days a week. Users may also
subscribe to MapViewer if required.
LEN offers easy online ordering of:
•
certificates of title
•
registration documents
•
surveys – freehold and crown diagrams and plans
•
strata/survey strata plans
Searches can be conducted by:
•
name
•
address
•
parcel identifier
•
certificate of title
•
reserve name/number
To access LEN, clients must have:
•
a Landgate account
•
a login (user ID) for Landgate
•
lodged a Landgate Account User Access Form
•
a personal computer, modem and suitable communication software or internet access.
Issuing enquiries can be made on-line via the No Charge Enquiry menu.
Fees are applicable for hard copy requests. Interactive fees are also applicable when searching
for title or ownership information. There is no cost in becoming a LEN user.
1.4.5.1
Ownership records held on the information data base
Nominal Index - this facility provides an index of persons who are registered as a proprietor of
a lot and of persons claiming an interest as a purchaser protected by a caveat (for caveats
lodged since 11 October, 1982) all linked to a current certificate of title number.
Survey/Lot Index - this facility provides a cross reference from a survey lot number on either a
plan or diagram to a certificate of title number.
Strata/Lot Index - this facility provides a cross-reference from a strata/lot number to a
certificate of title number.
Crown Allotment Index - this facility provides an index of locations and lots that have a Crown
land identity linked to a current certificate of title number. This index also contains the Crown
Grant / certificate of title number for every Crown location or lot which has been sold by the
Crown.
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Check Search Certificate (see paragraph 1.4.13) - this facility enables conveyancers,
immediately prior to the settlement of a dealing on a land parcel, to check whether there has
been any action on the certificate of title since the initial title search was obtained for the
preparation of documentation.
A Check Search Image once displayed on the conveyancers terminal may be printed by using a
print screen facility within the computer.
Sales Evidence Index - this facility provides current and historical (from March, 1986) sales
transaction details for either individuals, companies, streets and suburbs (within the
metropolitan area), map sheets and surveys.
Reserves Index - this facility provides an index showing reserve management and status
details.
Powers of Attorney - this facility provides details of powers of attorney indexed by the donor’s
name, attorney’s name and by power of attorney number.
1.4.5.2
Document Issuing System information held on the database
Item Enquiry - this will allow a client to enquire as to the latest issuing details for a particular
register or duplicate/triplicate document; and,
Unverified Issuing System - this will allow a client to enquire whether there are any unverified
lists to be collected for a particular issuing box.
1.4.6
Searching Digital Title under SmartRegister
1.4.6.1
Via Land Enquiry
Under SmartRegister, titles do not have sketches of the land parcel. To enable Landgate’s
customers to easily obtain a sketch for the land, the Land Enquiry screens allow you to order a
copy of the previous paper title, which is the default sketch for the digital titles captured in the
back capture project.
1.4.6.2
Customer Centre
Users of the Customer Centre will need to indicate on their requests that they require the sketch
for the land. If a sketch has not been requested, it will not be provided.
1.4.7
Purchase of Land Data
Digital downloads of the complete range of indexes are available for sale.
While most of the data sets are issued for all land in Western Australia’s information can be
obtained in a computer graphic form qualified by nominating a specific area, and containing
additional information such as land sales price range, area of lots, or date of sale, etc.

Note
Digital land information is governed by the terms and conditions set out in Landgate Licensing
Agreements.
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1.4.8
Subject to Dealing Searches
1.4.8.1
Dealings
A computer record of dealings in progress awaiting registration is maintained and a check of
this record is made each time a search is ordered. Where a dealing is found to be in progress
awaiting registration the search is issued endorsed with words subject to dealing. The dealing
is made available for physical inspection and following that inspection photocopies can be
obtained upon payment of a Dealing Search fee (per each document copied). Conveyancers
must bear in mind that the documents may be rejected or withdrawn from registration or
registered in an amended form and make their decisions accordingly. The telephone number to
request that an unregistered dealing in progress be located and made available for inspection is
(08) 9273 7333.
1.4.8.2
Survey Action
A small percentage of paper original titles are removed from file for the purposes of changing a
reference to a road shown on the sketch on a title, eg: by closure or to write on a title the
reference number of a new survey which could affect the title. If a search of the title was
requested the computer would deliver one marked subject to dealing but give a location
reference rather than a document reference. The paper original title is available for physical
inspection and conveyancers will be told the nature of the action taking place and must then
make their decisions accordingly. The telephone number to request that the title be located and
made available for inspection is (08) 9273 7333.
1.4.9
Searching by Post
The Registrar will accept requests for searches by mail provided:
•
sufficient information is provided to identify the searches required
and
•
the necessary fees accompany the request or the person or firm is an enrolled customer of
Landgate’s Enterprise Business Information System (EBIS).
The searches ordered may be either held by the Customer Services Branch for collection at
Landgate Midland, Bunbury or Perth office, or delivered to the customer by facsimile or post.
1.4.10
Searching by Facsimile Request
The Registrar will accept requests for searches by facsimile message provided:
•
sufficient information is provided to identify the searches required
and
•
the person or firm is an enrolled customer of Landgate’s Enterprise Business Information
System (EBIS).
The searches ordered may be either held by the Customer Services Branch for collection at
Landgate Midland, Bunbury or Perth office, or delivered to the customer by facsimile or post.
The facsimile number for search orders is (08) 9250 3187.
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1.4.11
Certified Copies of Paper Titles
Certified copies of registered documents, original certificates of title which have no unregistered
dealings on them, strata/survey-strata plans, plans and diagrams may be obtained on written
request to the Registrar and upon payment of the required fee [s.239(2)].
A request will also be taken by facsimile or telephone (subject to written confirmation) if the
person or firm is an enrolled customer of Landgate’s Enterprise Business Information System
(EBIS). The telephone number for the service is (08) 9273 7320.
Sufficient notice (usually two days) must be given for their preparation. Solicitors requiring
certified copies for Court purposes should make their request well in advance of a hearing.
Certified copies are certified by the Registrar, or an Assistant Registrar and are acceptable as
evidence in any Court.
1.4.12
Certified Copies of Digital Titles
If a title has been converted to a digital title under SmartRegister, it is only possible to obtain a
certified copy of the Record of Certificate of Title showing current ownership and interests. The
digital title does not contain an image of the sketch of the land therefore a certified copy must
always include a copy of the superseded paper title or the relevant survey document.
If certification is required in respect to former title particulars (historical data) customers will
need to obtain certified copies of the relevant documents. A computer-generated printout
(Historical Search) from the Historical Database is not a certificate of title and therefore cannot
be certified as such.
1.4.13
Check Search
As part of a transaction, a conveyancer will often obtain a title search to ascertain the details
required to prepare a document. A conveyancer will then need to know if any further action has
taken place on that title during the period from the issue of the search up to 8 am on the day of
settlement. A simple and expedient method of obtaining the information is the Check Search
System.
The check search is a computer-generated report that indicates whether there has been any
action on a specific title during a stated period. The stated period can be up to three months
prior to the date of enquiry.
The report states either that no action has taken place on the title or that action has taken place
and in the case of action taking place, a new search of the title should be made. The check
search is much cheaper than a title search and is generated by the computer system much
faster than a title search.
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1.4.14
Searches for Mineral Rights
Most Crown Grants when created and registered have contained clauses reserving to the
Crown (the State Government) the rights to certain minerals. Before 1 January, 1899 the only
rights reserved were for gold, silver and other precious metals. After that date many other
metals, mineral oils and phosphate substances (to name a few) were also reserved.
As every current certificate of title is created and registered subject to the same terms and
conditions as the original Crown Grant, any current land owner can ascertain the mineral rights
attached to his or her land holding by searching the original Crown Grant for the land.
Crown Grants issued prior to 1 July, 1875 are filed in the Deeds Office and may be located by
reference to the Land Index. References to Crown Grants issued after that date may be found
by searching the computerised Crown Allotment Index.
The reference obtained is usually a Crown Grant filed by volume and folio number but can (for
some of the grants issued between 1875 and 1920) be a reference to a town or country grant
filed in a separate system. Copies of these grants are also available.
Conveyancers, having ascertained the reservations in the Crown Grant, should consider the
relevance of the depth limit (if any) also shown in the Crown Grant and the effect of other
legislation such as the Mining Act 1978. A registered proprietor may also, by reservation in a
transfer, sell the land but retain specified mineral rights.
Crown Grants created and registered in the name of the Commonwealth of Australia do not
contain any mineral reservations. It is customary, should the Commonwealth dispose of the
land, for the transfer effecting the sale to contain the same mineral reservations as contained in
the normal Crown Grant. Following the registration of the transfer the Commonwealth can then
transfer to the Crown (the State Government) the mineral rights so reserved.
With the introduction of the LAA no mineral reservations are shown on the Crown land title or
first certificate of (freehold) title created and registered upon the sale of Crown land.
Mineral and petroleum rights are no longer shown because they are adequately provided for
under s.24 of the LAA and the relevant sections of the Mining Act 1978, the Petroleum Act 1967
and the Petroleum (Submerged Lands) Act 1982.
Depth limitations are not included in the land description of the Crown land title or first certificate
of (freehold) title created and registered upon the sale of Crown land.
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1.4.15
Historical Searches of Paper Titles
Every certificate of title created and registered bears a reference to the previous title for the
same land on the top left-hand side near the State crest. Persons wishing to trace the land
ownership backwards in time should start by ordering all the titles successively listed on the top
left hand side until the last title ordered is either a Crown Grant or Crown land title or bears the
endorsement on the top left hand side O.G. Crown Grant or the reference to a memorial (eg:
bkXXII-123). Where the earliest title available refers to a memorial book, information on the land
dealings previous to the creation of the title can be obtained by continuing the search in the
Deeds Office (see Chapter 10).
To finally ascertain whether additional information is available, a search of the public plan
should be made, commencing with the current plan and tracing the land back through previous
issues of the same plan (called cancelled public plans). Particular notice should be taken of any
change in Crown Lot or Location numbers for the land in question and the numbers of Landgate
files.
If the Lot or Location number does change, a fresh search of that Lot or Location should be
made, commencing with the Landgate file. In any case a search of the earliest Landgate file will
show any Lessees or Occupiers of the land while it was still Crown land and the circumstances
in which the original Crown Grant was created and registered.
Search fees are applicable to historical searches.

Note:
For historical searches on digital titles created under SmartRegister, see paragraph 1.4.16.
1.4.16
Historical Searches of Digital Titles under SmartRegister
SmartRegister digital titles are the current ownership and interests in land. Digital titles are not
cancelled unless the title is subdivided. The title number remains the same and SMR digital title
is simply updated as information changes.
It is not possible to view previous versions of digital titles. The SmartRegister system does not
retain an image of a register after a new version has been created. The only means of
searching the history of a specific parcel of land is to utilize the Historical Database and the
document numbers listed in the Historical Search.
When a digital title is cancelled, that version of the title can be viewed and the Record (search)
of Certificate of Title printed.
As documents affecting the land are lapsed into history, e.g. due to the land being transferred or
a mortgage discharged etc., they are recorded in the Historical Database list for that particular
title.
The Historical Search will produce a list of all dealings that have previously affected the register.
This type of search will also indicate when a new edition (duplicate title) was issued. It will also
provide an indication if a document was withdrawn or rejected.
All registered transactions past and present against a digital title are recorded as history and as
such will appear in the Historical Database.
During the back capture project (see paragraph 1.3.14), only current information will be
captured to create the digital title. No historical information will be available in the digital
database for back captured titles. Historical information will only become available when the
land is dealt on after back capture. All documents lodged after back capture appear in the
history list, including those that are still current.
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While the Historical Database is document generated, back captured documents are not
generated by documents. Therefore in the case of an original paper title back captured with a
mortgage etc, the mortgage will not go into history when it is discharged. However, the
discharge of mortgage document will go into history because it is document generated in
SmartRegister. Therefore superseded paper titles will in many cases contain a component of
the historical documents relating to the land.
Interests affecting land created without a document number (e.g. easements created on
surveys, Crown Grants in Trust, Act 31, 1920 etc.) go to the top of the Historical Search when
they are removed by another dealing. Also Sub-Endorsements, contained in the Second
Schedule of the digital title, when removed are listed in order of priority of lodgement, not at the
date they lapsed.
Requests for SMR Historical Searches can be faxed to the Customer Centre on (08) 9250
3187, or via email [email protected].
1.4.17
Search Certificate
Section 146 of the TLA requires the Registrar to issue a search certificate to show any caveat or
instrument which has been lodged for registration but not appearing on the certificate of title.
The request for the search certificate is made on a Form SC giving the name of the registered
proprietor and the title number. The search certificate is created by an examiner in the
Document Examination Section and signed by an Assistant Registrar of Titles. The certificate is
issued one or two days after receiving the request, and timed and dated at 8 am on the day of
issue.
1.4.18
Preparation of Documents
In the interests of economy (for the client), time (for the engrosser), examination and storage
(for the office) the practice of preparing multiple documents, where one will suffice, is
discouraged. Those persons or firms using computer facilities to produce their forms may utilise
adjustable panels to create more space for complex arrangements or numerous land items.
Proper use of the additional page (Form B1) will, in most other cases, provide sufficient space
for larger dealings on pre-printed forms. However, there are occasions when separate
documents must be used. In a transaction where a number of vendors transfer a number of
parcels to a common transferee, separate transfers must be used unless each vendor has an
interest in each parcel transferred.
For example in a sale from A and B to C where A and B own the land in one certificate and A
owns the land in another, two transfers must be prepared, one from A and B to C and one from
A to C. If A and B own the land in both certificates, even if they hold different shares, a single
transfer may be used.
The design of the computerised power of attorney register does not limit the number of donors
in any one document. It is recommended that preparing parties show restraint in the number of
donors appointed, and impose the same requirement on the number of attorneys in one
document.
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1.4.19
Form of Documents
The Registrar of Titles is required to approve forms for use under the TLA. A list of printed forms
that have been approved by the Registrar is shown at:
•
paragraph 1.5.5
•
paragraph 15.1 List of Freehold Land Registration Forms
or
•
under Forms and Fees on Landgate’s corporate web site.
There is vested in the Registrar a discretion to permit the registration of these forms which have
been altered or modified to suit the particular circumstances. There is also a requirement that
such alteration or modification must not be a matter of substance. Cases where alteration or
modification has occurred should be submitted for consideration to the Director of the
Registrations.
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1.5
Requirements as to Form
1.5.1
General
Instruments intended to be lodged or registered in respect of land under the TLA must conform
to the requirements laid down in the Regulations to the Act.
1.5.2
Size, Margins, Quality and Binding
The standard size of forms (documents) to be lodged for registration is 297 mm by 210 mm in
external measurement (A4). Adequate margins (a minimum of 5 mm) must be provided on all
sides. Binding is not permitted on original documents and if more than one sheet is used, they
should be secured by two staples in the left-hand margin.
Duplicate copies of any documents that can be accepted in duplicate may be bound if that is the
conveyancer’s desire. The form should not be cut or trimmed in order to fit it into an envelope
for posting. The paper selected must be of a type and quality approved by the Registrar of Titles
(at least 80 gsm). Persons printing their own forms should email their paper choice to the Form
Approval Officer at [email protected].
1.5.3
Private Printing
With the approval of the Registrar, private bulk printing of forms is permitted. To avoid waste of
forms a printer’s proof of the form must be submitted to the above mentioned Form Approval
Officer for approval and allocation of a form approval number before final printing.
A sample of the approved form is held on file for comparison purposes if a query arises in the
future. Stocks of forms have been printed by manufacturing stationers, with prior approval, and
are available for sale at some large stationery suppliers. All documents lodged for
registration must be printed in black and white and printed on both sides (duplexed).
1.5.4
Form Approval:
1.5.4.1
Paper Forms
Persons or organisations can use forms they have generated so long as a template of the form
is first approved by Landgate’s Form Approval Group. The paper used to create the form must
also conform to the regulations (see paragraph 1.5.2 above). Paper documents lodged for
registration must be printed in black and white and printed on both sides (duplexed).
If the document is produced as two or more sheets, computer technology must be used to show
that all sheets were produced at the same time. For example the sheets could be printed with a
small, discrete printout showing page 1 of 2, 2 of 2, etc. and the date and time of production.
The date and time will have no bearing on the legalities of the document but will indicate that at
the time of registration all the original parts of the document as it was first produced are present.
A sample of each form created should be referred to the Form Approval Officer for approval and
allocation of a form approval number.
Templates of each form can be sent via email to the [email protected]
for approval and allocation of a form approval number.
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1.5.4.2
Mortgage Form Approvals Lodged Electronically
Mortgagees intending to lodge mortgages electronically will arrange for the mortgagor to sign a
counterpart mortgage. The mortgage counterpart signed by the mortgagor is not lodged at
Landgate. The mortgagee’s counterpart, digitally signed by the mortgagee, is lodged at
Landgate.
As a consumer protection measure, section 105 of the TLA provides that where a mortgage
counterpart has been lodged under regulations applying to counterparts, the mortgage will not
be enforceable against the mortgagor unless, before the mortgage is registered, the mortgagor
signed a counterpart of the mortgage.
A “counterpart” is defined in section 4(1CA) of the TLA. Section 4(1CA)(b)(v) allows regulations
to prescribe what are the allowable differences in data or information between a mortgagor’s
counterpart and a mortgagee’s counterpart. Regulation 3A of the Transfer of Land Regulations
2004 prescribes those allowable differences.
A mortgagee must decide if the mortgage counterpart signed by its mortgagor is, in fact, a
counterpart under the definition in section 4(1CA) of the TLA. If it is not a counterpart under the
definition, the mortgage may not be enforceable.
When requesting approval of a new mortgage form, a mortgagee should consider section
105(4) of the TLA. By approving a mortgage form, neither the Registrar, Landgate nor the State
of Western Australia warrant or represent that the approved form is a “counterpart” as that term
is defined in section 4(1CA) of the TLA.
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1.5.5
Printed Freehold Land Registration Forms
The following listed Freehold Land Registration Forms are available from the Land Registration
Centre in the Landgate building in Midland and the Landgate office in Bunbury. They can also
be downloaded from the Landgate website (Quick Links\Forms and Fees).
Form Number
Type
A1
Transmission Application
A2
Survivorship Application
A2a
Survivorship Application (incorporating a Statutory Declaration)
A3
Transmission of a Mortgage, Charge or Freehold Lease
A4
Survivorship of a Mortgage, Charge or Freehold Lease
A5
Application (multipurpose)
A6
Application for a New or Balance Title
A7
Application for the Issue of a Duplicate Certificate of Title
A8
Application to Register Strata / Survey Strata Plan
A9
Application for cancellation and non-issue of a Duplicate Certificate of Title
A10
Application to Register (Property Seizure and Sale) Order
A11
Application to Register an Order Extending the Sale Period in a Property
(Seizure and Sale) Order
A12
Application to Register a Discharge of a Property (Seizure and Sale) Order
B1
Additional Sheet
B2
Blank Instrument Form
B3
Statutory Declaration
B4
Cover Sheet
C1
Caveat (under Section 137 of TLA)
C3
Caveat (under Sections 30 and 223A of TLA)
D1
Discharge of Mortgage
D2
Discharge of Charge
D3
Discharge of Mortgage (part of the moneys and some of the Mortgagees)
E1
Extension of Mortgage
E2
Extension of Lease
E4
Extension of Carbon Right
E5
Extension of Carbon Covenant
E6
Extension of Plantation Interest
EPA
Enduring Power of Attorney Coversheet
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
Form Number
Type
L1
Lease
L1C
Lease of Crown land
L2
Sub-lease
L2C
Sub-Lease of a Lease of Crown land
M1
Mortgage
M1A
Mortgage incorporating the VIO Statement
M1B
Mortgage incorporating the VOI Statement
M2
Charge
N1
Notification (by Local or Public Authority)
N2
Modification or removal of a Notification
NA1
Notification of Change of Address of Registered Proprietor
P1
Power of Attorney
S1
Surrender of Lease
S3
Surrender of Lease of Crown land
SC
Search Certificate
SO
Stay Order
T1
Transfer of Land (Single Sheet)
T1A
Transfer of Land (Single Sheet) incorporating the VOI Statement
T2
Transfer of Land (Double Sheet)
T2A
Transfer of Land (Double Sheet) incorporating the VOI Statement
T3
Transfer of Mortgage, Charge or Freehold Lease
T3C
Transfer of Mortgage, Charge or Lease of Crown land
T4
Transfer of Land by Mortgagee (Power of Sale)
T4A
Transfer of Land by Mortgagee (Power of Sale) incorporating the VOI
Statement
T5
Transfer of Land (Sale for Rates)
T6
Transfer of Profit a Prendre
T7
Transfer of Land under Property (Seizure and Sale) Order
T8
Transfer of Mortgage, Charge or Freehold Lease etc under Property (Seizure
and Sale) Order
W1
Withdrawal of Caveat
Note:
A freehold form type may be used where a Crown form type has not been created (for example:
mortgage, caveat, survivorship or transmission document forms).
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1.5.6
Amendment of Document Forms Due to SmartRegister
Slight modification to forms need to be made as a result of SmartRegister.
The words LIMITATIONS, INTERESTS, ENCUMBRANCES AND NOTIFICATIONS (NOTE 3)
are required to be shown on all forms that contain an encumbrance panel and have a
SmartRegister title created and registered.
Customers who print their own forms using the word template are required to amend the
heading of the encumbrance panel to that shown above.
Existing documents may be amended by inserting the words LIMITATIONS, INTERESTS, AND
NOTIFICATIONS after the words ENCUMBRANCES (NOTE 3). The heading should then read:
“ENCUMBRANCES (NOTE 3), LIMITATIONS, INTERESTS, AND NOTIFICATIONS”
An amendment is also required to NOTE 3 on the document cover page. The Note 3 heading
requires amendment to read LIMITATIONS, INTERESTS, ENCUMBRANCES AND
NOTIFICATIONS. The wording of Note 3 (under the heading) also requires amendment. The
wording will vary depending on the type of document. In the case of a mortgage for example,
the notes need to be amended to read:
“In this panel show (subject to the next paragraph) those limitations, interests,
encumbrances and notifications affecting the land being mortgaged that are
recorded on the certificate(s) of title:
•
in the Second Schedule
•
if no Second Schedule, that are encumbrances (unless to be removed by
action or document before registration hereof):
•
Easement Benefits or Restrictive/Covenant Benefits are not required
to be shown in the Second Schedule
or
•
Subsidiary interests or changes affecting a limitation, etc, that is to be
entered in the panel (eg, if a lease is shown, do not show any sublease or any document affecting either) are not required to be shown
in the Second Schedule.
The documents shown are to be identified by nature and number. The plan/diagram
encumbrances shown are to be identified by nature and relevant plan/diagram. Strata/survey
strata plan encumbrances are to be described as Interests on the strata/survey strata plan. If
none show Nil.
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1.5.7
Completing Documents when a SmartRegister Title Exists
The following is a guide to successfully completing a document form when a SmartRegister title
exists.
1.5.7.1
Land Description panel
Copy the land description details as shown on the SmartRegister Title Record. This will show
only the lot on survey details - e.g. Lot 10 on Plan 30025.
1.5.7.2
Limitations, Interests, Encumbrances and Notification panel
Copy the Limitations, Interests, Encumbrances and Notifications shown in this section of the
SmartRegister Title Record with the exception of subsidiary limitations, interests,
encumbrances and notifications - e.g. a Transfer of Mortgage is not shown.
Do not show in the document any of the following:
•
The benefit of any easement or restrictive covenant.
or
•
1.5.8
Subsidiary limitations, interests, encumbrances and notifications.
Memorandum of Common Provisions
It is possible to simplify the document production, checking and recording processes, both for
conveyancers and Landgate, by separating the components of documents such as mortgages
and leases into two documents.
The statutory or registration components of both documents can be made into a simple, short
form mortgage or lease, leaving the contractual component as a Memorandum of Common
Provisions. A short form mortgage would contain land description, estate and interest,
encumbrances, mortgagor, mortgagee and perhaps (but not necessarily) details of the principal
sum, interest and repayments. It would also contain the operative words of formal mortgage and
a clause referring to the Memorandum of Common Provisions incorporating its terms and
provisions in the mortgage and the formal attestation by the parties.
The Memorandum of Common Provisions would contain all the other elements that made up
the formal mortgage document or lease. Care should be taken by conveyancers to ensure that
the provisions of the memorandum do not conflict with any statute, especially in such matters as
notice provisions, where the provisions of the TLA must prevail over any other listed forms
agreed to by the parties.
It is possible, however, to create a provision in a memorandum in general terms, to achieve
both compliance with the Statutes and the wishes of the parties. For instance, a notice provision
could be expressed as:
“except where expressly required to be given in a particular manner by Statute,
notice may be given by ........”
Similar drafting may be used to ensure that default and other provisions are not in conflict with
the TLA. While Landgate has a policy of making every effort to register the document in a
format required by the parties, it will not register documents containing provisions in direct
conflict with the requirements of Statutes.
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The use of the technique shown in the example is encouraged as it permits the use of standard
provisions in all States and ensures that the document does not become obsolete by any
amendment to the legislation.
Memoranda of common provisions for mortgages and leases are lodged, numbered and stored
in the same manner as all other documents. They are examined by the Lead Consultant,
Dealings Section in the Registrations Branch, who will notify the lodging party of any
requisitions.
Clients should ensure that the memoranda of common provisions have been accepted before
committing to extensive printing orders.
1.5.9
Documents for which No Form is Provided
Some documents to be prepared will not fit any printed form, either because the form is
unsuitable for the document or because the document is too complex to be reduced to the panel
format. These documents should be prepared on Form B2 Blank Instrument Form.
1.5.10
Additional Pages
Where a panel on any printed form has insufficient space in which to place the required
information, it is permissible to:
•
use a double page form eg: Transfer T2 and Mortgage M1 and, after inserting see Page 2
in the appropriate panel, enter the information on page 2 of the form under a heading for
that panel
and
•
use an additional page (Form B1) and, after inserting see additional page (number of
sheet) in the appropriate panel, enter the information on the additional sheet under a
heading for that panel. The additional page should be completed by adding the
additional page number and reference to the document and date and be stapled to the
front of the document by two staples on the left-hand margin. No signatures are required
on the additional page.
Additional pages should not be used where another form can be successfully used or the
information inserted is not part of the panel format. This information should be prepared on
pages of the same size numbered consecutively and stapled inside the document (see
paragraph 1.5.11 below).
1.5.11
Insert Sheets
Where the printed matter contained in a form of mortgage is inadequate or partly inappropriate,
additional pages may be stapled to a printed form. The Registrar will be satisfied if the clauses
contained in the resulting document run in numerical sequence.
In most cases insert sheets of good quality white bond paper will be approved for multi page
documents. Inserts on sheets other than full size will not be accepted. Information on the sheets
may be typed printed or produced by copiers that use unsensitised paper. All insert sheets so
produced must be approved by the Registrar. Outside sheets for multi-page documents must be
printed on approved paper.
All signatures, Seals and initials, wherever appearing on insert sheets, must be original.
No binding is required on the original copy of multi-page documents but conveyancers may bind
the duplicate copy of any documents that can be accepted in duplicate if they wish.
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1.5.12
Other Provisions Relating to Documents
Every document lodged for registration must comply with the following requirements:
1.5.13
•
handwriting and Seals must be clear and legible. In particular the Seal of a Corporation
must be affixed in a manner that makes its reproduction by electronic or photographic
process possible. The use of a black ink stamp pad is recommended. Failure to comply
with this requirement could lead to rejection of the document;
•
the printing or writing must not extend into the margins;
•
any amendment must be made by striking through the words intended to be rejected,
without obliterating them. The amending words should be authenticated by the parties to
document but an amendment authorised by the solicitor or agent for the parties will be
accepted. An amendment must not be made by rubbing out, scraping or cutting the
surface of the paper. The use of plastic paper or type correction fluid for amendment is not
permitted; and
•
typewriting should be dense black and the lines of typewriting should not overlap. A
carbon copy, or a copy in which the typewritten characters blur or spread or are liable to
mark or damage an adjacent sheet, will not be accepted. Where instruments are lodged in
duplicate and the original copy to be retained by the Registrar complies with these
requirements, no objection will be taken if the duplicate copy is a carbon copy.
Fees
The fees prescribed under s.181 of the TLA are as published in the Government Gazette from
time to time. Copies of the prevailing scale of fees can be obtained from the Land Registration
Centre in the Landgate building in Midland and from the Landgate Office in Bunbury.
Click on the link for a current copy of the Registration and Searching Fees.
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1.6
Stamp Duty
1.6.1
General
On July 1 2008 the Duties Act 2008 came into effect replacing the Stamp Act 1921 and provides
that every person whose duty it is to receive or register any instrument shall ensure that any
instrument liable for duty is duly stamped. It is therefore necessary that any document liable for
duty must be submitted to the Office of State Revenue (Stamp Duties Division) for assessment
of the duty and stamping before being presented for registration.
1.6.2
Cocos (Keeling) Islands and Christmas Island
From 1 January 1994 dealings in land in either the Cocos (Keeling) Islands or Christmas Island
will require stamp duty to be paid on the same basis as eligible documents dealing in land in
Western Australia.
The duty is payable on documents entered into (signed) after 31 December 1993.
1.6.3
Evidence for Caveats
Section 278(2) of the Duties Act 2008 allows the Registrar of Titles to accept a caveat for
lodgement on evidence that a document has been lodged with the Office of State Revenue
(Stamp Duties Division) for assessment of duty.
To permit the caveat to be lodged the Office of State Revenue (Stamp Duties Division) will issue
a photocopy of all or part of the document endorsed with a stamp noting that the original is
being held for assessment of duty.
1.6.4
Additional Stamping
Documents tendered for registration or deposit, which have obviously been noted and stamped
by the Office of State Revenue (Stamp Duties Division), will be regarded as sufficiently stamped
unless it would seem that fresh matter, which would render the document liable to further duty,
has been added since the date of stamping.
In the latter case a requisition will be made and the lodging party advised to submit the
document again to the Office of State Revenue (Stamp Duties Division) (but see also paragraph
2.6.12 Up Stamping Mortgages).
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1.6.5
Documents that Require Stamping
Unless covered by statutory exemptions (as in transfers or leases to the Crown, Crown
Instrumentalities and Local Governments) and marked exempt from duty by the Commissioner
for State Taxation, the undermentioned documents must be sufficiently stamped before
registration:
•
Conveyance and Amalgamation Order (Freehold)
•
Declaration of Trust
•
Disposition statement filed with a strata/survey-strata plan application
•
Family Court Orders vesting land
•
Grant of Easement
•
Lease (if consideration is paid or agreed to be paid)
•
Order for Foreclosure
•
Profit a` Prendre (s.91(1) Land Administration Act 1997)
•
Sub-lease
•
Surrender of Easement
•
Surrender of Lease (if consideration is paid or agreed to be paid)
•
Surrender of Profit a Prendre
•
Surrender of Tree Plantation Interests
•
Transfer of Charge
•
Transfer of freehold estate in land
•
Transfer of leasehold estate in land
•
Transfer of Profit a’ Prendre
•
Transfer of Tree Plantation Interests
•
Vesting Order
Conveyances and other deeds created for the purpose of registration under the Registration of
Deeds Act 1856, which create the same interests listed above, must also be stamped before
memorialisation.
Orders made by the State Administrative Tribunal in strata title matters are exempt from Stamp
Duty.

Note
The Office of State Revenue (Stamp Duty Division) is to be contacted concerning assessment
of stamp duty on documents, and evidence in support of a document which may be subject to
stamp duty assessment prior to lodgement at Landgate.
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1.7
Parties to Documents
1.7.1
General
Landgate, to support its guarantee of title, must be sure that the person selling, mortgaging or
otherwise dealing with the land in a title is indeed the person shown as the registered proprietor.
In its simplest form, for documents such as mortgages, leases, applications, etc the identity
check is the comparison of the name and address shown on the document with the name and
address shown on the title.
1.7.2
Name
The name of a person dealing with land must coincide with the name of the registered proprietor
or a satisfactory explanation of the difference provided. Amendment of the document and/or
amendment to the name in the Register will be required where the document shows that:
•
a name has been added to or omitted from the proprietor’s name
•
the order of names is different
•
there is a difference in spelling in the name or names
•
the signature of the proprietor indicates another name
•
a female has been married since first becoming registered proprietor
•
a person has changed name by repute or usage
•
a person has changed name by application to the Registrar of Births, Deaths and
Marriages
•
a person has changed name by Deed Poll or Licence to Change Name
or
•
a female wishes to revert to the use of her maiden name.
However, there are important exceptions to these rules (see paragraph 3.5.10).
1.7.3
Non Anglicised Names
Landgate follows the anglicised conventions in names, endorsing the surname after the given
names and (usually) showing the same surname for married couples. Should a woman not wish
to use her husband’s name after marriage, she does not have to (see paragraph 3.5.2).
Conveyancers can assist the Registrar to maintain accurate records by underlining the surname
of transferees. In the interests of consistency, the Registrar will use the same naming
convention for all names but realises the difficulties faced by persons from cultures where the
use of a variety of names is both custom and legal.
In these cases it will be sufficient if the document recites (name) also known as (name) and is
accompanied by a statutory declaration identifying the person on the document as one and the
same as the person on the title. The recital of both names is required to ensure the
maintenance of the accuracy of the computer records.
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1.7.4
Corporation Names
The Corporations Act 2001 provides (among other things) for the allocation to each corporation
registered, or to be registered, a distinct registration number.
On the first occasion that the name of a corporation is shown in a document, its registered
Australian Company Number (A.C.N.) must also be shown. The A.C.N. must also be shown in
the Common Seal. It is not necessary to show the A.C.N. in the sealing clause.
If a corporation executes a document without using the Common Seal, the A.C.N. must be
shown in the sealing clause.
On 29th May 2000 the Corporations Regulations were amended to include the use of the
Australian Business Number (A.B.N.).
The new regulations modify the law only to the extent that if a corporation has an A.B.N., it may
use the A.B.N. with its company name in place of it’s A.C.N. on documents and negotiable
instruments provided that:
1.
the A.B.N. includes the company’s A.C.N. as the last nine digits
and
2.
the quotation of the A.B.N. is effected in the same manner in which quotation of the
A.C.N. would normally occur, e.g. with the company name where it first appears in the
document.
The corporation’s Common Seal must still show the A.C.N. Where a corporation does not have
a common seal or does not use a Common Seal to execute documents (see s.127 of the
Corporations Act 2001), their attestation clause can show their A.B.N. where it meets the
requirement outlined in the first dot point above.
Corporations registered under State legislation, such as Building Societies and Credit Unions
were also allocated a number, called an Australian Registered Body Number (A.R.B.N.), if they
wished to operate out of their State of registration. The effect of the law is that any document at
Landgate showing as a party a corporation registered in another State must show after the
name its A.R.B.N. number. The number should be shown in the attestation clause but not in the
Common Seal.
1.7.5
Address
The present address of the parties to a document must be shown. Where a person dealing with
land (for instance, by entering into a mortgage) has changed address, the present address
should be shown followed by the former address. For example”
“A of (present address) formerly of (previous address).”
As the address shown on the title is used for the service of notices, every effort should be made
to ensure the accuracy of the information given. Landgate will accept any alteration of address
authenticated by the person whose address it is or the agent, solicitor or banker of that person.
Two addresses should not be given for any person. The address of a corporation is the address
of the registered office of that corporation.
When preparing a transfer, it is acceptable to show the new or proposed address of the
transferee (purchaser), thus ensuring that any following notices are received.
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1.8
Occupation (Shown for Witnesses and Declarations)
1.8.1
Adults
The occupation of every witness to a document and of every person swearing a statutory
declaration is an essential part of his or her description and must be stated.

Note:
This is not a requirement for Electronically lodged documents.
1.8.2
Minors
In law every person under the age of eighteen years is considered a minor. The date of birth of
a minor is an essential part of his or her description and must be shown (s.59 of the TLA).
To show a minor, the words a minor born the X day of Y, 19Z are added after the name and
address of the person, with X, Y and Z being the relevant date, month and year.
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1.9
Land
1.9.1
Estate and Interest
The estate or interest in the land being dealt with must be set out in the panel provided in the
printed forms (where applicable). When properly completed, the panel shows whether the land
being dealt with is fee simple, leasehold or a lesser estate and also qualifies the extent to which
any of those estates is being affected, for example
fee simple in one undivided half share
or
leasehold as to the interest of A as a joint tenant with B.
Where it is necessary to show an estate or interest and where the printed form being used does
not provide a panel in which to insert the required words, the words may be inserted
immediately preceding a description of the land being dealt with.
1.9.2
Description of Land
The correct description of the land being dealt with must be typed or written in the panel
provided in each of the forms. A correct description includes:
•
the lot or location name and number (if an original Crown survey) or subdivisional lot
number with its relevant plan, deposited plan or diagram number;
•
a statement as to whether the lot is part of or the whole of the land in the certificate of
title, Crown land title or Crown lease; and
•
the certificate of title or Crown land title volume and folio reference or the number and
year of any Crown lease.
In the ELN, the Land Description will be obtained from the Registry Information Supply (RIS).
1.9.2.1
Part of the land in a title
When dealing with part of the land in an existing title, the land description must be precise and
unambiguous. Particular care should be taken where part of a lot, being part of the land in a title
is being transferred and the extent panel reflects this requirement.
1.9.2.2
Partial transfer of land in multiple owner subdivisions
In the case of a plan of subdivision that involves multiple owners resulting in the transfer of part
of the land in one title (e.g. Lot 10 on Plan 3130) owned by proprietor A to incorporate land
owned by proprietor B in another title to form one of the new lots (e.g. Lot 2) on the plan, the
land description in the partial transfer will read as follows:
All that part of Lot 10 on Plan 3130 as is now comprised in Lot 2 on Plan (insert new plan
number) and being part of the land in title Volume 616 Folio 61.
For more information on multiple owner subdivisions, see paragraphs 6.1.9 and 6.2.1.
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1.9.3
Sketches in Documents to Identify Part of the Land in a Certificate of
Title
As a general rule, documents that contain a sketch to identify part of the land in a certificate of
title will not be accepted. An Interest Only Deposited Plan (DP) must be prepared by a licensed
surveyor to spatially define the land. The document can then make reference to the DP number
to accurately identify the portion of the land being dealt with.

Note:
The DP must be In Order for Dealings before the document is lodged. It is acceptable for
drawings to be included within a document, as long as they don’t purport to define the area of
land affected by the interest.
The following documents are exceptions to the general rule:
•
caveats
•
freehold Leases
•
management body leases and non-LAA leases over Crown land
•
simple bore easements between neighbours.
The above document types are exempt from requiring a DP to define the area of interest. A
suitable sketch of the land can be attached to the document. The sketch must contain a notation
sketch correct and initialled by the parties to the document.

Note:
While the above documents are exempt from having a DP to define a portion of land, a DP can
still be created instead of a sketch.
Where a sketch is acceptable to identify the land referred to in a document, the sketch must be
fully dimensioned and its relationship to the lot boundary established. Conveyancers may, prior
to lodgement of the document, obtain approval of the sketch from the Survey Advice Officer at
Landgate. Approval will be endorsed on the sketch if it is accurately and sufficiently
dimensioned.
The Survey Advice Officer may be contacted by telephone on (08) 9273 7317 and sketches
may be forwarded for inspection on facsimile number (08) 9273 7651 or sent by private courier.
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1.9.4
Encumbrances
The encumbrances to be noted in the panel on the printed forms are those which are in
existence or will be noted on the Register at the time of registration of the dealing.
Where an encumbrance has been registered on the title before the current document to be
lodged, it will be sufficiently identified if it is described by the nature of the encumbrance
document and its number. For example Mortgage J123456 and for an easement or restrictive
covenant Transfer K654321.
Where an encumbrance is lodged with, but in priority to an accompanying instrument, the latter
instrument must show the encumbrance by reference to its nature, amount, parties and date of
execution, for example”
“Mortgage dated ..... to …...”
or
“Restrictive Covenant created by Transfer ..... dated, made between the transferor
and .....”
Caveats which are subject to claim may be noted as encumbrances. As to caveats generally
see Chapter 4.
A current Property (Seizure and Sale) Order may not be shown as an encumbrance and must
be removed from the Register before registration of any instrument, except in the case of:
•
•
transfer by the Sheriff or a Deputy Sheriff pursuant to such writ or warrant; or
transfer by a mortgagee in exercise of the power of sale where the writ or warrant is lodged
after the mortgage.
Care should be taken where several instruments dealing with the same land are presented
together for registration. For example, where a transfer from A to B containing a covenant is
presented with a transfer from B to C, a sufficient reference to the covenant in the first transfer
must appear in the encumbrance panel of the second.

Note:
As a result of SmartRegister, the encumbrance panel shown in documents has been amended
to read: LIMITATIONS, INTERESTS, ENCUMBRANCES AND NOTIFICATIONS - see
paragraphs 1.5.6 and 1.5.7.
As a result of NECS, some forms which previously had a LIMITATIONS, INTERESTS,
ENCUMBRANCES AND NOTIFICATIONS panel no longer do
.
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1.10
Execution of Documents
Documents subject to the Verification of Identity Practice issued jointly by the
Western Australian Registrar of Titles and Commissioner of Titles are set out in
Chapter 14.
1.10.1
General
Instruments under the Act signed by any person and attested by one witness are duly executed,
where:
•
the witness is not a party to the instrument
•
the witness has signed the document
•
the witness is an adult and there appears on the instrument the full name, address and
occupation of the witness, in English script below the witness’ signature. The details of the
witness must be able to be clearly read by the Registrar of Titles
•
the instrument is signed within Australia or a Territory of Australia including the Cocos
(Keeling) Islands or Christmas Island
and
•
the signature of each person is separately attested.
A party to a document and a witness must sign using their usual signature, which may be by
printing the name, or using English or other language script, thumb print or other mark. To
assist communication with witnesses, if necessary, it would be helpful if the telephone number
at which the witness can ordinarily be contacted during business hours is added after his or her
occupation.
Where an instrument is signed in any country that is outside Australia or a Territory of Australia,
the witness must be one of the persons set out in s.145 (1) (b) of the Act.
Where an instrument is executed but not attested in the manner provided above and the
genuineness of the signature and handwriting of the person signing is proved to the satisfaction
of the Registrar, by the statutory declaration of a person well acquainted with the person
signing, who:
•
identifies the instrument for which the declaration is required or supplied
•
declares positively that the signature thereon is the true signature and handwriting of the
person executing the instrument
and
•
states how and over what period the declarant has obtained a sufficient knowledge of the
signature and handwriting of that person;
then the instrument may be accepted for registration by virtue of s.145(3) of the TLA.
Declarations of this nature must be lodged with the document and will be inspected by the
document examiner when the complete dealing is examined. Signatures must be in ink. Ball
point pens and felt tip pens are acceptable for use on documents.
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The Registrar expects signatures to be written, not printed, and the presence of a printed name
on a document raises the question of whether the document has been signed. Where the
printed signature is duly witnessed, the witness is testifying that the document has been signed,
but where the printed signature is that of the witness there is a possibility of a later denial, both
as to the witness and the party to the document. In cases where the signature of a witness is
printed the Registrar will request confirmation that the witness did indeed witness the attestation
of the document, and that the signature on the document is the normal signature of the witness.
1.10.2
Execution by Making a Cross or Mark
Where a person is physically unable to sign his or her name, he or she may still execute a
document by making a mark. Where a document is executed by a person who makes a mark,
an attestation clause setting out the nature of the incapacity and certifying that the person fully
understood the nature and effect of the document signed must be used. Emphasis is placed on
ensuring that the person making a mark understands the consequences of the registration of
the document. For this reason, care should be exercised in the choice of a witness.
1.10.3
Examples of Marksman’s Clauses
1.10.3.1
A person who understands English but cannot write
Signed by (Name of Marksman) by making
(his or her) mark, (he or she) being incapable
of signing (his or her) name in the presence of
) (His or Her)
) (Name of + Marksman)
) (Mark)
Witness
(Full Name, Address and Occupation)
1.10.3.2
A person who understands English but cannot read or write
Signed by (Name of Marksman) by making
(his or her) mark, (he or she) being unable to
read or write, after this instrument had
been read and explained to (him or her) and
(he or she) then appearing to understand fully
its nature and effect in the presence of
) (His or Her)
) (Name of + Marksman)
) (Mark)
)
)
)
Witness
(Full Name, Address and Occupation)
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1.10.3.3
A person who does not understand English and cannot write
Signed by the said (Name of Marksman) by
making (his or her) mark, (he or she) being
unable to read or write in the English language
after this instrument had been read and
explained to (him or her) in (Name of language)
by (Name of Interpreter), a person
understanding both languages, (he or she) then
appearing to understand fully its nature and
effect in the presence of
)
)
)
) (His or Her)
) (Name of + Marksman)
) (Mark)
)
)
)
Signature of Interpreter
(Full Name, Address and Occupation)
The interpreter should be the witness, or if not, he or she must also sign the document and have
his or her signature witnessed.
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1.10.3.4
Execution by a person who does not understand English but who can write
In this case also, care should be taken in the choice of a witness:
Signed by the said (Name of person) (he or she)
being unable to read in the English language
after the same having been read and explained
to (him or her) in the (Name of second language)
by (Name of Interpreter), a person
understanding both languages (he or she)
then appearing to understand fully its nature
and effect in the presence of
)
)
)
)
) (Signature of Person)
)
)
)
Signature of Interpreter
(Full Name, Address and Occupation)

Note:
The interpreter should be the witness, or if not, he or she must also sign the document and have
his or her signature separately witnessed.
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1.10.4
Execution by an Administrator (and Appointment of)
An Administrator may be appointed to take control of the affairs of a company that is unable to
or may become unable to pay its debts, with the view to entering into a Deed of Company
Arrangement, under which the Company may be revived.
The Administrator must consent to the appointment and must be a Registered Liquidator. The
Administrator may be appointed by:
•
the Company by a resolution of its Directors (s.436A of the Corporations Act 2001)
•
the Company’s liquidator (s.436B)
or
•
a person entitled to enforce a charge on substantially, the whole of the Company’s
property (s.436C).
Once the Administrator is appointed, their appointment cannot be revoked, but may be
terminated by an order of the Court (s.447A and 449A). The Court has power to appoint an
Administrator under s.449B of the Corporations Act 2001.
Notice of the appointment of the Administrator is required to be given under the Corporations
Law and this Notice of Appointment must be lodged with the Australian Securities Investments
Commission. The appointment of an Administrator has no effect upon the Company’s legal
personality, its legal persona remains intact and there is no change in its legal status.
However, as a general rule, dealings by an Administrator affecting real property of the Company
are void unless entered into:
•
by the Administrator on behalf of the Company
•
with the written consent of the Administrator
or
•
under a Court Order.
A moratorium is placed upon the rights of the proprietor of property (including real property)
during the period of administration of a Company that is in possession of property. Consent of
the Administrator or a Court Order is required before the proprietor of the property can re-take
possession.
The Administrator can perform any function and exercise any power that the Company and any
of its officers could perform or exercise if the Company were not under administration, including
the execution of documents (s.437A and 442A of the Corporations Act 2001). The Administrator
has power to sell the real estate of the Company.
Proof of Appointment of the Administrator should be supplied in the form of a Statutory
Declaration by the Administrator stating that the appointment has not been terminated and
producing a Certified Copy of the Notice of Appointment lodged with the Australian Securities
Investments Commission. The Certified Copy will be returned with the documents issuing on the
completion of the dealing.
When the Administrator executes documents or instruments on behalf of the Company he must
do so by using the Company Seal. The following form of execution of documents by an
Administrator is suggested:
The Common Seal of ABC Company Pty Ltd
A.C.N. 001 234 789 was
hereto affixed by (name of Administrator)
its duly appointed Administrator
) Common Seal
)
)
) (Signature of Administrator)
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1.10.5
Execution by an Attorney
A document executed by an attorney will not be accepted for registration unless the power of
attorney under which the attorney acts is lodged and noted in this Office, except where the
attorney is signing as transferee on the donor’s behalf. In that case a registrable power of
attorney need only be produced for inspection.
The proper style of execution by an attorney is shown below but in practice any form of
attestation will be accepted provided it is clear that the attorney is signing as attorney.
As part of the registration process, the attestation by an attorney is checked to ensure that the
attorney has the express power to carry out the intention of the instrument (see paragraph 5.1).
A proper execution by an attorney is:
Signed by (Name of Attorney) as
Attorney for (Name of Donor) in
the presence of
)
) Signature of Attorney
) P/A number . . . . . . . .
Witness
(Full Name, Address and Occupation)
1.10.6
Execution by a Corporation under the Corporations Act 2001
Under s.127 of the Corporations Act 2001, a company may:
•
execute documents under seal
or
•
choose not to have a company seal and therefore execute documents without using a
seal.
If a company has a seal it is not obliged to use it for the execution of documents. Documents
executed by a corporation do not require witnessing by a qualified witness.
1.10.6.1
Execution with a Common Seal in accordance with section 127(2), section 123
and section 148(1) of the Corporations Act 2001.
A company with a common seal may execute a document if the seal is fixed to the document
and the fixing of the seal is witnessed by:
•
2 directors of the company
•
a director and director/secretary of the company
or
•
for a proprietary company that has a sole director who is also the sole secretary - that sole
director and sole secretary.
One person cannot attest the affixing of the Common Seal in two different capacities, i.e. as
Director and as Director/Secretary unless that person is the sole Director and also the sole
Secretary of the company.
If a company executes a document in accordance with s.127(2), as outlined above, persons
dealing with the company can rely on the assumptions of regularity in s.129(6).
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Where a document is executed using a company’s common seal, the common seal must
contain the company’s name and:
•
the company’s Australian Company Number or the abbreviation A.C.N. and the 9 digit
Australian Company Number
or
•
the company’s Australian Business Number or the abbreviation A.B.N. and the 11 digits
comprising the Australian Business Number. (This option is only available where the 9
digits of the company’s A.C.N. are the same, and in the same order as the last 9 digits of
the A.B.N., in accordance with s.123(b)(2) of the Corporations Act 2001.)
Alternately, where a company has as its name the expression ‘Australian Company Number’
followed by the 9 digit number, pursuant to s.148(1) of the Corporations Act 2001, the
expression ‘Australian Company Number’ or the abbreviation A.C.N. followed by the 9 digit
number must be contained in the company’s common seal.
Pursuant to s.153 of the Act, the company identifier set out in the common seal should be the
same as the company identifier that first appears in the particular document.
1.10.6.2
Execution without a Common Seal in accordance with section 127(1)
A company may execute a document without using a common seal of the document if signed
by:
•
2 directors of the company
•
a director and a director/secretary of the company
or
•

for a proprietary company that has a sole director who is also the sole secretary.
Note:
One person cannot execute a document in two different capacities, ie: as Director and as
Director/ Secretary unless that person is the sole Director and also the sole secretary of the
company.
Where a company executes a document in accordance with s.127(1), as outlined above,
persons dealing with the company can rely on the assumptions of regularity in s.129(5) of the
Corporations Act 2001.
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1.10.6.3
Variations to the requirements of sections 127(1) and 127(2)
Variations (as to who may execute documents) may be permitted by the Constitution of an
individual company.
Where one Director or a Governing Director alone, or an authorised person in addition to a
Director, either:
•
attests the affixing of the corporate Seal
or
•
executes a document without a common seal
the person lodging the document for registration is required to provide a true or authentic copy
of the sealing clause or execution requirements in the Constitution of the corporation, to verify
the right of that person to execute a document on behalf of the company. The copy will be
returned and must be produced with each subsequent dealing.
To avoid producing the certified copy of a sealing clause or execution requirements each time a
corporation deals with land, the Document Examination staff may, on request, record the
sealing clause or execution requirements on the departmental computer. Subsequent
documents lodged by the same corporation will then be accepted after a computer check by the
examiner. The same rules apply where foreign companies are involved.
1.10.6.4
Execution as a Deed (section 127(3) of the Corporations Act 2001)
A company may execute a document as a deed if the document is expressed to be executed as
a deed and is executed in accordance with the requirements of s.127(1) or 127(2) as set above.
1.10.6.5
Other forms of Execution (section 127(4) of the Corporations Act 2001)
A company may execute a document in a different form to that set out in sections 127(1) or
127(2) but persons dealing with the company would not have the benefit of the assumptions in
either sections 129(5) or 129(6) of the Corporations Act 2001.
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1.10.6.6
Examples of Execution with a Common Seal
Where documents are executed with a Common Seal, the following form of execution is
suggested as applicable to most corporations. The persons signing should show the position
they hold in the company and print their full name under their signature:
The Common Seal of XYZ Co Pty Ltd
was hereunto affixed in the presence of
Signature of Director
(Print Full Name)
Director
Signature of Director/Secretary
(Print Full Name)
Director/Secretary
Common
Seal
The following form of execution is applicable to proprietary companies that have only one
Director who is also the only Secretary of the company:
The Common Seal of XYZ Co Pty Ltd
was hereunto affixed in the presence of
Signature
(Print Full Name)
Sole Director and Sole Secretary
1.10.6.7
Common
Seal
Examples of Execution without a Common Seal
Where documents are executed without a Common Seal, the persons signing should show the
position they hold in the company and print their name under their signature:
Executed by XYZ Co Pty Ltd ACN . . . . . . . . . . . . . . .
Signature of Director
(Print Full Name)
Director
Signature of Director/Secretary
(Print Full Name)
Director/Secretary
The following form of execution is applicable to proprietary companies that have only one
Director who is also the only Secretary of the company:
Executed by XYZ Co Pty Ltd ACN . . . . . . . . . . . . . . .
Signature of Director
(Print Full Name)
Sole Director and Sole Secretary
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1.10.7
Execution by a Liquidator
A liquidator may be appointed by a resolution of a company (Voluntary Liquidation) or by a
Court. Notice of such a resolution or decision must be registered in the Australian Securities &
Investments Commission. In general terms the role of a liquidator is to collect and convert all
the assets of a corporation and pay all the debts or an equal share of all the debts due to
creditors.
A liquidator does not have an interest or role in continuing the business of a corporation.
Appointments made before introduction of the Corporations Law 1989 on 1 January, 1991
continue under the new legislation.
The legal estate of real property owned by the company in liquidation remains with the company
during the liquidation process in most occasions. A Court may, when making the appointment,
also vest the assets (including real property) in the liquidator. Where this is done the liquidator
must become the registered proprietor of the real property either by transfer or application,
before dealing with it. A transfer or application vesting land in a liquidator, not followed by a
further dealing, would be followed by a Registrar’s Caveat (see paragraph 4.1.10).
As property usually remains vested in the company, although the liquidator has the power to sell
the land as the agent of the company, a formal transfer must be made in the name of the
company as transferor (in liquidation) and signed by using the Common Seal affixed by the
liquidator. The company directors can also sign the transfer in the normal way using the
Common Seal, but the consent of the liquidator must be endorsed on the transfer form.
An instrument involving a corporation which is in liquidation should be drawn in the name of the
corporation. The words in liquidation should not appear on the Seal, but should be shown in
the document.
Proof of appointment of the liquidator should be supplied in the form of a statutory declaration
by the liquidator stating the facts, declaring that the appointment has not been terminated and
producing a certified copy of the appointment as registered with the Australian Securities
Investment Commission.
The certified copy will be returned with the documents issuing on the completion of the dealing.
The statutory declaration will be retained.
A liquidator has power to sell the real estate of the corporation.
The following form of execution is suggested:
The Common Seal of Waal & Co Pty Ltd
A.C.N. 123 456 789
was hereto affixed by (Name of Liquidator)
its duly appointed liquidator
© Western Australian Land Information Authority- Government of Western Australia
) Common Seal
)
)
) Signature of Liquidator
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1.10.8
Execution by an Official Manager
In general terms an official manager is a person appointed by a creditor or creditors, to manage
the affairs of a corporation, usually with the view of having it trade out of its debt. Most
appointments are as receiver and manager. Appointments made before the introduction of the
Corporations Law 1989 on 1 January, 1991 continue under the new legislation.
Most financial agreements, whether intended for registration in the Torrens System, in a strict
sequence of priorities or as a floating charge or debenture, empower the lender to appoint a
person to be the (mortgagor) company’s receiver and manager at any time after the principal
monies secured become payable.
The appointment can be made either privately (out of the Courts) or by order of the Court. In
each case notice of the appointment must be filed within a designated time in the Australian
Securities & Investments Commission (ASIC). The primary powers of the appointed
receiver/manager are those set out in the loan agreement (for private appointments) or those
set out in the Court Order (for Court appointments). Supplementary powers are created in the
legislation.
With any instrument there should be produced a statutory declaration by the official manager
stating the facts of the appointment, and that such appointment is still current, and the authority
for the action taken by the registration of the instrument and producing:
•
a certified copy issued by the Australian Securities and Investment Commission of the
notice of appointment
•
a certified copy of the Debenture or Court Order that was the basis of the appointment
and
•
such written consents as may be necessary to give effect to the sale.
The following form of execution is suggested:
The Common Seal of Cole & Co Pty Ltd
A.C.N. 123 456 789
was hereto affixed by (Name of official
manager) its duly appointed Official Manager
)
)(Common Seal)
) Signature of Official Manager
)
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1.10.9
Execution by a Receiver
In general terms a receiver is a person appointed by a particular creditor to collect and convert
the assets of a company to pay the debt due to that creditor. The appointment of a receiver
does not necessarily result in the liquidation of the company. Appointments made before the
introduction of the Corporations Law 1989 on 1 January, 1991 continue under the new
legislation.
Section 420(2) of the Corporations Act 2001 gives a receiver a wide range of powers to deal in
the land of the corporation, subject to the terms of the Debenture or Court Order by which the
appointment was made. The property owned by the corporation does not vest in the receiver
but he or she becomes an Agent of the corporation with power to sell, mortgage, etc (subject to
the conditions of appointment).
The Corporations Act 2001also gives the receiver the power to use the Common Seal of the
corporation.
On a transfer or other document dealing in the interests of the corporation, the document should
be prepared in the name of the corporation and may be executed using the Common Seal of
the corporation in the usual manner.
If the receiver cannot obtain the co-operation of the Directors to attest the Common Seal or
prefers to complete the transaction personally, a signed copy of the Debenture (or a copy of the
Debenture certified correct by the Australian Securities & Investments Commissioner) may be
lodged at Landgate as a power of attorney.
To achieve registration the receiver must file a statutory declaration declaring that the
appointment as receiver is still current.
A certified copy of the certificate of appointment as receiver issued by the Australian Securities
and Investment Commission must be annexed to the statutory declaration.
The sealing clause of the company is then as follows:
Signed by XYZ Co Pty Ltd
A.C.N. 123 456 789 by (insert name)
as Receiver Manager
© Western Australian Land Information Authority- Government of Western Australia
)
) Signature of Receiver
)
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1.10.10 Execution by a Registered Friendly Society
Section 15(4) of the Friendly Societies Act 1894 provided that all the property of a Society shall
vest in the trustees of the Society for the time being.
Section 16 of the Friendly Societies Act 1894 gave the trustees power to sell and mortgage land
except land granted/transferred by the Crown for a specific purpose. A mortgage of such land
required the consent of the Governor or Minister as the case may be in writing.
A transfer and mortgage by the trustees of the Society required attestation by all the trustees of
the Society and a discharge or partial discharge could be signed by the trustees or a majority of
them.
A recommended form of attestation was:
Signed by the (Name of Society) by its
Trustees (or by a majority of its Trustees)
(Signature of Trustee)
Name of Trustee
(Signature of Trustee)
Name of Trustee
A certificate in the form of the Sixth Schedule to the above Act, under the hand of the Registrar
of Co-operative and Financial Institutions of the names of the trustees of any Society or branch
was sufficient evidence that the persons named are the trustees of that Society or branch. That
certificate when registered at Landgate on payment of the required fee, remained in force until
superseded by a later certificate.
The certificate was numbered and recorded on the internal Landgate computer system and filed
in the Legal Section. Any dealing by a Friendly Society could be referred to the Legal Section to
check the correctness of the attestation by the trustees.
A computer record of current certificates was maintained on the internal Landgate information
system locally known as Ditbook.
The Friendly Societies Act 1894 was repealed by the Friendly Societies (Western Australia) Act
1999, which in turn was repealed by the Acts Amendment and Repeal (Financial Sector
Reform) Act 1999. Friendly Societies in Western Australia are now regulated by the
Commonwealth and are now registered under the Corporations Act 2001 and regulated by the
Australian Prudential Regulation Authority (APRA). As an example, the Trustees for the United
Ancient Order of Druids is now the Druids Friendly Society Limited.
Documents that are executed by Friendly Societies are now executed in the same manner as
any other corporation (see paragraph 1.10.6 above).
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1.10.11 Execution by an Incorporated Association
Associations of persons who are incorporated under the Associations Incorporation Act 1987
have all the powers of a natural person to deal in real property. The one exception is where land
has been granted/transferred by the State of Western Australia to an association for a specified
purpose.
Such land may not be leased for more than 21 years or mortgaged without the written consent
of the Governor or Minister as the case may be. The sealing clause, as laid down in the Articles
of Association, should be used when an association executes an instrument creating or
disposing of an interest in land. No declaration is required where the association is purchasing
land or lodging a caveat.
In order to identify the persons affixing the Association Seal the lodging party is required to
produce with the instrument a statutory declaration by all the persons affixing the Seal certifying
that at the time the Seal was affixed they were duly authorised to do so. An acceptable form of
statutory declaration, which may be adapted to any particular case, is as follows:
MODEL DECLARATION- INCORPORATED ASSOCIATIONS
TRANSFER OF LAND ACT 1893
STATUTORY DECLARATION
I/We (name address and occupation of person or persons making declaration)
do jointly and severally, sincerely declare as follows:
1. I am/we are (one of) the persons authorised by Rule ...... of the Rules of
(name of incorporated body) the Association to affix or countersign the affixing of
the Common Seal of the Association to documents.
2. The Association is the transferor and (here insert name or names of
purchaser) is/are the transferee/s in a transfer dated of all that piece of land
comprised in Certificate/s of Title Volumes/s Folio/s.
3. At the time I/we affixed or countersigned the affixing of the Seal of the
Association to the said transfer, I/we was/were duly authorised to do so and I/we
signed in the capacity of......./, ....... and ......... respectively of the Association.
This declaration is true and I / we know that it is an offence to make a
declaration knowing that it is false in a material particular.
This declaration is made jointly and severally under the Oaths, Affidavits and
Statutory Declarations Act 2005 at (place)
on
day of
20
bySignature of person making the declaration
In the presence of –
Signature of authorised witness (Print the full name, address and qualification
below the signature of the authorised witness)
Where two or more persons declare, then a separate attestation is required for each person.
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1.10.12 Execution of Statutory Declarations
Full information on the execution of statutory declarations is given in paragraphs 3.2.1 to 3.2.10
inclusive.
1.10.13 Aboriginal and Torres Strait Islander Corporations
The Corporations (Aboriginal and Torres Strait Islander) Act 2006 (a Commonwealth Act)
provides for the incorporation of Aboriginal and Torres Strait Islander corporations.
The Registrar of Aboriginal and Torres Strait Islander Corporations established by the Act is
responsible for the registration of Aboriginal and Torres Strait Islander corporations and the
maintenance of a public register.
1.10.13.1 Execution of documents
A registered Aboriginal and Torres Strait Islander corporation is a body corporate with perpetual
succession and may acquire and dispose of real property and sue and be sued in its corporate
name specified in the certificate of registration.
An Aboriginal and Torres Strait Islander corporation with a common seal may execute a
document if the seal is affixed to the document and the fixing of the seal is witnessed by either:
•
two (2) directors of the corporation
•
a director and a corporation secretary of the corporation
or
•
for an Aboriginal and Torres Strait Islander corporation that has only one (1)
director – that director.
An Aboriginal and Torres Strait Islander corporation may execute a document without using a
common seal if the document is signed by either:
•
two (2) directors of the corporation
•
a director and a corporation secretary (if any) of the corporation
or
•
if the corporation has only one (1) director – that director.
An Aboriginal and Torres Strait Islander corporation may execute a document as a deed and is
executed in the manner described above.
The Corporations Act (Cwlth) arrangements and reconstructions provisions apply to Aboriginal
and Torres Strait Islander corporations.
1.10.14 Execution by a foreign registered Corporation
A foreign registered body or Corporation is a Corporation/Company that is not registered in
Australia. Documents executed by foreign registered bodies will need to include a letter from a
lawyer stating that the company is an overseas company and that they have signed the
document in accordance with the laws relating to the jurisdiction of the country in which it is
registered.
Evidence may be required verifying that the document has been executed correctly.
Please also refer to paragraph 14.4.4 for Verification of Identity requirements for applicable
documents.
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1.10.15 Execution of Electronic documents
1.10.15.1 Client Authorisation
To transact electronically on behalf of a client it will be necessary to obtain written authority from
your client i.e. Client Authority.
The form and content of the Client Authority (CA) form can be found in the Model Participation
Rules Schedule 4. The CA is in addition to the usual appointment to act or retainer agreement.
The CA provides for instructions for a specific transaction, standing instructions for a time period
or a batch of transactions. The CA was developed in conjunction with the Law Council of
Australia (LCA) and the Australian Institute of Conveyancers (AIC).
The CA authorises digital signing of documents by the Subscriber for the Client, lodgment of
documents with Landgate and financial settlement. The CA must be signed by the Client before
the Subscriber digitally signs documents for the Client.
Where a person enters into the CA on behalf of the Client; for example, an authorised
representative of a corporate client, the Subscriber must take reasonable steps to verify the
authority of that person to sign the CA.
1.10.15.2 Verification of Identity (VOI) of Client
At the time of entering into the CA the Subscriber must take reasonable steps to verify the
identity of their client. For electronic transactions all clients will need to be identified.
A Subscriber can determine what constitutes “reasonable steps” in the circumstances however,
if a Subscriber complies with the Verification of Identity Standard, Schedule 8 in the
Participation Rules, the Subscriber is deemed to have taken reasonable steps. A person
providing an identifier declaration, used when the client isn’t able to provide documentary
evidence of identity also needs to be identified.
VOI is also required for each of the following circumstances:
•
the Subscriber’s signers, before giving them a digital certificate;
•
where a Subscriber represents a mortgagee, the mortgagor (unless the mortgagee has
already verified the identity of the mortgagor); and
•
a person to whom a duplicate certificate of title is handed, unless that person is another
Subscriber
1.10.15.3 Client Entitled to Deal
A Subscriber must also take reasonable steps to verify that its Client is entitled to enter into the
conveyancing transaction referred to in the CA.
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1.10.15.4 Using Digital Signatures
Documents prepared electronically are signed by the Subscriber on behalf of the Client using a
digital signature.
A Subscriber is liable for the use of digital certificates issued in the name of the Subscriber or at
the request of the Subscriber to any person, like an employee.
A document that is digitally signed binds the Subscriber and its Client and can be relied on by
the Registrar of Titles and by other parties to a conveyancing transaction.
Compliance by Subscribers with the obligations in the Participation Rules relating to system
security and integrity are fundamental to the integrity of NEC. The consequences under the
Participation Rules for non-compliance by a Subscriber include restriction, suspension or
termination from use of the ELN.
A Subscriber must:
•
Take reasonable steps to comply with the ELN’s Security Policy, including security of
digital certificates.
•
Ensure that only persons authorised by the Subscriber can access and use the ELN.
•
Ensure only those authorised to Sign for the Subscriber do so.
•
Take reasonable steps to ensure its Signers are persons of good character.
•
Revoke authority of those no longer authorised to sign or access the ELN.
•
Ensure information provided to any authority is correct.
•
Ensure Users are trained
and
•
Take immediate action if a security item like a digital certificate has been compromised or
used improperly, un-sign any affected document and notify the ELNO.
1.10.15.5 Certifications
At the time of attaching a digital signature on behalf of a client, the Subscriber makes certain
certifications. These certifications appear on the registry instrument and are set out in Schedule
3 of the Participation Rules.
The certifications relate to:
•
the taking of reasonable steps to verify a party's identity;
•
the holding of a Client Authorisation;
•
the retention of supporting evidence for the electronic document (including the CA;
verification of identity documentation; documentation supporting authority to enter into the
transaction. Documents or a copy to be retained for 7 years.);
•
the correctness of the instrument and compliance with Registrar’s requirements;
and
•
verification of the identity of a mortgagor and the retention of a counterpart mortgage
signed by the mortgagor
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1.10.15.6 False Certifications
Making a false certification is an offence:
•
Section 214 of the TLA makes certain fraudulent acts an offence, including the giving of
false information. The section will be amended to make the giving of a false certification
an offence.
•
Given the seriousness of offences involving property fraud and the cost to the community
of such fraud, the penalty for an offence under section 214 will be increased from $10
000 or 2 years imprisonment or both to a maximum of $100 000 or 10 years
imprisonment.
•
A summary conviction penalty of $20 000 or 2 years imprisonment will also apply.
and
•
An offence under section 214 will also be able to be prosecuted at any time.
1.10.15.7 Supporting Evidence
A Subscriber will be required to obtain any supporting evidence necessary for the transaction
and to retain copies of the evidence for the required period of seven years. This will include the
VOI documents, copies of marriage certificates etc.
Unlike current paper lodgement practice, some types of supporting evidence will not be required
to be lodged with Landgate for electronic transactions. Instead, the Registrar will rely on the
certification given by the Subscriber in the electronic instrument that the supporting evidence for
the transaction is held.
In the future, the Registrar may adopt certifications for some supporting evidence for paper
documents as well.
The Registrar and the Commissioner will have the ability to set requirements for supporting
evidence (for example, what must be obtained and retained by a Subscriber; what must be
lodged; how supporting evidence can be submitted).
Where supporting evidence is not required to be lodged, the Registrar and the Commissioner
will have the power to call in that supporting evidence if it is considered necessary. If the
supporting evidence is not provided within the specified time, the document can be rejected
from registration.
The Registrar and Commissioner will also be able to require a statutory declaration be provided
to verify any matter.
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+
1.11
Capacity of Parties
1.11.1
Minors
Any person who is under the age of eighteen years is a minor and as such is incapable of
dealing in real property. However a minor can become the registered proprietor of land. Section
59 of the TLA requires the Registrar to show the age of the minor on a certificate of title
registered in the name of a minor.
Where a minor is required to execute an instrument as accepting party, it is a matter of
discretion as to whether such instrument can be signed by the minor or should be signed by a
parent or guardian on the minor’s behalf. A Court Order is required, appointing a person to sign
instruments under the Act, where it is necessary or desirable for a minor to sell or mortgage
land (see s.82 of the Trustees Act 1962).
The instruments are prepared in the name of the minor and executed by the person appointed
in the Order. The Order must be produced when the instruments are lodged. A form of
attestation suitable to such cases is:
Signed by (Name of the Minor)
by (his or her) guardian ad litem
(Name of Guardian) in
the presence of
Witness
(Full Name, Address and Occupation)
)
)
) (Signature of Guardian)
)
To overcome this restriction, land held beneficially by a minor is frequently registered in the
name of a trustee pursuant to a declaration of trust.
In certain cases minors are given statutory power to deal with their real property. The Land Act
1933 (s.26 and 150) provided that a person over 16 years of age may select, acquire, transfer
or hold and mortgage any land under the Land Act 1933. The TLA (s.81G) contains
complementary provisions in respect of Crown leases registered under the TLA.

Note:
The LAA makes no specific provisions with regard to minors dealing in Crown land.
1.11.2
Partnerships
A partnership is not a separate legal entity and almost all dealings in land by a partnership must
be carried out by listing the names of the individual partners and where appropriate, converting
their share in the partnership to a like share of the interest shown in the document.
A group of partners lending money as a mortgagee must show the individuals as mortgagees in
the mortgagee panel, preferably with their shares also disclosed. The contractual part of the
mortgage may, however, contain a reference to the partnership by its trading name.
A caveat can also, after listing the members of a partnership by their individual names as
caveators, show that they are operating as a partnership (by use of the trading name). Under
the rules of the Court, Property (Seizure and Sale) Orders can be issued showing the creditor
as a partnership.
While there is no impediment to the lodgement of a writ or warrant of this nature, a subsequent
withdrawal must be made collectively by the partners individually or a majority of them. At least
one of the partners must provide with the withdrawal a statutory declaration setting out a list of
the partners and recite the circumstances of repayment or satisfaction (or part satisfaction) of
the writ or warrant.
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1.12
Incapable Persons
1.12.1
Before 7 September, 1990
Before the introduction of the GA Act (WA), the Supreme Court could declare a person
incapable of managing his or her own affairs. The power to do so was contained in Part VI of
the Mental Health Act 1962. The Court could appoint a person, the Public Trustee or a Trustee
Company as manager of the estate of the incapable person (s.64).
The Court could, by Order, authorise or direct the manager to exercise all or any of powers set
out in s.68. Notwithstanding the introduction of the new legislation, actions commenced under
the previous legislation and not then completed still continue under the previous legislation.
1.12.2
After 7 September, 1990
For actions commencing from 7 September, 1990 the Guardianship and Administration Board
(the Board) may declare a person incapable of managing his or her own affairs. The Board may
appoint a person or a Trustee Company as administrator of the estate of the incapable person
(s.64). The Board may, by Order, either grant plenary powers or authorise or direct the
administrator to exercise all or any of powers set out in Schedule 2 Part A of the Act. See also
paragraph 5.2.1 for the powers of an attorney to deal with the real property of an incapable
person.

Note:
On 4 May 2005 the State Administrative Tribunal (SAT) came into being and took over the
judicial and adjudicative functions of the Board.
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1.12.3
Dealings by a Manager or Administrator
An instrument must be drawn in the name of the incapable person and supported by the original
copy from the office where it was issued or a Landgate Sighted copy of the Order under which
the manager or administrator proposes to act. Care should be taken that the powers given by
the Order are not exceeded and that the terms of the Order are strictly observed.
Each instrument must be supported by a statutory declaration by the manager or administrator
that the incapacity still existed, the incapable person was still alive and that the appointment had
not been revoked, at the time of signing the instrument. The statutory declaration should be
made within two (2) days of lodgement of the instrument at Landgate.
A suitable form of attestation for instruments dealing with the estate of incapable person is:
Signed by (name of manager)
the Manager of (name of incapable
person) pursuant to an Order of the
Supreme Court of Western Australia
made the (Date of Order) in the
presence of
)
)(Signature of Manager)
)
)
)
)
Witness
(Full Name, Address and Occupation)
Signed by (name of administrator)
the Administrator of (name of
incapable person) pursuant to an order
of the State Administrative Tribunal
made the (Date of Order)
in the presence of
)
)
)(Signature of Administrator)
)
)
)
Witness
(Full Name, Address and Occupation)
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1.12.4
Dealings by the Protective Commissioner of New South Wales
The Protective Commissioner of New South Wales is an independent public official whose office
is constituted under the Protected Estates Act 1983 (NSW) (the Act). This public official has
responsibilities similar to that of the Guardianship and Administration Board in Western
Australia.
Under the Act, the Protective Commissioner is appointed to protect and administer the financial
affairs and property of people unable to make financial decisions for themselves and where
there is no other person suitable or able to assist.
The office was established in 1985, forms part of the Human Rights Program of the New South
Wales Attorney General’s Department, and provides a wide range of legal, technical, financial,
specialist, disability and other services. It is required, by law, to make decisions that are in the
best interests of the person whose affairs are under management, and decisions are guided by
the principles set out under the Guardianship Act 1987 (NSW).
The Office of the Protective Commissioner and the Office of the Public Guardian work in
tandem, the Office of the Protective Commissioner deals with management of the financial and
property interests of its clients, and the Office of the Public Guardian deals with personal and
lifestyle issues.
Although each agency is independent of the other, with separate staff and different legislation,
the one person holds both positions of Protective Commissioner and Public Guardian.
1.12.4.1
Appointment
The Protective Commissioner may be appointed following an application for a financial
management order. A financial management order is a legal decision to appoint the Protective
Commissioner, or a private individual under the supervision of the Protective Commissioner, to
manage someone’s affairs and is made by either the New South Wales Guardianship Tribunal,
the Supreme Court Equity Division, or, in certain circumstances, a magistrate or the Mental
Health Review Tribunal.
Where the court appoints a private individual, the Protective Commissioner provides direction,
supervision and support for the person so appointed.
1.12.4.2
Legislation
The Protective Commissioner may delegate all functions, other than the power of delegation, to
any member of staff (s.5A and 5). Powers that the Protective Commissioner’s office can
exercise over estates of protected persons is set out in s.24 of the Act.
Section 24(3) limits the Protective Commissioner, with respect to the granting of leases, and no
lease exceeding five years can be entered into without the direction of the Court. Section 26 of
the Act gives the Commissioner the power to execute documents on behalf of the protected
person.
The management of an estate is terminated by a revocation order of the Court, where the
person under guardianship has ceased to be a person under guardianship, or upon the death of
the protected person.
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1.12.4.3
Reciprocating States under NSW legislation
Section 65 of the Act allows for reciprocating States to be recognized by notification in the
Government Gazette. Western Australia has been declared a reciprocating State by NSW
Government Gazette No. 99 of 10 June 1988 at page 3083.
Under s.67 of the Act, where a protected person, under the New South Wales legislation, has
property in a reciprocating State, the Protective Commissioner may authorize an officer charged
by the laws of the reciprocating State with the care, recovery, collection, preservation and
administration of the property of the incapable person to collect, recover, manage, sell or
otherwise dispose of and administer that property in accordance with the law in force in the
reciprocating State as if the protected person was resident in the reciprocating State.
The Guardianship and Administration Act 1990 (WA) (GA Act) has similar provisions for
reciprocal arrangements. No. 7 of 1996 provides that the Minister may, by notice published in
gazette, declare any State to be a reciprocating State.
The Guardianship and Administration Board has advised that Western Australia has recognized
New South Wales under this reciprocal arrangement in Government Gazette, WA, 21 July 1998.
As a result, an order, made in New South Wales by a New South Wales Court of competent
jurisdiction, appointing the Protective Commissioner will be effective in Western Australia, as if
the order were made by a Court of competent jurisdiction within Western Australia.
There is no requirement for the Court order made in New South Wales to go through the
formality of being placed before the Guardianship and Administration Board for approval before
it can be effective in Western Australia.
1.12.4.4
Landgate’s requirements
The Protected Estates Act 1983 (NSW) allows for the appointment of both estate managers
within the office of the Protective Commissioner as well as private individuals who are
supervised in the management of estates, by the Protective Commissioner’s office. Therefore
Landgate needs to ensure that the person signing any transfer, or other document, on behalf of
a protected person in New South Wales, has the proper authority.
Landgate will, in principle, recognize the authority of the Protective Commissioner or his
delegate to execute transfer documents and other dealings relating to real estate within
Western Australia on behalf of persons subject to a financial management order from the
competent New South Wales jurisdiction which appoints the Protective Commissioner or his
delegate to manage their affairs.
Should the Protective Commissioner or his delegate, wish to lodge transfer documents, or other
dealings, with Landgate under such an order, Landgate will require that he, or his delegate
lodge, with the transfer document, or other dealing:
•
the instrument which must be drawn in the name of the incapable person
•
a certified or sealed copy of the order under which the Protective Commissioner or his
delegate was appointed
•
a certified copy of the power of delegation for the person signing on behalf of the
incapable person
•
a copy of New South Wales Government Gazette No. 99 of 10 June 1988, page 3083,
and a copy of the Government Gazette WA of 21 July 1998, page 3829, each of which
formalize the reciprocal arrangement between the two States
and
•
a statutory declaration in support, made by the Protective Commissioner or his delegate,
setting out the background of the matter and stating that the incapacity still exists, the
incapable person is still alive, that the appointment had not been revoked at the time of
the signing of the instrument, and annexing the above documentation.
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The Protective Commissioner is incorporated as a corporation sole (s.5B(1)). The seal of the
corporation sole is to be affixed to a document only in the presence of the Commissioner,
Deputy Commissioner, or member of staff who holds a delegation with attestation by the
signature of that person affixing the seal (s.5B(1)(2)).

Note:
Paragraph 1.12.3 sets out a similar procedure for dealings by a manager or administrator and
provides an example of attestation of instruments which could be adapted where the Protective
Commissioner was exercising his power to transfer property in Western Australia.
1.12.5
Power of the Public Trustee Where an Incapable Person is
Domiciled in Other Jurisdictions
The provisions of s.31 of the Public Trustees Act 1941 (PTA) empowers the Public Trustee to
execute documents on behalf of an incapable person domiciled outside Western Australia,
provided that the WA Public Trustee has been given the necessary certificate (instrument in
writing under seal) by the relevant authority in a State, or a Territory of the Commonwealth
(including New Zealand) having jurisdiction over the incapable person.
The certificate must authorise the WA Public Trustee to collect, manage, sell or otherwise
dispose of or administer any property in Western Australia which the person named in the
instrument is possessed of or is entitled to have an interest.
The Public Trustee shall then have with respect to the property of the incapable person plenary
functions within the meaning of s.71 of the G A Act as though such functions had been vested in
him under s.69 of that Act.
This certificate must be produced with any document lodged that is executed by the Public
Trustee pursuant to s.31 of the PTA.
The above mentioned provisions of the PTA were meant by parliament to operate in conjunction
with the provisions of Division 3 of Part 6 of the GA Act which is broader in it’s application.
Division 3 provides that inter-jurisdictional arrangements may be made between Western
Australia and any other country and States and Territories of Australia in respect of
administration orders. Administration orders that have been made in other jurisdictions may
authorise the Public Trustee or a relevant official to administer Western Australian properties on
behalf of the foreign administrator.
It should be noted however that Division 3 of Part 6 of the GA Act has not yet come into
operation, as the Minister, under the GA Act, has not yet published the required notices in the
Government Gazette. If the provisions of Division 3 of Part 6 of the GA Act do come into effect,
it will not abrogate the provisions of s.31 of the PTA. The provisions with regard to incapable
persons under both these Acts can co-exit.
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1.13
Registration
1.13.1
Importance of Registration
The Register is all important. It is the act of registration of instruments which effects changes to
the Register. People who neglect or fail to register their interest in land place themselves in a
situation where they may lose their entitlement to the land or have their priority affected by an
earlier registration.
1.13.2
Lodging of Documents
The original of a document must be lodged with Landgate and as a general rule duplicate
documents cannot be lodged along with it. However, the TLA does provide for the lodgement of
Freehold Leases, Sub-Leases and Powers of Attorney in duplicate.
Documents may be lodged in the Acceptance Sections of the Midland, Perth or Bunbury Offices
between the hours of 8.30 am and 4.30 pm only.
Before presenting the documents, the lodging party should be aware of the present state of the
Register and also ensure that there are sufficient fees in hand and that the documents are:
•
dated
•
stamped when required by the Office of State Revenue (Stamp Duties Division)
•
signed by the parties and correctly witnessed
•
arranged in the order in which they are to be registered
•
noted on the receipt panel of each document with the volume and folio reference or
crown lease number of each certificate of title or crown lease produced with that
document (but only on the first document where the documents all refer to the same land)
and/or any evidence produced eg: deeds, statutory declarations, etc
and
•
accompanied by the relevant duplicate certificate of title (if any) or Crown lease or that
arrangements have been made for its production.
Upon presentation of the document for registration, the lodging party should:
•
complete the white form Lodging Instructions (LT1) to obtain a receipt for the
documents lodged and the fees paid. This form is provided free of charge
•
ensure the precise instructions for the return of any duplicate titles and other items
produced are shown on the document
and
•
present each document in its correct order for registration to the acceptance officer.
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
Note:
In those cases where:
•
the duplicate certificate of title or crown lease is required to be produced by the lodging
party or
•
the duplicate certificate of title is partially cancelled
the customer has the option of simply lodging the documents or ensuring beforehand by enquiry
at the Customer Centre, that the relevant duplicate title (if any) has been produced or is indeed
partially cancelled. This check will eliminate the chance of receiving a requisition (and a request
for a requisition fee) from the Document Examiner if the duplicate title has not been produced or
is partially cancelled. The telephone number to ascertain the information is (08) 9273 7333.
The documents are inspected by the Acceptance Officer for the evidence said to be produced
and that they have been duly stamped and an assessment of fees is made. The documents are
then numbered and details of the transaction entered into the computer record.
The lodgement of the document is completed by payment of the required fees. The receipted
assessment carries the same number as the document in respect of which the fee was
assessed and should be retained in case there is a subsequent need to check on the progress
of that document as well as for accounting purposes.
To create and lodge documents Electronically, please contact the relevant ELNO.
1.13.3
Lodgement by Post
Documents may be lodged for registration by post.
Documents addressed directly to the Document Lodgement Section will be sort and directed
immediately to the appropriate section, ensuring that they will get the highest possible time
clock priority.
Documents should be addressed:
Landgate
Document Lodgement Section
P O Box 2222
MIDLAND WA 6936
Each document or series of documents must be accompanied by a letter requesting registration
and enclosing the prescribed fee.
1.13.4
Order of Registration
Documents are normally registered in the following order:
•
documents removing encumbrances
•
documents effecting changes in the proprietorship of land
and
•
documents encumbering the interest of the new registered proprietor.
Within that framework documents are registered in the order which gives effect to the intention
of the parties. Where two documents are lodged and some doubt as to priority arises, eg: a
discharge and a transfer followed by two mortgages, the lodging party must determine the
priority of the mortgages by endorsing in the encumbrance panel of the mortgage intended to be
second in priority, details of the parties, the date and amount of the mortgage to be first in
priority.
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The Registrar will register an instrument presented for registration in the order, and from the
time, of its presentation. Instruments purporting to affect the same estate or interest have
priority as between each other according to the time of registration. (s.53 of the TLA).

Note:
Electronically lodged documents will be registered in the order listed on the Lodgement
Instruction Sheet (LIS).
1.13.5
Payment of Fees
The Registrar may demand the fees prescribed (s.191 of the TLA). Fees payable in accordance
with the Scale of Fees published in the Government Gazette from time to time must be paid on
the day of presentation of the document for registration. Documents on which the fees have not
been paid will be rejected and lose their priority.
Click on this link for the list of current registration and searching fees.
1.13.6
Priority of Registration
Priority of registration is achieved by the Registrar noting the day and hour when each
document is presented for registration on the memorandum endorsed on the paper folium in the
Register and on the face of the instrument itself. In the case a digital title under SmartRegister,
only the date of Registration appears on the Record of Certificate of Title. In practice each
document is allocated a label printed with the document number, date, time lodged, fees and it
is this action which establishes the time of registration.
Priority is lost when:
•
the instrument is rejected under s.192 of the TLA
or
•
the instrument is withdrawn from registration at the written request of the lodging party
(see paragraph 1.14.6).
All documents are numbered consecutively and the number is used as an identifier for recording
purposes. The number, in conjunction with the time and date lodged, establishes the priority of
the instruments.
1.13.7
Priority of Registration - Computer Failure
The priority of a document is currently established by the electronic recording of the date and
time. When the computer system which allocates the number, date and time fails, no
documents will be accepted for registration.
The only exceptions to this rule are documents that were taken over the counter prior to the
instruction from the Manager of Registrations Branch to stop processing documents (i.e. bulk
lodgements by banks). As one component of the system issues numbers for lodgements in the
Perth Office (Cloisters), Bunbury Regional Office and in the Landgate building in Midland, if
lodgement ceases in one centre, it will also cease in the others.
When the computer systems become operational once again, documents will be registered in
the usual way. Notices setting out these arrangements will be clearly displayed on the
acceptance counters at the time of any computer failure.
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1.13.8
Computer Record - Unregistered Dealings
A computer record of dealings in the process of registration is kept and is used to locate any
such dealings required for search purposes.
The record also prevents Landgate from issuing to the public an outdated photocopy search of
the relevant title. Access to the system and the information on it is available to members of the
public who are enrolled as customers on the Remote Searching System. There is no charge for
the information.
A manually produced photocopy of the documents in the process of being registered may be
obtained by arrangement with the Customer Centre (see paragraph 1.4.8).

Note:
In the case of a digital title under SmartRegister, the Record of Certificate of Title (title search)
has a section called Notes that contains information about any unregistered documents lodged
against that particular piece of land see paragraph 1.3.4.
1.13.9
Followers
Follower is the term used to denote documents lodged for registration, which follow documents
previously lodged but which have not yet been registered. The primary documents lodged are
referred to as leaders.
The Follower documents may lodged upon confirmation by Landgate to ensure that the leader
dealing is still currently under the registration process.
They must be accompanied by a letter requesting the Registrar to register the follower dealing
using the duplicate title produced (if any) in the leader dealing. The computer records the fact
that there is a follower dealing in the system and issues a warning to the Titles staff of the
existence of the follower when the leader dealing is completed.
The documents are accepted for registration in the normal manner with a card attached
identifying the leader dealing number. The leader and the follower dealings are amalgamated
(where possible) and passed to an Examination Group for processing.
1.13.10 Amendment of Documents Before Lodgement
An omission or error in a document noticed before it is lodged should be corrected and the
correction authenticated by the party to the document affected by the correction.
These amendments can also (in most cases) be made by solicitors and settlements acting on
behalf of their clients. In this case the amendments made are to be verified by a statement on
either the face or back of the document or in an accompanying letter on a letterhead in the
following form:
I . . . (insert full name) . . . am the (solicitor / settlement agent) for the transferee /
transferor / etc.). I have made or authorised and I have authority to make and to
authorise on behalf of such person(s) the amendments(s) (hereon / on the reverse
hereof) countersigned by me.
Signed: . . . . . . . . . . . . . . . . .
Witnessed: . . . . . . . . . . . . . . . . . . . .
Dated: . . . . . . . . . . . . . .
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1.13.11 Amendment of Documents After Lodgement
After a document has been lodged but not yet registered, minor alterations to the document, not
being matters of substance affecting the intention of the parties, can be made (at the discretion
of the Registrar) on receipt of a request in writing, detailing the alteration to be made.
Written requests to amend will be accepted if the letter of request names the person(s) for
whom the author of the letter is acting (who must be the person(s) detrimentally affected by the
amendment) and certifies that the authority to make the amendment has been obtained. Such
letters will only be accepted from:
•
A solicitor or firm of solicitors, in which case the request must be on letterhead paper and
signed by the solicitor or a principal of the firm.
•
A settlement agent, in which case the request must be on letterhead paper and signed by
a principal of the firm.
•
A bank or a trustee company on its official stationery and signed by a manager or a
nominated senior securities officer.
A private person who is personally affected by the required amendment may also by letter,
request the amendment of a document.
The format and content of this letter is contained in paragraph 1.14.5.
Written requests to amend will not be accepted from the party lodging the document where the
lodging party is:
•
an estate agent or a firm of estate agents
or
•
a private person who is not personally affected by the required amendment.
In these cases the request to amend must be signed by the party to the instrument affected by
the required amendment.
1.13.12 Patent Errors
The Registrar is empowered to correct patent errors in instruments after they have been lodged
for registration. To make a correction the offending words or figures are ruled through so as not
to obscure the original words or figures and the correct words or figures are substituted (s.189
of the TLA).
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1.13.13 Fast Track (Priority) Processing of Documents
Once a document has been lodged for registration it will take a week or so (depending on
backlogs) before it is examined and processed. It is possible however to have some types of
land transaction documents Fast Tracked upon the payment of a Fast Track (priority)
processing fee.
1.13.13.1 Guidelines
The TLA regulations provide for Fast Track (priority) processing with regard to the following
types of documents:
•
Transfer
•
Mortgage
•
Discharge of Mortgage
•
Withdrawal of Caveat
•
Survivorship Application
•
Enduring Power of Attorney
A person cannot request priority processing for a document referred to above if:
•
more than four (4) of such documents are lodged simultaneously in a case
•
the document(s) is a follower to another dealing that has not been processed
•
any of the document(s) relate to more than 5 lots
•
any of the documents in the case is a document that is not referred to above
or
•
the documents in the case are lodged simultaneously with an enduring power of attorney.
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1.13.13.2 Requests for Fast Track
The lodging party of a document can request Fast Track at the time of lodgement of the
documents. The additional fee is paid on the first document, if in a series of 4 or less
documents.
If the request to Fast Track is made after lodgement of the case, then a written request must be
provided. If the request is from a business / company then it should be on a letter head of the
organisation. The written request must contain:
•
a contact name and direct phone number
•
the case number and relevant details
•
date of request
and
•
a signed EBIS or credit card debit authorisation form.
The above-mentioned written request may be faxed to the Fast Track officer on facsimile (08)
9273 7651.
1.13.13.3 Registration processing time
Subject to the document(s) being fit for registration, the Fast Track service will target
completion of a case no later than two (2) business days following the request day.

Note:
If the document/case is complex and requires legal advice or a stopped document requisition is
raised then the service provided for the fee paid will be for Fast Track to the examination stage
only.
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1.13.14 Requests to Expedite the Processing of Plans and Documents
Landgate has had a long standing policy where customers or their representatives could
request the expedition of a survey plan and/or document (outside of Landgate’s existing Fast
Track process – see paragraph 1.13.13) provided the request was supported by evidence of:
•
a pending settlement (e.g. a signed offer of acceptance)
or
•
a written submission clearly identifying the circumstances for the request (e.g. financial
hardship).
A Request to Expedite the Processing of Plans and Documents Policy has been developed and
replaces all existing policies and is designed to provide fairness and equity to all parties while
enabling decisions relating to the expedition of survey plans and documents to be made in an
accountable and transparent manner.
1.13.14.1 Policy for Expediting Plans and Documents
The new policy specifies the following:
1.
All requests for priority must be made in writing (including by facsimile or email)
addressed to the Registrar of Titles.
2.
Priority for the processing of documents or plans may be approved by the Registrar or a
delegated officer of the Registrar in circumstances where:
(i)
the written consent of all parties that have a direct interest in the dealing is
obtained
and
(ii)
it is demonstrated that:
(a)
a party to the dealing will experience financial hardship if the documents or
plans are dealt with in Landgate’s standard turnaround times
or
(b)
3.
the contract/s specify a definitive settlement date.
For all requests to expedite documents or plans the following evidence requirements
apply:
(i)
a detailed written explanation as to the circumstances of the matter
and
(ii)

a signed letter of consent from each party that has a direct interest in the dealing.
Note
The evidence provided for expediting a survey plan will also be sufficient evidence to give
priority to the issue of new titles.
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1.13.14.2 Additional Evidence In Support of Request to Expedite
The following additional evidence is also required dependent upon the basis for the request:
Financial Hardship
•
Any evidence that may substantiate a claim of financial hardship including copies from
financial institutions (which may take the form of an original, photocopy or facsimile copy
of a letter on the financial institutions letterhead).
and/or
•
An original statutory declaration from the person making the request (a photocopy or
facsimile copy of a statutory declaration will be accepted with the request to expedite the
processing of plans and documents but the original signed declaration must be forwarded
to Landgate within 2 working days). Any statutory declaration made must clearly set out
the reasons for and the details of the financial hardship.
Definitive Settlement Date
A certified copy of the “offer of acceptance” clearly showing the definitive settlement date,
which may include a copy of the signed application for the issue of new titles in relation to
a survey plan (the offer and acceptance can be certified by a person eligible to witness a
statutory declaration in Western Australia).
All enquiries relating to the new “Requests To Expedite The Processing Of Plans And
Documents Policy” should be directed to Landgate’s Advice Line on (08) 9273 7044.

Note
This new policy only refers to document types that are excluded from Landgate’s current Fast
Track process which includes:
•
Transfer
•
Mortgage
•
Discharge of Mortgage
•
Withdrawal of Caveat
•
Survivorship Application
•
Enduring Power of Attorney
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1.13.15 Lodging of Electronic documents
The implementation of NECS through the ELN has now created the ability to lodge Electronic
documents. Approved Subscribers will be able to conduct conveyancing transactions through
the ELN. To become a Subscriber and for information on how to prepare Electronic documents,
please contact [email protected] or phone 1300 084 515.
The following services will be provided to the ELN workspace by Landgate to enable the
completion and lodgement of electronic instruments:

1.
Land Title Reference Verification (LRV) - When commencing an electronic transaction
the Subscriber will be able to check whether the title or titles to be dealt on are able to be
processed electronically. Once the title details are entered into the ELN a request will be
made for Landgate to verify that firstly, the title is valid and secondly, that it can be
transacted on electronically. Where there is more than one title in the transaction all titles
must be capable of being processed electronically. If this is not the case then the
transaction will not be able to be processed via ELN and paper lodgement will be
necessary.
2.
Registry Information Supply (RIS) - Once the land title/s suitability for electronic
transacting has been confirmed, the ELN will request a RIS. The data supplied by
Landgate to the ELN in response to this request will be sufficient to enable completion of
all instrument types that are able to be lodged via the ELN. The RIS will also include
details of any activity on the title/s for the last 60 days.
3.
Title Activity Check (TAC) - The TAC service checks with Landgate for any changes to
the registry information initially supplied to the ELN workspace. This service is to be used
as required for due diligence purposes by participating Subscribers to ascertain whether
there has been any change to the land title information. Multiple TACs may be requested
during the life of the workspace. TACs will be triggered automatically by the system or
requested manually by a Subscriber.
Note:
The RIS and TAC services do not remove any regulated requirement to conduct appropriate
land title search/s on behalf of your client.
4.
5.
Lodgement Verification (LV) - The objective of this service is to request Landgate to
validate that a given Lodgement Case is acceptable for Lodgement. This service is
invoked automatically by the ELN when:
•
All documents in the Lodgement Case (the Lodgement Instructions, all Registry
Documents or Administrative Notices) have been prepared, are complete, but not
yet necessarily certified or signed;
•
All documents in the Lodgement Case have been certified and signed by all the
relevant Subscribers; and
•
In a Lodgement Case involving Settlement, when a Title Activity Response
Indicator of “Yes” is returned from the Title Activity Check in the pre-Settlement
Title Activity Check. i.e. one hour prior to settlement
Lodgement Verification Status (LVS) - This service provides a means for Landgate to
communicate back to the originating ELN workspace the status of a Lodgement
Verification request.
Upon receipt of a Lodgement Verification Request Landgate will complete verification of
all documents in the Lodgement Case against the relevant jurisdictional Business Rules
and confirm the acceptability of the Lodgement Case for Lodgement.
Landgate will compile the Lodgement Verification Compliance Report, Lodgement Fee
Estimate and send the Lodgement Verification Status Advice to the ELN.
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If the Lodgement Case:
•
passes verification, Landgate returns a successful Lodgement Verification
Compliance Report (Compliance indicator = “Yes”) that includes warning and
information messages (in natural language).
•
fails verification, Landgate will return an unsuccessful Lodgement Verification
Compliance Report (Compliance indicator = “No”) that includes error and warning
messages (in natural language) detailing required documents missing from the
Lodgement Case, documents in the Lodgement Case which failed verification and
reason(s) why identified documents are not eligible for Lodgement.
Some examples of critical errors which would result in documents being unacceptable for
lodgement include but are not limited to:
•
the land title is not current,
•
the land title is not valid,
•
incorrect fees paid,
•
Digital signature is missing,
•
Subscriber organisation in the Digital signature does not match Execution,
•
Subscriber does not exist etc.
A title status can change from able to be dealt with electronically to unable to be dealt
with electronically during the life of the workspace.
Subscribers should investigate any returned warnings and take appropriate action as
required.
6.
Lodgement (L) - This service provides a means for the ELN to submit a Lodgement
Case for Lodgement with Landgate.
7.
Lodgement Case Status (LCS) - This service provides a means for Landgate to
communicate back to the originating ELN workspace the status of a Lodgement Case.
Notwithstanding prior successful Lodgement Verification, Landgate may or may not
accept a Lodgement Case for Lodgement.
The Lodgement Case Status returns the status of the case (Not Accepted, Lodged,
Completed) and details of the status of each document in the case (Lodged, Registered,
Rejected, Withdrawn).
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1.14
Stopped Documents
1.14.1
General
All land transaction documents lodged at Landgate are examined by Registration Officers
before they are registered. If a lodged document is found to be erroneous or defective, it will
need to be fixed before it can be registered. A document in this situation is known as a Stopped
Document.
1.14.2
Power to Require Amendments
The Registrar is empowered to require the lodging party to have the error or defect in a
document amended. A Requisition Notice is issued for documents that are stopped (see
Chapter 1.14.3 below). When a Requisition Notice is sent out, a requisition fee is levied in those
cases where the requisition arises from a mistake that is clearly a matter of fact. Where the
Registrar issues a requisition to clarify the intention of a document no requisition fee is levied.
1.14.3
Requisition Notices
When a document is stopped a Requisition Notice is faxed or posted to the lodging party and
preparing party to specify exactly what is wrong with the documents(s). Depending on the type
of document that is stopped, a Requisition Notice will be issued under either s.137 or s.192 of
the TLA.
1.14.3.1
Under Section 137 of the TLA
If a stopped document is a caveat that needs to be supported by a statutory declaration, a
Requisition Notice under s.137 of the TLA will be sent out giving the lodging party 7 days to
satisfy the requisition. If the statutory declaration is not filed within the 7 day time period the
caveat will automatically become null and void.

Note:
The Registrar of Titles is not able to grant an extension of time for a Requisition Notices issued
under s.137.
1.14.3.2
Under Section 192 of the TLA
For all land transaction documents, with the exception of caveats requiring a statutory
declaration (see above), a Requisition Notice under s.192 of the TLA will be sent out giving the
lodging party 14 days to satisfy the requisition. If the requisition has not been satisfied within the
14 days, Landgate will then send a Requisition Warning Notice, informing the lodging party that
the Registrar is allowing a further 2 days to comply with the requisition after which the document
will be rejected (see paragraph 1.14.7).

Note:
The Registrar of Titles is able to grant an extension of time for a Requisitions Notice issued
under s.192 of the TLA). Requests for an extension of time must be submitted in writing and will
only be granted in the most exceptional circumstances.
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1.14.4
Uplifting Requisitioned (Stopped) Documents
Sometimes it is not possible to fix a document by sending Landgate a letter requesting an
amendment. For example a document may need to be executed by one of the parties. In this
circumstance it is possible for the lodging party to uplift the defective document and take it away
to have it fixed.
To uplift a document that has been stopped the lodging party must make a request in writing to
the Registrar of Titles. A photocopy of the document is made and the original is handed to the
lodging party to be fixed. A period of 72 hours is usually given to fix and return a document.
If an uplifted document is not returned within the time frame given, it may be rejected.
1.14.4.1
Uplifting
Documents requiring uplifting may be collected at:
•
Midland office (in person or by courier)
•
Bunbury office (in person by prior arrangement)
or
•

Posted to lodging party or authorised person.
Note:
Documents cannot be uplifted via the Perth (Cloisters) office.
Request to uplift documents must:
•
be on a company letterhead
•
signed personally by the principal or an authorised person of the lodging party
•
contain document reference number and name of the Landgate document Examiner
and
•
identify the person uplifting the document, if a courier company the name of the courier
company.
To ensure that the documents that are to be collected in person or by courier are correctly
prepared for collection, a faxed copy of the uplift authority letter should be sent to the document
Examiner at least one (1) day before collecting the uplifted documents.
To assist the courier company when they collect the documents please provide them with the
full details of the documents to be collected (i.e. document number, examiners’ name and
telephone number).
The person who authorises the uplifting of the document(s) must take full responsibility for the
return of the document to Landgate within three working days (72 hours). Documents not
returned within three working days (72 hours) may be rejected.
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1.14.4.2
Returning Uplifted Documents
Uplifted documents can be returned to Landgate:
•
by post to Midland office
or
•
by hand (in person) at Midland, Perth (Cloisters) or Bunbury offices.
Corrected documents should be placed inside a sealed envelope addressed to the Landgate
Examiner by name, including the examination group number and document number.
Conveyancers should advise the Landgate document Examiner when returning documents via
the Perth (Cloisters) or Bunbury office’s, as in most instances the documents will not reach the
Examiner until the next working day.
1.14.5
Fixing Stopped Documents
Where requisitions are raised by Landgate on documents lodged for registration and
amendments are required to those documents, such amendments must be authorised. The
most emphatic authorisation is the initials of the parties to that document and their witnesses.
However, Landgate will also accept letters authorising the Registrar to amend the document on
behalf of the parties to the document. Such letters may come from either the party or parties
affected by the amendment, or the solicitor or settlement agent acting on behalf of and
authorised by the party affected.
Letters requesting amendments should contain the following information:
•
Details of the document to be amended
•
State the authority under which the request is made
and
•
Clearly express the amendment to be made.
Where the request is made by a solicitor or settlement agent acting on behalf of their client, the
request is to be made on a letter head and is to addressed to the Registrar of Titles. The letter
is to be in the following form:
I . . . (insert full name) . . . am the (solicitor / settlement agent) for the transferee /
transferor / etc). I have made or authorised and I have authority to make and to
authorise on behalf of such person(s) the amendments(s) (hereon / on the reverse
hereof) countersigned by me.
Signed: . . . . . . . . . . . . . . . . .
Witnessed: . . . . . . . . . . . . . . . . . . . .
Dated: . . . . . . . . . . . . . .
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1.14.6
Withdrawal of Documents from Registration
If, within the time allowed for correction of an error in a document, the lodging party by written
request, withdraws the document from registration the document will be returned and a fee per
document retained.
In order to retain continuity in the filing system, the covers of documents rejected or withdrawn
are photocopied and the copy filed in place of the original document so rejected or withdrawn.
Records of the requisitions made, the action taken by the parties (or lack of it) and financial
details of the partial fee refund, are also made.
Where the parties to a transaction wish to withdraw from registration a perfectly correct
document, the letter from the lodging party requesting withdrawal from registration must give an
acceptable reason. Letters requesting the withdrawal must also be signed by all parties to the
document and by all parties that could be affected by withdrawal of the document. For example,
in the case of a discharge of mortgage, letters to withdraw would need to come from the
Lodging Party, the Mortgagee and the Registered Proprietors.
1.14.7
Rejection of Documents
Where an erroneous or defective instrument has not been corrected within the time allowed, the
Registrar may reject the instrument and 75% of the fees paid are forfeited as a penalty (s.192 of
the TLA). The rejected documents are returned to the lodging party upon payment of requisition
fees.
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1.15
Rectification in the Register and on Instruments
(after Registration)
1.15.1
General
Under s.188 (2) of the TLA the Commissioner of Titles may direct the Registrar of Titles to
correct an error made in the Register (including graphics associated with the certificate of title)
or on entries made on Duplicate paper Titles or Instruments. These are errors or omissions
identified or detected after the registration of an instrument or other dealing.
On a paper title (including the duplicate title), critical errors amended by direction of the
Commissioner and minor or simple clerical errors amended by Assistant Registrars of Title are
made by merely striking through the error and adding the correct or omitted information.
Under SmartRegister however, all changes to a digital title must be effected by the lodgement of
a document. Sundry Document type XA has been developed to facilitate the rectification of all
errors and/or omissions that occur in the case of a Digital title.
Rectification of an error or omission on a Digital title will create (by using the Sundry Document)
a new version of the Register and if the duplicate title has been produced, a new edition of that
duplicate will be created. If the duplicate title has not been produced, any statement made on
the Title Record will be identified by an asterisk (*) that will immediately precede the statement.
This will indicate that the statement is not in the current Edition of the duplicate certificate of
title.
Where an error or omission requires rectification in an instrument (but does not effect a change
on the current status of a digital title) Sundry Document type XE is to be used for directions to
amend and by Assistant Registrar’s. Sundry Document type XE enables registration of the
rectification in the Historical Database without affecting the current status of the digital title for
the land.
1.15.2
Street Address and Local Government Statements
Street address and Local Government statements contained on a digital title are held in
separate databases from SmartRegister. The digital title is populated with this information from
databases under the responsibility of Location Products and Services and Registrations
respectively. Any rectification of an error or omission in these databases can only occur, after
investigation by officers within those business units.
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1.16
Issue of Instruments after Registration
1.16.1
General
Documents of which there is only one copy, eg: transfers and discharges of mortgages, are
retained by Landgate.
The duplicate certificate of title (if any), Crown lease under the Land Act 1933 or leases of
Crown Land under the LAA and duplicate copies of any other document are returned to the
lodging party through a system of issuing boxes similar to Post Office Boxes.
Regular customers are allocated a numbered box in the Perth and Midland Offices and issued a
key to it. Documents to issue to private customers are held in a series of alphabetically labelled
boxes under staff supervision for collection by the customer. The customer must produce either
the document receipt or some other form of proof of identity such as a driver’s licence before
the documents are handed over. A computer record of the party receiving the document is
maintained, (see paragraph 1.16.2 below).
Where the documents are to issue to a person other than the person designated at the time of
lodgement, an authority is required signed by the person entitled to receive the document or
certificate giving specific instructions as to delivery.
Documents and certificates may be issued by ordinary mail if a request is made at the time the
document is lodged. A full postal address for the addressee must be supplied.
1.16.2
Issuing Receipts
1.16.2.1
1897 to 1963
In the period 1897 to December, 1963 whenever a duplicate title was issued a receipt number
was written on the original title on the front top left hand corner. If the duplicate title was issued
more than once over a series of years a new number was added each time. The numbers
consisted of a number and year, eg: 1234/45.
Receipt books completed in the receipt number order are still held by Landgate in a secondary
storage warehouse and access to the books or the information can be arranged by contact with
the Land Registration Centre in the Landgate building in Midland or by telephone on (08) 9273
7314.
1.16.2.2
1964 to 1969
In the period 1964 to 1969 at the completion of the registration of a document a receipt number
was stamped on the front of it (the document) to create a record of the issuing of the title.
Receipt books completed in the receipt order number are still held by Landgate in secondary
storage warehouse and a microfilm copy of the books is also kept. A print of the information can
be obtained by arrangement with the Land Registration Centre.
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1.16.2.3
1970 to 30 April 1984
In the period 1970 to 30 April, 1984 a separate issuing card was created for each duplicate title
issued (and other items such as Grants of Probate and duplicate documents). The cards were
allocated the same number as the number of the document with which the duplicate title was
produced and microfilm records were made of the cards and the cards destroyed. A print of the
information held on microfiche can be obtained by arrangement with the Land Registration
Centre.
1.16.2.4
1 May 1984 to 22 March 1992
In the period 1 May, 1984 to 22 March, 1992 a separate issuing card was created for each
duplicate title (and other items) issued. Issuing cards for items issued between this period of
time were not microfilmed. After a period (usually 12 months) the cards were destroyed and the
titles are deemed to have been issued in accordance with the issuing instructions made on the
document at the time of lodgement.
1.16.2.5
23 March 1992 to 13 August 1993
In the period 23 March, 1992 to 13 August, 1993 a separate issuing card was created for each
duplicate title (and other items) issued. The cards were allocated the same number as the
number of the document with which the duplicate was produced and microfilm records were
made of the cards and the cards destroyed. A print of the information held on microfiche can be
obtained by arrangement with the Land Registration Centre.
1.16.2.6
14 August 1993 to 22 October 1993
In the period 14 August, 1993 to 22 October, 1993 no separate issuing records were created
and duplicate titles (and other items) issued are deemed to have been issued in accordance
with the issuing instructions made on the document at the time of lodgement.
1.16.2.7
25 October 1993 to 17 January 1995
From 25 October, 1993 to 17 January, 1995 at the completion of the registration of a document
a record was made of the issuing party to whom the duplicate title was issued. The duplicate
title and a computer record printout showing the title number and recipient was placed in the
appropriate customer’s locked issuing box.
If the customer collected the document from the box and left the Landgate premises without
reference to the staff, the duplicate title was deemed to have been issued in accordance with
the computer record. Access to the information held on record can be arranged by contact with
the Land Registration Centre in the Landgate building in Midland or by telephone on (08) 9273
7314.
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1.16.2.8
18 January 1995 to present
On 18 January, 1995 the present Document Issuing System (DIS) was introduced. The main
features of the new system are:
•
a computer record of all items issued back to the Client from 18 January, 1995;
•
the production of Issuing Lists for signing by the Client detailing any items which have
been collected ; and
•
free on-line enquiry facilities for My Landgate subscribers.
The Issuing Lists are uniquely numbered and produced in duplicate. Both copies of the Issuing
List are placed in the Client’s issuing box with the items being issued. Clients are required to
check that the items noted on the Issuing List have been received, then sign and date the
Landgate copy and place it in the collection box located at the Issuing Counter.
The Client retains their copy of the Issuing List for their records. All Landgate copies of the
Issuing Lists, signed and returned by the Client are then flagged on the computer system to
verify that Clients have taken possession of the issuing items.
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1.17
Service of Court Orders upon the Registrar
1.17.1
General
Where a Court Order affects land, the Registrar of Titles should be joined as a party to the
action.
Court Orders must be served on the Registrar at Landgate’s Midland office in accordance with
the Rules of the Supreme Court.
The sealed copy of any Court Orders must be sighted by a responsible officer in the Title
Dealings Section of Landgate at the time of service.
Court Orders that are faxed to Landgate do not constitute proper service upon the Registrar,
unless the order itself specifically authorises service by facsimile to the Complex Dealings
Section at Landgate and quotes the relevant fax number.
1.17.2
Registrar’s Packets
A Registrar’s Packet is an administrative mechanism that enables the Registrar of Titles to
remove a paper certificate of title from the normal storage area to ensure that documents
lodged in respect of that certificate of title are carefully considered by one of Landgate’s legal
officers prior to registration. In the case a digital title, the title cannot be physically removed from
file and held inside the Registrar’s Packet.
These titles are merely marked subject to the Registrar’s packet and will result in a search of the
Register watermarked with Subject to Dealing or Other Action. Registrar’s Packets involving
digital titles are created by Sundry Document type XP.
The most common reasons for creating a Registrar’s Packet are:
•
that the Registrar of Titles has been served with copies of court proceedings, court orders
or injunctions relating to land in a particular certificate of title
or
•
the Registrar is put on notice that there may be defective or potentially defective
documents that have been registered, lodged and not yet registered or that may be
lodged in the future.
By way of example, the need for a Registrar’s Packet arises in the situation where an injunction
has been served upon the Registrar of Titles. The Transfer of Land Act contains no provision for
an injunction to be recorded on the register. It is therefore necessary to give notice of the
injunction by removing the certificate of title from the normal storage area. If this is not done,
dealings may be lodged and subsequently registered in breach of the injunction.
The creation of a Registrar’s Packet does not, of itself, prevent lodgement of documents nor
changes to the Register. It is possible to obtain information about a Registrar’s Packet that has
been created by ordering a Status Report from Landgate’s Search Transmission Centre.

Note:
For more information on Status Reports, see paragraph 1.17.3 below.
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1.17.3
Status Reports (on Registrar’s Packets)
Freedom of information legislation limits access to information connected with any court action
or other matters that are the subject of a Registrar’s Packet.
A Status Report is the mechanism by which all clients of Landgate can obtain identical
information pertaining to a particular Registrar’s Packet. This will assist clients to make informed
decisions pertaining to the conduct of settlements in land.
A Status Report will be signed and dated by an Assistant Registrar of Titles and will contain the
following information:
•
a list of all certificates of title, crown leases, dealings and surveys held in or subject to the
Registrar’s Packet
•
the reason for the creation and/or continuation of the Registrar’s Packet
•
where court orders are involved, the Court Action number, the parties to the action, the
solicitors acting for the parties and a general description of the orders sought will be
provided
and
•
Landgate’s requirements for disbanding the Registrar’s Packet.
A Status Report can be ordered from Customer Services Contact Centre upon payment of the
prescribed fee.
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2.
Dealings: Transfers, Mortgages,
Leases, Charges, Profits a’
Prendre, Carbon Rights, Carbon
Covenants and Tree Plantation
Agreements
This chapter contains information relating to documents and evidence in
support of transfers, mortgages, leases, charges, profits a prendre, carbon
rights, carbon covenants and tree plantation agreements. Landgate has
created a number of specific forms.
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2.1
Transfers
This document is subject to the Verification of Identity Practice issued jointly
by the Western Australian Registrar of Titles and Commissioner of Titles.
Please refer to Chapter 14.
2.1.1
General
The proprietor of any land, lease, mortgage or charge may transfer the same by executing a
transfer in one of the forms approved by the Registrar (see 15.1 List of Freehold Land
Registration Forms). Such a form, when completed and registered, is the statutory instrument
required to effect changes of ownership in the Register.
The form of transfer in use provides that the information required to complete the form be
placed in panels in a set pattern. It is important to realise that the marginal heading adjacent to
each panel and the accompanying notes on how to complete the form are an integral part of the
form. The forms are designed for ease of preparation and for ease of examination. Repetition is
kept to an absolute minimum.
2.1.2
Choose the Correct Form
It is essential that the correct form is used to achieve the desired change to the register (title). A
transfer by a mortgagee exercising a power to sell will not be registered in any other form than
on a Form T4 transfer. Conveyancers should be similarly careful not to choose the wrong form
when preparing a survivorship application, or a transmission application, for the same reason.
A transfer Form T2 must be used in all cases where the parties desire not only to transfer land
but also to create at the same time reservations or grants of easements, or restrictive
covenants. This form type should also be used where there are many endorsements in the
Second Schedule. While a transfer of freehold land is prepared on either a Form T1 or Form T2,
a transfer of a lease must be prepared on a Form T3.
Landgate introduced three new Transfer Form types in June 2013. These new form types are
the Form T1A, Form T2A, and Form T4A and have two significant differences to the T1, T2 and
T4:
1.
Verification of Identity Statement incorporated into the form
With respect to the Verification of Identity Statement incorporated into the form, there are
some limitations with respect to its use and therefore the use of the new forms. These
limitations are as follows:
•
For use only where multiple transferors, whether corporations or natural persons,
are represented by the same lawyer or licensed settlement agent. In other words,
the Verification of Identity Statement cannot be used where multiple transferors are
represented separately.
•
The new T1A and T2A forms cannot be used by a self-represented party, because
the self-represented party does not make the Verification of Identity Statement.
•
The T4A Transfer by Mortgagee pursuant to power of sale form can only be used if
a lawyer acts for the mortgagee and signs the Verification of Identity Statement.
•
It is not acceptable to strike through the VOI Statement that has been integrated
within the new T1A and T2A forms. You must use the existing T1 or T2 forms if you
are providing a VOI Statement on a separate sheet.
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2.
The Limitations, Interests, Encumbrance and Notifications panel has been removed.
As the Limitations, Interests, Encumbrance and Notifications panel has been removed
from these forms, the current practice for the removal of restrictive covenants, which have
expired due to a time limit within the restrictive covenant, can no longer continue.

Note:
The use of the new forms is optional subject to your operational requirements.
Since it appears to be usual practice for the transferee/buyers’ agent to choose which form to
use, it is clear that now it will be important for this agent to decide, with the agent acting on
behalf of the transferor/seller, as early in the transaction as practicable, which way they will go
so that the correct form is used.
2.1.3
Describe the Land Being Transferred
This should be a full description with reference to either the location, or lot and plan or diagram
and whether it is the whole or part of a certificate of title (volume and folio reference), Crown
land title (volume and folio reference) or Crown Lease (number and year).
2.1.4
Describe the Estate or Interest Being Transferred
The words fee simple should be used where the land is freehold and the word leasehold where
the land is leasehold. Where the land transferred is both fee simple and leasehold the fee
simple lands should be grouped as firstly and the leasehold grouped as secondly in the Land
being transferred panel. The estate or interest panel should then read fee simple in the land
firstly above described and leasehold in the land secondly above described. An undivided half
share or other interest should also be indicated in this panel, i.e.: one undivided half share of
the fee simple.
2.1.5
Set Out Limitations, Interests, Encumbrances and Notifications
Any limitation, interest, encumbrance or notification to which the land is subject to (burdened)
must be noted (see also paragraph 1.3.4). The documents shown are to be identified by nature
and number. The plan/deposited plan/diagram encumbrances shown are to be identified by
nature and relevant plan/deposited plan/diagram. Strata/survey strata plan encumbrances are
to be described as Interests notified on strata/survey strata plan (state the number). If none,
show NIL.
For example, an encumbrance such as a mortgage or lease should be shown as Mortgage
B12121 or Lease B12122. An encumbrance such as an easement or a restrictive covenant
contained in a transfer (that burdens the land) should be shown as Transfer B12123.
The endorsement This Edition Was Issued Pursuant to s.75 of the TLA is not required to be
shown.
For the removal of time expired restrictive covenants created under s.120A and s.129B of the
TLA, refer to paragraph 7.5.1.
2.1.6
Describe the Transferor(s)
This is usually the registered proprietor but in some cases can be the Sheriff selling land taken
in execution under a writ, or a mortgagee exercising a power of sale. The name of the
registered proprietor must be identical to that shown on the title.
It is not necessary to show the address of the transferor. Where the name of the proprietor
differs on the transfer and certificates of title (see paragraph 3.5.10).
Tenancy should not be shown in the transferor panel.
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2.1.7
Show the True Consideration
If the consideration for the transfer is a sum of money then the amount should be shown in
figures. If the consideration for the transfer is not a sum of money then the true consideration
must be stated concisely. NIL is not an acceptable consideration but GIFT is.
If a group of proprietors are adjusting the shares held between them, or selling a share to new
partners, the consideration must specify who is paying the consideration, and to whom.
If the statement of the true consideration involves a reference to a document (e.g. an agreement
or court order) the document must be clearly identified by making reference to the date it was
made or executed. Unless the document referred to is a Will or a Deed of Family Arrangement,
(varying the terms of a Will or the terms of the Administration Act) it need not be lodged with the
transfer for registration.
However, if the details of the document do not match to details shown by the Office of State
Revenue (Stamp Duties Division), Landgate will require the document to be produced. If the
document is a court order, a sealed copy or a Landgate sighted copy of it is required.
2.1.8
Describe the Transferee(s)
The full name and address of the transferee must be shown. As the address given is the one to
which any notices will be sent in the future, care should be taken in the choice of address
shown. If the transferee is intending to change residence to the property purchased,
consideration should be given to showing the new address in the transfer.
Where there is more than one transferee an expression of the manner in which they hold the
land must be given, eg: as joint tenants or as tenants in common in equal shares or as the case
requires. Where no tenancy is stated on a title, with respect to the registered proprietors, there
is a presumption of a joint tenancy (s.60 of the TLA). Trusts are not to be disclosed (s.55 of the
TLA) ie: a transferee may not be shown as executor of a Will or as Trustee of a Family Trust, or
as trustee of a Superannuation Fund.
2.1.9
Attestation
The transferor and transferee must sign the instrument in the spaces provided in the presence
of (in Australia) an adult witness who is not a party to the document. . Witnesses are required to
add their address and occupation to the document. For further information see paragraph 1.8.
2.1.10
Straightforward Transfer of Land
A specimen form of transfer, [see Land Titles Registration Practice Manual (LTRPM) List of
Form Examples] shows the simplest type of transaction- a transfer by a sole proprietor to a sole
purchaser of an estate in fee simple of the whole of the land in a single title free from any
limitations, interests, encumbrances or notifications.
2.1.11
Transfer - Where Land is Encumbered
Where land is sold encumbered by an existing mortgage lease or other encumbrance a concise
entry should be made in the Limitation, Interest, Encumbrance and Notification panel (see
paragraph 1.9.4). For example:
•
Where the encumbrance is a mortgage the consideration in the transfer should be
expanded either to include or exclude the amount of money owing under the mortgage,
eg: Four thousand dollars inclusive (or exclusive) of the principal and interest
owing under Mortgage F323654.
•
Where land is encumbered by a lease the term of which (inclusive of any option to renew
or extend the term) has expired no reference to the lease as an encumbrance need be
made. If the lease is still current or has been extended and such extension registered,
then the lease (not the extension) must be noted as an encumbrance.
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2.1.12
Transfers to Joint Tenants
The transferee panel containing the names and addresses of the transferees must contain in
addition the words as joint tenants.
Although there is a presumption of a joint tenancy where no tenancy is stated (see s.60 of the
TLA), Landgate requires tenancy to be stated in a transfer that is lodged for registration to avoid
any doubt as to the intention of the transferees.
2.1.13
Transfers to Tenants in Common
A tenancy in common does not arise by implication or presumption and must be expressly set
out in a transfer. The correct place to show a tenancy in common is in the transferee panel of a
transfer form following a description of the transferees.
The panel should be completed as set out in the following examples:
•
Where the shares are equal:
William Brown of 5 Gray Street Perth of one undivided half share and Graham
Jones of 10 White Avenue Fremantle of one undivided half share as tenants in
common, or
William Brown of 5 Gray Street Perth and Graham Jones of 10 White Avenue
Fremantle as tenants in common in equal shares.
•
Where the shares are unequal:
A of etc of two undivided third shares and B of etc of one undivided third share as
tenants in common.
2.1.14
Transfer - Tenants in Common and Joint Tenants
Where persons desire to hold land as tenants in common but some of them, between
themselves, desire to create a joint tenancy as to their share, the transferee panel should show:
James Smith, and Mary Smith, both of 10 Kew Street, Perth, as joint tenants of one
undivided half share and Thomas Jones of 5 Timm Street, Balga, of one undivided
half share, as tenants in common.
or
James Smith, and Mary Smith, both of 10 Kew Street, Perth, as joint tenants, of
one undivided half share and Thomas Jones, and Jane Jones, both of 5 Timm
Street, Balga, as joint tenants, of one undivided half share, as tenants in common.
or
James Smith and Mary Smith, both of 10 Kew Street, Perth, as joint tenants of two
undivided fourth shares, Thomas Jones of one undivided fourth share and Jane
Jones of one undivided fourth share, both of 5 Timm Street, Balga, as tenants in
common.
In the case of a digital title, tenants in common will only receive one duplicate certificate of title
showing all their shares noted on that one duplicate certificate of title. If a separate duplicate
certificate of title is required for each tenant in common’s share, separate paper titles can be
created and registered for the respective shares of the transferees.
The request should be typed or written on the transfer form and signed by each new transferee
or by the transferee’s solicitor or agent. A further fee is payable for each additional certificate
created (click on this link for the current list of registration and searching fees).
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2.1.15
Purple Title
The sketch on a paper title created and registered for an undivided share used to be coloured
purple to distinguish it from certificates covering entire interests, which is the origin of the term
purple title. No colour has been shown on any title created and registered after 1987.
2.1.16
Transfer by a Tenant in Common of His or Her Entire Interest to a
Stranger
In this case the estate or interest panel should read fee simple as to one undivided half share
or whatever share represents the entire interest of the transferor. Unless the creation of
separate (paper) titles is requested, the digital title will show all the current owners, and their
share entitlement. Another way of achieving this result is for all the present proprietors to
transfer the entire interest in the land to the continuing proprietors and the stranger as tenants
in common in the appropriate shares.
2.1.17
Transfer by a Proprietor to Himself
Transfers where the transferor and the transferee are one and the same are sometimes
prepared in an attempt to give effect to a change in the beneficial ownership of land. Landgate
will not however accept these types of transfer for registration even though s.44 of the Property
Law Act 1969 (the PLA) appears to provide for this.
Section 44 of the PLA is inconsistent with s.84 of the TLA. Section 84 of the TLA states that it
shall be lawful for a proprietor to make a transfer directly to himself and another person or
jointly with any other person to himself alone. This means that a proprietor cannot transfer from
himself solely to himself solely.
When there is inconsistency between the PLA and the TLA, s.6 of the PLA states that the PLA
does not apply. Therefore s.84 of the TLA takes precedence over s.44 of the PLA.
Transfers lodged to change the beneficial ownership of interest in land where there is no
change in the legal ownership cannot be registered as they are in breach of s.84 of the TLA.
Where the beneficial interest in land has changed, the lodgement of a deed of trust may be
appropriate (see paragraph 5.4).
2.1.18
Transfer by a Tenant in Common of Part of His or Her Interest to a
Stranger or Strangers
It is necessary in transfers of this type that there be no ambiguity in stating what part of the
interest of a tenant in common is being transferred. It is considered that the most effective and
direct method is to translate the interest of the transferor being transferred to a
proportion of the entirety.
For example, where a tenant in common is registered as proprietor of a one undivided fourth
share and wishes to sell a one fourth share of that interest, the estate or interest panel should
read fee simple in one undivided sixteenth share. One undivided sixteenth share in the entirety
is what the transferor sells and one undivided sixteenth share in the entirety is what the
transferee purchases.
No objection would be taken if the estate or interest panel reads fee simple in one of the
transferor’s four undivided sixteenth shares.
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Where there is more than one transferee (with equal share, the tenancy between them may be
shown in the transferee panel by the words:
“joint tenants, as tenants in common in equal shares.”
Where the tenants in common hold unequal shares, eg: two thirds, one third, (the tenancy
between them may be shown in the transferee panel by the words:
“A of etc of two undivided forty-eighth shares and C of etc of one undivided fortyeighth share, as tenants in common.”
(3/48 being equal to 1/16 share).
The title, on the registration of the transfer will show all the current owners, and their share
entitlement.
2.1.19
Transfer by a Tenant in Common of the Whole of His or Her Interest
to the Other Co-Tenant or Co-Tenants
In transfers of this nature the appropriate panel of the form should read:
Estate or interest
fee simple in one undivided half share (or as the case
may be)
Consideration
X dollars.
The title, on the registration of the transfer will show all the current owners, and their share
entitlement.
2.1.20
Transfer by a Tenant In Common of Part of His or Her Interest to a
Co-Tenant
Transfers of this nature may be prepared in either of two ways:
1.
2.
The person disposing of part of his or her undivided share is joined by all the remaining
proprietors and together they dispose of the entire interest in the land to the transferees.
As an example, where a person is transferring one half of his or her third share to the
other tenants the appropriate panels of the form should read:
Estate or interest
fee simple
Transferor
A, B and C
Consideration
X dollars paid to A by B and C
Transferee
A of etc. of two undivided twelfth shares, B of etc. of five
twelfth shares and C of etc. of five undivided twelfth shares
as tenants in common.
The person disposing of part of his or her undivided share is the sole transferor.
Using the previous example the appropriate panels of the form should read:
Estate or interest
fee simple in two undivided twelfth shares
Transferor
A
Consideration
X dollars
Transferee
B of etc. and C of etc. as tenants in common.
In both cases above, after the transfer is registered, the Title will show all the current owners,
and their share entitlement.
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2.1.21
Transfer by One Joint Tenant to a Stranger
The estate or interest panel should read in fee simple in (name of transferor’s) interest as
joint tenant with (name of the other joint tenant or tenants).
Such a transfer severs the joint tenancy formerly existing and creates a tenancy in common in
respect of the interest transferred.
In the case where A, B and C are registered proprietors as joint tenants, and A transfers all his
or her estate and interest to D in the above manner the result will be that B and C will remain
joint tenants between themselves in two undivided third shares and D will be the registered
proprietor of the remaining undivided third share. Between B and C, as to their interest, and D,
as to his or her interest, a tenancy in common is created.
On registration of the transfer, the title will show all the current owners, their share entitlement,
and tenancies.
Where it is intended that the transferee and the remaining joint tenants shall hold as joint
tenants, then all the registered joint tenants must join in the transfer. For example if A, B and C
are joint tenants and C wishes to transfer to D so that A, B and D will be joint tenants the
appropriate panels of the transfer should read:
2.1.22
Estate
fee simple
Transferor
A, B and C
Consideration
X dollars paid to C by D
Transferee
A of etc., B of etc., D of etc. as joint tenants.
Transfers Between Joint Tenants
Where A, B and C are joint tenants and C sells his or her interest to B, the sale may be effected
by a transfer from C to B.
The appropriate panels of the transfer should read:
Estate or interest
fee simple in the interest of C as joint tenant with A and B
Transferor
C
Consideration
X dollars
Transferee
B of etc.
On registration of the transfer, the title will show all the current owners, their share entitlement
and tenancies.
Note that where A, B and C are joint tenants and B and C wish to sever the joint tenancy but A
does not, B and C may achieve their purpose by each transferring their estate or interest to the
other.
Registration of the two transfers will result in A, B and C holding the land as tenants in common
in equal shares (Wright v Gibbons (1949) 78 C.L.R. 313).
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2.1.23
Transfer to Effect a Partition of Land
Where two or more proprietors hold land and desire to partition their land so that each holds a
separate lot, location or subdivided part in severalty as their share of the land, the desired effect
is obtained by mutual transfers lodged together. In the case of two proprietors owning
Wellington Location 1 and 2 the appropriate panels of the first transfer should read:
Land
Wellington Location 1 being part of the land in Certificate of
Title Volume 1600 Folio 400
Estate
fee simple
Transferor
A and B
Consideration
in pursuance of an agreement for partition of the land in the
above certificate of title whereby A takes Location 1 and B
takes Location 2 (no money passing) (X dollars paid) by
way of equality of exchange;
Transferee
A of etc.
The second transfer should be identical with the exception that the land description is changed
to suit the case (i.e.: Location 2) and the transferee is shown as the second person (i.e.: B in the
example above).
2.1.24
Transfer to Effect a Change of Tenancy
Where persons registered as tenants in common wish to hold as joint tenants the change is
effected by transfer.
The appropriate panels of the transfer should read:
Estate
fee simple;
Transferor
A and B;
Consideration
the desire of the registered proprietors to hold the land as
joint tenants;
Transferee
A of etc. and B of etc. as joint tenants.
The reverse situation, joint tenants to tenants in common, is achieved in the same manner.
2.1.25
Transfer by Direction
Where there has been a series of sales of one piece of land and it is desired to transfer the land
to the ultimate purchaser the appropriate panels of the form should read:
Estate
fee simple;
Transferor
A (i.e.: the registered proprietor) by direction of B
Consideration
(1) X dollars paid by B to A
and
(2) Y dollars on a resale paid by the transferee to B
Transferee
C of etc.
Although the execution of a transfer by a directing party may be desirable from the point of view
of the transferee, the Registrar is not concerned to obtain the signature of the directing party.
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2.1.26
Transfer Reciting an Assignment
Where an interest in an agreement to purchase land has been assigned prior to the purchase
being completed, the subsequent transfer is not a direction transfer.
Transfers of this nature may be prepared in various ways. Two examples follow:
Estate
fee simple
Transferor
A
Consideration
first, the terms of an agreement dated (date) between the
transferor as vendor and B of etc as purchaser and
secondly an assignment dated (date) whereby the said B
assigned the purchasers interest to the transferee
Transferee
C of etc.
Estate
fee simple
Transferor
A
Consideration
(1) X dollars agreed to be paid to the transferor by B of etc
and
(2) Y dollars paid to B by the transferee on assignment of
B’s purchasers interest;
Transferee
C of etc.
The Registrar is not concerned to obtain the signature of the assignor.
2.1.27
Creation of Life Estates and Estates in Remainder
Estates for life and estates in remainder must be created by transfer.
Where the proprietor of any land desires to either create in himself or herself or, another, a
life estate and an estate in fee simple in remainder in another or himself or herself the
preferred method is that the required effect be accomplished in the one document.
A transfer transferring an estate for life, or remarriage, to a person with an estate in remainder
expectant upon the death or remarriage of that person to another, is registrable.
The appropriate panels of such transfers would show:
Estate
fee simple
Transferor
A
Consideration
as the case requires
Transferee
A of etc. an estate for life and B of etc. an estate in fee
simple in remainder expectant upon the death of A; or
Transferee
B of etc. an estate for life and A of etc. an estate in fee
simple in remainder expectant upon the death of B.
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Such estates may also be created at the request of purchasers, one of whom is to be the life
tenant and the other is to be the remainderman.
The appropriate panels of such a transfer would show:
Estate
fee simple
Transferor
A
Consideration
as the case requires
Transferee
(1) B of etc. an estate for life
and
(2) C of etc. an estate in fee simple in remainder expectant
upon the death of B.
It is possible to transfer an estate for life or an estate in fee simple in remainder.
The appropriate panels of such transfers would read:
Estate
an estate for the life of B; or fee simple in remainder
expectant upon the death of A
Transferor
A
Consideration
as the case requires
Transferee
B of etc.
On registration of the transfer the title will show all the proprietors, and their various estates and
tenancies.
Successive life estates may also be created, for example: a life estate to A and on A’s death, a
life estate to B with an estate in fee simple in remainder expectant upon the death of the
Survivor of A and B to C.
The registered proprietor may also transfer a life estate to one person to be held during the life
of a second person (estate pur autre vie).
The appropriate panel of such a transfer would read:
Estate
an estate for the life of C
Transferor
A
Consideration
as the case requires
Transferee
B of etc.
Where possible, it is office practice to retain the life estate and estate in remainder in one title,
but if requested, a separate paper title for each interest will be created and registered.
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2.1.28
Transfer by Life Tenants
The life tenant may transfer his or her interest to another person. However, as the interest being
transferred is limited to the life of the life tenant, the interest of the purchaser or transferee is
again an estate pur autre vie. On the death of the first life tenant the interest of the registered
proprietor of the life estate ceases. In a transfer of this nature the appropriate panels should
read:
2.1.29
Estate
an estate for life of A
Transferor
A
Consideration
as the case requires
Transferee
C of etc.
Transfer by Remainderman
The interest of a remainderman may be transferred without disturbing the interest of the life
tenant. In a transfer of this nature the appropriate panels should read:
2.1.30
Estate
an estate in fee simple in remainder expectant upon the
death of C
Transferor
A
Consideration
as the case requires
Transferee
B of etc.
Transfer to a Personal Representative (Executor or Administrator)
This document is subject to the Verification of Identity Practice issued jointly
by the Western Australian Registrar of Titles and Commissioner of Titles.
Please refer to Chapter 14.
Where land is transferred to the personal representative of a deceased person, eg: on
completion of a contract entered into by the deceased during his or her lifetime, no mention
should be made in the transferee panel of the transferee’s capacity as personal representative.
Such a transfer should be prepared, using a transfer Form T2 Transfer of Land (Double Sheet),
with the consideration panel showing see page 2
Under a heading consideration on page 2, the following should be recited (for the case given):
•
the details of the contract;
•
the death of the purchaser; and
•
the Grant of Probate or Letters of Administration to the personal representative.
To support the above recital an office copy or original Grant of Probate or Letters of
Administration should be produced.
The resultant endorsement on the title would show the transferee as the absolute owner. The
Commissioner, when it is considered necessary, will instruct the lodgement of a caveat to
protect the interest of the persons entitled under the will or estate of the deceased.
The purpose of the caveat is to give notice that the executor holds the land in trust, and on the
presentation of a transfer, either to carry out the terms of the Will, or in exercise of the powers
granted to the executor by statute, the caveat will be withdrawn, by the internal procedures of
Landgate.
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2.1.31
Transfers by Executors and Administrators With the Will Annexed
The personal representative, having entered transmission (see paragraph 3.3.1), is the
registered proprietor of the land forming part of the deceased person’s estate. There are some
cases where the personal representative is given a Grant of Probate subject to some limitations.
This limitation is embodied in the memorandum shown on a title when transmission is entered.
Where an executor, subject to such a limitation, proposes to transfer or deal with the land,
evidence is required that the limitation has not affected the right to dispose of the land.
The most common of these limitations is a Grant of Probate to one or more persons reserving to
another person or persons the right to come in and prove the will.
A search of the Probate Office must be made in such a case and a statutory declaration made
to the effect that the person to whom leave was reserved to come in and prove has not done so.
The search and declaration should be made on the day of registration of the dealing (see
LTRPM Form Examples- Example 11).
A personal representative normally has a power of sale, but may not transfer land free of
charge. Where the will restricts the normal power of the personal representative it is office
practice to lodge a Registrar’s Caveat at the time transmission is entered.
The consents of beneficiaries, if of age, will be required before the Registrar’s Caveat will be
withdrawn. If the beneficiaries are minors, evidence of the consent of the Courts to the
transaction may be required before the caveat is lifted.
A personal representative may not, as a general rule sell land to himself or herself (see
paragraph 2.2.4).
Where the consideration in a transfer is the terms of the will of the said deceased the will
must be produced with the transfer.
The appropriate panels of a transfer by a personal representative, who is shown on a certificate
of title as such, should read:
Transferor
A as executor of the will of B deceased
or
A as administrator with the will annexed of B deceased
Consideration
terms of the will of the said deceased; or if a sale, X dollars.
2.1.32
Transfer by Attorney Under EPA or by Administrator Under Board
Order to Self or Family Member
2.1.32.1
Transfer of a Donors Property to a Single Enduring Attorney
A transfer of the Donor’s property by an Attorney appointed under an Enduring Power of
Attorney to him/herself or to a member of the Attorney’s family is prohibited because it is in
breach of the fiduciary duties of the Attorney.
However, the transfer may be registrable if the Attorney provides a statutory declaration
advising all of the following:
•
The reason for the transfer, e.g. request or wishes of Donor
•
Demonstrates that the transfer is in the best interests of the Donor
•
Evidence of payment of the consideration to the account of the Donor
•
There is evidence that the Attorney or the family member has paid full market value for
the property
•
Annexes a sworn valuation of the property made by an independent valuer.
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If the transfer from the Attorney to himself has been made under either an Order of the Board or
of a Court then this may be registered subject to a copy of the extracted order being lodged with
the transfer.
2.1.32.2
Transfer of the Donors property to one of two Enduring Attorney’s
Where two or more Attorneys have been appointed by a Donor, a transfer of the Donor’s
property to one Attorney appointed under an Enduring Power of Attorney may be registrable if
both Attorneys agree and provided that the Attorneys provide a statutory declaration advising all
of the following:
2.1.32.3
•
The reason for the transfer, e.g. request or wishes of Donor
•
Demonstrates that the transfer is in the best interests of the Donor
•
Evidence of payment of the consideration to the account of the Donor
•
There is evidence that the Attorney has paid full market value for the property
•
Annexes a sworn valuation of the property made by an independent valuer.
Gift of Donors Property
Where the Attorney seeks to transfer the Donor’s property to himself or herself or to a member
of the Attorney’s family via a gift then, this is not register able as it is a breach of the fiduciary
duties of the Attorney. However, if the Attorney can provide an order made by the Board or
other court order giving effect to the gift then the transfer may be registered.
2.1.32.4
Transfer of Donors Property to Appointed Administrator
A transfer of the Donor’s property to the Administrator appointed by the Guardianship and
Administration Board to him/herself or to a member of the Administrator’s family is prohibited
because it is a breach of the fiduciary duties of the Administrator. However, the transfer may be
registered if the Administrator provides either:
•
an Order from the Board authorising that particular transfer
or
•
the powers conferred by the order authorise a transfer and the Administrator provides a
statutory declaration advising all of the following:
•
The reason for the transfer, e.g. request or wishes of Donor
•
Demonstrates that the transfer is in the best interests of the Donor
•
Evidence of payment of the consideration to the account of the Donor
•
There is evidence that the Administrator or the family member has paid full market
value for the property
•
Annexes a sworn valuation of the property made by an independent valuer.
•
That the incapacity still existed, the incapable person was still alive and the
appointment had not been revoked, at the time of signing the instrument.(refer to
paragraph 1.12.3).
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2.2
Transfers by an Administrator
This document is subject to the Verification of Identity Practice issued jointly
by the Western Australian Registrar of Titles and Commissioner of Titles.
Please refer to Chapter 14.
2.2.1
General
Where a registered proprietor dies intestate and Letters of Administration are granted to an
administrator, the administrator, after entering transmission (see paragraph 3.3.1), is the
registered proprietor of the land of the intestate deceased.
2.2.2
Transfer by Way of Sale
Where an administrator disposes of land by way of sale no requisition of the right to sell will be
made (see paragraph 3.3.1).
2.2.3
Transfer by Way of Distribution or Appropriation
In all cases of transfer by way of distribution or appropriation, the administrator will be required
to lodge with the transfer a statutory declaration stating the persons who are entitled in
distribution under the Administration Act 1903, and their relationship to the deceased.
Where an administrator disposes of land by way of distribution to persons entitled under the
above Act those persons are determined arbitrarily by that statute.
The above Act has been successively amended from time to time with the amount to which a
widow or widower is entitled becoming progressively larger. The date of death of the intestate
deceased is the determining factor in establishing what amounts of money the persons entitled
in distribution are to receive. A table of entitlements as they were varied over the years is set
out in the 4th Schedule of the Act, published as a reprinted Act in 1980.
Further amendments were made to that schedule by Act 48 of 1982 (Operative where death
occurred after 24th October, 1984). Act 72 of 1984 (Operative 26th November, 1984) set out
provisions for the disposition of the estates of insolvent persons.
Where an administrator is appropriating certain lands as part of the entitlement of a particular
person the provision of the Trustees Act 1962 s.30(l)(k) and 30(3) must be complied with. In
addition to the declaration previously referred to, the administrator is required to supply, as an
annexure to a declaration, a copy of the notice of intention to appropriate.
The notice must be sent to each of the other persons of full age entitled in distribution or to the
parent or guardian of any infant. Where the administrator is also the guardian of infants who are
entitled in distribution, and where the appropriation would involve the sending of a notice to
himself or herself in his or her capacity as guardian or in any other capacity, a Court Order
permitting the appropriation must be obtained and lodged with the transfer.
As an alternative a transfer, together with the consent of all the persons set out in the
declaration, if of age, will be sufficient to permit registration.
The above Act also sets out the right of widows or widowers to elect to have the matrimonial
home appropriated as part of their share.
Where an administrator is appropriating the matrimonial home to a widow or widower, the
declaration previously referred to should also incorporate, as an annexure, a copy of the
election by the widow or widower requiring the appropriation of the matrimonial home.
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The notice of election must be made within the time allowed and in the manner provided in the
4th Schedule to the Administration Act 1903.
Where the persons entitled in distribution (being all of age) and the administrator have entered
into a Deed of Family Arrangement, in which they have agreed to vary the statutory provisions
for distribution, a stamped copy of the Deed of Family Arrangement must be lodged with the
transfer. No declaration is required in this case if the Deed itself gives full particulars of each
beneficiary, and negates the existence of other beneficiaries.

Note:
Deed of family arrangements are retained by Landgate and filed inside the relevant transfer.
The appropriate panels of a transfer by an administrator who is shown on a certificate of title as
such should read:
Where the administrator is distributing:
Transferor as administrator of the estate of B deceased
Consideration
the terms of the Administration Act 1903
Where the administrator is appropriating:
Transferor
as before
Consideration
to appropriate the above described land as part of the
transferee’s entitlement in the estate of the said deceased
Where there is a Deed of Family Arrangement:
2.2.4
Transferor
as before
Consideration
the terms of the Administration Act 1903 and a Deed of
Family Arrangement dated (date).
Transfer by Personal Representatives to Themselves or One of
Them
A transfer by personal representatives to themselves, or to one of themselves, will not be
registered without justification, because it is prima facie a breach of trust and voidable at the
instance of a beneficiary. The Registrar‘s power to refuse such a transfer is illustrated by
Templeton v Leviathan Proprietary Ltd. (1921) 30 C.L.R. 34.
A personal representative may transfer to himself or herself where:
•
the will contains an express provision to that effect
•
the transfer is to give effect to a contract of sale made during the lifetime of the deceased
•
all the beneficiaries being of age, consent to the sale
or
•
a Court Order is obtained permitting the transfer.
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2.2.5
Transfer by Mortgagee Exercising Power of Sale
Transfer Form T4 Transfer of Land by Mortgage (Power of Sale) (see LTRPM Model Form
Examples- Example 24) is a special form printed for this purpose. The mortgagee may exercise
the power to sell, where the mortgagor defaults in payment or the observance of the covenants
of the mortgage. The sale may be the whole or part of the land, by public auction or private
treaty, with power in the mortgagee to subdivide and/or create easements. A mortgagee’s
power to sell arises as a consequence of an expressed or implied right to do so by virtue of:
•
s.57(1)(a) of the Property Law Act 1969, where the mortgage, which must be a deed, has
not been registered under the TLA (ie: may have been registered in the Deeds Office); or
•
s.108 of the TLA, where the mortgagor has defaulted in payment of the principal sum
and/or interest or has defaulted in the performance or observance of any covenant,
express or implied, in a mortgage that has been registered under the TLA.
A condition precedent to a valid exercise by a mortgagee of the power to sell is the service of a
notice on the mortgagor. This notice must clearly specify the default complained of and provide
the mortgagor with an opportunity to remedy the default within the specified time of one month
as required by s.108 of the TLA, or such other period as may be provided for in the mortgage.
The TLA also provides for a second form of notice to be served on the mortgagor in relation to
on demand mortgages. There are two distinctly specific types of on demand mortgages:
•
where the mortgage requires monies to be payable within a specific period. Failure to pay
the monies within that period converts the mortgage into a demand mortgage where
monies then become payable on demand; and
•
where the mortgage is a demand mortgage in the first instance and monies are payable
on demand. In such a case, the mortgage usually requires that if the mortgagor pays
within a specific period, the mortgagee will refrain from issuing a demand notice calling
up the principal sum and any interest outstanding. Alternatively a demand mortgage may
contain provisions requiring no repayment of either principal or interest until demand is
made.
In both cases s.107 of the TLA provides that a demand in writing pursuant to the mortgage
requiring all monies to be paid immediately, is equivalent to a notice in writing. The legal
position is as follows:
Where:
a notice of default (issued pursuant to s.106 of the TLA for a fixed term mortgage
which provides for a specific period before default has occurred), or a written
demand (issued pursuant to a s.107 demand mortgage which requires that the
principal and interest owing by the mortgagor are payable immediately)
and
the mortgagor has failed to pay the sum demanded or rectified the default
specified;
either
after the end of the period specified under s.106 (being one month or such other
period specified in the mortgage)
or
after the demand has been made under s.107
then:
the mortgagee is entitled to exercise the power to sell under s.108 of the TLA.
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It must also be noted that, although many demand mortgages call for payment immediately or
forthwith, in practice a period of at least one day must be allowed before a mortgagee exercises
its power of sale.
This period of at least one day need not be specified in the notice. However to enable the
Registrar of Titles to be satisfied that s.106 and 107 of the TLA have been complied with, the
Registrar requires that a minimum period of at least one day elapses before a mortgagee
exercises its power of sale pursuant to the demand notice.
The required notice may be served:

•
by personal delivery on the mortgagor(s);
•
by registered post sent to the address of the mortgagor(s) in the Register. It is Office
practice to accept a later address if it is included in the mortgage (as part of the Register).
Where there is more than one mortgagor separate notices to each must be sent. (Irving v
Commissioner of Titles 1963 W.A.L.R. 67). Where the mortgagor is a corporation in
liquidation, service of the default notice may be made on the Liquidator at the registered
office of the Liquidator;
•
by registered post sent to the current address of the mortgagor(s);
•
by sending it to a facsimile number specified to the mortgagee by the mortgagor(s) in
writing as being an address for the service of notices issued under this section; or
•
by leaving the notice on some conspicuous part of the mortgaged premises.
Note:
If the mortgagor is a defunct company registered under the Corporations Act 2001, the default
notice must be sent to the Australian Securities and Investment Commission (ASIC). Section
601AD of the above-mentioned Act states that a company ceases to exist on de-registration
and all of the companies property assets vest in ASIC.
When the mortgagee’s transfer is lodged, it must be supported by a statutory declaration
providing proof to the Registrar that the sale has occurred in strict compliance both with the
terms of the mortgage, and the provisions of the TLA.
The statutory declaration is best made by the registered mortgagee, but may be made by the
mortgagee’s solicitor or agent who must then declare his or her means of knowledge for the
statements made in the declaration to the satisfaction of the Registrar.
If the mortgage is granted to a number of mortgagees, the statutory declaration must be made
by each of the mortgagees. If the mortgage is made to a bank or a corporate body, the statutory
declaration must be made by a responsible officer for and on behalf of that bank or corporate
body, who must declare that proper authority exists to make the statutory declaration on behalf
of the bank or corporate body and that the declarant has a proper means of knowledge.
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The statutory declaration must state:
•
The identity, authority and means of knowledge of the declarant.
•
That a default (clearly specified in the notice or demand in writing) under the terms of
mortgage has occurred, i.e.:
•
default in the payment of principal or interest (or both) and the date of default;
and/or
•
failure to perform or observe the mortgagor’s covenants in the mortgage setting out
the default complained of and the date of default.
•
That, in accordance with the terms of the mortgage, notice to remedy the default or
demand to repay the monies secured was made on (date) and the default complained of
has continued for one month or such other period specified in accordance s.106 of the
TLA after the service of a notice of the default.
•
That the notice stated that unless the default was remedied within the time referred to
above, that the mortgagee may exercise the mortgagee’s power of sale.
•
That the default complained of continued up to and including the date of sale. (the date of
sale is defined as the date on which an unconditional and binding contract for sale came
into effect).
•
That the default notice or demand in writing had been properly served in accordance with
s.106 of the TLA by ................... (insert the specific mode of service used, as authorised
under s.106).
•
That the mortgage is not affected by the National Consumer Credit Protection Act 2009 or
the Consumer Credit Code.
It should be clear from the statutory declaration that the notice to the mortgagor clearly sets out
the nature of the obligation imposed by the mortgage and the consequences of not complying
with these obligations.
If the statutory declaration does not clearly include the above, evidence supporting that statutory
declaration will be requested. This evidence may include copies of the demand in writing or
default notice and evidence of service in accordance with s.106 of the TLA.
It is not necessary to produce any other proof as to the manner in which the statutory notice is
given but care should be taken to ensure that proper procedures are carried out and the
evidence preserved. Where an application is made for an Order for Foreclosure, strict proof of
service of notice is a necessary part of the application.
The effect of registration of a transfer by way of a mortgagee’s sale is to remove any
encumbrance notified on the certificate of title to the land sold which was lodged after the
mortgage under which the power of sale was exercised.
The following are exceptions to the above general rule:
•
absolute Caveats (subject to claim caveats may be shown as an encumbrance);
•
memorials lodged pursuant to certain statutory provisions prohibiting dealing with the
estate and interest of the registered proprietor. See Chapter 11 for a detailed list of
Statutes;
•
leases and easements to which the mortgagee has given an unqualified consent (s.110);
and
•
notice of intention to take under the LAA.
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Caveats must be withdrawn, or removed pursuant to Sections 138, 138B or 141A of the TLA.
Memorials must be withdrawn or the consent in writing of the body lodging the memorial
obtained as an endorsement on the document itself. Where a consent is obtained, the memorial
must be noted as an encumbrance. The leases and easement referred to above must be noted
as encumbrances in common with encumbrances lodged prior to the mortgage under which the
power of sale was exercised.
The consent of the taking authority or its delegate is required in cases where the land is
encumbered by a Notice of Intention to Take. Where the mortgagee sells parts of the
mortgaged land and registers transfers at different times, a statutory declaration containing
statements similar to those set out above must be produced with each transfer.
Where mortgagees sell land on the authority of a double interest mortgage (see paragraph
2.6.10), separate transfers for each interest will be required. The mortgagee must not include
any further consideration in the transfer, eg: by direction to another person or by love and
affection etc. The power of the mortgagee to transfer is limited to the estate or interest of the
mortgagor and does not extend to any further transaction. A further sale must be by separate
transfer.
Where the defaulting mortgagor is one of two or more joint tenants, the exercise of the power of
sale of the mortgagee would sever the joint tenancy and result in the issue of a separate title for
the transferee for the share of the former proprietor converted to a tenancy in common with the
remaining tenant(s).
The mortgagee may not be the purchaser in pursuance of a power of sale. The right to buy in
at auction afforded by the TLA is only designed to protect the mortgagee at auction sales
where the sale price might be too low to cover the mortgage debt. Should the mortgagee be
unable to sell the land by public auction and default continues for six months, the mortgagee is
entitled to apply to the Commissioner for an Order for Foreclosure. It is recommended that a
mortgagee’s sale be by public auction and if that sale is unsuccessful the auctioneer’s certificate
should be obtained at that time.

Note:
Where a mortgage has been registered under the TLA, the use of the power of attorney
provisions in the mortgage by the mortgagee to appoint an attorney (when default has occurred)
to sell the land is discouraged. The Registrar of Titles will only register a transfer by a
mortgagee exercising a power of sale in strict accordance with the processes of the TLA.
If the mortgagees power of sale is in relation to a mortgage under the National Credit Code, see
paragraph 2.2.6 below.
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2.2.6
Transfer by Mortgagee Exercising Power of Sale for Mortgages
under the National Credit Code
Section 3 of the National Consumer Credit Protection Act 2009 (the Act) enacts the Consumer
Credit (Western Australia) Code (the Code). Mortgages lodged under the Code are dealt with in
paragraph 2.6.2.
2.2.6.1
Default notices under the Code
The effect of the Code is that, if a mortgagee wishes to exercise power of sale under the
mortgage and the Code then, except in limited circumstances outlined below, the mortgagee
must send to the mortgagor a default notice in the terms required by the Act and the Code. That
default notice must have a period of not less than 30 days.
Sections 88 and 93 of the Code set out what is required to be included in the default notice.
2.2.6.2
Default notices under the TLA
The effect of the Code is that it does not exclude the requirement to send a default notice under
s.106 of the TLA to the mortgagor. However, it is possible to combine both notices into the one
default notice.
2.2.6.3
Methods of service of notice
The service of notice provisions under the Code differ from the service of notice provisions
under the TLA. Although there are some differences, there are also overlapping service
requirements. Legal advice should be sought as to the appropriate methods of service of
notices, under the Code and the TLA, in respect of any overlapping methods of service.
It is suggested that a combined notice forwarded to a defaulting mortgagor may be served,
under both the Code and the TLA, by the following methods:
•
delivered personally to the mortgagor;
•
sent by Registered Mail to:
(i)
the address of the mortgagor as shown on the Register but only if this address is
nominated in writing by the mortgagor to the mortgagee as the address for service;
or
(ii)
if there is no such nomination, the address of the place of residence of the
mortgagor last known to the mortgagee;
or
•
2.2.6.4
facsimile transmission to the mortgagor, if the mortgagor nominates in writing to the
mortgagee such a fax number as a nominated address for service.
Notices to joint mortgagors
Where there is more than one mortgagor under a mortgage, then the default notice must be
sent to each mortgagor.
2.2.6.5
Power of sale transfer
After the notices under both the TLA and Code have expired and the default has not been
remedied, the power of sale arises under s.88(2) of the Code and s.108 of the TLA.
When the mortgagee has exercised power of sale, a Transfer document (Form T4 Transfer of
Land by Mortgage [Power of Sale]) is required to be lodged at Landgate. This transfer
document is the same as that used for mortgages that are not under the Code.
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2.2.6.6
Statutory Declaration
In addition to the power of sale transfer, a supporting statutory declaration must also be lodged
at Landgate. The statutory declaration must be made either by the lender, the lender’s
employee’s or the lender’s solicitors if they are personally acquainted with the facts.
The matters deposed to in the statutory declaration are similar to but different from those
matters deposed to in a statutory declaration supporting a power of sale transfer under the TLA.
The following is a list of all the matters which must be deposed to in the statutory declaration:
•
The identity, authority and means of knowledge of the declarant.
•
The particulars of the mortgage such as the document number and the name of the
mortgagee,
•
That the mortgage is affected by the Act and/or Code;
•
That a default (clearly specified in the notice or demand in writing) under the terms of the
mortgage and the Code has occurred, ie:
•
default in the payment of principal or interest (or both) and the date of default;
and/or
•
failure to perform or observe the mortgagor’s covenants in the mortgage, setting
out the default complained of and the date of default.
•
That, in accordance with the terms of the mortgage, the Code and the Regulations to the
Code, notice to remedy or demand to repay the monies secured was made on .........
(date) and the default complained of has continued for 30 days after the service of a
notice of the default.
•
That the notice stated that unless the default was remedied within the time referred to
above, that the mortgagee may exercise the mortgagee’s power of sale.
•
That the default complained of continued up to and including the date of sale (the date of
sale is defined as the date on which an unconditional and binding contract for sale came
into effect).
•
That in the case of an accelerator clause in the Mortgage (see s.93 of the Code), the
notice has stated the manner in which the mortgagor’s liability is affected by the operation
of the accelerator clause and the amount required to discharge the accelerated
mortgage.
•
That the default notice or demand in writing had been properly served in accordance with
s.106 of the TLA and s.195 of the Code by . . . . . . . . . . (insert the specific mode of
service used as authorised under s.106 of the TLA and s.195 of the Code).
It is not necessary to produce any other proof as to the manner in which the statutory notice is
given but care should be taken to ensure that proper procedures are carried out and the
evidence preserved. Where an application is made for an Order for Foreclosure, strict proof of
service of notice is a necessary part of the application.
Whilst the Regulation to the Code establishes that the default notice issued under the Code
should be in a print of not less than 10 point, Landgate will not require a copy of the notice to
ensure that it complies with the requirements for print size. All that Landgate will require is that
the statutory declaration deposed to the fact that the notice complies with the Code.
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2.2.6.7
Default notice not required in limited circumstances
The Code also provides that there are some circumstances in which a default notice is not
required under the Code. These are where:

•
The credit provider believes, on reasonable grounds, that the mortgage was induced by
the fraud of the debtor or mortgagor.
•
The credit provider has made reasonable attempts to locate the mortgagor without
success.
•
The Court authorises the credit provider to begin the enforcement proceedings.
•
The credit provider believes, on reasonable grounds that:
•
the debtor or mortgagor has removed or disposed of the mortgaged goods under a
mortgage related to the credit contract;
•
the debtor or mortgagor intends to remove or dispose of the mortgaged goods
without the credit provider’s permission; or
•
urgent action is required to protect the mortgaged property.
Note:
The above would only apply to mortgages over land if that mortgage secures the advance to
purchase the goods.
The above situations, that entitle no notice to be issued under the Code, will be rare but they do
not remove the need to issue notices under the TLA. However, if they do arise, then Landgate
will require a statutory declaration to be lodged with the transfer document (Form T4 Transfer of
Land by Mortgage [Power of Sale]).
2.2.6.8
Additional matters to be deposed to in statutory declaration where default notice
not required under the code
The declaration is to be made by the lender or an employee of the lender who is personally
authorised to swear the declaration on behalf of the lender or the solicitor of the lender if the
solicitor is personally acquainted with the facts. In all of the above cases in which the default
notice is not required, Landgate requires the declarant to depose to the following, in addition to
the matters required for notices issued under the TLA:
1.
2.
In the case of fraud:
•
all the circumstances surrounding the fraud; and
•
a report from the police indicating that the mortgagor has been fraudulent or a
submission based on case law that supports the position that the mortgagor has
been fraudulent within the meaning of the Code.
In the case of an inability to locate the mortgagor:
•
all the attempts that have been made to locate the mortgagor which would, as a
minimum, include attendance at the mortgagor’s last known address both during
and after business hours
•
letters sent by registered mail and receipts showing non receipt
and
•
notes of telephone calls over a period of at least one month after the default of the
mortgagor.
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3.
4.
5.
6.
In the case of Court authorisation:
•
the terms of the order annexing a service copy of the order; and
•
a submission as to the effect of the order.
In the case of removal or disposal of the mortgaged goods under a land mortgage
which secures the money advanced under the credit contract:
•
the full circumstances surrounding the removal or disposal of the mortgaged
goods; and
•
permission of the credit provider not being obtained by the mortgagor; and
•
a statement that the mortgage secures advances made under the credit contract in
respect of the goods sought to be removed or disposed.
In the case of the mortgagor’s intention to remove or dispose of the mortgaged
goods, without the credit provider’s permission:
•
the full circumstances of the mortgagee credit provider’s belief that the mortgagor
intends to remove mortgaged goods;
•
permission of the mortgagee credit provider has not and would not be given to
such action; and
•
a statement that the mortgage secures advances made under the credit contract in
respect of the goods intended to be removed or disposed.
In the case where urgent action is required to protect the mortgaged property:
•
then the declarant should depose to the full circumstances surrounding the need
for urgent action to be taken; and
•
it must be a substantially urgent need.
The contents of this paragraph should be read in conjunction with paragraph 2.2.5.
2.2.7
Transfer by a Debenture Holder
Not all security documents are registered at Landgate. Floating charges and Debentures are
registered with the Australian Securities & Investments Commission, and may be used, (where
default occurs) to sell the land of the borrower (mortgagor) to repay the debt. Part VI
(Mortgages) of the Property Law Act 1969 contains a series of provisions setting out the various
rights of the parties, and, as in the TLA, the right to sell is dependent upon notice to the
mortgagor to remedy the default.
A subsequent sale of the land would be conducted by a Receiver appointed under the terms of
the charge or debenture, and, in accordance with the Property Law Act 1969 the appointment of
a receiver is conditional upon the mortgagee becoming entitled to exercise the power of sale.
Where the transfer exercising the power of sale is executed by a receiver (see paragraph
1.10.12), Landgate requires only proof of the receiver’s appointment, and subsequent
registration of that appointment with the Australian Securities & Investments Commission.
On occasions the mortgagee prefers to use the power of attorney provisions of a charge or
debenture to effect a sale. To ensure that the mortgagee has the right to sell the land, at the
time of the registration of a copy of the charge or debenture as a Power of Attorney, proof of the
service of notice to remedy default must be lodged.
This requirement of Landgate may not be avoided even if the terms of the charge or debenture
do not require default to occur for the Power of Attorney claim to become operative. The
Registrar of Titles is concerned that before any proprietor is deprived of land by a forced
(mortgagee’s) sale that an opportunity to remedy the default has been given.
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2.2.8
Transfer by Annuitant (Chargee)
The same principles apply as for a transfer by a mortgagee. The manner in which the proceeds
of sale are dealt with differ (s.109 of the TLA).
After payment of the expenses of the sale and the arrears of the annuity to the annuitant, the
residue is deposited in a bank in the joint names of the annuitant and the Registrar. As
payments under the charge accrue they are met. On the death of the annuitant or other
termination for the annuity the balance of the money, if any, is held for the benefit of the parties
who may then be entitled.
2.2.9
Transfers by Sale for Rates (Local Government Act 1995)
There is a specific Transfer (Form T5 Transfer of Land [Sales for Rates]) printed for this
purpose.
The rates for land levied under the Local Government Act 1995 (the Act) are a charge against
the land upon which they are levied (s.6.43 of the Act) (see also paragraph 11.4.18). Where
rates have been unpaid for three years or more the Council of the Local Government is
empowered by Part 6 Division 6 Subdivision 6 of the Act:
•
to sell the land
•
transfer the land to the Local Government or the Crown in right of the State of Western
Australia (s.6.71)
or
•
have the land revested in the Crown in right of the State of Western Australia (s.6.74).
The notice of intention to sell is, after publication, registered in the Office as a Memorial of
Advertisement and is endorsed on each certificate of title affected thereby. The memorial
remains in force for twelve months from the date of registration and acts as an absolute caveat
until it is withdrawn or expires.
A transfer (Form T5 Transfer of Land [Sales for Rates]), executed by a Local Government, using
its common seal, effectively disposes of the interest of the registered proprietor in favour of the
transferee for an indefeasible estate in fee simple but subject to the statutory exceptions as set
out in Sections 6.75. (1) (c) (d) and (e) and Schedule 6.3 clause 4. (1) (b) of the Act. The
transfer may only be registered in the period that a memorial of advertisement is in force on the
title.
In the circumstances where there is a duplicate certificate of title, it is not required to be
produced but the Registrar has power to make orders or require advertisement. Where a paper
title is in existence, a new title is created and registered in the name of the transferee free from
encumbrances except those referred to in s.6.75 of the Act. In the case of a digital title, a new
version of the digital title is created and registered.
Included in the encumbrances referred to in s.6.75 of the Act are Memorials lodged by State or
Commonwealth Instrumentalities, and these (depending on their nature) may be shown as
encumbrances, or withdrawn to permit the registration of the transfer, then re-lodged.
Other encumbrances such as mortgages are removed by the act of registration of the transfer,
and no longer affect the land.
Where the land is offered for sale, but at the expiration of 12 months it remains unsold, s.6.71 of
the Act states that the local Government can transfer the land to itself or to the State of Western
Australia.
The transfer (Form T5) must be supported by a statutory declaration made by the Shire or Town
Clerk, proving compliance with the provisions of Part 6 Division 6, Subdivision 6 of the Act. The
transfer attracts no fee or duty. This section of the Act allows land that is encumbered to be
transferred to the State of Western Australia free of any encumbrances.
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Where rates and charges have been outstanding for a period of 3 years, s.6.74 of the Act allows
the Local Government to have the land revested in the State of Western Australia. There is no
requirement under this section for a local government to have attempted to sell the land.
Revestment is achieved by the lodgement of a transfer on Form T9 Transfer of Land
(Revestment for Non Payment of Rates).
The transfer attracts no fee or duty. Land that is encumbered cannot be revested in the State of
Western Australia.
2.2.10
Transfer Pursuant to a Property (Seizure and Sale) Order
Under the TLA the land or interest in land of a registered proprietor may be seized and sold to
satisfy a judgment made in the Magistrates, District or Supreme court. The appropriate means is
to lodge a Property (Seizure and Sale) Order (see paragraph 4.6.1).
Before a transfer executed by the Sheriff or Deputy Sheriff can be registered, the Property
(Seizure and Sale) Order must be lodged at Landgate and the sale period must still be current.
A transfer must be on a:
Form T7 Transfer of Land under Writ or Warrant
or
T8 Transfer of Mortgage, Charge or Freehold Lease under Writ or Warrant
and is effective as if made by the registered proprietor. The registration of such a transfer may
be prevented or delayed by the presence on the Register of caveats and memorials prohibiting
dealings. The effect of these documents is discussed separately below.
2.2.10.1
Effect on caveats
•
when lodged prior to the Property (Seizure and Sale) Order:
an absolute caveat must be withdrawn. Subject to claim caveats may be withdrawn or
they may be noted as encumbrances on the transfer;
•
when lodged subsequent to the Property (Seizure and Sale) Order and without the
consent of the Sheriff:
a caveat lodged specifically to prevent the sale will delay registration until withdrawn,
removed or lapsed. All other caveats are automatically removed.
•
when lodged subsequent to the Property (Seizure and Sale) Order and with the consent
of the Sheriff:
an absolute caveat must be withdrawn. Subject to claim caveats may be withdrawn or
they may be noted as encumbrances on the transfer.
2.2.10.2
Effect on Memorials
Memorials can be lodged pursuant to certain statutory provisions prohibiting dealings with the
estate and interest of the registered proprietor. See Chapter 11 for a detailed list of Statutes.
The prohibition against dealing imposed by such memorials is effective irrespective of whether
the memorial was lodged before or after the Property (Seizure and Sale) Order under which the
power of sale is being exercised. Memorials must be withdrawn or the consent of the lodging
authority obtained in writing on the transfer. Where a consent is obtained, the memorial must be
shown in the Limitations, Interests, Encumbrances and Notifications panel of the transfer.
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2.2.10.3
Effect on notifications
Notifications can be lodged against land pursuant to certain statutory provisions. See Chapter
11 for a detailed list of Statutes. The notification has effect irrespective of whether it was lodged
before or after the Property (Seizure and Sale) Order under which the power of sale is being
exercised. The notification must be shown in the Limitations, Interests, Encumbrances and
Notifications panel of the transfer.
2.2.10.4
Duplicate Title
The duplicate certificate of title (if any) should be produced for a transfer pursuant to a Property
(Seizure and Sale) Order. If this is not done, the Registrar may order its production from the
person holding it or require an advertisement to be made in a newspaper published in the City
of Perth or circulating in the neighbourhood of the land, indicating the intention to register a
transfer notwithstanding the non-production of the duplicate certificate of title.
Where a paper title is in existence, a new title is created and registered for a sale under a
Property (seizure and Sale) Order. In the case of a digital title, a new version of the digital title is
created and registered.
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2.3
Transfer: Land of Deregistered Company
2.3.1
Companies Deregistered Prior to 1 January, 1991 (Representative
Provisions)
Where, after a company has been deregistered or dissolved, it is proved to the satisfaction of
the Australian Securities & Investments Commission that such company, if it still existed, would
be bound to give effect to some dealing and some purely administrative act is required to
complete that dealing, then the Commission, as representing the company or its liquidator, is
empowered by s.460 of the Companies (Western Australia) Code to complete the dealing.
Use of the provisions of the Code is made valid by s.85(1) of the Corporations (Western
Australia) Act 1989 which provided that matters arising before the Corporations Law 1989 would
continue under the earlier legislation. The situation remains the same whether the events
occurred before or after the introduction of Companies (Western Australia) Code which took
effect on 1 July 1981.
The Transferor panel of such a transfer should (with amendments to suit the particular
transaction) read either:
Australian Securities & Investments Commission acting pursuant to s.66 of the
Corporations (Western Australia) Act 1989 and s.460 of the Companies (Western
Australia) Code for and on behalf of D. Registered Co Pty Ltd, a company that was
deregistered on 12th May, 1980
or
Australian Securities & Investments Commission acting pursuant to s.66 of the
Corporations (Western Australia) Act 1989 and s.460 of the Companies (Western
Australia) Code for and on behalf of Ikan Addup, the liquidator of D. Solved Co Pty
Ltd, a company that was dissolved on 12th May, 1980.
The Consideration panel of such a transfer should read see page 2 and on the second page of
the Form T2 Transfer of Land with Additional Pages, under the heading Consideration should
appear:
•
on the (date) (Company Name) did by contract for sale sell to (Transferee) the above
land, for the sum of (consideration)
•
(Company Name) was dissolved/deregistered on the (date)
•
(Transferee) has paid the full purchase price to (Company Name)
and
•
the Australian Securities & Investments Commission is satisfied that the purchase price
has been paid in full, and that (Company Name), if still existing, would be bound at law or
in equity to execute a transfer of the above land to the Transferee.
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2.3.2
Companies Deregistered Prior to 1 January, 1991(Disposal
Provisions)
Where after a company has been dissolved prior to 1st January, 1991 and there remains some
asset of the company not dealt with by the liquidator such asset is vested in the Australian
Securities & Investments Commission.
The Commission is empowered to sell the land by virtue of Sections 461 and 462 of the
Companies (Western Australia) Code. Use of the provisions of the Code is made valid by
s.85(1) of the Corporations (Western Australia) Act 1989 which provided that matters arising
before the Corporations Law 1989 would continue under the previous legislation.
The situation remains the same whether the company was dissolved or deregistered before or
after the introduction of the Companies (Western Australia) Code which came into operation on
1 July 1981. The Commission is not required to apply to have the land vested in it before
dealing with it.
The Transferor panel of such a transfer should read:
Australian Securities & Investments Commission acting pursuant to s.66 of the
Corporations (Western Australia) Act 1989 and s.461 of the Companies (Western
Australia) Code, in relation to the property of D. Registered Co Pty Ltd, a company that
was deregistered on 12 May, 1980.
The Consideration panel of such a transfer should read see page 2 and on the second page of
Form T2 under the heading Consideration should appear:
•
the above land is registered in the name of (Company Name) which company was
dissolved on the (date)
•
the Transferee has paid the sum of (number in words) dollars to the (insert whichever is
appropriate from (Commissioner for Corporate Affairs, National Companies and
Securities Commission or Australian Securities & Investments Commission)
and
•
2.3.3
and in exercise of the power to sell the said land under s.462 of the Companies (Western
Australia) Code.
Execution by the Australian Securities & Investments Commission
The Australian Securities & Investments Commission, may by virtue of s.102 of the Australian
Securities Commission Act 1989 delegate its powers, with the intent of providing authority to act
for the Commission and provide a decentralised service.
Acting under that authority, the Commission has made a delegation to the position of Executive
Director, Corporate Regulations to act in these (and other) circumstances, and to execute
documents on behalf of the Commission. The form of attestation used is:
Australian Securities & Investments Commission
)
By its Delegate
)(Signature of Delegate)
(name of delegate), the
)
Executive Director Corporate
)
Regulation in the presence of
)
Witness
(Full Name, Address and Occupation)
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2.3.4
Evidence to Support the Transfer Referred to in Chapter 2.3.1 and
2.3.2
Where the duplicate certificate of title for the land in the transfer is lodged with the dealing no
further evidence is required by the Registrar, as the authority for the sale is quoted in the
transferor panel and restated in the consideration, and the possession of the duplicate title is
held to be significant.
Where the duplicate certificate of title has been lost, the transfer can still be registered using
s.74 of the TLA. A statutory declaration should be filed with the transfer, and in addition to
statements negating the deposit of the duplicate title for security for a lien, it should confirm the
circumstances of the deregistration of the company and the disposition of the land by reciting
the facts of the matter.
The declarant must declare that proper authority exists for the declaration to be made and that
the declarant has the necessary means of knowledge.
In cases where the paper title is partially cancelled, a similar statutory declaration is required,
but it need only recite the authority of the declarant to make the declaration, the means of
knowledge to make the statements, and a recitation of the circumstances of the deregistration
of the company and disposition of the land.
2.3.5
Companies Deregistered on or After 1 January, 1991
(Representative Provisions)
Where, after a company has been deregistered or dissolved, on or after 1 January, 1991, it is
proved to the satisfaction of the Australian Securities & Investments Commission (ASIC) that
such company, if it still existed, would be bound to give effect to some dealing and some purely
administrative act is required to complete that dealing, then ASIC, as representing the company
or its liquidator, is empowered by s.601AF of the Corporations Law 2001 to complete the
dealing.
The Transferor panel of such a transfer should (with amendments to suit the particular
transaction) read either:
Australian Securities and Investments Commission acting pursuant to s.601AF of
the Corporations Law 2001 for and on behalf of D. Registered Co Pty Ltd, a
company that was deregistered on 12th May, 1991;
or
Australian Securities and Investments Commission acting pursuant to s.601AF of
the Corporations Law 2001 for and on behalf of Ikan Addup, the liquidator of I.N.
Solvent Co Pty Ltd, a company that was dissolved on 12th May, 1991.
The Consideration panel of such a transfer should read see page 2 and on the second page of
the Form T2, under the heading Consideration should appear:
•
on the (date) (Company Name) did by contract for sale sell to (Transferee) the above
land, for the sum of (consideration);
•
(Company Name) was dissolved/deregistered on the (date);
•
(Transferee) has paid the full purchase price to (Company Name); and
•
the Australian Securities and Investments Commission is satisfied that the purchase price
has been paid in full, and that (Company Name), if still existing, would be bound at law or
in equity to execute a transfer of the above land to the Transferee.
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2.3.6
Companies Deregistered on or After 1 January, 1991 (Disposal
Provisions)
Where after a company has been dissolved on or after 1 January, 1991 and there remains
some asset (which includes land) of the company not dealt with by the liquidator such asset is
vested in the Australian Securities and Investments Commission (ASIC). ASIC is empowered to
sell the land by virtue of s.601AE of the Corporations Law 2001. The Commission is not
required to apply to have the land vested in it before dealing with it.
The Transferor panel of such a transfer should read:
Australian Securities and Investments Commission acting pursuant to s.601AE of
the Corporation Law 2001 in relation to the property of D. Registered Co Pty Ltd, a
company that was deregistered on 12 May 1991.
The Consideration panel of such a transfer should read see page 2 and on the second page of
the Form T2 under the heading Consideration should appear:
•
the above land is registered in the name of (Company Name) which company was
dissolved on the (date)
•
the Transferee has paid the sum of (number in words) dollars to the Australian Securities
and Investments Commission
and
•
2.3.7
and in exercise of the power to sell the said land under s.601AE of the Corporations Law
2001.
Attestation and Supporting Evidence
The procedures set out in paragraphs 2.3.2 and 2.3.3 also apply to documents prepared in the
circumstances set out in this paragraph.
2.3.8
Distribution in Specie
A Liquidator, when appointed to wind up a corporation, must convert the assets of the
corporation to pay its debts. If, when all debts are paid, there are still assets left, the Liquidator
may still wind up the corporation and transfer the remaining assets to the shareholders, in the
same ratio as their shareholding. Should the remaining assets include or consist of land which
has been vested in the liquidator by a Court Order the liquidator may apply under s.234 of the
TLA to be registered as the proprietor of the land, then transfer it to the shareholders. The
transfer form would show:
•
the liquidator as transferor
•
as a consideration The entitlement of the transferees to the above land by virtue of a
distribution of the assets of (name of liquidated company) in specie
and
•
the transferees as tenants in common in the same ratios of shares as their shareholding
in the company.
The form of attestation by the liquidator is shown in paragraph 1.10.10 and the requirements for
the application by the liquidator to become registered as the proprietor of the land are similar to
those shown in paragraph 3.4.5.
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A transfer effecting a distribution in specie must be supported by a statutory declaration by the
liquidator declaring
•
the facts of the appointment
•
that the appointment is still current
•
all the debts of the corporation have been paid, leaving the land the subject of the
transfer as a remaining asset
and
•
the transferees being all the shareholders of the company are entitled to the land in the
shares set out in the transfer.
If the land has not been vested in the Liquidator by a Court Order, the above practice would still
apply, except that the transfer would be made in the name of the company, followed by the
words in Liquidation
2.3.9
Beneficiaries
Where the registered proprietor is holding the land in trust for another person (although of
course, this would not appear on the Register) and the event has occurred upon which that
person is entitled to be registered as proprietor or where the registered proprietor has deposited
a declaration of trust with the Registrar and is now desirous of giving effect to the declared
trusts, the following procedures apply.
In any transfer by the trustee, appearing therein to be the registered proprietor, the
consideration in the first instance should read:
“the transferee being entitled in equity to become the registered proprietor of the
above described land”
or
“the transferor having held the above described land in trust for the transferee and
in order to give effect to such trust”
and in the second instance:
“pursuant to the terms of Declaration of Trust F126414 and in order to give effect to
it.”
Where the declaration of trust is not deposited at Landgate the consideration panel in the
transfer should read:
“pursuant to the terms of a Declaration of Trust dated 10th September, 1993 and in
order to give effect to it.”
2.3.10
Transfers of a Lot on a Strata/Survey-Strata Plan
On registration of a strata/survey-strata plan a separate title is created and registered for each
of the lots on that plan including lots vested under the Planning and Development Act 2005. In a
transfer of a strata lot the three sections of the land being transferred panel should (with
amendments to suit the particular case) read:
‘Lot 2 on Strata / Survey-Strata Plan 2000’ ‘whole’ and ‘1600 200’
Where the transfer is prepared before the strata/survey-strata plan is registered or before the
new title numbers are known then the volume and folio reference may be left blank, but the lot
number and the strata plan number must be shown, as must the indication that the whole of the
land in the title is disposed of.
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The reference to the unit entitlement for the lot may be included or left out. The lot automatically
carries with it the unit entitlement applicable to that lot and any transfer of a lot effects a transfer
of the unit entitlement.
The STA as amended, provides for the creation of statutory easements and rights upon
registration of a strata/survey-strata plan and each certificate of title created and registered
under the provisions of that Act is automatically encumbered by those easements and benefited
by those rights.
Any change in common property, amendment to by-laws or any encumbrances over the
common property made subsequent to registration of the strata/survey-strata plan are matters
affecting the title, but are only endorsed on the strata/survey-strata plan. Accordingly each
transfer or instrument dealing with strata lots must include in the Limitations, Interests,
Encumbrances and Notifications panel the following:
“Interests notified on the strata/survey-strata plan and any amendments to lots or
common property notified thereon by virtue of the provisions of the Strata Titles
Act, 1985 as amended.”
or more concisely:
“Interests notified on strata/survey-strata plan (followed by its number).”
2.3.11
Transfer of Part of The Common Property of a Strata/Survey-Strata
Plan
The common property of a strata/survey-strata plan is held by the registered proprietors of the
lots as tenants in common in proportion to the unit entitlement of their lots. The STA as
amended, provides that the proprietors of the lots on a strata/survey-strata plan may, by a
resolution without dissent (or unanimous resolution in the case of a two-lot scheme), direct the
strata company formed on registration of a strata/survey-strata plan, through its council to
execute a transfer of part of the common property (see paragraph 6.7.1).
A Form 14 Certificate of Strata Company of the STGR, must be submitted with the transfer. The
portion of common property being transferred must either be the subject of a strata/surveystrata plan of re-subdivision or be part of a plan or diagram of subdivision (under the T.P.&D.
Act) for which the approval of the Western Australian Planning Commission has been given.
In the situation where a portion of the common property is to be amalgamated with land outside
the strata/survey-strata scheme, the transfer must be accompanied by an application (Form A6)
to include the land in the deposited plan of subdivision in the new title which is created and
registered on the transfer.

Note:
If the portion of the common property being transferred out of the strata/survey-strata scheme is
not to be amalgamated with any adjoining land, the above mentioned application is not required
to accompany the transfer.
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2.3.12
Transfers Creating Easements and Covenants
An easement may be created by a separate document prepared solely for that purpose. These
documents are treated as transfers and are referred to as such.
A transfer may contain additional words creating an easement. Such an easement may be said
to be created:
•
by grant; where the easement is for the benefit of the transferee and burdening the
appurtenant land of the transferor in the same or another certificate of title
or
•
by reservation; where the easement burdens the land being transferred for the benefit of
the appurtenant land of the transferor in the same or another certificate of title.
In both cases where the land, whether burdened or benefited, is held in another title the
duplicate certificate of title (if any) must be produced for the purpose of endorsement.
Where an easement is created by grant or reservation simultaneously with a transfer of land
then a transfer Form T2 should be used. The words creating the easement should follow the
operative words of the transfer (page 2 of the form) and an Easement Only Deposited Plan
should be prepared by a licensed surveyor where the land the subject of the easement is not
defined as a lot on a plan or is not the whole of the land in a certificate of title.

Note:
A simple bore easement between neighbours does not require the preparation and lodgement
of a Deposited Plan. A suitable sketch can be filed with the document to identify the land (see
paragraph 1.9.3).
The words ‘together with a right of carriageway over’ followed by a description of the land
over which the easement is to be granted, have the same meaning as if all the words contained
in the Ninth Schedule of the Act had been used (s.65 of the TLA).
There is no special form to create an easement by document instead of creating it in a transfer.
The form to use is blank instrument Form B2 and the easement should be created by recital.
Restrictive covenants are usually created by adding the required words to a transfer Form T2.
These covenants must be negative in their nature and must be capable of running with the land
(s.129A of the TLA).
Easements and covenants are dealt with more comprehensively in Chapter 7.
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2.4
Transfer of Mortgage, Charge or Lease
2.4.1
General
There are special forms printed for these purposes. A Form T3 Transfer of Mortgage Charge or
Freehold Lease is used where freehold land is affected. A Form T3C is used where Crown land
is affected.
While the whole, or a share of the interest of a mortgage, charge or lease may be transferred,
all of the land secured by the instrument must be included in the transfer. A transfer reciting only
one of two or more properties secured will not be registered as such a transfer would create
uncertainty as to repayments due under the instrument, and the circumstances that would
constitute default.
In general, encumbrances registered against the title of the mortgagor, chargor or lessor do not
prevent dealings by the mortgagee, chargee or lessee. Encumbrances lodged against the
mortgage, charge or lease (i.e.: against the mortgagee, chargee or lessee) must be either
removed or shown as encumbrances on the transfer. In some cases the consent of the person
or corporation that lodged the encumbrance must be endorsed on the form in addition to the
noting of the encumbrance.
For transactions over Crown land, s.18 of the LAA consent of the Minister for Lands is also
required unless the Crown land is vested for purposes of another Act (see paragraph 12.1.7).
Transactions over a Pastoral Lease additionally require s.134 of the LAA consent.
In the case of freehold land, production of the duplicate certificate of title (if any) is desirable but
will not be insisted upon for these transfers.
2.4.2
Transfer of Mortgage
It is desirable that the tenancy between the transferees be expressed, as in the absence of an
expressed tenancy a joint tenancy is presumed.
Where the consideration for the transfer is a Deed of Defeasance, i.e. a mortgage of a
mortgage, the consideration panel should not recite the deed but simply state:
“the transferee being entitled in equity to become the registered proprietor of the
mortgage “
The same consideration should be used when the mortgage is being retransferred to the
original mortgagee. This form of consideration should also be used where the transfer of
mortgage is for the purpose of security. The TLA does not contain provisions permitting the
registration of a sub-mortgage.
2.4.3
Transfer of Charge
A transfer of charge (or annuity) has the effect of passing the responsibility for the payment of
the annuity to the transferee during the lifetime of the transferor or for the balance of the term of
the annuity. On the death of the transferor or the end of the term, the annuity ceases. The
charge remains an encumbrance until discharged or removed by application even though its
term has expired or the annuitant is dead (see paragraph 2.7.2).
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2.4.4
Transfer of Lease
The registered lease may contain provisions which affect the rights of a lessee to assign or
otherwise dispose of his or her interest and/or possession of the leased premises. These
provisions may result in a requirement that a transfer of lease would not be registrable without
the consent of the lessor.
It is preferable that the consent be endorsed on the transfer of lease, but other forms of consent
may be accepted by the Registrar, so long as the intention of the lessor to consent to the
transfer presented was clear.
If the terms of a lease demand the unqualified consent of the lessor to any assignment, a
transfer of the lease without consent will not be registered. If the terms of the lease require a
qualified consent (eg: subject to the proposed new lessee being acceptable to the lessor, the
transfer of lease should be accompanied by proof of that consent.
A requisition will issue if the consent is not present, to give the transferor an opportunity to
obtain it, but the transfer may still be registered at the lodging parties request, without it. In such
cases the parties to the transaction still have the option of taking Court action to have the
assignment approved on the grounds of the withholding of the consent was unreasonable.
The lessees copy of a lease of Crown land must be produced with a transfer of such a lease.
The lessees copy is capable of being deposited as a security and its production ensures that
the rights of all interested parties are protected.
The lessee’s copy of a lease is not required to be produced with a transfer of a freehold lease.
For an example of how to fill out the document (see LTRPM Form Examples- Example 23)

Note:
A transfer of a lease and a transfer of freehold land are not to be included in the same form.
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Land Titles Registration Practice Manual- Edition 12.0
2.5
Transfers to and from the State of Western Australia
2.5.1
Transfer and Surrender of Fee Simple Land to State of Western
Australia
Land alienated from the Crown in fee simple, may be surrendered to the State. Upon surrender
the land becomes unallocated lands of the State and may be dealt with by the State under the
LAA.
The appropriate means is by amended transfer Form T1 Transfer of Land or T2 Transfer of
Land with Additional Pages. A transfer to the State of Western Australia of fee simple land
requires acceptance by the Minister for Lands on behalf of the State.
The normal transfer form is used with the addition of the words and surrenders in the operative
words of the transfer, which would then read:
“...hereby transfers and surrenders to the transferee....”
While a transfer to the State of Western Australia may be shown to be subject to any
encumbrances on the title, those encumbrances must be approved by the Minister for Lands
before the land is surrendered to the State.
The duplicate title (if any) must be produced with the transfer and surrender. If it is lost, action
under s.74 of the TLA can be taken to dispense with its production.
2.5.2
Leasehold Land
A Crown Lease under the Land Act 1933 or a lease of Crown land under the LAA may be
surrendered to the State of Western Australia by completing a Form S3. The surrender may
only be registered when the lease is free from encumbrances, and the duplicate must either be
produced or its production dispensed with under s.74 of the TLA (See paragraph 2.8.10).
2.5.3
Transfer of Crown Land to Fee Simple Land
The general power to dispose of a fee simple interest in Crown land under the Land Act 1933
was by way of a Crown grant by the Governor. The LAA simplified the process to purchase fee
simple interests in Crown land by using conventional freehold conveyancing processes. A
person now purchases a fee simple interest in Crown land by entering into a contract of sale by
offer and acceptance for its purchase and then registering a transfer that conveys that fee
simple interest into freehold.
Before any transfer to freehold can be registered, a Crown Land Title (CLT) must exist. Where
the existing Crown title is a Qualified Crown Land Title (QCLT), an application document with
supporting statement as to interests must be lodged by the Department of Lands to enable the
Crown title to be converted from a QCLT to a CLT. The deposited plan that supports the CLT
must also be suitable to allow a transfer to freehold. The deposited plan or CLT must not state
that it is Subject to Survey and no portions of land should previously have been excluded from
the lot.
To transfer to freehold a standard Form T1 or Form T2 can be used. On registration the Crown
title Volume and Folio number is replaced with a freehold title Volume and Folio number. The lot
and deposited plan numbers remain the same.
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Where the State of Western Australia is transferring a fee simple interest to a current lessee of
Crown land, the transfer of land document must include a request for the lease to be merged
and extinguished. The request to merge and extinguish the lease should be endorsed on the
Transfer form itself and signed by the lessee or the lessee’s agent. Suitable words for the
request are:
‘the transferee requests that Lease H987654 be merged and extinguished in the
fee simple on this transfer.’
Unlike the merger of freehold leases, the merger of a lease of Crown land may be effected while
the lease is encumbered or subject to a caveat. Any encumbrances on the lease that have not
been removed will be carried forward to the certificate of title.
This process will only apply where the entire lease is being converted to freehold. Where only
part of the lease is to be transferred into freehold, a partial surrender of the lease must precede
the transfer of land document.
To effect a transfer to a lessee of a lease of Crown land the lessee’s copy of the lease must be
produced.
Crown land may also be transferred into the fee simple subject to conditions in accordance with
s.75 of the LAA. This land is known as conditional tenure land (see paragraph 12.1.14).
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2.6
Mortgages and Discharges
A Mortgage document is subject to the Verification of Identity Practice issued
jointly by the Western Australian Registrar of Titles and Commissioner of Titles.
Please refer to Chapter 14.
2.6.1
Form of Mortgage
Section 105(1) of the TLA provides that the proprietor of any land under the operation of
this Act may mortgage the same.... The manner in which this can be achieved is by the
preparation of a statutory mortgage on a Form M1 Mortgage, Form M1A, or a Form M1B and
the registration of that mortgage. The duplicate certificate of title (if any) must be produced.
Landgate introduced the M1A and M1B Mortgage Form types in June 2013:
•
the Form M1A incorporates the mortgagee’s execution of verification of identity and
authority to deal statement
and
•
the Form M1B incorporates the mortgagee’s execution of verification of identity and
authority to deal statement by a lawyer acting for the mortgagee
These new forms have two significant differences to the M1:
1.
Verification of Identity Statement is incorporated into the form
With respect to the Verification of Identity Statement incorporated into the forms, there are some
limitations with respect to its use and therefore the use of the new forms. Such limitations
include:
2.
•
For use only where multiple transferors, whether corporations or natural persons,
are represented by the same lawyer or licensed settlement agent. In other words,
the Verification of Identity Statement cannot be used where multiple transferors are
represented separately.
•
It is not acceptable to strike through the VOI Statement that has been integrated
within the new M1A and M1A forms. You must use the existing M1 form if you are
providing a VOI Statement on a separate sheet.
The Limitations, Interests, Encumbrance and Notifications panel has been removed.
As the Limitations, Interests, Encumbrance and Notifications panel has been removed
from these forms, the current practice for the removal of restrictive covenants, which have
expired due to a time limit within the restrictive covenant, can no longer continue.

Note:
The use of the new forms is optional subject to your operational requirements.
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A mortgage under TLA operates as a charge against the land and not as a transfer, and a
mortgagee has an interest in the land and not an estate in it.
For convenience the mortgage may be viewed in two parts:
•
an operative conveyancing part
and
•
the contractual part.
The operative conveyancing part is the part of a mortgage form necessary to permit registration.
It contains all of the following information:
•
a description of the land
•
the estate or interest in the land
•
the Limitations. Interests, Encumbrances and Notifications affecting the land, if any
•
the name and address of the registered proprietor
•
the name and address of the mortgagee and tenancy if more than one
•
detail of repayments and interest
•
the operative mortgaging part, which must contain the word mortgages
•
the date of the document
•
the signature of the mortgagor
and
•
the signature, address and occupation of the witness.
The contractual part of the document consists of the covenants between the mortgagee and
mortgagor and it is here that there is freedom between the parties to determine their several
rights and liabilities. Generally the Registrar is not concerned with the covenants beyond
ensuring that any blanks in the covenants are filled and that the pages are numbered
consecutively.
However, the terms of the mortgage cannot be in conflict with the provisions of the Act, and
care must be taken by conveyancers to ensure that the statutory rights of the mortgagee,
especially as regards to default and notice, are not removed. Mortgages containing such
clauses will not be registered.
Banks, Financial Institutions and any other party lodging a large volume of mortgages in a
standard form are requested to lodge the contractual details as a Memorandum of Common
Provisions at Landgate.
Each new mortgage could then be completed as a short form containing the operative part and
conveyancing detail, and a reference to the memorialised contractual details.
Amendments to the contractual details can only be made by inclusion in the short form
mortgage or by registering a new memorandum of common provisions.
The parties may modify any of the implied covenants in any mortgage. The implied covenants
(s.113 of the TLA) are:
•
to repay the principal sum
•
to pay interest on that sum in the manner provided
•
to repair and keep in repair buildings on the land
and
•
at reasonable times, to permit inspection of the mortgaged premises by the mortgagee.
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Should the covenants to be inserted require more than the space provided in a Form M1 then
additional sheets may be added and stapled into the mortgage form prior to signing by the
mortgagor. The pages should be numbered consecutively. Inserts of a lesser size than full page
are not permitted (see regulation 3 to the TLA).
The form requires that only the mortgagor is to sign the mortgage in the presence of an adult
witness who is not a party to the document, but there are occasions where the mortgagee must
also sign. Where any alteration, to the detriment of the mortgagee, is made to a mortgage the
mortgagee is required to initial the alteration and sign the mortgage in the presence of a
witness. Two specific instances would be:
•
where the principal sum is reduced
or
•
the interest rate lowered.
Mortgage of Lease
The document Form M1 is used for the purpose of a mortgage of a lease of Crown or freehold
land.
In general, encumbrances registered against the title of the lessor do not prevent dealings by
the lessee. Encumbrances lodged against the lease must either be removed or shown as
encumbrances on the Form M1.
Leases often state in the lease that consent in writing of the lessor is required to encumber the
lease. In these instances, the lessors consent must be attached or endorsed on the form. For
transactions over Crown land, s.18 of the LAA consent of the Minister for Lands is also required
unless the Crown land is vested for purposes of another Act (see paragraph 12.1.7).
The lessee’s copy of a lease over Crown land must be produced with a mortgage of the lease.
The lessees copy is capable of being deposited as a security and its production ensures that
the rights of all interested parties are protected. The lessee’s copy of a lease is not required to
be produced with a mortgage of a freehold lease.
A lease of Crown land by the State of Western Australia created under s.48 of the LAA over an
unmanaged reserve for a purpose different to the reserve purpose cannot be mortgaged. A
lease of Crown land by the State of Western Australia created under s.47 of the LAA over an
unmanaged reserve for a purpose in accordance with the reserve purpose can be mortgaged.

Note:
The land description of the mortgage must additionally refer to the lease being mortgaged. For
example:
‘As to Lease H123456 only’
or where the lease and mortgage are lodged together:
‘As to Lease . . . . . . . . dated 0.0.2005 made between AB (lessor) and the
mortgagor only’
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2.6.2
Mortgages under the National Credit Code
The National Consumer Credit Protection Act 2009 (the Act) came fully into operation on 1st
January 2011. Section 3 of the Act enacts the National Credit Code (the Code). The Code is
contained in Schedule 1 to the Act.
Application of the Code
Section 3 of the Code defines credit. Section 4 defines the meaning of credit contract as:
a contract under which credit is or may be provided . . . . . . . .
Section 5 sets out the applicability of the Code. It applies to the provisions of credit and sets out
the circumstances relevant to applicability. This includes mortgages registered under the TLA
Under s.5 of the Code, the Code applies to credit contracts if, when the contract is entered into
or is proposed to be entered into:
•
the debtor is a natural person or a strata corporation
•
the credit is wholly or predominantly:
(i)
for personal, domestic or household
or
(ii)
to purchase, renovate or improve residential property for investment purposes
or
(iii)
•
to refinance credit that has been approved wholly or predominantly to purchase,
renovate or improve residential property for investment purposes
a charge is or may be made for providing the credit
and
•
the credit provider is in the business of providing credit or even where the credit provider
provides credit as part of or incidental to any other business of the credit provider.
The application of the Code to mortgages is specifically dealt with by s.7.
Section 7(1) provides that the Code applies to a mortgage if:
•
it secures obligations under a credit contract or a related guarantee
and
•
the mortgagor is a natural person or a strata corporation.
Paragraph 2.2.6 deal with the procedures for exercising mortgagee’s power of sale in relation to
Code mortgages.
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2.6.3
Tenancy of the Mortgagees
Following the enactment of the Property Law Act 1969, there are two dates to consider in
dealing with the interest of mortgagees.
2.6.3.1
Before 1 August 1969
Where no tenancy is expressed between the mortgagees in a mortgage lodged for registration
prior to August, 1969 and the money is not stated to be advanced in particular shares, then
such mortgagees were presumed to have advanced the moneys as tenants in common.
Where mortgagees are expressed to be tenants in common or provided the mortgage money is
expressed in shares no problem arises.
Where there is a joint account clause stating that the mortgagees have advanced the money on
a joint account both in equity and at law, then there is a joint tenancy and the right of
survivorship is available to a survivor.
2.6.3.2
After 1 August 1969
Where no tenancy is expressed between the mortgagees in a mortgage lodged after 1 August,
1969 the Property Law Act 1969, (s.67), provides that, unless a contrary intention is expressed,
the mortgagees are presumed to be joint tenants with the attendant right of survivorship. A
definition of the term mortgagee in a mortgage in a manner which indicates that survivorship is
not contemplated is accepted as an expression of a contrary intention.
Where there is an expressed tenancy in common or where the mortgage money is provided by
the mortgagees proportionately or in express amounts, then there is a tenancy in common.
The tenancy between the mortgagees is not so important while the mortgagees are alive and
available to give a discharge, but difficulties, caused by poor drafting of mortgages, often arise
on the death of a mortgagee, ie: in determining whether a transmission or a survivorship
application is required.
2.6.4
Mortgage by a Tenant in Common of that Interest
The estate and interest being mortgaged panel should read fee simple as to one undivided
half share or whatever share of the entirety the mortgagor is dealing with.
2.6.5
Mortgage by a Joint Tenant of that Interest
The estate and interest being mortgaged panel should read fee simple as to the interest of
A as joint tenant with B. It should be noted that a mortgage of one joint tenant’s interest, being
a charge only, does not sever the tenancy. The mortgagee’s interest in the land may die with
the mortgagor should the mortgagor fail to survive the other joint tenant, but this is not certain
(see Francis- Mortgages and Securities 2nd Edition (1975) pages 56 and 57 and Lyons v Lyons
(1967) VR169).
In the event that such a mortgage is registered, and the mortgagor dies before the other joint
tenant, a discharge of mortgage is required to clear the title.
The exercise of a power of sale by a mortgagee in these circumstances would sever the joint
tenancy.
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2.6.6
Mortgage by a Life Tenant
A life tenant, having an estate and interest in land, may mortgage that estate or interest. The
estate or interest being mortgaged panel of the form should read an estate for the life of A .
However the life estate, being terminable, would cease on the death of the life tenant, and, with
it the interest of the mortgagee.
In the event that such a mortgage is registered and the mortgagor dies, on an application by the
remainderman to merge the two estates, a discharge of mortgage is required to clear the title.
2.6.7
Mortgage by a Remainderman
The remainderman also has an estate or interest in land capable of being mortgaged. The
estate or interest being mortgaged panel of the form should read the estate in fee simple in
remainder of A expectant upon the death of B. On the death of the life tenant the interest of
the mortgagee enlarges to cover the fee simple in possession.
2.6.8
Mortgage by Life Tenant and Remainderman Together
This mortgage is of the entire interest in the land being mortgaged and no special words are
required in the estate or interest being mortgaged panel beyond the words fee simple and
the mortgagor panel need only show the names and addresses of the registered proprietors
without special reference to their being life tenant and remainderman.
2.6.9
Mortgage by Personal Representative
Where, on the death of a registered proprietor, an executor or administrator has entered
transmission and became registered as proprietor of the land to be mortgaged, such executor or
administrator may mortgage the land:
•
for the purpose of administration (s.10(3) of the Administration Act 1903). A statutory
declaration setting out the circumstances is required
•
where power to mortgage is given in the will. Production of an office copy of the Grant of
Probate is the only evidence required
•
with the consent of all the beneficiaries where no power to mortgage is given in the will. A
statutory declaration identifying the beneficiaries is required where the beneficiaries are
not named in the will
and
•
pursuant to the Trustees Act 1962. s.30(1)(a)(c)(d)(e)(h) and 43 permits a trustee
(executor or administrator) to mortgage under the circumstances set out therein. A
statutory declaration setting out the circumstances is required.
For mortgages by an executor or administrator who is described as such on the certificate of
title the mortgagor panel of the form should read:
A of address as executor of the Will of B deceased or A of etc as administrator of
the estate of B deceased.
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2.6.10
Mortgages - Double Interest
Provided there is only one principal sum, that is, one amount of money lent to the mortgagors,
then one mortgage may be registered on the joint and/or separate lands of the mortgagors.
Successful registration of this type of mortgage depends not only upon accurate description but
also upon careful separation of the lands being mortgaged and the inclusion of separate
mortgaging parts for each interest mortgaged.
In a case where A and B own separate pieces of land and are obtaining a joint advance from a
mortgagee in one mortgage the appropriate panels of three sections of the Land Being
Mortgaged panel should (with amendments to suit the particular case), read:
“Description of land being mortgaged:
Firstly:
‘Lot 10 on Plan 12345’ ‘whole’ and ‘606 69’;
Secondly:
‘Lot 11 on Plan 12345’ ‘whole’ and ‘606 66’;
Mortgagor:
as to the land firstly above described A of address;
as to the land secondly above described B of address”
The printed operative mortgaging part should be deleted and initialled by the parties and the
following operative mortgaging part drawn on an annexure sheet or on a page forming part
of the mortgage where space permits:
“For the purpose of securing the payment in the manner aforesaid of the principal
and interest the said A mortgages to the mortgagee the estate and interest herein
specified in the land firstly above described subject to the encumbrances as shown
hereon and the said B mortgages to the mortgagee the estate and interest herein
specified in the land secondly above described subject however to the
encumbrances as shown hereon.”
The same considerations apply where the mortgagor is two persons and part of the subject land
is held by them as joint proprietors and part by one of them in his or her own right. The form is
the same with appropriate changes in detail.
2.6.11
Mortgage to a Trustee
Where the mortgagee is a trustee, no reference to the trust should appear in the mortgagee
panel. However the trust may be referred to in the contractual part of the document, as this will
not be reflected in the entry made upon the Register.
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2.6.12
Up Stamping a Mortgage
Many mortgages contain provisions permitting an increase in the amount advanced to the
mortgagor. At the time of registration the mortgage secures the amount protected by the
payment of stamp duty at the time of registration.
Any further advances in excess of that amount are deemed to be a new and separate
instrument of security and should be protected by resubmitting a duplicate of the registered
mortgage to the Office of State Revenue (Stamp Duties Division) for payment of the additional
duty. (or, for those corporations so authorised, updating the duty using the procedures set out in
Sec. 112V of the Stamp Act). In accordance with s.83(7) of the Stamp Act, the payment of
additional stamp duty on the duplicate mortgage has the same effect as if the original registered
mortgage held at Landgate was up stamped.
The practice is known as Up Stamping a mortgage. Although the payment of the additional
stamp duty maintains the duplicate mortgage as a valid and enforceable security document for
the new, increased amount, the mortgage registered in the Titles Register still remains
unchanged (i.e. showing the stated principal sum). The common law rules of equity decide the
circumstances in which the increased amount will have the same priority as the first mortgage
against any later mortgages. (The rule of Hopkinson v Rolt)
2.6.13
Extension of Mortgage
In any extension of mortgage there is a special printed Form E1 Extension of Mortgage (see
LTRPM Form Examples- Example 17). The duplicate certificate of title (if any) must be
produced. The TLA, s.105A, provides that a mortgage may be extended. In any extension of a
mortgage:
•
the term of the mortgage must be extended by a least one day
•
there cannot be any increase in the principal sum of the mortgage. A further mortgage is
required if the principal sum is to be increased
•
where the extension pertains to a demand mortgage a finishing date is required to be
stated
•
where the extension indicates that part of the principal sum has been repaid, then the
extension must be preceded by a partial discharge of the mortgage as to the amount
repaid
•
a variation of the interest rates and other terms may be incorporated in the extension
provided some extension of the time period is made. A variation of mortgage by itself is
not permitted
•
being an instrument defined under the TLA registration of the extension is prevented by
absolute caveats, property (seizure and sale) orders and certain memorials until removed
and
•
both mortgagee and mortgagor must sign in the presence of an adult witness and the
address and occupation of the witness must be shown.
A person lodging an extension of mortgage should obtain the consent in writing of the proprietor
of any mortgage or encumbrance lodged after the mortgage being extended [s.105A(3)].
Registration of the extension will not be refused if such consent is not obtained though it is
practice to advise the lodging party that the consent is desirable.
Where a subject to claim caveat has been lodged against the land and it is not being removed,
there must appear in the body of the document (above the signatures) a statement to the effect
that:
“This instrument is subject to the claim of the caveator in Caveat........, otherwise
the extension will not be registered.”
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2.6.14
Discharge of Mortgage
There is a printed form of Discharge, Form D1 for use in most cases.
If only some of the Mortgagees are discharging, a Form D3 Discharge of Mortgage should be
used. This is an alternative to lodging a transfer of mortgage. This type of discharge (FormD3)
must be assessed for stamp duty prior to registration. A discharge may be:
•
total as to both land and money, see LTRPM Model Form Examples- Example 13
•
partial as to money over the whole of the land i.e.: the principal sum is reduced, see
LTRPM Model Form Examples- Example 14
•
partial as to land from the whole of the money i.e.: the security is reduced, see LTRPM
Model Form Examples- Example 15
and
•
partial as to money over the whole of the land by some of the Mortgagees ie: the number
of Mortgagees is being reduced, see LTRPM Model Form Examples- Example 16.
A discharge may not be partial as to land and partial as to money for the reason that no
particular piece of land would be entirely released from the mortgage. The land to be
discharged must be properly identified, and discharged from the whole of the money.
The form does not provide for a consideration but should it be desired to show a consideration
for the release of any land from the mortgage the space to use is immediately below the panel
‘If portion only of the money being discharged’ as shown in LTRPM Model Form ExamplesExample 14.
All mortgagees must join in and sign a discharge (Drake v Templeton 1913 16 CLR P153 at
158). Where one of the mortgagees as a tenant in common is dead then the executor or
administrator must enter transmission and join in the discharge in that capacity. If the deceased
mortgagee was a joint tenant then the other tenants must apply to be entered by survivorship as
the proprietors of the mortgage before a discharge by the survivors may be accepted.
It is desirable but not essential that the duplicate title (if any) be produced when a Discharge of
Mortgage is registered, and it becomes even more desirable when the mortgage being
discharged is the only remaining mortgage on the land.

Note
Where the duplicate of a digital title has been produced with the discharge, the Registrar will
cancel it and create and register a new edition of the duplicate title.
Where the duplicate of a paper title has been produced with the discharge, the Registrar will
endorse the discharge on that duplicate title.
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2.6.15
Discharge - Where Mortgagee Absent from WA
Where a registered proprietor wishes to repay the mortgage and the mortgagee is absent from
Western Australia and there is no one authorised to give a receipt for the mortgage money at or
after the date appointed for payment, then the mortgage money and interest to date may be
paid to the Treasurer of the State and upon production of the receipt of the Treasurer, the
Commissioner, on being satisfied that the correct amount has been paid, will direct the
Registrar to remove the mortgage as an encumbrance (s.126(1)).
The document by which this procedure is achieved is an Application by the registered proprietor
applying to remove the mortgage as an encumbrance from the certificate of title. It is not strictly
a discharge but has the same effect. The application must be accompanied by a statutory
declaration of the registered proprietor in which is set out an accounting of the amount owing to
the mortgagee at a given date. As an annexure to the declaration there must be a receipt of the
Treasurer. The following is an example of a suitable form:
Received from ......... as Solicitors and Agents for A of etc. the registered proprietor
of the land hereinafter described the sum of ........ being the principal sum secured
by Mortgage No. ........ together with the sum of ......... being interest to the date
hereof which sum is paid in satisfaction of all moneys due under the said mortgage
to C of etc. the said C being unable to give a discharge of the said mortgage the
said C being absent from Western Australia. The sums are paid under the
provisions of s.126 of the Transfer of Land Act 1893. The said A is registered as
proprietor of all that piece of land being (correct land description).
Dated this day of _____ 20____.
Treasurer

Note:
Where the duplicate of a digital title has been produced with the application, the Registrar will
cancel it and create and register a new edition of the duplicate title. Where the duplicate of a
paper title has been produced with the application, the Registrar will make an appropriate entry
on that duplicate title.
2.6.16
Discharge - Payment to Absent Mortgagee
Where money paid on behalf of an absent mortgagee to the Treasurer of WA is claimed by the
mortgagee and upon receiving a request in writing, the Registrar will make a request to the
Treasurer in the following form:
The Honourable Treasurer
In the terms of s.126(1) of the Transfer of Land Act 1893 I hereby require you to
pay to A of etc. (the mortgagee) or (to I M Legal & Co the mortgagee’s solicitors)
the sum of (the amount paid to the Treasurer) together with any interest accrued
thereon paid to you on the (date of payment) on account of principal and interest
due under Mortgage 12121/1966 given by C of etc. (the mortgagor) to the said A
which said moneys were paid to you by Messrs Law Book & Co, Solicitors of Perth
solicitors for the said C.
Dated this ____day of ______ 20 ____.
Registrar of Titles
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2.6.17
Discharge - Where the Mortgage Money has Been Paid and the
Mortgagee is Dead or Absent from the State or Cannot Be Found
Again this document is an Application and strictly, not a discharge, although it has that effect.
The application, to have an entry made on the title discharging mortgage (Number)
pursuant to the provisions of s.126(2), is made by the registered proprietor on a Form A5
Application.
Where the registered proprietor has paid the mortgage debt and is unable to obtain a discharge,
because the mortgagee is dead and there is no personal representative or the mortgagee is
absent from the State or cannot be found and there is no person authorised to sign a discharge
of the mortgage the registered proprietor may make an application to the Commissioner for the
mortgage to be removed as an encumbrance. Very strict proof of payment of the money is
required by the Commissioner before granting such an application.
The statutory declaration of the registered proprietor should set out a strict accounting of the
payments of principal and interest and be accompanied by proof of payment, by way of
annexures to the declaration, of receipts, cheque butts, bank statements, etc. Other supporting
declarations by agents, bank managers or accountants from whom further proof of payment can
be obtained, should be supplied. When satisfied that the money has been paid in full and that
the provisions of s.126(2) have been met the Commissioner directs the Registrar to discharge
the mortgage as an encumbrance.

Note:
Where the duplicate of a digital title has been produced with the application, the Registrar will
cancel it and create and register a new edition of the duplicate title. Where the duplicate of a
paper title has been produced with the application, the Registrar will make an appropriate entry
on that duplicate title.
2.6.18
Mortgage - Merger of Mortgage
Where land is transferred to a person who is the mortgagee of that land there is a merger at
law. However it is not the practice to merge the mortgage automatically. The
mortgagee/transferee will be asked to request a merger of the mortgage. This request should
be endorsed on the transfer and signed by the transferee or the transferee’s agent as follows:
“The transferee requests that mortgage F345678 be merged and extinguished in
the fee simple.”
When the transfer of land is registered, the mortgage ceases to have any effect.
2.6.19
Discharge by a Company or Incorporated Body
In the case of a company the discharge must be under the Common Seal of the company or its
registered attorney and be properly attested. In the case of a body under the Associations
Incorporation Act 1987 the discharge must be under the Seal of the Body and be accompanied
by a statutory declaration by the seal holders (see paragraph 1.10.14).
2.6.20
Discharge by a Friendly Society
The discharge must be attested by a majority of the trustees for the time being. A registered
certificate of trustees should be available at Landgate, and recorded on the internal information
system known as Ditbook. If not available, such a certificate should be obtained from the
Registrar of Co-operative and Financial Institutions and registered at Landgate.
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2.7
Charges and Discharges
2.7.1
Charge
Section 105(1) of the TLA provides that
“the proprietor of any land under the operation of this Act ..... may charge the same
with the payment of an annuity.”
The manner in which this can be achieved is by the preparation of a statutory charge on a Form
M2 Charge and the registration of that charge. The duplicate certificate of title (If any) must be
produced.
A charge is defined in s.4 of the TLA as:
“the instrument creating and charging an annuity.”
An annuity is defined as:
“a sum of money payable periodically and charged on land under the operation of
the TLA by an instrument there under.”
A charge, therefore, is a security for a sum of money paid periodically for the life of the chargee
or some shorter defined period. It should have either a commencement date or a date for the
payment of the annuity in each year. A charge cannot be for a fixed amount of money. A
mortgage is the appropriate security in such a case.
A charge does not operate as a transfer and is treated in much the same fashion as a
mortgage. It may be discharged on production of a discharge signed by the chargee or the
chargee’s personal representative after transmission.
A survivorship application is used in the case of joint annuitants where one is dead. Where all
are dead a survivorship application is required to precede a transmission application by the
personal representative of the last surviving annuitant. The form to use is Form A4 Application
By Survivor to be the Registered Proprietor of a Mortgage Charge or Freehold Lease as shown
in LTRPM Form Examples- Example 6, with the recital modified as shown in LTRPM Form
Examples- Example 3.
2.7.2
Discharge of Charge
There is a printed Form D2 Discharge of Charge for this purpose. A discharge of charge may
be:
•
total as to annuity and land
•
partial as to land, total as to annuity
and
•
partial as to annuity, total as to land.
The examples given as a guide for discharges of mortgage may be use to assist in the
preparation of discharges of charge.
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2.7.3
Discharge - Where Annuitant is Dead and there is No Personal
Representative
The document by which this is achieved is an application on a Form A5 Application with the
effect of a discharge. Application may be made to the Commissioner under s.125 of the TLA to
remove the charge as an encumbrance.
Proof to the satisfaction of the Commissioner, is required as to the death of the annuitant or the
occurrence of the event by which the annuity ceases to be payable and as to the payment of the
annuity during the lifetime of the annuitant and up to the date of death, before a charge may be
removed as an encumbrance. A charge remains an encumbrance on the land until discharged
or removed.

Note:
Where the duplicate of a digital title has been produced with the application, the Registrar will
cancel it and create and register a new edition of the duplicate title.
Where the duplicate of a paper title has been produced with the application, the Registrar will
make an appropriate entry on that duplicate title.
2.7.4
Extension of Charge
The term of an annuity may be extended by the registration of an Extension of Charge using
printed Form E1 Extension of Mortgage adapted for the purpose.
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2.8
Leases of Land
2.8.1
Form
The TLA provides for the registration of a lease under the operation of the TLA for any term
(excluding options to renew) exceeding three years for freehold land or exceeding 12 months
for Crown land.
Where a lease is lodged in respect of a digital title, the digital title is the Register for the lease
and any interests registered against the lease.
Where a lease is lodged in respect of a paper title, the lease remains the Register for any
interests registered against the lease.
A duplicate copy of a lease may be lodged for registration along with the original. If the duplicate
lease is produced for a dealing to be lodged against the lease, the duplicate lease will be
endorsed (and if necessary updated) to show all the relevant interests registered against the
lease.
The duplicate certificate of title (if any) must be produced when a lease is lodged for
registration.
The consent of any mortgagee or annuitant registered in priority to the lease is required (s.91 of
the TLA).
A lease must be prepared on a:
•
Form L1 Lease for a lease of freehold land
or
•
Form L1C Lease of Crown Land for Crown land.
The lessor (registered proprietor or management body of the land) and the lessee must both
sign the form before adult witnesses and the duplicate certificate of title (if any) must be
produced.
Where the lease relates to portion of a Lot or Location, it must have a Land Description that is
defined by a sketch or an Interest Only Deposited Plan. A lease of part of a building may have
a narrative land description (see paragraph 2.8.4).
A lease by the State of Western Australia as lessor that is as to a part of a Lot must be
supported by an Interest Only Deposited Plan with a CSD File that is capable of being shown on
SmartPlan. A CSD File is not compulsorily for a lease over a portion of a building.
The term of the lease must be clearly defined, i.e.: must have a commencement date (which
may be a past date or up to 21 years in the future) and either a finish date or a finite term.
Unless a lease of freehold land is of a whole lot or lots the consent of the Western Australian
Planning Commission is required where:
•
the term of the lease, including any option to renew, exceeds twenty years
and
•
the terms of a lease, in the aggregate, exceed twenty years including any option to
renew.
A lot as defined in the Planning and Development Act 2005, includes the whole of the land in a
certificate of title (see s.4 and 136).
Leases of Crown land over a part of a Lot do not require Western Australian Planning
Commission consent.
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A lease of Crown land by the State of Western Australia is acceptable over an unmanaged
reserve. Section 47 of the LAA allows for a lease for a purpose in accordance with the reserve
purpose and s.48 of the LAA allows for a lease for a purpose different to the reserve purpose
but compatible with a future intended purpose. Leases created under s.47 may be mortgaged
while a s.48 lease cannot be mortgaged.
A lease of Crown land by the State of Western Australia cannot be registered over a managed
reserve. A lease required over a managed reserve should be created by the management body
where they have the power to lease.

Note:
In the case of a digital title it is not necessary to search the original lease to find out if any
interests have been registered against the lease. All current registered interests have been
brought forward onto the digital title as part of the conversion and back capture of paper titles
(see paragraph 1.3.14).
2.8.2
Options to Renew a Lease
A lessee’s right arising from an option or series of options to renew the lease are protected by
registration. Any further instruments lodged on the lessors title after the expiry of the initial term,
but within the period of an option, must either show the lease as an encumbrance or provide
evidence that the options were not exercised. Conveyancers searching a lease to ascertain
whether it has expired should also consider the effect of s.13 of the Commercial Tenancy
(Retail Shop) Agreements Act 1985.
The best evidence would be a statutory declaration by the lessee that the option was not
exercised, and that neither the lessee or any transferees or assignees of the lessee are in
possession of the premises. A declaration in similar terms by the lessor but including details of
the lack of availability of the lessee to make the declaration previously referred to will be
considered on its merits.
Registration will only protect options to renew the lease of the original premises, and options to
extend the lease to additional premises are better protected by caveat (as to the area of the
extension).
Prior to 1991 the endorsement of the lease on a certificate of title only showed the initial term of
the lease, and the existence and details of options to renew the lease could only be ascertained
by searching the original document. From September 1991 this practice was changed to
endorse the commencement date of the initial term, and if the lease contains options for
renewal the endorsement contains the words:
“....... together with an option for renewal”......
In the case or a digital title, the endorsement will only contain the proprietorship of the lease.
2.8.3
Option to Purchase
A lease may contain a provision granting the lessee the right in certain circumstances to
purchase the fee simple of the leased premises from the lessor. The registration of that lease
does not protect the lessee, although the lodgement of a caveat claiming an interest based on
the option to purchase supported by the lease would.
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2.8.4
Narrative Description of Buildings
A lease of part of a building may have a land description defined by sketch, or by words
referring to permanent walls. Care should be taken that in referring to parts of a building that
any areas outside the building also included in the lease (such as parking or storage areas) are
not forgotten.
For example, a lease with a land description panel reading:
“The first floor of the CSA Centre, erected upon Lot 16 on Plan 13455, the whole of
the land in Certificate of Title Volume 99 Folio 100”
can be registered without requiring a sketch showing the measurements of the leased area, of
the building in relation to the boundaries of the land parcel (Lot 16).
2.8.5
Covenants by the Lessee
Section 92 of the TLA sets out implied covenants which apply, whether written into the lease or
not, unless expressly negatived. Briefly, these are:
•
to pay the rent and rates and taxes
and
•
2.8.6
to keep the property in good repair and yield up the property on termination of the lease.
Powers of the Lessor
Section 93 of the TLA sets out implied powers of the lessor. Briefly, these are:
•
to inspect the leased premises at reasonable times
and
•
2.8.7
where the rent is in arrears for one month, to re-enter upon the premises and take
possession thereof.
Short Form of Covenants
Section 94 of the TLA provides for the use of short forms of covenants in the drafting of any
lease. The Twelfth Schedule to the TLA sets out the short and long forms of covenants.
Where the short form of covenant is used the lease is construed as if the long form of covenant
had been used. Exceptions and qualifications may be added to the short form of covenant with
a similar effect on the long form of covenant.
2.8.8
Memorandum of Common Provisions
A Memorandum of Common Provisions, containing the covenants and contractual obligations of
the parties to the lease may be lodged at Landgate in the same manner as a Memorandum of
Common Provisions of a Mortgage (see paragraph 2.6.1).
2.8.9
Transfer of Lease
See paragraph 2.4.4.
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2.8.10
Surrender of Lease
There is a printed Form S1 Surrender of a Lease for the surrender of a lease of freehold land
(see LTRPM Form Examples- Example 21) and a Form S3 Surrender of Lease for the surrender
of Crown land. The surrender may only be registered when the lease is free from
encumbrances, however encumbrances against the land continue. The lessee’s copy of the
lease must be produced for a surrender of a lease of Crown land, however, the lessee’s copy is
not necessary for a surrender of a fee simple lease. It is not necessary to produce the duplicate
certificate of title (if any).
If the lessee’s copy of the lease of Crown land has been lost or destroyed, a statutory
declaration in a similar format to that shown in paragraph 3.10.2 for lost duplicate certificates of
title must be lodged with the Surrender. Additional Registration fees for non-production of the
lessee’s copy of the lease and for advertising under s.74 of the TLA will be incurred.
Alternatively, the lessee’s copy of the lease of Crown land may be produced, endorsed with the
word SURRENDERED, together with the date and properly attested signatures of the lessee
and lessor. This will be accepted as a surrender of the lease in lieu of the printed form specified
above.
Where the lease to be surrendered is followed by a concurrent lease, the surrender must be
made between the lessee and the concurrent lessee.
2.8.11
Recovery of Possession by Lessor (Section 96)
Where the lessor has recovered possession of the leased land from the lessee by Court order
application may be made to the Commissioner to have the lease determined. Upon satisfactory
proof the Commissioner may direct that an entry be made on the Register determining the
lease.
The application is made on a Form A5, with the Court Order as evidence supported by a
statutory declaration reciting the facts and explaining any differences in the details of the lease
shown on the title and the details shown in the Order.
2.8.12
Re-Entry by Lessor or Sub-Lessor (Section 104)
Where it can be proved to the satisfaction of the Commissioner that the lessor or sub-lessor has
re-entered into possession of the leased premises in strict conformity with the provisions of reentry contained in the lease or sub-lease or that the lessee has abandoned the leased premises
and the lease and the lessor has re-entered undisturbed, the Commissioner may direct the
Registrar:
•
in the case of a lease, to make an entry on the certificate of title for the land the subject of
the lease
•
in the case of a sub-lease of land that is the subject of a digital title, to make an entry on
that certificate of title
or
•
in the case of a sub-lease of land that is the subject of a paper title, to make an entry on
the sub-lease.
The application is made on a Form A5, with supporting evidence such as notices introduced by
a statutory declaration setting out the circumstances of the re-entry.
The documents in the preceding two paragraphs are Applications but as they are exclusive to
Leases they are included in this chapter.
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2.8.13
Merger of Lease
Where the lessee of freehold land purchases the fee simple of the land being leased, it is office
practice not to effect a merger unless requested. The request to merge should be endorsed on
the transfer to the lessee and signed by the lessee or the lessee’s agent. Suitable words for the
request are:
“The transferee requests that Lease F987654 be merged and extinguished in the
fee simple on this transfer. A memorandum to that effect is endorsed both on the
certificate of title and the lease.”
The lessee’s copy of a lease is not required to be produced with the transfer dealing with
freehold land, but must be produced with the transfer dealing with crown land.
The merger may not be effected while the lease is encumbered or subject to a caveat. The
encumbrance or caveat must be removed.
2.8.14
Sub-Lease
A lease of a lease (sub-lease) may be registered and there is a printed Form L2 for a sub-lease
of freehold land and a Form L2C for a sub-lease of a lease of Crown. The sub-lease may be for
any part, not less than three years for a sub-lease of a lease of freehold land and not less than
12 months for a sub-lease of a lease of Crown land, or all of the term of the lease less one day.
A sub-lease for the whole period of the lease would operate as a transfer of the lease and for
that reason is unacceptable as a sub-lease.
Any consents required by the terms of the lease must be endorsed on the sub-lease. For
transactions over Crown land, s.18 of the LAA consent of the Minister for Lands is also required
unless the Crown land is vested for purposes of another Act (see paragraph 12.1.7).
In general, encumbrances registered against the title of the lessor do not prevent dealings by
the lessee. Encumbrances lodged against the lease must either be removed or shown as
encumbrances on the sub-lease form.
The lessee’s copy of a lease of Crown land must be produced with a sub-lease of the lease.
The lessees copy is capable of being deposited as a security and its production ensures that
the rights of all interested parties are protected. The lessee’s copy of a lease is not required to
be produced with a sub-lease of a freehold lease.
A sub-lease lodged after an existing mortgage on the head lease should include consent of the
mortgagee to prevent any removal of the sub-lease on any default of the mortgage. A sub-lease
lodged before any new mortgage on the head lease is not wiped on any default of that
mortgage. Consent by the sub-lessee is not required for any mortgage or caveat by the sublessor unless it is expressed in the sub-lease.
A sub-lease may include variations of the lease, however, any variations included cannot alter
the lease area or the term of the lease.
A duplicate copy of a sub-lease may be lodged for registration along with the original.
In the case of a sub-lease of land which is the subject of a paper title, the memorandum of the
sub-lease is endorsed on the original registered lease. It is not shown on the relevant certificate
of title.
In the case of a sub-lease of land which is the subject of a digital title, the memorandum of the
sub-lease is endorsed on the relevant certificate of title. It is not shown on the original registered
lease.
It is desirable but not essential that the duplicate title (if any) be produced when a Sub-Lease is
registered.
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2.8.15
Concurrent Leases
After a lease has been granted, another lease for the same land or building may be granted, for
a term beginning before the expiration of the first lease. The second lease, known as a
concurrent lease, may end either before or after the first lease. For example, the owner of a
shopping centre may lease out several or all of the shopping units in the centre for a variety of
terms, then lease again the whole centre to another party.
To create a valid, registrable concurrent lease the conveyancer must:
•
specify that the lease is a concurrent lease, and that it has been granted subject to the
existing leases
•
ensue that the concurrent lessee is a different person or corporation from the prior
lessee(s) (if the concurrent lessee is also a prior lessee, the prior lease must be
surrendered)
•
specify a term that must commence within the term(s) of the lease(s) already lodged, and
may extend beyond the expiry date of the earlier lease(s)
and
•
show the existing lease(s) as an encumbrance.
A concurrent lease may be mortgaged, and the terms of the lease (if any) or the terms of the
prior leases will set out the nature of any consents required before the lessee can do so.
2.8.16
Extension of Lease
The term of a registered lease may be extended by the registration of an extension of lease
using printed Form E2 Extension of Lease adapted for the purpose (see LTRPM Form
Examples- Example 18). The Form E2 can be used for an extension of lease of freehold or
Crown land. The lessee’s copy of a lease of Crown land must be produced, however, for an
extension of a freehold lease, the lessee’s copy of a lease is not required. The duplicate
freehold title (if any) must be produced with an extension of freehold lease. As the extension is
an instrument, encumbrances affecting the leased land recorded after the lease must be shown
on the form, and the consents (if any) required by the terms of the lease obtained.
For transactions over Crown land, s.18 of the LAA consent of the Minister is also required
unless the Crown land is vested for purposes of another Act (see paragraph 12.1.7).
An extension of lease may include variations of the lease, however, any variations cannot alter
the leased area.
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2.8.17
Variation of Lease
A Form V3 Variation Lease is to be used for a variation of a lease of Crown land. This form can
be downloaded from Landgate’s corporate website at Quick Links/ Forms and Fees/ Crown
Land Registration Forms. A variation of lease cannot alter the leased area or the term of the
lease.
The lessee’s copy of a lease of Crown land must be produced with a variation of lease.
Where the term of a lease is to be increased, an extension of lease form should be used. Where
the parties are to be varied, a transfer of lease form should be used. An extension or transfer of
lease form can include variations to the lease. Where the area of the leased premises is to be
varied, a surrender of lease form should be used where the leased premises are being
decreased and a new lease granting the additional area of land is to be prepared where the
leased premises are being increased.

Note:
A variation document of a freehold lease cannot be accepted for registration, however,
variations to a freehold lease can be included in an extension of lease, sub-lease or transfer of
lease document.
2.8.18
Removal of Expired Term Lease of Crown Land
There is no legislative means to deal with the administrative need to remove Crown leases that
have expired from the nominal index database or digital Crown register. If the information
relating to an expired Crown lease is not removed from the database or register, incorrect
information for searching purposes will be shown in the database and on the register.
Since the proclamation of the LAA, Landgate commenced the collection of Crown lessee details
on its nominal index database to enable the searching of registered leases (granted by both the
State of Western Australia and management bodies/agencies) over Crown land. The
information in the nominal index database and digital Crown register is document driven and as
such requires both a document to enter information and to remove it.
To overcome this problem, a procedure was developed that enables the use of an existing
power of the Commissioner for Titles under s.184 of the TLA (to remove certain encumbrances
from the register that have ceased to affect the title). Under s.184 of the TLA, the Commissioner
must be satisfied that any rights or interests notified as an encumbrance on the certificate of title
have been fully satisfied, extinguished or otherwise determined and no longer affect the land.
Where a lease granted over Crown land has expired, the management body (lessor) or sub
lessor for a sub-lease, must apply to the Commissioner for Titles to remove the expired lease.
This is done by lodging a Removal of Expired Term Lease document Form E3 Removal of
Expired Lease completed by the management body.
Lessors must be aware that no registered interests or encumbrances relating to an expired
Crown lease can be carried forward to a new lease. If any registered interest or encumbrance
holder continues to have a valid claim against the leasehold interest, with the agreement of the
lessor, the lessor should arrange for a new interest or encumbrance to be prepared and
registered against the new lease.
The Removal of Expired Term Lease document is usually accompanied by a statutory
declaration that clarifies the current status of the land, confirms that the term of the lease has
expired and advises that any persons with interests or encumbrances affecting the leasehold
interest endorsed against the land are aware that their interest or security in the leasehold
interest has ceased to exist.
A number of alternative scenarios in relation to the removal of expired Crown leases from the
Register are provided below.
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When a Removal of Expired Term Lease document is lodged:
1.
simultaneously with a new Lease to the same lessee and no encumbrances exists,
then no further evidence is required.
2.
separately and a new Lease to the same lessee is to be lodged later and no
encumbrances exists, then a Declaration in support is required from the lessor stating
that the lessee is:
•
still in occupation of the land
•
aware and has been advised that the lease has expired and a new lease is
currently being negotiated with the lessee,
and
•
3.
free of encumbrances or interests (see LTRPM Form Examples- Example 26).
where the Lease is subject to encumbrances or interests (mortgage, caveat or other
interest):
•
The lessor must give the interest holder 21 days’ notice that the Commissioner is
to be requested to remove the expired leasehold interest from the Register.
and
4.
5.
•
Upon removal, any encumbrance or interests against the lease will be removed as
well (see LTRPM Form Examples- Example 27).
•
A Declaration in support is required from lessor stating who is in occupation of the
land, the lessee is aware and has been advised that the lease has expired and a
new lease is currently being negotiated with the lessee or that the lessee no longer
has a leasehold interest, the encumbrances or interests that are against the lease,
details of the notices sent including whom and what date, and what replies, if any,
to the notices have been (see LTRPM Form Examples- Example 28).
•
A copy of all notices and any replies must be attached to the declaration.
•
The Commissioner requires some form of acknowledgement from a mortgagee or
caveator as to their awareness that their interest ceases to exist, whether they
agree with the removal of the expired lease and whether their interest is intended
to be renewed against a new replacement lease lodged simultaneously with the
removal of the expired lease.
and a former lessee no longer occupies the land:
•
A Declaration in support is required from lessor stating lessee is no longer in
occupation of the land and has no ongoing tenancy arrangement, and the lessor is
no longer collecting rent from the lessee.
•
Where encumbrances exist the same notice provisions and additional declaration
statements as above apply.
and a lessee option to renew is not exercised the standard requirements as above
apply as if the lease has expired.
Copies of any evidence that the lessee has not exercised their option to renew are to be
attached to the declaration. This may include evidence of a new tenant in occupation of
the premises.
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6.
2.8.19
where the Lease includes a termination of lease upon death clause proof of death of
the lessee is required by either certified copy of the death certificate or probate being
produced.
•
A Declaration of identity is required and should state the land, lease, lessee, date
of death and that the person shown on the death certificate is one and the same as
the lessee.
•
Where encumbrances exist the same notice provisions and additional declaration
statements as above apply.
•
There is no document registration fee payable for the lodgement of a Removal of
Expired Term Lease document.
Forfeiture of Lease of Crown Land
Where a lessee of a lease of Crown land created by the State of Western Australia is in breach
of the lease conditions, the Minister must give the lessee notice of the nature of that breach if it
is intended to forfeit the lease. On expiration of the appeals period or on determination of any
appeals the Minister may lodge a Forfeiture Order to forfeit the lease.
The Forfeiture Order removes the lease from the register, however, may allow an existing sub
lease or caveat to continue despite the forfeiture of the lease. Production of the duplicate lease
is not compulsory.
Where a mortgage of the lease or where an existing sub-lease has not been identified to
continue, the Registrar of Titles pursuant to s.81F of the TLA will delay the registration of the
forfeiture order until notice of the proposed forfeiture has been given to the mortgagee and/or
sub-lessee of the land. The mortgagee or sub-lessee then has the option to complete the
outstanding requirements and/or pay the outstanding rent, to preserve the lease as a security,
and apply to the Minister to waive the forfeiture.
2.8.20
Pastoral Leases
Pastoral leases under the Land Act 1933 and the LAA generally have a fifty year term and
cannot be converted to freehold.
All current pastoral leases under the Land Act 1933 will expire in the year 2015. Pastoral
lessees of LAA leases are able to apply for a renewal of their pastoral lease during the period
12 months before the date 10 years before the expiry of a pastoral lease.
Temporary Care, Control and Management of Pastoral Lease
If the Pastoral Lands Board is of the opinion that a pastoral lease has been abandoned, or
otherwise left without proper care, control and management, it may recommend to the Minister
that the Board be authorised to assume temporary care, control and management of the lease.
Where a Temporary Care, Control and Management Authorisation document is registered
against the lease it takes priority over all other charges against the lease. The Pastoral Lands
Board consent is required for any further encumbrances against the lease and the Authorisation
document must be removed prior to any Transfer or Surrender of the lease.
The Authorisation document does not remain on the Crown title upon forfeiture or expiration of
the lease.
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2.8.21
Removal of Expired Freehold Lease
An expired Lease of freehold land can be removed by Surrender of Lease, (see paragraph
2.8.10 and Form S1) or the registered proprietor/lessor of the land in a title can apply on Form
A5 Application, for the removal of the expired Lease on the grounds that the term of the lease,
any extensions and/or options to renew have expired. The application should be supported by a
statutory declaration made by the proprietor/lessor that:
•
recites his or her ownership of the relevant land;
•
quotes the lease registration number;
•
refers to the term of the Lease by reference to the details or clauses in it, and thus the
expiration of that term;
•
refers to any provisions in it for its extension, and whether it was so extended;
•
refers to the expiration of any such extension and negates any other form of condition of
the Lease; and
•
requests the removal of the Lease as an encumbrance on the title.
The duplicate certificate title (if any) is required to be produced where an application is made
under s.184 of the TLA.
For Removal of Expired Term Lease of Crown Land see paragraph 2.8.18.
Lessors must be aware that no registered interests or encumbrances relating to an expired
lease can be carried forward to a new lease. If any registered interest or encumbrance holder
continues to have a valid claim against the leasehold interest, with the agreement of the lessor,
the lessor should arrange for a new interest or encumbrance to be prepared and registered
against the new lease.
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2.9
Profits a’ Prendre
2.9.1
General
A profit a’ prendre is a profit sharing arrangement whereby a registered proprietor of land allows
another person to take naturally occurring produce or part of the soil from the land in return for a
share of the profits from such produce or soil. Naturally occurring produce does not include
crops produced by human labour or manufactured produce.
The TLA does not specifically allow for the registration of profits a’ prendre over freehold land
and so they have not, as a general rule, been accepted for registration. However, profits a’
prendre lodged under s.34B of the Conservation and Land Management Act 1984 and under
s.52 of the Forest Products Act 2000 will be accepted for registration (see paragraph 2.9.2 and
paragraph 2.9.3 below).
Section 81R of the TLA allows for the registration of profits a’ prendre granted under s.91(1) of
the LAA in respect of Crown land (see paragraph 2.9.5).
2.9.2
Profits a’ Prendre under the Conservation and Land Management
Act 1984
Section 34B of the Conservation and Land Management Act 1984 (the Act) gives the CEO of
the Department of Parks and Wildlife (DPaW) the power to enter into a timber share farming
agreement in respect of any land with the owner of that land.
A timber share farming agreement under the Act is an agreement by which the right to
establish, maintain and harvest, or the right to maintain and harvest, or the right to harvest, a
crop of trees on land is acquired by:
•
the CEO of DPaW
•
another person through the CEO of DPaW acting as an agent
or
•
the CEO of DPaW and by another person through the CEO of DPaW acting as an
agent.
The timber share farming agreement provides for rights, obligations and powers relating to:
•
payment of money or the giving of other consideration by, or the division of the
crop or the proceeds of the crop between, the parties to the agreement
•
access to the land and, where appropriate, the undertaking of work or the provision
of facilities thereon by those parties
and
•
other matters.
The CEO of DPaW cannot enter into a timber share farming agreement with the lessee or
licensee of any land unless the registered proprietor of the land, and any person occupying the
land with the consent of the registered proprietor, has given approval in writing to the
agreement.
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A timber share farming agreement is not a lease or licence to which s.136 of the P&D Act
applies therefore the consent of the Western Australian Planning Commission is not required.
A timber share farming agreement may be registered under the TLA as a profit a’ Prendre
and it is assignable (transferable).

Note:
Pursuant to clause 51 of the Conservation and Land Management Amendment Act 2000, the
rights, obligations or powers held by CEO of DPaW with regard to profits a’ prendre have been
transferred to the Forest Products Commission.
For profits a’ prendre lodged under the Forrest Products Act 2000, see paragraph 2.9.3 below.
2.9.3
Profits a’ Prendre under the Forest Products Act 2000
Section 52 of the Forest Products Act 2000 (the Act) gives the Forest Products Commission
(FPC ) the power to enter into a timber share farming agreement in respect of any land with the
owner of that land.
A timber share farming agreement under the Act is an agreement by which the right to
establish, maintain and harvest, or the right to maintain and harvest, or the right to harvest, a
crop of trees on land is acquired by:
•
the FPC
•
another person through the FPC acting as an agent
or
•
the FPC and by another person through the FPC acting as an agent.
The timber share farming agreement provides for rights, obligations and powers relating to:
•
payment of money or the giving of other consideration by, or the division of the crop or
the proceeds of the crop between, the parties to the agreement
•
access to the land and, where appropriate, the undertaking of work or the provision of
facilities thereon by those parties
and
•
other matters.
The FPC cannot enter into a timber share farming agreement with the lessee or licensee of
any land unless the registered proprietor of the land, and any person occupying the land with
the consent of the registered proprietor, has given approval in writing to the agreement.
A timber share farming agreement is not a lease or licence to which s.136 of the P&D Act
applies therefore the consent of the Western Australian Planning Commission is not required.
A timber share farming agreement may be registered under the TLA as a profit a’ prendre
and it is assignable (transferable).
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2.9.3.1
Lodgement
Profits a’ Prendre may be lodged at Landgate on payment of the prescribed fee (see
Registration fees). The duplicate certificate of title (if any) must be produced before a profits a’
prendre can be registered. If the land being burdened by the profit a’ prendre cannot be
satisfactorily described in writing an Interest Only Deposited Plan must be prepared by a
licensed surveyor and lodged at Landgate.
If the grantee of a profit a’ prendre is the FPC, the document is drawn in the name of the
grantee and executed by the grantee under common seal.
If the grantee of a profit a’ prendre is a person or organisation acting through the FPC as its
agent, the document is drawn in the name of the grantee but is executed by the FPC as their
attorney.

Note:
A current Power of Attorney should be deposited between the FPC and the grantee.
2.9.3.2
Effect as an encumbrance
A profit a’ prendre registered under the TLA will run with the land and will not be removed on
exercise of a mortgagees power of sale provided the mortgagees consent is endorsed thereon.
Profits a’ prendre are considered to be interests in land and therefore transfers, mortgages,
surrenders, caveats and warrants etc. may be lodged in respect of such profits a’ prendre.

Note:
Most timber share farming agreements registered as a profit a’ prendre contain a clause
preventing the registered proprietor from selling, leasing, mortgaging or otherwise encumbering
the land without the written consent of the grantee.
2.9.4
Transfer of Profits a’ Prendre under the Conservation and Land
Management Act 1984 and the Forest Products Act 2000
A profit a’ prendre can be assigned (transferred) to another person or organisation without the
necessity for the Forests Products Commission to act as an agent.
Transfers of profits a’ prendre are to be prepared using a Form T6 Transfer of Profit a Prendre
and may be lodged at Landgate on payment of the prescribed fee. They will be endorsed on the
relevant title.
Before it is lodged, it must be stamped at the Office of State Revenue (Stamp Duties Division).
The duplicate (grantees copy) of the profit a’ prendre (if any) must be produced with the
transfer.

Note:
This requirement would only apply to profits a’ prendre lodged before 13th January 1997. From
this date no duplicate profits a’ prendre have been accepted for registration.
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2.9.5
Surrender of Profits a’ Prendre under the Conservation and Land
Management Act 1984 and the Forest Products Act 2000
Before the expiry of its term, a profit a’ prendre can be surrendered by the grantee.
If the grantee is the CEO of DPaW (see paragraph 2.9.2) the profit a’ prendre is now
surrendered by the Forest Products Commission pursuant to the transitional provisions of the
Conservation and Land Management Amendment Act 2000.
The Forest Products Commission has created a Surrender of Profit a’ Prendre form to be
lodged at Landgate to effect the surrender. Alternatively the surrender could be prepared on a
Form B2 Blank Instrument Form in a manner similar to a surrender of easement (see paragraph
7.2.1) or by using a Surrender Form S1, modified by substituting the references to a lease to a
Profit a’ Prendre.
Surrender of a Profit a’ Prendre as to part of a lot is required to be supported by a new Interest
Only Deposited Plan prepared by a licensed surveyor.
Before the surrender is lodged, it must be stamped at the Office of State Revenue (Stamp
Duties Division).
Registration fees are payable upon lodgement of the surrender at Landgate.
The duplicate copy of the Profit a’ Prendre (if any) should be produced, as it can be used as an
instrument of security. If it cannot be located, the registered proprietor should provide a
statutory declaration (similar to that needed to support an application to replace a lost title (see
paragraph 3.10.2) negating its deposit as a security. It is preferable, but not essential, that the
duplicate title is produced.

Note:
This requirement would only apply to profits a’ prendre lodged before 13th January 1997. From
this date no duplicate profits a’ prendre have been accepted for registration.
Where the term in the Profits a’ Prendre has been extended by the lodgement of a caveat and
that term is still current, the Profit a’ Prendre may be surrendered in the manner set out above,
with the additional requirement that any caveat lodged to protect the extension should be
withdrawn at the same time.
Where the term in the Profits a’ Prendre (including any extensions by the lodgement of a
caveat) has expired and a dealing has been lodged for registration, a surrender cannot be
lodged because the term in the Profits a’ Prendre is not still running.
Under the new digital title registration system, the registration of any dealing should trigger a
review of the encumbrances, including a Profit a’ Prendre, and the removal of any expired
interests by Sundry Document type AE. But any caveat lodged to protect an extension of a
Profit a’ Prendre would not be removed by this process. A separate Withdrawal of Caveat form
would need to be lodged at Landgate in this situation.
However if a withdrawal of such a caveat were lodged at Landgate on its own and the term of
the Profit a’ Prendre had expired, then the Profit a’ Prendre would also need to be removed
from the certificate of title. The withdrawal of caveat should have filed with it a letter from the
grantee (Caveator) to the Registrar of Titles requesting the removal of the Profit a’ Prendre on
the grounds of the expiry of both the original term and the extension.
It should be noted however that in this situation the Profit a’ Prendre would only be removed
from the original certificate of title. The duplicate certificate of title (if any) would be updated
when it is next produced to Landgate for a dealing or specifically for that purpose.
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Removal under s.184 of the TLA where the term in the Profits a’ Prendre has expired (no
dealing has been lodged for registration).
The registered proprietor of the land in a title can apply on Form A5 Application, for the removal
of a Profit a’ Prendre on the grounds that it has expired. The application should be supported by
a statutory declaration made by the proprietor that:
•
Recites his or hers ownership of the relevant land.
•
Quotes the Profit a’ Prendre registration number.
•
Refers to the term of the Profit a’ Prendre by reference to the details or clauses in it, and
thus the expiration of that term.
•
Refers to any provisions in it for its extension, and whether it was so extended.
•
Refers to the expiration of any such extension and negates any other form of condition of
the Profit a’ Prendre (eg. as a result of a relevant management plan created under Part V
of the Conservation and Land Management Act 1984).
and
•
Requests the removal of the Profit a’ Prendre as an encumbrance on the title.
A letter from the Forests Product Commission, as assignees in law of the benefit of the Profit a’
Prendre, confirming its expiration would assist the applicant in establishing his or hers claim to
have it removed.
The duplicate certificate title (if any) is required to be produced where an application is made
under s.184 of the TLA.
2.9.6
Profits a’ Prendre Under the LAA in Respect of Crown Land
Section 81R of the TLA permits the Registrar of Titles to register on a certificate of Crown land
title or qualified certificate of Crown land title, a profit a’ prendre granted by the Minister for
Lands ( the Minister ) under s.91(1) of the LAA in respect of Crown land.
With regard to profits a’ prendre, the Minister may:
•
grant a profit a’ prendre for any purpose
•
fix or extend the duration of them
•
determine fees and conditions in respect of them
•
review them
or
•
with the consent of the grantee, amend the provisions of them.
Under certain circumstances it is possible for the co-existence, on the same area of Crown land,
of a profit a’ prendre and a mining or petroleum right (see s.91 (5) of the LAA).
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2.9.6.1
Preparation of the Document
When approval is given, the Deed of Grant of a Profit a’ Prendre ( the Deed ) will be prepared
by the Department of Lands upon payment of a prescribed fee. The Deed will then be forwarded
to the client (the grantee) for signing and the payment of stamp duty at the Office of State
Revenue (Stamp Duties Division). When the Deed is returned to the Department of Lands it will
be signed on behalf of the Minister (as the grantor).
2.9.6.2
Lodgement
Upon payment of the prescribed fee, the Department of Lands will lodge the Deed at the
Document Acceptance counter, where it will be allocated a document number, receive a
registration date and time and then processed for registration.
2.9.6.3
After Registration
While a profit a’ prendre is shown as an encumbrance on a certificate of Crown land title or
qualified certificate of Crown land title, the Registrar of Titles may accept for registration a deed
to amend, extend or surrender the profit a’ prendre.
Where a certificate of title is created and registered in respect of Crown land that is encumbered
by a profit a’ prendre, the profit a’ prendre continues until it is surrendered or it expires.
The grantee(s) of a profit a’ prendre is not permitted to assign (transfer) their interest to a third
party.
The grantee(s) of a profit a’ prendre may surrender it as to the whole or any part of it.
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2.10
Carbon Rights
2.10.1
General
The establishment of Greenhouse gas targets (as contemplated under the Kyoto Protocol) are
complemented by the establishment of, and trade in, carbon credits.
A carbon right is the right to the benefits and risks arising from carbon sequestration and
release on a specified parcel of land.

Note:
Carbon sequestration in this instance means the absorption from the atmosphere of carbon
dioxide by vegetation and soils and the storage of carbon dioxide in vegetation and soils.
Carbon release can occur where vegetation is cleared or soil is cultivated.
2.10.2
Carbon Rights Act 2003
The Carbon Rights Act 2003 establishes a statutory basis for the ownership and protection of
carbon rights. It enables a carbon right to be registered on the certificate of title to land. A
carbon right can apply to either freehold or Crown land and will remain on the title until such
time as it is surrendered.
Once a carbon right has been registered on title, those rights exist at law and have the benefit
of priority and indefeasibility under the TLA.

Note:
Even though the existence of these rights is guaranteed, their value is not and the State has no
involvement in determining their value. Their value will be determined by the market, in the
same way that the values of other interests in land are determined under the TLA.
The creation of carbon rights will provide:
•
legal certainty as to the nature of the right, which will value add to carbon rights and
increase use of the proposed international carbon accounting system
and
•
2.10.3
a reporting mechanism to Government for the amount of carbon sequestration on
affected land, for the purposes of national accounting by Australia in respect if its
obligations under the Kyoto Protocol.
Creation of a Carbon Right
A carbon right interest in land is created when a carbon right, in a form approved by the
Registrar of Titles, is registered under the TLA in favour of a legal entity. A Form CR1 Carbon
Right has been created for this purpose.
A carbon right interest in land may be created by the registered proprietor of:
•
land
•
a lessees interest in freehold or Crown land
•
a grantees interest in a Profit a’ Prendre under the LAA
•
a grantees interest in a Timber Share-farming Agreement under the CALM Act
or
•
Crown land.
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It is not essential that a carbon right interest in land relates to a plantation of trees, it may relate
to grazing or agricultural land etc.

Note:
The proprietor of a carbon right does not have ownership of the carbon in or on the land.
2.10.4
Registration of a Carbon Right
2.10.4.1
Lodging the CR1
To create a carbon right, a Form CR1, must be lodged for registration at Landgate upon
payment of the prescribed registration fee.
No stamp duty is payable on the creation of a carbon right, but any subsequent transfers or
other dealing will be subject to stamp duty in the normal way.
A carbon right must specify a term, which may be in perpetuity.
The duplicate title (if any) must be produced with the document.

Note:
It is possible for the holder of a carbon right to lodge a caveat prior to its registration
2.10.4.2
Creating a Deposited Plan - if required
If the land the subject of the carbon right is only part of the land contained in the certificate of
title, a Deposited Plan having as the purpose Interest Only may need to be prepared and
lodged by a licensed surveyor. There is a need to accurately define the area of land affected as
only one carbon right can be registered over any particular piece of land. Carbon rights cannot
overlap each other.
2.10.4.3
Consents
A carbon right will not be registered unless it has the written consent of all persons who have a
registered interest in the land in respect of which the carbon right is created.

Note:
If a carbon right is in respect of Crown land, it shall not be registered unless there is compliance
with s.18 of the LAA.
2.10.4.4
Additional comments
A Carbon right will be endorsed in the second schedule of the title as a SMR Primary Interest
in the land.
A carbon right is a registered interest in land. It can be dealt with in ways similar to other
interests in land. It can be extended (see paragraph 2.10.5), transferred (see paragraph 2.10.6),
mortgaged (see paragraph 2.10.7) or surrendered (see paragraph 2.10.8). It can also be
devised under a Will and be the subject of a Property (Seizure and Sale) Order. However, it
cannot be varied once registered.
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2.10.5
Extension of a Carbon Right
2.10.5.1
Registering an extension
A carbon right may be extended by the registration of a Form E4 Extension of Carbon Right
upon payment of the prescribed registration fee. This can be downloaded from the Landgate
website in Quick Links/ Forms and Fees/ Freehold Land Registration Forms.
The duplicate title (if any) must be produced with the extension.
2.10.5.2
Consents
An extension of a carbon right will not be registered unless it has the written consent of each
person who has a registered interest in:
•
the affected land
and
•

the carbon right.
Note:
If a carbon right is in respect of Crown land, an extension of the carbon right shall not be
registered unless there is compliance with s.18 of the LAA.
2.10.6
Transfer of a Carbon Right
A carbon right may be transferred by the registration of a Form T11 Transfer of Carbon Right
upon payment of the prescribed registration fee. This can be downloaded from the Landgate
website in Quick Links/ Forms and Fees/ Freehold Land Registration Forms.

Note:
A carbon right can only be transferred in relation to the whole of the area of the affected land.
The duplicate title (if any) does not need to be produced with the transfer.
If the proprietor of the carbon right is also the proprietor of a carbon covenant entered into in
relation to that carbon right, a transfer of the carbon right shall not be registered unless it is
accompanied by a transfer of the proprietors interest in the carbon covenant. In other words the
proprietor of a carbon right must at all times be the proprietor of the relevant carbon covenant (if
any).
It is possible to transfer the proprietors’ interest in the carbon right and the carbon covenant in
the one document using a Form T12 Transfer of Carbon Right and Carbon Covenant. This can
be downloaded from the Landgate website in Quick Links/ Forms and Fees/ Freehold Land
Registration Forms.

Note:
If a carbon right is in respect of Crown land, a transfer of the carbon right shall not be registered
unless
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2.10.7
Mortgage of a Carbon Right
A carbon right interest in land can be mortgaged using the standard Form M1 Mortgage. This
can be downloaded from the Landgate website in Quick Links/ Forms and Fees/ Freehold Land
Registration Forms.
The mortgage must clearly identify in the Land Description panel the number and nature of the
interest being mortgaged. For example:
“As to Carbon Right J123456 over Lot 1 on Deposited Plan 45678.”
The duplicate title (if any) must be produced with the mortgage.

Note:
If a carbon right is in respect of Crown land, a mortgage of the carbon right shall not be
registered unless there is compliance with s.18 of the LAA.
2.10.8
Surrender of a Carbon Right
A carbon right may be wholly or partially surrendered by the registration of a Form S5 Surrender
of Carbon Right upon payment of the prescribed registration fee. This can be downloaded from
the Landgate website in Quick Links/ Forms and Fees/ Freehold Land Registration Forms.
The surrender will not be registered unless the following, if applicable, has occurred:
•
Each registered interest in the carbon right or part of the carbon right has been
discharged or surrendered.
•
Any carbon covenant that is registered in respect of the carbon right or part of the carbon
right has been surrendered.
and
•
Any caveat lodged in respect of the carbon right or part of the carbon right has been
withdrawn.
The duplicate title (if any) must be produced with the surrender.

Note:
If a carbon right is in respect of Crown land, a surrender of the carbon right shall not be
registered unless there is compliance with s.18 of the LAA.
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2.11
Carbon Covenants
2.11.1
General
A carbon covenant sets out the covenants (positive and negative) on which:
•
other interests in land can be exercised
or
•
land can be used.
Carbon covenants are the terms by which the carbon in the land is effectively protected for the
benefit of the proprietor (holder) of the carbon right (see paragraphs 2.10.1 to 2.10.4).
They are used as a control mechanism to ensure the continuation of the trees or other landbased resources underlying or providing the carbon sequestration (i.e. to maintain and protect
trees, not to diminish water supply, not to cut timber etc.).
The burden of the carbon covenants may affect adjoining landowners and /or proprietors of
other interests in land affected by a carbon right e.g. the registered proprietor of the land itself, a
lessee, mortgagees, grantee of a profit a’ prendre etc. who agree to give a carbon covenant in
favour of the holder of the carbon right).

Note:
It is possible to have a carbon right without a carbon covenant, but it is not possible to have a
carbon covenant without the creation of a carbon right.
2.11.2
Carbon Rights Act 2003
The Carbon Rights Act 2003 establishes a statutory basis for the creation of carbon covenants.
It enables a carbon covenant to be registered on the certificate of title to land. A carbon
covenant can apply to either freehold or Crown land and will remain on the title until such time
as it is surrendered.
2.11.3
Creation of a Carbon Covenant
A carbon covenant interest in land is created when a carbon covenant, in a form approved by
the Registrar of Titles, is registered under the TLA in favour of a legal entity. A Form CC1
Carbon Covenant has been created for this purpose and can be downloaded from the Landgate
website (www.landgate.wa.gov.au). From this home page, go to Quick Links/ Forms and Fees/
Freehold Land Registration Forms.
The proprietor of the carbon rights must at all times be the proprietor of the relevant carbon
covenant.
The proprietor of a carbon covenant may also be the person burdened by the covenants
A carbon covenant need not be given over the same land as the carbon right.
There can be multiple carbon covenants created with regard to a carbon right. For example, the
land owner might enter into one covenant with the holder of the carbon right and then later a
mortgagee of the land might also enter into a second covenant in favour of the holder of the
carbon right.
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2.11.4
Registration of a Carbon Covenant
2.11.4.1
Lodging the CC1
To create a carbon covenant, a Form CC1 Carbon Covenant must be lodged for registration at
Landgate upon payment of the prescribed registration fee.
No stamp duty is payable on the creation of a carbon covenant, but any subsequent transfers or
other dealing will be subject to stamp duty in the normal way.
The Form CC1 must specify the day on which the carbon covenant is to commence. This
cannot be before the relevant carbon right is created and it cannot be longer than the term of
the relevant carbon right.
The duplicate title (if any) must be produced with the document.

Note:
It is possible for the holder of a carbon covenant to lodge a caveat prior to its registration.
2.11.4.2
Creating a Deposited Plan- if required
If the land the subject of the carbon covenant (the burdened land) is only part of the land
contained in the certificate of title, a Deposited Plan having as the purpose Interest Only may
need to be prepared and lodged by a licensed surveyor.
2.11.4.3
Consents
A carbon covenant will not be registered unless it has the written consent of each person who
has a registered interest in:
•
the land to be burdened by the proposed carbon covenant
and
•

the relevant carbon right.
Note:
If a carbon covenant is in respect of Crown land, it shall not be registered unless there is
compliance with s.18 of the LAA.
2.11.4.4
Additional comments
A Carbon Covenant will be endorsed in the second schedule of the title as a SMR Subsidiary
Interest to the relevant carbon right.
A carbon covenant is a registered interest in land. It can be dealt with in ways similar to other
interests in land. It can be extended (see paragraph 2.11.5), varied (see paragraph 2.11.6)
transferred (see paragraph 2.11.7), mortgaged (see paragraph 2.11.8) or surrendered (see
paragraph 2.11.9). It can also be devised under a Will and be the subject of a Property (Seizure
and Sale) Order.
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2.11.5
Extension of a Carbon Covenant
2.11.5.1
Registering an Extension
A carbon covenant may be extended by the registration of a Form E5 Extension of Carbon
Covenant upon payment of the prescribed registration fee. This can be downloaded from the
Landgate website in Quick Links/ Forms and Fees/ Freehold Land Registration Forms.
The term of the extension cannot be longer than the term of the relevant carbon right.
An extension of a carbon covenant may be used to vary the provisions of the carbon covenant.
However it shall not be used to effect a change to:
•
the proprietors of the carbon covenant or the burdened land
or
•
the area of the burdened land to which the covenant applies.
The duplicate title (if any) must be produced with the extension.
2.11.5.2
Consents
An extension of a carbon covenant will not be registered unless it has the written consent of
each person who has a registered interest in:
•
the carbon covenant
•
the burdened land
and
•

the relevant carbon right.
Note:
If a carbon covenant is in respect of Crown land, an extension of the carbon covenant shall not
be registered unless there is compliance with s.18 of the LAA.
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2.11.6
Variation of a Carbon Covenant
2.11.6.1
Registering a Variation
The provisions of a carbon covenant may be varied by the registration of a Form V2 Variation of
Carbon Covenant upon payment of the prescribed registration fee. This can be downloaded
from the Landgate (www.landgate.wa.gov.au/corporate.nsf). From this home page, go to Quick
Links/ Forms and Fees/ Freehold Land Registration Forms.
A Variation of Carbon Covenant may be used to vary the provisions of the carbon covenant.
However it shall not be used to effect:
•
A change to the proprietors of the carbon covenant or the burdened land
•
A change to the area of the burdened land to which the covenant applies
or
•
2.11.6.2
An extension or other change to the term of the carbon covenant.
Consents
A variation of a carbon covenant will not be registered unless it has the written consent of each
person who has a registered interest in:
•
the carbon covenant
•
the burdened land
and
•

the relevant carbon right.
Note:
If a carbon covenant is in respect of Crown land, a variation of the carbon covenant shall not be
registered unless there is compliance with s.18 of the LAA.
2.11.7
Transfer of Benefits under a Carbon Covenant
A carbon covenant may be transferred by the registration of a Form T12 Transfer of Carbon
Right and Carbon Covenant upon payment of the prescribed registration fee. This can be
downloaded from the Landgate website in Quick Links/ Forms and Fees/ Freehold Land
Registration Forms.
A carbon right can only be transferred in relation to the whole of the area of the land in respect
of which the relevant carbon right is registered and in respect of which the covenant applies.
A transfer of a carbon covenant shall not be registered unless it is accompanied by a transfer of
the proprietor’s interest in the relevant carbon right. In other words the proprietor of a carbon
right must at all times be the proprietor of the relevant carbon covenant.
The duplicate title (if any) does not need to be produced with the transfer.

Note:
If a carbon right is in respect of Crown land, a transfer of the carbon covenant shall not be
registered unless there is compliance with section 18 of the LAA.
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2.11.8
Mortgage of a Carbon Covenant
A carbon covenant interest in land can be mortgaged using the standard Form M1 Mortgage.
A person shall not be a mortgagee of a carbon covenant unless the person is also the
mortgagee of the relevant carbon right.
The mortgage must clearly identify in the Land Description panel the number and nature of the
interest being mortgaged. For example:
As to Carbon Right J123456 and Carbon Covenant J345678 over Lot 1 on
Deposited Plan 45678.
The duplicate title (if any) must be produced with the mortgage.
If a carbon right is in respect of Crown land, a mortgage of the carbon covenant shall not be
registered unless there is compliance with s.18 of the LAA.
2.11.9
Surrender of a Carbon Covenant
A carbon covenant may be wholly or partially surrendered by the registration of a Form S6
Surrender of Carbon Covenant upon payment of the prescribed registration fee. This can be
downloaded from the Landgate website in Quick Links/ Forms and Fees/ Freehold Land
Registration Forms.
The surrender will not be registered unless the following, if applicable, has occurred:
•
Each registered interest in the carbon covenant or part of the carbon covenant has been
discharged or surrendered.
•
Any caveat lodged in respect of the carbon covenant or part of the carbon covenant has
been withdrawn.
The duplicate title (if any) must be produced with the surrender.

Note:
If a carbon covenant is in respect of Crown land, a surrender of the carbon covenant shall not
be registered unless there is compliance with s.18 of the LAA.
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2.12
Tree Plantation Agreements
2.12.1
General
A Tree Plantation Agreement is an agreement that allows a person to establish, maintain and /
or harvest a tree plantation. The proprietor of the plantation interest owns the trees separate
from the land.
This means that investors can enter into written agreements with landholders and be assured
that they have the right to plant, manage and harvest trees and their products with more
confidence. They can invest in tree planting on land, without the expense of also having to buy
the land, or worry about managing surrounding land.
A Tree Plantation Agreement fills the gap between Timber Share-farming Agreements under the
Conservation and Land Management Act 1984 and Profits a’ Prendre at common law.
2.12.2
Tree Plantation Agreements Act 2003
The Tree Plantation Agreements Act 2003 creates a statutory interest in land (a Plantation
Interest ) that is created by an agreement known as a Tree Plantation Agreement . It enables a
tree plantation agreement to be registered on the certificate of title to land.
The legislation provides a secure form of share-farming specifically for planted trees.
Agreements can apply both trees already in the ground or yet to be planted. It does not apply to
other vegetation such as native forests or bush.
2.12.3
Creation of a Plantation Interest
A plantation interest in land is created when a tree plantation agreement, in a form approved by
the Registrar of Titles, is registered under the TLA in favour of a legal entity who agrees to:
•
Establish a plantation
•
Maintain a plantation
or
•
Harvest products from a plantation.
A Form TP1 Tree Plantation Agreement has been created for this purpose and can be
downloaded from the Landgate website in Quick Links/ Forms and Fees/ Freehold Land
Registration Forms.
A plantation interest in land may be created in relation to:
•
freehold land
•
a lease of freehold land
or
•

a lease of Crown land.
Note:
A tree plantation agreement can give a right of exclusive possession.
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2.12.4
Registration of a Tree Plantation Agreement
2.12.4.1
Lodging a TP1
To create a plantation interest in land, a Form TP1 Tree Plantation Agreement must be lodged
for registration at Landgate upon payment of the prescribed registration fee.
No stamp duty is payable on the creation of a tree plantation agreement, but any subsequent
transfers or other dealing will be subject to stamp duty in the normal way.
A tree plantation agreement must state the term of the agreement and the day on which it
commences. The term must be limited (i.e. it cannot be in perpetuity).
The duplicate title (if any) must be produced with the document.

Note:
It is possible for the holder of a tree plantation agreement to lodge a caveat prior to its
registration.
2.12.4.2
Creating a Deposited Plan- if required
If the land the subject of the tree plantation agreement is only part of the land contained in the
certificate of title, a Deposited Plan having as the purpose Interest Only may need to be
prepared and lodged by a licensed surveyor.
2.12.4.3
Consents
A tree plantation agreement will not be registered unless it has the written consent of each
person who has a registered interest in the land the subject of the agreement. If the agreement
is entered into by a lessee of freehold land or Crown land, the written consent of each person
who has a registered interest in the land subject to the lease is required.

Note:
If the agreement is in respect of Crown land, it shall not be registered unless there is
compliance with s.18 of the LAA.
2.12.4.4
Additional comments
A tree plantation agreement will be endorsed in the second schedule of the title as a SMR
Primary Interest in the land. Where the plantation interest is over a lessee’s interest in freehold
or Crown land it will be shown as a SMR Subsidiary Interest in the land.
A plantation interest is a registered interest in land. It can be dealt with in ways similar to other
interests in land. It can be extended (see paragraph 2.12.5), varied (see paragraph 2.12.6)
transferred (see paragraph 2.12.7), mortgaged (see paragraph 2.12.8) or surrendered (see
paragraph 2.12.9). It can also be devised under a Will and be the subject of a Property (Seizure
and Sale) Order.
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2.12.5
Extension of a Plantation Interest
2.12.5.1
Registering an Extension
A plantation interest may be extended by the registration of an Form E6 Extension of Plantation
Interest upon payment of the prescribed registration fee. This can be downloaded from the
Landgate website in Quick Links/ Forms and Fees/ Freehold Land Registration Forms.
An extension of a plantation interest may be used to vary the provisions of the relevant tree
plantation agreement. However it shall not be used to effect a change to:
•
the proprietors of the plantation interest or the land the subject of the relevant agreement
or
•
the area of the land to which the plantation interest applies.
The duplicate title (if any) must be produced with the extension.
2.12.5.2
Consents
An extension of a plantation interest will not be registered unless it has the written consent of
each person who has a registered interest in the land the subject of the tree plantation
agreement. If the agreement is entered into by a lessee of freehold land or Crown land, the
written consent of:
•
each person who is a proprietor of the freehold land or Crown land that is the subject of
the lease
and
•

each person who has a registered interest in the land subject to the lease that was
registered subsequent to the registration of the relevant agreement is required.
Note:
If a tree plantation agreement is entered into by a lessee of Crown land, an extension of the
plantation interest shall not be registered unless there is compliance with s.18 of the LAA.
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2.12.6
Variation of a Tree Plantation Agreement
2.12.6.1
Registering a Variation
The provisions of a tree plantation agreement may be varied by the registration of a Form V1
Variation of Tree Plantation Agreement upon payment of the prescribed registration fee. This
can be downloaded from the Landgate website in Quick Links/ Forms and Fees/ Freehold Land
Registration Forms.
A Variation of Tree Plantation Agreement may be used to vary the provisions of the tree
plantation agreement. However it shall not be used to effect:
2.12.6.2
•
A change to the proprietors of a plantation interest or the relevant agreement land.
•
A change to the area of the agreement land to which the plantation interest applies.
•
An extension or other change to the term of a plantation interest.
Consents
A variation of a tree plantation agreement will not be registered unless it has the written consent
of each person who has:
•
a registered interest in the land the subject of the tree plantation agreement
and
•
a registered interest in the plantation interest that is the subject of the agreement.
If the agreement is entered into by a lessee of freehold land or Crown land, the written consent
of:
•
each person who is a proprietor of the freehold land or Crown land that is the subject of
the lease
and
•

each person who has a registered interest in the land subject to the lease that was
registered subsequent to the registration of the relevant agreement is required.
Note:
If a tree plantation agreement is entered into by a lessee of Crown land, a variation of the tree
plantation agreement shall not be registered unless there is compliance with s.18 of the LAA.
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2.12.7
Transfer of a Plantation Interest
A plantation interest may be transferred by the registration of a Form T10 Transfer of Plantation
Interest upon payment of the prescribed registration fee. This can be downloaded from the
Landgate website in Quick Links/ Forms and Fees/ Freehold Land Registration Forms.
A plantation interest can only be transferred in relation to the whole of the area of the land the
subject of a tree plantation agreement.
The duplicate title (if any) does not need to be produced with the transfer.
If a plantation interest is registered in respect of Crown land, a transfer of the plantation interest
shall not be registered unless there is compliance with s.18 of the LAA.
2.12.8
Mortgage of a Plantation Interest
A plantation interest in land can be mortgaged using the standard Form M1 Mortgage.
The mortgage must clearly identify in the Land Description panel the number and nature of the
interest being mortgaged. For example:
‘As to the plantation interest in J123456 over Lot 1 on Deposited Plan 45678.’
The duplicate title (if any) must be produced with the mortgage.
If a plantation interest is registered in respect of Crown land, a mortgage of the plantation
interest shall not be registered unless there is compliance with s.18 of the LAA.
2.12.9
Surrender of a Plantation Interest
A plantation interest may be wholly or partially surrendered by the registration of a Form S4
Surrender of Plantation Interest upon payment of the prescribed registration fee. This can be
downloaded from the Landgate website in Quick Links/ Forms and Fees/ Freehold Land
Registration Forms.
The surrender will not be registered unless the following, if applicable, has occurred:
•
each registered interest in the plantation interest or part of the plantation interest has
been discharged or surrendered
and
•
any caveat lodged in respect of the plantation interest or part of the plantation interest
has been withdrawn.
The duplicate title (if any) must be produced with the surrender.
If a tree plantation agreement is entered into by a lessee of Crown land, a surrender of the tree
plantation interest shall not be registered unless there is compliance with s.18 of the LAA.
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3.
Applications
In this chapter we look at the different types of applications and the evidential
requirements to be lodged in support. Landgate has created a number of
specific applications forms which are required to be used accordingly.
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3.1
Applications
3.1.1
General
The applications dealt with in this chapter exclude applications for new, balance or separate
certificates of title. Applications to bring land under the operation of the TLA and applications for
title by possession to land already under the TLA are the subject of a separate chapter. Other
applications mentioned herein are dealt with in detail in other sections of the manual and are
cross referenced in the index.
An application is merely a request, addressed to the Commissioner or Registrar, asking that
some desired discretion be exercised. An application, by itself, is of little value. It is the evidence
supplied, either by statutory declaration setting out the facts, or by being produced with, or as
annexures to a statutory declaration, which determines whether or not the application will be
successful. An application must be signed by the applicant or each of them if more than one. A
witness to the signature/s of the applicant/s is required.
3.1.2
Effect of Applications
An application is made usually to effect some change in the Register. The duplicate certificate
of title (if any) must be produced where land is concerned. In other cases, eg: an application to
amend a mortgage or lease, production of the duplicate certificate of title (if any) is not essential
although it is desirable.
After examination of the application and compliance with any requisitions made, the necessary
changes are made in the Register.
3.1.3
Forms
There are special printed application forms available for use, they are:
•
Form A1 Transmission Application,
also see LTRPM Form Examples- Example 1
•
Form A2 Survivorship Application
also see LTRPM Form Examples- Example 2
•
Form A3 Transmission of a Mortgage, Charge or Freehold Lease
also see LTRPM Form Examples- Example 5
•
Form A4 Survivorship of a Mortgage, Charge or Freehold Lease
also see LTRPM Model Form Examples Example 6;
•
Form A5 Application (Multipurpose) for use with most other types of application
•
Form A6 Application for a New or Balance Title (this form is also used for other
applications for new title)
also see LTRPM Form Examples- Example 7
•
Form NA1 Notification of Change of Address of Registered Proprietor
also see LTRPM Form Examples- Example 19.
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3.1.4
General Requirements
Each application submitted for approval must show:
•
a full, correct description of the land sought to be affected
•
a full, correct name and address of the applicant and, where necessary, the capacity in
which he or she is acting
and
•
3.1.5
where a blank application Form A5 is being used the nature of the application set out
concisely. The change required should be set out showing the current information on the
title, and the new information. For example, an application to amend a name should be
set out as to have the name, shown on the title to the above land as Allan Smith
amended to show Alan Frederick Smith.
Presentation of Evidence
All statements supplied in support of an application must be in the form of a statutory
declaration made under the provisions of the Oaths, Affidavits and Statutory Declarations Act
2005 (WA) (OASD Act). Statements presented in the form of an affidavit are not acceptable.
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3.2
Statutory Declarations
3.2.1
Declarations Made for the Purposes of the TLA
Unless another written law provides otherwise, a statutory declaration made for the purposes of
the TLA must be made in accordance with s.12 of the Oaths, Affidavits and Statutory
Declarations Act 2005 (OASD Act).
Section 12(2) of the above Act specifies that the statutory declaration must be in the form of
Schedule 1 of that Act (see Chapter 3.2.2 below).
Statutory Declarations lodged with the Registrar of Titles may be made on a Form B3 Statutory
Declaration. This form may be downloaded from Landgate’s website in Quick Links/ Forms and
Fees/ Freehold Land Registration Forms).
If a statutory declaration is lodged with the Registrar of Titles for the purposes of the TLA that is
not made in accordance with s.12 of the OASD Act, it will need to be considered on a case by
case basis to determine whether or not it will be acceptable (for the purposes for which it was
lodged).
3.2.2
Form
Schedule 1 of the OASD Act, prescribes a form to be used when a statutory declaration is being
made, as follows:
I,
(name, address and occupation of person making the declaration)
sincerely declare as follows –
(insert content of the statutory declaration; use numbered paragraphs if content is
long)
This declaration is true and I know that it is an offence to make a declaration
knowing that is false in a material particular.
This declaration is made under the Oaths, Affidavits and Statutory Declarations Act
2005 at (place)
on (date)
by(Signature of person making the declaration)
in the presence of –
(Signature of authorised witness)
(Full name, address and qualification of authorised witness)
There is a printed Form B3 available for statutory declarations (see LTRPM Form ExamplesExample 11). It is recommended that the printed form be used for short declarations. Where the
content is likely to exceed one page, the declaration should be prepared on plain good quality
bond paper. In these cases the formal attestation should appear on the last page. Other pages
should be signed at the foot by the declarant and the authorised witness.
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3.2.3
Witnessing Statutory Declarations
Section 12 of the OASD Act outlines a procedure to be followed by the person making the
statutory declaration and the authorised witness. The person who is making the statutory
declaration must in the presence of an authorised witness declare orally:
•
that he or she is the person named as the maker of the statutory declaration
•
that the contents of the statutory declaration are true
and
•
that the signature or mark is his or hers; and if necessary, that any attachment to the
statutory declaration is the attachment referred to in it.
After the maker of the statutory declaration has complied with the above, the authorised witness
must:
•
sign or personally mark the statutory declaration
•
sign or initial any alteration in the statutory declaration that has been signed or initialled
by the maker
and
•
3.2.4
imprint or clearly write his or her full name, address and qualification as an authorised
witness.
Authorised Witnesses Inside Western Australia
An authorised witness for a statutory declaration that is made at a place in Western Australia is:
•
any person described in the second column of Schedule 2 of the OASD Act
or
•
any person before whom, under the Commonwealth Statutory Declarations Act 1959, a
statutory declaration may be made.
The informal description of persons described in Schedule 2 of the OASD Act are listed below:
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Authorised Witnesses
Academic (post-secondary institution)
Accountant
Architect
Australian Consular Officer
Australian Diplomatic Officer
Bailiff
Bank manager
Chartered secretary
Chemist
Chiropractor
Company auditor or liquidator
Court officer
Defence force officer
Dentist
Doctor
Electorate officer of a member of State
Parliament
Engineer
Industrial organisation secretary
Insurance broker
Justices of the Peace
Landgate officer
Lawyer

Local government CEO or deputy CEO
Local government councillor
Loss adjuster
Marriage celebrant
Member of Parliament
Minister of religion
Nurse
Optometrist
Patent attorney
Physiotherapist
Podiatrist
Police officer
Post office manager
Psychologist
Public notary
Public servant (Commonwealth and State)
Real estate agent
Settlement agent
Sheriff or Deputy Sheriff
Surveyor
Teacher
Tribunal officer
Veterinary surgeon
Note
For the full formal description of authorised witnesses for statutory declarations refer to
Schedule 2 of the Oaths, Affidavits and Statutory Declarations Act 2005.
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3.2.5
Authorised Witnesses Outside Western Australia
An authorised witness for a statutory declaration made under the OASD Act is specified in
s.12(6) of that Act.
If the statutory declaration is made at a place outside Western Australia, but within Australia
then an authorised witness is:
•
any person who, under the law of that place, has authority to take or receive a statutory,
solemn or other declaration;
or
•
any person before whom, under the Commonwealth Statutory Declarations Act 1959 a
statutory declaration may be made.
If the statutory declaration is made outside Australia then an authorised witness is:
•
a prescribed consular official who is performing official functions at that place
•
a person who is a justice or notary public under the law of that place
or
•
a person who has authority under the law of that place to administer an oath to another
person or to take, receive or witness a statutory, solemn or other declaration.
A prescribed consular official means:
•
an Australian Consular Officer, or an Australian Diplomatic Officer, within the meaning of
the Commonwealth Consular Fees Act 1955;
•
a British consul or vice consul
or
•
3.2.6
an official prescribed by the regulations to be a prescribed consular official.
Content
The person making the statutory declaration should state his or her full name, address and
occupation and, following the form provided in Schedule 1 of the OASD Act should state:
•
the capacity in which the declaration is made i.e. as registered proprietor, as trustee, etc
•
where the declarant is not a party to the document, the means of knowledge for the
statements made
•
the volume and folio reference to the land in all cases and, where a mortgage, charge or
freehold lease is dealt with, the number of the instrument to which the declaration refers
•
the facts applicable to the matters being declared
•
any further information pertinent to the matters declared
•
what evidence is produced or attached
•
an identifying description such as a letter or number for each attachments (and that
identifying description should be marked on each attachment)
and
•
where the declaration is in support of a caveat, it must give precise details of the estate
and interest claimed in the land (see Chapter 4).
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3.2.7
Declarations by Two or More Persons
Where a declaration is made by two or more persons, they should declare jointly and
severally and there should be a separate execution and attestation for each person.
3.2.8
Amendments to a Declaration
3.2.8.1
Before first execution
Where errors are noticed prior to first execution the offending words should be struck out and, if
necessary, substitution made. The person making the declaration and the authorised witness
must initial such amendments and then complete the formal attestation.
3.2.8.2
After first execution
Very simple errors may be amended and initialled by the person making the statutory
declaration and having it re-declared before the same or another authorised witness. Major
amendments should be made by preparing and executing a new statutory declaration.
3.2.9
Evidence Produced
As the evidence listed below is returned to the lodging party when the registration process is
completed, it need not be formally attached to a declaration, but must be specifically referred to
in the declaration (e.g. Produced herewith is a certified copy of my marriage certificate).
Landgate requests that when lodging evidence that a photocopy of single sheet evidence, such
as marriage and birth certificates, and the original documents, be presented to enable the
photocopy to be certified ‘Original Sighted” by a Landgate Officer, with the original item being
returned to the lodging party.
Death Certificates
Birth Certificates
Marriage Certificates
Advice of Bankruptcy
Change of Name Certificates
Grants of Probate
Appointment of Liquidator
Trustee Certificate
Letters of Administration
Evidence originating from outside of Australia which is not in English script is required to be
accompanied by a translation of that document.
3.2.10
Attachments
Attachments should be identified by letter or number and referred to as such in the declaration.
Sequential numbering or lettering of the attachments is required where more than one is
attached. The identifying description (letter or number) should also be marked on each
document.
Attachments are part of the statutory declaration and will therefore be retained by
Landgate.
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3.3
Transmission Applications (Section 219 of the TLA)
This document is subject to the Verification of Identity Practice issued jointly
by the Western Australian Registrar of Titles and Commissioner of Titles.
Please refer to Chapter 14.
3.3.1
On Death of Registered Proprietor
A transmission application is required from the executor or administrator of a deceased
registered proprietor in order that such executor or administrator may be entered on the
Register as the proprietor of the estate or interest of the deceased proprietor.
The effect of the application is to place the executor or administrator on the Register as if he or
she was a transferee and the absolute proprietor of the estate or interest being dealt with.
Where the name of the executor or administrator is incorrectly shown in the Grant of Probate or
Letters of Administration, proof is required as to the correct name and the reason for the error in
the grant before an application for transmission can be entered.
The executor or administrator holds the land subject to the same equities upon which the
deceased held the land. In support of a Transmission Application (see LTRPM Form ExamplesExample 1) the following must be produced:
1.
2.
An office copy or the original Grant of Probate or Letters of Administration as issued by
the Probate Office or a Landgate Sighted copy. Present practice is to return such original
copies to the lodging party. Office copies of Grants of Probate should be re-lodged with
any subsequent dealing by the executor, other than a sale:
•
A copy of a Grant of Probate or Letters of Administration certified by a Justice of
the Peace is not acceptable.
•
A Grant of Probate or Letters of Administration granted in another jurisdiction (i.e.
interstate or overseas) must be re-sealed by the Western Australian Probate
Office.
A statutory declaration, identifying the deceased if the name and addition as shown on
the office copy of the Grant of Probate or Letters of Administration differ in any way from
those shown in the Register, (but if the Grant of Probate correctly identifies the proprietor
as the deceased or the details on the title and the Will agree, no further proof is required).
This statutory declaration is made by the executor or administrator. Where two or more
executors or administrators are appointed, only one of them needs to make the
declaration.
3.

The duplicate certificate of title (if any). Where the interest of a mortgagee is being dealt
with the production of the relative duplicate certificate of title (if any) is not essential but it
is desirable.
Note:
This type of application is not suitable where the land is a trust property as the land does not
form part of the estate of the deceased proprietor and cannot be dealt with by the executor or
administrator.
See also paragraph 2.1.31 - Transfers by Executors and Administrators with the Will Annexed.
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3.3.2
Who May Apply
The following persons can apply to be registered as proprietor by transmission:
•
the executor or executors named in a Grant of Probate
•
the administrator or administrators named in a Grant of Letters of Administration
•
the survivor or survivors of those set out in the preceding two points
•
the executor or executors of a deceased sole or surviving executor
and
•
the administrator named in a Grant of Letters of Administration with the will annexed.
All the persons (executors or administrators) entitled to apply must join in the application and
sign the form.
3.3.3
Who May Not Apply
The following persons can not apply to be registered as proprietor by transmission:
•
the administrator of a deceased executor
•
the administrator or executor of a deceased administrator with the will annexed
and
•
the administrator or executor of a deceased administrator.
They have, however a power to appoint a new trustee under s.7 of the Trustees Act 1962, see
paragraph 3.7.1. Alternatively a new application at the Court can be made for a Grant of Letters
of Administration for the original estate.
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3.4
Survivorship Applications (Section 227 of the TLA)
This document is subject to the Verification of Identity Practice issued jointly
by the Western Australian Registrar of Titles and Commissioner of Titles.
Please refer to Chapter 14.
3.4.1
On Death of a Joint Tenant
Where any person registered with another as a joint tenant dies, the surviving joint tenant must
apply to be registered as the surviving proprietor on the Register.
Although the interest of a joint tenant ceases immediately on death and the surviving joint
tenant’s interest is immediately enlarged, the legal estate does not change until the required
application is made and the Register amended.
In support of a Survivorship Application (see LTRPM Form Examples- Example 2) the following
must be produced:
1.
A copy of evidence of death certified by the Registrar General, or an office copy of a
grant of probate or letters of administration of the deceased.
and
2.
A statutory declaration by the surviving joint tenant or his or her personal representative
or by one or more of the surviving joint tenants if more than one. This declaration should:
(i)
identify the declarant
(ii)
identify the land being dealt with by its volume and folio reference in all cases, and
where a mortgage, charge or lease of freehold land is being dealt with, the number
of that instrument
(iii)
contain the statement
“ I am (we are) registered as a joint tenant of the land, (lease, charge, mortgage)
described above”.
(iv)
identify the deceased joint tenant as being one and the same as the person shown
on the certified copy of the death certificate (quoting the registration number of the
death certificate), or other evidence of death produced.
Any differences in name or address of the deceased or the surviving joint tenant(s)
must be explained.
It is not necessary to apply to amend the name of the deceased but an application
to amend may be required where the surviving applicant’s name differs in any way
from that shown on the Register, or the survivorship application form amended to
show the correct name of the survivor (see LTRPM Form Examples- Example 4).
(v)
refer to the certified copy of the death certificate or other evidence mentioned
above.
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3.4.2
Who May Apply
The following persons may apply to be registered as proprietor by survivorship:
1.
all the surviving joint tenants
2.
the sole surviving joint tenant
3.
where all joint tenants are deceased the executor or administrator of the last surviving
joint tenant on behalf of that joint tenant
4.
the surviving executor or administrator when registered as proprietor with a deceased coexecutor or co-administrator
5.
the surviving joint tenant when registered as joint tenants with a corporation that has
been liquidated
and
6.
a corporation when registered as joint tenant with a person who has died.
The survivorship application form for the third scenario set out above is completed as shown in
(see LTRPM Form Examples- Example 3) This form of survivorship must be followed by a
transmission application of the estate of the last surviving joint tenant.
The Attorney of the surviving joint tenant may execute a survivorship application form on behalf
of the donor of the power of attorney, and may (in the attorney’s name) provide the declaration
in support. The declaration must include the means of knowledge for the statements made.
3.4.3
Bars to Survivorship
Where joint tenants die in circumstances that give rise to reasonable doubt as to which of them
survived the other the Property Law Act 1969, s.120, provides that the property shall devolve as
if it were owned by them as tenants in common. Separate transmission applications are
required for the interest of each deceased proprietor.
Where a caveat lodged against the land is lodged specifically to prevent the application for
survivorship, or indicates the existence of an unregistered but registrable transfer or an
unregistered but registrable mortgage of the land, a survivorship application will not be
accepted.
Where a joint tenancy is severed in equity by a court order see paragraph 3.9.1.
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3.4.4
On Death of a Life Tenant
Where any person registered as proprietor of an estate for life dies, the person or persons
registered as proprietors of the estate in remainder must apply to be registered as proprietors of
the estate in fee simple in possession, i.e. the whole interest in the land. Although the interest of
the life tenant in the land ceases immediately on death and the interest of the remainderman is
immediately enlarged, the legal estate does not change until the required application is made
and the Register amended.
The form to be used is a blank application Form A5 and the application is made by the
remainderman or remaindermen. The correct words to be used in the third section on the Form
A5 are:
“to be registered as the proprietor (or proprietors) of an estate in fee simple in
possession, the life tenant (name) having died on (date of death).”
In support of the application the following should be supplied:
1.
A certified copy of the certificate of death of the deceased life tenant as issued by the
Registrar General or an office copy of a Grant of Probate or Letters of Administration.
and
2.
A statutory declaration of the remainderman or one of them if more than one. This
declaration should:
(i)
identify the declarant
(ii)
identify the land being dealt with by reference to its volume and folio numbers in all
cases, and where a mortgage, charge or lease of freehold land is being dealt with,
also by the number of that instrument
(iii)
introduce the certified copy of the certificate of death or Grant of Probate produced
as evidence of death
and
(iv)
identify the deceased life tenant with the person shown on the evidence of death
produced. Any differences of name, address or occupation must be explained.
The duplicate certificate of title containing the life estate must be produced. Where the life
estate is held in a separate certificate of title it must be produced for cancellation. The duplicate
certificate of title containing the estate in remainder or the duplicate certificate of title with both
estates is suitably endorsed with a memorandum of the application or where required, a new
title is created and registered.
3.4.5
Application by a Trustee in Bankruptcy (Section 234 of the TLA)
The Bankruptcy Act 1966 as amended (in this section called the Act) is a Commonwealth Act
that (inter alia) provides for the appointment of Government officials to the statutory position of
Official Trustee in Bankruptcy. The Act also authorises the appointment of suitably qualified
persons in private practice as registered trustees to deal with bankrupt estates (Trustees in
Bankruptcy).
Every person who, as trustee, assignee, or by any other name is the representative of a
bankrupt or insolvent estate is entitled to be registered as proprietor of any land under the TLA,
in the place of the bankrupt or insolvent proprietor. Under the Act the trustees of a particular
estate may be appointed or removed in a variety of circumstances, so the Registrar of Titles has
an interest in ensuring that a bankrupt registered proprietor is only displaced by a trustee whose
appointment is current.
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Although the interest of the bankrupt person is taken from him or her at the instance of
bankruptcy, the legal interest in the land does not vest in the trustee until lodgement of the
application. Bona fide dealings (dealings not intended to defeat creditors) by a bankrupt
proprietor registered before an application (or caveat) by a trustee in bankruptcy is lodged, are
valid.
The application is made on a Form A5, describing the land involved, the name of the Trustee,
and showing on the operative part of the form the words:
“to be registered as the proprietor of the above land as the Trustee in
Bankruptcy/Official Trustee in Bankruptcy (whichever is appropriate) of (name of
the registered proprietor).”
A computer register of insolvent or bankrupt persons, and the trustees appointed to administer
those estates is maintained by the Commonwealth Government, in the offices named the
Insolvency and Trustee Service Australia. The computer register is called the National Personal
Insolvency Index (NPII).
3.4.5.1
Application by the Official Trustee in Bankruptcy
The application must be supported by a statutory declaration by the trustee who identifies:
•
the applicant as the trustee
•
the land the subject of the application
•
the registered proprietor (or at least one of them, if more than one) as the bankrupt
and
•
3.4.5.2
state that the appointment of the trustee is still current.
Application by a Trustee in Bankruptcy
An application by a Trustee in Bankruptcy must also be supported by an extract of the NPII and
a statutory declaration. The declaration must cover the same issues as the declaration
previously mentioned in this paragraph.
3.4.5.3
Appointment of a Trustee under Part X of the Bankruptcy Act 1966
If the Trustee has been appointed under Part X of the Act, a certified copy of the Deed of
Appointment must be filed with the application, together with a statutory declaration that the
appointment is still current, and if necessary, identifying the registered proprietor as one and the
same person as the bankrupt.
Once registered, the trustee may deal with the property as the registered proprietor and must
sign the document as such proprietor using the normal clause. It is not necessary to show in the
attestation clause the trustee as (Name) the trustee in bankruptcy of the bankrupt estate of
(Name of Bankrupt).
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3.5
Amendment of Name
3.5.1
General
Where a registered proprietor is shown in the Register by other than his or her full true and
correct name then, as a general rule (for exceptions see paragraph below under that heading)
the Register must be amended to show the proprietor’s correct name. Similarly, if a female
proprietor adopts a new surname after a marriage occurring after becoming registered as
proprietor or where a name was changed by Licence to Change Name or by Deed Poll, the
Register should be amended.
Where the address of a registered proprietor is shown incorrectly on the Register an application
to amend will be accepted. If the address is not amended identification of the proprietor may be
satisfactorily established in later instruments dealing with the land by stating a new address
followed by the words formerly of and then stating the old address.
Where the applicant does not request a change of address and where the evidence supplied
indicates such a change, it is practice to bring the Register up to date by quoting in the
memorandum for the application the new address of the applicant.
3.5.2
Married Women
There is no obligation on any woman to adopt her husband’s surname or on any man to adopt
his wife’s surname on marriage. Both partners in a marriage may join their surnames in any
order to form a hyphenated surname. The law is however concerned that whatever name is
adopted is the only one used for all purposes. If a new (or former) name is subsequently
adopted then it must then be used for all purposes.
Married women may at any time revert to the use of their maiden name.
In such cases, an application to amend a name on a title would need a statutory declaration by
the applicant together with a certified copy of their birth certificate as evidence.
The applicant would however be better advised to formally change their name by registration of
that name at the office of the Registrar of Births, Deaths and Marriages and receive a certificate
issued under s.57 of the Births, Deaths and Marriages Act 1998, because other authorities (eg:
the Passport Office) may require documentary proof of the person’s correct name.
3.5.3
Form
The form to be used is a Form A5. The land being dealt with must, in all cases, be fully
described and, where necessary, the number of any mortgage, charge or lease of freehold land
must be shown. It must be signed by the applicant and must, accurately and concisely, set out
the required change to be made in the Register (see paragraph 3.1.4).
The duplicate certificate of title (if any) must be produced with the application if the name of the
registered proprietor of the land is being amended.
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3.5.4
Evidence Required for Simple Amendment of Name in Case of Error
A simple error is one where an existing registered proprietor’s name is being amended on a
certificate of title due to an error or omission made on the original instrument or document by
lodging an Application to Amend Name. Examples of a simple error include:
•
Where an application is lodged because a proprietor’s name has been incorrectly spelt on
the original conveyance (e.g. Steven being incorrectly shown as Steve, Ralph being
incorrectly shown as Rolph, Maree being incorrectly shown as Marie or White being
incorrectly shown as Whyte).
•
Where an application is lodged to change the order of names (e.g. Jeffery Robert Brown
being changed to Robert Jeffery Brown, or Nguyen Minh Thi being changed to Minh Thi
Nguyen.
•
Where an application is lodged to add an addition Christian name (e.g. Brendan Jones
being changed to Brendan Phillip Jones or Anne Smith being changes to Anne Joy
Smith)..
Where a registered proprietor is seeking to amend their full, true and correct name to correct an
error, this is considered to be a simple error, a Statutory Declaration setting out the facts of the
error or omission is required. The Statutory Declaration must state the following:
3.5.5
•
their true and correct name and address
•
sufficient identification of the land being dealt with and, where applicable, the number of
the mortgage, charge or lease of freehold land
•
how the error or omission occurred (to the best of the applicant’s knowledge)
•
that the declarant is identical with and one and the same person as the present registered
proprietor.
Evidence Required for Amendment of Name by Marriage
The applicant must provide a statutory declaration stating:
•
the true and correct name of the applicant
•
sufficient identification of the land being dealt with and, where applicable, the number of
the mortgage, charge or lease of freehold land
•
to whom the applicant was married and when
and
•
that the declarant is identical with and one and the same person as the present registered
proprietor
and produce a certified copy of the Certificate of Marriage issued by the Registrar of Birth,
Deaths and Marriages or the equivalent from another jurisdiction of origin.
If the applicant is reluctant to leave the certificate with the dealing, the applicant (or the
applicant’s agent) may attend at Landgate and request the staff to photocopy the original
document and file the Landgate Sighted copy in the application. Photocopies produced outside
Landgate will not be accepted. There is no fee for the service.

Note:
On and after 11 November 2013 the original certificate issued by a Marriage Celebrant (Bridal
Copy) will no longer be accepted as evidence.
A copy of a marriage certificate certified by a Justice of the Peace is not acceptable.
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3.5.6
Evidence Required for Amendment of Name by Licence to Change
Name or Deed Poll
The applicant must provide a statutory declaration stating:
•
their true and correct name
•
sufficient identification of the land being dealt with and, where applicable, the number of
the mortgage, charge or lease of freehold land
•
the registration number in the Deeds Office or the Registrar General’s Office of the
Licence to Change Name or Deed Poll and quoting the old name and the new name
and
•
that the declarant is identical with and one and the same person as the present registered
proprietor.
and produce a certified copy of the licence to change name or deed poll held in the Registrar
General’s Office or production of the Clients copy for sighting.

Note:
Because of the repeal of the Change of Names Regulation Act 1923 on 14 April 1999, a person
no longer needs to formally change his or her name by deed poll or licence. They can now
assume a new name if they can show that the new name was established by repute or usage
(see paragraph 3.5.7 below).
From the above-mentioned date, the Registrar of Births, Deaths and Marriages will not accept
deed polls and licences for registration. However, it is possible to formally change a name by
registration of that name at the office of the Registrar of Births, Deaths and Marriages and
receive a certificate issued under s.57 of the Birth, Deaths and Marriages Act 1998. This may
be advisable at times because other authorities (eg: the Passport Office) may require
documentary proof of the person’s correct name.
3.5.7
Evidence Required for Amendment of Name by Repute or Usage.
Under s.36 of the Birth, Deaths and Marriages Act 1998 (referred to as the Act in this section) a
person is not prevented from establishing a change of name by repute or usage where the
change is made after the commencement of the Act. This Act was proclaimed on 14 April 1999.
Where a person seeks to change his or her name on the Register maintained by the Registrar
of Titles and is domiciled (i.e. permanently residing) within Western Australia, a supporting
statutory declaration must be lodged by the applicant stating;
•
the reason(s) for the name change and setting out evidence of the use of the previous
name and the circumstances that clearly establish that the new name has been acquired
by repute or usage
•
sufficient identification of the land being dealt with and, where applicable, the number of
the mortgage, charge or lease of freehold land
and
•
that the declarant is identical with and one and the same person as the present registered
proprietor.
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In support of the above-mentioned statutory declaration, sufficient documentary evidence must
be produced to satisfy the Registrar of Titles that the name has been changed by repute or
usage.
Such documentary evidence should include:
•
statutory declarations from at least two persons who can normally witness a statutory
declaration made in Western Australia as set out in the Oaths, Affidavits and Statutory
Declarations Act 2005 (see paragraph 3.2.2) verifying that the applicant is known to that
person and that person has known the applicant both before and after his or her change
of name
and
•
documentary evidence to satisfy the Registrar of Titles that the new name has been
accepted and used over a reasonable period of time in at least two of the following cases:
•
statements from rating authorities, financial bodies or public utilities
•
identification card(s) issued by the Commonwealth, State or Territory as evidence
of the person’s changed name
or
•
licences or permits issued under a written law.
Where the applicant is domiciled (i.e. residing permanently) outside Western Australia, the laws
of the applicant’s State (if within Australia) or country of domicile dealing with changes of names
will need to be complied with.
Applicants who are permanently residing in Western Australia may prefer to obtain a certificate
from the Registrar of Births, Deaths and Marriages certifying the change of name for multiple
purposes rather than providing the necessary statutory declarations and documentary evidence
set our above to satisfy the Registrar of Titles of the change of name.
3.5.8
Evidence Required for Amendment of Name by a Certificate Issued
by the Registrar of Births, Deaths and Marriages
From the 14 April 1999 it is possible to change a name by registration of that name at the office
of the Registrar of Births, Deaths and Marriages and receive a certificate issued under s.57 of
the Birth, Deaths and Marriages Act 1998 (see also paragraph 10.2.3).
Where a person seeks to change his or her name on the Register maintained by the Registrar
of Titles and has obtained the above-mentioned certificate, a supporting statutory declaration
must be lodged by the applicant stating:
•
the true and correct name
•
sufficient identification of the land being dealt with and, where applicable, the number of
the mortgage, charge or lease of freehold land
•
the registration number of the certificate issued by the Registrar of Births, Deaths and
Marriages and quoting the old name and the new name;
and
•
that the declarant is identical with and one and the same person as the present registered
proprietor.
A certified copy of the certificate of change of name held in the Office of the Registrar of Births,
Deaths and Marriages must be produce with the above-mentioned statutory declaration.
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3.5.9
Evidence Required for Amendment of Name by a Corporation
The application (Form A5) must be accompanied by a certificate issued by the Australian
Securities & Investments Commission giving evidence of the change of name of the
corporation. A photocopy of a certificate is not acceptable.
The application form should be signed by either a Director of the corporation or its duly
appointed Secretary.

Note:
A statutory declaration by an officer of the corporation is NOT required.
3.5.10
Exception to the General Rule
An application to amend name will not be required when the whole of the estate or interest of a
proprietor (including corporations) is:
•
being dealt with by survivorship, transmission, transfer, vesting application or discharge
of mortgage
or
•
being included in a new title or titles created and registered in place of the present title.
This could be by an application for a title the subject of a subdivision or an application to
replace a present title.
For example, if in one of the documents mentioned above, the whole of the estate or interest of
the proprietor is being dealt with and the name at that time differs in some way from that shown
on the title or mortgage, then it will be sufficient if evidence of the change is supplied and the
change is noted on the document.
The evidence of the change (a statutory declaration and any other relevant documentary
evidence) should be the same as that now required for an application to amend. The method of
noting the change in the document will be by appropriately referring to new and old names in
the relative panel of the document, eg: in a transfer the transferor panel would appear as:
‘A of etc formerly known as B of etc.’
In a transmission or survivorship application, application for new title or discharge of mortgage
the appropriate note would be made in the deceased proprietor, applicant or mortgagee panel
respectively.
If part of the estate or interest of the proprietor remains in the title or mortgage after one of the
above transfers, applications or discharges then an application to amend will still be required to
precede the transfer, application or discharge.
It should be noted that this procedure applies only to transfers, applications and discharges
dealing with the whole of the estate or interest of the proprietor whose name has changed and
includes (for transfers) the case where one of the transferees is also a transferor.
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3.5.11
Amending the Address of the Registered Proprietor
A registered proprietor is able to amend their address for service of notices as shown on the
certificate of title by lodging a Notification to Amend Address of Registered Proprietor (Form
NA1 Notification of Change of Address of Registered Proprietor).
The Notification to Amend Address (Form NA1) which incorporates a statutory declaration may
only be used by one person. If more than one registered proprietor wants to change their
address, separate Notification forms will need to be used.
It is desirable, but not essential that the duplicate title (if any) be produced with a Notification.
Where the land is encumbered by a registered mortgage or charge and the duplicate title will
not be produced with the Notification, the registered proprietor must notify the mortgagee or
chargee of their intention to lodge the Notification and inform them of what the new address for
service of notices will be.
For an example of how to fill out this form, see LTRPM Form Examples- Example 19.
There are no document registration fees for the lodgement of a Notification.
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3.6
Foreclosure (Section 121 of the TLA)
3.6.1
General
The TLA provides the machinery whereby a mortgagee may foreclose a mortgage and become
the registered proprietor of the land formerly mortgaged. This procedure is a last resort by the
mortgagee to protect an investment after having been unsuccessful in the attempts to sell the
land.

Note:
Part of the procedure leading to a foreclosure is the offer for sale, by Landgate, of the subject
land. For this reason, where a mortgagee is both first and second mortgagee, action to apply for
a foreclosure order should be taken on the second mortgage.
If action is taken on the first mortgage and an offer to purchase, sufficient to cover the debt,
interest and expenses of that mortgage is received, then the moneys owing under the second
mortgage could not be recovered and would be lost to the mortgagee.
3.6.2
How to Apply
The application is made by the mortgagee on a blank Form A5 Application setting out the land
affected and asking that an Order of the Commissioner of Titles, foreclosing the interest of the
mortgagor in a specified mortgage, be granted.
3.6.3
Requirements
Before a foreclosure order may be granted it must be proved that:
•
default had occurred and continued for a period of six months after the time for payment
of the mortgage
•
the land had been offered for sale at public auction and no bid or an insufficient bid (state
the highest amount) had been received
•
notice of the intention to apply for a foreclosure order had been served on the mortgagor
(registered proprietor)
and
•
notice of intention to apply for a foreclosure order had been served on every
encumbrancer subsequent to the mortgage the subject of the application and, in the case
of memorials, that these have either been withdrawn or the written consent of the body
lodging the memorial has been obtained.
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3.6.4
Notice of Default
Notice of default in the payment of interest or principal by the mortgagor must be made as set
out in s.106. These matters are fully covered in paragraph 2.2.5 and are the same as those
required where a mortgagee has exercised the power to sell.
The mortgagee must declare that:
•
notice of default was sent and when
•
default had continued for six months
•
the attempt to sell at public auction was unsuccessful
•
notice of intention to apply for a foreclosure order had been served on the mortgagor
•
notice of intention to apply for a foreclosure order had been served on all subsequent
encumbrancers or if there are none, that there is no subsequent encumbrancer
and
•
3.6.5
at the date of the application for a foreclosure order the mortgagee had not received full
and sufficient payment from the mortgagor, i.e.: that default under the mortgage still
continued.
Evidence Required
The following evidence must be supplied as annexures to a statutory declaration by the person
or persons sending the notices of default and intention to apply for a foreclosure order:
•
a copy of the notice of default
•
proof of service of the default notice eg: a Post Office receipt, which should show the full
names of the mortgagor and the full address
•
a copy of the notice (to the mortgagor) of intention to apply for a foreclosure order
•
proof of service of the notice (to the mortgagor) of the mortgagee’s intention to apply for
foreclosure
•
a copy of the notice (to subsequent encumbrancers (if any)) of intention to apply for a
foreclosure order
and
•
3.6.6
proof of service of the notice to subsequent encumbrancers.
Certificate of Auctioneer
This certificate in the form of a statutory declaration made by the auctioneer should state that:
•
the auctioneer is a licensed auctioneer
•
the auction of the mortgaged land was held at a specific place, date and time
and
•
no bid was received or that the highest bid received (to be stated) was insufficient to
cover the mortgage debt and costs incidental to the mortgagee’s exercise of power of
sale.
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3.6.7
Conditions of Sale
The conditions of sale under which the auction was held must also be produced as an annexure
to the declaration by the auctioneer.
3.6.8
Copies of Advertisements
Full pages of the newspapers in which the notice of intention to sell by auction appear must be
produced as annexures to a statutory declaration either by the solicitor for the applicant or by
the applicant.
Such advertisements should contain:
•
a description of land by its local situation (ie: number in a certain street and its town)
•
a reference to the lot, plan and certificate of title number, and area
•
sufficient detail to make the property attractive to a prospective purchaser
•
an allowance of sufficient time for inspection by a prospective purchaser
and
•
a statement that it is a mortgagee’s sale.
In general the advertisements should properly identify the property, permit time for inspection,
and contain nothing calculated to deter a prospective purchaser from buying. The onus is on the
mortgagee to obtain the best price possible when exercising a power of sale.
Failure to advertise the sale to the satisfaction of the Commissioner could result in the
advertising and the sale having to be conducted for a second time.
3.6.9
Attempt to Sell by Landgate
Before the order is granted the land the subject of the mortgage is again offered for sale by the
Commissioner. An advertisement, at the expense of the mortgagee, is placed in three
consecutive weekly issues of a newspaper circulating in the City of Perth offering the land for
sale and setting a time, being not less than one month from the first advertisement, after which
an Order for Foreclosure would be issued.
3.6.10
Final Declaration of Mortgagee
Upon the Commissioner being satisfied that the requirements of the TLA have been fulfilled and
before the Foreclosure Order is made, a statutory declaration by the mortgagee is required,
referring to the application, and declaring that no sufficient payment had been received from the
mortgagor nor had the mortgagee’s solicitors received such payment up to the date of the
declaration.
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3.6.11
Preparation, Stamping and Processing of the Order
The order is then prepared in Landgate and signed by the Commissioner of Titles.
The order may then be collected from Landgate by the applicant or the solicitor for the applicant
and submitted to the Office of State Revenue (Stamp Duties Division) for assessment of stamp
duty.
Once stamped the order is returned to the Landgate staff, who arrange for its lodgement as a
document, and processing.
3.6.12
Effect of Order
On completion of the processing of the order the estate and interest of the registered
proprietor/mortgagor is vested in the mortgagee and the right of the mortgagor to redeem the
land is foreclosed.
Any encumbrances subsequent to the mortgage under which the order is made are removed
and no longer affect the land and the new certificate of title which is created and registered is
subject only to prior encumbrances and to those encumbrances (easements and leases) to
which the mortgagee had given an unqualified consent. Memorials which encumber the land
continue as encumbrances if the consent of the statutory body which lodged them is obtained.
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3.7
Vesting Orders (Section 182 of the TLA)
3.7.1
General
Where land is held in trust by the registered proprietor, any person entitled to be registered may
make an application (Form A5) describing the land being dealt with, or if applicable, the
mortgage charge or freehold lease, requesting the issue of an order vesting it in the applicant. If
the desired result can be achieved by transfer a vesting order will not be granted.
The facts relied upon to establish the applicant’s claim must be set out by statutory declaration
and such documentary evidence as is necessary to support the claim should be made
annexures to the declaration.
It is necessary to produce the duplicate certificate of title (if any) but if this is not possible,
production of the duplicate certificate may be dispensed with under s.74 of the TLA and the
intention of the Commissioner to make the order applied for will be advertised in a newspaper
published in the City of Perth.
This type of application is particularly useful when an administrator breaks the chain of
executorship as the administrator cannot apply for transmission in the ordinary way. It is also
available to the personal representative of the last surviving trustee. The term personal
representative in this case includes executors and administrators.
The personal representative of the last surviving trustee has a power of appointment of new
trustees under s.7 of the Trustees Act 1962. The power of appointment is required to be
exercised in writing and the appointor may appoint the appointor, or another person to be the
trustee of the land, mortgage lease or charge being dealt with.
The new trustee so appointed may then apply for the issue of a vesting order. The form to use
is blank application (Form A5) describing the land affected in every case, and, if a mortgage,
lease or charge is involved, the number of that instrument and requesting the granting of a
Vesting Order under s.182 of the TLA.
3.7.2
Evidence Required
In support of such an application the following evidence is required:
•
a statutory declaration of the applicant, the new trustee, setting out the facts showing how
that status was obtained. The declaration should also contain a statement, to the best of
the declarant’s knowledge, that the person through whom the declarant claims (the most
recently deceased personal representative) had completed the duties as executor or
administrator and had continued to hold the land or interest being dealt with as mere
trustee
•
an office copy of any Grant of Probate or Letters of Administration forming evidence of
the appointers power to appoint a new trustee
and
•
the Deed of Appointment of New Trustee referred to above.
The duplicate certificate of title (if any) must be produced.
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3.7.3
Preparation, Stamping and Processing of the Order
The Commissioner then instructs Landgate staff to prepare the order and signs it when
prepared.
The order may then be collected from Landgate by the applicant, or the solicitor for the
applicant, and submitted to the Office of State Revenue (Stamp Duties Division) for assessment
of stamp duty.
Once stamped the order is returned to Landgate staff, who arrange for its lodgement as a
document, and processing.
The procedure is then completed by entering the name of the applicant on the relevant
certificate of title (without showing the nature of the trust if such is the case). The interests of
persons entitled under the will or intestacy may be protected by a Registrar’s Caveat.
Where the land is the subject of a paper title, the Registrar will record the vesting on both the
original and duplicate certificate of title (if any).
Where the land is the subject of a digital title, the Registrar will record the vesting in the digital
register and cancel the duplicate title (if any) and create a new edition of the duplicate title.
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3.8
Vesting Orders (Section 183 of the TLA)
3.8.1
General
Where a person has purchased land from the registered proprietor, completed payment, and
has entered into possession with the consent of the vendor and no transfer has been executed
because the vendor is dead or is residing out of the State or cannot be found, an application for
a Vesting Order may be made by the purchaser.
An application on the blank Form A5 describing the land and requesting the issue of a vesting
order under the section should be made. The duplicate certificate of title (if any) should be
produced or, if not produced, its production may be dispensed with under s.74 of the TLA.
Proof of each of the necessary elements set out in the section must be supplied. In particular
proof of payment of the purchase price and interest (if any) in the contract of sale or other
document of purchase is required. This should take the form of receipts, cheque butts or bank
statements and must cover the entire purchase price.
3.8.2
Evidence Required
A statutory declaration by the applicant stating the facts with the above proof as annexures is
required.
The Commissioner then instructs Landgate staff to prepare the order and signs it when
prepared.
The order may then be collected from Landgate by the applicant, or the solicitor for the
applicant, and submitted to the Office of State Revenue (Stamp Duties Division) for assessment
of stamp duty.
Once stamped the order is returned to Landgate staff, who arrange for its lodgement as a
document, and processing.
The procedure is then completed by having the name of the applicant endorsed on the first
schedule of the relevant certificate of title.
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3.9
Vesting Orders (Section 242 of the TLA)
3.9.1
General
Where the Family Court or other Court has made an order that:
•
land jointly owned be vested in one of the parties
or
•
land owned by one of the parties be vested in the other party
or
•
expressly or impliedly severs a joint tenancy
then both parties are bound to give effect to the order i.e.; the necessary documents to give
effect to the Order, whether the Order uses the term vest or transfers, must be signed by the
parties.
In other words, it is anticipated that in most instances a Order of the Court vesting land will form
the basis of the consideration of a transfer of the land.
In those cases where one of the parties is unable to, or refuses to execute a transfer, or cannot
be found, or if for any other reason a transfer cannot be obtained within a reasonable time, an
application to have the land registered in the name of the other party under s.242 (1)(b) of the
TLA will be accepted.
The operative part of the Application, on a Form A5, should read:
“The Applicant hereby applies to the Registrar of Titles to give effect (pursuant to
s.242 of the Transfer of Land Act 1893) to the Order made in the Family Court of
Western Australia on the ……..day of ………… 20…… in matter No. of 19 on the
ground that (Here state nature of grounds).”
Where a court order severs a joint tenancy (e.g. there is an order that the joint tenancy property
be sold and net proceeds divided between the proprietors) and one of the registered proprietors
dies, then either the other proprietor(s) can lodge an application under s.242 of the TLA or the
personal representative of the deceased proprietor can lodge a Transmission Application
(instead of an Application under s.242 of the TLA).
Where a Transmission Application is lodged, the normal requirements for transmission
applications and the requirements of paragraph 3.9.2 will need to be met.
If there is a simple severance with no other orders applying to the property, than no other
documents need to be lodged. However, if as is more likely, there is an order that a joint
tenancy property be sold and net proceeds divided between the proprietors, then a Registrar’s
Caveat will normally be lodged following a transfer or transmission application severing the joint
tenancy on the register.
If the order indicates that the land is to be held in other than equal shares, then where a
transmission application is lodged it must be followed by a transfer or an application under
s.242 of the TLA so as to give effect to the order.
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3.9.2
Evidence Required
A Statutory Declaration establishing the existence of the ground referred to in the Application
must be filed with the application.
In respect of orders that state that the property vests or is transferred subject to or conditional
upon the vestee indemnifying the divested person against any ongoing liability, the lodging
party must file with the application a stamped copy of a Deed of Indemnity in the terms of the
Order.
For example, a deed is required if the Order is worded:
“Subject to the wife indemnifying the husband from all outgoings, the property
vests in the wife.”
A Deed of Indemnity is not required if the vesting order is made subject to a precondition (eg:
payment of a sum of money), but a statutory declaration with appropriate evidence of the
satisfaction of the precondition will be necessary.
For example a deed is not required, but evidence of payment is if the Order is worded:
“Subject to the wife paying $20,000 to the husband, the property vests in the wife.”
A deed is not required when the Order sets out in a separate paragraph that the vested is to
indemnify the divested person from ongoing liabilities and does not limit the order vesting the
property.
For example, where the paragraphs of the Order are so arranged to show:
paragraph (X) The property vests in the wife; and
paragraph (Y) The wife shall indemnify the husband from outgoings on the
property;
a deed of indemnity is not required by the Registrar.
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3.10
New Duplicate Certificate of Title (Section 75 of the
TLA)
This document is subject to the Verification of Identity Practice issued jointly
by the Western Australian Registrar of Titles and Commissioner of Titles.
Please refer to Chapter 14.
3.10.1
General
Where a duplicate certificate of title or a lease for Crown Land by the State of Western Australia
has been lost or destroyed, an application may be made for the creation and registration of a
new duplicate certificate of title, or state lease of Crown land.
Where a duplicate Management Body lease has been lost, a statutory declaration as per
paragraph 3.10.2 below is required for a dealing without production of a duplicate lease
pursuant to s.74 of the TLA.

Note:
It is desirable that all of the registered proprietors make a joint application. However applications
that are not made by all of the registered proprietors or by someone other than the registered
proprietors(s) (eg mortgagees) may be acceptable under certain circumstances.
In the case of a paper title, the loss or destruction of the duplicate title will result in the creation
and registration of a new certificate of title.
In the case of a digital title, the loss or destruction of the duplicate title will result in the creation
of a new edition of that duplicate title. A new title will not be created and registered.
In the case of a lease of Crown land by the State of Western Australia, the loss or destruction
of the duplicate lease will result in the creation and registration of a new state lease of Crown
land with the term and conditions remaining the same.
Where the registered proprietor is deceased an application of this nature must be preceded by a
transmission application. The application for the special certificate will then be made in the
name of the executor or administrator.
Where one of two or more proprietors registered as joint tenants is deceased, a survivorship
application must precede the application for a new or special title. The latter application will then
be made in the name of the survivor, or survivors.
In the case of a paper title the application should be made on a blank application Form A6 and
must describe the land affected and request the creation and registration of a new certificate of
title and the issue of a new duplicate certificate of title in lieu of that lost or destroyed.
In the case of a digital title the application should be made on a blank application Form A5 and
must describe the land affected and request the issue of a new edition of the duplicate
certificate to replace the one that is lost or destroyed.
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3.10.2
Declaration in Support
The applicant is required to make a statutory declaration detailing the history of the duplicate
certificate as far as it is known. If there is more than one applicant then each should make a
declaration in the terms of their separate knowledge.
The statutory declaration should include the following:
•
identification of the land by its volume/folio reference or the lease number where a lease
has been lost/destroyed
•
if the duplicate certificate was not held by the applicant, the name of the person or body
that did hold it, and the reason that person or body cannot now produce the certificate
(the person, or an officer of the body formerly in possession of the duplicate title must, by
statutory declaration confirm the facts recited and include what searches were made for
the duplicate, and negate its deposit for security)
•
the name of the person presently in possession of the land and the nature of the
occupancy
•
where the duplicate certificate of title was usually kept and who, apart from the
applicant(s), had access to that place. Any other person(s) having access will also need
to complete a statutory declaration providing their knowledge of the duplicate certificate of
title and negate its deposit by way of a lien or security form any form of loan or business
agreement
•
that there is no person known to have, or is likely to have the said duplicate certificate of
title in their possession
•
what searches for the duplicate certificate were made and the result of those searches
•
what enquiries were made of banks, accountants or other institutions and with what result.
The originals of any replies received must be produced with the declaration
•
that the duplicate certificate had not been deposited with any bank, firm or person by way
of security for any lien or loan or for any other purpose. Where the land has been sold
under contract of sale or where money has been borrowed on its security and there is a
caveat protecting such contract or loan on the Register, a declaration from the caveator is
required as to his or her knowledge of the duplicate certificate
•
a reference to a current rate notice or letter from the Local Government, produced with the
declaration which identifies the land and indicates in whose name the land is currently
rated (if it is not rated in the name of the applicant an explanation is required)
•
where the duplicate certificate is known to have been destroyed by fire, a reference to a
letter of confirmation from the Fire Brigade of the district as to the facts
and
•

where the duplicate certificate is known to have been stolen, the declaration should state
the incidence number of the theft as recorded by the Police Department.
Note:
The application will not be accepted unless each of the above dot points have been adequately
addressed in the statutory declaration.
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3.10.3
Evidence Required
In addition to the statutory declarations referred to in the preceding paragraph the applicant
must produce the original notices or letters referred to in the declarations. It is irrelevant whether
the rates have been paid, as the notice serves to supply corroborative evidence of ownership
and occupation.
3.10.4
Advertising of Application (Paper Title, Crown Lease and Lease of
Crown Land only)
When the Commissioner is satisfied that the duplicate certificate of a paper title, Crown lease or
lease of Crown land has been lost or destroyed, a notice of intention to create a new duplicate
is advertised in a newspaper published in the City of Perth or in the neighbourhood of the land.
The period of advertising is the statutory minimum of fourteen days after which a new certificate
of title will be created and a new duplicate issued. Where the duplicate certificate of a digital
title has been lost or destroyed no advertising period is necessary unless required by the
Commissioner of Titles.
If the former duplicate title, Crown lease or lease of Crown land that was lost, is found after the
creation and issuance of a replacement, it should be returned to Landgate for cancellation. No
fee or penalty will be charged.
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3.11
Removal of Caveats (Section 138B of the TLA)
The registered proprietor(s) of the land in respect of which a caveat is lodged, or the judgment
creditor named in a property (seizure and sale) order registered in respect of the judgment
debtor’s saleable interest in such land, may make application for the removal of a caveat under
s.138B of the TLA. This section requires the caveator to take legal action and obtain a Supreme
Court Order substantiating the estate or interest claimed in the caveat within 21 days of the
service of notice.
An application under s.138B of the TLA cannot be lodged on the following types of caveat:
•
Caveats lodged under Sections 30, 176 or 223A of the TLA.
•
Caveats under any other written law which specifically provides for the lodgement of a
caveat.
•
Caveats lodged by virtue of a Court Order.
•
Caveats protecting beneficiaries under a will or settlement.
•
Caveats lodged by or on behalf, or with the consent of the Minister for Lands.
•
Caveats lodged under any Commonwealth Act.
•
Caveats lodged by the Registrar of Titles.
The application must be made on a Form AW describing the land affected, the number of the
caveat required to be removed and requesting that 21 days notice be sent to the caveator
under s.138B of the TLA.
All of the registered proprietors affected by the caveat must be shown as applicants in the
application and they must all execute the application in the presence of a witness. If the
applicant is a corporation, the application must be formally executed in accordance with the
Constitution for that corporation.
No evidence in support of the application is necessary.
Upon lodgement and examination of the application, the caveator is served (at the address
shown in the caveat) with a notice requiring that the caveator within 21 days withdraw the
caveat or obtain from the Supreme Court an order extending the operation of the caveat.
If the caveator fails to obtain a Court Order extending the caveat within the 21 days notice
period, the caveat will lapse and an entry will be made in the Register removing the caveat.
If a withdrawal of caveat is lodged after the 21 days notice has been sent, but before the lapse
date shown in the notice has expired, the notice period is terminated and the proprietor can deal
with the land immediately.
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The caveator will not be able to re-lodge a caveat that has been removed under s.138B of the
TLA by virtue of
•
the lapsing of the caveat, by either the expiration of the 21 days or as a result of legal
action
or
•
upon the withdrawal of the caveat by the caveator upon receiving the notice from the
Registrar;
unless the caveator has leave of the Court or the consent of the registered proprietor.
If the caveator obtains from the Supreme Court an order extending the operation of the caveat,
a copy of the order must be served on the Registrar of Titles within the 21 day period.
(See paragraph 1.17.1).

Note:
The removal of caveats under this s.138B of the TLA is separate and distinct from the
processes under Sections 137, 138 and 141A.
Once Landgate has sent the 21-day notice or notices under s.138B of the TLA, it is not possible
for the applicant to withdraw the application from registration.
This type of application is limited to only one caveat (per application) and it must refer to all the
land in the caveat.
Application Lodged by Mortgagee
The application must be made in the name of the registered proprietor of the land affected by
the caveat, but signed by the mortgagee under its power to dispose of ownership pursuant to
s.108 of the TLA. The application is to be accompanied by a statutory declaration stating that:
•
default under the mortgage has occurred
•
default notices have been sent to the mortgagor (indicating when they were sent)
•
default period provided in the mortgage has expired
and
•
default still continues at the time of the lodging of the application.
Where such an application is lodged, a copy of the notice sent to the caveator will also be sent
to the registered proprietor.
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3.12
Removal of Caveats (Section 141A of the TLA)
A registered proprietor or any person claiming an interest in the land may make application for
the removal of a caveat on the grounds that the estate or interest of the caveator has ceased to
exist.
The application must be made on a blank application Form A5 describing the land affected, the
number of the caveat required to be removed and requesting that 14 days notice be sent to the
caveator under s.141A of the TLA.
Evidence must be supplied by way of statutory declaration setting out the facts by which the
registered proprietor claims that the interest of the caveator has ceased. Any documentary
evidence produced must be annexed to the declaration.
As each case is treated strictly on its merits, no guidance as to the evidence required can be
given. This type of relief is rarely given where a purchaser’s caveat is concerned.
Where the Commissioner is satisfied that the caveator’s claim has ceased to exist, the caveator
is given, at the address or the number for a facsimile machine shown in the caveat for service of
notice, 14 days in which to withdraw the caveat or commence proceedings in Court to
substantiate his claim.
After the 14 days have expired without any action by the caveator, a second notice is sent to the
caveator advising that the caveat has ceased to affect the land.
The Commissioner then directs that an entry be made in the Register removing the caveat from
the title.
Should the caveator take action to protect his or her claim he or she must join as parties the
Registrar, or an Assistant Registrar, by name, and the registered proprietor, and any other
person affected by the caveat.
Once the caveator has commenced proceedings to substantiate the claim the caveat will remain
on the title pending the resolution of the Court Action. If successful, the caveat will remain on
the title and the application will be withdrawn or rejected, with a partial refund of fees.
It should be noted that an application to remove a caveat using the provisions of s.141A of the
TLA will not succeed if the applicant contends that the caveator’s claim was non-existent in the
first place.
A mortgagee who wishes to lodge a transfer to exercise a power of sale, and is prevented from
doing so by a caveat lodged subsequent to the mortgage, may in certain circumstances
successfully apply under this section (see paragraph 2.2.5).

Note:
An application under s.141A of the TLA will not be considered where the same outcome can be
achieved by making an application under s.138B of the TLA.
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3.13
Search Certificates (s.146 and 147 of the TLA)
3.13.1
General
Where a person wishes to deal with the registered proprietor and desires information as to any
caveat, instrument lodged for registration, order or injunction not noted on the title, application
may be made for a search certificate. The application is made on a Form SC Search Certificate,
and the prescribed fee must be paid.
The Registrar causes the necessary searches to be made and signs and dates the Form SC
referred to above. This certificate does not absolve the applicant from making a search of title.
The applicant is deemed to know that which a search of the certificate of title would reveal. The
certificate is issued as correct at 8am on the day of issue.

Note:
The applicant in a Search Certificate is any person who wishes to deal with any interest in land
of a registered proprietor.
The applicant or his authorised agent may sign the application.
3.13.2
Stay Orders (Section 148 of the TLA)
Where a person proposes to deal for value with a registered proprietor an application for a
search certificate and stay order may be made with the consent of the proprietor or the
proprietor’s agent. The application is made on a Form SO Stay Order
Should the Search Certificate show that the registered proprietor is free to deal with the land,
the order prepared in the Form SO referred to above is signed and dated by the Registrar,
staying the registration of any other instrument affecting the land for forty eight hours from
8.30am on the day of issue of the order. The proposed dealing has priority over any other
dealing for the time stated (s.149 of the TLA).
If the proposed dealing is not lodged within the time covered by the Stay Order any other
dealings lodged within that time are dealt with according to their priorities (s.150 of the TLA).

Note:
The applicant in a Stay Order is any person who wishes to deal for value with any interest in
land of a registered proprietor.
The application must be signed by the applicant and the registered proprietor or the registered
proprietor’s authorised agent.
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3.14
Amendment of Boundaries, Area or Position
Part IX of the (s.s170 to 179 of the TLA) sets out the manner whereby a proprietor of land may
apply to have their certificate of title amended or a relevant graphic for the land amended or
replaced where the land bona fide occupied differs from that described in the certificate of title
or on a relevant graphic for the land.
The application is required to be in one of the appropriate forms shown in the Twenty fourth
Schedule to the TLA. It is recommended that a blank instrument Form B2 be used.
The application is examined by the Commissioner and the intention to grant the application
advertised in the manner directed. Persons having an interest in the land affected are notified
and any person having an objection to the application may lodge a caveat forbidding the
granting of the application (see paragraph 4.2.8).
3.15
Vesting under Section 197 of the Planning and
Development Act 2005 (P&D Act)
Where any land held, taken, resumed or otherwise acquired under any Act, for any public work,
is in the opinion of the Governor not required for that work and is required for the purposes or
likely purposes of a region planning scheme, the Governor, despite Part 9 Division 5 of the LAA,
may declare by notice published in the Gazette that the land is to be held and may be used for
the purposes of the region planning scheme.
From the date of the publication of the notice, the land described in the notice vests in the
Western Australian Planning Commission (WAPC) for the purpose of the region planning
scheme.
The WAPC is to ensure that notice of the vesting is lodged with the Registrar of Titles as soon
as practicable after the land is vested. This is achieved by the lodgement of an Application Form
A5 together with a copy of the notice published in the Gazette in respect of the relevant land.
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3.16
Name Suppression
Name Suppression is available to eligible people to apply to the Registrar of Titles to have their
details suppressed from Landgate’s searching indexes and data extracts. This is contained in
the Transfer of Land Regulations 2004. The Name Suppression service is available only to
people who can prove they are at risk of personal harm should their details be easily
discoverable.
The land titles register is an open, public searchable register created under the Transfer of Land
Act 1893. The land titles index enables the public and professionals to search the register and
obtain information about property owned by individuals. This information is often an indication of
where people live and discovery may place some property owners at risk.
A successful Name Suppression application will not change a record in the land titles register. It
will however, remove the details associated with a suppressed name from name searching
indices and from datasets/data extracts administered by Landgate.
Name Suppression prevents enquirers from using a suppressed name as a starting point from
which to discover an address. It will not completely prevent a Name Suppression applicant’s
details from being discovered, because a suppressed name (and address) may still be
discovered by using other search criteria such as an address, undertaking a title search or a lot
on plan search.
Registration fees are payable (see registration and search fees)
3.16.1
Eligibility for Name Suppression
People who are eligible for Name Suppression are people (and/or their family members) who
have been subjected to direct threats of violence. However, if you can prove that you have
become a silent elector then this will remove the need to establish to the Registrar of Titles that
you have been subject to direct threats of violence.
Applicants are eligible if they:
•
own a property
•
hold an interest in property
•
have lodged a purchaser’s caveat over property or
•
are a donor or donee of a Power of Attorney lodged with Landgate.
All applicants must provide evidence of their eligibility. For applicants who are a silent elector
registered with the Western Australian Electoral Commission, production of proof of Silent
Elector Status is sufficient that a threat exists.
The nature of an applicant’s occupation does not itself give rise to a right to have that person’s
name suppressed under the requirements for having their name suppressed.
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3.16.2
How to Apply for Name Suppression
To apply you will need a Name Suppression application pack which can be obtained:
•
online at http://www.landgate.wa.gov.au/corporate.nsf
•
by email request to [email protected]
•
by telephone request on 9273 5900
or
•
at one of Landgate offices.
If you are a silent elector registered with the Electoral Commission, you will need to complete
and submit all the forms in the application pack. This includes the Statutory Declaration to verify
your identity in relation the Certificate of Title or any other document to which you wish the
suppression to apply, and to confirm that you are the same person as identified in your silent
elector letter from the Western Australian Electoral Commission. You will need to sign the
Statutory Declaration in the presence of an authorised witness. (see paragraph 3.2.3)
If you are not a silent elector you will need to state why you believe that you or your family are
at risk of harm and provide evidence to substantiate your claim. You will need to complete and
submit all the forms in the application pack. This includes the Statutory Declaration to verify
your identity in relation to the Certificate of Title or any other document to which you wish the
suppression to apply. You will need to sign the Statutory Declaration in the presence of an
authorised witness. (see paragraph 3.2.3)
Your application will be considered by a delegate of the Registrar of Titles.
3.16.3
How to Submit your Name Suppression Application
You will need two (2) envelopes, one smaller than the other (recommend DL and DLX sizes as
a minimum) containing the following information on the reverse side of the smaller envelope:
•
type of application
•
Certificate of Title volume and folio details and/or address of each subject property.
•
Power of Attorney document number (if applicable).
•
type of evidence enclosed (i.e. Statutory Declaration, silent elector letter, etc).
Your application and all related documents must be placed inside the smaller envelope, sealed,
and then placed inside the larger envelope. Seal the larger envelope and address it to:
‘CONFIDENTIAL’
Landgate
Name Suppression Officer
PO Box 2222
MIDLAND DC 6936
To ensure confidentiality do not put your name on either envelope. Your name should appear
only on the application form and on any supporting documentation.
You may hand deliver your application and supporting documentation to Landgate’s Perth,
Midland or Bunbury office where you will be provide with a secure lodgement envelope.
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3.16.4
Extent of Name Suppression
A suppressed name will remain suppressed until a formal Withdrawal of Suppression request
has been completed by the applicant and processed by Landgate. Applicants of a Withdrawal of
Suppression will need to provide evidence to satisfy a 100 point identification check.
The acquisition of a new property or interest by a successful applicant will require a further
Name Suppression application.
There is no registration fee payable for the removal of a Name Suppression.
3.17
Other Applications Dealt with Elsewhere
The following procedures are all applications but for convenience they are dealt with in the
paragraphs indicated:
Removal of Easements (where mortgagee is absent)
see paragraphs 7.2.2 to 7.2.6
Removal of Mortgages (where mortgagee is absent)
see paragraph 2.6.15
Removal of Mortgages (where payment is complete)
see paragraph 2.6.16
Removal of Charges
see paragraph 2.7.3
Re-entry by Lessor
see paragraph 2.8.12
Removal of Leases
see paragraph 2.8.12
Removal of Writs or Warrants
see paragraph 4.5.1
Amendment of Caveator’s Address for Service of Notice
s.240A of the TLA
see paragraph 4.2.10
Removal or Modification of Covenants
see paragraph 7.5.2
Removal of Health Act Charge
see paragraph 11.2.2
Strata Titles Act 1985
see Chapter 6
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4.
Caveats, Writs and Warrants,
Property (Seizure and Sale)
Orders
In this chapter we look at the different types of caveats and property (seizure
and sale) orders and the evidential requirements to be lodged in support.
Landgate has created a number of specific forms to be used accordingly.
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4.1
Caveats
4.1.1
General
The word caveat is not expressly defined in the TLA, but means generally a caution or
warning. Caveats lodged under the TLA have a twofold effect until removed. These are:
a warning to a person searching the Register of an outstanding equity claimed by the caveator
against any land lease mortgage or charge; and
a caveat acts as a statutory injunction preventing the Registrar from registering any
instrument either absolutely, or until after notice of the intended registration or dealing be given
to the caveator, or unless such instrument be expressed to be subject to the claim of the
caveator (the latter being commonly called a subject to claim caveat).
4.1.2
Purpose
A caveat confers no proprietary interest itself. Its purpose and function is to preserve and
protect the rights of a caveator. It prohibits the caveator’s interest from being defeated by the
registration of a dealing without the caveator having first had the opportunity to invoke the
assistance of a Court to give effect to the interest. The interest may arise through the
application of legal rules and principles or it may arise because a specific equitable remedy
exists to protect it.
4.1.3
Entry of a Caveat
Provided a caveat is substantially in a form approved by the Registrar (see Form C1 Caveat
[under s.137 of the TLA]), sufficiently identifies the land sought to be affected and claims an
estate or interest in land, entry on the Register is almost automatic. A caveat is effective from
the time of its lodgement. A memorandum of a caveat is not entered on the duplicate certificate
of title.
4.1.4
Improper Entry of Caveat
Under s.138 of the TLA the registered proprietor may summon the caveator to appear before
the Supreme Court or a Judge in chambers to show cause why the caveat should not be
withdrawn.
Section 140 of the TLA provides that a caveator lodging a caveat without reasonable cause
shall be liable to pay such compensation for damage caused as a Judge on a summons in
chambers may order.
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4.1.5
Interest in Land Capable of Supporting a Caveat
The grounds upon which a caveat may be lodged are many and complex. Many cases have
been argued before the Courts, and much of the law on caveats is based on decisions of the
Court rather than laid out in a statute. In such circumstances the law is subject to change as
new decisions extend, modify or further explain the grounds on which a caveat may (or may
not!) be maintained on the register.
Despite the fact that the interest claimed is not one (yet) decided by the Courts, a caveat that is
procedurally correct and expressly sets out the nature of the estate or interest claimed will be
accepted by the Registrar. However, caveators will be required to complete a statutory
declaration that clearly and concisely states the estate or interest claimed and the facts on
which that claim is based. It will then be for the Courts to determine whether or not the particular
estate or interest is a caveatable interest in land.
The Registrar will not reject a caveat that complies with the statutory requirement merely
because the Registrar considers that the claimed estate or interest is not caveatable or is
inadequately described. If there are defects in these areas, then the registered proprietor has a
remedy under s.140 of the TLA for damages or compensation from the caveator.
As a general rule, a caveator’s claim should arise through some dealing with the registered
proprietor. Where the caveator is not dealing directly with the registered proprietor the caveat
must clearly recite the step by step events which tie the caveator to the registered proprietor
Where the claim arises out of rights under an easement or restrictive covenant, such claim must
be made by or through the proprietor of land appurtenant to the land against which the caveat is
lodged.
The document by virtue of which a caveat is lodged must normally be signed by the registered
proprietor of the land against which the caveat is lodged or by his or their duly appointed
representative. However, where such document is a contract of sale, it may be signed by the
solicitor or a licensed estate agent on behalf of the vendor. Contracts by a married couple
signed by one party both personally and on behalf of his or her partner, are also acceptable.
4.1.6
Registered Proprietor’s Caveat
The registered proprietor of land may lodge a caveat against land registered in his or her name.
Such caveats are usually lodged in the following circumstances:
•
the caveator/registered proprietor has lost possession of the duplicate certificate of title
either by fraud, theft or misplacement
or
•
the caveator/registered proprietor has revoked a power of attorney but has been unable
to contact the attorney to give advice of the revocation
or
•
the caveator has lost possession of a signed instrument e.g. transfer of land, and has not
been paid.
The evidence to support such a caveat would be a statutory declaration by the caveator setting
out the facts and repeating the claim of the caveator.
A caveat, correct as to form by a registered proprietor against his or her land would be accepted
by the Registrar.
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4.1.7
Caveat to Prevent Improper Dealings
In order to reduce the risk to WA Landowners from being the subject of improper dealings on
their property a Caveat (Improper Dealings) can now be lodged with Landgate. The Caveat
once lodged will stop the registration of any instruments or documents that would ordinarily
need to be signed by the owner.
The Caveat (Improper Dealings) Form C4 must be made in the name of all registered
proprietors. If on registered proprietor does not want to be part of the Caveat then the
document cannot be lodged. The Caveat can be signed and lodged with Landgate by the
registered proprietors themselves or a Solicitor acting on their behalf of all the registered
proprietors. A Licensed Settlement Agent does not currently have authority under the
Settlements Agents Regulations 1982 to sign and lodge a Caveat to prevent improper dealings
on behalf of land owners.
Please note that registered proprietors who have mortgaged properties should review their
Mortgage terms and consult with their lending institution before lodging a Caveat (Improper
Dealings) as the terms and conditions of the Mortgage may prevent the lodgement of any
Caveat without the consent of the Mortgagee.
The registering and removing of this document type from the Certificate of Title would be
processed by a team member of Complex Dealings.
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4.1.8
Traditional Interests that Support a Caveat
To assist caveators the following forms of interests have been accepted by the Courts as
caveatable interests and may be used as a guide:
•
a purchaser under an agreement for the sale of land
•
a person having an option to purchase the land
•
the grantee of an easement
•
a mortgagee
•
an equitable mortgagee
•
as chargee
•
a lessee of a lease of land
•
the beneficiary of a trust, against land held by a trustee for the trust
•
the holder of an unregistered instrument
•
a person who is to receive portion of the proceeds of land upon a sale
•
a person entitled to an annuity charged on the land
•
the grantee of a right to take from the land some natural product of it, such as peat,
stone, or timber, or to shoot game thereon, and to take it away for the grantee’s own
benefit
•
a person having the right to a restrictive covenant running with the land
and
•
a claimant who bases his or her claim upon the doctrine of resulting trusts.
In addition, s.6 of the Chattels Securities Act 1987 creates a securable interest over goods
attached to land owned by a third party. The interest will support a caveat.
Section 19 of the Imperial Judgments Act 1838 (I and II Victoria) provides for the recording in
the Supreme Court of Judgments created in Superior and other Courts, which then, by virtue of
s.13 of the same Act, operate as a charge against land.
The charge has, in the past, been protected by a caveat claiming an estate or interest as
chargee
by virtue of a judgment of the (Name of Court) made on the (date of order) in
action/plaint (number of plaint) and entered up in the Supreme Court of Western
Australia pursuant to s.19 of the Imperial Judgments Act 1838 on the (date of entry
in the Supreme Court).
However, in the case of Bank of Western Australia vs Connell (Supreme Court Library No
960433) His Honour Owen J decided that the scheme for execution, introduced by s.133 of the
TLA, could not stand together with Sections 13 and 19 of the Imperial Judgements Act 1838.
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According to this decision, the Judgments Act does not apply to land under the TLA. Therefore,
judgment creditors, their solicitors and agents should consider the effect of this decision and the
implications of lodging a caveat without reasonable cause.
Acceptance of caveats based on claims under the Imperial Judgments Act does not signify that
Landgate is expressing a view as to whether or not they will be upheld in court proceedings.
It should be noted that the Imperial Judgments Act 1838 was repealed by the Courts Legislation
and Repeal Act 2004 which came into effect on 1 May 2005. It will therefore no longer be
possible to enter a judgment in the Supreme Court pursuant to s.19 of the Imperial Judgments
Act 1838 in order to protect a charge by caveat claiming an estate or interest as chargee by
virtue of that provision.
Other interests have been listed in legal texts such as The Principles of the Australian Land
Titles (Torrens) System by Donald Kerr.
Conveyancers are also referred to a very informative paper on caveatable interests, by Mrs S
Boyle LLB, called Caveatable Interests, The Common Lore Distinguished which was delivered
to the Equity and The Transfer of Land Act seminar held by the Law Society of Western
Australia on 22nd June, 1993 and published in the Murdoch Law Review 1993.
Another useful publication is Caveats Against Dealings in Australia and New Zealand by
Shannon Lindsay.
4.1.9
Nature of the Caveator’s Claim
A caveator can restrict dealings by a registered proprietor with three types of claim; which are
outlined below.
4.1.9.1
Absolutely
An absolute caveat bars the registration of any instrument affecting the estate and interest,
except a property (seizure and sale) order and as provided in s.142. Parties to a transaction
wishing to register an instrument must either negotiate its withdrawal or have it removed by
initiating action by the Registrar under Sections 138 or 138B of the TLA, or action by the
Commissioner under s.141A, or action by the Courts under Sections 138 or 138B.
4.1.9.2
Until after notice of any intended registration or dealing to be given to the
caveator
Caveats in this form are useful for those caveators whose claim will not be defeated by the
registration of any change of interest in the land, and who merely wish to be informed of any
change in interest occurring on the title. If the change in interest is detrimental to the caveator
the caveator may choose to negotiate with the parties or obtain an injunction to prevent the
registration of the instrument.
These caveats may be shown in the Limitations, Interests, Encumbrances and Notifications
panel of any instrument dealing with the land in the title affected by the caveat. Before an
instrument is lodged against land affected by such a caveat, notice must be given to the
caveator.
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The notice must:
1.
Be addressed to the caveator, and if more than one caveator, be separately addressed.
2.
Refer to the caveator, and the caveat number.
3.
Give the particulars of the instrument(s) to be lodged subject to the caveat by reference
to:
•
the nature of the instrument
•
the parties to the instrument
•
the date of the instrument.
and
4.
State the intention to register the instrument at the expiration of the 14 days notice period.
Conveyancers should refer to s.240(4) of the TLA when calculating the expiry date of the notice
period.
The documents or instruments may then be lodged with the Registrar at the end of the notice
period. Proof of compliance with the above in the form of a statutory declaration setting out the
action taken, and annexing a copy of the notice must accompany the dealing. The dealing must
be lodged as soon as possible after the expiry of the notice period or the process of serving
notice must be repeated.
If the parties to the transaction do not wish to register their instrument subject to the caveators
claim they must either negotiate its withdrawal or have it removed by initiating action by the
Registrar under s.138 or 138B of the TLA, action by the Commissioner under s.141A, or action
in the Courts under s.138 or 138B.
4.1.9.3
Unless such instrument be expressed to be subject to the caveator’s claim.
Instruments showing the caveat as an interest may be registered.
If the parties to the transaction do not wish to register their instrument subject to the caveators
claim they must either negotiate its withdrawal or have it removed by initiating action by the
Registrar under Sections 138 or 138B of the TLA of the, action by the Commissioner under
s.141A, or action in the Courts under s.138 or 138B.
It should be noted that while the Registrar of Titles may not question the type of claim made by
the caveator, the Courts may do so. In general terms a claim based on an interest in fee simple,
such as a purchaser’s caveat, may be absolute, and caveats based on a lesser interest, such
as an equitable mortgage, should be made subject to claim .
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4.1.10
Registrar’s Role
It is not the Registrar’s duty to determine the validity of a claim. The Registrar does not
determine whether or not the particular claim made is a caveatable interest or that the evidence
offered in support is sufficient to support that claim, or that the nature of the caveator’s claim is
appropriate.
The correctness and validity of a caveator’s claim is for the caveator and, in appropriate cases,
a Court to decide.
The Registrar’s role is merely to:
•
be satisfied that a caveat meets the requirements of form
•
ensure that other statutory requirements (eg: stamp duty) are met
•
in appropriate cases, draw attention to perceived defects in the substance of the claim
made or of the sufficiency of evidence and of the risks being run by the caveator
•
record the caveat
and
•
4.1.11
give notice of the caveat to the registered proprietor or the judgment creditor named in
any property (Seizure and Sale) order registered in respect of the judgment debtor’s
saleable interest in such land.
Types of Caveats
Caveats may be lodged under the provisions of the following sections of the TLA:
•
s.137- the most common type. A caveat lodged by any beneficiary or other person
claiming an estate or interest in land under the TLA or in any lease, mortgage or
charge
•
s.30 - a caveat forbidding the bringing of land under the TLA
•
s.176 - a caveat against the granting of an application to rectify the boundaries or area of
a certificate of title
•
s.223A - a caveat against the granting of an application to be registered as the proprietor
by adverse possession of land already under the TLA
and
•
4.1.12
s.188(7) - a caveat lodged by the Registrar.
Forms to Use
Caveats under s.137 must be prepared on a form approved by the Registrar. There is a printed
form of caveat, designated Form C1 available for this purpose. This form can be used for
caveats over freehold or Crown land. The Form C4 is available for Caveats (Improper
Dealings).
Caveats under s.30 must be prepared on a form approved by the Registrar. There is a printed
form of Caveat, designated Form C3 Caveat [under s.30 and 223A of the TLA], available for this
purpose.
Caveats under s.176 and 223A must be prepared on a form approved by the Registrar. There is
a printed form of Caveat, designated Form C3, available for this purpose.
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4.2
Caveats Lodged under Section 137 of the TLA and
Section 20 of the LAA
4.2.1
Who May Lodge a Caveat Over Freehold Land
Any person or corporate body capable of taking a registered interest in land, a mortgage, a
lease or a charge may lodge a caveat. Unincorporated bodies must caveat by their trustees
personally and business associates or firms by all the individual members of the business or
firm in their personal capacity.
Identification of the trustees as trustees of ... or members of a firm trading as ... is permitted.
Certain persons with statutory authority may lodge caveats. Minors can lodge a caveat but a
Court Order will be required if the caveat is to be withdrawn before the minor attains full age.
4.2.2
Who May Lodge a Caveat Over Crown Land
All persons, corporate bodies, trustees and minors in the same capacities as set out in s.137 of
the TLA, may caveat as to an interest in Crown land (see Chapter 4.2.1 above).
A caveat over Crown land can only be lodged under s.20 of the LAA in respect to:
•
A registered interest or an interest approved by the Minister for Lands under s.18 of the
LAA but not registered.
or
•
An unregistered interest created pursuant to a management order or vesting where the
management order or vesting is created or vested for purposes of another Act.
The registered proprietor panel of the caveat form should show the party to whom the caveat is
lodged against. State of Western Australia is shown where they are the only one shown on the
Crown title or there is a management order or lease on the Crown title but the caveat evidence
is based on an agreement (eg. easement) between the State of Western Australia and the
caveator.
The management body is shown in the registered proprietor panel for evidence (eg. leases)
based on a management order or vesting. The lessee is shown in the registered proprietor
panel for evidence (eg. mortgages) based on a lease.
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4.2.3
How the Claim is Stated
The claim of the caveator must be set out clearly in the caveat.
It is very important that any options to renew the lease, or an option in the lease to purchase the
fee simple be protected by including details of the options in the fifth and sixth panels of the
caveat.
4.2.3.1
Where the caveator is claiming an estate in fee simple
Where the caveator is claiming an estate in fee simple he or she must also show how the claim
arises. A simple example of a claim arising out of a contract of sale is:
“claims an equitable estate or interest as purchaser of the fee simple ……. by
virtue of a contract of sale dated 5 January, 1994 made between the registered
proprietor as vendor and the caveator as purchaser.”
4.2.3.2
Where the caveator is claiming as equitable mortgagee
Where the caveator is claiming as equitable mortgagee an example of the claim would be:
“claims an interest as equitable mortgagee ……. by virtue of a mortgage dated 5th
January, 1994 made between the registered proprietor as mortgagor and the
caveator as mortgagee.”
It should be noted that the words fee simple are omitted, as a mortgagee’s claim is in equity
and not the fee simple.
4.2.3.3
Where the caveator is claiming as lessee
Where the caveator is claiming as lessee an example of the claim would be:
“claims an estate or interest in leasehold as lessee …... by virtue of a lease dated 5
January, 1994 made between the registered proprietor as lessor and the caveator
as lessee.”
4.2.4
Supporting Documentary Evidence
Where a claim is alleged to arise out of a document, (unless the document, or an appropriate
letter from or endorsed photocopy of the document from the Office of State Revenue (Stamp
Duties Division), or a statutory declaration stating that the documents have been lodged with the
Commissioner of State Taxation for stamping, is produced) that document must be lodged with
the caveat.
If a caveat is lodged which requires the production of a stamped agreement, and the agreement
is not lodged, a requisition will be issued under s.192 of the TLA. Failure to comply with the
requisition within seven days from the date of the requisition can lead to rejection of the caveat.
Some conveyancers have lodged caveats and then on requisition produced evidence stamped
after the date of lodgement. That practice is considered to be contrary to s.278(2) of the Duties
Act 2008. In this circumstance the caveator (or the lodging party) will need to authorise the
Registrar of Titles to re-lodge the caveat at a date and time after the date of stamping.
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4.2.5
Supporting Statutory Declarations
Where the estate or interest has not been created by a document, a statutory declaration will be
required setting out the nature of the claim and how it arose in a manner that complies with the
requirements of s.137 of the TLA. That is, the declaration must state the nature of the estate
or interest claimed and the title thereto.
If no such declaration is lodged with the caveat, a notice will be sent to the caveator requiring
production of the declaration.
Failure to comply within seven days from the date of requisition makes the caveat absolutely
null and void (s.137 of the TLA).
Declarants are required to state in their statutory declaration:
The nature of the estate or interest claimed is ...”
“The title to the estate or interest claimed arises by virtue of ....”
If the declaration provided fails to meet the above requirements, the caveat will, on the
expiration of the 7 days set out in the notice, be endorsed null and void without further reference
to the lodging party.
4.2.6
Land
The land must be accurately described in the Description of Land being Caveated panel of
the caveat form. The land must still be defined where the interest claimed is against a
mortgage, lease or charge but appropriate qualifying words must be added.
For example, in the case of a mortgage, the following words must precede the land description:
“As to mortgage F123456”
Where portion of the land in a certificate of title is caveated against and it is desired to make an
absolute claim, such portion must be defined by a sketch bearing sufficient measurements to
enable the land affected to be accurately plotted (see paragraph 1.9.3). The sketch should be
drawn on or fixed to an additional sheet stapled to the caveat.
Where portion of the land in a title is involved that is not the whole of a lot or part lot in that title,
then care is needed in its description. There is a need to ensure that no more land is caveated
than is necessary.
It is therefore desirable that the land description be supported by a sketch that identifies the
land being caveated. That sketch should be certified correct by the caveator and, if time
permits, referred to the Survey Advice Officer in the Land Registration Centre in the Landgate
building in Midland (see paragraph 1.9.3 and LTRPM Form Examples- Example 12).
It is not necessary for the sketch to be the same standard as required for registered documents.
If the land in a title is Lot 1 on Plan 1 and the caveat refers to portion of Lot 1 on Plan 1 with no
further description, then that caveat has in the past been accepted with reluctance.
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However, caveators (and their conveyancers) need to be aware that certain problems can flow
from this practice, which may result in a claim against them for compensation under s.140 of the
TLA. Having no way of determining what part of the land the caveat applies to, the Registrar
has no alternative but to deal with it as if it binds the whole land. In a subdivision of land (which
in this case does not include a strata/survey-strata scheme - see paragraph 6.4.1):
•
the caveat will carry forward onto part of every lot
•
if part of the land in the lot is to vest in the Crown under s.152 of the P&D Act (formerly
s.20A of the TP&D Act) or otherwise, then it will be necessary for the caveat to be
withdrawn as to that portion
and
•
if it is unclear as to which portion of land a caveat affects, it may create difficulties for or
prevent the registered proprietor dealing with other parts of the land.
As the Registrar does not know which part of the land is affected, a withdrawal of the caveat
from the portion of the land being dealt on may be insisted upon. Since comments by Malcolm
C J and Rowland J in Kuper & Keywest Construction Pty Ltd (1990) 3 WAR 419, the Registrar
has requested the caveator to accurately and clearly define the land being caveated.
This has been interpreted by many conveyancers as a requirement that surveyed
measurements be provided. That is not the case! The Registrar will accept lines and
measurements on a photocopy of an architect’s plan or of a sketch on the certificate of title.
What is being asked for is an accurate description of the land to be affected by the caveat. That
need not necessarily be the same as the land the subject of the claimed estate or interest.
All that is required is that sufficient dimensions or descriptions be provided to enable the
Registrar and searchers of a caveat to ascertain the land affected by the caveat. If that is done,
then the Registrar is not concerned as to whether or not the stated dimensions accurately
define the boundaries and location of the claimed estate or interest.
The degree of accuracy provided is a matter of judgment for the conveyancer and the caveator.
That judgment no doubt will be affected by available time, cost, and purpose of lodging the
caveat and concerns as to caveating the wrong land or too much or too little land.
It is suggested that in many cases, the purpose of lodging a caveat will be achieved if the land
to be caveated is less than the area the subject of the claimed estate or interest.
In many cases, a client may prefer to personally make the measurements, allow for a margin of
error and nominate a lesser area for protection by caveat so as to facilitate early lodgement of a
caveat and to avoid survey costs.
A statement could be made in the caveat that the land caveated may be less than the area, the
subject of the claimed estate or interest. For example, in a purchaser’s caveat in the section
setting out the grounds of the claim it might be stated:
“… by virtue of a contract of sale dated 1st January, 1993 made between the
registered proprietor as vendor and the caveator as purchaser in respect of land
that comprises or includes the land being caveated “
That is, the land the subject of the claimed estate or interest comprises or includes the caveated
land.
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4.2.7
Who May Sign Caveats
Caveats may be signed by:
•
the caveator or caveators personally
•
the caveator’s solicitor, signing as his or her solicitor and agent
•
a licensed estate agent, signing as agent for the caveator
•
a principal of a settlement service, signing as agent for the caveator
•
a responsible officer of a caveator company, ie: director, secretary or manager
•
the attorney or senior securities officer of a bank being a caveator
or
•
4.2.8
the attorney for the caveator.
Notice to Registered Proprietors
The Registrar is required by s.138 of the TLA to give notice of the lodgement of a caveat to the
registered proprietor. The notice consists of a memorandum containing the essential details of
the caveat sent by ordinary mail to the address of the registered proprietor shown in the
Register. Notice will also be sent by ordinary mail to any other later address of which the
Registrar has knowledge.
Section 31 of the TLA requires the Registrar to notify a person applying to bring land under the
TLA that a caveat has been lodged prohibiting the Registrar from proceeding with the
application. Applicants are also notified of caveats lodged against applications under s.s 176
and 223A of the TLA.
4.2.9
Address for Service of Notice
Each caveator must state either an address or a fax number (one or the other, not both), within
Australia, where notices relating to the caveat may be served.
4.2.10
Change of Address for Service of Notice
The caveator may make application under s.240A of the TLA to change the address or fax
number given on a caveat for service of notice. The application must be made on an application
Form A5 and contain:
•
a description of the land caveated
•
the name and address of the caveator
•
the document number of the caveat
•
a request to amend the address or the number for a facsimile machine for service of
notices from the old address or facsimile number to the new address or facsimile number
and
•
the date and signature of the caveator.
The address for service of notices to the caveator is most important. Caveators and persons
acting on their behalf should ensure that such address is kept current.
The caveators responsibility for the caveat does not end when the caveat is lodged. Caveators
must deal with any statutory notice sent to them, as their rights will always be affected. If they
do not understand the nature or effect of the notice, they should immediately seek legal advice.
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4.2.11
Caveat against Applications to Bring Land under the Operation of
the TLA (Section 30)
Following the advertisement of the intention of the Registrar to bring land under the operation of
the TLA, any person claiming an estate or interest in the land may lodge a caveat forbidding the
bringing of such land under the TLA.
Such caveat must be on a form approved by the Registrar. There is a printed form of Caveat,
designated Form C3 Caveat [under s.30 and 223A of the TLA], available for this purpose.
The estate or interest claimed must be particularised and, if required by the Registrar, must be
supported by the statutory declaration of the caveator. This declaration must be supplied within
seven days of the Registrar’s requisition, failing which the caveat will become null and void.
The Registrar may also require a perfect abstract of title setting out the estate or interest
claimed. An address or fax number, within Australia, for service of notices to the caveator must
be supplied.
The caveat has the effect of suspending action on the application until:
•
the caveat is withdrawn
•
the caveat has lapsed
or
•
an order of the Court is obtained and served on the Registrar.
The caveat will lapse after thirty days from the date of lodgement if the caveator has not taken
proceedings in Court to substantiate his or her claim and served on the Registrar an injunction
of the Court restraining the Registrar from bringing the land under the TLA.
4.2.12
Caveat against an Application to Rectify the Boundaries or Area of
the Relevant Graphic for a Title (Section 176 of the TLA)
The provisions of s.176 of the TLA, with the necessary changes in detail, are similar to those set
out in paragraph 4.2.11 above.
4.2.13
Caveat against an Application by Possession of Land Already under
The TLA (Section 223A)
The provisions of s.223A, with the necessary changes in detail, are similar to those set out in
paragraph 4.2.11 above.
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4.3
Removal of Caveats
4.3.1
By Withdrawal
A caveat may be withdrawn by lodgement of a Form W1 Withdrawal of Caveat which should
show:
•
the land affected
•
the caveat being withdrawn, by its number
•
whether the withdrawal is total or partial
and
•
the signature of the caveator (see note below) witnessed by an adult person who must
show his or her address and occupation.
For an example of how to fill out the document, (see LTRPM Form Examples - Example 25).
Where a caveat has been lodged by a purchaser pursuant to a sale of land on terms and a
transfer of the same land to the caveator is being lodged, it is permissible for the solicitor
lodging the transfer to sign the withdrawal on behalf of the caveator, provided the transfer and
withdrawal of caveat are lodged together.
In these cases the withdrawal should be drawn in the name of the caveator and the attestation
should indicate that the solicitor signs as solicitor for the caveator eg: A (the caveator) by his
solicitor B or A (the caveator) by his solicitors B Legal & Co per B (a member of the firm). The
signature of the solicitor must be witnessed in the usual manner.
4.3.2
By Lapse under Section 138 of the TLA (14 Days Notice)
On the presentation for registration of an instrument and on written request signed by:
•
a party to the instrument
•
a solicitor for the party to the instrument or, if a firm of solicitors, a member of that firm
•
a licensed settlement agent, on the letterhead of his or her firm
•
a licensed estate agent on the letterhead of his or her firm
or
•
the senior security officer of a bank on a bank letterhead;
and on payment of the prescribed fee, fourteen days notice will be sent by the Registrar to the
caveator at the address or the number for a facsimile machine for service of notice given in the
caveat. The notice will require the caveator to take action in Court to substantiate his or her
claim, failing which the caveat will lapse and the instrument will be registered.
It should be noted that a caveat lapses only to the extent necessary to permit the
registration of the instrument under which the notice was sent. In the case of a paper title, a
transfer of one lot out of several in the title results in the lapse of a caveat as to that one lot only.
Notice may not be sent on caveats lodged by the Registrar or caveats lodged by a
beneficiary under a will or trust.
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4.3.3
Caveat (Improper Dealings)
In order to remove a Caveat (Improper Dealings) all the registered proprietor(s) must present
themselves in person at the same time at Landgate’s Midland office and satisfy as a minimum
the requirements of a 100 point check using original documents (copies are not allowed). Only
the registered proprietor(s) of the property can remove the Caveat in person. A Withdrawal of
Caveat (Improper Dealings) can only be lodged at the time of witnessing.
A Power of Attorney cannot be used to withdraw the Caveat.
Due to the operation of law the Caveat (Improper Dealings) will not prevent the following,
including but not limited to:
•
Mortgagee exercising a power of sale would be able to use s.138B of the TLA as the
application is not being signed by the registered proprietor(s).
•
Sale of the property by a Local Government for non-payment of rates.
•
Sale by the Sheriff under a Property (Seizure and Sale) Order.
•
In the case of deceased owner(s) Survivorship and Transmission.
and
•
4.3.4
Sale under the Criminal Confiscation Act 2000
By Taking or Acquisition
Any caveat lodged over land taken under the LAA or compulsorily acquired by the
Commonwealth under the LAA, is automatically removed. The caveator’s claim is converted into
a right to claim for compensation.
4.3.5
By Order of the Court
On the motion of the registered proprietor, a Judge or the Court may make an order removing a
caveat from the register. On receipt of an office copy of the order with an application (Form A5)
and the payment of the required fee, the caveat is removed from the title.
4.3.6
By Sale For Rates
With the exception of caveats by the Commissioner for State Taxation, which must be
withdrawn, all caveats are automatically removed on the exercise by a Local Government of its
power to sell land for non-payment of rates under the Local Government Act, 1995.
4.3.7
By the Application of the Registered Proprietor under Section 138B
See paragraph 3.11.
4.3.8
By the Application of the Registered Proprietor or Any Person
Claiming an Interest in the Land under Section 141A
See paragraph 3.12.
4.3.9
By a Sale under a Property (Seizure and Sale) Order
Where a transfer is registered giving effect to a sale by the Sheriff under a Property (Seizure
and Sale) Order, any caveat lodged subsequent to the Property (Seizure and Sale) Order and
without the consent of the Sheriff is automatically removed.
A caveat lodged specifically to prevent the sale will delay registration until withdrawn, removed
or lapsed.
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4.4
Writs of Fieri Facias and Warrants of Execution
4.4.1
General
Writs and warrants, although issuing from different Courts, had the same effect when lodged
against land registered under the TLA or any lease, mortgage or charge and for convenience
are dealt with together. Writs were issued out of the Supreme Court and District Court and
Warrants were issued out of the Local Court.
Writs and warrants had a life of twelve months and could be extended, prior to their expiry, by a
Judge or Magistrate. The original writ or warrant was lodged with the Sheriff or Bailiff, and the
Registrar was served with a certified copy (in practice they were simply lodged).
Most writs and warrants were lodged by either natural persons or incorporated bodies, but
under the Supreme Court Rules legal firms could successfully apply for the issue of a writ or
warrant in the name of the legal firm or partnership. Although this did not cause any problems at
lodgement, care needed to be taken when withdrawing it from the title.
4.4.2
How Lodged
Where a judgment creditor desired to execute a writ or warrant against any land, lease,
mortgage or charge registered in the name of the judgment debtor, he or she had to comply
with the provisions of s.133 of the TLA. Service on the Registrar was effected by lodging a
certified copy of a writ issued out of the Supreme Court or the District Court or a certified copy of
a Warrant issued out of the Local Court.
The authority to treat warrants in the same manner as Writs of Fieri Facias was contained in
s.125 of the Local Courts Act 1904. Each copy of a writ or warrant lodged must have had
endorsed on it a statement in the following form:
To the Registrar of Titles,
The land sought to be affected by the within Writ of Fieri Facias (or Warrant of
Execution) is all that piece of land being (then follows correct land description)
standing in the Register in the name of A of etc.
Signed A B Legal & Co
per
Solicitor for the Judgment Creditor
Where there was more than one registered proprietor and only one is the judgment debtor, the
above statement must have been limited to the interest of the named judgment debtor.
The identity of the judgment debtor with the registered proprietor must have been properly
established. Any difference shown in the writ or warrant of name, address or occupation with
those shown in the Register must have been explained by statutory declaration. The declarant
must have stated the means of knowledge. The declaration must have positively identified the
registered proprietor of the land as the defendant in the action.

Note:
With the introduction of the Civil Judgments Enforcement Act 2004, which came into operation
on 1 May 2005, writs and warrants have been replaced with an enforcement process known as
a Property (Seizure and Sale) Order (See paragraph 4.6.1).
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4.4.3
Effect of Lodgement
A writ or warrant remained in effect on the Register for a period of four months from the date of
lodgement unless it was withdrawn. Within the twelve months life of the writ or warrant or any
extension thereof (see paragraph 4.4.1 above) a further copy of the writ or warrant could be
lodged during or after the expiry of any previous four month period. While current, a writ or
warrant had the same effect as an absolute caveat. If a transfer by way of sale under the writ or
warrant was presented for registration, it must have been presented during the period in which
the writ or warrant was current.
If the latest four month period had expired, a further copy of the writ or warrant must have been
lodged before registration of the transfer could take place (s.90 of the TLA- deleted by No. 59 of
2004’s 140). When the time (4 months) was calculated- the day of lodgement was not counted
and no account was taken of the time of lodgement in calculating the expiry as expiry occurs at
the end of the last day.

Note:
With the introduction of the Civil Judgments Enforcement Act 2004, which came into operation
on 1 May 2005, writs and warrants have been replaced with an enforcement process known as
a Property (Seizure and Sale) Order (See paragraph 4.6.1).
Any writ or warrant endorsed on a title that was still current as at 1 May 2005 was deemed to be
a Property (Seizure and Sale) Order and automatically bound the title for 6 months from the
date of its lodgement.
4.4.4
Interests in Land Protected Against Execution
Certain interests in land were protected against execution. These were:
•
land held by a person or trustee (unless the person was named as execution debtor in his
or her capacity as trustee)
•
a lease of a homestead farm (s.66(3) of the Land Act 1933)
•
land subject to a State Housing Commission mortgage granted under the State Housing
Act of 1946-75 which could not be sold except with the consent of the Commission (no
consent was required for similar mortgages issued under the Housing Act)
and
•
land subject to a mortgage under the Defence Service Homes Act 1918 which could not
be taken in execution without the consent in writing of the Defence Service Homes
Corporation.
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4.5
Removal of Writs and Warrants
4.5.1
By Application
A judgement creditor can have a writ or warrant removed as an encumbrance by lodging a
completed Form A5. Details included on the form could be:
•
specifying the land
•
identifying the writ or warrant by its number
•
requesting that the writ or warrant be removed as an encumbrance
and
•
dated and signed by the judgment creditor.
The application may be signed by the solicitor acting for the judgement creditor where the writ
or warrant is being withdrawn from the whole of the land specified therein and the form states
that the writ or warrant has been fully paid and satisfied.
Where the application is to withdraw the writ or warrant from part only of the land the
application must be signed by the judgment creditor. Incorporated bodies must sign the
application by use of their common seal provisions, or by their authorised and noted attorney.
Where the judgment creditor is a firm of legal practitioners, a withdrawal signed by a majority of
the partners will be accepted. A declaration by one of the partners identifying the signatures as
a majority of the partners will be required to support the application.
4.5.2
By the Commissioner of Titles
Under s.185 of the TLA, the Commissioner could remove a writ or warrant from the Register
upon proof that the judgment had been satisfied. The application on a Form A5 was usually (not
necessarily always) made by the registered proprietor and supported by a statutory declaration
annexing or introducing proof of satisfaction (payment) of the debt.

Note:
This section has now been repealed.
4.5.3
By Expiry of the Four Month Period
If the writ or warrant was not renewed within the four month period specified in s.133, then the
writ or warrant was no longer effective. It was not removed from the Register but in practice it is
ignored as an encumbrance.
4.5.4
By Taking or Acquisition
Where land subject to a writ or warrant was taken under the LAA or compulsorily acquired by
the Commonwealth under the LAA, the writ or warrant ceased to have any effect.
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4.5.5
By Exercise of a Mortgagee’s Power of Sale
Where a mortgagee exercised his or her power of sale under a mortgage and transferred the
land to a purchaser, any writ or warrant lodged subsequent to the mortgage was removed as an
encumbrance.
4.5.6
By Sale For Rates
Where a local Government exercises its power to sell land for non-payment of rates and lodged
a transfer to give effect to such sale, any writ or warrant against the land was removed as an
encumbrance.
4.5.7
By Transfer by the Sheriff, Bailiff or Magistrate
A writ or warrant was removed as an encumbrance on the registration of a transfer, by way of
sale by the sheriff, bailiff or magistrate.
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4.6
Property (Seizure and Sale) Orders (PSSO)
4.6.1
General
The Civil Judgments Enforcement Act 2004 (the Act) was proclaimed on 22 December 2004
and came into operation on 1 May 2005. The object of this Act is to provide for the enforcement
of Judgments given in the civil jurisdiction of the Supreme, District, Federal and Magistrates
Courts (the Court) and for related matters.
This Act introduces an enforcement process known as a Property (Seizure and Sale) Order
(PSSO). A PSSO replaces a Warrant of Execution (Warrant) and a Writ of Fieri Facias (Fi-Fa)
(see paragraph 4.4.1).
Parts 3 and 24 of the Acts Amendment (Justice) Act 2007 became operative on 30 September
2008 and amended sections 133, 138 and 139 of the TLA in relation to Property (Seizure and
Sale) Order (PSSO) under the Civil Judgments Enforcement Act 2004.
Regulations 37 and 41 of the Civil Judgments Enforcement Regulations 2005 have also been
amended.
A PSSO can be issued out of any of the above-mentioned courts and has a life of 12 Months.
An Application can be made to the court to extend the life of a PSSO beyond the initial 12
months period.
When the Court issues a PSSO it is given to the Sheriff. The Sheriff records receipt of the
PSSO and sends a certified copy of it to the Judgment creditor.
4.6.2
How Lodged
To register a PSSO, a copy certified by the Sheriff or a Deputy Sheriff, must be attached to a
Form A10 Application to Register Property (Seizure and Sale) Order.
The Form A10 can be downloaded from Landgate’s corporate website at Quick Links/ Freehold
Land Registration Forms.
A PSSO can be registered against the registered interests of:
•
the proprietor of the fee simple
or
•
4.6.2.1
a mortgagee \ chargee \ lessee etc.
Against the Fee Simple
If the PSSO is to be registered against the proprietor of the fee simple, Fee Simple is to be
inserted under the words Description (Note 1) in the Saleable Interest panel of the application.
4.6.2.2
Against Other Interests
A PSSO can be registered against a mortgage, charge or lease etc. If the PSSO is to be lodged
against, for example a mortgagee’s interest, Mortgage is to be inserted under the words
Description (Note 1) and the Mortgage number inserted under the words Registration
Number (Note 2).
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4.6.2.3
Execution
An Form A10 Application to Register a Property (Seizure and Sale) Order incorporates a
statutory declaration to declare that the judgment debtor as shown in the PSSO is one and the
same person as the proprietor of the saleable interest referred to on the certificate of title. A
person qualified to take statutory declarations must witness the document.

Note:
The statutory declaration is part of the form and is to be made even if there are no
discrepancies in the names or address.
4.6.2.4
Suspension Order
Before the application to register the PSSO is lodged, the court may have granted a Suspension
Order. Therefore an application to register a PSSO has the following question that must be
answered:
Has a Suspension Order been made?
YES / NO
If a suspension order has been made an original sealed copy of it must also accompany the
application.
No reference to a Suspension Order is necessary when the PSSO is endorsed on the title.
However, on the rare occasion that a suspension order is lodged with an application to register
a PSSO, it will be referred to the Lead Consultant Complex Dealings to determine (on a case by
case basis) whether a special endorsement is required.

Note:
If a suspension order is obtained after the PSSO has been registered, there is no provision or
requirement that it be served on the Registrar of Titles.
The Sheriff will not sell the land while a PSSO is subject to a suspension order.
4.6.3
Effect of Registration
An Application to register a Property (Seizure and Sale) Order Form A10 binds the land for 6
months (the sale period) from the date of its registration. If the court grants an order extending
the sale period, an application to register an order extending the sale period (see paragraph
4.6.4) must be lodged before the 6 months period has expired.
If a PSSO endorsed on the title has expired, it no longer binds the register. However, before any
instruments (e.g. Transfers, Mortgages and Leases etc.) can be registered, an Application to
Register a Discharge of a Property (Seizure and Sale) Order (see paragraph 4.7.2) must be
lodged.
When a PSSO is registered against land and is current, it is a bar to the registration of
subsequent instruments (other than another PSSO or an order or notice given under the Land
Administration Act 1997 by the Minister in relation to crown land), unless the written consent of
the Sheriff or Deputy Sheriff is endorsed on or filed with the document to be lodged.
If a caveat is lodged against the proprietor of the fee simple or other interest that is encumbered
by a PSSO, notice that a caveat has been lodged must be served on the judgment creditor. The
judgment creditor can take action to remove the caveat under s.138B of the TLA.
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4.6.4
Application to Register an Order Extending the Sale Period in a
Property (Seizure and Sale) Order
When a PSSO has been registered it binds the land for 6 months (called the sale period). It may
be possible to obtain an order extending the sale period in a PSSO. The court may extend it for
any specified time period that is not greater than 6 months.
To register an order extending the sale period in a PSSO, an original sealed copy of the order
must be attached to a Form A11 Application to Register an Order Extending the Sale period in a
Property (Seizure and Sale) Order. A Form A11 to register an order to extending the sale period
must the lodged before the expiry of the PSSO.
The Form A11 can be downloaded from Landgate’s corporate website at Quick Links/ Freehold
Land Registration Forms.
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4.7
Removal of Property (Seizure and Sale) Orders
4.7.1
General
A Property (Seizure and Sale) Order (PSSO) lodged against land will prevent the registration of
any instruments (e.g. transfers, mortgages and leases etc) without the written consent of the
Sheriff. If the registered proprietor wants to deal with the land, the PSSO (whether current or
lapsed) must be removed from the relevant certificate of title.
Removal of a PSSO is achieved in the following ways:
4.7.2
Application to Register a Discharge of a Property (Seizure and Sale)
Order
An expired PSSO must be removed from the certificate of title before dealing with the land (i.e.
selling or mortgaging etc.). Form A12 Application to Register a Discharge of a Property (Seizure
and Sale) Order has been created for this purpose. This form can be downloaded from
Landgate’s corporate website at Quick Links/ Freehold Land Registration Forms.
The application to discharge a PSSO has a Reason Panel giving 4 options. Three of the
options need to be deleted leaving the one that suits the circumstance.
To register a discharge of a PSSO, the application can be made by:
•
the judgment creditor using Option 1 (no evidence is required)
•
by any person using Option 4 if the sale period has expired (no evidence is required)
or
•
4.7.3
by any person using Options 2 or 3 if the judgment to which the order relates has been
satisfied or the order has been cancelled (evidence must be produced– see Instruction 2
on the document).
By Exercise of a Mortgagee’s Power of Sale
A PSSO that is still current is removed as an encumbrance on the registration of a mortgagee’s
power of sale transfer, if the written consent of the Sheriff is obtained and filed with the transfer.
The following are exceptions to the general rule:
•
absolute Caveats (subject to claim caveats may be shown as an encumbrance)
•
memorials lodged pursuant to certain statutory provisions prohibiting dealing with the
estate and interest of the registered proprietor. See Chapter 11 for a detailed list of
Statutes
•
leases and easements to which the mortgagee has given an unqualified consent (s.110)
and
•
notice of intention to take under the LAA.
Caveats must be withdrawn, or removed pursuant to sections 138, 138B or 141A of the TLA. If
the sale period of a PSSO has expired, an Application to Register a Discharge of Property
(Seizure and Sale) Order must be lodged with the transfer (see paragraph 4.7.2).
4.7.4
By Transfer by the Sheriff
A PSSO is automatically removed as an encumbrance on the registration of a transfer, by way
of sale by the Sheriff. (see paragraph 2.2.10)
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5.
Powers of Attorney and
Declarations of Trust
This chapter contains information relating to Powers of Attorney, Enduring
Powers of Attorney and their subsequent revocation, Declarations of Trust and
the supporting evidence required to be lodged at Landgate.
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5.1
Powers of Attorney
A Power of Attorney document under the TLA is subject to the Verification of
Identity Practice issued jointly by the Western Australian Registrar of Titles and
Commissioner of Titles.
Please refer to Chapter 14.
5.1.1
General
Powers of attorney, once recorded under the TLA, remain in force until revoked or until the
purpose or time for which they were created has passed.
The powers given to the donee of a power of attorney must be stated specifically and not left to
general words in the power. It is an invariable rule that by such general words the donor must
be held to confer on the donee only such other powers, not specifically mentioned, as are
absolutely necessary for the effective doing of the act for which the power was primarily given.
Where more than one (1) donee has been appointed they must state the capacity in which they
act (e.g. Jointly or Jointly and Severally).
5.1.2
Noting and Filing
A power of attorney may be presented for noting and filing either:
•
in schedule form (Nineteenth Schedule to the TLA, Form P1 Power of Attorney); or
•
in recital form as a deed, provided that some powers under the TLA are given.
When a power of attorney is lodged it is retained by Landgate. If a power is required to deal with
other matters in addition to land, consideration might be given to the preparation of separate
powers. One could be in schedule form, with variations or additions as required and could be
lodged for filing and noting by Landgate.
The other, in customary form, could contain the other powers required and be retained by the
parties for general use. Alternatively, two signed copies of the power of attorney document
should be lodged, one of which will be retained as part of the Landgate records, and the other
identified as the ‘Client Original’ will be returned to the lodging party once recorded.
An original power of attorney, a properly attested duplicate power of attorney or a copy of a
power of attorney certified by the Australian Securities & Investments Commission may be
lodged on payment of the prescribed fee.
Where a power of attorney is dated more than three months before the date on which it is
presented for recording then proof must be supplied, to the satisfaction of the Registrar, that the
power has not been revoked.
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Such proof is normally supplied in the form of a statutory declaration made by the donee(s) of
the power of attorney, including any substitute donee(s). In that declaration the donee should:
•
identify the declarant as the donee
•
identify the power of attorney by reference to the donor and the date of execution
•
state that the donor is still alive
•
state that the power of attorney has not been revoked
and
•
state when and how the donee last saw or communicated with the donor.
Alternately, a statutory declaration made by the donor(s) of the power of attorney. In that
declaration the donor should:
•
identify the declarant as the donor
•
identify the power of attorney by reference to the donee(s) and the date of execution
•
state that the donee(s) is / are still alive
•
state that the power of attorney has not been revoked
and
•
state when and how the donor last saw or communicated with the donee(s).
If a Power of Attorney has a limited life between the donor and the donee, then it can only be
lodged during the currency of that life, e.g. a power limited to a defined period of absence from
the State of the donor can only be lodged before or during that period.
The design of the computerised power of attorney register does not limit the number of donors
in any one document. It is recommended that preparing parties show restraint in the number of
donors appointed, and impose the same requirement on the number of attorneys in one
document.
5.1.3
Production For Sighting
There are occasions where a power of attorney need only be produced for sighting and not
lodged. Where the attorney is signing as transferee of a transfer of land on behalf of the donor,
and the power of attorney has not previously noted and filed, production for sighting is all that is
required. The power of attorney will be noted and filed if requested but it is not strictly
necessary. However it is important that the power of attorney when presented conforms with the
standards required for registration. The power of attorney must be:
•
properly executed and attested
•
dated within the three month period previously mentioned
and
•
contain the power necessary to perform the act for which it is produced.
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5.1.4
Schedule Form
The Western Australian Supreme Court case of Clazy v Registrar of Titles (1902) 4 WALR 113
emphasised that a power of attorney created for noting and filing under the TLA in Western
Australia must be in the form of, or substantially in the form of, the form set out in the
Nineteenth schedule of the TLA.
An examination of the form reveals the following features:
•
the donee must be a natural person or a corporation
•
the attorney must be given a power or powers to deal in land registered under the TLA
•
after listing a comprehensive set of powers to deal in land registered under the Act, the
form provides for the insertion of express words that restrict those comprehensive powers
to those inserted in this section (see LTRPM Form Examples - Example 20)
and
•
the attorney is then given the power to sign the documents and do the acts necessary to
carry out the powers listed, and preserve the rights and assets of the donor.
Powers of attorney to be noted and filed, whether on a printed form or on a typed form, must
contain the same elements:
•
The attorney may be the person holding a particular position. As an example, a financial
institution may appoint the person holding the position of Loans Manager as an attorney
to lodge and withdraw caveats.
In cases such as this, the preferred form of attestation would be:
Signed by (Name of Attorney) the
)
Loans Manager of (Name of Donor) as
)
(Signature of Attorney)
attorney for (Name of Donor) in
)
P/A Number (insert number)
the presence of
)
Witness
Full Name, Address and Occupation
•
The power of attorney document must name a person, or may appoint a position where
the above described conditions are met. The power of attorney document may also
qualify the appointment of a named person by naming the position held by that person (in
which case the person would only remain the attorney during the period the stated
position was held).
•
The power of attorney document must expressly or by necessary implication refer to real
property in Western Australia, e.g. the appointment, by a donor from outside Western
Australia, of a Western Australian Attorney will constitute necessary implication; and,
•
The power of attorney document must give both the power to deal in land in very specific
terms (eg: to sell, to mortgage, to lease, etc) and then the authority to carry out those
specific powers (giving the power to sign a transfer, mortgage or lease, etc).
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5.1.5
Power of Attorney by a Corporation
A corporation may appoint an attorney by executing a power of attorney under its common seal.
The authority for a corporation to act by an attorney is contained in s.88 of the Property Law Act
1969 and s.129 of the Corporations Act 2001 (Cwlth). The Registrar of Titles is prepared to
accept the appointment of a named position within a corporation where a clause to the
following effect is included in such powers of attorney documents.
”Any person including the Registrar of Titles of Western Australia or any other
registration authority in Australia or elsewhere, dealing with the attorney or a
person purporting to be an attorney under this power, is:
(a)
Entitled to rely on execution of any document by that person as conclusive
evidence that:
•
the person holds the office set out in the power;
•
the power of attorney has come into effect;
•
the power of attorney has not been revoked;
the right or power being exercised or being purported to be exercised is properly
exercised and that the circumstances have arisen to authorise the exercise of that
right and power.
(b)
Not required to make any inquiries in respect of any of the above matters.”
The Registrar of Titles is also prepared to accept the appointment of attorneys identified as a
Category of Officer within the corporation if all the powers to be exercised are common to
each category of officer. This means that it is possible to authorise an officer in Category 1 and
an officer in Category 2 acting jointly to exercise all the powers in the power of attorney.
However, it is not possible to deposit a power of attorney where different powers are to be
given to different categories of officer.
The following indemnity clause must be contained in each power of attorney document as
follows:
“Any person including the Registrar of Titles of Western Australia or any other
registration authority in Australia or elsewhere, dealing with the attorney or a
person purporting to be an attorney under this power, is:
(a)
Entitled to rely on execution of any document by that person as conclusive
evidence that:
•
the person is an Officer of the Category set out in the power;
•
the power of attorney has come into effect;
•
the power of attorney has not been revoked;
the right or power being exercised or being purported to be exercised is properly
exercised and that the circumstances have arisen to authorise the exercise of that
right and power.
(b)
Not required to make any inquiries in respect of any of the above matters.”
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Suggested execution clause may be:
Signed by (Name of Attorney) the
)
Category (number or level) officer of the (Name of Donor or
another corporation if applicable)
)
as attorney for (Name of Donor)
) (Signature of Attorney)
Power of Attorney number (insert P/A number)
)
In the presence of:
)
Signature of Witness
Full Name, Address and Occupation of Witness
5.1.6
Power of Attorney by Trustee
Trustees may appoint an attorney to act in their place under the provisions of s.54 of the
Trustees Act 1962 (referred to as the Act in this section).
Where trustees are:
•
incapacitated by reason of ill health
•
absent from the State
or
•
a member of the armed forces;
they may execute a power of attorney which, if in required form, may be recorded under the
TLA.
The donee of such a power may not be the only other co-trustee unless that co-trustee is a
trustee corporation.
Where the trustee is not the sole trustee, the consent of all other trustees must be obtained to
the power of attorney before noting and filing.
Every dealing by the attorney for a trustee must be accompanied by a statutory declaration to
the effect that at the date of the exercise of the power the donor was still either:
•
incapacitated
•
absent from the State
or
•
a member of the armed forces.
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A power of attorney under s.54 of the Act is revoked by the subsequent recovery from
incapacity of the donor, his or her return to the State or discharge from the armed forces. A
power revoked in these circumstances is not revived by a subsequent occurrence of the
condition which enabled the power to be granted, eg: a further absence from the State.
Where s.54 of the Act does not apply but the trust deed empowers the Trustee to delegate the
exercise of the trusts, the Trustee may execute a power of attorney which, if in required form,
may be recorded under the TLA. However, as the Register under the TLA is based on the legal
proprietorship and does not note trusts on the register, any power of attorney lodged with the
Registrar of Titles must enable the Registrar to register transactions on properties registered or
otherwise held in the name of the grantor without reference to the terms of any trust.
If the attorney executes a document that affects the grantor in some capacity other than that in
respect of which the attorney is authorised to act, that should be an issue solely between the
grantor and the attorney. For a Power of Attorney to be registered under the TLA, it is essential
that the grantor, whether in the grantor’s own right, as trustee of a particular fund or in any other
capacity be bound by such document and that the Registrar of Titles and others not be bound to
inquire whether the attorney or purported attorney has acted within power.
If the grant of the power of attorney is restricted, as between the grantor and the grantee, to the
grantor’s powers as a trustee then a clause to the following effect is to be included in such
powers of attorney documents:
“Any person including the Registrar of Titles of Western Australia or any other
registration authority in Australia or elsewhere, dealing with the attorney or a
person purporting to be an attorney under this power, is:
(a)
Entitled to rely on execution of any document by that person as conclusive
evidence that:
•
the person is authorised to execute the document under the power of
attorney on behalf of the donor in the donor’s capacity as trustee as set out
in the power of attorney;
•
the power of attorney has come into effect;
•
the power of attorney has not been revoked;
•
the right or power being exercised or being purported to be exercised is
properly exercised and that the circumstances have arisen to authorise the
exercise of that right and power.
(b)
Not required to make any inquiries in respect of any of the above matters.”
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5.1.7
Powers of Attorney in a General Lien, etc.
Commercial documents in the nature of a mortgage, such as General Liens, Equitable Charges
and Debentures, usually contain a power for the lender, on default by the borrower, to appoint
a receiver or a receiver and manager. It is usual also for the document to create the appointed
receiver the attorney of the borrower with all the powers set out in the document.
Provided the document creates a power of attorney and it is properly witnessed as set out in
s.145 of the TLA, it may be registered as a power of attorney. Registration depends on the
evidence provided in support, which should take the form of a statutory declaration by the
receiver declaring that:
•
default has occurred on a specified date in the payment of moneys owing under the
document of loan (to be identified);
•
notice to remedy the default has been given to the borrower, but the default was not
remedied within the notice period;
•
the declarant has been appointed a receiver of the borrower by the lender and that such
appointment is still current (a copy of the notice of appointment, as lodged with the
Australian Securities & Investments Commission and certified correct by the Commission
must be produced with the declaration);
•
the declarant is the attorney for the borrower under the terms of the loan document;
•
default has continued to the date of sale; and,
•
the land being dealt with is land to which the loan document applied.
Powers of attorney of this nature are usually deposited at the same time as a transfer of the
land affected is presented for registration.
5.1.8
Limited Powers of Attorney
Powers of attorney may be deposited where the scope or extent of the attorney’s power to act
on behalf of the donor is limited.
Where a power of attorney is given to the donee to act during the donor’s absence from the
State, before any dealing executed by the attorney may be registered, a statutory declaration is
required to the effect that the donor is outside the State.
A power of attorney may also be limited to the performance of a single act, e.g. the sale or
purchase of a specified piece of land or the mortgage thereof.
A power of attorney can be given for a limited period of time, eg: for twelve months from the
date of signing.
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5.1.9
Irrevocable Power of Attorney
The Property Law Act 1969 at Part V111 permits the creation of an irrevocable power for
valuable consideration (s.86) or an irrevocable power for a fixed time (s.87).
To be filed under the TLA an irrevocable power for valuable consideration would have to meet
the normal requirements of form (i.e. be substantially in the form of the Nineteenth Schedule to
the TLA) in addition to disclosing the fact that the power was given for valuable consideration,
and confirmation of the parties intention that the power be irrevocable. It is not necessary for the
precise amount of consideration to be shown in the power of attorney. A purchaser obtaining
land in an instrument signed by such an attorney gains a valid title despite any lack of consent
of the donor to the transaction, or the death, mental incapacity or bankruptcy of the donor.
To be filed under the TLA an irrevocable power of attorney for a fixed time (not exceeding two
years) would also have to meet the normal requirements of form, in addition to disclosing
whether or not a valuable consideration was involved, and confirmation of the parties intention
that the power be irrevocable for a specific term. A purchaser obtaining land in as instrument
signed by an attorney in these circumstances is protected in a similar manner.
5.1.10
Powers Contained in Leases, Contracts, etc.
Leases, contracts for sale and other contracts such as strata management agreements and
retirement village agreements often contain clauses appointing the vendor or lessor the attorney
of the purchaser or lessee for the purpose of withdrawing caveats or signing transfers.
A signed copy of the lease or contract can be filed with the Registrar as a valid power of
attorney so long as the relevant clauses of the document are substantially in the form of the
Nineteenth Schedule to the TLA. Where the power of attorney is activated by a specific event
(eg: refusal to withdraw a caveat) then at the time the power is filed a statutory declaration will
be required proving that the conditions precedent to the power becoming operative have
occurred.
The declaration will usually also have to meet the requirement of the Registrar for proof of non
revocation for powers dated more than three months prior to filing. Where the power arises from
a donor living in a retirement village the declarant must also include a reference to the capacity
of the donor to understand the nature of the demand made (e.g. to sign a withdrawal or transfer)
to obtain compliance with the conditions precedent to the activation of the power.
5.1.11
Powers Contained in Mortgages
Mortgages usually contain a clause appointing the mortgagee or an officer to be later
designated, as attorney for the mortgagor. To be effective the powers must be expressed
substantially in the form of the Nineteenth Schedule to the TLA, and the powers are only noted
by the Registrar when a signed copy of the mortgage is filed as a power of attorney document.
Where the power of attorney is activated by a specific event (such as default) then at the time
the power is filed a statutory declaration will be required proving that the conditions precedent to
the power have been met. The declaration will also usually have to meet the requirements of
the Registrar for proof of non-revocation for powers dated more than three months prior to filing.
Where the mortgage is a short form mortgage linked to a Memorandum of Common Provisions,
a signed copy of the short form mortgage will be accepted for filing.
Conveyancers are advised that the Registrar will not register transfers by the mortgagee as
attorney for a Mortgagor as an alternative to exercising a power of sale, and registering the
transfer form designed for that purpose (ie: T4 Transfer form).
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5.1.12
Limit of Attorney’s Power
Unless expressly authorised by the power of attorney the donee of a power may not transfer
land of the donor to himself or herself, nor may he or she discharge in the donor’s name a
mortgage given to the donor by himself or herself, nor may he or she make a gift of land in the
donor’s name.
5.1.13
Execution of Documents by Attorney
A proper form of execution of a document by an attorney is as follows:
Signed by (Name of Attorney)
)
as attorney for (Name of Donor)
)
(Signature of Attorney)
in the presence of
)
P/A (insert number)
Witness
(Full Name, Address and Occupation)
Variations of this form will be accepted provided it is clear that the person executing the
document does so as an attorney.
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5.2
Enduring Powers of Attorney
5.2.1
General
The Guardianship and Administration Act 1990 (GA Act) created a new, general power of
attorney form, authorising the donee(s) to do anything that the donor could legally do except
appoint a substitute.
The form is designed for and survives any subsequent legal incapacity of the donor. An
enduring power of attorney is effective for the purposes of the TLA (and Property Law Act 1969)
as if it were in the form provided for by s.143 of the TLA.
An enduring power of attorney must be substantially in the form set out in the third schedule of
the GA Act, and has three features that very clearly distinguishes it from the TLA format, being:
•
a general power for the donee(s) to do anything the donor can lawfully do
•
an optional choice section where the power may be activated immediately on execution,
or at a later date on the occurrence of the incapacity of the donor as certified by the State
Administrative Tribunal
or
•
a formal acceptance by the donee(s) of the power of attorney, with an acknowledgment of
the conditions to apply.
A maximum of two (2) donees may be appointed in an enduring power of attorney (see the
decision of the Supreme Court in Ricetti –v- Registrar of Titles CIV 1587 of 1999).
Where more than one (1) donee has been appointed they must state the capacity in which they
act. (e.g. Jointly or Jointly and Severally).
An enduring power of attorney in the form of the third schedule of the GA Act may include
restrictions on the general powers granted. Where a donor includes express powers in an
enduring power of attorney the Registrar will interpret those provisions as limiting or restricting
the plenary powers of the attorney.
An enduring power of attorney cannot provide for alternate appointments of attorneys upon
certain conditions. An example of such improper appointment of attorneys is where a donor has
appointed two attorneys in clause 1 of the schedule form and then clause 3 of the schedule
form sets out conditions upon which the second attorney may exercise the powers granted to
that attorney.
Specifying powers that the donee is authorised to exercise, (including conflict of interest clauses
that grant transactions between the donor and the donee, including family members), in clause
3 of the enduring power of attorney is not acceptable (see paragraph 3.6 Conditions and
Restrictions page 7 of A Guide to Enduring Power of Attorney in Western Australia ).
For Transfer by an Attorney under Enduring Power of Attorney or by an Administrator under
Board Order to themself or a family member, see paragraph 2.1.32
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5.2.2
Appointment of Substitutes
As from 4th December 2000 sections 102 and 104 of the GA Act were amended to allow for the
appointment of a person to be a substitute donee of the power only on, or during, the
occurrence of events or circumstances specified in the enduring power of attorney.
The form set out in the Third Schedule of the GA Act has been amended to allow for the
appointment of either one or two substitute attorneys.
When the substitute donee(s) execute a document lodged for registration at Landgate, the
document must be accompanied by a statutory declaration made by the substitute donee(s)
stating that the events or circumstances specified in the enduring power of attorney have
occurred.

Note:
Section 21 of the GA Act retrospectively validates, subject to certain exceptions contained in
s.21 (2), the appointment of a person who was incorrectly appointed as a substitute donee
before the 4th December 2000.
5.2.3
Duration
The duration of an enduring power of attorney cannot be limited to only operate for a certain
period of time, e.g. for a period of 12 months commencing on 1st January 2000.
The GA Act does not provide for a time limitation and it would create a conflict or inconsistency
between the power of attorney and s.107(c) of the Act which states that the attorney cannot
renounce his appointment during the incapacity of the donor.
This means that if the donor became incapacitated before an expiry date shown in the power of
attorney, the appointment of the attorney could not cease on the date shown for expiry.
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5.2.4
Noting and Filing
If the attorney(s) wishes to deal in the land of the donor, a signed copy of the power of attorney
(not a photocopy) must be lodged with the Registrar of Titles, who will retain it as part of the
permanent records of Landgate justifying the registration of dealings signed by the Attorney.
Where the power of attorney document to be lodged is dated more than three months previous
to the registration date, a statutory declaration of non-revocation or variation made by the
donee(s) including any substitute donee(s), and must be lodged with the power of attorney. The
declaration of non-revocation or variation must state the following:
•
identify himself / herself as the donee
•
identify the enduring power of attorney by reference to the donor and date of execution
•
that the donor is still alive
•
when and how the donee last saw or communicated with the donor (within the last 7
days)
•
that the enduring power of attorney has not been revoked by the donor
•
that the State Administrative Tribunal or an appointed Administrator has not varied or
revoked the enduring power of attorney
and
•
that a substitute donee has not been appointed by the State Administrative Tribunal
(SAT).
Alternately, a statutory declaration made by the donor of the power of attorney. In that
declaration the donor should:
•
identify himself / herself as the donor;
•
identify the enduring power of attorney by reference to the donee(s) and date of
execution
•
that the donee(s) is / are still alive
•
when and how the donor last saw or communicated with the donee(s) (within the last 7
days)
•
that the enduring power of attorney has not been revoked by the donor
•
that the State Administrative Tribunal or an appointed Administrator has not varied or
revoked the enduring power of attorney
and
•
that a substitute donee has not been appointed by the State Administrative Tribunal
(SAT).
Where an enduring power of attorney is conditional upon a loss of legal capacity of the donor,
as certified by an order of the SAT, a copy of the order must be lodged with each instrument
signed by the attorney on behalf of the donor. The instrument must comply with any terms or
conditions listed in the order of the SAT.
Enduring powers of attorney created under the provisions of legislation in other States,
Territories and Countries may be deposited at Landgate if they are accompanied by an Order of
the SAT under s.104A of the GA Act as amended.
In this case, the donee, when dealing with land under the power of attorney must provide a
statutory declaration deposing that the SAT has not revoked the order giving recognition to the
out of State power of attorney.
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5.2.5
Witnessing Requirements
Section 104(2)(a) of the GA Act states that there must be two (2) attesting witnesses to the
enduring power of attorney, both of whom are 18 years of age or older, and at least one of
whom is authorised by law to take declarations. Neither of the two witnesses are a person who
is being appointed as an attorney or substitute attorney, and must state their full name, address
and occupation. For a list of who can witness a statutory declaration in Western Australia, see
paragraph 3.2.4.
An enduring power of attorney can be executed outside Western Australia. Where it is executed
in another State of Australia (i.e. outside Western Australia), the following persons may witness
the document:
•
any person who, under the law of that place, has authority to take or receive a statutory,
solemn or other declaration
or
•
any person before whom, under the Commonwealth Statutory Declarations Act 1959, a
statutory declaration may be made.
If an enduring power of attorney is executed in any other place, the following persons may
witness the document:
•
A prescribed consular official who is performing official functions at that place.
•
A person who is a justice or notary public under the law of that place.
•
A person who has authority under the law of that place to administer an oath to another
person or to take, receive or witness a statutory, solemn or other declaration.
A prescribed consular official means:
•
an Australian Consular Officer, or an Australian Diplomatic Officer, within the meaning of
the Consular Fees Act 1955 of the Commonwealth
•
a British consul or vice consul
or
•
an official prescribed by the regulations to be a prescribed consular official.
As one signed copy is retained, it is recommended that two signed copies be created on each
occasion so that following lodgement, an authenticated and recorded document identified as the
‘Client Original’ will be returned to the lodging party to produce with other institutions.
5.2.6
Execution of Documents by Attorney
A proper form of execution of a document by an attorney is as follows:
Signed by (Name of Attorney)
)
as attorney for (Name of Donor)
)
(Signature of Attorney)
in the presence of
)
EPA (insert number)
Witness
(Full Name, Address and Occupation)
Variations of this form will be accepted provided it is clear that the person executing the
document does so as an attorney.
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5.3
Revocation
5.3.1
Revocation of (TLA) Power of Attorney
A power of attorney may be revoked by depositing with the Registrar the original power of
attorney with the word REVOKED endorsed thereon together with the properly attested
signature of the donor and the date of execution.
A formal revocation, as a deed, may be prepared using a Form B2 Blank Instrument Form and
deposited with the Registrar. The power of attorney being revoked should be properly identified
by reference to the donee(s), its date and its registered number. The prescribed fee is payable
for each power of attorney revoked.
A revocation may also be deposited before the power of attorney which it revokes has been
deposited for registration. The indexing system would reveal the revocation when an attempt to
register the power of attorney is made.
Revocation occurs in the following cases:
1.
Determination by the act of either party:
•
by revocation by the donor of the power
or
•
2.
by renunciation of the power by the attorney.
Determination by operation of law:
•
by expiration of the time limited for the exercise of the authority
•
by a change in the condition of either party, eg: lunacy or bankruptcy (but it must
be noted that a change in the legal capacity of the donor of an enduring power of
attorney under the GA Act will not affect the power)
•
by the death of either party
•
where the purpose for which the power created is fulfilled
or
•
3.
(in the case of an enduring power of attorney made under the GA Act ) by an order
of the State Administrative Tribunal; and,
Where a substitute attorney has been appointed by an attorney, a revocation of the head
power of attorney operates to revoke the appointment of any substitute attorney.
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5.3.2
Revocation of an Enduring Power of Attorney
An enduring power of attorney made under the GA Act may be revoked in a similar manner to
any other power of attorney. It may be revoked by lodging a signed copy endorsed with the
word revoked and a date supported by the signatures of the donor and a witness (who must
state their full name, address and occupation). Revocation of an enduring power of attorney is
also achieved by lodging with the Registrar a simple document (see paragraph 5.3.1 above)
signed by the donor (and witnessed).
The State Administrative Tribunal may also, on the application of an interested person, order
the amendment or revocation of an enduring power of attorney. Having obtained the order, (and
if the power is recorded in Landgate) the interested person should then apply on a Form A5 to
have the Landgate records altered in accordance with the terms of the order. The first panel of
the Form A5 would show the registration number of the power of attorney; the second panel
would show the name and address of the interested person; and the third part of the form
should request the amendment of the records to comply with the terms of the order (which must
be produced).
5.3.3
Notification of Death of the Donor
When the donor of either a normal TLA power of attorney or an enduring power of attorney dies,
the power of attorney is terminated and can no longer be used.
Where the power of attorney has been deposited at Landgate it is prudent to inform Landgate
that the donor has died so that the power of attorney can be formally revoked. This will ensure
that those searching Landgate’s Power of Attorney Index will know that the power of attorney is
no longer valid.
Landgate will revoke the power of attorney if a statutory declaration is made by one of the
following persons:
•
the donee (or one of the donees if there are more than one) of the power of attorney
•
a substitute donee in the case of an enduring power of attorney
•
an executor or administrator of the deceased donor
or
•
a solicitor acting for the donee or the executor of the deceased donor.
The content of the statutory declaration must be similar to a survivorship application (see
paragraph 3.4.1) and the following must be produced:
•
a copy of evidence of death certified by the Registrar General
or
•
an office copy of a grant of probate or letters of administration.
Lodging a statutory declaration does not incur a fee. It must be accompanied by proof of death
and may be lodged at the Document Acceptance Counter of any Landgate office or posted to:
Lead Consultant, Dealings
Registrations
Landgate
PO Box 2222,
MIDLAND WA 6936
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5.4
Declarations of Trust (Section 55 of the TLA)
The Registrar cannot enter trusts on a certificate of title but declarations of trust may be
deposited with the Registrar under s.55 of the TLA. The original or a duplicate may be
deposited and a Registrar’s Caveat is lodged to protect the interests of the beneficiaries under
the trust deed.
There is no special form to be used, but any form used is to be duly stamped by the Office of
State Revenue and it must contain:
•
the name and address of the registered proprietor (the trustee)
•
the name and address of the beneficiary
•
an accurate description of the land
•
a declaration by the trustee that the land specified is held in trust for the beneficiary
and
•
any special limitation, or condition on the powers of the trustee; and must be dated and
signed by the trustee in the presence of an adult witness.
In the case of family trusts or settlements it is necessary to produce and file with a declaration of
trust a copy of the family trust or settlement deed. Later declarations of trust in the same family
trust or settlement should contain a reference to the number of the first declaration of trust in
which the copy is filed. This is necessary because the Registrar must know who is to be
protected and what powers, other than those in the Trustees Act 1962, the trustee has to deal
with the land.
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6.
Subdivision and Strata/Survey
Strata Plans
This chapter contains information relating to the subdivision of land, including
the approval process for deposited plans and strata/survey strata plans.
Landgate has created specific application forms which are required to be used
for the issue of new certificate(s) of title the subject of a survey plan.
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6.1
Subdivision
6.1.1
General
The subdivision of land in its earlier stages involves the owner of the land to be subdivided with
the Local Government, Government Instrumentality’s and the Western Australian Planning
Commission (WAPC). All proposals by a landowner to subdivide land are first submitted to the
WAPC. This Department acts as a referral office and central clearing house referring proposals
to the Local Government and government instrumentality’s such as the Water Corporation,
Western Power and Gas Corporation, who have an interest in the orderly development of land
and provision of services.
Where an agency consents to the subdivision subject to certain conditions (eg: the Local
Government may agree subject to the construction of satisfactory roads and footpaths). The
WAPC ensures that those roads and footpaths have been constructed to the satisfaction of the
Local Government before the final consent of the WAPC is endorsed on the survey.
Prior to July 2000 a small survey (up to 12 lots) was drafted on an A3 survey diagram (the
diagram) form and a large survey (either more than 12 lots or a complex subdivision) was
drafted on an A2 survey plan (the plan) form. As from 1st July 2000 all freehold subdivisional
plans (A2 and A3) are referred to as Deposited Plans. For convenience plans, diagrams and
deposited plans are called plans in this chapter.
6.1.2
Lodgement of Plans
The registration system permits the surveyor to choose to lodge the new plan at Landgate
before the completion of the roads and footpaths and before the final consent of the Western
Australian Planning Commission is obtained.
Landgate uses this time to make a mathematical and legal check of the plan. Any boundary and
area amendments required can then be pointed out to the surveyor for amendment and
conveyancers may have early notice of any complications requiring conveyancing action before
separate titles for the new lots can be created and registered.
No dealings on the plan can be accepted until the surveyor obtains the final clearances for the
construction work and the formal approval of the Western Australian Planning Commission is
endorsed on the plan. Delays in obtaining these clearances will of course delay the approval of
the plan.
6.1.3
Lot Synchronisation for New Subdivisions
From 1 June 2010, after a successful trial period, Landgate customers commenced lodging
deposited Plans and/or Strata/Survey-Strata Plans together with the documents required to
issue new certificates of title.
Known as Lot Synchronisation (Lot Sync), this initiative reduces the processing time required to
issue new certificates of title. Earlier document lodgement will allow parallel processing and
different timing points when auditing the Plan and examining the documents. This provides an
opportunity to all developers with Landgate also including into the process Plans not requiring
Western Australian Planning Commission (WAPC) endorsement.
Using the Lot Sync process to lodge a Plan ensures certificates of title will be issued as close as
possible to the WAPC endorsement date for the plan of subdivision, or the ‘In Order For
Dealings’ date for Plans that do not need WAPC endorsement.
Lot Sync is voluntary and is intended as an alternative method for parties to lodge Plans and
documents, it does not replace the current lodgement process. However, under reforms being
introduced Landgate may at some time in the future only allow the Lot Sync process for the
lodgement of subdivisional Plans.
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6.1.3.1
Lot Sync Business Process
When lodging Plans using Lot Sync, all registration documents (except for the production of the
duplicate certificate of title/letter of consent to subsequent lodgement) must be lodged within
five (5) working days of lodging the Plan. The duplicate certificate of title/letter of consent to
subsequent lodgement must be produced prior to the Plan being placed ‘In Order For Dealings’.
If there is any non-compliance with the Lot Sync Rules the Plan will be removed from the Lot
Sync process and the documents will not be examined until the Plan is ‘In Order For Dealings’.
6.1.3.2
Lot Sync Rules
Lodgement of Plans
•
“Lot Sync” must be noted in the email subject heading when lodging the Plan and
Surveyors Report.
•
When a Strata/Survey-Strata Plan is lodged, strata forms 3, 7 and 26 must also be
submitted at plan lodgement.
Lodgement of Documents
•
All required registration documents, including the Application for Title, that are required to
complete the issue of certificates of title by the Registrar of Titles must be lodged at
Landgate within five (5) working days of the Plan lodgement. If the registration documents
are not lodged at Landgate within this time, the Plan and document(s) will not be
processed as Lot Sync.
•
“Lot Sync” does not need to be noted on the documents.
•
The lodging party must also submit a signed letter requesting that the lodgement date of
the registration documents be amended to the same date that the Plan was placed ‘In
Order For Dealing’.
Fees
6.1.4
•
Under Lot Sync the normal lodgement fees for both Plans and registration documents
apply.
•
Any Plan and registration document errors will be subject to the normal requisition fees.
Plans Marked Subject to Examination
On payment of the required fee, a new plan or diagram is allocated a number and the following
procedures are initiated:
•
a copy of the plan, marked subject to examination is scanned on the Register 2000
image system and made available for searching. Persons searching these plans are
cautioned that the plans may be altered during the examination process
and
•
all affected titles and location or town lot indexes are noted with the plan type and
number.
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6.1.5
The Plan Examination Process
The plan is then examined for mathematical correctness, and legal correctness arising from the
legal requirements of:
•
the TLA and the Regulations for the Guidance of Surveyors practising under the Licensed
Surveyors Act 1909
•
the P&D Act
•
the LAA;
•
the Local Government (Miscellaneous Provisions) Act 1960
and
•
the Local Government Act 1995
Following the examination, the Inspector of Plans and Surveys may either:
•
approve the plan if the approval by the Western Australian Planning Commission is
required and has been obtained
•
endorse the plan In order for dealings if the approval by the Western Australian
Planning Commission has been obtained
•
endorse the plan certified correct in which case the approval by the Western Australian
Planning Commission is still to be obtained
or
•
6.1.6
decline to endorse the plan as above and issue requisitions to the surveyor to take some
remedial action in a process very similar to the stopped document process for dealings.
Plan Approval
The formal approval of a plan by the Inspector of Plans and Surveys is the point where the
subdivision itself changes from a proposal or action into a legal reality. Unfortunately, occasions
have arisen in the past that a plan has been approved, creating the new lots, but the titles have
for a variety of reasons, remained unchanged. For example, it has not been unusual for two lots
to be consolidated by the registration and approval of a plan, but the titles have remained
unchanged, causing later problems, especially where a building has been constructed across
the former boundary.
To resolve these problems the Inspector of Plans and Surveys has laid down a policy that plans
will not be approved until the documents required to have the titles for the land amended to
reflect the new boundaries have been lodged. Until that time, a plan, which is in all respects
correct, will be marked In order for dealings .
Formal approval thus occurs when the Form A6 Application for a New or Balanced Title is
lodged at Landgate for the creation and registration of the new titles for the lots on the plan.
Until a plan is formally approved by the Inspector of Plans and Surveys, the new lots have no
legal status, however the various rating authorities may commence to levy rates (charges) on
the new lots from the time that final approval of the Western Australian Planning Commission
has been given.
Once a plan has been approved by the WAPC, the application for new titles must be made
within a prescribed period of time (see the more comprehensive note at the foot of paragraph
6.2.1).
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6.1.7
Where a Plan is Shown Certified Correct
This notation indicates that the plan has been examined for correctness but the consent of the
Western Australian Planning Commission (WAPC) has yet to be endorsed on it. The consent of
the WAPC may be conditional upon the completion of the roads, drains and services by the
developer and conveyancers should make their enquiries from the surveyor, not Landgate, to
ascertain when the approval will be obtained.
6.1.8
Where a Plan is Shown In Order for Dealings
When a plan is placed In Order for Dealings the conveyancer should make a careful
inspection of it, (or a search of it) to see what notes the auditor has made, either somewhere
close to the graphics (sketch), or in the relevant panels on the form.
If no comments have been made, the plan is unconditional, and subject to paragraph 6.2.1
(New Titles for Subdivisions) merely requires an application by the land owner on a Form A6,
together with the production of the former duplicate titles, for new titles to be created and
registered.
On the creation and registration of the titles the status of the plan is changed from In order for
dealings to approved, with an operative date being the same date that the application for new
titles was lodged.
If comments are made by a plan auditor, they will fall into two categories:
•
comments with internal impact that are an indication that on lodgement of a dealing, and
formal approval of the plan, certain legal changes will occur, and action to record those
changes will be made by Landgate staff
or
•
6.1.9
comments with external impact that give notice to conveyancers that certain conditions
must be met, usually by the lodgement of additional dealings.
Where a Plan is Shown Expired
Section 146 of the Planning and Development Act 2005 places limits on the Registrar of Titles
for the issue of new certificates of title, following approval of a Deposited Plan by the Western
Australian Planning Commission (WAPC).
Owners of land the subject of plans that were endorsed with the approval of WAPC before the
Planning and Development Act 2005 came into operation on 9 April 2006 will have 5 years
after that day in which to lodge an application for new titles. Owners of land the subject of plans
that are endorsed with the approval of WAPC on or after the 9 April 2006 will have 2 years from
the endorsed date in which to lodge an application for new titles.
6.1.9.1
Landgate’s SmartPlan System Status Change
For deposited plans that have been endorsed by the WAPC (i.e. status of WAPC Approved)
that have not been dealt on within the required time frames as stated above, SmartPlan will
automatically update their status to “EXPIRED” (this does not apply to strata/survey-strata
plans).
6.1.9.2
Status of Expired Deposited Plan
If a plan has the “expired” status and the registered proprietor still wishes to proceed with the
subdivision, then the owner will seek a new subdivisional approval from WAPC.
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6.1.9.3
For Surveys Endorsed Before 9 April 2008
The owner has until 8 April 2011 to apply for new titles. After that date the survey’s status will be
“expired” and if the owner wishes to proceed with the subdivision, a new application approval
must be sought from WAPC. The normal subdivisional process will apply and the previously
approved survey will be cancelled.
6.1.10
Comments with Internal Impact
6.1.10.1
Section 168 (1) (2) of the P&D Act
Where a plan creates new roads, s.168 (1) & (2) of the P&D Act provides a method of automatic
transfer of the land in the road to the Crown, and dedication of the land for use as a legal, public
road. This occurs on the formal approval of the plan by the Inspector of Plans and Surveys.
Notice to conveyancers that the action will be taken on approval is given by noting on the plan
Subject to s.168 (1) (2) of the P&D Act

Note:
Prior to the proclamation of the P&D Act on 9 April 2006 the above-mentioned provisions were
set out in s.295(5) of the Local Government (Miscellaneous Provisions) Act 1960.
6.1.10.2
Section 167 of the P&D Act
Where a condition of approval to subdivide land is that easements be granted to either of the
Local Government, the Water Corporation, Western Power or Gas Corporation then such
easements may be set out on the new plan.
On approval of the plan by the Inspector of Plans and Surveys, easements in gross are created
in accordance with the terms set out in the Town Planning and Development (Easement)
Regulations 1983.
No consents are required from any mortgagee or other encumbrancer and the easement is
created and shown on the new title created and registered for the separate lots on the
subdivision.
If the easement later becomes unnecessary it may be removed by application of the grantee
(see paragraph 7.2.6).

Note:
Prior to the proclamation of the P&D Act on 9 April 2006 the above-mentioned provisions were
set out in s.27A of the TP&D Act.
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6.1.11
Comments with External Impact
6.1.11.1
Multiple Owners
Where any of the new lots created on the plan are in multiple ownership, i.e. they are in different
names, or different shares and tenancies, the plan auditor places a comment on the plan
subject to multiple owners. When this occurs, all the owners must sign the application for
titles for the new lots (see paragraph 6.2.1).
6.1.11.2
Section 152 of the P&D Act
Where it is a condition of approval by the Western Australian Planning Commission that a lot(s)
shown on a Deposited Plan is to be set aside for pedestrian accessways, rights of way,
reserves for drainage or recreation etc, that lot(s) is automatically transferred to the Crown
when the new titles for the subdivision are created and registered.
A Crown Land Title, in the name of the State of Western Australia, will be created and
registered for each lot that is vested in the Crown. The Limitations, Interests, Encumbrances
and notifications panel of Crown Land Title will contain the following notation:
VESTED BY THE REGISTRAR OF TITLES UNDER SECTION 152 OF THE
PLANNING & DEVELOPMENT ACT 2005 FOR THE PURPOSE OF . . . . . . . . . . . .
.......
As a caution to conveyancers the plan auditor places a comment on the Plan - Subject to Sec
152 of the P&D Act.
The documents necessary to remove encumbrances such as mortgages and caveats on the
land to be vested in the Crown must be lodged at the same time as the Form A6 Application for
a New or Balanced Title.
Easements and restrictive covenants may subsist on conversion to Crown Land.
Easements created under P&D Act s.167 are able to subsist on conversion to Crown land.
Access easements to adjoining land should not impede public use of Crown land but may
subsist until alternative legal access is established.
CMS Gas Transmission of Australia easements that are not LAA easements are not acceptable
and must be surrendered prior to conversion to Crown. Private CMS Gas Transmission of
Australia easements may be replaced with an LAA easement.
Notifications under P&D Act s.165 or s.70A of the TLA may transition across to the Crown if still
valid.
Some other interests or encumbrances over vesting land will be considered by the appropriate
Regional Manager in the Department of Lands on a case by case basis to determine whether it
is acceptable to the Crown. The consent of the Regional Manager must be endorsed on the
application to register the plan prior to lodgement. Those not acceptable must be removed prior
to conversion to Crown land.

Note:
Prior to the proclamation of the P&D Act on 9 April 2006 the above-mentioned provisions were
set out in s.20A of the TP&D Act.
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6.1.11.3
Approval of another Plan
Occasions sometimes arise, especially in newly developing areas, that the lots on a new plan
will front onto roads that are not connected to the road network as an intervening road, although
constructed, is on a privately owned land. The transfer to the Crown (and dedication as a public
road) of the intervening road must occur before titles will be created on the new plan. As a
caution to conveyancers the plan auditor will place a comment on the new plan:
“subject to the approval of plan……….”
The documents necessary to create the intervening road must be lodged before (or at the same
time) applying for titles for the new subdivision.
6.1.11.4
Closure of Private Road or Right of Way
When a new plan includes land that is part (or all) of a private road, the Registrar cannot include
the road in the new lots. As a caution to conveyancers the plan auditor will place a comment on
the new plan:
“subject to the approval of plan……….”
The documents necessary to transfer the ownership of the private road to the owners of the
land in the subdivision, and the documents to remove the rights of any person entitled to use
the private road or R.O.W. must be lodged before (or at the same time) applying for titles for the
new subdivision.
6.1.11.5
Road Widening (P&D Act Section 168 (5))
Where any lots are separated from an existing public road by a strip of land marked on the plan
as road widening, the owners of those lots will have no legal public road access until the land in
the strip is transferred to the Crown or Local Authority (free of encumbrances) for dedicated
road purposes.
An application to apply for a new title is not necessary. The transfer of the land to the Crown or
Local Authority is the vehicle to approve the survey and create a new title for the land. The
consideration panel of the transfer should contain the following words:
“In order that the land may be dedicated as a road pursuant to s.168 (5) of the
Planning and Development Act 2005.”
As a caution to conveyancers the plan auditor places a comment on the plan:
“subject to s.168(5) P&D Act 2005.”

Note:
Prior to the proclamation of the P&D Act on 9 April 2006 the above-mentioned provisions were
set out in s.28 (1) of the TP&D Act.
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6.1.11.6
Road Widening (P&D Act Section 168 (3))
Where a new subdivisional plan shows a strip of land between lots and a public road, the
owners of the lots will have no legal public road access until the land in the strip is vested in the
Crown and dedicated for road purposes. Formal approval of the new plan is withheld until a
Form A6 Application for a New or Balanced Title is lodged at Landgate for the creation and
registration of the new titles for the lots on the plan.
As a caution to conveyancers the plan auditor places a comment on the plan:
“subject to s.168(3) P&D Act 2005.”

Note:
Prior to the proclamation of the P&D Act 2005 on 9 April 2006 the above-mentioned provisions
were set out in s.28 (3) of the TP&D Act.
6.1.11.7
Land Administration Act 1997 (Section 87)
Where the land in a plan includes a portion of Crown land or the whole or part of a closed road,
the plan auditor will place a comment on the survey:
“subject to the inclusion of Crown land or subject to closed road.”
The owner of the land in the subdivision must arrange for the acquisition of the Crown land and
the creation of either a title or a Closed Road (Ministerial) Order before (or at the same time)
applying for titles for the new lots. The disposition of such land is under the control of the
Department of Lands.
6.1.12
Compiled Plans
The proprietor of two or more complete lots may amalgamate those lots to form one new lot.
The following procedure is recommended:
•
obtain the written consent of the Western Australian Planning Commission to the
proposed amalgamation
•
obtain the services of a surveyor to draw the new survey diagram
•
register the plan at Landgate
•
submit any necessary clearances to the Western Australian Planning Commission and
obtain its written approval on the plan
and
•
following the approval or change of status of the plan from subject to examination to in
order for dealings, by the Inspector of Plans and Surveys, apply for a title to be created
and registered for the amalgamated lot on a Form A6 Application for a New or Balanced
Title. Production of the relevant duplicate certificates of title (if any) is required.
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6.2
Applications for New Titles
6.2.1
New Titles for Subdivisions
An application for a new title the subject of a plan must be made on a Form A6 Application for a
New or Balanced Title (s.166 of the TLA). Applicants must ensure that the plan is approved or
In order for Dealings before attempting to lodge their documents.
All the documents necessary for the approval of a plan marked In order for dealings must be
lodged at the same time as the application. All the relevant duplicate certificates of title (if any)
must be produced with the application or arrangements made for their production by the person
holding them prior to presentation of the application.
The introduction of SmartRegister requires surveyors to include in plans lodged for the purpose
of subdivision any residue land comprised in an affected title as a separate (balance) lot or lots.
The signatures of all the proprietors must appear on the application. No witness is required for
signatures on the application unless a change in the address of the registered proprietor(s) is
shown.
If such a change is required and the signatures not witnessed, then the application is
acceptable if the third panel of the form, after the request for the title the subject of the new
plan, is followed by the words:
“…..such title(s) to show the current address of the applicant(s).”
Conveyancers should consider the effect of the creation and registration of separate titles for a
subdivision on any encumbrances that may be registered or recorded on the title for the original
(pre-subdivision) lot. As a basic rule, any encumbrancer who may be disadvantaged by the
creation of the new subdivision must consent to the application.
Examples where consent will be required are:
•
A mortgagee in circumstances that the mortgage will, after creation of the subdivision,
remain registered over part only of one or more of the new lots, resulting in the restriction
of the ability to exercise a power of sale.
•
A caveat lodged protecting an unregistered instrument, which will become unregisterable
on the creation of the new subdivision.
If the subdivision will breach the terms of a restrictive covenant, then the covenant must be
modified or discharged.
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Multiple Ownership Subdivisions
In the case of multiple ownership subdivisions, the repealing of Regulation 44 of the Licensed
Surveyors (TLA) Regulations 1961 has allowed for plans to show land in multiple ownership.
Plans involving multiple ownership of a new lot created on the plan must have all the documents
(i.e. partial transfers– see paragraph 1.9.2) and consents necessary for the approval of the plan.
These must be lodged at the same time as the application to register the plan. New titles will be
created in accordance with the single application (Form A6 Application for a New or Balanced
Title) signed by all the affected owners. To facilitate the creation of the new titles in the right
proprietorship, the application must specifically state which proprietor receives what lot (see
LTRPM Form Examples - Example 7).

Note:
Once a plan has been approved by the WAPC, s.146 of the P&D Act allows for the lodgement
of the application (Form A6) within the following prescribed time period, otherwise the Registrar
of Titles is not permitted to create and register the new titles created on the plan:
For plans approved by WAPC before 9 April 2006, the application for new titles must be lodged
on or before 8 April 2011.
For plans approved by WAPC on or after 9 April 2006, the application for new titles must be
lodged within 2 years.
If an application for new titles is not lodged within the above-mentioned time periods, the legal
status of the relevant plan will be changed from In Order for Dealings to Expired. In this
circumstance the Registrar of Titles is prohibited from creating and registering new titles for the
lots shown on the plan.
6.2.2
Balance Titles
Where part of the land in a title is removed, either by transfer or application, that title is partially
cancelled and the duplicate certificate is retained by Landgate (s.71A of the TLA). To obtain a
title for the balance of the land the proprietor is required to apply (using a Form A6 Application
for a New or Balance Title) for a balance title once a Deposited Plan drafted by a Surveyor has
been lodged at Landgate. This plan is to be prepared at the proprietor’s expense. The practice
rules, as to attestation set out in paragraph 6.2.1, apply.

Note:
Under SmartRegister part lots cannot exist in the Register. It is therefore necessary for
surveyors to include in new subdivisional plans all land within the relevant titles and allocate lot
numbers to all new parcels including PAW’s. Any residue land (balance) must be given a lot
number.
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6.2.3
Separate Titles
The proprietor of two or more complete lots (which also includes the whole of any part-lot as
defined in s.21(1) of TP & D Act) in a title may apply (using a Form A6 Application for a New or
Balanced Title) for the creation and registration of separate titles for each of the lots or part-lots
without the consent of the WAPC. The existing duplicate certificate of title (if any) must be
produced. The practice rules as to attestation set out in paragraph 6.2.1 apply.
What is meant by a Part-Lot
Essentially, a part-lot as defined in s.21(1) of TP&D Act is a particular part of a former whole lot
which remains and is shown on a plan or diagram of subdivision after that former whole lot has
in some way been divided or reduced in size. It will normally (but will not necessarily be)
specifically identified as a Pt-lot in any relevant certificate of title. Some common examples of
what constitutes a part-lot for the purposes of s.21(1) of TP&D Act are as follows:
•
Part-lots that come into existence as a result of small resumptions, road-widenings and
creation of new roads. In these cases, there has previously been a whole lot, created on
a plan or diagram approved by the WAPC, which has lost part of its area.
•
Part-lots that arise when a new subdivisional plan or diagram was overlaid on an existing
plan or diagram. When new titles are created and registered for the lots on the overlaid
plan or diagram, one or more part-lots may be left in a title (this practice is no longer
allowed).
•
Part-lots that were created in the past when, prior to the introduction of planning laws as
we now know them, owners of whole lots on a title sold a whole lot, coupled with one or
more parts of whole lots. In these cases, the whole of the land transferred was described
by a sketch on the relevant transfer.
•
The original whole lots still existed, but they were divided into parts and those parts were
contained in different titles. As those parts of lots are defined by being shown by a red
marking in their original plan or diagram, they are also part-lots within the definition.
Where the existing certificate of title contains:
•
an undefined portion of land
•
a portion of a part-lot as defined under s.21(1) of the TP&D Act
or
•
a part-lot that is not considered to be a part-lot under s.21(1) of the TP&D Act;
then the consent of the WAPC will be required to be endorsed on the application before a
separate title for the undefined portion or part-lot may be created and registered.
If separate titles are issued for the whole lots and/or part-lots in a title and only one
undefined portion remains as the balance of the land in the title, the proprietor may lodge an
application for a balance title without the necessity of obtaining the consent of the WAPC.
6.2.4
Reversion to Crown Allotments
Once a Crown allotment has been superseded by the lodgement and registration of a new plan,
it is not possible to revert back to the former Crown allotment.
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6.3
Strata/Survey-Strata Plans
6.3.1
General
The Strata Titles Act 1966 was enacted to provide for the registration of title to individual units in
a multi-storey building. It was subsequently amended to include duplex or other horizontal
development. The Strata Titles Act 1985 (STA) repealed the 1966 Act but made provision for
the continuance of strata schemes created by the earlier Act. The STA was substantially
amended by the Strata Titles Amendment Act 1995, which came into operation on the 14 April
1996.
The STA, as amended, contains a number of provisions, some of which are:
•
disposition statements to facilitate strata/survey-strata plan registration and re-subdivision
•
the addition, variation or removal of restrictions as to the use of a strata lot
•
the re-subdivision of strata lots and/or common property
•
the consolidation of two or more strata lots
•
the variation of unit entitlement
•
the registration of an order by the State Administrative Tribunal
•
the enlargement of the common property
•
the reduction of the common property
and
•
management statements.
These matters are dealt with particularly in subsequent paragraphs. Some of the words and
phrases used in this chapter require definition, and these are:
parcel - means the whole of the land comprised in a strata / survey-strata plan;
lot - means a lot shown as such on a strata / survey-strata plan;
common property in a strata plan - means so much of the land for the time being as is
not comprised in a lot shown in the plan and land leased to increase the area of common
property;
common property in a survey-strata plan - means the lot or lots shown as common
property , designated by the letters CP and land leased to increase the area of common
property;
unit entitlement - determines the quantum of the undivided share of each proprietor in
the common property;
scheme - means a strata scheme or a survey-strata scheme; and
strata company - means the management committee charged with control, and
preservation of the common property and jointly owned assets of the unit or lot owners.
Whereas technically all the lot proprietors constitute the company, in large complexes a
smaller, elected committee or council usually carries out the day to day management
function.
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Before a strata plan can be registered there must be a building or buildings erected on at least
one of the proposed strata lots which make up the parcel of the Strata Plan. In the case of a
survey-strata plan there is no requirement for a building or buildings to be erected. If part of a
building, wall or other significant improvement is built such that it crosses over the boundary
between the subject land and an abutting lot, the encroachment must be recorded on the plan.
Connections to buildings, walls and other types of significant improvements that are close to,
but do not cross over, the boundary of the subject land may be recorded on the plan at the
surveyor’s discretion.
6.3.2
Strata / Survey-Strata Plans – Elements in Common
Each Strata/Survey-Strata Plan has the following elements in common:
•
a title or heading stating whether it is a strata plan or a survey-strata plan
•
a description of the land in the parcel (ie: a TLA description)
•
the name of the scheme
•
the address of the parcel
•
a schedule of unit entitlement for each of the lots
•
a certificate from a licensed valuer that the unit entitlement reflects both the aggregate
and individual values of the lots by not more than 5% variation either way
•
schedules, to permit endorsement of memoranda of dealings affecting the strata / surveystrata plan
•
the name and address of surveyor to be shown
•
an indication as to the existence of a management statement
and
•
a cross-sectional diagram may be drawn on the plan to assist in illustrating the lot
boundaries.
Easements and restrictive covenants created under Part IVA of the TLA may be shown on the
plan (see paragraphs 7.1.8 and 7.3.5).
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6.3.3
Strata Plan – Additional Elements
In conjunction with the elements in common with survey-strata plans referred to above, a strata
plan has the following additional elements:
•
a location plan showing the building in relation to the external boundaries of the parcel
•
a description of the parcel and building
•
a certificate from a licensed surveyor, either negating internal and external
encroachments or certifying that an appropriate easement has been granted for an
external encroachment and will be lodged with the Registrar of Titles
•
an occupancy permit or a building approval certificate
•
a floor plan illustrating the lots and part lots outside the building (if any) and distinguishing
them by number with the floor area of each lot and part lot, and if necessary, the extent of
the vertical and horizontal boundaries (cubic space)
•
if the boundaries of the lots or part lots comprising buildings are fixed by reference to the
inner surface of the walls, ceiling and floor or by the external surface of the building, then
a statement to that effect in the form prescribed by the Strata Titles General Regulations
1996 (STGR) must be contained on the plan
and
•
6.3.4
an endorsement of approval by the Western Australian Planning Commission on the plan
(there are some exemptions- see Regulation 15 in the Strata Titles General Regulations
1996).
Survey-Strata Plans – Additional Elements
In conjunction with the elements in common with strata plans referred to above, a survey-strata
plan has the following additional elements:
•
a survey plan of the parcel that defines the lots and common property lots by dimension
and survey information
•
a description of the parcel
•
a certificate from a licensed surveyor certifying that the plan is a correct and accurate
representation of the survey carried out and that the measurements, survey and plan are
in strict accordance with the relevant legislation
•
a survey plan showing the lots and common property lots (if any) and distinguishing them
by number and showing the area, and if required, a height limitation for the vertical
boundaries (cubic space)
and
•
an endorsement of approval by the Department of Lands on the plan.
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6.3.5
Searching a Strata Lot
When making a search of the ownership of a lot on a strata/survey-strata plan it is essential
that:
•
the strata title is searched to obtain current ownership and encumbrances (see also
paragraph 6.3.6 below)
•
the original strata/survey-strata plan is searched for encumbrances and amendments not
shown on the title
and
•

the records (if any) of the Strata Company are perused.
Note:
These can be viewed with the consent of a lot proprietor by contacting the secretary of the
Strata Company or the Strata Manager.
6.3.6
Strata Title
A strata title is a title for a lot on a Strata/Survey-Strata Plan and includes a share in any
common property in the scheme. Anything occurring on or in respect of common property
affects every title in the scheme.
A strata title contains a notation in its second schedule referring to interests notified on the
Strata/Survey-Strata Plan . This means there could be other interests that are not recorded on
the title that may benefit or encumber the common property or strata lot. Therefore a strata title
must always be searched in conjunction with the Strata/Survey-Strata Plan (see also paragraph
6.3.5 above).
6.3.7
Production of Duplicate Strata Titles
Generally, only those duplicate certificates of title (if any) actually required for amendment need
to be produced at the time of registration of a dealing on strata titles.
Strata titles created and registered under the Strata Titles Act 1966 (ie: created and registered
before 1 July, 1985) all show the quantum of the unit entitlement for that lot.
Where the registration of a dealing results in an amendment of the unit entitlement, all duplicate
certificates of title (if any) created and registered under the Strata Titles Act 1966 are to be
produced. These titles will be cancelled and new titles created and registered (free of charge)
referring to a unit entitlement as set out on the strata/survey-strata plan.
Should a strata/survey-strata plan be terminated, all the duplicate certificate of titles (if any) for
the strata/survey-strata lots must be produced for cancellation.
On a strata/survey-strata plan of re-subdivision or consolidation only those duplicate certificate
of titles (if any) affected by the re-subdivision or consolidation are required to be produced.
When any of the merger and conversion options in the Strata Titles Amendment Act 1996 are
used, the production of the duplicate certificates of title (if any) is not required. They will be
amended when they are lodged at Landgate for the purpose of a dealing.
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6.4
Lodgement and Registration of New Strata/SurveyStrata Plans
6.4.1
General
A new strata/survey-strata plan (Plan) is lodged electronically by the surveyor at Landgate,
supported by a pre-allocated plan number and payment of the prescribed fees (see prescribed
fees).
The Plan is then entered on the computer records and scanned with a legal status of SUBJECT
TO EXAMINATION. After the Plan has been examined to ensure that it is in accordance with
the various Acts, and Regulations, the legal status is changed to CERTIFIED CORRECT.
When the Plan is sent to the WAPC for approval, the legal status is changed to CERTIFIED
CORRECT AND SENT TO WAPC. When the WAPC has approved the Plan, the legal status is
changed to IN ORDER FOR DEALINGS.
When the Plan is put In Order For Dealings, it may be subject to certain actions or conditions.
These actions or conditions must be addressed before or simultaneously with the application to
register the strata plan.
Examples of things that may be required are the amalgamation of lots to form the Strata land
parcel or the modification of restrictive covenants to permit multiple dwellings or subdivision by a
strata/survey-strata plan.

Note:
Some strata plans do not need to go to the WAPC for approval. In this case the legal status of
the Plan will go from SUBJECT TO EXAMINATION straight to IN ORDER FOR DEALINGS.
The proprietor of the parcel may apply to register the strata/survey-strata plan when the legal
status of the plan is shown as IN ORDER FOR DEALINGS. The form to be used is a Form A8
Application to Register Strata / Survey-Strata Plan.
An application to register the strata/survey-strata plan (Form A8) may require other forms and
additional documents necessary for registration. Such forms may be Forms 3 and 7 of the
STGR and additional documents may include a Management Statement, Application to modify a
Restrictive Covenant, Application to vary or discharge an Easement. All specific pre-requisites
to register a plan will be noted on the strata/survey-strata plan.
The land description used should be that shown on the title for the original land parcel and all
the proprietors, if more than one, must join in and sign the application.
The existing duplicate certificate of title (if any) must be produced for cancellation.

Note
Subject to the Act, a certificate given by a licensed valuer for the purpose of the Act is valid for a
period of 2 years. If the licensed valuer’s certificate (Form 3) has lapsed, the original certificate
must be resigned or a new certificate produced.
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In relation to encumbrances currently affecting the parcel, the following should be noted:
•
mortgages, charges, leases and caveats of the whole of the land in the parcel will be
brought forward and shown on the title for the lots on the plan
•
mortgages, charges and leases of part of the land in the parcel should be removed before
the registration of the strata/survey-strata plan can be completed (subject to paragraph
6.9.3, which is where a previously registered strata plan is terminated immediately
followed by a new strata/survey-strata plan);
•
caveats as to a portion of the parcel should be withdrawn unless it can be shown that the
land affected by the caveat can be defined
•
restrictive covenants are brought forward only on the strata/survey-strata plan
and
•
easements will be treated in the following manner:
•
Easements over common property and common property lots are brought forward
on to the strata/survey-strata plan only.
•
Easements affecting part lots outside the building on a strata plan, or a lot or lots
on a survey-strata plan will be brought forward on to the plan and shown as an
encumbrance on the relevant titles.
•
An easement which affects a building on a strata plan must be removed or varied
to the extent necessary to free the building from its encumbrance unless the nature
of the easement is not inconsistent with the restriction as to use of the part of the
strata lot encumbered.
•
Encroachment easements (if any) referred to in the licensed surveyors’ certificate
on the strata plan must be lodged for registration before the application for
registration of the strata plan (see Chapter 6.4.2 below).
Concurrently with the registration of the strata/survey-strata plan, separate titles are prepared
for each lot on it in the name of the applicant. No titles are created and registered for common
property in strata plans or for common property lots in survey-strata plans.

Note:
A disposition statement may be filed with an application to register a strata/survey-strata plan
(see paragraph 6.4.5).
A management statement (if indicated on the plan) may be filed at any time up to the lodgement
of the application to register the strata/survey-strata plan (see paragraph 6.4.7).
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6.4.2
Easements in Respect of Encroachments (Including Easements of
Support)
Section 22 of the STA provides that where part of a strata development, such as a roof, wall or
building foundation is built upon an adjacent lot, an appropriate easement for that part of the
roof, wall or foundation must be put in place before registration of the strata plan may proceed.
One of the appropriate easements is an easement of support for the building erected on the
dominant tenement by that portion of roof, wall or foundation of the said building erected upon
the servient tenement. This type of easement recognises that that portion of the roof, wall or
foundation belongs to the owner of the servient tenement.
A simple model of such an easement is set out in LTRPM Model Form Examples - Example 10
of this manual. Persons considering using the model should examine it carefully to ensure that it
is the type of easement required and that it satisfies all their needs. They should obtain legal
advice before using the model.
It may be more appropriate to effect a subdivision which adds that part of the adjacent lot
subject to the encroachment to the parcel.
Easements in respect of encroachments must be executed and dated prior to the date of the
licensed surveyor’s certificate (s.22 (1) (c) (iii) of the STA) and must be lodged for registration
before the application for registration of the strata plan.
In the case of an easement for support from part of a wall or building on the servient tenement,
the easement document must be lodged with, but preceding the application for registration of
the strata plan.
6.4.3
Effect of Registration
When a strata/survey-strata plan has been registered the lots on it may devolve, be transferred,
mortgaged, leased or otherwise dealt with in the same manner or form as land under the
provisions of the TLA.
Each lot on the strata/survey-strata plan is burdened by and has the benefit of implied
easements of support, the provision of services, such as water and electricity, etc, rights of
shelter from those parts of any building capable of affording shelter, access for maintenance to
certain buildings and all other reasonable ancillary rights to make easements effective (s.11 to
13 of the STA as amended).
The common property and common property lots are held by the proprietors of the lots as
tenants in common, in shares proportional to the unit entitlement of their lots.
The proprietors of the lots on a strata/survey-strata plan, upon registration of the plan, become
a strata company by the name of:
the Owners of (name of the scheme) Strata/Survey-Strata Plan (registered
number).
This company is not subject to the Corporations Law 2001 but derives its authority from the
STA.
The strata company is a convenient means of providing for administration and for the
proprietors to deal with others by use of a common name (see paragraph 6.4.8).
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6.4.4
Conversion of Share (Purple) Titles to Strata Titles
A purple title is a title for an undivided share in the whole of a parcel of land. This term stems
from the past practice of colouring the sketch on the title purple to distinguish them from green
titles. They were used for issuing share titles for high rise buildings prior to the Strata Titles Act
1966 being implemented. Their biggest failing is that the title is for a share in the whole of the
property, not for a specific part. Lenders were reluctant to advance money to purchasers, as
their security could not be tied to an identifiable part of the property.
With the introduction of the STA, a title could be issued for a defined part of a parcel such as a
lot in a building. This has resulted in the decline of purple titles. Share (purple) titles are still
used occasionally for tenancy titles, particularly in rural areas.
When persons contemplate the conversion of property held in undivided shares to strata titles,
all the tenants in common should be in agreement.
In the case of a strata plan, the proprietors should commence their enquiries at the Local
Government to ensure that the building or buildings are suitable to be subdivided into lots under
the STA. Approval of the WAPC is also required unless exempt. (see Regulation 15 in the
STGR).
In the case of a survey-strata plan, an application should be made to the WAPC. The WAPC
will refer this application to the local government and any relevant public authorities and
government departments before granting conditional approval.
Having received the above mentioned approval(s), a Licensed Land Surveyor should be
approached to prepare the strata/survey-strata plan in accordance with the Act and regulations
and lodge it with Landgate.
An Application Form A8 is required to register the strata/survey-strata plan and to create and
register the titles for the lots in the strata/survey strata scheme. This can be lodged when the
legal status of the plan is IN ORDER FOR DEALINGS. All the proprietors of the lots must sign
the application.
A disposition statement (Form 22 of the STGR) may be filed with the application (see Chapter
6.4.5 below).
A sample disposition statement is set out in LTRPM Model Form Examples - Example 9.
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6.4.5
Disposition Statements For Tenancies in Common
The STA as amended makes provision for a disposition statement to be filed with an application
to register a strata/survey-strata plan.
The purpose of the disposition statement is to:
•
instruct the Registrar to create for each proprietor a title to the lot to which that proprietor
is beneficially entitled without the need for the lodgement of transfers
and
•
indicate what strata/survey-strata lots or common property will be affected by pre-existing
encumbrances (if any) that are to be brought forward.
No additional Landgate registration fees are required for filing a disposition statement but it
must be stamped at the Office of State Revenue (Stamp Duties Division).
Regulation 20 of the STGR sets out an abbreviated procedure for the conversion of tenancies in
common.
The disposition statement should be set out in the manner of Form 22 of the STGR. It must be
signed by the applicant (the registered proprietors of the parcel) and it requires the written
consent of encumbrancers and caveators whose interest is being brought forward onto the
various strata/survey-strata lots and common property.
The above mentioned consents can be endorsed in the appropriate section of the disposition
statement or in a letter attached to it. Consents given by letter must clearly describe the nature
of the consent.
A sample disposition statement is set out in LTRPM Model Form Examples - Example 9.

Note:
The disposition statement cannot be used to:
•
Partition ownership of the lots created on the plan other than between the proprietors of
the land the subject of the plan.
•
Totally remove an encumbrance or an entire interest in an encumbrance.
•
Re-allocate any encumbrance to any lot if the encumbrance was not previously registered
over a part of the land now comprised in the lot.
In these circumstances appropriate documents must be lodged.
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6.4.6
Disposition Statements for Plans of Re-Subdivision
Section 8B of the STA as amended makes provision for a disposition statement to be filed with
an application to register a strata/survey-strata plan of re-subdivision.
6.4.6.1
The purpose of the disposition statement
The purpose of the disposition statement is to effect boundary changes to lots and common
property without the need for transfers of the portions involved or the partial removal of
encumbrances. No additional Landgate registration fees are required for filing a disposition
statement but it must be stamped at the Office of State Revenue (Stamp Duties Division).
Regulation 21 of the STGR sets out the abbreviated procedure for a plan of re-subdivision
through the use of a disposition statement.
A disposition statement must be:
•
set out in the manner of Form 23 of the STGR
•
signed by the Strata Company and the registered proprietors of the lots which are directly
affected by the plan of re-subdivision
and
•
consented to by the encumbrancers and caveators of the lots which are directly affected
by the plan of re-subdivision.
The above mentioned consents can be endorsed in the appropriate section of the disposition
statement or in a letter attached to it. Consents given by letter must clearly describe the nature
of the consent as follows:
“Re-subdivision of lot 10 on Strata Plan . . . . . . to include common property as
depicted on plan of re-subdivision signed by surveyor on . . . . . . . . “
If consent is given by a separate letter, the letter may also contain consents to re-allocation of
unit entitlement (see paragraph 6.8.5).
6.4.6.2
The disposition statement cannot be used to:
•
partition ownership of the lots created on the plan of re-subdivision between the
proprietors of the lot being subdivided as tenants in common to separate ownership of
different lots
•
totally remove an encumbrance or an entire interest in an encumbrance;
•
re-allocate any encumbrance (eg mortgage, charge or caveat) to any other lot over which
it was not previously registered
or
•
change any person having a registered interest in an encumbrance (eg mortgage, lease
or easement) or the proprietor the subject of a caveat (including the strata company).
In these circumstances appropriate documents must be lodged.
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6.4.7
Management Statements
The purpose of a management statement is to establish the by-laws and to provide developers
with a method of registering matters pertaining to a proposed strata/survey-strata scheme at the
time the scheme is being established (see schedule 2A of the STA as amended). Some of
these matters are as follows:
•
theme of the strata development
•
disclosure of staged developments
•
plot ratio and open space requirements
•
management of common property
•
additional by-laws
•
a restriction as to use
•
internal and external fencing;
•
insurance of common property;
•
carrying on of any business or trading activity by the strata company
and
•
6.4.7.1
resolution of disputes.
Lodgement and Registration
At the time a strata/survey-strata plan is lodged, it must indicate whether or not a management
statement is to be filed. The management statement may be filed simultaneously with the plan
or at any time up to the lodgement of the Form A8 Application to Register Strata / Survey-Strata
Plan.
A management statement must be in the manner of Form 25 in the STGR and can be in the
form of a deed attached to a Form B4 Cover Sheet or typed on a Form B2 Blank Instrument
Form with Form B1additional Sheets if required.
A management statement shall:
•
be signed by the registered proprietor(s) of the parcel
and
•
have the written consent of each person who has a registered interest in, or is a caveator
of, the parcel.
Any staged development or future plan of re-subdivision contained in a management statement
must comply with the prescribed requirements of regulation 37 of the STGR.
When a management statement is filed, it receives a document number but it is has no effect
(remains unregistered) until the application is lodged to register the strata/survey strata plan.
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6.4.7.2
Searching Management Statements
A management statement will be scanned as part of the strata/survey strata plan until
registration of the plan is effected. To obtain a copy of the management statement prior to
registration of the strata/survey-strata plan, you must order a copy of the plan and with it you will
automatically receive the management statement. The strata/survey-strata plan and the
management statement will be stamped Subject To Examination.
Once the strata/survey-strata plan has been registered, the plan and the management
statement will become separate documents and must be searched separately (ie. if you order
the plan you will not receive a copy of the management statement). To obtain a copy of the
management statement you must order it as a separate document.
6.4.8
Strata Company
6.4.8.1
General Information
After the completion of the registration process, there are various obligations under the STA that
require implementation by the original proprietor. The following paragraphs briefly outline some
of these requirements but Part IV of the STA sets out the management obligations in detail.
On registration of the Strata/Survey-Strata Plan, the strata company comes into existence.
Within 3 months of registration the original proprietor of the parcel is required to call the first
annual general meeting of the strata company. At this meeting the strata council is elected,
levies raised if needed, insurance decisions resolved and other matters associated with the
scheme agreed to. The original proprietor must deliver all plans, specifications, certificates,
books of account and other documents relating to the scheme.
6.4.8.2
Annual General Meetings
In two lot schemes there is no statutory requirement for annual general meetings (AGM).
However the first AGM must be held. In 3 to 5 lot schemes, a by-law may be passed and
registered on the plan exempting the strata company from having to conduct further AGMs. In
all other schemes AGMs must be held and on occasions extraordinary meetings may be
necessary.
Every scheme of whatever size, should keep minuted records of all decisions affecting the
scheme. These records may be required for disclosure to prospective purchasers under s.69 of
the STA.

Note:
The STA does not permit a title to be issued in the name of the strata company; rather it is
issued in the name of all of the registered proprietors as tenants in common. However, in most
cases the Strata Company can act as the transferor or as the party to a specific action.
6.4.9
Powers and Duties of the Strata Company
The duties of the proprietors and the strata company are set out in the body of the STA as
amended and in the by-laws contained in the Schedules to that Act.
In general, it is the responsibility of the company to manage the common property, enforce the
by-laws and attend to insurance matters (s.35 to 37 of the STA).
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6.5
1996 Single Tier Merger and Conversion Options
6.5.1
General
The amendments made to the STA as a result of the proclamation of the Strata Titles
Amendment Act 1996 on 20th January 1997 are aimed at making it easier to remove or reduce
the amount of common property in a strata scheme by the use of merger and conversion
options (in this paragraph referred to as the Options). All of the Options available for this
purpose are outlined in paragraphs 6.5.2, 6.5.4, 6.5.5 and 6.5.6 below.
The use of the Options is subject to the following conditions:
•
They only apply to single tier strata schemes which are registered at Landgate before 1
January 1998.
A single tier strata scheme is a strata scheme in which no lot or part of a lot (except for
a permitted boundary deviation as set out in regulation 37A) is above or below another
lot.
•
As long as the scheme is registered before 1 January 1998, they can be used at any time
before or after 1 January 1998.
•
Each of the Options can only be used once (ie. after using the merger of buildings
option, a strata company can still use the merger of land and/or conversion to surveystrata options at any time in the future).
The Options are brought into effect by the lodgement of an appropriate Notice of Resolution and
accompanying documents at Landgate. The forms as set out in the STGR are available from
Landgate in Midland. They can also be downloaded from Landgate’s corporate website in Quick
Links/ Forms and Fees/ Titles/ Strata Forms prescribed in the STGR.
Registration fees are payable on taking advantage of any of the Options and stamp duty will
only be payable where some money is paid or other consideration is given for redistributing the
common property.
The duplicate certificates of title (if any) for the lots in the strata scheme do not need to be
produced when any of the Options are used. They will be amended when they are lodged at
Landgate for the purpose of a dealing.
Where a duplicate certificate of title is produced by a mortgagee or caveator etc for the purpose
of registering any of the Options, the separate written consent of that mortgagee or caveator will
not be necessary.
Under each of the Options, the lot numbers and the plan numbers will not change, and no new
lots may be created (except for common property lots in the conversion to a survey-strata
scheme).
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6.5.2
Merger by Resolution of Buildings that are Common Property
This paragraph needs to be read in conjunction with paragraph 6.5.1 above.
A strata company of a single tier strata scheme may, by resolution without dissent (or
unanimous resolution in a two-lot scheme), agree that the whole of the buildings shown on the
plan will be within the lots. This means that all of the registered proprietors in the strata scheme
will individually own all of the building that they occupy.
If there is a dissenting vote, the strata company (or other owner in a two-lot scheme) can apply
to the Strata Titles Referee for an order that the resolution has been passed.
Where there are 2 to 5 lots in a single tier strata scheme, it is subject to the automatic merger
provisions that are outlined in paragraph 6.5.3 below.
A Notice of Resolution of Merger of Buildings (in this paragraph referred to as the Notice of
Resolution) must be set out in the manner of Form 30 of the STGR and may be signed by
either:
•
the Strata Company with the common seal affixed
•
all of the registered proprietors in a 2 to 5 lot scheme
or
•
one of the proprietors where an order of the Strata Titles Referee under s.103C or 103M
is attached.
The Notice of Resolution must be lodged at Landgate so that the change is properly recorded
on the strata plan.
On registration of the Notice of Resolution, any registered encumbrances or caveats lodged
against a strata lot shall, by operation of law, be deemed to extend over that part of the common
property that now forms part of the lot.
Landgate’s web sites provides further assistance in the preparation of the Notice of Resolution
in the form of a how-to kit entitled How to Guides for Single Tier strata scheme merger and
conversion options- Conversion Option 1: Ownership of Buildings.
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6.5.3
Automatic Merger of Buildings that are Common Property
6.5.3.1
General information
Where there are between 2 and 5 lots in a single tier strata scheme, then the buildings
(common property) shown on the strata plan will, under s.21M of the STA as amended,
automatically convert to individual ownership on:
•
21 July 1997 for strata plans registered before 20 January 1997
or
•
6 months after the registration of the strata plan, if it was registered between 20 January
1997 and 31 December 1997
unless any proprietor lodges an objection with Landgate.

Note:
For a definition of what constitutes a single tier strata scheme see paragraph 6.5.1 of this
Manual.
Where the automatic merger of buildings applies to a strata scheme, the Registrar of Titles will
record on the strata plan that s.21M of the STA applies to that scheme and amend the strata
plan accordingly.
If no objection has been lodged and an automatic merger of a building has taken place, it is
possible in exceptional circumstances to have the buildings revert to common property by an
order of the Strata Titles Referee (see s.103P of the STA as amended).
6.5.3.2
Objection by a proprietor to automatic merger of buildings
A proprietor of a lot may lodge with the Registrar of Titles an objection under s.21O to the
automatic merger of a building.
An objection must:
•
be set out in the manner of Form 31 of the STGR
and
•
be lodged before the day on which the Automatic Merger is due to take place.
Where an objection is lodged, the Registrar of Titles will make a notation on the relevant strata
plan and mail a copy of the objection to every other proprietor in the scheme.
The lodgement of an objection will prevent the automatic merger of a building from taking place.

Note:
Where an objection is lodged, the option of having a merger by resolution of buildings is still
available (see paragraph 6.5.2).
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6.5.4
Merger by Resolution of Land that is Common Property
This paragraph needs to be read in conjunction with what is contained in paragraph 6.5.1.
6.5.4.1
General Information
A strata company of a single tier strata scheme may by resolution without dissent (or
unanimous resolution in a two-lot scheme) agree that the strata plan be amended in one or
more of the following ways:
•
to reflect any extension or alteration of a building shown on the strata plan
•
to include a building not shown on the strata plan
and / or
•
to merge land that is common property into a lot.
The purpose of the above mentioned amendments is to give to the registered proprietors in a
strata scheme individual ownership of all of the buildings and land that they occupy and to
update the buildings shown on the strata plan.

Note:
If there is a dissenting vote the strata company (or other owner in a two-lot scheme) can apply
to the Strata Titles Referee for an order that the resolution has been passed.
If the resolution is to include buildings not shown on a strata plan or to reflect any extensions or
alterations to a building shown on a strata plan, there must have been at the time that the
resolution was passed:
•
a building licence under s.374 of the Local Government (Miscellaneous Provisions) Act
1960
and
•
the approval for the building by the strata company or all of the proprietors of the lots in
the scheme.
If the resolution is to merge land that is common property into a lot, the resolution is to specify:
•
any easement that is to be created in the terms of s.21W of the STA as amended (see
below under the sub-heading Easements Created under Section 21W)
and
•
the horizontal boundaries of the land in the lots.
A Notice of Resolution of Merger of Land (in this paragraph referred to as the Notice of
Resolution) must be set out in the manner of Form 32 of the STGR and may be signed by
either:
•
the Strata Company with the common seal affixed
•
all of the registered proprietors in a 2 to 5 lot scheme
or
•
one of the proprietors where an order of the State Administrative Tribunal under s.103C
or 103M is attached.
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6.5.4.2
Documents to be lodged with the Notice of Resolution
The Notice of Resolution is to be accompanied by the following documents:
•
A copy of any relevant order under s.103C or 103M of the STA certified by the Strata
Titles Referee as being a true copy (if applicable).
•
A sketch plan (on a Form 34 of the STGR) showing in the prescribed manner (see
Regulations 4, 5(a) and 14L) how the strata plan is to be amended.
If the details shown on the strata plan or contained in the Notice of Resolution is
sufficient, the Registrar of Titles may (in some cases) dispense with the sketch plan.

•
A certificate in the manner of Form 35 of the STGR given by a licensed surveyor in
accordance with s.21U of the STA as amended whenever a sketch plan is required.
•
A certificate in the manner of Form 36 of the STGR given by a licensed valuer in
accordance with s.14 (2) of the STA as amended.
•
An amended schedule of unit entitlement attached to the licensed valuer’s certificate
(Form 36) if any change in unit entitlement has occurred.
•
Where the unit entitlement of a lot is to be decreased, the written consent of every person
who has a registered interest or is a caveator in respect of that lot must be obtained.
•
Every transfer or other document that is necessary to give effect to the Notice of
Resolution must be lodged for registration with the Notice of Resolution.
Note:
A Disposition on Merger of Land (in this paragraph referred to as the Disposition Statement)
may be filed instead of the transfers and other documents that are necessary to give effect to
the Notice of Resolution (see below).
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6.5.4.3
Disposition Statement
Section 21V (2) of the STA as amended makes provision for a Disposition Statement to be filed
with the Notice of Resolution.
The purpose of the Disposition Statement is to:
•
merge the common property or portions of the common property with a strata lot or lots
without the need to lodge transfers for the portions involved
and
•
redefine the extent of existing encumbrances registered or caveats lodged against a lot
that has had its area increased without the need to lodge new documentation.
No registration fees are required for filing a Disposition Statement and no stamp duty is payable
unless the Consideration panel in the Disposition Statement shows that one or more
registered proprietors have paid money or given other consideration to acquire ownership of
more of the common property than they previously occupied.
Regulation 21A sets out the abbreviated procedure for a Notice of Resolution through the use of
a Disposition Statement.
A Disposition Statement must be set out in the manner of Form 39 of the STGR and must be:
•
signed by two members of the council using the common seal and the registered
proprietors of any lots that are directly affected by the Notice of Resolution
or
signed by all the registered proprietors in a 2 to 5 lot scheme
and
•
consented to by every person (other than a proprietor) who has a registered interest in or
is a caveator in respect of any lots in the scheme in respect of which the unit entitlement
is being decreased.
The above mentioned consents can be endorsed in the appropriate section of the Disposition
Statement or in a letter attached to it. Consents given by letter must clearly describe the nature
of the consent.

Note:
The Disposition Statement may not effect:
•
a change of the registered proprietor of a lot on the strata plan, from the registered
proprietor of that lot on the plan as previously registered
•
the complete release, removal or discharge of an encumbrance or caveat or the release,
removal or discharge of an entire interest in an encumbrance
•
the registration of any registered interest (other than as registered proprietor) or the
lodgement of a caveat, in respect of a lot or the common property if a part of that lot or
the common property was not previously subject to that registered interest or caveat
or
•
a change of any person having a registered interest in any encumbrance registered or the
proprietor of an interest the subject of any caveat lodged, in respect of a lot or the
common property.
In these circumstances appropriate documents must be lodged.
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6.5.4.4
Easements created under Section 21W of the STA
The sketch plan referred to above may provide for easements relating to motor vehicle access,
parking or turning.
This easement is created under s.5D of the STA, as amended, as if the sketch plan were a
survey-strata plan with the modification that the easement will take effect on the registration of
the Notice of Resolution.
The written consent of a person having a registered interest in, or is a caveator in respect of any
lot that would be burdened by the easement is desirable and may be lodged.
Section 5F of the STA as amended, applies to the discharge or variation of these easements
with the modification that the approval of the Local Government (not the Western Australian
Planning Commission) is required.

Note:
For more information on the creation, discharge or variation of these easements see
paragraphs 7.1.9 and 7.2.8.
6.5.4.5
Effect of registration of the Notice of Resolution
The Notice of Resolution must be lodged at Landgate so that the changes are properly recorded
on the strata plan.
On registration of the Notice of Resolution:
•
If any land that merges into a lot was subject to any right or privilege granted under bylaw 3 (f) contained in Part 1 of the Schedule to the Strata Titles Act 1966 or to an
exclusive use by-law referred to in s.42 (8) of the STA as amended, that right or privilege
or exclusive use by-law ceases to be applicable to the land that has merged.
•
A lot that has been enlarged or diminished as a result of the merger of land is subject to
any encumbrance that was registered or caveat that was lodged against that lot.
and
•
Each lot or part of a lot that becomes common property vests in the proprietors to be held
by them as tenants in common in shares proportional to the unit entitlement of their
respective lots, and that proprietor’s share in the common property is subject to any
encumbrance registered or caveat lodged against his lot.
Landgate’s web sites provides further assistance in the preparation of the Notice of Resolution
in the form of a how-to kit entitled How to Guides for Single Tier strata scheme merger and
conversion options- Conversion Option 2: Ownership of Land.
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6.5.5
Merger by Resolution of Buildings and Land That Are Common
Property
This paragraph needs to be read in conjunction with what is contained in paragraphs 6.5.1.
6.5.2 and 6.5.4.
A strata company of a single tier strata scheme may by resolution without dissent (or
unanimous resolution in a two-lot scheme) agree to a merger of both buildings and land that are
common property.
A Notice of Resolution of Merger of Buildings and Land (in this paragraph referred to as the
Notice of Resolution) must be set out in the manner of Form 33 of the STGR.
The requirements for registration of the Notice of Resolution are exactly the same as the
requirements for a Merger by Resolution of Buildings that are Common Property and for a
Merger by Resolution of Land that is Common Property as is outlined in paragraphs 6.5.2 and
6.5.4.
Landgate’s web sites provides further assistance in the preparation of the Notice of Resolution
in the form of a how-to kit entitled How to Guides for Single Tier strata scheme merger and
conversion options- Conversion Option 1 & 2: Ownership of Buildings and Land.
6.5.6
Conversion of Strata Schemes to Survey-Strata Schemes
This paragraph needs to be read in conjunction with what is contained in paragraph 6.5.1.
6.5.6.1
General information
A strata company of a single tier strata scheme may by unanimous resolution resolve that a
strata scheme be converted to a survey-strata scheme.

Note:
It is not possible to increase the number of lots (with the exception those lots designated as
common property) in a strata scheme by the process of conversion to survey-strata.
The resolution is to specify:
•
any easement that is to be created in the terms of s.31G of the STA as amended (see
paragraph 6.5.6.4 Easements Created under Section 31G)
and
•
the height and/or depth limits of the lots, if any.
A Notice of Resolution of Conversion to a Survey-Strata Scheme (in this paragraph referred to
as the Notice of Resolution ) must be set out in the manner of Form 37 of the STGR (in this
paragraph referred to as the STGR) and may be signed by:
•
the Strata Company with the common seal affixed
or
•
all of the registered proprietors in a 2 to 5 lot scheme.
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6.5.6.2
Documents to be lodged with the Notice of Resolution
The Notice of Resolution is to be accompanied by the following documents:
•
A survey-strata plan in respect of the parcel that has been prepared by a licensed
surveyor.
•
A certificate in the manner of Form 38 of the STGR given by a licensed surveyor in
accordance with s.31F of the STA as amended.
•
A certificate in the manner of Form 3 of the STGR given by a licensed valuer in
accordance with s.14 (2) of the STA as amended.
•
The written consent to the proposed schedule of unit entitlement must be obtained from
every person (other than a proprietor) who has a registered interest or is a caveator in
respect of any lot in the scheme.
Where a duplicate certificate of title is produced by a registered mortgagee for the
purpose of registering the Notice of Resolution, the separate written consent of that
mortgagee will not be necessary.
•

Every transfer or other document that is necessary to give effect to the Notice of
Resolution must be lodged for registration with the Notice of Resolution.
Note:
A Disposition on Conversion to a Survey-Strata Scheme (in this paragraph referred to as the
Disposition Statement) may be filed instead of the transfers and other documents that are
necessary to give effect to the Notice of Resolution (see below).
6.5.6.3
Disposition Statement
Section 31H (2) of the STA as amended, makes provision for a Disposition Statement to be filed
with the Notice of Resolution.
The purpose of the Disposition Statement is to:
•
effect boundary changes to the lots and common property without the need to lodge
transfers for the portions involved
•
partially remove existing encumbrances registered or caveats lodged against the portion
of a lot or common property that is to be included in another lot without the need to lodge
the usual documentation
and
•
redefine the extent of existing encumbrances registered or caveats lodged against a lot
that has had its area changed without the need to lodge new documentation.
No registration fees are required for filing a Disposition Statement and no stamp duty is payable
unless the Consideration Panel in the Disposition Statement shows that one or more
registered proprietors have paid money or given other consideration to acquire ownership of
more land than they previously owned or occupied.
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Regulation 21A of the STGA sets out the abbreviated procedure for a Notice of Resolution
through the use of a Disposition Statement. A Disposition Statement must be set out in the
manner of Form 39 of the STGR and must be:
•
signed by two members of the council using the common seal and the registered
proprietors of any lots that are directly affected by the Notice of Resolution
or
signed by all the registered proprietors in a 2 to 5 lot scheme
and
•
consented to by every person (other than a proprietor) who has a registered interest in or
is a caveator in respect of any lot in the scheme.
The above mentioned consents can be endorsed in the appropriate section of the Disposition
Statement or in a letter attached to it. Consents given by letter must clearly describe the nature
of the consent.

Note:
The Disposition Statement may not effect:
•
a change of the registered proprietor of a lot on the survey-strata plan, from the
registered proprietor of that lot on the plan as previously registered
•
the complete release, removal or discharge of an encumbrance or caveat or the release,
removal or discharge of an entire interest in an encumbrance
•
the registration of any registered interest (other than as registered proprietor) or the
lodgement of a caveat, in respect of a lot or the common property if a part of that lot or
the common property was not previously subject to that registered interest or caveat
or
•
a change of any person having a registered interest in any encumbrance registered or the
proprietor of an interest the subject of any caveat lodged, in respect of a lot or the
common property.
In these circumstances appropriate documents must be lodged.
6.5.6.4
Easements created under Section 31G of the STA
The survey-strata plan referred to above may provide for easements to be created under s.5D
of the STA as amended, which will take effect on the registration of the Notice of Resolution.
The written consent of a person having a registered interest in, or is a caveator in respect of any
lot that would be burdened by the easement is desirable and may be lodged.
Section 5Fas of the STA as amended, applies to the discharge or variation of these easements.

Note:
For more information on the creation, discharge or variation of these easements see
paragraphs 7.1.9 and 7.2.8.
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6.5.6.5
Effect of registration of the Notice of Resolution
The Notice of Resolution must be lodged at Landgate so that the changes are properly recorded
on the strata plan.
On registration of the Notice of Resolution:
•
the scheme ceases to be a strata scheme and becomes registered as a survey-strata
scheme
•
if any area of land was subject to any right or privilege granted under by-law 3 (f)
contained in Part 1 of the Schedule to the Strata Titles Act 1966 or to an exclusive use
by-law referred to in s.42 (8) of the STA as amended, that right or privilege or exclusive
use by-law ceases to be applicable to that area of land
•
each survey-strata lot is subject to any encumbrance that was registered or caveat that
was lodged against that lot prior to the conversion
and
•
each lot or part of a lot that becomes common property vests in the proprietors to be held
by them as tenants in common in shares proportional to the unit entitlement of their
respective lots, and that proprietor’s share in the common property is subject to any
encumbrance registered or caveat lodged against his lot.
The strata company continues to exist upon the conversion to a survey-strata scheme. All of the
contracts that the strata company had entered into before the conversion to survey-strata are
still valid.
Landgate’s web sites provides further assistance in the preparation of the Notice of Resolution
in the form of a how-to kit entitled How to Guides for Single Tier strata scheme merger and
conversion options- Conversion Option 3: Converting Survey-Strata.
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6.6
Enlargement of the Common Property
6.6.1
General
The area of common property/common property lot(s) can be increased either by:
•
conversion of one or more strata/survey-strata lots by a transfer to the Strata Company
(see paragraphr 6.6.2 below)
•
the purchase or lease of adjoining land by the Strata Company (see paragraph 6.6.3)
•
inclusion of a closed public road or other unallocated crown land under s.87 of the LAA
(see paragraph 6.6.4)
and
•
6.6.2
inclusion of a closed private road or right of way under s.297A of the Local Government
(Miscellaneous Provisions) Act 1960 as amended (see paragraph 6.6.5).
By Conversion of a Strata/Survey-Strata Lot
The transfer of a strata/survey-strata lot with the intention of increasing the area of the common
property must have filed with it at the time of registration:
•
a certificate from the Local Government in the manner of Form 9 of the STGR
•
a certificate from the Strata Company in manner of Form 10 of the STGR
and
•
the duplicate certificate of title (if any) for the strata/survey-strata lot.
Any lot(s) being converted to common property must be transferred free of any encumbrances,
caveats or other interests.
Upon the registration of the Transfer, the share of a proprietor in the common property (as
increased by the Transfer) shall by operation of law, be deemed to be subject to any preexisting encumbrances registered or caveats lodged against their lot.
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6.6.3
By Purchase or Lease of Adjoining Land
6.6.3.1
Land purchased
Land purchased by the Strata Company to increase the area of the common property/common
property lots must be free of encumbrances (including caveats) and be added by survey to the
original parcel. The transfer must have filed with it at the time of registration:
•
a certificate from the Strata Company in the manner of Form 13 of the STGR
and
•

the duplicate certificate of title (if any) for the land being transferred.
Note:
Where the land purchased (the adjoining land) is only part of the land comprised in a title, a
Form A6 Application for a New / Balance Title for balance title must be lodged with the above
mentioned transfer unless the Plan incorporates all the land in the relevant title (see Regulation
7 (2) of the STGR).
When the land is transferred to the Strata Company, the strata/survey-strata plan is amended to
include that land as common property.
6.6.3.2
Land leased
Land leased by the Strata Company to increase the area of the common property/common
property lots does not need to be included in the common property by survey. The lease (or a
transfer of lease or sub-lease) must be free of encumbrances and must have filed with it at the
time of registration:
•
a certificate from the Strata Company in the manner of Form 13 of the STGR
and
•
the lease or sub-lease whichever is appropriate.
When land is leased to the Strata Company, an endorsement is made in the Schedule of
Dealings (Form 8) for the strata/survey-strata plan.
The Strata Company is responsible for all payments and performance of duties due under the
lease.
A strata company may, pursuant to a resolution without dissent (or unanimous resolution, in the
case of a two-lot scheme) and with the concurrence of the lessor, surrender the lease.

Note:
Upon the registration of the Transfer or lease, the share of a proprietor in the common property
(as increased by the Transfer or Lease) shall by operation of law, be deemed to be subject to
any pre-existing encumbrances registered or caveats lodged against their lot.
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6.6.4
By Inclusion of a Closed Public Road or Other Unallocated Crown
Land under Section 87 of the LAA
When an application to include a closed public road or other unallocated crown land into a
strata/survey-strata plan is lodged, the strata/survey-strata plan is amended to include it as
common property.
The application, made in the name of the strata company must include:
•
Section 87- Amalgamation (Ministerial) Order under the LAA (prepared by the
Department of Lands)
and
•
6.6.5
a certificate in the manner of Form 13 as set out in the STGR, as amended.
By Inclusion of a Closed Private Road or Right of Way under
Section 297A of the Local Government (Miscellaneous Provisions)
Act 1960
When an application to include a closed private road or right of way into a strata/survey-strata
plan is lodged, the strata/survey-strata plan is amended to include it as common property.
The application, made in the name of the strata company must include a certificate in the
manner of Form 13 as set out in the STGR as amended.

Note:
Section 297A of the Local Government (Miscellaneous Provisions) Act 1960 has been repealed
by the introduction of the LAA (see s.67 of the LAA as amended).
Any action taken under s.297A of the Local Government (Miscellaneous Provisions) Act 1960
and completed before the commencement of the LAA is to be treated as if it was done under
s.52 of the LAA, as amended.
Any action taken under s.297A but not completed before the commencement of the LAA may
be completed as if that section had not been repealed and is on completion to be treated as if it
had been done under s.52 of the LAA.
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6.7
Sale or Lease of Part of the Common Property
6.7.1
Sale of Part of the Common Property
The proprietors of a strata/survey-strata plan may sell part of the common property or a
common property lot (s.19 of the STA as amended). The portion to be sold must be the whole
or part of the land comprised in an approved survey. As an example of how to prepare the
transfer, the land description and transferor panel would contain the following information:
Land: Portion of Swan Location 16 and being all that part of the common property
in Strata Plan 6000 as is comprised in Diagram 61616
Transferor: The Owners of 18 Hay Street, Perth, Strata Plan 6000 of 18 Hay
Street, Perth.
The transfer must be accompanied by a Form 14 Certificate of Strata Company from the STGR,
and sealed by the Strata Company in the same way as the certificate.
Where the common property/common property lot being transferred comprises only part of the
land in a survey, the transfer must be accompanied by:
•
an application for a new title the subject of that survey (using Form A6 Application for a
New or Balance Title)
and
•
the duplicate certificate of title (if any) for the other land owned by the applicant.
Where the common property/common property lot being transferred is the whole of the land in a
survey, an application Form A6 is not required to accompany the transfer.
As a survey is required for the portion transferred, the consents required by s.19(10) of the STA
as amended, are deemed to have been obtained when the survey has been approved.
Common property/common property lot(s) may also be transferred to the proprietor of a lot in
the strata/survey-strata scheme as part of a re-subdivision (see paragraph 6.8.5).
6.7.2
Lease of Part of The Common Property
The proprietors of a strata/survey-strata plan may lease part of the common property or sublease land leased to increase the common property. A lease for a period greater than three
years may be registered on the strata/survey-strata plan.
On registration, such a lease must:
•
show the strata company as lessor
•
be accompanied by a certificate in the manner of Form 14 from the STGR
•
be accompanied by the consent of the Local Government
and
•
where the term (including extensions) exceeds the relevant period set out in regulation 38
of the STGR, be endorsed with the consent of the Western Australian Planning
Commission.
A sub-lease of land leased to increase the area of the common property may not be entered
into by the Strata Company if the terms of the original lease prevent it. Registration of the sublease is effected in a similar manner to that shown for a lease above.
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6.8
Modifications to an Existing Strata/Survey-Strata
Scheme
6.8.1
General
A registered strata/survey-strata scheme may be modified by the lodgement of any of the
applications particularised in the following paragraphs. On a re-subdivision or consolidation, the
new survey and certificate sheets are bound with the original plan and the details on the original
plan are amended to reflect the change.
Other applications are recorded by endorsing a memorandum of the nature of the application on
the schedules contained in the strata/survey-strata plan. The strata/survey-strata plan then
shows the current state of the Register and also the complete history of activities on the plan
from its original registration.
6.8.2
Change of Name
A Strata Company may by special resolution (or unanimous resolution in the case of a two-lot
scheme) and with the approval of the Registrar of Titles, change the name of the scheme. The
change takes effect from the registration of the change at Landgate.
Registration is achieved by an application from the Strata Company (in its old name) on a Form
A5 accompanied by a certificate in the manner of Form 17 from the STGR. Alternatively the
Form 17 certificate can be reproduced on the inside of a document Form B4 Cover Sheet.
The duplicate certificates of title (if any) for the strata lots are not required to be lodged with the
application.
The Common Seal used on an application of this kind should show the old name of the Strata
Company.
6.8.3
Change of Address for Service of Notices
For strata/survey-strata plans registered after the 14th April 1996, the address for service of
notices to a Strata Company is the address of the parcel that is shown on the strata/surveystrata plan at the time of lodgement.
For strata plans registered prior to the 14th April 1996, the address for service of notices to the
strata company was shown on the plan at the time of registration.
The address for service of notices may be changed by lodging on a Form B4, a Certificate of
Change of Address, set out in the manner of Form 16 from the STGR at Landgate.
A notation of the change of address will be endorsed on the strata/survey-strata plan in its
Schedule of Dealings.
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6.8.4
Re-Allocation of Unit Entitlement on a Strata/Survey-Strata Plan
The unit entitlement on:
•
A strata plan should be a reflection of the capital value of the lot as a proportion of the
total capital value of all the lots.
•
A survey-strata plan should be a reflection of the site value of the lot as a proportion of
the total site value of all the lots.
The meaning of the terms capital value and site value referred to above, are contained in the
Valuation of Land Act 1978.
Where any unit entitlement becomes more than 5% out of proportion to the relative value of the
lot, the strata company can, if it has passed a resolution without dissent (or a unanimous
resolution in the case of a two-lot scheme), apply to rectify the matter by registering a new
schedule of unit entitlement.
The application by the Strata Company on a Form B2, should be accompanied by:

•
A certificate from the Strata Company in the manner of Form 11 from the STGR.
•
The written consent of any person or corporation (other than the registered proprietor)
with a registered interest in a lot affected by the change of unit entitlement;
Note:
A caveator is deemed to have a registered interest in this instance (s.15(5) of the STA as
amended);
•
a certificate from a licensed valuer, substantially in the manner of Form 3 from the Strata
Title General Regulations 1996
and
•
If the strata titles were created and registered under the Strata Titles Act 1966, the
duplicate certificates of title (if any) are to be produced (see paragraph 6.3.7).
Upon the registration of an amended schedule of unit entitlement, the amended share of a
proprietor in the common property shall by operation of law, be deemed to be subject to any
pre-existing encumbrances registered or caveats lodged against their lot.
A proprietor of a lot, or a Strata Company, may apply to the State Administrative Tribunal (SAT)
to have the unit entitlement on a strata/survey-strata plan amended. The amendments are
effected by registering the Order of the SAT at Landgate (see paragraph 6.12.6).
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6.8.5
Re-Subdivision of Strata/Survey-Strata Plans
Strata/survey-strata lots and common property/common property lots or a combination of both,
may by a unanimous resolution of the Strata Company be re-subdivided by lodging an amended
strata/survey-strata plan (called a strata/survey-strata plan of re-subdivision).
The plan sheets containing the amendments and the appropriate consents should be lodged by
the surveyor with the Survey Advice Officer at Landgate.

Note:
A strata plan may only be re-subdivided by a strata plan of re-subdivision and a survey-strata
plan may only be re-subdivided by a survey-strata plan of re-subdivision.
6.8.5.1
Registration
An application to register the plan of re-subdivision is required. This is a Form 20, as set out in
the STGR, which may be typed on a Form B2 or B4 Cover Sheet.
The application and any transfers required to give effect to the re-subdivision may be lodged
simultaneously with the new plan or at any time thereafter.
A separate Form 14, is not required, as the certification by the strata company to the transfer or
acquisition of common property is set out in the application to register the re-subdivision.
The portion being transferred to enlarge an existing lot must be free of encumbrances and
caveats and therefore they will need to be removed as to the extent necessary.
A disposition statement may be filed with the application to register a strata/survey-strata plan of
re-subdivision (see paragraph 6.4.6). If a disposition statement is filed, the transfers required to
give effect to the re-subdivision are unnecessary and the partial removal of encumbrances and
caveats will not be required.
Where a strata/survey-strata lot has been enlarged or diminished by the process of resubdivision, any encumbrances and caveats affecting the lot will, automatically by operation of
law, be adjusted to the new dimensions of the lot.
The duplicate certificates of title (if any) for the land affected by the re-subdivision must be
produced.
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6.8.5.2
Consents
Unless the plan of re-subdivision sufficiently complies with what is disclosed in a registered
Management Statement or By-law incorporating a plan of re-subdivision and change of unit
entitlement, the following consents are required:
•
The written consent of every person who has a registered interest (other than the
registered proprietor) or is a caveator in any lot proposed to be affected by the resubdivision.
•
The written consent of every person who has a registered interest (other than the
registered proprietor) or is a caveator in any lot that will have a change in its unit
entitlement due to the re-subdivision.
The above mentioned consents can be endorsed on the application or in a letter attached to it.
Consents given by letter must clearly describe the nature of the consent:
“Re-subdivision of lot 10 on Strata Plan . . . . . . to include common property as
depicted on plan of re-subdivision signed by survey or on. . . . . . . . . . . “
or
“The alteration of the unit entitlement of lot . . . . . on Strata Plan . . . . . . . from 3/5
to 4/5).”

Note:
While a plan of re-subdivision can be lodged in accordance with the terms of a registered
management statement, it is not possible to file a management statement with a strata/surveystrata plan of re-subdivision.
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6.8.6
Consolidation of Two or More Strata/Survey-Strata Lots
The consolidation of strata/survey-strata lots (not being all the lots) is permitted by s.9 of the
STA as amended.
Consolidation of two or more lots is achieved by:
1.
Lodging a strata plan of consolidation endorsed with:
•
a certificate of the Local Government (Form 18 of the STGR)
and
•
unless exempt, the consent of the Western Australian Planning Commission.
or
2.
Lodging a survey-strata plan of consolidation endorsed with the consent of the Western
Australian Planning Commission.
and
3.
Lodging a Form A6 Application for New or Balance Title by the registered proprietor of
the lots accompanied by:
•
a letter or an endorsement on the document stating the full name, address and
facsimile machine number of the Local Government, Water and Sewerage
Authorities to which the Registrar of Titles is required to deliver a copy of the
amended strata/survey-strata plan
•
the relevant duplicate certificates of title (if any)
and
•
the written consent of any person or corporation who has a registered interest in
the new lot.
The following office practice should be noted:
•
Any encumbrances on lots so consolidated will be brought forward on to the title. Where
the encumbrance is a mortgage previously over only one of the consolidated lots it will be
brought forward as to portion only of the new lot. Mortgagees may have difficulty in
exercising their power of sale in such circumstances. Where each original lot was
encumbered by a different mortgage a similar problem will arise.
•
The endorsement of a mortgagee’s consent to the consolidation will be taken as an
acknowledgment of, and consent to, the new state of the Register.
•
A caveat lodged by virtue of an unregistered TLA document must be withdrawn before
the application for consolidation is lodged.
and
•

The unit entitlement for the new lot is the sum of the unit entitlement of the old lots.
Note:
Common property cannot be incorporated into a consolidation of two or more strata lots.
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6.8.7
Addition, Variation or Removal of Restriction as to Use
A strata/survey-strata plan that is lodged for registration may create a legally binding restriction
as to the use to which the parcel or part of the parcel may be put. This is achieved by an
endorsement on the plan that delineates the area or space affected and that makes specific
reference to s.6 (1) of the STA as amended.
Where a strata/survey-strata plan has been registered without any restriction as to use, the plan
may be amended to restrict the use to which the parcel or part of the parcel may be put.
A restriction that has been endorsed on a registered strata/survey-strata plan may be varied or
removed.
The addition, variation or removal of a restriction requires a resolution without dissent (or a
unanimous resolution in the case of a two-lot scheme) from the Strata Company and it will take
effect from the date of registration of the resolution at Landgate. Registration is achieved by the
lodgement of an application Form A5 that is accompanied by:
•
a certificate from the Strata Company in the manner of Form 19 from the STGR (with a
sketch attached, if necessary, to define the portion of the parcel affected by the addition
or variation of a restriction as to use)
•
the written consent of the Local Government to the resolution (not required for surveystrata plans)
and
•

unless exempted, the written consent of the Western Australian Planning Commission to
the resolution.
Note:
A restriction as to use may be included in a management statement (see paragraph 6.4.7).
A restriction may limit the use of strata/survey-strata lots by requiring that each lot is to be
occupied only, or predominantly by retired persons and their spouse (see s.6A of the STA as
amended).
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6.9
Variation or Termination of a Strata Scheme
6.9.1
Variation Upon Damage or Destruction (section 28 of the STA)
Where a building is damaged or destroyed, the Supreme Court may, on application by either of
the Strata Company, a unit owner or a registered mortgagee of a lot, make an Order varying the
existing scheme. On receipt of an application Form A5 with the Order, the Registrar of Titles will
make the appropriate amendments on the strata plan. Should a strata lot be cancelled the
appropriate duplicate certificate of title (if any) must be produced.
For a variation upon resumption (now called Taking) of part of the land in the parcel, see s.29
and s.29B of the STA as amended.
6.9.2
Termination by Unanimous Resolution (Section 30 of the STA)
The registered proprietors may resolve by unanimous resolution that the strata scheme be
terminated.
Where the parcel is not to be transferred, an application Form A5 signed by the Strata
Company is required and must be supported by:
•
a notification of termination of a scheme (Form 15 of the STGR)
and
•
the (unencumbered) duplicate certificate of titles (if any) for the strata lots.
Landgate will cancel the strata plan and a title will be created and registered for the parcel, in
the name of all the proprietors as tenants in common in the undivided shares proportional to the
unit entitlements of their respective lots.
Where the whole of the parcel is to be transferred, the lot proprietors may by unanimous
resolution direct the Strata Company to execute the transfer. The transfer is prepared in the
name of the strata company as the transferor and must be supported by:
•
a notification of termination of a scheme (Form 15 of the STGR)
•
a certificate of the strata company (Form 14 of the STGR)
and
•
the (unencumbered) duplicate certificate of titles (if any) for the strata lots.
Upon registration of the transfer, the strata plan is cancelled and a new title is created and
registered in the name of the transferee.
The requirement that titles be unencumbered may be waived if the notification of termination of
a scheme is accompanied by written consents that clearly acknowledge that any mortgagee’s
powers of sale would be, or other encumbrancer’s rights may be, ineffective and requesting the
Registrar of Titles to register the notification despite that fact.
The consents are to be witnessed by a solicitor, who is to state in writing on the consent that
he/she acts for the mortgagee/encumbrancer and has advised the mortgagee/encumbrancer as
to the effect of the termination of the strata scheme on the mortgagee’s/encumbrancer’s
powers.
One of the effects of termination would be that when a strata scheme is terminated, a
mortgagee of a strata lot would be unable to exercise power of sale over the land the subject of
the mortgage as the land would then be only an undefined part of the parcel held by all
registered proprietors of the parcel.
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6.9.3
Termination for the Purpose of Creating a New Strata/Survey-Strata
Scheme – Where Encumbrances on Lots are to be Carried Forward
In such cases, a solicitor’s statement endorsed on consents will not be necessary, provided that
the notification for termination of a strata plan is:
1.
Accompanied by:
•
written consent by mortgagees and other encumbrances that clearly acknowledge
that any mortgagee’s power of sale would be, or other encumbrancer’s rights may
be, ineffective following termination of the strata plan until registration of a new
strata/survey-strata plan
•
written requests by mortgagees and other encumbrancers that the Registrar of
Titles register the termination of the strata scheme notwithstanding that fact,
provided that it is immediately followed by registration of a strata/survey-strata plan
(specified) providing for encumbrances (specified) to be registered against a lot
(specified) on the new a strata/survey-strata plan
and
•
2.
a disposition statement providing that what were formerly encumbrances against
individual lots on the former strata plan (then encumbrances against the title for the
parcel on termination of the strata plan) become encumbrances against individual
lots on the new strata/survey-strata plan.
Immediately followed by, as part of the same dealing, an application for registration of the
new strata/survey-strata plan which is accompanied by a disposition statement that
complies with the request.
The other requirements outlined above in paragraph 6.9.2 - Termination by Unanimous
Resolution (Section 30) are to be followed.
6.9.4
Termination by the Taking of the Whole of the Parcel (Section 29C
of the STA)
The Minister may in a Taking Order declare that the strata scheme is terminated.
The Registrar of Titles will register the land in the parcel in the name of the State of Western
Australia or other authority in which it has vested under the Taking Order.
6.9.5
Termination by Order of District Court (Section 31 of the STA)
The District Court may make an order terminating a strata scheme.
If an Order is made terminating the scheme, the strata company must register the Order by the
lodgement of an application Form A5 signed by the strata company that is supported by:
•
the Order of the District Court
and
•
the (unencumbered) duplicate certificate of titles (if any) for the strata lots.
Landgate will cancel the strata plan and a title will be created and registered for the parcel, in
the name of all the proprietors as tenants in common in the undivided shares proportional to the
unit entitlements of their respective lots.
Where the whole or part of the parcel is to be transferred, the requirements as outlined above
in paragraph 6.9.2 - Termination by Unanimous Resolution (Section 30) are to be followed.
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6.10
Termination of a Survey-Strata Scheme
6.10.1
Termination by Unanimous Resolution (Section 30A of the STA)
The registered proprietors may resolve by unanimous resolution that the survey-strata scheme
be terminated.
An application Form A5 signed by the Strata Company is required and must be supported by:
•
a notification of termination of a scheme (Form 15 from the STGR)
•
a certificate by the Western Australian Planning Commission stating that it consents to
the termination of the survey-strata scheme, unless the scheme is exempt from this
requirement under the STGR
and
•
the (unencumbered) duplicate certificate of titles (if any) for the survey-strata lots.
Simultaneously with the lodgement of the application to terminate the scheme, the lot
proprietors may, if a unanimous resolution has been passed, lodge a transfer of common
property that is executed by the strata company. The transfer is prepared in the name of the
strata company as the transferor and must be supported by a certificate of the strata company
(Form 14 of the STGR).
6.10.2
Termination by the Taking of the Whole of the Parcel (Section 29C
of the STA)
The Minister may in a Taking Order declare that the survey-strata scheme is terminated.
The Registrar of Titles will register the land in the parcel in the name of the State of Western
Australia or other authority in which it has vested under the Taking Order.

Note:
For a variation of survey-strata scheme upon the taking of part of the land in the parcel, see
section 29A of the STA as amended.
6.10.3
Termination by Order of District Court (Section 31 of the STA)
The District Court may make an order terminating a survey-strata scheme.
If an Order is made terminating the scheme, the strata company must register the Order by the
lodgement of an application Form A5 signed by the strata company that is supported by:
•
the Order of the District Court
and
•
the (unencumbered) duplicate certificate of titles (if any) for the survey-strata lots.
Where common property is to be transferred by the strata company, the requirements as
outlined above in paragraph 6.10.1 - Termination by Unanimous Resolution (Section 30A) are to
be followed.
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6.11
Amendment of By-Laws
6.11.1
General
A strata company may make by-laws that are not inconsistent with the STA as amended for:
•
its corporate affairs
•
any of the matters specified in schedule 2A of the STA as amended
•
any of the matters set out in s.42A and 42B of the STA as amended
•
the establishment of a fund for administrative purposes in the case of a two-lot scheme
(see s.36A (3) of the STA as amended)
•
the exclusion of certain provisions contained in s.35, 35A and 36 of the STA as amended
in the case of 3, 4 or 5 lot schemes (see s.36B (1) of the STA as amended)
and
•
other matters relating to the management, control, use and enjoyment of the lots and any
common property.
The by-laws set out in Schedules 1 and 2 to the STA as amended are deemed to be the bylaws of a strata company registered after 14th April 1996. These By-laws may be amended,
repealed or added to:
•
by a resolution without dissent (or unanimous resolution in the case of a two-lot
scheme) for Schedule 1 by-laws
•
by a special resolution, for Schedule 2 by-laws
or
•
in accordance with any order of a court, referee or any written law.
By-laws previously contained in the 1966 and 1985 legislation continue in existence until the
14th April, 1997 (the Termination Date). After the Termination Date, the by-laws contained in
Schedules 1 and 2 of the STA as amended will apply to all strata schemes.
Any by-laws already registered on strata plans before 14th April 1996, or any by-laws added to
or amended and which are registered on the strata plan before the Termination Date (which are
not inconsistent with the provisions of the STA as amended) will be saved and will become part
of either the Schedule 1 or 2 by-laws that will automatically apply after the Termination Date.
A by-law can be made by a strata company at the request of the Local Government or a public
authority and may be expressed to require their consent to an amendment or repeal of the bylaw. No by-law, amendment or repeal of a by-law may operate so as to restrict the dealing with
any lot by a proprietor or modify or destroy any easement implied under the STA as amended.
The amendment, repeal or addition to any by-laws contained in Schedules 1 and 2 have no
effect until notification of the change is made to the Registrar of Titles and endorsed on the
strata plan.

Note:
Definitions of a resolution without dissent, special resolution and unanimous resolution are
outlined in s.3(1), 3AC, 3B, 3CA and 3D of the STA as amended.
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6.11.2
Registration of an Amendment of By-Laws
Registration is achieved by lodging a notification of change of by-laws at Landgate. The
notification of change of by-laws must be set out substantially in the manner of Form 21 of the
STGR, which may be typed on ordinary sheets of white A4 size paper attached to a Form B4
Cover Sheet or typed on a Form B4 with additional Form B1 pages, if required.
Amendments to by-laws (where the resolution was passed after 14th April 1996) must be
registered within 3 months of the resolution.
Resolutions passed prior to the 14th April 1996 must be registered within 2 years after the date
of the resolution or the 14th April 1997, whichever date is the earlier of the two.
6.11.3
Exclusive Use By-Laws
Section 42(8) of the STA as amended allows the Strata Company, by a resolution without
dissent (or unanimous resolution in the case of a two-lot scheme), to create a by-law to grant
exclusive use and enjoyment of, or special privileges to a lot proprietor for all or part of the
common property. The lot proprietor must consent in writing to the terms of the by-law.
By-laws for exclusive use or special privilege may contain conditions such as the requirements
for maintenance and repair.
The portion of the common property which is subject to exclusive use or special privilege must
be clearly defined by a sketch that contains sufficient information to accurately plot the affected
land. The sketch must be approved by the Survey Advice Officer at Landgate.

Note:
The areas of exclusive use or special privilege may be described in a narrative form provided
they can be plotted in reference to the lot boundaries. In this circumstance a sketch is not
required.
The granting of exclusive use or special privilege is not binding until they are registered as bylaws at Landgate. Registration is affected in the same manner as for a notification of
amendment of by-laws outlined above.
The STA has been amended to make it clear that grants of exclusive use and exclusive use bylaws have not in the past and will not in the future require the consent of the West Australian
Planning Commission or local government.
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6.12
The State Administrative Tribunal
6.12.1
General
The uniqueness of strata schemes, combined with the Australian culture of defined ownership,
sometimes results in misunderstandings and consequential disputes between lot owners. The
STA provides some relief in resolving these problems through the State Administrative Tribunal
(SAT) who has powers to resolve disputes (formerly adjudicated by the Strata Titles Referee).
The SAT is located at Level 4, 12 St George’s Terrace, Perth. They may also be contacted
online at http://www.sat.justice.wa.gov.au where eForm applications are available. This website
also provides access to decisions made in Strata related disputes. It may be beneficial for
applicants to seek legal advice prior to making an application to SAT in order to gain a
satisfactory outcome.
6.12.2
Applications to the State Administrative Tribunal
Before making an application to the SAT an applicant must comply with any relevant dispute
resolution procedures. The by-laws set out in Schedules 1 and 2 of the STA include provisions
for the convening of, conduct of and voting at general and council meetings and the regulation
of various activities. By-laws in relation to procedures to be followed for the resolution of
disputes as a prerequisite to the making of an application to the SAT may be made by the strata
company or be set out in a management statement registered at the same time as the Strata
Plan or Survey-Strata Plan.
The SAT is only able to make orders if the STA gives the SAT power to do so. Even when the
STA gives the SAT certain powers, the STA, in some instances, limits the Orders that the SAT
can make, e.g. s.121 limits the SAT’s powers where the title to land is in question. An
application to the SAT must:
•
Set out the section(s) of the Act under which the application is made.
•
Set out the terms of the Order sought.
and
•
Set out reasons why it is thought that SAT is able to or should make the Order.
The SAT may request additional information and may make further enquiries and inspections.
The SAT may dismiss an application if it is considered frivolous, vexatious, misconceived, or
lacking in substance or if there is an unreasonable delay in compliance to a request for
additional information.
Except in relation to an application for an Interim Order which is made in urgent circumstances,
the SAT’s office will post a copy of an application to the strata company and to every affected
person. When the strata company receives that notice it must immediately serve a copy on:
•
Each person who is a proprietor of a lot in the strata scheme.
•
Any mortgagee of a lot who has given the strata company written notice of that mortgage.
and
•
Each occupier of a lot who would be affected if the Order was made.
Each person receiving a copy of the notice is entitled to make a written submission to the SAT
in relation to the application.
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6.12.3
Orders of the State Administrative Tribunal
The SAT’s powers are set out in Part VI of the STA. These powers include a general power to
make orders (s.83 (1)). The Referee may also make an Interim Order (s.82 of the SAT) if
satisfied, on reasonable grounds, by reason of the urgent circumstances of the matter. A person
affected by a SAT Order may lodge an appeal to the District Court not later than 21 days after
the Order takes effect.
A person who fails to comply with an Order of the SAT is liable to prosecution in the Magistrates
Court and, on conviction, may incur a penalty of up to $2,000.00 and a daily penalty of up to
$200.00. It is up to the person benefiting from the Order or the strata company (unless the order
is against the strata company) to commence the prosecution.
Most applications are made under s.83(1) of the STA. Specific orders that the SAT can make
(i.e. not made under s.83) include those related to:
•
Insurance (s.88, 101, 103J, 103K and 103L).
•
By-laws (s.93, 95, 97 and 100).
•
Breaches of by-laws and payment of penalties (s.103I).
•
Use of common property (s.85 and 94).
•
Personal property that is common property (s.86 and 87).
•
Buildings, structures and alterations (s.103F and 103G).
•
Strata company levies (s.99 and 99A).
•
Emergency expenditure (s.47(2)).
•
Strata company meetings and resolutions (s.97, 100, 103, 103B, 103C, 103D, and
103M).
•
Variation of unit entitlements (s.103H).
•
Animals (s.91 and 92).
•
Contracts for service (s.103E)
and
•
Various other orders may be made by the Referee as set out in s.89, 90, 98, 102, 103A
and 103N-R.
Interim orders last for 3 months, or until the principal order is made. They can be renewed for a
further 3 months.
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6.12.4
Appeals
On payment of the prescribed fee, a Notice of Appeal may be lodged with the SAT within 21
days after the order takes effect.
The parties who may appeal include:
•
The applicant for the order.
•
A person who made a submission to the SAT (and was entitled to do so).
and
•
A person required by the order to do or refrain from doing a specific act.
The grounds of appeal against a principal order are unlimited. An appeal against an interim
order can only be made on the grounds that the SAT acted unreasonably.
Appeals are made to the District Court. The District Court may admit further evidence and with
respect to an interim order of the SAT, revoke the order or dismiss the appeal. In any other case
the District Court may affirm, vary or revoke the SAT’s order, substitute its own order or dismiss
the appeal.
6.12.5
Registration of an Order of the State Administrative Tribunal
Orders made pursuant to s.93, 94, 99A, 100, 103A, 103H, 103J, 103P, 103Q and 103R of the
STA as amended must be registered at Landgate and they will take effect upon registration or
at any later date specified in the order.
The SAT may also direct that any particular order is required to be registered on the
strata/survey-strata plan.
Registration of the order is achieved by producing a certified copy of the order attached to a
Form A5.
A notation of the Order will be endorsed on the strata/survey-strata plan in its Schedule of
Encumbrances.
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6.12.6
Registration of an Order by the State Administrative Tribunal to Vary
the Unit Entitlement
Upon the application of a proprietor of a lot or the strata company, the SAT may make an order
varying the unit entitlement set out on a strata/survey-strata plan.
The SAT will not accept an application unless it is accompanied by:
•
a certificate of the strata company in the manner of Form 12 from the STGR to authorise
the application
and
•

a certificate by a licensed valuer.
Note:
Where the proprietor of a lot cannot obtain a certificate of the strata company (Form 12), and
the SAT considers that the failure of a strata company to authorise by special resolution an
application under s.16 is inequitable, the SAT may, by order, exercise the function conferred on
the strata company under s.16(2) (a) and authorise the application (see s.98 of the STA).
Notice of an application to SAT shall be served in accordance with s.16 (3) of the STA as
amended.
Registration is achieved by producing a certified copy of the order of the SAT with an
application made by the Strata Company or by the lot proprietor on a Form A5.
If the strata titles were created and registered under the Strata Titles Act 1966, the duplicate
certificates of title (if any) are to be produced (see paragraph 6.3.7).
6.12.7
Registration of an Order of the State Administrative Tribunal with
Regard to Retirement Village Disputes
Section 77A of the STA as amended transferred the powers of the Strata Titles Referee to the
Retirement Villages Disputes Tribunal, in cases where a retirement village is a development
under the STA as amended. The Tribunal issued orders on the same grounds or matters as the
Strata Titles Referee.
Section 77A of the STA has now been repealed. On 4 January 2005 the SAT came into being
and took over the judicial or adjudicative functions of the Strata Titles Referee and the
Retirement Villages Disputes Tribunal.
Registration of these orders is achieved by producing a certified copy of the order attached to a
Form A5.
A notation of the Order will be endorsed on the strata/survey-strata plan in its Schedule of
Encumbrances.
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7.
Easements and Covenants
This chapter deals with different types of easements and covenants, how they
may be created, and the evidential requirements to support their creation and
removal relating to freehold and crown land.
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7.1
Easements
7.1.1
General
Easements may be registered against freehold or Crown land under the TLA. No detailed
provisions are set out in the TLA and the general law in respect of easements must be followed.
A simple definition of an easement is:
“a right attached to a parcel of land which allows the proprietor of the parcel to use
the land of another in a particular manner or to restrict its use to a particular
extent.”
Under the general law an easement without a dominant tenement (an easement in gross) can
not exist. In this State, the State of Western Australia, a State Instrumentality, Statutory Body
Corporate or a Local Government, acting under the provisions of s.195 of the LAA may be the
grantees of an easement without a dominant tenement.
Easements may be said to be either:
•
express easements, ie: those created by a deed prepared for that purpose or
incorporated in a transfer of land
or
•

implied easements, ie: a right of carriage way appurtenant to lots abutting on a right of
way set out on a plan of subdivision (s.167A of the TLA).
Note:
With the introduction of SmartRegister, implied easements created under s.167A are now
shown in the Second Schedule of a digital title.
7.1.2
Types of Easements
The usual types of easement presented for registration are:
•
rights of carriage way
•
rights of support to land burdened by buildings(see LTRPM Form Examples – Example 9)
•
rights to erect a party wall
•
rights to light and air (see Property Law Act, 1969, s.121)
•
rights to take water from wells or bores
•
rights to install and operate drains and drainage works
•
rights to install, maintain and operate oil, gas or other pipelines
and
•
rights to install, maintain and operate electric power lines, telephone and other cables
and supporting pylons.
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7.1.3
Essentials for the Registration of an Easement
An easement must contain certain essentials and the absence of any one essential will result in
requisitions issuing to either correct the fault or refusal to register, should the fault be incapable
of correction.
The essentials are:
•
there must be a dominant tenement (which may be leasehold) ie: the land which enjoys
the benefit of the easement
•
there must be a servient tenement (which must be fee simple) ie: the land which is
burdened by the easement
•
the dominant and servient tenements must be distinct and in separate ownerships (with
the exception of easements created on subdivisions under Part IVA of the TLA)
•
the easement must benefit the dominant tenement and impose an obligation on the
servient tenement
•
the easement created must be capable of running with the land and be made with the
express intention of running with the land
and
•
7.1.4
the dominant and servient tenements must be adjacent, although it is not essential that
they must be contiguous.
How Created
There are five basic methods for the creation of express easements. These are:
•
by the registration of a deed prepared and lodged expressly for the purpose of creating
the easement
•
by granting to or reserving from the land the subject of a registered transfer, an easement
embodied in and created by that transfer;
•
the approval of a deposited plan containing an easement created pursuant to s.167 of the
P&D Act (formerly s.27A of the TP&D Act)
•
by notation on deposited plans of subdivision under Part IVA of the TLA (see paragraph
7.1.8)
and
•
by notation on survey-strata plans under s.5D of the STA as amended.
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7.1.5
Easements Created by Deed
A deed prepared for the sole purpose of creating an easement should be prepared on a Form
B2 Blank Instrument Form and the easement should be set out in narrative form.
The easement document must be stamped at the Office of State Revenue (Stamp Duties
Division).
The following details should be clearly shown:
•
the name and address of the grantor
•
the name and address of the grantee
•
an accurate description of the lands of the grantor and grantee
and
•

an accurate description of the land burdened and the land to be benefited by the
easement. An Interest Only Deposited Plan should be prepared by a licensed surveyor
and lodged at Landgate to define the position of the easement. The easement document
can then make reference to the Deposited Plan (see paragraph 1.9.3).
Note:
In the case of a simple bore easement a Deposited Plan is not necessary. A suitable sketch
can be drawn on the document or attached to it as a separate sheet (see paragraph 1.9.3).
The grantor should be described as:
“A of etc, the registered proprietor for the time being of (the land to be to be
burdened)”,
and the grantee should be described as:
“B of etc, the registered proprietor for the time being of (the land to be benefited)”.
An easement by Deed needs no monetary consideration, the action of the parties in entering
into the Deed is sufficient.
The purpose for which the easement is being created must be clearly stated eg: a right of
carriage way, a party wall, etc. The rights and obligations of the parties should be clearly stated.
Any limitation as to duration or height must be set out. Where a limitation is imposed as to the
height to which the easement affects the servient tenement, the height should be expressed as
a distance in metres above the Australian Height Datum or A.H.D.

Note:
The Australian Height Datum within the Perth Metropolitan Zone is based on mean sea level at
Fremantle. Bench marks, fixed at assigned heights are used to control all vertical
measurements for mapping purposes.
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When presented for registration the document must be accompanied by the duplicate
certificates of title (if any) for the dominant and servient tenements.
Encumbrances etc against the land affected by an easement created by a Deed must be shown
in a section headed Limitations, Interests, Encumbrances and Notifications that is set out at
the end of the document. A mortgagee of the servient tenement should be asked to give an
unqualified consent to the easement.
With such a consent, the easement would survive the exercise of the mortgagee’s power to sell.
Absolute caveats will prevent the registration of an easement, as will a prior registered
easement which contains provisions which will prevent the use of the land in the manner set out
in the new easement.
Where the land of the dominant owner is the subject of a paper title, Landgate will cancel the
title by Sundry Document (XA) and show the easement in the Second Schedule of the new title
created for the dominant tenement. The paper title is cancelled to conform with the format of a
digital title that shows the benefit of an easement in the second schedule (not in the land
description).
Reciprocal easements in a single document, ie: where the parties are both grantor and grantee,
will not be registered. A separate document is required for each easement.
7.1.6
Easements Incorporated in a Transfer
A transfer of land may incorporate a creation of an easement by grant or reservation. An
easement is said to be granted where the land being transferred also carries the benefit of an
easement over land belonging to the vendor in the same or another title. An easement is said to
be reserved where the land being transferred is burdened with an easement in favour of land
retained by the vendor in the same or another title.
A right of carriage way may be created in any transfer by the inclusion of the words:
“together with a right of carriage way over .......(specifying or describing the land
over which the easement is created and referring to a map or plan endorsed
whereon such land is defined by sufficient measurements to allow it to be
accurately plotted).”
Where such words are used, they are construed as if all the words set out in the Ninth Schedule
to the TLA have been used (s.65 of the TLA). Where the creation of an easement by transfer is
contemplated, the form selected should be a Form T2 Transfer of Land with additional pages.
The words creating the easement should be shown on page 2 of the form immediately following
the operative words of the transfer. Where the land affected cannot be properly described in
words, an Interest Only Deposited Plan should be prepared by a licensed surveyor and lodged
at Landgate to define the position of the easement. The transfer can then make reference to the
Deposited Plan (see paragraph 1.9.3).
In the case of a simple bore easement a Deposited Plan is not necessary. A suitable sketch
can be drawn on the transfer or attached to it as a separate sheet (see paragraph 1.9.3).
Easements may be incorporated in and created by the registration of a lease of freehold land.
These are similar to the easements mentioned above except that they are effective only during
the term of years created by the lease and any extension thereof. On expiry of the lease, or its
surrender by the lessee or re-entry by the lessor, the easement ceases to have any effect.
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7.1.7
Easements Created in a Plan of Subdivision Pursuant to Section
167 of the P&D Act (Formerly Section 27A of the TP&D Act)
See paragraph 6.1.8.2.
7.1.8
Creation of Easements on Plans of Subdivisions under Part IVA of
the TLA
The use of the word Plan in this section means a plan, deposited plan or diagram referred to in
s.166 of the TLA or a strata / survey-strata plan within the meaning of the STA as amended.
A registered proprietor of land that is the subject of a Plan, a Public Authority or the Local
Government in whose district the land is situated may have noted on the Plan the location of an
easement to which the land will be subject. The easement will have effect even though any land
burdened by the easement has the same proprietor as any land benefited by the easement.
The necessary information regarding the easement may be specified solely on the Plan itself, in
an instrument lodged with the Plan or in both the Plan and the instrument lodged with the Plan.
7.1.8.1
On the Plan
Where the details of the easement are noted solely on the Plan, the following information is
required:
•
A description of the easement in short form, eg:
“Easement for right of carriage way under s.136C of the TLA.”

•
The land to be burdened by the easement.
•
The land to be benefited by the easement or the name of the Local Government or Public
Authority.
•
The term of the easement (if applicable).
Note:
No further information about the easement will be noted on the Plan unless the Registrar of
Titles specifies it.
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7.1.8.2
In an Instrument with the Plan
Where the details of the easement are more than the short form, it must be contained in an
instrument lodged with the Plan. This must be in the form of a Deed, prepared on a Form B2
Blank Instrument Form and be capable of registration. The instrument is to be duly stamped by
the Office of State Revenue and must contain the following information:
•
The proprietor(s) name and address.
•
A description of the land to be burdened by the easement.
•
A description of the land to be benefited by the easement or the name of the Local
Government or Public Authority.
•
An operative clause describing the easement and stating that the rights, are created
pursuant to s.136C of the TLA and showing any limitations associated with the rights.
Limitations should be clearly specified:
“between the hours of ………..”
or
“/limited to a height/ depth of ......metres above/below the Australian Height
Datum”.
•
Any encumbrances over the land burdened by the easement. (Absolute caveats must be
withdrawn to allow registration of the instrument).
•
The date of execution of the agreement.
•
All of the required consents (see below).
•
Signed by all parties and witnessed.
Where an instrument is used, it may be lodged with the Plan or any time prior to the lodgement
of the application to create and register the new titles for the land the subject of the Plan.

Note:
Lodgement of the instrument after examination of the Plan will result in a re-examination of the
Plan and the possible issue of further requisitions. This may adversely affect the turnaround
time for processing the application for the creation of the new titles.
The land burdened by the easement must be contained within the plan, however any land to be
benefited by the easement can be outside the Plan.
All duplicate certificate(s) of title (if any) for land receiving the benefit of the easement must be
produced for endorsement.
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7.1.8.3
Consents required
An easement cannot be created under Part IVA of the TLA unless the proprietor obtains the
written consent of each of the following:
•
A person having a registered interest in any land that would be burdened by the
easement (ie mortgagees, chargees and lessees etc).
•
A caveator in respect of any land that would be burdened by the easement. (Where an
instrument is lodged, absolute caveats must be withdrawn to allow registration of the
instrument.).
•
A person having a registered interest in any land that would be benefited by the
easement (i.e. mortgagees, chargees and lessees etc).
•
A caveator in respect of any land that would be benefited by the easement.
Where an instrument is lodged, the consents should be produced with the instrument. If the land
has been further encumbered after lodgement of the Plan or the instrument, the additional
consents of the subsequent encumbrances and caveators must be obtained prior to or attached
to the application for the creation of the new titles.
7.1.8.4
When easements created on plans have effect
Land becomes subject to an easement noted on a Plan at the time the new title(s) for the land
the subject of the Plan are created and registered.
Where an instrument is lodged under Part IVA of the TLA in relation to a Plan, the instrument
shall be deemed to be registered at the time the land becomes subject to the easement.
7.1.8.5
Easements created on plans for a specific term
Where an easement created under Part IVA of the TLA is for a specific term, and that term has
expired, the easement no longer has any effect. There is no need to apply for a discharge of the
easement.
7.1.8.6
General comments
Although they are created at the same time, it is Landgate’s policy to endorse easements
created under s.167 of the P&D Act on the relevant title(s) before any easements created on
Plans pursuant to Part IVA of the TLA.
When two or more lots on an Approved Plan are subsequently amalgamated or re-subdivided,
any Part IVA of the TLA easements created on the parent survey subsist and will be carried
forward onto the new title.
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7.1.9
Creation of Easements under Section 5D by Notation on SurveyStrata Plans
A survey-strata plan (in this paragraph referred to as the Plan) lodged for registration may
create certain easements that will take effect upon registration of the Plan, under s.5D of the
STA and Part IVA of the TLA.
This paragraph only deals with easements created under the STA. Refer to paragraph 7.1.8 for
creating easements under the TLA.
Only Survey-Strata lots on the Plan may receive the benefit or have the burden of an easement
created on the plan.
The following easements, as prescribed in the STGR, can be created on the Plan:
•
An easement relating to motor vehicle access, parking or turning (short form descriptionVehicle Access Easement).
•
An easement for acc.ess or use of light and air (short form description- Light and Air
Easement)
•
An easement for party wall rights (short form description- Party Wall Easement).
•
An easement for the right of a structure to intrude into another lot where that intrusion
would constitute a permitted deviation if the scheme were a single tier strata scheme
(short form description- Intrusion Easement).
•
An easement for pedestrian access (short form description- Pedestrian Access
Easement).
To create one of the above mentioned easements, the plan must show:
•
by dotted lines the location of the easement (see regulation 14B of the STGR for the
dimensional requirements of the various types of easement)
•
in tabular form, the dominant and servient lots
and
•
the type of easement being created by reference to its short form description.
The notation on the Plan may also include reference to a specific percentage in respect of the
apportionment of liability for the costs of upkeep of an area over which the easement is created
(where applicable).
Where the easement departs from the terms, conditions and provisions as set out in
Regulations 14D to 14I of the STGR, an instrument will need to be lodged with the Plan. This
must be in the form of a DEED, prepared on a Form B2 that is duly stamped by the Office of
State Revenue.
Where an instrument is used, it may be lodged with the Plan or at any time before the
lodgement of the application to register the Plan.

Note:
Lodgement of the instrument after examination of the Plan will result in a re-examination of the
Plan and the possible issue of further requisitions. This may adversely affect the turnaround
time for processing the application for the creation of titles for the lots on the Plan.
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An easement cannot be created on the Plan unless the written consent of each of the following
is obtained:
•
a person having a registered interest in any lot that would be burdened by the easement
(i.e. mortgagees, chargees and lessees etc.)
•
a caveator in respect of any lot that would be burdened by the easement.
(Where an instrument is lodged, absolute caveats must be withdrawn to allow registration
of the instrument).
Where an instrument is lodged, the consents should be produced with the instrument. If the land
has been further encumbered after lodgement of the Plan or the instrument, the additional
consents of the subsequent encumbrancers and caveators must be obtained before or attached
to the application for the registration of the Plan.
The titles for any survey-strata lots receiving the benefit or burden of an easement created on
the plan will be endorsed accordingly.
An easement of this type may not be created on a plan of re-subdivision or plan of consolidation
in respect of a survey-strata scheme.
7.1.10
Easements over Crown Land
Generally, only the Minister for Lands has power under the LAA to grant easements over Crown
land. However, other legislation can allow for the registration of an easement over Crown land,
for example, the Petroleum Pipelines Act 1969.
Where the Minister for Lands grants an easement over Crown land that is the subject of a
management order or an interest (e.g. lease, mortgage), then consent of the management body
and/or interest holder must be obtained for the easement.
The Minister for Lands may grant an easement in gross over Crown land to any person or body.
These easements are limited to the grantee only and cannot be transferred. For example, an
easement in gross to a lessee is only valid for that lessee and not any new lessee on a transfer
of that lease.
Generally, an easement between two Crown land parcels cannot be accepted as the State of
Western Australia owns both. However, an easement between two Crown land parcels can be
accepted where either or both the dominant or servient tenement was limited to a leasehold
interest over the Crown land. In these instances the easement is made with the lessee and
continues on any transfer of the lease but only remains valid during the term of the affected
lease.
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If an easement is made between two separate Crown leasehold estates (eg. one lease exists
over the dominant tenement and a different lease exists over the servient tenement) then s.18
of the LAA consent of the Minister for Lands is required unless the Crown land is vested for
purposes of another Act.
The land description in an easement where the dominant or servient tenement is limited to a
leasehold interest must additionally refer to the lease affected by the easement. For example:
“As to Lease H123456 only “
or where the lease and easement are lodged together
“As to Lease . . . . . . . . . . . dated 0.0.2005 made between AB as lessor and CD as
lessee only.”
The lessee’s copy of a lease of Crown land must be produced with any easement where the
dominant or servient tenement is limited to a lease interest.
7.1.11
Variation of Easement over Crown Land
A grantee of an easement, with the consent of any management body or lessee of the relevant
land, may apply to the Minister for Lands to vary an easement. under s.144(3) of the LAA the
Minister may then vary the easement or refuse the application.
A variation of easement cannot alter the easement area.
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7.2
Removal of Easements
7.2.1
Surrender
A surrender of easement, except where the easement was created under s.167 of the P&D Act
(formerly s.27A of the TP&D Act) or under s.136C of the TLA (one copy only), may be
registered. Information on removing an easement created by s.167 of the P&D Act and s.136C
of the TLA are contained in paragraph 7.2.6 and paragraph 7.2.7 respectively. The form to be
used to surrender other easements is blank instrument Form B2 and it is a requirement that a
surrender be assessed for duty by the Office of State Revenue (Stamp Duties Division).
The form should contain:
•
the names and addresses of the dominant and servient owners
•
a description of the lands affected
•
the nature of the easement and its registered number
•
the extent of the surrender, ie: whole or partial
and
•
formal words of surrender.
The properly attested signatures of all the grantors and grantees complete the form. Any
encumbrancer of the dominant tenement should be asked to consent to the surrender, as he or
she is losing something beneficial to his or her security. Where the easement was created by
implication (ie: an implied easement over a right of way on a survey) no application is required.

Note:
The production of the duplicate certificate of title (if any) for the land burdened by the easement
is desirable but will not be insisted upon.
7.2.2
Abandonment
Where an easement has not been used or enjoyed for a period of not less than twenty years,
the registered proprietor of the servient tenement may apply to have the easement removed as
an encumbrance.
The application is made on a Form A5 by the registered proprietor of the land affected by the
easement. The land description panel should contain the current land description of the affected
land or right of way. The text of the application, in the third section of the application could be
either:
“for the removal pursuant to s.229A of the TLA from the above certificate of title of
the easement contained in transfer (number of transfer)”
or
“for the removal pursuant to s.229A of the TLA from the above certificate of title of
the easement created in favour of the registered proprietors of the lots created on
plan (or diagram) (number of plan or diagram)”.
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The duplicate title for the affected land, if there is one, must be produced. To support the
application, the applicant should supply a statutory declaration setting out the circumstances
that substantiate his or her claim and further stating that neither the grantees of the easement
nor their invitees or servants have exercised those rights for a minimum period of 20 years up to
the time of application. To be successful the applicant must also demonstrate that:
•
the rights have been totally abandoned (eg: not just reduced from vehicular access to
persons on foot)
and
•
the rights have been abandoned over the full extent of the land described in the land
description panel of the application.
In many cases the provision by the applicant of a sketch of the affected land, depicting any
obstructions such as buildings, trees, or fences, and other relevant details such as garages or
gates opening onto the affected land greatly simplifies the matters to be explained in the
declaration.
Although it is desirable that such a sketch is prepared by a licensed surveyor, the Registrar may
accept one drawn by the applicant but reserve the right to request one from a surveyor.
Photographs are also useful in providing proof of the existence of obstructions to the use of the
easement. When produced the photographs and sketch should be annexed as exhibits to the
declaration of the person producing them. Further declarations by two persons who are not
related to or in business with the applicant are also required to support the application.
Where the Commissioner is satisfied with the evidence, notice of intention to remove the
easement will be given to the interested parties, and at the expiration of twenty one days from
the notice, without response, a direction to remove the easement as an encumbrance will be
issued (s.229A of the TLA).

Note:
Where the duplicate of a digital title has been produced with the application, the Registrar will
cancel it and create a new edition of the duplicate title.
Where the duplicate of a paper title has been produced with the application, the Registrar will
make the relevant endorsement on that duplicate title.
If a response to the above-mentioned notice is received, it will be considered and a decision
whether the easement is to be removed will be made based on the merits of the case. When the
easement is removed from the burdened land, the Registrar will, if and when they are produced,
create another edition of the duplicate titles (if any) that carry the benefit of the easement so
that the benefit will be removed.

Note:
The provision of Abandonment under s.229A of the TLA does not apply to any easement
created on a subdivision under Part IVA (see s.229A (5) of the TLA).
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7.2.3
Merger
At common law, when the dominant and servient tenements come into a common ownership,
an easement affecting those lands is merged and extinguished. Office practice, however, is that
a merger will not be noted without the request in writing of the common owner. Such request
may be written on the transfer by which common ownership is achieved.
If the common ownership is not achieved at the same time by a transfer (or transfers registered
at the same time) the common owner must, on a Form A5 quoting both the original land and the
land newly acquired by transfer, request that the easement be merged and extinguished.

Note:
Statutory easements (eg: those created under Part IVA of the TLA as amended and s.5D of the
STA as amended) must be removed by the provisions of that particular statute.
7.2.4
Taking
Easements may also be removed by the taking of the easement interest or the servient
tenement for the purpose of a public work under Part 9 of the LAA. All encumbrances are
removed by a taking (ie: the land is held free of encumbrances in the taking authority). The
rights of the dominant owner will, on taking, be converted to a right to compensation.
7.2.5
By Court Order
Any person interested in land may make application to the Court or a Judge for an order
modifying or removing, wholly or partially, an easement. Upon the application of the registered
proprietor of the land together with a certified copy of the order and the duplicate certificates of
title (if any), the Registrar will make the necessary amendments to the Register (s.129C).
7.2.6
By Order of the Registrar
The grantee of an easement created by s.167 of the P&D Act (formerly s.27A of the TP&D Act)
may apply on a Form A5, to vary or extinguish the easement. The first panel of the Form A5
should contain the lot or location affected by the easement, the second panel should be the
grantee and the next panel should contain words requesting that the easement be varied or
extinguished.
The written consent of all persons with a registered interest in the land must be filed with the
application. Provided all the consents have been supplied, the Registrar will order that the
easement be removed from the title or varied by endorsement.
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7.2.7
Discharge and Modification of Easements Created under Part IVA
The registered proprietor of land burdened or benefited by an easement created on a Plan
under Part IVA of the TLA may apply on an application Form A5 for the easement to be
discharged or to be modified.
The application should contain the written consent of each person who has a registered interest
in, or is a caveator in respect of, any land that is burdened or benefited by the easement.
Where the above mentioned written consent has not been obtained, the procedures as set out
in s.136J (3) of the TLA must be complied with prior to the lodgement of the application. In this
circumstance the application must be accompanied by a statutory declaration that contains the
following information:
•
That each person who has a registered interest in, or is a caveator in respect of, any land
that is either burdened or benefited by the easement has been given 28 days’ written
notice of both the intention to make the application and the substance of it.
•
That the notice(s) in writing (referred to above) have been properly served in accordance
with s.240 of the TLA by ............................................... (insert the specific mode of
service used, as authorised under s.240).
•
That notice of both the intention to make the application and the substance of it has been
published at least 28 days before the day on which the application is made in a
newspaper circulating either throughout the State or in a district where the land is
situated.
•
That both of the notices referred to above contained the address for service of notices of
objection to the proposed application or to any part of it.
•
That both of the notices referred to above contained the expiry date for objections to be
received and the day on which the proposed application is to be lodged, that day being at
least 3 days after the expiry date for objections to be received.
A copy of the notice that was published in a newspaper, showing the name of the newspaper
and the day of publication should be attached to the statutory declaration of the applicant (Full
page of newspaper required to be lodged with the application).
The above-mentioned statutory declaration must state the content of the notices to the
registered interest holders and the newspaper notice and not merely state that sections 136J (3)
(a) and (b) of the TLA have been complied with.
The notices must clearly state:
•
the applicant’s address for the serving of notices of objections to the proposed application
or any part of it
•
the commencement date and the expiry date for the 28-day notice period in which
objections can be received
and
•
the approximate date on which the application will be lodged at Landgate, that date being
at least 3 days after the expiry date for objections to be received.
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The Commissioner will not direct the Registrar to discharge or modify the easement if any
objection has been made to the application or any part of it. Receipt of an objection will require
the applicant to utilise s.129C of the TLA and obtain a Court Order for the removal or
modification of the easement.

Note:
It is recommended that the application be lodged as soon as possible after written consent has
been obtained or as soon as possible after the expiration of the 3 day period in the case where
consent has not been obtained.
This will reduce the possibility of the registration of new proprietors or other interest holders
before lodgement of the application. In this circumstance extra other notices would need to be
sent.
7.2.8
Discharge or Variation of Easements Created under Section 5D by
Notation on Survey-Strata Plans
Section 5F of the STA as amended provides for the discharge or variation of easements created
by notation on a survey-strata plan (in this paragraph referred to as the Plan).
7.2.8.1
Discharge
An easement created on the Plan may be discharged by an instrument (prepared on a Form
B2) signed by each person who has a registered interest in, or is a caveator in respect of, the
dominant lot and must be accompanied by the written approval of the Western Australian
Planning Commission.

Note:
An easement created on the Plan is automatically discharged by the termination of the surveystrata scheme.
7.2.8.2
Variation
The registered proprietors of the land burdened and benefited by an easement created on the
Plan may vary the terms of the easement by an instrument (prepared on a Form B2) signed by
each person who has a registered interest in, or is a caveator in respect of, the dominant lot and
the servient lot and must be accompanied by the written approval of the Western Australian
Planning Commission.
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7.2.9
Cancellation of Easements Over Crown Land
The Minister for Lands has power in certain circumstances to cancel easements over Crown
land.
A grantee of an easement, with the consent of any management body or lessee of the relevant
land, may apply to the Minister to cancel an easement. Under s.144(3) of the LAA, the Minister
may then cancel the easement or refuse the application.
Where a grantee has exceeded the rights or conditions of an easement created under s.144 of
the LAA or the grantee in writing requests the easement to be cancelled, the Minister may serve
notice in writing on the grantee and any management body or lessee of the relevant land, of his
intention to cancel the easement.
A grantee may appeal against the proposed cancellation within the time period allowed. Under
s.145(1) of the LAA the Minister may cancel the easement when no appeals remain
outstanding.
A management body, lessee or other interest holder, of Crown land, may request the Minister to
cancel an easement where it no longer serves any purpose. Where the Minister agrees, he
must serve notice on the grantee, any person with an estate or interest in a dominant tenement
of the easement and the Registrar, of his intention to cancel the easement.
Under s.150(5) of the LAA the Minister may cancel the easement if satisfied the easement no
longer serves any purpose.
No registration fee or stamp duty is required for a Cancellation of Easement document by the
Minister for Lands.
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7.3
Covenants
7.3.1
General
Documents creating restrictive covenants may be registered against freehold or Crown land
under the Act. Generally, restrictive covenants must:
•
directly control the use of the land of the covenantor
•
benefit the land of the covenantee
•
be negative in their content
•
be intended by the parties creating them to run with the land
and
•
not contain personal covenants with third parties such as the original land developer or
the Local Government.
Section 15 of the LAA also allows for positive covenants to be created over Crown land or
agreement land (see paragraph 7.3.6).
No covenant may be registered over land encumbered by a mortgage or annuity, unless the
consent of the encumbrancer is endorsed on the document.
7.3.2
Restrictive Covenants Created by Deed
A restrictive covenant may be drawn in the form of a Deed using a Form B2. Section 129A of
the TLA calls for a prescribed form but no such form has been prescribed. In practice each
covenant is treated on its merits and is generally acceptable provided that:
•
it takes the form of a Deed
•
the parties to the document (being the owners of two pieces of land in close proximity)
are properly described
•
the land to be burdened and the land receiving the benefit are accurately defined;
•
the covenant is negative in its nature
•
it does not contain personal covenants with third parties such as the original developer or
the Local Government
and
•
it is properly signed and attested.
If the land is subject to a mortgage or charge, written consent from the Mortgagee or annuitant
is required.
The Registrar was not required to show a memorandum of a covenant on the paper title to the
land receiving the benefit of that covenant (with the exception of protected view or outlook
covenants- see paragraph 7.4.3). However, with the introduction of digital titles, the benefit is
now shown in the second schedule of the relevant title.
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7.3.3
Restrictive Covenants in Gross
Section 129BA of the TLA permits the creation of restrictive covenants for the benefit of a Public
Authority or the Local Government in whose district the land is situated.
A restrictive covenant under this section shall be prepared in the form of a Deed using a blank
instrument Form B2. The instrument must contain the following:
•
the name of the Local Government or Public Authority
•
a description of the land to be burdened
•
the name and address of the registered proprietor of the burdened land
•
covenants that are negative in nature
•
the date of the agreement
•
signed by all parties and witnessed
•
any encumbrances over the land burdened by the restrictive covenant; and,
•
the written consent of each person who has a registered interest in any land that would
be burdened by the restrictive covenant.
The duplicate certificate(s) of title (if any) for the land burdened by the restrictive covenant must
be produced.
If the restrictive covenant is being created as a condition of subdivision the spatial extent of the
land affected is described in the associated deposited plan.
7.3.4
Restrictive Covenants Created by Transfer
Where it is desired to create a restrictive covenant at the same time as the sale of a parcel of
land, a Form T2 Transfer of Land (Double Sheet) should be selected. The necessary words
creating the covenant should be set out on page 2 of the form, following the operative words of
the transfer. All the parties to the Transfer of Land document should initial immediately beneath
the wording of the restrictive covenant conditions to acknowledge that the restrictive covenant
was created at the time of execution.
Restrictive covenants may be accepted in transfers where the covenants are stated to expire on
a given date. In the past, an expiry date was noted on the endorsement on the title to the
burdened land. However, from the 13th May 1996 expiry dates will not be endorsed.
Where a title that has been endorsed with an expiry date, is cancelled to a new title, the expiry
date will be deleted from the endorsement when the Restrictive Covenant is brought forward
onto the new title.
It is the responsibility of conveyancers to obtain a copy of restrictive covenants to determine the
condition of covenants. If a restrictive covenant that is endorsed on a title has in fact expired, it
should be ignored as an encumbrance.
Where the first transfer on a subdivision contains covenants, and is accompanied by an
appropriate statement by a solicitor, then that transfer (or similar transfers for the other lots) will
not be rejected for the reason that the Registrar considers the listed covenants are not
restrictive covenants.
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The statement by a solicitor:
•
may be endorsed on the transfer, or included in a separate letter that clearly identifies the
transfer and the covenants
•
is to state, without qualifications, that in that solicitors opinion, each covenant in the
transfer is a restrictive covenant
and
•
will only be relevant to the land specified in the transfer as being benefited and/or
burdened by the covenants.
Subsequent transfers on the subdivision containing the same covenants are to be endorsed
with the dealing number of the transfer containing the solicitor’s letter.
Any restrictive covenants created in a document lodged without a letter, or reference, will be
subject to the normal examination process.
7.3.5
Creation of Restrictive Covenants on Plans of Subdivision under
Part IVA of the Transfer of Land Amendment Act 1996
The use of the word Plan is this section means a plan, deposited plan or diagram referred to in
s.166 of the TLA or a strata / survey-strata plan within the meaning of the STA as amended.
A proprietor of land that is the subject of a Plan may have noted on the Plan the location of a
restrictive covenant to which the land will be subject. The restrictive covenant will have effect
even though any land burdened by the restrictive covenant has the same proprietor as any land
benefited by restrictive covenant.
An instrument setting out all the relevant information in regard to the restrictive covenant must
be lodged with the Plan or before the lodgement of the application to create and register the
new titles the subject of the Plan.
7.3.5.1
What is specified on the plan
The following information about the restrictive covenant shall be specified on the Plan:
•
The heading:
“Restrictive Covenant under Sec 136D of the TLA.”

•
A reference to the document number of the instrument lodged in relation to the Plan.
•
The land to be burdened by the restrictive covenant.
•
The land to be benefited by the restrictive covenant.
•
The term of the restrictive covenant (if applicable).
Note:
An expiry date rather than a term should be shown. An expiry date should not be shown if some
of the covenants are not to expire.
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7.3.5.2
Details contained in the instrument lodged with the plan
The complete details of the restrictive covenant are to be contained in an instrument lodged with
the Plan. This instrument must be in the form of a Deed, prepared on a Form B2 and be
capable of registration. It is to be duly stamped by the Office of State Revenue and must contain
the following information:

•
The proprietor(s) name and address.
•
A description of the land to be burdened by the restrictive covenant.
•
A description of the land to be benefited by the restrictive covenant.
•
An operative clause describing the restrictive covenant and stating that the restrictions
are created pursuant to s.136D of the TLA and showing any limitations associated with
the restrictions.
•
The term of the restrictive covenant (if applicable). Please note that an expiry date rather
than a term should be shown.
•
An expiry date should not be shown if some of the covenants are not to expire.
•
Any encumbrances over the land burdened by the restrictive covenant (Absolute caveats
must be withdrawn to allow registration of the instrument).
•
The date of the agreement.
•
All of the required consents (see below).
•
Signed by all parties and witnessed.
Note:
Lodgement of the instrument after examination of the Plan will result in a re-examination of the
Plan and the possible issue of further requisitions. This may adversely affect the turnaround
time for processing the application for the creation of the new titles.
The land burdened by the restrictive covenant must be contained within the plan, however any
land to be benefited by the restrictive covenant can be outside the Plan.
The title(s) for the land that contains the benefit and the title(s) for the land that contains the
burden of the restrictive covenant will be endorsed.
All duplicate certificate(s) of title (if any) for land receiving the benefit of the restrictive covenant
must be produced for endorsement.
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7.3.5.3
Consents required
A restrictive covenant cannot be created under Part IVA of the TLA unless the proprietor obtains
the written consent of each of the following:
•
A person having a registered interest in any land that would be burdened by the
restrictive covenant (ie mortgagees, chargees and lessees etc).
•
A caveator in respect of any land that would be burdened by the restrictive covenant
(Applicable to subject to claim caveats only, absolute caveats must be withdrawn).
•
A person having a registered interest in any land that would be benefited by the restrictive
covenant (ie mortgagees, chargees and lessees etc).
•
A caveator in respect of any land that would be benefited by the restrictive covenant.
The consents should be produced with the instrument that is lodged in relation to the Plan. If the
land has been further encumbered after lodgement of the instrument, the additional consents of
the subsequent encumbrancers and caveators must be obtained before or attached to the
application for the creation of the new titles.
7.3.5.4
When restrictive covenants created on plans have effect
Land becomes subject to a restrictive covenant noted on a Plan at the time the new title(s) for
the land the subject of the plan are created and registered.
The instrument lodged under Part IVA of the TLA in relation to the Plan shall be deemed to be
registered at the time the land becomes subject to the restrictive covenant.
7.3.5.5
Restrictive covenants created on plans for a specific term
Where a restrictive covenant created under Part IVA of the TLA is for a specific term, and that
term has expired, the restrictive covenant no longer has any effect. There is no need to apply
for a discharge of the restrictive covenant.
7.3.5.6
General comments
When two or more lots on an Approved Plan are subsequently amalgamated or re-subdivided,
any Part IVA of the TLA restrictive covenants created on the parent survey subsist and will be
carried forward onto the new title.
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7.3.6
Creation of Covenants under the Land Administration Act 1997
Section 15 of the LAA provides for the registration of restrictive and positive covenants on
Crown land and agreement land. Agreement land is land that is the subject of an agreement
between the Minister for Lands and the freehold owner, relating to the use of the land, which
was made before the Crown land was transferred to the freehold owner.
Covenants under the LAA can be created by deed over Crown land and agreement land or in
transfers of Crown land to freehold land from the State of Western Australia to a transferee. A
covenant that is the subject of a management order or an interest (eg. lease, mortgage), then
consent of the management body and/or interest holder must be obtained for the covenant.
Consent of the caveator of any encumbering caveat is required for positive covenants being
created over Crown land. Consent of the current freehold owner is required for positive
covenants over agreement land where the current freehold owner is not a party to the
document.
In s.15 of the LAA, covenants may be in gross or in favour of specified land (ie. a covenant with
a dominant and servient tenement). The person who may have the benefit of the covenant may
be the Minister for Lands, a State instrumentality, a local government body or a prescribed
person (as set out in the Land Administration Regulations 1998). The Minister for Lands may be
a covenantor or a covenantee.
A covenant may be limited to a leasehold interest over the Crown land. In these instances the
covenant is made with the lessee and continues on any transfer of the lease but only remains
valid during the term of the affected lease.
If a covenant (not being a s.15 covenant) is made between two separate Crown leasehold
estates (eg. one lease exists over the dominant tenement and a different lease exists over the
servient tenement) then s.18 of the LAA consent of the Minister for Lands is required unless the
Crown land is vested for purposes of another Act.
The land description in a covenant where the dominant or servient tenement is limited to a
leasehold interest must additionally refer to the lease affected by the covenant. For example:
“As to Lease H123456 only”
or where the lease and covenant are lodged together,
“As to Lease . . . . . . . . . . . . . dated 0.0.2005 made between AB as lessor and CD
as lessee only”.
In s.15 of the LAA, covenants created by deed over agreement land must be signed by the first
freehold land owner after alienation by the Minister for Lands from the Crown estate and who is
also a party to the agreement made prior to the transfer from Crown to freehold. It is not
essential that the deed is signed by the Minister for Lands or other covenantee, but they may do
so.
The lessees copy of a lease of Crown land must be produced with any covenant where the
dominant or servient tenement is limited to a lease interest.
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7.4
Types of Restrictive Covenants
7.4.1
Estate Covenants
These covenants are normally applied to subdivisions of broad acres where the developer
considers it necessary to establish a standard for the erection of dwellings or the use of the
land. As each lot is sold, the purchaser, as proprietor of the lot sold, covenants with the vendor
to restrict the use of the land in the manner set out in the transfer, for the benefit of all other
unsold lots on the plan.
A memorandum of such covenant is endorsed as an encumbrance on the title for the lot being
transferred. No endorsement is made on the title(s) for the unsold land.
7.4.2
Restraint of Business or Trade Covenants
Where a vendor requires a purchaser to enter into a covenant not to conduct a particular
business or trade such a covenant will be accepted as part of a transfer provided that it can be
shown that the vendor is the proprietor of land, in the vicinity of the land sold, which can benefit
from the covenant.
7.4.3
Protected View or Outlook Covenants
This type of covenant usually arises where one lot is subdivided and covenants are required
from the purchaser not to build out or obscure the view of the vendor. The covenants are related
to the height to which the purchaser may erect a dwelling or grow shrubs, etc.
When setting the height for such a covenant, reference should be made to the Australian Height
Datum (see note paragraph 7.1.5).
The benefit of such a restrictive covenant will be shown in the Second Schedule of the relevant
title being created in the normal course of registration. If no such title is being created, Landgate
will prepare and lodged a sundry document for the purpose of showing the benefit of the
restrictive covenant in the Second Schedule. Production of the relevant duplicate certificates of
title (if any) is required.
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7.4.4
Covenants with the National Trust
The National Trust of Australia (WA) Act 1964 (in this paragraph called the Act) established as a
body corporate with perpetual succession known as the National Trust of Australia (WA). The
Trust has a common seal and the power (among other things) to acquire, hold and dispose of
real property. The Trust is managed by a committee known as the Council of the National Trust
of Australia (WA).
The Common Seal of the Trust may only be used by order of the Council, and may be affixed to
a document in the presence of the President or the Vice President, and the Secretary. The
Council may appoint officers and delegate any of its powers (except the power of delegation) to
any committee.
The Trust has the role of encouraging public interest in places and things of national or local
importance by reason of historic, legendary, artistic or other interest, and of places of national
beauty and flora and fauna.
The proprietor of any land may create restrictive covenants, either permanently or for a
specified period, in favour of the National Trust of Australia (WA). In accepting the benefit of the
covenants the Trust need not be the owner of adjacent land but the covenant takes effect as if it
were (s.21A of the Act).
Such covenants are registered, discharged or modified in the same manner as any other
covenant under the TLA. Similar covenants in favour of the Heritage Commission may be
registered by a Memorial (see paragraph 11.4.14).
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7.5
How Covenants are Removed
7.5.1
General
Covenants may be removed from the Register by:
•
agreement between the parties having an interest in the covenant
•
by an order of the Court
or
•

by the implementation of a Town Planning Scheme (Ref: s.11 in Schedule 7 of the P&D
Act, formerly being s.15 in the Schedule of the TP&D Act);
Note:
Where a Covenant is for a specific term, and that term has expired, the covenant no longer has
any effect. There is no need to apply for the discharge of a covenant.
New Practice for the Removal of Time Expired Restrictive Covenants
This new practice is for the purpose of restrictive covenants under s.129A and s.129B of the
TLA (common law estate restrictive covenants) that:
•
have expired due to a time limit within the restrictive covenant
and
•
do not contain unexploded ordnance provisions.
To have a restrictive covenant that has expired due to a time limit removed from a Certificate of
Title prior to the transfer to a new registered proprietor, a signed letter must be provided by the
responsible licensed settlement agent or lawyer and lodged at Landgate at the same time as
the transfer document.
The content of the letter need only contain the following line:
Restrictive Covenant [doc. #] may have expired and, if so, should be removed from
Certificate of Title Volume [#] Folio [#].
Any approved Transfer of Land forms that contain a Limitations, Interests, Encumbrance and
Notifications panel that have already been completed and executed, where a restrictive
covenant has been left off as it has expired due to a time limitation, will continue to be actioned
by Landgate’s Examination Team.
7.5.2
By Agreement (Section 129B of the TLA)
On the application of the proprietor of the land burdened and with the written consent of all
persons having an interest in the burdened land (which includes all persons having an interest
in the benefit or burden of the restrictive covenant), the Commissioner may instruct the
modification or removal of the covenant as an encumbrance. Applications under this section can
also be made where the land with the benefit and the land burdened revert to one ownership.
The duplicate title(s) (if any) for the land burdened with the covenant must be produced.
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7.5.3
By Order of the Court (Section 129C of the TLA)
On the application of the proprietor of the land burdened by the covenant, accompanied by an
Order of the Court removing or varying the covenant, the Commissioner will direct the removal
of the restrictive covenant as an encumbrance or the endorsement of the title with a
memorandum that the covenant has been modified, as the case requires. Recourse to a Court
Order is usually required in the case of estate covenants.
The Court has the discretion (except in the case of single dwelling covenants benefiting more
than 10 lots_ see below) in the number of consents it requires from the other proprietors in the
estate.
Certain criteria for discharge of restrictive covenants were laid down by Negus J in Smith v
Australian Real Estate and Investment Co Ltd (1964) WAR 163. The duplicate certificate(s) of
title (if any) for the land burdened by the covenant must be produced.
7.5.4
Single Dwelling Restrictive Covenants s.129C (1a)
With the introduction of the Transfer of Land Amendment Act 1999 (the Act) and the Transfer of
Land Amendment Regulations Act 1999 (the Regulations) that came into operation on 1st June
1999, the mechanism by which a single dwelling restrictive covenant that benefits more than ten
(10) lots may be extinguished, discharged or varied by an Order made by the Supreme Court
under s.129C of the TLA has changed.
A single dwelling restrictive covenant is defined under the Act as a
“…..restrictive covenant that prohibits the construction of more than one dwelling
on the lot burdened by the covenant.”
The burdened lot is the one upon which the restriction is placed. The benefited lot has the
benefit or advantage of the restriction.
The Act introduces a precondition of written consent, which must be obtained before an
application to extinguish, discharge or modify a single dwelling covenant can be heard by the
Supreme Court. Written consent must be obtained from the registered proprietors and also from
either their mortgagee or chargee who is first in order of priority, of 51% of the lots with the
benefit of a single dwelling covenant, located within a prescribed area.
Written consent is obtained by sending out of a special form of written notice that has been
approved by the Registrar of Titles.

Note:
Where a benefited lot is co-owned, consent is deemed to have been given if, in the case of a
joint tenancy, a majority of joint tenants provide written consent. If the lot is held as tenants in
common, then consent is deemed to have been given if the registered proprietors who, between
them, own the majority of the undivided shares in the lot provide written consent.
If the mortgagee or chargee does not consent, then the consent from the registered proprietor
of that particular benefited lot can not be counted. A lot is counted for the purposes of the
prescribed area if at least part of it falls inside the prescribed area.
Regulation 8A contains a circle formula to define what is meant by the prescribed area. The
prescribed area is determined by reference to proprietorship of lots with the benefit of a single
dwelling covenant, located inside a circle of a certain radius from the lot wishing to remove the
covenant.
The objective is to encompass 200 lots with the benefit of a single dwelling restrictive covenant.
The formula contained in the Regulations stipulate a maximum size of the circles to recognise
that there may be occasions when despite the size of the circles, 200 lots will not fall inside the
circle.
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In summary, under the Regulations:
•
A circle with a radius of 250 metres from the centre of the lot that requests the removal of
the single dwelling covenant is drawn.
•
The size of the circle is increased incrementally by 10 metres, until either, at least 200
lots with the benefit of a single dwelling covenant fall inside the circle, or to a maximum
radius of 270 metres, which equates to 3 circles.
The circle or circles must always be drawn by a licensed surveyor.
The practical effect of these amendments is to make it more difficult for landowners within a
neighbourhood of single dwelling restrictive covenants to obtain a Supreme Court Order to
remove that covenant.
Landowners wishing to remove a single dwelling restrictive covenant must first obtain support to
do so from the majority of those, within a circle, who are most likely to be affected by such
removal.

Note:
The above requirements apply to all single dwelling restrictive covenants no matter how they
were created (ie: by transfer, by deed or on plans of subdivision).
7.5.5
By Implementation of a Town Planning Scheme (Section 11 in
Schedule 7 of the P&D Act)
A Local Government Authority may, by resolution and subsequent publication of same in the
Government Gazette, remove a restrictive covenant as part of an amendment to a Town
Planning Scheme.
The registered proprietor of the land may then apply (on a Form A5) for the removal of the
covenant as an encumbrance on the title, quoting the notice in the Government Gazette and
producing a letter or other evidence from the Local Government certifying that the land the
subject of the application, was released from all or a defined part of the covenant by resolution
of the Council. The duplicate certificate of title (if any) for the land burdened by the covenant
must be produced.

Note:
Prior to the proclamation of the P&D Act on 9 April 2006, the above-mentioned provisions were
set out in s.15 of the Schedule to the TP&D Act.
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7.5.6
Discharge and Modification of Restrictive Covenants Created under
Part IVA
The proprietor of land burdened or benefited by a restrictive covenant created on a Plan under
Part IVA of the TLA may apply on a Form A5 for the restrictive covenant to be discharged or to
be modified.
The application should contain the written consent of each person who has a registered interest
in, or is a caveator in respect of, any land that is burdened or benefited by the restrictive
covenant.
Where the above mentioned written consent has not been obtained, the procedures as set out
in s.136J of the TLA must be complied with prior to the lodgement of the application. In this
circumstance the application must be accompanied by a statutory declaration from the applicant
that contains the following information:
•
That each person who has a registered interest in, or is a caveator in respect of, any land
that is either burdened or benefited by the restrictive covenant has been given 28 days’
written notice of both the intention to make the application and the substance of it.
•
That the notice(s) in writing (referred to above) have been properly served in accordance
with s.240 of the TLA by .......................................... (insert the specific mode of service
used, as authorised under s.240).
•
That notice of both the intention to make the application and the substance of it has been
published at least 28 days before the day on which the application is made in a
newspaper circulating either throughout the State or in a district where the land is
situated.
•
That both of the notices referred to above contained the applicants address for service of
notices of objection to the proposed application or to any part of it.
•
That both of the notices referred to above contained the expiry date for objections to be
received and the day on which the proposed application is to be lodged, that day being at
least 3 days after the expiry date for objections to be received.
A copy of the notice that was published in a newspaper, showing the name of the newspaper
and the day of publication should be attached to the statutory declaration of the applicant (Full
page of newspaper required to be lodged with the application).
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The above-mentioned statutory declaration must state the content of the notices to the
registered interest holders and the newspaper notice and not merely state that sections 136J (3)
(a) and (b) of the TLA have been complied with.
The notices must clearly state:
•
the applicant’s address for the serving of notices of objections to the proposed application
or any part of it
•
the commencement date and the expiry date for the 28-day notice period in which
objections can be received
and
•
the approximate date on which the application will be lodged at Landgate, that date being
at least 3 days after the expiry date for objections to be received.
The Commissioner will not direct the Registrar to discharge or modify the restrictive covenant if
any objection has been made to the application or any part of it. Receipt of an objection will
require the applicant to utilise s.129C of the TLA and obtain a Court Order for the removal or
modification of the restrictive covenant.

Note:
It is recommended that the application be lodged as soon as possible after written consent has
been obtained or as soon as possible after the expiration of the 3 day period in the case where
consent has not been obtained. This will reduce the possibility of the registration of new
proprietors or other interest holders before lodgement of the application. In this circumstance
extra other notices would need to be sent.
If the restrictive covenant is a single dwelling restrictive covenant that benefits more than ten
(10) lots, it can only be removed by an order of the Supreme Court after the provisions of
s.129C (1a) of the TLA have been met (see paragraph 7.5.3).
7.5.7
Discharge and Modification of Restrictive Covenants in Gross
The proprietor of land burdened by a restrictive covenant in gross created pursuant to s.129BA
of the TLA may apply on a Form A5 for the restrictive covenant to be discharged or to be
modified.
The application should contain the written consent of the relevant Local Government or Public
Authority, and the written consent of each person who has a registered interest in any land that
is burdened by the restrictive covenant.
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Where the above mentioned written consent has not been obtained, the requirements set out in
s.129BB of the TLA must be complied with prior to the lodgement of the application. In this
circumstance the application must be accompanied by a statutory declaration that contains the
following information:
•
That the Local Government or Public Authority and each person who has a registered
interest in any land that is burdened by the restrictive covenant has been given 28 days’
written notice of both the intention to make the application and the substance of it.
•
That the notice(s) in writing (referred to above) have been properly served in accordance
with s.240 of the TLA by .......................................... (insert the specific mode of service
used, as authorised under s.240.)
•
That the notice(s) of the intention to make the application and the substance of it, has
been published at least 28 days before the day on which the application is lodged, in a
newspaper circulating either throughout the State or in a district where the land is
situated.
•
That both of the notices referred to above contained the applicants address for service of
notices of objection to the proposed application or to any part of it.
•
That the applicant has received no objection to the proposed application or any part of it
at least 3 days before the application was proposed to be made.
A copy of the notice that was published in a newspaper, showing the name of the newspaper
and the day of publication should be attached to the statutory declaration of the applicant (Full
page of newspaper required to be lodged with the application).
The Commissioner will not direct the Registrar to discharge or modify the restrictive covenant if
any objection has been made to the application or any part of it. Receipt of an objection will
require the applicant to utilise s.129C of the TLA and obtain a Court Order for the removal or
modification of the restrictive covenant.

Note:
A Local Government or Public Authority that has the benefit of a restrictive covenant in gross
created under s.129BA of the TLA may also apply for the restrictive covenant to be discharged
or modified with the written consent of each person who has a registered interest in any land
that is burdened by the restrictive covenant (including the registered proprietor).
7.5.8
Discharge and Modification of Covenants under the Land
Administration Act 1997
A covenant created under s.15 of the LAA may be modified by agreement between the
covenantor and the covenantee or discharged by the covenantee.
The covenantor and the covenantee may apply on a Form A5 for the covenant to be modified or
discharged. The application should contain the written consent of any encumbrancer or
caveator over any land that is burdened or benefited by the covenant.
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7.6
Easements and Restrictive Covenants Involving
Strata Companies
7.6.1
General
Easement and Restrictive Covenant documents executed in respect of strata/survey-strata
schemes are subject to the normal requirements. Some issues that have caused problems are
discussed in the following paragraphs.
7.6.2
Strata Companies Do Not Own the Parcel in Strata Schemes
Although a strata company may execute a document, in accordance with s.20(1) of the STA,
creating easements or restrictive covenants, it does so as the representative of the registered
proprietors of the lots (and common property). The strata company does not own any lots or
common property. Ownership of the parcel is held by the registered proprietors of the lots (s.17
and 4(4) of the STA).
If the ownership of all lots in a strata/survey-strata scheme is identical to that of another parcel
of land then the two parcels are held in the same ownership.
In accordance with common law principles, easements and restrictive covenants can only be
created when the dominant and servient tenements are in separate ownership. Easements or
restrictive covenants created on subdivisions under Part IVA of the TLA or s.5D of the STA are
statutory exceptions to that principle.
Registration of a transfer of at least one strata/survey-strata lot to another person is one way of
breaking the unity of ownership.
7.6.3
Execution of Easements and Restrictive Covenants by Strata
Companies
Any easements or restrictive covenants under s.20 of the STA can only be executed by the
strata company pursuant to a unanimous resolution. A unanimous resolution can only be
achieved at a duly convened general meeting of the strata company of which the requisite
notice specifying the proposed resolution has been given. See the definition of unanimous
resolution in s.3(1) of the STA.
The strata company can only pass such a resolution or any resolution necessary to authorize
the execution of the documents, at the earliest on the 16th day after registration of the strata
plan (registration date is counted as day one).
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7.6.4
Execution of Easements and Restrictive Covenants by Proprietors of
Proposed Strata/Survey-Strata Lots - with Proprietors of Land
Outside the Scheme
The formalities of execution by strata companies of documents creating easements or restrictive
covenants means that such documents cannot be lodged with applications for registration of
strata/survey-strata plans.
Grants or acceptance of grants of easements and restrictive covenants between the owner of a
proposed strata/survey-strata and the owner of another property can be made by reference to
an annexed copy of the proposed strata/survey-strata plan and registered before the
strata/survey-strata plan.
7.6.5
Easements in Respect of Encroachments
Easements in respect of Encroachments referred to in s.22 of the STA are required to be
granted before registration of the strata plan. Accordingly, they can never be executed by the
strata company (see paragraph 6.4.2).
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8.
Roads and Their Closure
This chapter relates to the creation of roads, both public and private, how they
are closed and what happens to the land comprised in the road being created or
closed.
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8.1
Roads and their Closure
For the sake of clarity when the words public road are used they may be taken to include
public street, highway or public thoroughfare. Where the words private road are used they also
include private right of way, walkway and pedestrian access way.
The subject to be discussed is the manner in which roads, both public and private, are created:
what happens to the fee simple of the land in the road; how they are closed; and how the fee of
the roads is dealt with, i.e.: the land comprising the road. Public roads were formerly shown
coloured pink on surveys registered under the TLA and brown on the public plan series,
however, colouring in no longer used on the creation of new deposited plans.
Dedicated roads on SmartPlan are coloured brown, however, some roads are still uncoloured
(white) pending ongoing data capture action.
Part 5 of the LAA provides the current primary legislative basis for the creation/dedication of
roads and closure of roads and private roads in Western Australia. Before the LAA was
proclaimed on 30 March 1998, the Local Government Act 1960 was the primary legislation for
administering the creation, management and closure of roads. The provisions relating to roads
in the Local Government Act 1960 were repealed and replaced by Division 1 of Part 5 of the
LAA.
A road consists of the road corridors which is the cadastral boundaries of a land parcel
created for road purposes. The cadastral boundaries define the legal limits of the road.
Generally, road corridors include the constructed bitumen road, the kerbing and verge areas (for
example: street lawns in urban areas, road side vegetation in rural areas) up to the boundaries
of abutting land parcels.
A road may have a 2 dimensional configuration (length and width) or a 3-dimensional
configuration (length, width and height or depth or both) as specified on a deposited plan lodged
with the Registrar of Titles. A road may be situated in airspace, waters or, on the surface of or
below the ground (including the bed of waters). For example, a 3-dimensional road may be
constructed in tunnels, bridges and overpasses.
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8.2
Creation of Public Roads
8.2.1
Crown Land
A public road is created by:
8.2.2
•
being set out as a road on an approved Crown deposited plan that additionally includes a
lot for non-road purposes. Automatic dedication occurs under s.28 of the LAA on
approval of the deposited plan.
•
being declared as a road in a Road Dedication (Ministerial) Order lodged and registered
against a Crown land title. Dedication occurs under s.56 of the LAA on registration of the
road dedication document.
Alienated Land
A public road is created:
•
By taking for the purpose of a road under s.177 of the LAA and s.3.55 of the Local
Government Act 1995 and consequential dedication under s.56 of the LAA.
•
By setting out a private road on a plan and subsequently dedicating it to public use
under the provisions of s.56 of the LAA. This is firstly considered by the Local
Government who in accordance with the regulations may then request the Minister to
dedicate the land as a road.
Where the Minister grants the request, the Dedication Order, which is endorsed on the
freehold title, has the effect of transferring that private road to the Crown in the name of
the State of Western Australia and revesting the land as Crown land on registration of
that Order.
Any encumbrances or implied rights under s.167 of the TLA that may be attached to the
land are extinguished by the dedication (see paragraph 8.4.4).
•
By setting out a road on a plan of subdivision and subsequently dedicating it to public use
under the automatic dedication provisions of the Local Government (Miscellaneous
Provisions) Act 1960, s.295(5).
Prior to the coming into operation of the Local Government Act, Amendment Act 1969
(proclaimed 13 December, 1969) such roads were dedicated to public use by the
registration of a transfer of one of the lots shown thereon.
Since that date such roads are dedicated to public use by the approval of the plan of
subdivision by the Inspector of Plans and Surveys.
•
Where land is transferred to the State of Western Australia or a Local Government and
the transfer document contains a statement that the transfer is for the purpose of
extending or adding to an existing public road pursuant to s.168 (5) of the P&D Act
(formerly s.28(1) of the TP&D Act).
Dedication is effective from the date of registration of the transfer. Any existing
encumbrances, interests or caveats affecting the parcel of land transferred must be
removed prior to the dedication.
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•
Where a road corner shown on any registered plan is rounded off or truncated by any
new plan. The portion of the land so rounded off or truncated forms part of the public road
and is dedicated to public use on the date of approval of the new plan by the Inspector of
Plans and Surveys (s.168 (3) P&D Act, formerly s.28(2) TP&D Act).
•
Where any part of the land on a plan of subdivision is marked road widening. Such
portion is dedicated to public use and forms part of the road so widened on approval of
the plan by the Inspector of Plans and Surveys (see s.168 (3) of the P&D Act, formerly
s.28 (3) of the TP&D Act).
•
Where the road widening is the only land on the plan there is no automatic dedication as
a public road and further action by way of notification in the Government Gazette or
registered transfer is required.
•
A local Government may also have a proposed road widening surveyed out, but may
pend the legal dedication of the road as public until such time as any buildings
encroaching on the new road alignment are demolished.
When the land is clear of buildings it is dedicated as a public road upon an order of the
Governor (Local Government (Miscellaneous Provisions) Act 1960, s.364).
8.2.3
Railway Land
Prior to the introduction of the LAA, land originally taken for railway purposes on an approved
survey and then no longer required as a railway could be dedicated as a public road by a notice
published in the Government Gazette (Public Works Act 1902, s.105). On the introduction of the
LAA, s.105 of the Public Works Act 1902 was repealed (see s.54 of the LAA).
In these instances, the Department of Lands now arrange the necessary steps to be taken to
have the land made Unallocated Crown land. A road dedication order is then lodged under s.56
of the LAA to dedicate the land as a road.
8.2.4
Ownership, Care, Control and Access to Roads
The State of Western Australia is the owner of all land in roads. All subsequent actions to
change the course or status of a road are taken by the Department of Lands. The Department
of Lands is not, however, charged with the maintenance and construction of roads, it acts as an
agent attending to the legalities.
The care, control and management of public roads is with the Local Governments (s.3.53 of the
Local Government Act 1995 and s.55 (2) of the LAA).
Not all roads, however, are under or remain under the care, control and management of the
Local Government. By a proclamation pursuant to s.13 of the Main Roads Act 1930, the
Commissioner for Main Roads may declare any road or part of a road to be either a highway or
a main road.
The proclamation takes effect from the date of its publication in the Government Gazette. The
care, control and management of the highway or main road is then vested in the Commissioner
(s.15 of the Main Roads Act 1930).
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Access to a road either on foot or by vehicles, can be restricted in the case of main roads or
highways by the proclamation pursuant to s.28A of the Main Roads Act 1930 by the
Commissioner of Main Roads. The proclamation takes effect from the date of its publication in
the Government Gazette.
Pseudo methods of controlling vehicular access to roads have been introduced by Local
Governments and the Western Australian Planning Commission by creating a 0.1 metre wide
strip of land parallel to the Road Boundary and vesting the land in the Crown as a pedestrian
accessway pursuant to s.20A of the TP&D Act. Ultimately the pedestrian accessway may be
revested and declared a reserve and placed under the care, control and management of the
Local Government.
Purchasers of land adjoining main roads or highways (and their agents) would be well advised
to seek from the Main Roads Department information on the status of road access.
If the road in question was created as part of a subdivision of freehold land, it will most likely be
a local road under the control of the Local Government.
Prior to the LAA if the road was originally created by a survey of Crown land or has at any time
been extended, widened or deviated by actions in the Department of Lands; the former public
plan series would show a road number reference, which can be used to retrieve a Department
of Lands file for information purposes.
The road number references were utilised for gazettal purposes. Roads now created under the
LAA over Crown land no longer show a road number, however, a Department of Lands file
number (generally the survey file) is shown on Crown deposited plans or on the document
where a Road Dedication Order has been registered.
Some of the more recently created freeways have been created by the resumption (now called
taking) or purchase of freehold land and have not yet been dedicated as a public road and
therefore, not revested as Crown land. Such roads are shown in white on the former public
plans series or yellow on SmartPlan and a title for the land can be searched.
Protected Roads are unsurveyed roads shown on Landgate’s Crown plans and original public
plans (which have now been superseded by SmartPlan), extending only across unallocated
Crown land, reserves and State forests. Where shown on a Crown plan, protected roads
indicate the approximate position of a road. The purpose was to assist in future subdivision over
the area and to indicate the presence of a road in the event of an enquiry over the land.
Prior to 1961, under the Road Districts Act 1932, a protected road or any road shown on a
Landgate Crown plan was and remains a public road, and the local authority had control and
power to finance its construction. After 1961, under the Local Government Act 1960, this power
was lost and protected roads created after 1961 are not considered public roads.
Where a protected road was shown on plans after 1 July 1961 and is shown over a reserve, it
is not legally available for public access unless it has been formally dedicated and removed
from that reserve. The same principle applies to other forms of Crown tenure. For a protected
road to be deemed to be for public use, it must have existed on Landgate’s plans prior to 1 July
1961 and must have been created over unallocated Crown land, or excised from the tenure and
then created.
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8.3
Creation of Private Roads
8.3.1
Private Roads and Rights of Way
The term private roads (which includes private right of way) is applied to those roads set out on
a plan of subdivision of privately owned land under the Act which have not been dedicated to
public use. These roads were formerly shown coloured brown on all plans registered under the
TLA, however, colouring is no longer used on the creation of new deposited plans and on
SmartPlan they are coloured yellow the same as other freehold land.
Private roads set out on plans of subdivision are appurtenant only to those lots on the plan
which abut onto the private road, unless additional rights have been granted by registered
easement (s.167A). The implied right of way which the owner of a lot abutting onto a right of
way acquires by the purchase of that lot, is as legally binding as that gained by a right of way
created by a registered grant of easement.
Crown land right of ways were created by the Minister for Lands under the Land Act 1933 or
earlier legislation. These rights of way are not subject to private access rights in favour of
adjoining landowners under s.167A of the TLA. These rights of way remain Crown land and are
actually accessway reserves.
8.3.2
Pedestrian Accessways and Rights of Way under Section 152 of the
Planning and Development Act 2005
Pedestrian accessways (PAWs) and right of ways (ROWs) created on deposited plans of
subdivisions for freehold land pursuant to the provisions of s.152 of the P&D Act vest in the
Crown. A Crown Land Title, in the name of the State of Western Australia, will be created and
registered for each PAW or ROW that is vested in the Crown.
PAWs are created as a requirement of the WAPC as part of the subdivision of freehold land, as
a means of pedestrian access between public roads, and for providing a corridor for public utility
services.
ROWs are created as a requirement of the WAPC upon subdivision to allow for existing or
planned future public access over land by vehicles, cycles or pedestrians, usually where it is not
considered appropriate or possible to dedicate land as a public road under the LAA or as a road
widening under s.168 of the P&D Act (formerly s.28 of the TP&D Act).
Prior to the introduction of the Reserves and Land Revestment Act 57 of 1991, the land so
vested was subject to the rights of the adjoining landowners in accordance with s.167A of the
TLA. The Reserves and Land Revestment Act removed those rights, both for new surveys and
for all existing surveys, in those cases where the land vested in the Crown pursuant to s.152 of
the P&D Act. Therefore, none of these PAWs or ROWs are subject to private access rights in
favour of adjoining landowners under s.167A of the TLA.

Note:
Prior to the proclamation of the P&D Act on 9 April 2006 the above-mentioned provisions were
set out in s.20A of the TP&D Act.
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8.4
Closure of Roads, Pedestrian Accessways and
Rights of Way
8.4.1
Closure of Public Roads
Public roads are closed in the following ways:
•
by registration of a Ministerial Order under s.58 of the LAA
•
by a taking of all, or part, of a road for a public work under the LAA
or
•
by the passage of an Act of Parliament
Public roads could formerly be closed by a notice to that effect published in the Government
Gazette under the provisions of sections 287, 288A and 294 of the Local Government
(Miscellaneous Provisions) Act 1960 but those sections were repealed on the introduction of the
LAA (see s.66 of the Acts Amendment (Land Administration) Act 1997).
Where a road dedicated for public use is proposed to be closed, it may be closed at the request
of Local Government under s.58 of the LAA. The Local Government must allow 35 days after
the publication in a newspaper for objections and must consider any objection before requesting
closure. Regulation 9 of the Land Administration Regulations 1998 specifies the procedural
requirements of Local Government prior to submitting a request to the Minister for Lands.

Note:
Where a road is closed or is to be closed and the land in the road is included in a new plan of
subdivision, the matter of obtaining title to that land can be a prolonged operation. Action to
obtain title should be commenced at the earliest possible time.
8.4.2
Disposal of Land in a Closed Road
On the introduction of the LAA a road is now closed by a Road Closure (Ministerial) Order
document. As part of the closure process the Local Government informs the Minister of the
proposed future disposition of the land in the closed road to adjoining land holders. Section 87
of the LAA provides the means for disposal of the land in a closed road by lodgement of a
Conveyance and Amalgamation Order by DPI that allows for amalgamation of land into an
adjoining land holder’s land (see paragraph 12.3.1).
8.4.2.1
After 29 October 1962 and prior to the introduction of the LAA
During this period all closed roads, being land under the TLA, were vested in the Crown and
removed from the operation of that Act. On the same day the Land Act, Amendment Act 1962
came into operation and added Sections 118A to 118H to the principal Act.
These sections provided the means for disposal of closed roads, closed rabbit proof fence
reserves, closed railways and any additional Crown land for the purpose of adjustment of
boundaries. Any land disposed of under the authority of these sections was made the subject of
a Closed Road Certificate issued by Department of Lands.
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On the application of the person entitled, using a Form A6, the payment of the required fee, the
production of the Closed Road Certificate and the duplicate certificate of title (if any) or Crown
lease, a new certificate of title was created and registered or the Crown lease amended to
reflect the inclusion of the closed road.
With the introduction of the LAA sections 118A to 118H of the Land Act 1933 as amended have
been replaced with s.87 of the LAA.
8.4.2.2
After 1 July 1961 and prior to the introduction of the Local Government Act,
Amendment Act No 381962
During this period there were no means whereby closed roads could be disposed of other than
by a registered transfer of the closed road under the TLA or by the creation and registration of a
Crown Grant in the case of a Crown road, due to the repeal of the Closed Roads Alienation Act
1932 by the Local Government Act 1960 and the failure to provide alternative legislative
machinery to deal with closed roads.
8.4.2.3
Before the introduction of the Local Government Act 1960
During this period roads were controlled by Local Governments under the provisions of the
Road District Act 1919 and the Municipal Corporations Act 1906. Roads in a municipal district
were closed and the fee of a road was disposed of by an Act of Parliament passed for that
purpose. Roads, not being Crown roads, closed under the Road Districts Act were disposed of
under s.151(3) of that Act.
The fee of the road so closed:
•
reverted to being part of the location or lot from which it was originally taken
•
and for the same estate or interest
•
vested in the owner of that lot or location (where there were two adjoining owners each
took one half of the closed road)
and
•
was subject to any encumbrances on the land to which it reverted.
On the application of the person entitled, the payment of the required fee and the production of
the existing duplicate certificate of title (if any), a new title is created and registered
incorporating the portion of the closed road to which the applicant is entitled.
The fee of the roads, being Crown roads closed under the Road Districts Act 1919 was
disposed of under the provisions of the Closed Roads Alienation Act 1932. A closed road
certificate was issued from the DoL for the part, or whole, of the closed road. On the application
of the person entitled, the payment of the prescribed fee, the production of the closed road
certificate and the duplicate certificate of title (if any) or Crown lease, a new certificate of title
was created and registered or the Crown lease was amended.
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8.4.3
Closure of Private Roads and Rights of Way by Application
The owner of the fee simple of a private road or right of way may close it by application to the
Registrar on Form A5. For such an application the following should be noted:
•
the application must be made by the registered proprietor of the fee of the road or right of
way
•
any easement granted expressly by transfer must be the subject of a formal surrender by
the dominant owner. Any encumbrancer of the dominant tenement must consent to the
surrender
•
the proprietor of the original lots on the plan of subdivision that abut the road or right of
way must also execute a formal surrender of their implied rights. If an original lot has
been subdivided, surrenders must be obtained from all the proprietors of all the new lots
that formed part of the original lot, not just the part of the subdivided lot that abuts the
road or right of way
•
all surrenders must be stamped by the Office of State Revenue (Stamp Duties Division)
but the application is not dutiable
and
•
a consent in writing must be obtained from all encumbrancers of any land the proprietors
of which have implied rights of way over the private road or right of way.
A deposited plan of subdivision incorporating the land the subject of the closed road or right of
way may be lodged at Landgate but no action may be taken on the plan until the road or right of
way is closed. After closure of the road or right of way an application for a new title the subject
of the plan is required. This application (using Form A6) may be lodged simultaneously with the
application to close the road or right of way.
Where no new deposited plan of subdivision is being lodged to incorporate the road or right of
way being closed, the land therein, for the purpose of identification, reverts to its original lot. An
application for a new title for the closed road or right of way must be made. This application
(using Form A6) may be lodged simultaneously with the application to close the road or right of
way.
The title for the land in the road or right of way to be closed must be produced unless it is
partially cancelled and held by Landgate.
After lodgement, each application to close a road or right of way is submitted to the
Commissioner for approval and if satisfied that the requirements have been met, effect will be
given to the closure.
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8.4.4
Closure of Private Roads and Rights of Way at the Request of Local
Governments
Freehold private roads may be closed under s.52 of the LAA, by way of an Acquisition Order
made by the Minister or under s.56 (dedication), at the request of a Local Government.
However, closure of PAWs and ROWs vested in the Crown under s.152 of the P&D Act
(formerly s.20A of the TP&D Act) is dealt with differently (see paragraph 8.4.5).
Generally, road closures will not be approved by the Minister or his or her delegate unless the
road is to be totally amalgamated into adjoining land or is reserved with a management order to
an appropriate management body. In general it is Department of Lands’s preference that
management responsibility for the land once the road has been closed is undertaken by local
government.
Private roads (for the purposes of this paragraph) generally consist of land set aside in older
subdivisions of freehold land as laneways at the rear of residential lots. Fee simple title to the
land in private roads usually remains in the name of the original subdivider, but who in fact has
no further real interest in the land. Commonly, such landowners are long since deceased, or
defunct land development companies. The private road may be subject to implied easements
under s.167A of the TLA in favour of the residential lots created by the relevant plan of
subdivision.
Registration of an Acquisition Order under s.52 extinguishes all rights, interests and
encumbrances affecting the subject land and revests the land as Crown land. Where a private
road is closed by an Acquisition Order under s.52 of the LAA, compensation is not payable to
any person with an interest in the land (including the owner of the fee simple interest in the
land) nor any person who may have the benefit of an easement over the private road created
under s.167A of the TLA.
Before Local Government can request the Minister for Lands to close a private road, Local
Government must comply with the requirements set out in s.52 of the LAA and regulation 6 of
the Land Administration Regulations 1998.
As part of the closure process the Local Government informs the Minister of the proposed future
disposition of the land in the closed road to adjoining land holders. s.87 of the LAA provides the
means for disposal of the land in a closed road by lodgement of a Conveyance and
Amalgamation Order by DPI that allows for amalgamation of land into an adjoining land holder’s
land (see paragraph 12.3.1)
A private road may also be closed by subsequently dedicating it to public use under the
provisions of s.56 of the LAA. This is considered by the Local Government on:
•
the request of the owner of the street or right of way made to the Local Government
•
the request of the owners of rateable property abutting the street or right of way or at
least the owners of more than one half of the sum of the rateable values of the abutting
properties
or
•
where the public has had uninterrupted use of the street or right of way for a period of not
less than ten years.
Local Government may then in accordance with the regulations request the Minister to dedicate
the land as a road. Where the Minister grants the request, the Dedication Order, which is
endorsed on the freehold title, has the effect of transferring that private road to the Crown in the
name of the State of Western Australia and revesting the land as Crown land on registration of
that Order. Any encumbrances or implied rights under s.167 of the TLA that may be attached to
the land are extinguished by the dedication.
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8.4.4.1
Closure by local government prior to the introduction of the LAA
Prior to the introduction of the LAA private roads could be closed following a resolution to that
effect by a Local Government and the approval of that resolution by the Governor in Council.
This course of action was initiated by the registered proprietor or some other person applying to
the Local Government. Procedures to be followed by the Local Authority were laid down in the
Local Government (Miscellaneous Provisions) Act 1960, s.297A.
Upon publication in the Government Gazette of the resolution of the Local Government to close
the private road and the registration of an approved plan in Landgate, the private road was:
•
closed
•
freed from the right of any person to use the same as a private road
•
divided in accordance with the resolution of the Local Government and each portion is
vested in the owner of an adjoining lot in accordance with the plan
and
•
made part of the lot to which it is attached in Landgate’s records.
The closure was noted on each title and the inclusion of the closed road was effected
automatically when any dealing was lodged on affected land for which the duplicate certificate
(if any) was produced.
Inclusion in the appropriate dealing is effected by adding at the end of the normal land
description the words:
“Including the fee of the closed private street. s.297A Local Government
(Miscellaneous Provisions) Act, 1960.”
Where no dealing is contemplated, applications (which are free), may be made to include in a
new title the closed private way or portion thereof to which the applicants are entitled.
Using application Form A6 the Reason for Application panel should be completed as follows:
“to include in the new title being created and registered the portion of the road
closed pursuant to s.297A of the Local Government (Miscellaneous Provisions) Act
1960 the fee of which is comprised in Title Volume ...... Folio ...... to which the
applicant is entitled.”
The existing duplicate certificate of title (if any) must be produced.
Section 297A of the Local Government (Miscellaneous Provisions) Act 1960 has been repealed
by the introduction of the LAA (see s.67 of the LAA).
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8.4.4.2
Conversion of private road or right of way to public road prior to the introduction
of the LAA
Prior to the Introduction of the LAA a private street or right of way could be dedicated as a
public street under the provisions of the Local Government (Miscellaneous Provisions) Act 1960
(s.288) on:
•
the request of the owner of the street or right of way made to the Local Government
•
the request of the owners of rateable property abutting the street or right of way or at
least the owners of more than one half of the sum of the rateable values of the abutting
properties
or
•
the request of the Local Government, where the public has had uninterrupted use of the
street or right of way for a period of not less than ten years.
All of the above requests were implemented by a request from the Local Authority made to the
Minister for Lands and processed by DPI. Section 288 of the Local Government (Miscellaneous
Provisions) Act 1960 has been repealed by the introduction of the LAA (see s.66 of the Acts
Amendment (Land Administration) Act 1997). This process is now available under s.56 of the
LAA.
8.4.5
Closure of Pedestrian Accessways and Rights of Way Vested under
Section 20A of the Town Planning and Development Act 1928
As PAWs and ROWs created under s.20A of the TP&D Act are owned in freehold by the State
of Western Australia, this category of thoroughfare, defined as a private road under the LAA,
can be closed by simply revesting the land under s.82 of the LAA by registering a Revestment
Order with the Registrar of Titles.
PAWs and ROWs are created as part of a land planning requirement in new subdivisions to
provide access for a number of users and for access to a range of facilities. Local Government
must assess the impact of closing a PAW or ROW and in considering a closure request, a
balance needs to be found between resident accessibility to facilities and public transport, and
security and amenity. Where Local Government proceeds with a closure request, it is required
to prepare a summary report for DPI that also includes confirmation that the Local Government
has resolved to recommend the closure.
Generally a PAW or ROW will only be closed when it can be sold to the adjoining landowners or
reserved and vested in an appropriate agency for public utility purposes. Where the land is to be
sold, the Local Government informs the Minister of the proposed future disposition of the land in
the closed PAW or ROW to adjoining land holders. Section 87 of the LAA provides the means
for disposal of the land by lodgement of a Conveyance and Amalgamation Order by DPI that
allows for amalgamation of land into an adjoining land holder’s land (see paragraph 12.3.1).
Alternatively, a PAW or ROW may also be closed by subsequently dedicating it to public use as
a road under the provisions of s.56 of the LAA. Where the Minister agrees, a Dedication Order,
which is endorsed on the freehold title, has the effect of revesting the land as Crown land on
registration of that Order.
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9.
Bringing Land under the TLA and
Possessory Titles
(Adverse Possession)
This chapter identifies the requirements when bring land under the operations of
the Transfer of Land Act 1893 and application for fee simple land pursuant to a
claim by adverse possession.
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9.1
Bringing Land under the Transfer of Land Act 1893
9.1.1
General
Land which was alienated from the Crown before 1 July, 1875 may be brought under the
operation of the TLA by the application of a person entitled to do so, upon payment of the fees
prescribed. The entitlement of a person may arise from a chain of conveyances from the original
grantee to the applicant or by the possession of the land by the applicant against the original
grantee or a combination of both.
9.1.2
Right to Apply
The right to apply arises:
•
where a person or corporation can establish the ownership of land by documentary title
(in such cases there will be no requirement to satisfy the limitation periods under the
Limitation Act 1935)
or
•
where a person or corporation has been in possession of land for the required length of
time under the Limitation Act 1935. This period is 12 years where the true owner can be
proved to have been under no legal disability at the time possession commenced and 30
years where it cannot be proved that the true owner was not under a legal disability at the
time possession commenced. A legal disability may be defined as infancy, idiocy, lunacy
or unsoundness of mind.
Conveyancers should consider the effect of s.5(b) of the Limitation Act 1935 on the point of
commencement of adverse possession in cases where the beneficiary of a registered proprietor
(who is first dispossessed then later dies) gains a right of action for recovery of possession. The
declaration of any person making an application where such circumstances apply should, in the
applicant’s declaration, negate the effect of the death.
9.1.3
How to Apply
It is recommended that a blank instrument Form B2 Blank Instrument Form be used to prepare
the application in the form suggested by the Second Schedule to the Act. A modified version of
the form is set out below. It should be noted that the form incorporates a declaration and only
those witnesses set out in the Second Schedule may witness the signature of the applicant.
Where a corporation is the applicant, the application must be drawn in the name of the
corporation and the declaration should be made by a responsible officer of the corporation. The
Officer should then sign the application before one of the prescribed witnesses and have the
corporation affix its Seal in the usual manner.
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9.1.4
Form of Application
9.1.4.1
Form for personal application
WESTERN AUSTRALIA
Page 1 of 2 Pages
TRANSFER OF LAND ACT 1893 (2nd Schedule)
Application to bring land under the operation of the Transfer to Land Act 1893.
To the Registrar of Titles.
I (insert Name and Address) hereby apply to have the land hereinafter described
brought under the operation of the Transfer of Land Act 1893.
and I declare:
That I am the owner of an estate in fee simple in possession (or of an
estate of freehold in possession for my life or otherwise as the case may
require) in All that land being (describe the land) (if the land is not a fully
surveyed lot or location show the area using the words which land contains
x hectares or square metres) as is described in the document numbered
........ in the Schedule hereto.
That such land including all buildings and other improvements thereon is of
the value of (number of dollars in words) dollars and no more.
That there are no documents or evidences of title affecting such land in my
possession or under my control other than those included in the Schedule
hereto.
That I am not aware of any mortgage or encumbrance or lease affecting
the said land or that any other person has any estate or interest therein at
law or in equity in possession remainder reversion or expectancy (if there
be any add “other than as follows” and set them out).
That the said land is occupied (if unoccupied prefix “un” to occupied) (if
occupied add by whom and state the name and address of the occupant
and the nature of the occupancy).
That the names and addresses so far as known to me of the occupants of
all lands contiguous to the said land are as follows:
(Here list the contiguous Lots and their Occupants).
That the names and addresses so far as known to me of the owners of all
lands contiguous to the said land are as follows:
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Page 2 of 2 Pages
Dated this
day of
Two Thousand and
Made and subscribed at
) (Signature of Applicant)
in the presence of
)
(Signature of Witness)
Qualification of Witness
Schedule of Documents referred to
(Here list the documents referred to above produced with the application).
The applicant if within the State to sign before the Registrar of Titles or an Assistant Registrar of
Titles or a Notary Public, Justice of the Peace, Commissioner for taking Affidavits in the
Supreme Court of Western Australia or Legal Practitioner; if out of the State, before a Notary
Public, Justice of the Peace or a Commissioner for taking Affidavits in the Supreme Court of
Western Australia.
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9.1.4.2
Form for application by a corporation:
WESTERN AUSTRALIA
Page 1 of 2 Pages
TRANSFER OF LAND ACT 1893 (2nd Schedule)
Application to bring land under the operation of the Transfer to Land Act 1893.
To the Registrar of Titles.
(insert Name, A.C.N. and Address of Corporation) (hereinafter called the “Company”)
hereby applies to have the land hereinafter described brought under the operation of the
Transfer of Land Act 1893.
and I (Name of Director or Corporation official, Address and status in company) declare:
I am authorised to make this statement, and I have had access to all the
records of the Company to enable me to make it.
That the Company is the owner of an estate in fee simple in possession (or
otherwise as the case may require) in All that land being (describe the
land) (if the land is not a fully surveyed lot or location show the area using
the words “which land contains x hectares or square metres) as is
described in the document numbered ........ in the Schedule hereto.
That such land including all buildings and other improvements thereon is of
the value of (number of dollars in words) dollars and no more.
That there are no documents or evidences of title affecting such land in my
possession or under my control or in the Company’s possession or control
other than those included in the Schedule hereto.
That I am not aware of any mortgage or encumbrance or lease affecting
the said land or that any other person has any estate or interest therein at
law or in equity in possession remainder reversion or expectancy (if there
be any add “other than as follows” and set them out).
That the said land is occupied (if unoccupied prefix “un” to occupied) (if
occupied add by whom and state the name and address of the occupant
and the nature of the occupancy).
That the names and addresses so far as known to me of the occupants of
all lands contiguous to the said land are as follows:
(Here list the contiguous Lots and their Occupants).
That the names and addresses so far as known to me of the owners of all
lands contiguous to the said land are as follows:
(Here list the contiguous Lots and their Owners).
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Page 2 of 2 Pages
Dated this day of Two Thousand and
Made and subscribed at
)(Signature of Director or Corporate Official)
in the presence of
)
(Signature of Witness)
Qualification of Witness
The Common Seal of (Name of Company)
)
A.C.N. 123 456 789 was hereto
)(Common Seal)
affixed in the presence of:
)
(Signature of Director)
Director
(Signature of Director/Secretary)
Director/Secretary
Schedule of Documents referred to
(Here list the documents referred to above produced with the application).
The applicant, if in the State, to sign before the Registrar of Titles, an Assistant Registrar of
Titles or any person who, under the Oaths, Affidavits and Statutory Declarations Act 2005, is an
authorised witness for an affidavit made in the State; if out of the State, to sign before any
person who, under the Act, is an authorised witness for an affidavit made out of the State.
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9.1.5
Who May Apply
The persons who may apply are set out in s.20 of the TLA. The applicant may be the owner by
documentary title or he may have had possession for a sufficient length of time to oust the true
owner.
The following points should be noted:
•
all the persons entitled to apply must apply together. The owner of an undivided share
may not bring that share alone under the operation of the Act
•
a life tenant may not apply unless the person entitled to the estate in remainder joins in
the application
•
where the applicant’s land is mortgaged the application must have the formal endorsed
consent of the mortgagee (or evidence of the repayment of the loan and non-availability
of the mortgagee to sign a memorandum of satisfaction, see also paragraph 2.6.17)
and
•
9.1.6
where a mortgagee is the applicant he or she must be exercising his or her power to sell
and must direct that the title be created and registered in the name of the purchaser.
Proving Documentary Title
All deeds comprising the chain of title must be produced. All deeds and other documents
comprising the chain of title should be listed in the order of their dates of execution or issue in
the schedule of documents set out in the application.
Where any of the deeds or other documents are lost or are outside the control of the applicant,
the applicant should:
•
declare by separate declaration the circumstances of their loss or who has control of the
deeds.
•
provide photocopies of lost or missing documents from searches made at the Deeds
Registry annexed to the statutory declaration.
If the application is granted, all the deeds produced are retained by Landgate, except where
only part of the land in the deed is being dealt with. In that case the deed is suitably endorsed
and returned to the applicant.
9.1.7
Survey Requirements
A correct description of the land, the subject of the application, is prepared by the Inspector of
Plans and Surveys. The Inspector considers whether there is sufficient survey information
relative to the land and makes a recommendation to the Commissioner as to whether or not a
survey should be required. A survey, if required, must be carried out by a private registered
surveyor and a Deposited Plan of survey lodged at Landgate.
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9.1.8
Examination of Application
The application is submitted to the Commissioner, who may make requisitions if not satisfied
with the evidence produced. When the Commissioner is satisfied that the application may be
granted, notice of intention to grant the application is published in the Government Gazette and
in a newspaper circulating in the City of Perth or in the neighbourhood of the land.
A copy of the advertisement is sent by certified mail to the owners, occupiers and
encumbrancers of contiguous land. The period of advertising may be not less than two weeks
nor more than twelve months. If, within the advertising period, no caveat against the application
is lodged, a title for the land is prepared, which is later issued to the person entitled to receive it.
Where the application being advertised is an application by possession, a notice in the form of
the Third Schedule to the TLA must be posted on the land, in a position directed by the
Commissioner, for a period of three weeks during the advertising period. The notice or sign
board to be approximately 1 metre x 600 mm in size, with lettering or text in proportion,
erected 2 metres above ground level.
The Commissioner will direct that the notice is to be erected in a position where it is clearly
visible, and readable, by persons going past the property. Proof of posting such notice must be
made in the form of a statutory declaration and a copy of the text of the notice produced as an
exhibit to the declaration (s.24 of the TLA).
9.1.9
Caveat Against Application
Any person claiming an estate or interest in the land may lodge a caveat against the application
under s.30. The subject is fully treated in paragraph 4.2.11. It is important to note that unless
the caveator takes Court proceedings to establish the claim and notifies the Registrar
accordingly within one month of lodging the caveat, the caveat lapses under s.32.
9.1.10
Land Brought under the TLA by Operation of Other Statutes
9.1.10.1
By taking
Land, not under the operation of the Act, when taken for a public work under Part 9 of the LAA
is brought under the operation of the Act by the lodging of a Taking (Ministerial) Order.
A Crown land title (CLT) for the land may be created and registered in the name of the State of
Western Australia. The CLT may subsequently be disposed of or granted to a Crown
Instrumentality or Local Government for whom the land is taken.
9.1.10.2
By acquisition by the Commonwealth
Land, not under the operation of the Act, and in some cases not alienated from the Crown,
when acquired by the Commonwealth under the Lands Acquisition Act 1989 is brought under
the operation of the TLA by publication of a Notice of Acquisition in the Commonwealth Gazette.
On the application of the Commonwealth together with a copy of the Notice of Acquisition, a
certificate of title in the name of the Commonwealth of Australia is created and registered.
It should be noted that land acquired by the Commonwealth under the abovementioned Act is
brought under the operation of the TLA by virtue of s.4 of the Real Property (Commonwealth
Titles) Act 1925 (No 3 of 1925) (WA).
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9.2
Applications for Title by Possession (Adverse
Possession)
9.2.1
How Claim Arises
Land which is already under the operation of the Act may be made the subject of an application
for a title by possession. The applicant must be able to show possession for a period of:
•
twelve years, where it can be proved that the registered proprietor was under no legal
disability at the time of possession commenced (see also paragraph 9.1.2)
or
•
thirty years, where it cannot be proved that the registered proprietor was under no legal
disability at the time possession commenced (see also paragraph 9.1.2).
Where the rights of a registered proprietor have lapsed by adverse possession, the subsequent
strata titling of the land cannot defeat the adverse possessors interest (Murray J, Nickola Petkov
v Lucerne Nominees Pty Ltd (unreported) Supreme Court of Western Australia No 1060 of
1989).
A person may not acquire Crown land by adverse possession (s.36 of the Limitation Act 1935).
9.2.2
How to Apply
It is recommended that a blank instrument Form B2 be used to prepare the application in the
form of the Fourth Schedule to the Act. A modified version of the form is set out below. It should
be noted that the form incorporates a declaration and the signing and witnessing requirements
are similar to those required for applications under s.20 (see paragraph 9.1.3).
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9.2.3
Form of Application
The application should be made in the following form:
WESTERN AUSTRALIA
Page 1 of 2 Pages
TRANSFER OF LAND ACT 1893 (4th Schedule)
Application to be registered as Proprietor by Possession of Land already under the
Transfer of Land Act 1893.
To the Registrar of Titles.
I (insert Name and Address) do hereby apply to be registered as proprietor of All that
land being (insert description of land according to the existing certificate or if a part only
of the land in a title is to be applied for, state the fact and refer to a fully dimensioned
sketch). I claim to have acquired an estate in fee simple in possession in such land
under the circumstances and on the grounds following:
(Here set out a brief narration of the circumstances and grounds of claim, eg: I claim to
have acquired the rights to be registered as the proprietor of the land by virtue of thirty
years continuous possession adverse to the legal owner).
and I declare:
1.
That such land including all buildings and other improvements thereon is of the
value of (number of dollars in words) dollars and no more.
2.
That there are no documents or evidences of title affecting such land in my
possession or control other than those included in the Schedule hereto.
3.
That the said land is occupied (if unoccupied prefix “un” to occupied)
(if occupied add by whom and state the name and address of the occupant
and the nature and period of the occupancy).
4.
That the names and addresses so far as known to me of the occupants of all
lands contiguous to the said land are as follows:
(Here list the contiguous Lots and their Occupants).
5.
That the names and addresses so far as known to me of the owners of all lands
contiguous to the said land are as follow:
(Here list the contiguous Lots and their Owners).
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Page 2 of 2 Pages
Made and subscribed at
)
in the presence of
)
(Signature of Applicant)
(Signature of Witness)
Qualification of Witness
Schedule of documents referred to
(Here list the documents referred to above produced with the application).
The applicant, if in the State, to sign before the Registrar of Titles, an Assistant Registrar of
Titles or any person who, under the Oaths, Affidavits and Statutory Declarations Act 2005, is an
authorised witness for an affidavit made in the State; if out of the State, to sign before any
person who, under the Act, is an authorised witness for an affidavit made out of the State.
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9.2.4
Proving Possessory Title
The proof required to establish title by possession is the same whether the land under
possession is not under the Act or is already registered under the Act.
The following considerations are or may be material:
•
The possession of land must be considered in every case with reference to its peculiar
circumstances. The acts implying possession in one case may be wholly inadequate to
prove it in another.
•
The character and value of the property, the suitable and natural mode of using it, the
course of conduct which the proprietor might reasonably be expected to follow with a due
regard to his or her own interests are all matters, greatly varying as they must under
various conditions, which are to be taken into account.
•
When possession or dispossession has to be inferred from equivocal acts, the intention
with which acts are done is all important.
•
The nature of the property must be looked at and the person alleging rights accruing from
possession must show that acts were done which were inconsistent with the enjoyment of
the land by the true owner for the purpose for which he or she intended to use it.
•
Acts done may be given a more limited effect than otherwise may have been the case if
they may be taken in the circumstances, not as indicating an intention to exclude the true
owner but as indicating an intention merely to produce a special benefit to the person
doing them (for instance, the registered proprietor may have given the applicant
occupation rights rent free on the basis of the maintenance of stock or premises- the
evidence provided must negate any such circumstances).
•
Any act or series of acts showing the open, notorious, exclusive and hostile possession of
one who claims to be the owner of the land may be proved as evidence of adverse
possession, but it is considered that acts of dominion over the land must be so notorious,
exclusive and hostile as to put any ordinary prudent owner, having the opportunity of
observing such acts, on notice of the fact that the lands are in the adverse possession of
another.
•
Where one joint tenant claims against another he or she must prove possession for his or
her own benefit. See Paradise Beach and Transportation Co Ltd and others v Cyril Price
Robinson and others- 1968 [AC] 1072.
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9.2.5
Evidence in Support
The application must be supported by a statutory declaration of the applicant in which should be
set out, in as much detail as possible, the history of the acts of possession.
All of the following points should be covered:
•
the date at which possession commenced
•
the circumstances under which possession was taken
•
the use, in detail, to which the land was put during the period of possession
•
whether the occupation was exclusive
•
whether the occupation was continuous
•
whether the land was completely enclosed by fencing or otherwise, the location and
nature of the fencing, what repairs have been effected and when
•
how entry to and from the land is made and where gates are situated (incorporate a
sketch by a surveyor showing the position of gates and fences)
•
the nature of any improvements on the land, when erected and by whom
•
no payments of rent were made nor was any acknowledgment of ownership given to any
other person
•
where other persons have been in possession of the land, the period and nature of their
possession
•
who has paid the rates and taxes levied on the land (annexing to the declaration as an
exhibit a certificate of the rating authority covering the whole period or as close to the
whole period as the records maintained permit)
•
whether there has been any claim or action at law to recover possession of the land
•
the nature and extent of any easements or covenants affecting the land (conveyancers
should note that the presence of an easement on the land claimed is not necessarily fatal
to the claim, especially where the easement does not extend over the whole of the land
claimed, e.g.: where a right of way exists over part of an area of the land used by the
applicant for grazing purposes);
•
where there has been a series of trespassers and the sum of their possessory rights is
relied upon assignments of those possessory rights must be produced. The assignment
may take the form of a devise in a will in those circumstances where the applicant is the
heir of a deceased trespasser
•
the nature and extent of any encumbrance over the land and the effect of the claim on the
encumbrancer’s rights.
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9.2.6
Encumbrances on Land Claimed
Conveyancers should consider the effect of registered encumbrances on the land claimed by
adverse possession. The presence of an easement over land claimed is as been previously
stated not necessarily fatal to the claim and it may be that the applicant claims the land subject
to the easement and the application should make that clear.
In cases where the adverse possession is claimed by virtue of an encroachment by a building
on land encumbered by an easement it would seem obvious that the intention of the applicant is
to obtain a title free of the easement. In such cases the application should include elements
referring to the abandonment of the rights of the grantees.
In a similar manner, without attempting to set out how such circumstances may arise, the
claimant for a title for adverse possession of land encumbered by a mortgage may make the
claim subject to (and with the consent of) the mortgagee.
Consideration would have to be given to the extent of coverage of the mortgage over the
resultant land parcel should the claim be accepted. An application for adverse possession must
also give a clear indication of the applicant’s desire regarding any caveats or memorials over
the land claimed and how they are to be dealt with.
9.2.7
Confirmation of Possession
The application must be supported by the statutory declaration of at least two disinterested
persons setting out their knowledge of the nature and extent of the acts of possession upon
which the applicant relies.
The declarant should state, preferably in his or her own words, all of the following:
•
his or her age
•
his or her means of knowledge of the land
•
how he or she identifies the land with the land the subject of the application- a sketch by
which he or she identifies the land should be made an annexure to the declaration
•
how long he or she has known the applicant
•
what acts of ownership he or she has observed and over what period
•
the nature of the fencing and its maintenance
•
that he or she is not a relative or business associate of the applicant
•
whether he or she has heard of any other claim being made or litigation being entered
into as to ownership of the land.
As a last resort, when no other person(s) can be found to provide the required declaration(s),
evidence from a business associate or relative may be accepted but the weight of their
evidence will be given limited value.
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9.2.8
Whether a Survey is Required
In most cases an application for a title based on adverse possession must be supported by a
survey carried out by a licensed surveyor to clearly establish the relative positions of
improvements and the boundaries of the land claimed. An exception may be made in cases
where the land is bounded on all sides by a public road, or by other land owned by the applicant
and requests for exemption from the policy should be made in writing to the Commissioner of
Titles.
Where the application is for a whole parcel of land, or the remaining balance of the land in a
certificate of title, a re-establishment survey of that parcel of land must be effected, field notes
lodged and a sketch of the survey presented with the application.
Where the application is for a portion of an adjoining land parcel a survey of only that portion
being claimed is required, with a sketch of the survey presented with the application. If the claim
is proven then a Deposited Plan of survey (with field notes) will need to be lodged
amalgamating the claimed portion with the adjoining land of the applicant.
The sketch to be presented with the application for whole or part parcels must show the true
legal land description, the boundary dimensions and positions of improvements and fencing
(including an estimation of their age and comment about their condition). It is preferable that the
sketch be on A4 size paper.
9.2.9
Examination of Application
The application is submitted to the Commissioner who may make requisitions if not satisfied
with the evidence submitted. If the Commissioner is satisfied that the application may be
granted, a notice of intention to grant the application is published in a newspaper circulating in
the City of Perth or in the neighbourhood of the land. The period of advertising is not less than
two weeks nor more than twelve months.
A copy of the advertisement usually is sent by certified mail to the registered proprietor of the
land the subject of the application and to owners, occupiers and encumbrancers of contiguous
land but this is at the discretion of the Commissioner. If at the end of the advertising period no
caveat against the application is lodged, a title for the land is created and registered and a
duplicate certificate of title (if required) is issued to the person entitled to receive it.
9.2.10
Caveat Against Application
Section 223 of the TLA provides that a caveat may be lodged against the application. The
subject is fully treated in paragraph 4.2.13 but also see s.223A as to the lapsing of the caveat.
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9.2.11
Searching an Application for Adverse Possession
When an adverse possession application is lodged the relevant title is marked subject to
dealing.
It is possible to obtain a copy of the following items from Landgate upon payment of the
prescribed search fee:
•
the adverse possession application
and
•
the accompanying statutory declaration of the applicant(s).
Landgate will not provide a copy of the following:
•
Statutory declarations of disinterested persons that may be filed with the application.
•
The re-establishment survey lodged with the application.
•
Any letters, requisitions and other correspondence between Landgate and the applicant
or the applicant’s solicitor.
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10. General Law, Licences, Deeds
Poll and Applications to Register
Change of Name
This chapter looks at the Deeds System, its indexes including what may be
searched, how documents are lodged under the Registration of Deeds Act
1856, and the memorialisation of licenses, deed polls and applications for
change of name.
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10.1
General Law
10.1.1
Land under the General Law
Any land alienated from the Crown before 1 July, 1875 and not subsequently brought under the
operation of the TLA of 1874 or 1893, is dealt with under the Registration of Deeds Act 1856 (19
VIC No. 14).
A system is provided for the registration of deeds, conveyances and other instruments, wills
and judgements affecting land under the general law. The object is to prevent secret and
fraudulent conveyances and to encourage registration by conferring on a registered instrument
priority over an earlier unregistered one.
The land remaining registered under the Registration of Deeds Act 1856 is confined to the
earlier settled areas of the State and probably constitutes less than one per cent of the land
alienated from the Crown. The land remaining is being reduced yearly by applications to bring
such land under the operation of the TLA.
Some impetus is given to persons to bring land under that Act by the reluctance of purchasers
to accept a title which is not government guaranteed, the expense of the necessary searches to
ascertain the proper owner and the reluctance of lending institutions to make advances on such
land.
10.1.2
Nature of the System
The system comprises:
1.
a copy of each of the original Crown Grants, known as an enrolment;
2.
a nominal index comprising:
•
an index of surnames
and
•
3.
a three volume register of complete names;
an index to land comprising:
•
town lots
•
country locations
and
•
suburban lots;
4.
a journal of encumbrances
5.
a journal of wills
6.
a register of powers of attorney and deeds
7.
a register of memorials for each volume
8.
and
9.
bound volumes of all memorials registered. The volumes are identified by a roman
numeral, each memorial being numbered in sequence within the volume, eg: Book XXVII
No. 1.
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10.1.3
Method of Registration
Registration is effected by lodging with the Registrar of Deeds a memorial of the document to
be registered. Each memorial presented for registration must comply with the regulations made
under the Registration of Deeds Act 1856.
Regulation 3 states:
1.
Every memorial presented for registration shall:
(i)
be prepared on good quality paper approved by the Registrar and having the
dimensions of 330mm x 203mm
(ii)
be clearly and legibly handwritten in ink, printed or typewritten
(iii)
have a binding margin on each page of 51mm free of written, printed or typewritten
matter with the binding margin on the left hand side of the face sheet and on a
corresponding side for all subsequent sheets
and
(iv)
2.
have all writing, printing, type or other matter on the memorial of a sufficient
strength to bear photographic reproduction.
The Registrar may reject from registration a memorial which does not comply with this
regulation.
The memorial is required to be in the following form:
“A memorial is required to be registered of a (nature of document) of which the
following is a copy.”
Then follows a complete copy of the document:
“and this memorial is required to be registered by (full name) clerk to (name of
solicitor) of (address of solicitor). Dated this ......... day of ......... 20
Signed by the said
)
(full name)
) (signature)
in the presence of
)
Witness
(Full Name, Address and Occupation)”
Where the request to register is signed by a person other than a legal practitioner the signature
must be attested by an adult witness who is required to state his or her address and occupation.
The original deed must be produced at the time of lodging the memorial and is later returned
noted with the following registration certificate:
“Received a memorial of the within (nature of document) at ...... o’clock this ......
day of ...... 19 and registered in book .......... No ..........
(signature)
Registrar of Deeds”
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10.1.4
Form of Conveyance
The Property Law Act 1969 (Fourth Schedule) provides for a short form of conveyance in the
following form:
Conveyance
This Deed made this ............... day of ................ 20........ . Between AB of (address
and occupation) of the one part and CD of (address and occupation) of the other
part Witnesseth that in consideration of the sum of (dollars) paid by the said CD to
the said AB (the receipt whereof is hereby acknowledged) the said AB as beneficial
owner (if it is not intended to include the usual covenants for title, omit the words
beneficial owner) hereby conveys to the said CD in fee simple (or as the case
may be) all that piece of land being (description of land)
Signed by the said
AB in the presence of
Section 37 of the above Act gives power for the owner of land to dispose of the land by deed
without using words of inheritance. For deeds executed after 1 August, 1969 the words and his
heirs are no longer required to effectively pass the fee simple.
Subdivision can only be achieved by a sketch on a deed of conveyance. A plan or diagram
cannot be approved for land under the system. Such a sketch must meet the requirements of
Landgate and the provisions of the P&D Act.
10.1.5
Effect of Registration
Registration under the Registration of Deeds Act 1856 neither cures any defect nor passes any
estate. The only effect of registration is to secure priority. Section 3 provides that deeds
have priority one over the other according to the priority of their respective dates of registration.
Deeds or other instruments not registered may be rendered null and void by the prior
registration of an instrument entered into for value and in good faith.
The registration of instruments enables secondary evidence to be available in the case of loss
or destruction of the original registered document. A certified copy of a memorial issued by the
Registrar of Deeds is receivable in any Court as conclusive evidence of the contents of the
original instrument.
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10.1.6
Satisfaction of Mortgages
The usual method of discharging general law mortgages is by reconveyance. Section 11 of the
above Act provides an alternative method. A Certificate of Satisfaction may be produced
showing that the whole of the moneys due have been paid. This certificate is signed by the
mortgagee, his or her personal representative or attorney and attested by two witnesses. The
certificate must contain the names and addresses of the original parties, the date of the
instrument, the sum thereby secured and the time or times of payment. A receipt for the
Certificate of Satisfaction is issued by the Registrar of Deeds as proof of registration. This
method is not in general use.
10.1.7
Searches in the Register
The Register containing the memorials is open to public search on payment of the prescribed
fees. The registration of any instrument is notice of all facts, circumstances and particulars
referred to in the memorial. A person who omits to search the register is therefore deemed to
have notice of all that would have been discovered if it had been searched (s.16).
A person making a search needs to know one of the following:
•
the full name of the registered proprietors
•
the description of the land, eg: Avon Location U
or
•
the registered number of any memorial in the chain of title.
For a person who only has one or both of the first two information items listed above, there are
two sets of indexes to facilitate the location of the desired chain of ownership documents. The
indexes are called the nominal index and the land indexes.
10.1.7.1
Nominal Index
The nominal index of surnames gives a page number or numbers in the nominal index of
whole names on which all persons having the same surname are shown. The page or pages
must be carefully checked for the required name and likely derivations of that name, eg: Ann,
Anne. Against each name is a reference to all the memorials in which that name appears.
The reference shows first the volume, as a roman numeral, secondly, a number beneath the
roman numeral (indicating a page number in the register of memorials for that volume) and
thirdly the number of the memorial itself within the volume, eg: XXVII/10 101.
The searcher may then proceed either by searching the register of memorials for each volume,
where limited detail is shown, or by searching each of the memorials.
10.1.7.2
Land Index
The index to land is divided into three sections, Country, Town and Suburban. Within the
sections the index is nominal and against each location or lot is recorded the number (in the
manner shown above) of all memorials registered against the land.
Persons making a search can expect no assistance beyond being shown where the relevant
registers are and must draw their own conclusions as to the ownership of any particular piece of
land. The lands contained in this Register do not enjoy the backing of a government guarantee.
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10.2
Licences, Deeds Poll and Applications to Register
Change of Name
10.2.1
Licences to Change Name
Licences to change name issued under the Change of Names Regulation Act 1923 issued in
the period from 1923 to 2 November, 1989 were memorialised and lodged for registration with
the Registrar of Deeds under the Registration of Deeds Act 1856. From the 2 November, 1989
the licences were registered in the office of the Registrar of Births Deaths and Marriages and for
administrative convenience, all the licences registered at Landgate from 31 January, 1957 to 2
November, 1989 were physically relocated to that Office.
An index of licences filed between 1923 and 31 January, 1957 is held in the Deeds Office and a
microfilm copy is held in the Document Filing Section in the Customer Service Centre in the
Landgate building in Midland. The licences held in Landgate are available for public searching,
and certified copies may be obtained.

Note:
Because of the repeal of the Change of Names Regulation Act 1923 on 14 April 1999, the
Registrar of Births, Deaths and Marriages will no longer accept licences for registration from that
date.
From the above-mentioned date, it is now possible to formally change a name by registration of
that name at the office of the Registrar of Births, Deaths and Marriages and receive a certificate
issued under s.57 of the Birth, Deaths and Marriages Act 1998 (see paragraph 10.2.3).
10.2.2
Deeds Poll
An adult person desiring to renounce the use of his or her present name and assume another
name could do so under the Change of Names Regulation Act 1923 by executing a deed poll
and registering a memorial of that deed poll under the Registration of Deeds Act 1856. From
the 2 November, 1989 the deeds poll were registered in the Office of the Registrar of Births,
Deaths and Marriages and for administrative convenience, all the deeds poll registered at
Landgate from 31 January, 1957 to 2 November, 1989 were physically relocated that Office.
An index of deeds poll filed between 1923 and 31 January, 1957 is held in the Deeds Office and
a microfilm copy of the index of memorials filed from 1957 to 1989 is held in the Document
Filing Section in the Customer Service Centre in the Landgate building in Midland. The deeds
poll held in Landgate are available for public searching and certified copies may be obtained.

Note:
Because of the repeal of the Change of Names Regulation Act 1923 on 14 April 1999, the
Registrar of Births, Deaths and Marriages will no longer accept deeds poll for registration from
that date.
From the above-mentioned date, it is now possible to formally change a name by registration of
that name at the office of the Registrar of Births, Deaths and Marriages and receive a certificate
issued under s.57 of the Births, Deaths and Marriages Act 1998 (see Chapter 10.2.3 below).
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10.2.3
Application to Register Change of Name
On the 14th April 1999 the Births, Deaths and Marriage Act 1998 (the Act) was proclaimed. This
Act provides a process and a form by which a person’s name may be changed by the
registration of that change under Part 5 and recorded in the Register referred to in s.49 (1) of
the Act. The form is available from the Registry of Births, Deaths and Marriages and is titled
Application to Register Change of Name.
A certificate certifying the change of name particulars contained in the Register maintained by
the Registrar of Births, Deaths and Marriages will be issued by the Registrar under s.57 of the
Act.
Under s.36 of the Act a person is not prevented from establishing a change of name by repute
or usage where the change is made after the commencement of the Act. However, applicants
who are permanently residing in Western Australia may prefer to obtain the above-mentioned
certificate from the Registrar of Births, Deaths and marriages certifying the change of name
particulars because other authorities (e.g. the Passport Office) may require documentary proof
of the person’s correct name.
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11. Charges, Notifications and
Memorials
This chapter details information relating to charges, notifications and memorials,
how they are lodged, and subsequently withdrawn or removed. These statutory
notices are created for different purposes under different legislative provisions.
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11.1
General
The documents dealt with in the following paragraphs, when noted in the Register, have the
effect of delaying or preventing registration of instruments dealing with the land affected or
forcing an acknowledgment of a statutory interest in the land. In every case the memorandum is
not noted on the duplicate certificate of title (if any).
11.2
Charges
11.2.1
Bankruptcy Act 1966 (Commonwealth Legislation)
The Bankruptcy Act 1966 (the Act) provides that the remaining assets, including real property,
of bankrupt persons, be vested in a trustee. The trustee chosen may be either a public official,
known as The Official Trustee in Bankruptcy, or a private (although professionally qualified)
person registered with Insolvency and Trustee Service Australia as a Trustee in Bankruptcy.
Either trustee must apply under s.234 of the TLA, on a Form A5, to be registered as the
proprietor of the property. The method of application is set out in paragraph 3.4.5 of this
manual.
Section 139ZN of the Act authorises the creation of a charge on the property of any person who
owes the bankrupt person a debt for personal services. Section 139ZR of the Act authorises the
creation of a charge on any property sold by the bankrupt to a person by a transaction later
declared void.
Both charges have effect from the time lodged and may have priority over any previous charge
or encumbrance in favour of an associated entity of the bankrupt. Both charges create a
power for the trustee to sell the property. Registration of the charge is achieved when a
certificate signed by the Official Receiver containing all the relevant information, such as
property details, registered proprietor, amount of debt and date when repayment is due, is
lodged with Landgate.
The charge does not prevent the registration of any other instrument creating an interest in or
disposing of the land, but it must be shown in the Limitations, Interests, Encumbrances and
Notifications panel. By acknowledging the charge as an encumbrance any subsequent
transferee or mortgagee is bound by its provisions.
The charge may be removed on the application of the registered proprietor on a Form A5,
supported by evidence proving that the debt has been paid or set aside.
If the debt is not paid the Official Trustee or the Trustee in Bankruptcy may sell the land and
register a transfer on a modified Form T4, supported by evidence that sufficient notice has been
given to the registered proprietor to repay the debt.
Section 249A of the Act creates a charge on land where a (deceased) bankrupt has spent
money on property improvements. The charge takes effect from the time of lodgement, but may
be postponed by the lodgement of a bona fide charge for value or a bona fide sale for value in
favour of any person who had no notice of the bankruptcy charge. The charge is in other
respects similar to a charge created under s.139ZN and 139ZR of the Act.
The normal Registration fees are levied for the lodgement and withdrawal of these charges.
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11.2.2
The Health Act 1911
Where a Local Government has expended money on behalf of an owner of land, either by
agreement with or on the default of the owner, the money so expended is a charge upon the
land until repaid.
A charge prepared in the manner prescribed by the Registration, Enforcement and Discharge of
Local authority charges on Land, Regulations and pursuant to the Health Act 1911 (s.372(4)), is
presented for registration.
Forms C and D of the above regulations and the statutory declaration of the Clerk of the Local
Government annexing form A, comprise the complete charge.
A memorandum of the charge is entered on the title and the charge remains an encumbrance
against the land until withdrawn. It is similar in effect to a subject to claim caveat and may be
noted in the Limitations, Interests, Encumbrances and Notifications panel of an instrument,
provided that such regulations shall not authorise any land to be sold except pursuant to an
order of the Magistrates Court. The registered proprietor is notified by the Registrar of Titles of
the charge by a notice as prescribed in form E of the above regulations.
Removal
On the application of the registered proprietor made in the form prescribed by the above
regulations (form I), accompanied by a memorandum of satisfaction of the charge (form H),
signed by the Clerk of the Local Government, an entry is made in the Register removing the
charge as an encumbrance.
The normal Registration fees are levied on both lodging and removing a charge.
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11.3
Notifications
11.3.1
General
A Notification is a document that is lodged against a certificate of title to give notice of factors
that affect the use and enjoyment of land.
Notifications will be endorsed in the Second Schedule of the relevant Title.
Notifications are to be shown in the Limitations, Interests, Encumbrances and Notifications
panel of any subsequent document.
Notifications are not encumbrances because they do not fall within the definition of an
encumbrance under s.4 of the TLA. Accordingly, notifications will not:
•
be required to be removed from lots or portions of lots that are vested to the Crown under
the provisions of s.152 of the P&D Act (formerly s.20A of the TP&D Act)
•
prevent a mortgagee sale occurring and will not be required to be removed before the
power of sale transfer is registered
or
•
11.3.2
prevent the registration of any other instrument.
Local Government (Miscellaneous Provisions) Act 1960 (Section
364 (2))
A local law made under the Local Government Act 1995 may prescribe a new street alignment
for a street or part of a street for the purpose of extending the width of the street or part of the
street to the new street alignment.
Where the local government by local law so prescribes a new street alignment, it shall
immediately the local law is no longer liable to be disallowed by Parliament, cause written notice
of the new street alignment to be served on the owners of land affected thereby and cause
notice of the local law to be served on the Registrar of Titles / Registrar of Deeds.
Notice is served on the Registrar of Titles or Registrar of Deeds by lodging a Notification and
attaching to it a true copy of the New Street Alignment Notice given to the registered proprietor
pursuant to s.364 (2) of the Local Government (Miscellaneous Provisions) Act 1960.
For further information on notifications generally see paragraph 11.3.1.
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11.3.3
Environmental Protection Act 1986 (Sections 65, 68A and 70)
The Environmental Protection Act 1986 (in this paragraph referred to as the Act) has as its aim
the prevention, control and abatement of pollution and environmental harm, for the
conservation, preservation, protection, enhancement and management of the environment.
The administration of the Act is (subject to the direction of the Minister) vested in the
Environmental Protection Authority, and the Authority may delegate powers pursuant to s.19 of
the Act to any person and the names of persons so appointed shall be published in the
Government Gazette.
The Act allows the CEO of the Environmental Protection Authority to issue any of the following
notices to the owner or occupier of land:
11.3.3.1
Environmental Protection Notice (Section 65)
Section 65 of the Act authorises the issue and service of an Environmental Protection Notice
(formerly known as a Pollution Abatement Notice, see paragraph 11.4.11) on the owner or
occupier of any premises emitting any waste, noise, odour or electromagnetic radiation into the
environment that causes pollution.
The notice specifies the measures required to prevent, control or abate the emissions.
Closure Notice (Section 68A)
When an authorisation is given to do something and the CEO of the Environmental Protection
Authority considers that as a result of anything that has been done or has happened before the
expiry or revocation of the authorisation:
•
ongoing investigation
•
monitoring
or
•
management
is or will be required at the premises following that expiry or revocation, the CEO may cause a
Closure Notice under s.68A of the Act to be given in respect of the premises. The notice
specifies the action to be taken.
11.3.3.2
Vegetation Conservation Notice (Section 70)
Section 70 of the Act authorises the CEO of the Environmental Protection Authority to issue a
Vegetation Conservation Notice to ensure that no unlawful clearing, or no further unlawful
clearing takes place on land.
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11.3.3.3
Notification document
Section 66 of the Act provides for a copy of a notice under Sections 65, 68A or 70 of the Act to
be delivered to Landgate for registration on the title for freehold land, on a Crown lease, in the
Deeds Office for Old System land and on a Crown land title for Crown land. A true copy of the
notice is to be attached to a Notification document. The Notification document makes reference
to all three of the above-mentioned notices. The relevant notice is selected by deleting
reference to the other two.
The Notification Environmental Protection Act 1986 form can be downloaded from Landgate’s
corporate website in Quick Links/ Forms and Fees/ Freehold Land Registration Forms.
Where the Notification is shown in the Limitations, Interests, Encumbrances and Notification
panel of an instrument or dealing relating to the land, the notification will not prevent the
registration of the instrument or dealing. The consent of the Environmental Protection Authority
is not required.
A Landgate registration fee is not payable upon lodgement of the Notification document.
11.3.3.4
Amendment of Notification document
A notice that has been sent under Sections 65, 68A or 70 of the Act may need to be amended.
If a Notification document has already been lodged with regard to the original notice, an
Amendment of Notification document can be lodged so that the amended notice becomes part
of the Register.
An Amendment of Notification form can be downloaded from Landgate’s corporate website in
Quick Links/ Forms and Fees/ Freehold Land Registration Forms. This form is to contain a copy
of the amended notice.
A Landgate registration fee is not payable upon lodgement of the Amendment of Notification
document.
Revocation of Notification document
A Notification lodged under Sections 65, 68A or 70 of the Act is removed by the lodgement of a
Revocation of Notification document. A Revocation of Notification form can be downloaded from
Landgate’s corporate website in Quick Links/ Forms and Fees/ Freehold Land Registration
Forms
A Landgate registration fee is not payable upon lodgement of the Revocation document.
For further information on notifications generally see paragraph 11.3.1.
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11.3.4
Kambalda Water and Wastewater Facilities (Transfer to Water
Corporation) Act 2004
The Kambalda Water and Waste Facilities (Transfer to Water Corporation) Act 2004 (in this
paragraph referred to as the Act) transferred ownership of the Kambalda Water and Wastewater
Facilities and certain associated rights to the Water Corporation.
11.3.4.1
Background
After Western Mining Corporation found nickel nearby Kambalda in the late 1960’s they
provided the infrastructure for the town including the water and wastewater facilities.
Unfortunately not all the water and wastewater facilities were constructed to current standards,
and as a result the location of these facilities cannot be guaranteed. In parts of the town, pipes
may be close to or under houses and some to these residences have been identified as
Impaired Enjoyment of Land.
This impairment is due to possible building / development restrictions as a result of the
positioning of the water and wastewater facilities.
11.3.4.2
Notification
Section 16 of the Act requires that any lot or parcel of land in the Kambalda Area (as defined in
the Act) have a notification placed on the title. The notification is to give notice that pipes, works
and other things, as set out in the Act may be on, in, over or under the land.
Where the Notification is shown in the Limitations, Interests, Encumbrances and Notification
panel of an instrument or dealing relating to the land, the notification will not prevent the
registration of the instrument or dealing.
11.3.4.3
Removal or Amendment
Under s.21 of the Act the notification may be removed or amended by the Water Corporation. A
form has been created for this purpose. For further information on notifications generally see
paragraph 11.3.1.
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11.3.5
Planning and Development Act 2005 (Section 165)
Section 165 of the P&D Act provides for the recording of information on title where the Western
Australian Planning Commission considers it desirable that the owners of land be made aware
of hazards or other factors seriously affecting the use or enjoyment of such land. The land
affected by such notice is described as land:
•
Comprised in a deposited plan of survey
or
•
11.3.5.1
Comprised in a strata scheme or proposed strata scheme presented to the Commission
for approval under s.25 of the STA.
Notification
The legislation provides for the Commission to lodge a notification in a form acceptable to the
Registrar of Titles. The Notification Under Section 165 of the P&D Act form can be downloaded
from Landgate’s corporate website in Quick Links/ Forms and Fees/ Freehold Land Registration
Forms. The notification provides for a statement of the hazard or other factors seriously
affecting the use of the land.
Where the notification is shown in the Limitations, Interests, Encumbrances and Notifications
panel of an instrument or dealing relating to land, the notification will not prevent the registration
of that instrument or dealing.
11.3.5.2
Withdrawal of Notification
A notification lodged under s.165 of the P&D Act is removed by the lodgement of a withdrawal
of notification in a form acceptable to the Registrar of Titles. A Withdrawal of Notification form
can be downloaded from Landgate’s corporate website in Quick Links/ Forms and Fees/
Freehold Land Registration Forms.
Registration fees are payable on lodgement and withdrawal of these notifications.
For further information on notifications generally see paragraph 11.3.1.
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11.3.6
Planning and Development Act 2005 (Section 180)
Where the proprietor(s) of land is injuriously affected by the reservation of land for a public
purpose in a planning scheme, they may in certain circumstances be entitled to receive
monetary compensation from the Responsible Authority under s.177 of the P&D Act.
11.3.6.1
Notification
When compensation for injurious affection to any land has been paid under s.177 of the P&D
Act, the legislation provides for the Responsible Authority to lodge a notification in a form
acceptable to the Registrar of Titles or the Registrar of Deeds. The Notification- Section 180 of
the P&D Act form can be downloaded from Landgate’s corporate website in Quick Links/ Forms
and Fees/ Freehold Land Registration Forms.
The notification sets out:
•
The description of the land affected
•
The name and address of the Registered Proprietor(s)
•
The name of the Responsible Authority
•
Details of the injurious affection
•
Amount of compensation paid
•
Date of payment of compensation
and
•

The proportion (%) which the compensation bears to the unaffected value of the land as
assessed under s.179 (2) of the P&D Act.
Note:
Responsible Authority as defined in s.4 of the P&D Act means the Western Australian Planning
Commission or a local government.
Where the notification is shown in the Limitations, Interests, Encumbrances and Notifications
panel of an instrument or dealing relating to land, the notification will not prevent the registration
of that instrument or dealing. The consent of the Responsible Authority is not required.
11.3.6.2
Withdrawal of Notification
A notification lodged under s.180 of the P&D Act is removed by the lodgement of a withdrawal
of notification. A Withdrawal of Notification form can be downloaded from Landgate’s corporate
website in Quick Links/ Forms and Fees/ Freehold Land Registration Forms.
Registration fees are payable on lodgement and withdrawal of these notifications.
For further information on notifications generally see paragraph 11.3.1.
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11.3.7
Planning and Development Act 2005 (Section 181)
Where:
compensation for injurious affection to any land has been paid under s.177 of the
P&D Act
and
as a result of the planning scheme being amended or revoked, the reservation of
the land for a public purpose is revoked or the area of the land the subject of the
reservation is reduced,
the Responsible Authority (i.e. the WAPC or a local government) is entitled to recover from the
owner of the land at the date of the revocation or reduction an amount (a refund) which is
determined by a calculation formula set out in the P&D Act (see also paragraph 11.3.5).
11.3.7.1
Notification
When the Responsible Authority is entitled to recover an amount (a refund) for compensation
paid, the legislation provides for the lodgement of a notification in a form acceptable to the
Registrar of Titles or the Registrar of Deeds.
The Notification- Section 181 of the P&D Act form can be downloaded from Landgate’s
corporate website in Quick Links/ Forms and Fees/ Freehold Land Registration Forms.
The notification sets out:
•
The description of the land affected
•
The name and address of the Registered Proprietor(s)
•
The name of the Responsible Authority
and
•
Details of the revocation or reduction;
Before selling or subdividing the land in respect of which a notification under s.181 is lodged,
the owner is to give written notice to the Responsible Authority, in accordance with the
regulations, of the owner’s intention to sell or subdivide the land.
Where a notification under s.181 of the P&D Act is registered, the land may not be transferred
without the consent of the Responsible Authority.
11.3.7.2
Withdrawal of Notification
A notification lodged under s.181 of the P&D Act is removed by the lodgement of a withdrawal
of notification in a form acceptable to the Registrar of Titles.
A Withdrawal of Notification form can be downloaded from Landgate’s corporate website in
Quick Links/ Forms and Fees/ Freehold Land Registration Forms.
Registration fees are payable on lodgement and withdrawal of these notifications.
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11.3.8
Town Planning and Development Act 1928 (Section 12A)
Section 12A of the TP&D Act provided for the recording of information on title where the
Western Australian Planning Commission considered it desirable that the owners of land be
made aware of hazards or other factors seriously affecting the use or enjoyment of such land.
The land affected by such notice was described as land:
Comprised in a deposited plan of survey
or
Comprised in a strata scheme or proposed strata scheme presented to the
Commission for approval under s.25 of the STA.
11.3.8.1
Notification
The legislation provided for the Commission to lodge a notification in a form acceptable to the
Registrar of Titles or the Registrar of Deeds.
The notification provided for a statement of the hazard or other factors seriously affecting the
use of the land.
Where the notification is shown in the Limitations, Interests, Encumbrances and Notifications
panel of an instrument or dealing relating to land, the notification will not prevent the registration
of that instrument or dealing.
11.3.8.2
Withdrawal of Notification
A Notification lodged under s.12A of the TP&D Act was removed by the lodgement of a
withdrawal of notification.
Registration fees were payable on lodgement and withdrawal of these notifications.
For further information on notifications generally see paragraph 11.3.1.

Note:
With the proclamation of the P&D Act on 9 April 2006, the TP&D Act was repealed. As a result
notifications under s.12A of the TP&D Act are no longed lodged. They have been replaced by a
notification under s.165 of the P&D Act (see paragraph 11.3.5).
Any notification under s.12A of the TP&D Act shown in the second schedule of a land title is
deemed to be a notification under s.165 of the P&D Act.
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11.3.9
Transfer of Land Act 1893 (Section 70A)
11.3.9.1
Notification
Where a Local Government or Public Authority considers it desirable that a proprietor or
prospective proprietor be made aware of factors affecting the use and enjoyment of the land,
they may, on payment of the prescribed fee, cause a notification to be lodged with the Registrar
setting out those factors. Form N1 is available for this purpose.
The registered proprietor is a party to the notification. No consent is required from any other
person who may have an interest in the land.
11.3.9.2
Modification or Removal
The Local Government or Public Authority together with the proprietor of the land may, on
payment of the prescribed fee, request that the Registrar of Titles modify or remove the
notification on a Form N2.
For further information on notifications generally see paragraph 11.3.1.
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11.4
Memorials
11.4.1
Aboriginal Heritage Act 1972
The Aboriginal Heritage Act 1972 (in this paragraph referred to as the Act) has, as its aim, the
preservation of sites and material of cultural significance to the Aboriginal population. Subject to
the direction of the Minister, responsibility for the administration of the Act is vested in the
Trustees of the Western Australian Museum.
The Museum Act 1969 created the Trustees of the Western Australian Museum as a body
corporate with perpetual succession and a common seal and the power (among other things) to
acquire, hold and dispose of real property. The common seal may only be used by authority of a
resolution of the trustees in the presence of the Chairperson or Vice Chairperson.
With the consent of the Minister, the Trustees may delegate all their powers under the Act
(except the power of delegation) to any person. Many delegations have been made to the
Director of the Museum, a statutory position created by the legislation.
Section 27 of the Act authorises the creation of a covenant by a person with an interest in land
on which an aboriginal site is located, with the Trustees of the Western Australian Museum. The
covenant may be permanent or for a specified period and prohibits any development of the site
that would have a deleterious affect on it. The consent of any mortgagee or chargee (annuitant)
of the land is required. The covenants may be registered, modified and discharged in
accordance with the provisions of Division 3A of the TLA (if the land is held in a title).
The covenant does not restrict any dealing on the land but must be noted in the Limitations,
Interests, Encumbrances and Notifications panel of any instrument (where there is one) which is
creating or transferring any interest in it. By acknowledging the covenant as an encumbrance,
the successive owners and encumbrancers of the land are bound by its provisions.
Registration fees are payable on lodgement and withdrawal of these memorials.
11.4.2
Agriculture and Related Resources Protection Act 1976
In basic terms the Agriculture and Related Resources Protection Act 1976 (in this paragraph
referred to as the Act) provides methods for dealing with vermin and weeds in farming areas.
Administration of the provisions of the Act is provided from two sources:
•
the Chief Agriculture Protection Officer, and a number of deputies
and
•
the Agriculture Protection Board, a body corporate created by the Agriculture Protection
Board Act 1950 with perpetual succession and common seal, and the power, (among
other things) to purchase, hold and dispose of real property.
Both the Minister and the Agriculture Protection Board may delegate powers to the Chief
Agriculture Protection Officer. No signatures or seal holders of the Agriculture Protection Board
are designated by the Act and any document sealed using the common seal and countersigned
by one or more members of the Board (the term members includes the Chairperson) will be
accepted for registration. The legislation also permits the Chairperson of the Board or an
authorised officer to sign any notice, order or other document.
Outstanding Agriculture Protection Board Rates (commonly called vermin tax) are secured and
recovered by the system used in the Taxation Administration Act 2003, as authorised by s.63 of
the Act.
Details of the system of memorials, charges and transfers created under the Taxation
Administration Act 2003 are shown in paragraph 11.4.27.
Registration fees are payable on lodgement and withdrawal of these memorials.
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11.4.3
Contaminated Sites Act 2003
The Contaminated Sites Act 2003 (the Act) and its Regulations came into effect on 1 December
2006. The object of this Act is to protect human health, the environment and environmental
values by providing for the identification, recording, management and remediation of
contaminated sites in the State of Western Australia.
In the Act the term site means an area of land and includes underground water under that land
and surface water on that land.
In order to gather information on the location of contaminated sites, the Act introduces
mandatory reporting of known or suspected contaminated sites by the following people:
•
an owner or occupier of the land
•
a person who caused, or contributed to, the contamination
•
a contaminated sites auditor engaged to report on the site in accordance with the Act.
The Department of Environment and Conservation will classify sites reported to it based on the
risk the sites pose to human health and the environment.
11.4.3.1
Lodgement of Memorials against land
Section 58 of the Act provides for the lodgement of memorials against land in the following
circumstances:
Under s.58(1) (a) (i) of the Act provision is made for the registration of a memorial on the
certificate(s) of title for land that has been classified as:
Contaminated - remediation required
Contaminated - restricted use
Remediated for restricted use
or
Possibly contaminated - investigation required
Under s.58(1) (a) (ii) a memorial is to be lodged when a statutory notice under Part 4 of the Act
has been given.
Under s.58(1) (b) a memorial is to be lodged where a charge has been placed on the land in
favour of the State or a public authority.
To cover all of the above circumstances, four separate memorials have been created. The
effect of each of these memorials will now be considered separately.
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11.4.3.2
Memorial (Contaminated Site - Remediation Required)
If a site is classified as Contaminated_ Remediation Required, the Department of Parks and
Wildlife (DPaW) can lodge the above-mentioned memorial to bar the registration of any
subsequent instruments, unless the written consent of the chief executive officer of DPaW is
obtained and filed with the document to be lodged.
DPaW also has the option to lodge a memorial that does not bar the registration of instruments
on land classified as Contaminated_ Remediation Required. In this case they will lodge the
generic memorial shown immediately below the following note.
A Memorial - Contaminated Site Remediation Required form has been created and can be
downloaded from Landgate’s corporate website in Quick Links/ Freehold Land Registration
Forms.

Note:
DPaW knows that it is their responsibility to choose the correct form when dealing with the
above site classification. Registration Officers do not need to check whether the intention is to
bar registration or not.
11.4.3.3
Memorial
This is a generic Memorial form for all site classifications under s.58(1) (a) (i) including
Contaminated– Remediation Required where registration of subsequent dealings is not
prevented (see the note above).
This memorial type is not a bar to the registration of any instruments. It merely needs to be
shown in the Limitations, Interests, Encumbrances and Notifications section of the document
(where there is one) that is lodged for registration.
11.4.3.4
Memorial (Notice under Part 4)
Under s.58(1) (a) (ii) a memorial is to be lodged when a statutory notice under Part 4 of the Act
has been given. This has to do with investigation, clean up and hazard abatement notices that
DPaW sends out to owners and occupiers of land when a site is classified Contaminated Remediation Required.
This memorial contains information concerning the notices that DPaW has sent out with regard
to land that may be contaminated. The purpose of this memorial is merely to give notice to
those who may want to deal with the land.
This memorial type is not a bar to the registration of any instruments. It merely needs to be
shown in the Limitations, Interests, Encumbrances and Notifications section of the document
(where there is one) that is lodged for registration.
A Memorial - Contaminated Sites Notice Under Part 4 form has been created and can be
downloaded from Landgate’s corporate website in Quick Links/ Freehold Land Registration
Forms.

Note:
Section 58(7) of the Act states that a memorial registered in respect of a notice under Part 4
retains its priority in relation to all other mortgages, charges and encumbrances on that land
despite amendment of the notice under s.46 of the Act.
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11.4.3.5
Memorial (Charge)
Under s.58(1) (b) a memorial is to be lodged where a charge has been placed on the land in
favour of the State or a public authority sections 30(3)(b), 31(3)(b) or 32(2) of the Act. This is to
secure payment for actions taken to investigate and remediate those sites.
A charge on land for the benefit of the State, or a public authority under the above sections:
•
ranks equally with any other charge on the land created by any other Act and before any
other encumbrance on the land, whether created or arising before or after the charge was
created
and
•
remains on the land despite any disposal of the land, and will survive a mortgagee’s
power of sale.
This memorial type is not a bar to the registration of any instruments. Unless satisfied, it must
be shown in the Limitations, Interests, Encumbrances and Notifications section of a document
(where there is one) that is lodged for registration.
A Memorial - Contaminated Sites Charge form has been created and can be downloaded from
Landgate’s corporate website in Quick Links/ Freehold Land Registration Forms.
11.4.3.6
Memorial lodged against part of the land in a Certificate of Title
If a memorial is to be lodged against only part of the land in a title a Deposited Plan for Interest
Purposes Only will need to be lodged, unless there is already a suitable special definition for
that piece of land. The Deposited Plan must be lodged and put in order for dealings before
lodgement of the memorial. The land description in the memorial must refer specifically to the
piece of land defined and depicted in the Deposited Plan. Upon lodgement and processing of
the memorial the legal status of the plan will change to Approved.
11.4.3.7
Withdrawal of Memorial
A Withdrawal of Memorial form has been created and can be downloaded from Landgate’s
corporate website in Quick Links/ Freehold Land Registration Forms.
11.4.3.8
Other Relevant Information
All of these memorials and the withdrawal of memorial are to be executed by a delegate of the
Chief Executive Officer of the Department of Environment and Conservation under s.91 of the
Act.
All four memorial forms and the withdrawal of memorial form have an information panel (the
third panel down) that must be completed by DPaW at the time of lodgement. What goes into
this panel is up to DPaW but it must not be left blank.
If a memorial has been lodged and there is a change in classification of the site, the memorial
needs to be withdrawn and a new memorial, showing a change in classification needs to be
lodged. The written consent of the registered proprietor to the lodgement of any of these
memorials is not required.
It is possible that more than one memorial type is lodged against the same land. For example, a
Memorial (Contaminated Site_ Remediation Required), Memorial (Notice under Part 4) and a
Memorial (Charge) could all be lodged at different times over the same land.
Standard Registration fees apply to the lodgement and withdrawal of any of the memorials
under this Act.
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11.4.4
Country Areas Water Supply Act 1947
The administration of the Country Areas Water Supply Act 1947 (in this paragraph referred to as
the Act) is vested in the Minister and the Water Authority of Western Australia, a body corporate
created by the Water Authority Act 1984, with perpetual succession and a common seal. The
WAWA may (among other things) hold and dispose of real property. The Act authorises
delegation of power, both to officers of the staff and to local Governments.
The Act contains a series of provisions aimed at controlling the clearing of land in water
catchment areas, to preserve the quality of the water collected.
Section 12BA of the Act authorises the lodgement of a memorial at Landgate to give notice that
unlawful clearing has occurred on the land specified in the notice, and give warning that an
order for the restoration of the land is liable to be made.
Section 12BB of the Act authorises the lodgement of a memorial at Landgate containing the
details of a restoration order.
Section 12EA of the Act authorises the lodgement of a memorial at Landgate containing notice
that compensation has been paid to a land owner for injurious affection.
The memorials are registered on the title for freehold land, on Crown leases, in the Deeds
Office for Old System land and on a Crown land title for Crown land.
All of the above-mentioned memorials may be removed by the Minister or a person with
delegated authority.
These memorials do not restrict any dealing on the land but must be noted in the Limitations,
Interests, Encumbrances and Notifications panel (where there is one) of any instrument creating
or transferring an interest in it. By acknowledging the memorial as an encumbrance the
successive owners and encumbrancers of the land are bound by its provisions.
No registration fees are payable either to lodge these memorials or to remove them.
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11.4.5
Memorial of Advertisement for Unpaid Water Rates
Section 93 of the Act authorises the lodgement of a memorial of advertisement with the
Registrar of Titles or Registrar of Deeds. The memorial must include a full page of the
newspaper advertisement offering the affected land for sale by public auction, to raise funds to
repay water rates that have remained unpaid for five years or longer.
The memorial may be removed up to the time of the actual sale by the payment of the
outstanding rates and if this occurs a certificate signed by an authorised officer of the Water
Corporation, certifying that the rates and charges have been paid, and lodged with the
Registrar, is sufficient to remove the memorial as an encumbrance. If not removed and a
transfer is not lodged within twelve months, the memorial ceases to have any effect on the title.
Although the legislation is not specific about the effect of a current memorial of advertisement
on dealings on the land in the title, in practice the presence of the memorial prevents the
registration of any dealings other than a transfer by the Minister.
Registration fees are payable on the lodgement and withdrawal of these memorials and on the
registration of the transfer.
11.4.6
Country Towns Sewerage Act 1948
The administration of the Country Towns Sewerage Act 1948 (in this paragraph referred to as
the Act) is vested in the Minister, and the Water Authority of Western Australia, a body
corporate created by the Water Authority Act 1984, with perpetual succession and a common
seal. The WAWA may (amongst other things) hold and dispose of real property. The Act
authorises delegations of power, both to officers of the staff and to Local Governments. The
main duties of the Authority are to construct and maintain sewers and water mains. It may also
fund the connection of a house to a main.
The cost of connecting any building to the sewerage system, if unpaid, becomes a charge on
the land, which has priority over all other registered charges or mortgages. Division 2 of the Act
contains provisions for the Authority to exercise a power of sale over the land if the rates remain
unpaid for more than five years. The Authority must advertise, in a paper circulated in the region
where the land is situated, its intention to sell the land, and register a memorial of the
advertisement in Landgate. The memorial, consisting of the memorial form and a full page of
the paper containing the advertisement, is registered on the title for freehold land, and in the
Deeds Office for old system land.
The memorial ceases to have any effect after twelve months, or it may be removed during that
twelve months if all the outstanding rates and costs are paid. A form signed by the Authority
certifying that the outstanding rates and costs have been paid is filed with Landgate as a
withdrawal of the memorial.
The memorial acts as an absolute bar to any dealing in the land except a transfer by the
Authority exercising a sale for rates. If a sale does occur, a transfer, signed by the Authority as
transferor, is registered, and has the effect of removing all registered charges and mortgages
except a mortgage to the Bank of Western Australia Ltd. The transfer is usually registered
without the production of the duplicate title (if any), using the provisions of s.74 of the TLA. The
transfer is required to be supported by a statutory declaration made by a staff member on behalf
of the Authority stating that all the legislative requirements or preconditions to the sale have
been complied with.
Registration fees are payable on the lodgement and the withdrawal of these memorials and on
the registration of the transfer.
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11.4.7
Criminal Property Confiscation Act 2000
The Criminal Property Confiscation Act 2000 (in this paragraph called the Act) provides for the
confiscation in certain circumstances of property (including real property) acquired as a result of
criminal activity and property used for criminal activity.
11.4.7.1
Memorial of Freezing Notices
Section 34 of the Act permits the Director of Public Prosecutions or a police officer to obtain a
Freezing Notice from a Magistrate or a Justice of the Peace in certain circumstances.
The Freezing Notice must describe all of the property covered by the notice. In the case of real
property, the full land description including the title number must be shown.
When real property is frozen, a Memorial of a Freezing Notice must be lodged with the Registrar
of Titles and takes effect on lodgement of the memorial. The signed original Notice must be
attached to the memorial. Alternatively, a photocopy of the notice, with confirmation that
Landgate has sighted the original notice, may be attached to the memorial.
If the Freezing Notice refers to more than one property and the properties have different
registered proprietors, a separate memorial must be lodged for each different registered
proprietor.
The normal Registration fees are levied on the lodgement and withdrawal of a Memorial of
Freezing Notice.
Where a memorial is registered on a title, the Registrar of Titles is prevented from registering
any subsequent dealings (see below under the sub-heading Dealing with Frozen Property). If
any subsequent dealings are lodged, they will not be registered, but held in a Registrar’s
Packet.
11.4.7.2
Memorial Freezing Orders
Section 41 of the Act permits the Director of Public Prosecutions to apply to the Court for a
Freezing Order.
The Freezing Order must describe all of the property covered by the notice. In the case of real
property, the full land description including the title number must be shown.
When real property is frozen, a Memorial of a Freezing Order must be lodged with the Registrar
of Titles and takes effect on lodgement of the memorial. The signed original Order must be
attached to the memorial. Alternatively, a photocopy of the order, with confirmation that
Landgate has sighted the original order, may be attached to the memorial.
If the Freezing Order refers to more than one property and the properties have different
registered proprietors, a separate memorial must be lodged for each different registered
proprietor. The normal Registration fees are levied on the lodgement and withdrawal of a
Memorial of Freezing Order.
Where a memorial is registered on a title, the Registrar of Titles is prevented from registering
any subsequent dealings (see below under the sub-heading Dealing with Frozen Property). If
any subsequent dealings are lodged, they will not be registered, but held in a Registrar’s
Packet.
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11.4.7.3
Dealing with Frozen Property
Section 50 of the Act states that it is an offence for a person to deal with frozen property
(including real property) over which a Memorial of Freezing Notice or Memorial of Freezing
Order has been lodged. If frozen property is dealt with, that dealing is of no effect on any rights
of the State under this Act (see s.51).
According to s.151 of the Act, Dealing with property includes, selling, disposing or creating,
increasing or altering any legal or other right in the property. Therefore it would be an offence to
register any interest in land (including caveats and property (seizure and sale) orders etc) that is
the subject of a Freezing Notice or Freezing Order.

Note:
Although it is an offence to register any dealings against frozen land, nothing prevents the
lodgement of dealings with the Registrar of Titles. These dealings will remain in the Registrar’s
Packet as unregistered dealings until the relevant memorial is withdrawn or a Memorial of
Declaration of Confiscation is lodged with the Registrar of Titles (see below).
If the relevant memorial is withdrawn, any unregistered dealings held in the Registrar’s Packet
will be registered according to their date of lodgement.
11.4.7.4
Memorial of Declaration of Confiscation
Frozen land is automatically confiscated if there is no objection filed in court from interested
parties (within 28 days after service of notice) to a Freezing Notice or Freezing Order. Interested
parties that will receive notice include any person having a registered interest in the land and
any caveator in respect of any caveat lodged.
If a person is declared a drug trafficker under the Misuse of Drugs Act 1981, their property is
automatically confiscated without the need for the Freezing Notice or Freezing Order or notice
to interested parties (s.8 of the Act).
Once a property has been confiscated under the Act, the Director of Public Prosecutions can
apply to the court for a declaration that the property has been confiscated (ie. a Declaration of
Confiscation).
Confiscated property vests in the State of Western Australia when a Memorial of Declaration of
Confiscation is lodged at Landgate and is registered against the relevant land. The signed
original Declaration of Confiscation must be attached to the memorial. Alternatively, a
photocopy of the Declaration of Confiscation, with confirmation that Landgate has sighted the
original Declaration, may be attached to the memorial.
If the Declaration of Confiscation refers to more than one property and the properties have
different registered proprietors, a separate memorial must be lodged for each different
registered proprietor.
The Registrar of Titles may dispense with the requirement to produce the duplicate certificate of
title when the memorial is lodged.
The normal Registration fees are levied on the lodgement of a Memorial of Declaration of
Confiscation.
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11.4.7.5
Effect of a Memorial of Declaration of Confiscation when registered
On registration of a memorial of Declaration of Confiscation the relevant land vests free of all
encumbrances and other interests whether registered or not (including caveats) but not
including rights of way, easements and restrictive covenants. Any unregistered dealings
affecting the confiscated land being held in a Registrar’s Packet will be rejected when the
memorial is registered.

Note:
When a Memorial of Declaration of Confiscation is lodged it is not necessary to withdraw the
original Memorial of Freezing Notice or Memorial of Freezing Order that started the process.
If there is any inconsistency between this Act and the TLA, this Act shall prevail.
11.4.7.6
Interstate Freezing Orders
Interstate freezing orders will apply in Western Australia if that order is registered at the
Supreme Court in accordance with the rules of the Supreme Court. Once the interstate freezing
order is registered it will be endorsed by the court and it will have effect as if it were a freezing
order under the Act. However, there is no requirement for registration of