Land Title Act 1994

An Act to consolidate and reform the law about the registration of freehold land and interests in freehold land, and for other related purposes

1Short title

This Act may be cited as the Land Title Act 1994.

3Object of Act

The object of this Act is to consolidate and reform the law about the registration of freehold land and interests in freehold land and, in particular—

(a)to define the rights of persons with an interest in registered freehold land; and

(b)to continue and improve the system for registering title to and transferring interests in freehold land; and

(c)to define the functions and powers of the registrar of titles; and

(d)to assist the keeping of the registers in the land registry, particularly by authorising the use of information technology.

4Definitions

A dictionary in schedule 2 defines particular words used in this Act.

s 4 sub 1997 No. 28 s 295 sch 3

amd 2019 No. 7 s 313 sch 1 pt 1

4AReferences

In a provision of this Act about a community titles scheme, a reference to—

(a)scheme land, is a reference to the scheme land for the scheme; and

(b)the body corporate, is a reference to the body corporate for the scheme; and

(c)common property, is a reference to common property for the scheme; and

(d)the community management statement, is a reference to the community management statement for the scheme.

s 4A ins 2003 No. 6 s 143

5Act binds all persons

This Act binds all persons, including the State and, so far as the legislative power of the Parliament permits, the Commonwealth, the other States and the Territories.

6Registrar of titles

(1)There is to continue to be a registrar of titles.

(2)The registrar has a seal of office.

(3)The registrar is to be employed under the Public Service Act 2008.

(4)Judicial notice must be taken of the signature, or the imprint of the seal, of the registrar appearing on a document and the document must be presumed to have been properly signed or sealed until the contrary is proved.

(5)In acting under this Act or another Act, the registrar is subject to the chief executive, but is not subject to any other officer or employee of the department.

s 6 amd 1996 No. 37 s 147 sch 2; 2009 No. 25 s 83 sch

7Land registry

(1)The chief executive must keep a land registry.

(2)The land registry includes—

(a)the freehold land register; and

(b)registers about land required or permitted by an Act to be kept by the registrar; and

(c)registers about land prescribed by regulation; and

(d)other registers about land required or permitted by an Act to be included in the land registry.

(3)A regulation may prescribe—

(a)the locations of offices of the land registry or other places where documents may be lodged; and

(b)the particular documents that may, or may not, be lodged at a particular office of the land registry or other place for registration or recording in the appropriate register.

s 7 amd 2001 No. 33 s 24

8Form of registers

(1)A register kept by the registrar may be kept in the form (whether or not in a documentary form) the registrar considers appropriate.

(2)Without limiting subsection (1), the registrar may change the form in which a register or a part of a register is kept.

s 8 amd 1994 No. 81 s 527 sch 5

9Delegation

The registrar may delegate the registrar’s powers under this Act or another Act to an officer or employee of the department.

9ALand title practice manual

(1)The registrar may keep a manual of land title practice (by whatever name called) in the way the registrar considers appropriate, for the information and guidance of land registry staff and persons dealing with the land registry.

(2)The manual may include—

(a)directions given by the registrar under section 10(1)(b); and

(b)directions given by the chief executive under the Land Act 1994, section 287(1)(b); and

(ba)directions given by the chief executive under the Forestry Act 1959, section 61RW; and

(c)practices developed in the land registry, before or after the commencement of this section, for the depositing and lodging of instruments, including practices directed at ensuring that—

(i)there is consistency and efficiency in land registry processes; and

(ii)each register under this Act is an accurate, comprehensive and usable record; and

(iii)the integrity of the registers included in the land registry is supported and maintained to the greatest practicable extent.

(3)The manual may include statements about additional information a person may be required to produce, or additional instruments or documents a person may be required to deposit, under section 156.

(4)The manual may provide for the registrar’s approval of the form of an electronic conveyancing document for the Electronic Conveyancing National Law (Queensland), section 7(1)(a).

(5)The registrar must make the manual available to the public in the way the registrar considers appropriate.

(6)Without limiting subsection (5), the registrar must ensure an up-to-date copy of the manual is available to be read free of charge at each office of the land registry.

s 9A ins 2005 No. 68 s 51

amd 2010 No. 12 s 182; 2013 No. 17 s 31

10Form of instruments

(1)An instrument lodged by a person or issued by the registrar must—

(a)be in the appropriate form; and

(b)comply with the directions of the registrar about—

(i)how the appropriate form must be completed; and

(ii)how information to be included in or given with the instrument must be included or given.

(2)An instrument required or permitted to be executed must be in the appropriate form when it is executed.

(3)However, the registrar may register an instrument that is not in the appropriate form if the registrar is satisfied it is not reasonable to require the instrument to have been executed in the appropriate form.

(4)Also, the registrar may register, or otherwise deal with, an instrument that does not comply with a direction mentioned in subsection (1)(b) if the registrar is satisfied it is reasonable to not require the compliance.

(5)Subsections (3) and (4) do not apply to an instrument that is an electronic conveyancing document.

s 10 amd 2005 No. 68 s 52; 2007 No. 19 s 205; 2013 No. 17 s 32

10ARegistration of, or dealing with, particular instruments or other documents

(1)This section applies if an instrument or other document is lodged or deposited other than in compliance with a requirement under this Act.

(2)The registrar may register, or otherwise deal with, the instrument or document if the registrar is satisfied it is reasonable not to require the compliance.

s 10A ins 2019 No. 7 s 224

11Execution of certain instruments

(1)An instrument to transfer or create an interest in a lot must be executed by—

(a)the transferor or the person creating the interest; and

(b)the transferee or the person in whose favour the interest is to be created or a legal practitioner authorised by the transferee or the person.

(2)A total or partial discharge or release of mortgage need only be signed by the mortgagee.

(3)For an instrument that is an electronic conveyancing document, subsections (1) and (2) apply subject to the form approved for the instrument under the Electronic Conveyancing National Law (Queensland), section 7.

s 11 amd 1994 No. 81 s 527 sch 5; 2004 No. 11 s 596 sch 1; 2013 No. 23 s 352 sch 1 pt 1; 2013 No. 17 s 33

11AOriginal mortgagee to confirm identity of mortgagor

(1)This section applies to—

(a)the mortgaging of a lot or an interest in a lot; and

(b)an amendment of a mortgage mentioned in paragraph (a).

(2)Before the instrument of mortgage or amendment of mortgage is lodged for registration, the mortgagee under the instrument (the original mortgagee) must take reasonable steps to ensure the person who is the mortgagor under the instrument is identical with the person who is, or who is about to become, the registered proprietor of the lot or the interest in a lot.

(2A)For subsection (2), a person is the mortgagor under an instrument of mortgage or amendment of mortgage if the person executes the instrument as mortgagor, including, if the instrument is an electronic conveyancing document, through a subscriber digitally signing the instrument under the Electronic Conveyancing National Law (Queensland).

(2B)Also, for subsection (2), a person is the mortgagor under an instrument of mortgage or amendment of mortgage if the instrument is an electronic conveyancing document and the person signs, as mortgagor, a document that under the participation rules under the Electronic Conveyancing National Law (Queensland)—

(a)is required as a supporting document for the instrument of mortgage or amendment of mortgage; and

(b)is required to be kept by the original mortgagee.

(3)Without limiting subsection (2), the original mortgagee takes reasonable steps under the subsection if the original mortgagee complies with practices included in the manual of land title practice under section 9A(2)(c) for the verification of identification of mortgagors.

(4)The original mortgagee must, for 7 years after the instrument is registered, and whether or not there is registered a transfer of the interest constituted by the mortgage—

(a)keep, in the approved form, a written record of the steps taken under subsection (2); or

(b)keep originals or copies of the documents and other evidence provided to or otherwise obtained by the original mortgagee in complying with subsection (2).

Maximum penalty—20 penalty units.

(5)The registrar may, whether before or after the registration of the instrument, and whether or not there has been registered a transfer of the interest constituted by the mortgage, ask the original mortgagee—

(a)to advise the registrar about the steps taken by the original mortgagee under subsection (2); and

(b)to produce for the registrar’s inspection the written record mentioned in subsection (4)(a) or the originals or copies mentioned in subsection (4)(b).

(6)The original mortgagee must comply with a request under subsection (5) unless the original mortgagee has a reasonable excuse.

Maximum penalty—20 penalty units.

(7)This section applies to an instrument of mortgage only if it is executed after the commencement of this section.

s 11A ins 2005 No. 68 s 53

amd 2010 No. 12 s 183; 2013 No. 17 s 34

11BMortgage transferee to confirm identity of mortgagor

(1)This section applies to the transfer of the interest constituted by the mortgage of a lot or an interest in a lot.

(2)Before the instrument of transfer is lodged for registration, the transferee under the instrument of transfer (the mortgage transferee) must take reasonable steps to ensure the person who was the mortgagor under the instrument of mortgage was identical with the person who, when the instrument of mortgage was registered, was the registered proprietor of the lot, or the interest in a lot.

(2A)For subsection (2), a person was the mortgagor under an instrument of mortgage if the person executed the instrument as mortgagor, including, if the instrument is an electronic conveyancing document, through a subscriber digitally signing the instrument under the Electronic Conveyancing National Law (Queensland).

(2B)Also, for subsection (2), a person was the mortgagor under an instrument of mortgage if the instrument is an electronic conveyancing document and the person signed, as mortgagor, a document that under the participation rules under the Electronic Conveyancing National Law (Queensland)—

(a)was required as a supporting document for the instrument of mortgage; and

(b)was required to be kept by the original mortgagee mentioned in section 11A(2).

(3)Without limiting subsection (2), the mortgage transferee takes reasonable steps under the subsection if the mortgage transferee complies with practices included in the manual of land title practice under section 9A(2)(c) for the verification of identification of mortgagors.

(4)The mortgage transferee must, for 7 years after the instrument of transfer of the mortgage is registered, and whether or not there is registered a further transfer of the interest constituted by the mortgage—

(a)keep, in the approved form, a written record of the steps taken under subsection (2); or

(b)keep originals or copies of the documents and other evidence provided to or otherwise obtained by the mortgage transferee in complying with subsection (2).

Maximum penalty—20 penalty units.

(5)The registrar may, whether before or after the registration of the instrument of transfer of the mortgage, and whether or not there has been registered a further transfer of the interest constituted by the mortgage, ask the mortgage transferee—

(a)to advise the registrar about the steps taken by the mortgage transferee under subsection (2); and

(b)to produce for the registrar’s inspection the written record mentioned in subsection (4)(a) or the originals or copies mentioned in subsection (4)(b).

(6)The mortgage transferee must comply with a request under subsection (5) unless the mortgage transferee has a reasonable excuse.

Maximum penalty—20 penalty units.

(7)This section applies to an instrument of transfer of a mortgage only if the instrument of transfer is executed after the commencement of this section.

(8)However, this section applies in relation to an instrument of mortgage whenever executed.

s 11B ins 2005 No. 68 s 53

amd 2013 No. 17 s 35; 2017 No. 10 s 42 sch 1

12Giving consent for dealings

(1)Subject to subsections (2) to (4), if the consent of a person is required or permitted for a dealing with a lot, the consent must be—

(a)written on the instrument for the dealing (the relevant instrument); or

(b)if the registrar considers it appropriate—deposited with the relevant instrument.

(2)If the relevant instrument is an electronic conveyancing document, the person is taken to have complied with subsection (1) if the consent—

(a)is in the form of an electronic conveyancing document; and

(b)is deposited with the relevant instrument.

(3)Subsection (4) applies if the relevant instrument is lodged or deposited in an electronic form by an electronic communication under—

(a)this Act or another law, other than the Electronic Conveyancing National Law (Queensland); and

(b)the Electronic Transactions (Queensland) Act 2001.

(4)The person is taken to have complied with subsection (1) if—

(a)a method is used to identify the person and to indicate the person’s consent; and

(b)having regard to all the relevant circumstances when the method was used, the method was as reliable as was appropriate for the purposes for which the consent was communicated; and

(c)the registrar consents to the requirement being met by using the method.

s 12 amd 2003 No. 6 s 144

sub 2013 No. 17 s 36

14Offence not to use appropriate form

If there is an appropriate form for an instrument, a person must not knowingly use a form for the instrument that is not the appropriate form.

Maximum penalty—20 penalty units.

s 14 amd 1994 No. 33 s 4 (retro)

sub 2003 No. 6 s 145

pt 2 div 2A hdg ins 2013 No. 17 s 37

14AReference to a particular type of document includes its electronic conveyancing form

A reference in this Act to a document of a type that may be lodged or deposited under this Act includes a reference to the document in the form of an electronic conveyancing document.

s 14A ins 2013 No. 17 s 37

14BWhat is an electronic conveyancing document

(1)An electronic conveyancing document is a document under the Electronic Conveyancing National Law (Queensland) that is lodged electronically under section 7 of that Law, in the land registry.

Note—

Under the Electronic Conveyancing National Law (Queensland), schedule 1, section 12(1), definition document, a document includes any record of information that exists in a digital form and is capable of being reproduced, transmitted, stored and duplicated by electronic means.

(2)Subsection (3) applies to a document that is lodged or deposited in an electronic form by an electronic communication under—

(a)this Act or another law, other than the Electronic Conveyancing National Law (Queensland); and

(b)the Electronic Transactions (Queensland) Act 2001.

(3)To remove any doubt, it is declared that the document is not an electronic conveyancing document.

s 14B ins 2013 No. 17 s 37

14CSigning or executing an electronic conveyancing document

If this Act provides for a document to be signed or executed and the document is an electronic conveyancing document, the document must be digitally signed as provided for under the Electronic Conveyancing National Law (Queensland).

s 14C ins 2013 No. 17 s 37

14DRegistering an electronic conveyancing document

For registering an electronic conveyancing document, the registrar may rely on a certification made under the participation rules determined under the Electronic Conveyancing National Law (Queensland).

s 14D ins 2020 No. 9 s 30

15Registrar may correct registers

(1)The registrar may correct any register kept by the registrar if the registrar is satisfied that—

(a)the register is incorrect; and

(b)the correction will not prejudice the rights of the holder of an interest recorded in the register.

(2)Without limiting subsection (1), the registrar may correct a register under the subsection if—

(a)the register is incorrect because the registrar has incorrectly recorded a particular or registered an instrument; or

(b)the registrar has held an inquiry under division 4, and has decided that the register is incorrect, including for example, because there has been fraud affecting the register.

(3)The registrar may correct a register kept by the registrar, whether or not the correction will prejudice the rights of the holder of an interest recorded in the register, if—

(a)the register to be corrected is the freehold land register, and the correction is to show, in relation to a lot, an easement the particulars of which have been omitted from, or misdescribed in, the register; or

(b)the Supreme Court has ordered the correction under section 26.

(4)Section 185(3), (4) and (6) applies for subsection (3)(a) in the same way it applies for section 185(1)(c).

(5)The registrar’s power to correct a register includes power to correct a particular in the register or an instrument forming part of the register.

(6)If a register is corrected, the registrar must record in the register—

(a)the state of the register before the correction; and

(b)the time, date and circumstances of the correction.

(7)A register corrected by the registrar under this section has the same effect as if the relevant error had not been made.

(8)For subsection (1)(b), the rights of the holder of an interest recorded in the register are not prejudiced if the holder acquired or has dealt with the interest with actual or constructive knowledge that the register was incorrect and how it was incorrect.

s 15 amd 1994 No. 81 s 527 sch 5; 1997 No. 28 s 295 sch 3; 2005 No. 68 s 54

16Lot-on-plan description

The registrar may simplify the description of a lot registered in the freehold land register by amending the existing description to a lot-on-plan description.

17Registrar may prepare and register caveat

(1)The registrar may prepare and register a caveat over a lot, or an interest in a lot, in favour of a person.

(2)The registrar may act under subsection (1) to prevent a dealing with the lot that may prejudice—

(a)the Commonwealth, a State or a local government; or

(b)a minor; or

(c)a person who is intellectually or mentally impaired or is incapable of managing the person’s own affairs; or

(d)a person who is absent from the State; or

(e)a person because of—

(i)misdescription of the lot or its boundaries; or

(ii)fraud or forgery; or

(f)a person to whom a notice has been given, or has been required to be given, under section 30(3); or

(g)a person, other than a person mentioned in any of paragraphs (a) to (f), who has an interest in the lot.

(3)Also, the registrar may act under subsection (1) to prevent a dealing with a lot to give effect to an order of a court of competent jurisdiction directed to the registrar.

(4)Subsection (2)(g) applies only if the registrar is satisfied, because of the nature or urgency of particular circumstances, there is no practicable alternative to registering the caveat.

s 17 amd 1997 No. 28 s 295 sch 3; 2005 No. 68 s 55

18Registrar may require public notice to be given of certain proposed action

(1)This section applies if a person (the applicant) asks the registrar to do any of the following things—

(a)register the person as an adverse possessor;

(b)register a transmission of a registered interest;

(c)dispense with production of an instrument.

(2)The registrar may, by written notice, require the applicant to give public notice of the request.

(3)However, if the applicant has asked the registrar to register the person as an adverse possessor, the registrar must require the applicant to give public notice of the request.

(4)The registrar may specify in the notice to the applicant—

(a)what is to be included in the public notice; and

(b)how many times the public notice is to be published; and

(c)how and when the public notice is to be published.

(5)The applicant must satisfy the registrar that the public notice has been given as required by the registrar.

s 18 amd 2013 No. 23 s 352 sch 1 pt 1

18APre-examination of plans

(1)Nothing in this Act prevents the registrar from examining a plan of survey and related instruments deposited before the plan—

(a)is approved by a local government; or

(b)is lodged for registration.

(2)Section 156 applies to a plan and related instruments deposited under subsection (1).

s 18A ins 1994 No. 81 s 526 sch 4

amd 2001 No. 57 s 7; 2010 No. 12 s 184

19Registrar may decide to hold inquiry

The registrar may decide to hold an inquiry under this division—

(a)to decide whether a register should be corrected; or

(b)to consider whether a person has fraudulently or wrongfully—

(i)obtained, kept or procured an instrument affecting land in a register; or

(ii)procured a particular in a register or an endorsement on an instrument affecting land; or

(c)to consider whether a fraud affecting the land registry has otherwise been committed; or

(d)to otherwise consider an issue arising from the lodgement or registration of an instrument in the land registry; or

(e)in circumstances prescribed by regulation.

s 19 amd 2005 No. 68 s 56

20Registrar’s duties on inquiry

When conducting the inquiry, the registrar—

(a)must observe natural justice; and

(b)must act as quickly, and with as little formality and technicality, as is consistent with a fair and proper consideration of the issues.

21Registrar may decide procedures

(1)The registrar—

(a)is not bound by the rules of evidence; and

(b)may inform himself or herself in any way the registrar considers appropriate; and

(c)may decide the procedures to be followed at the inquiry.

(2)However, the registrar must comply with this division and the procedural rules that may be prescribed by regulation.

22Registrar’s powers on inquiry

(1)In conducting the inquiry, the registrar may—

(a)act in the absence of a person who has been given reasonable notice; and

(b)receive evidence on oath or affirmation or by statutory declaration; and

(c)adjourn the inquiry; and

(d)disregard a defect, error or insufficiency in a document; and

(e)permit or refuse to permit a person (including a legal practitioner) to represent someone at the inquiry.

(2)The registrar may administer an oath or affirmation to a person appearing as a witness before the inquiry.

s 22 amd 2004 No. 11 s 596 sch 1; 2013 No. 23 s 352 sch 1 pt 1

23Notice to witness

(1)The registrar may, by written notice given to a person, require the person to attend the inquiry at a specified time and place as a witness to give evidence or produce specified documents or things.

(2)Without limiting subsection (1), any of the following persons may be required to attend the inquiry—

(a)a person who may have helped another person act fraudulently or wrongfully in a way mentioned in section 19(b);

(b)a person who is a party to a transaction that may have resulted in a fraud affecting the land registry;

(c)a person who may have contributed directly or indirectly to a fraud affecting the land registry.

(3)A person required to appear as a witness before the inquiry is entitled to the witness fees prescribed by regulation or, if no witness fees are prescribed, the reasonable witness fees decided by the registrar.

s 23 amd 2005 No. 68 s 57

24Offences by witnesses

(1)A person who is given a notice under section 23 must not—

(a)fail, without reasonable excuse, to attend as required by the notice; or

(b)fail, without reasonable excuse, to continue to attend at the inquiry as required by the registrar until excused from further attendance.

Maximum penalty—35 penalty units.

(2)A person appearing as a witness at the inquiry must not—

(a)fail to take an oath or make an affirmation when required by the registrar; or

(b)fail, without reasonable excuse, to answer a question the person is required to answer by the registrar; or

(c)fail, without reasonable excuse, to produce a document or thing the person is required to produce by a notice under section 23.

Maximum penalty—35 penalty units.

(3)It is a reasonable excuse for a person to fail to answer a question or produce a document or thing if answering the question or producing the document or thing might tend to incriminate the person.

s 24 amd 2001 No. 57 s 7

25Referral to Supreme Court from inquiry

(1)If, in an inquiry under division 4, a person—

(a)fails to attend as required by a notice given under section 23; or

(b)fails to continue to attend as required by the registrar; or

(c)fails to take an oath or make an affirmation when required by the registrar; or

(d)fails to answer a question the person is required to answer by the registrar; or

(e)fails to produce a document or thing the person is required to produce by a notice under section 23;

the registrar may apply to the Supreme Court for an order to compel the person to comply with the notice or requirement.

(2)The Supreme Court may make any order to assist the registrar in the registrar’s conduct of the inquiry that the Supreme Court considers appropriate.

s 25 amd 2001 No. 57 s 7

26Other referrals by the registrar to the Supreme Court

In any matter under this Act, the registrar may—

(a)apply to the Supreme Court for directions; or

(b)state a case for decision by the Supreme Court; or

(c)refer a finding of an inquiry to the Supreme Court, seeking—

(i)an order for the registrar or another person to take a stated action, including for example an order for the registrar to correct a register; or

(ii)an order the court considers appropriate in the circumstances.

s 26 amd 2005 No. 68 s 58

27Registrar must keep register

The registrar must keep a register of freehold land (the freehold land register).

28Particulars the registrar must record

(1)The registrar must record in the freehold land register the particulars necessary to identify—

(a)every lot brought under this Act; and

(b)every interest registered in the register; and

(c)the name of the person who holds, and the name of each person who has held, a registered interest; and

(d)if the person who holds a registered interest is a minor—the minor’s date of birth; and

(e)all instruments registered in the register and when they were lodged and registered.

(2)The registrar must also record in the freehold land register anything else required to be recorded by this or another Act.

29Particulars the registrar may record

(1)The registrar may record in the freehold land register anything that the registrar is permitted to record by this or another Act.

(2)The registrar may also record in the freehold land register anything that the registrar considers should be recorded to ensure that the register is an accurate, comprehensive and usable record of freehold land in the State.

29AParticulars the registrar may remove

The registrar may remove from the freehold land register anything recorded under section 28(2) or 29 if—

(a)the registrar no longer considers the thing should be recorded to ensure the freehold land register is an accurate, comprehensive and usable record of freehold land in the State; and

(b)the removal of the thing will not prejudice the rights of the holder of an interest recorded in the register.

s 29A ins 2019 No. 7 s 225

30Registrar must register instruments

(1)On lodgement of an instrument, the registrar must register the instrument if—

(a)the person who lodged it complies with the requirements of this Act for its registration; and

(b)the instrument is not inconsistent with another Act or law; and

(c)if the instrument is a plan of survey—it is not inconsistent with another plan of survey.

(2)However, subsection (1) does not prevent the person from withdrawing the instrument.

(3)If the instrument is a plan of survey and it is inconsistent with another plan of survey, the registrar may—

(a)give a written notice to a registered proprietor of a lot that may be affected by registration of the plan of survey; or

(b)require the person who lodged the instrument to give a written notice, in the way the registrar requires, to a person mentioned in paragraph (a).

s 30 amd 1998 No. 48 s 15; 2004 No. 71 s 74; 2005 No. 68 s 59

31Instruments form part of the freehold land register

On registration of an instrument in the freehold land register, the instrument forms part of the register.

32Registrar’s procedures on lodgement and registration of instrument

(1)When an instrument is lodged in the land registry, the registrar must note on the instrument—

(a)the date and time of lodgement; and

(b)an identifying reference.

(2)When the instrument is registered, the registrar must record the information mentioned in subsection (1)(a) and (b) in the appropriate register.

s 32 sub 2005 No. 68 s 60

33Separate part of the freehold land register for powers of attorney

The registrar must keep a separate part of the freehold land register for registered powers of attorney.

34Other information not part of the freehold land register

(1)The registrar may keep separately from the freehold land register information that the registrar considers necessary or desirable for the effective or efficient operation of the register.

(2)The information may include information given to the registrar by another entity.

(3)A relevant entity is not civilly liable for an act done, or omission made, honestly and without negligence in relation to the giving or keeping of information under this section.

(4)Without limiting subsection (3), a relevant entity other than the registrar is not civilly liable in relation to the giving or keeping of inaccurate information under this section if the relevant entity did not give the information to the registrar for keeping under this section.

(5)In this section—

relevant entity means—

(a)the registrar; or

(b)the chief executive; or

(c)the Minister; or

(d)the State.

s 34 amd 2005 No. 68 s 61

35Entitlement to search register

(1)A person may, on payment of the fee prescribed under a regulation—

(a)search and obtain a copy of—

(i)the indefeasible title of a lot; or

(ii)a registered instrument; or

(iii)an instrument that has been lodged but is not registered (whether or not it has been cancelled); or

(iv)information kept under this Act; and

(b)obtain a copy of the indefeasible title of a lot, or a registered instrument, certified by the registrar to be an accurate copy.

(2)Subsection (1)(a)(iii) does not apply to an instrument that has been destroyed by the registrar.

(3)A search under subsection (1) may be carried out at, or a copy mentioned in subsection (1) obtained from, an office of the land registry during office hours on a day the land registry is open for business.

(4)Also, a search under subsection (1) may be carried out by, or a copy mentioned in subsection (1) obtained from, an entity engaged by the chief executive for allowing persons to search the land registry or obtain copies of indefeasible titles, registered or other instruments, or information, kept in the registry.

(5)The registrar may allow a person to carry out a search under subsection (1)(a) for—

(a)only part of an indefeasible title for a lot; or

(b)only part of an instrument; or

(c)only part of the information about an instrument.

(6)The registrar may enter into an arrangement with another department allowing the department to carry out a search, or obtain a copy, under this section without payment of the fee mentioned in subsection (1).

(7)However, the registrar may enter into an arrangement under subsection (6) only if the registrar is reasonably satisfied the information obtained from the search or the copy will not be—

(a)used for a commercial purpose, including, for example, the marketing or sale of the information or other information; or

(b)included in another database of information, in any form, other than with approval from the registrar.

s 35 amd 2005 No. 68 s 62; 2014 No. 29 s 104

35AFee required to produce document under subpoena etc.

(1)This section applies if a fee is payable under section 35(1) for a person to obtain a copy of a document and—

(a)a subpoena requires the document to be produced; or

(b)a person has applied under the Evidence Act 1977, section 134A for the document to be produced for inspection.

(2)Despite any other law or rule of court, the registrar is not required to produce, or provide a copy of, the document until the fee mentioned in section 35(1) is paid.

(3)Subsection (2) does not apply if a department is not required to pay a fee for the document under an agreement mentioned in section 35(6).

s 35A ins 2013 No. 23 s 111

36Evidentiary effect of certified copies of documents

(1)A document purporting to be a certified copy of the indefeasible title of a lot obtained under section 35(1)(b) is evidence of the indefeasible title.

(2)A document purporting to be a certified copy of a registered instrument obtained under section 35(1)(b) is evidence of the registered instrument.

s 36 amd 2001 No. 57 s 7

37Creation of indefeasible title

An indefeasible title for a lot is created on the recording of the particulars of the lot in the freehold land register.

38Meaning of indefeasible title

The indefeasible title for a lot is the current particulars in the freehold land register about the lot.

39Single indefeasible title for 2 or more lots

(1)The registrar may create a single indefeasible title for 2 or more lots that have the same registered owner by including a single set of particulars for the lots in the freehold land register.

(2)The registrar may act under this section if the registrar considers that, in the special circumstances of the case, it is appropriate for the lots to have a single indefeasible title.

(3)Without limiting subsection (2), the registrar may act under this section if the lots—

(a)share a common boundary; or

(b)have a boundary that adjoins the same part of a road or watercourse.

40Separation of single indefeasible title for 2 or more lots

(1)If the registrar has created a single indefeasible title for 2 or more lots, the registrar may create separate indefeasible titles for any of the lots by cancelling the single set of particulars for the lots in the freehold land register and including separate particulars for the lots.

(2)This section does not prevent the registrar from also acting under section 39 for 2 or more of the lots.

s 40 amd 2001 No. 57 s 7

41Transfer of land forming part of indefeasible title

If the registrar registers an instrument of transfer for only part of the land in the indefeasible title of a lot, the registrar must create separate indefeasible titles for the part of the land that is transferred, and the part that is not transferred, by cancelling the particulars for the lot in the freehold land register and including separate particulars for each of the parts in the register.

pt 3 div 2A hdg ins 1997 No. 28 s 295 sch 3

41ACreation of indefeasible title for common property

When a community titles scheme is established, the registrar must create an indefeasible title for the common property for the scheme.

s 41A ins 1997 No. 28 s 295 sch 3

41BMeaning of indefeasible title for common property

The indefeasible title for common property is the current particulars in the freehold land register about the common property.

s 41B ins 1997 No. 28 s 295 sch 3

41BAOwnership of common property

(1)Common property for a community titles scheme is owned by the owners of the lots included in the scheme, as tenants in common, in shares proportionate to the interest schedule lot entitlements of their respective lots.

(2)Subsection (1) applies even though, under section 41A, the registrar creates an indefeasible title for the common property.

(3)An owner’s interest in a lot is inseparable from the owner’s interest in the common property.

Examples for subsection (3)—

1A dealing affecting the lot affects, without express mention, the interest in the common property.

2An owner can not separately deal with or dispose of the owner’s interest in the common property.

s 41BA ins 2003 No. 6 s 146

41CApplication of provisions of Act to common property

(1)In this Act, a reference to a lot is taken to include a reference to common property.

(2)However, subsection (1) has effect only to the extent necessary to allow for the registration, and appropriate recognition under this Act, of dealings that—

(a)affect common property (including dealings affecting interests in common property); and

(b)are consistent with the BCCM Act.

(3)In particular, subsection (1) has effect subject to the following principles—

•there can be no registered owner for common property (although the body corporate for the community titles scheme that includes the common property is taken to be the registered owner for dealings affecting the fee simple interest in the common property)

•the fee simple interest in the common property for a community titles scheme can not be the subject of sale or transfer (although a part of the common property might be the subject of transfer after the registration of an appropriate plan of subdivision and the recording of a new community management statement)

•the fee simple interest in common property can not be the subject of a mortgage (although a lesser interest able to be created over common property, for example, a lease, might be the subject of a mortgage).

(4)Without limiting subsections (2) and (3), subsection (1) has no application for the purpose of the following provisions—

•this Act’s definition of lot

•division 2.

s 41C ins 1997 No. 28 s 295 sch 3

amd 2019 No. 7 s 240

47Alienated State land to be registered

(1)As soon as practicable after land is alienated from the State—

(a)if the deed of grant for the land takes effect on delivery to the grantee—notice that the deed has been delivered to the grantee must be given to the registrar; or

Note—

See the Aboriginal Land Act 1991, section 44 and the Torres Strait Islander Land Act 1991, section 40 for examples of deeds of grant that take effect on delivery of the deed to the grantee.

(b)otherwise—the deed of grant for the land must be lodged in the land registry.

(2)The registrar must register the deed of grant by recording the particulars of the grant in the freehold land register.

(3)On the registration of the deed of grant, an indefeasible title is created for the relevant lot.

s 47 amd 2013 No. 23 s 112

48Land held by the State

The State may, under this Act, acquire, hold and deal with lots.

pt 4 div 2A hdg ins 1997 No. 28 s 295 sch 3

48AAvailable formats for plans

(1)A plan of survey may be in a standard, building or volumetric format.

(2)The format to be used in the plan depends on how the plan is to define the land to which it relates.

s 48A ins 1997 No. 28 s 295 sch 3

48BStandard format plan

A standard format plan of survey defines land using a horizontal plane and references to marks on the ground.

Example of marks—

posts in the ground

s 48B ins 1997 No. 28 s 295 sch 3

48CBuilding format plan

(1)A building format plan of survey defines land using the structural elements of a building, including, for example, floors, walls and ceilings.

(2)For subsection (1)—

structural elements, of a building, includes projections of, and references to, structural elements of the building.

Example of projections as structural elements of a building—

Projections might be used to define a lot that includes a balcony, courtyard, roof garden or other area not bounded, or completely bounded, by a floor, walls and a ceiling.

s 48C ins 1997 No. 28 s 295 sch 3

amd 2013 No. 23 s 352 sch 1 pt 1

48DVolumetric format plan

A volumetric format plan of survey defines land using 3 dimensionally located points to identify the position, shape and dimensions of each bounding surface.

s 48D ins 1997 No. 28 s 295 sch 3

pt 4 div 2B hdg ins 2001 No. 33 s 25

48EExplanatory format plan

(1)The registrar may approve the lodging of a plan relating to an interest in land other than a plan of survey in standard, building or volumetric format (an explanatory format plan) if the registrar is satisfied the land to which the interest relates may be accurately defined using—

(a)information already held in the land registry; or

(b)other information giving a high level of accuracy about the extent of the interest.

(2)Lodging an explanatory format plan, approved under this section, is sufficient compliance with a requirement under this Act to lodge a plan of survey in standard, building or volumetric format.

s 48E ins 2001 No. 33 s 25

amd 2001 No. 92 s 20; 2005 No. 68 s 63

pt 4 div 3 hdg sub 1997 No. 28 s 295 sch 3

49Meaning of plan of subdivision

A plan of subdivision is a plan of survey providing for 1 or more of the following—

(a)division of 1 or more lots;

(b)amalgamation of 2 or more lots to create a smaller number of lots;

(c)dedication of land to public use;

(d)redefinition of a lot on a resurvey.

s 49 sub 1997 No. 28 s 295 sch 3

49APlan of subdivision may be registered

(1)A plan of subdivision may be registered.

(2)A lot defined in the plan is created as a lot when the plan is registered.

s 49A ins 1997 No. 28 s 295 sch 3

49BStandard format plan of subdivision

(1)This section applies to a standard format plan of subdivision.

(2)Common property for a community titles scheme may be created under the plan, but only if—

(a)the plan also creates 2 or more lots; or

(b)the common property created is additional to common property already existing under the community titles scheme.

(3)The plan may create a lot from common property, other than common property created under—

(a)a building format plan of subdivision, and within structural elements of a building; or

(b)a volumetric format plan of subdivision.

s 49B ins 1997 No. 28 s 295 sch 3

49CBuilding format plan of subdivision

(1)This section applies to a building format plan of subdivision.

(2)Common property for a community titles scheme must be created under the plan unless the plan divides a lot, or amalgamates 2 or more lots, on an existing registered building format plan of subdivision.

(3)Two or more lots must be created under the plan unless—

(a)the plan amalgamates 2 or more lots on an existing registered building format plan of subdivision; or

(b)common property for a community titles scheme is created under the plan, and the common property created is additional to common property already existing under the community titles scheme.

(4)Except to the extent permitted under a direction given by the registrar under section 10(1)(b), the boundary of a lot created under the plan, and separated from another lot or common property by a floor, wall or ceiling, must be located at the centre of the floor, wall or ceiling.

s 49C ins 1997 No. 28 s 295 sch 3

amd 2005 No. 68 s 64

49DVolumetric format plan of subdivision

(1)This section applies to a volumetric format plan of subdivision.

(2)Common property for a community titles scheme may be created under the plan, but only if—

(a)the plan also creates 2 or more lots; or

(b)the common property created is additional to common property already existing under the community titles scheme.

(3)The plan may divide a lot on a standard, building or volumetric format plan of subdivision.

s 49D ins 1997 No. 28 s 295 sch 3

49DACreation of common property

(1)This section applies if—

(a)the community management statement for a community titles scheme provides for the progressive subdivision of scheme land; and

(b)under the scheme, the scheme land is to be subdivided by a plan of subdivision to create common property under sections 49B to 49D.

(2)The registration of the plan and recording of the new community management statement for the scheme operate, without anything further, to create the common property.

s 49DA ins 2003 No. 6 s 147

sub 2010 No. 12 s 185

49EDivision of lot on standard format plan of subdivision

(1)This section applies if a building or volumetric format plan of subdivision divides a standard format lot, creating 2 or more lots.

(2)If, after the division, a created lot continues to be defined using a horizontal plane and references to marks on the ground, the created lot is a standard format lot.

s 49E ins 2001 No. 33 s 26

amd 2003 No. 6 s 148; 2010 No. 12 s 186

50Requirements for registration of plan of subdivision

(1)A plan of subdivision must—

(a)distinctly show all roads, parks, reserves and other proposed lots that are to be public use land; and

(b)include a statement agreeing to the plan and dedicating the public use land by—

(i)the registered owner; or

(ii)if the mortgagee of the registered owner is in possession—the mortgagee in possession; and

(c)show all proposed lots marked with separate and distinct numbers; and

(d)distinctly show all proposed common property; and

(e)show all proposed easements marked with separate and distinct letters; and

(f)comply with the Survey and Mapping Infrastructure Act 2003; and

(g)be certified as accurate by a cadastral surveyor within the meaning of the Surveyors Act 2003; and

(h)have been approved by the relevant planning body, unless the plan of subdivision provides only for—

(i)the amalgamation of 2 or more lots to create a smaller number of lots; or

(ii)the redefinition of a lot on a resurvey; or

(iii)under the BCCM Act, chapter 2, part 3, division 2, the incorporation of a lot with common property or conversion of lessee common property within the meaning of that Act; and

(i)if the plan of subdivision provides for the division of 1 or more lots, or the dedication of land to public use—have been approved by the relevant planning body; and

(j)be consented to by all registered mortgagees of each lot the subject of the plan and all other registered proprietors whose interests are affected by the plan; and

(k)if the plan affects land subject of a conservation agreement under the Nature Conservation Act 1992—be consented to, in writing, by the chief executive of the department in which that Act is administered.

(2)If the plan of subdivision is to give effect to a surrender under the Land Act 1994, section 55, of all or part of land contained in a deed of grant in trust, the plan of subdivision—

(a)must be endorsed with or accompanied by the written approval of the Minister under that section; and

(b)need not have been approved by the relevant planning body as would otherwise be required under subsection (1)(h) or (i).

(3)Subsection (1)(h) and (i) does not apply to a plan of subdivision that, other than for this subsection, would have been required to have been approved by the relevant planning body if—

(a)for a plan that, other than for this subsection, would have required approval by MEDQ—the plan is not a plan of subdivision as defined in the Economic Development Act 2012, section 104(3); or

(b)for a plan that, other than for this subsection, would have required approval by the relevant local government—the plan is not a plan for which a process for approving the plan is provided under the Planning Act.

(4)Also, subsection (1)(h) and (i) does not apply to a plan of subdivision that, under a provision of another Act, is a plan that is not required to be approved by the relevant planning body.

(5)If a plan of subdivision is approved as mentioned in subsection (1)(h) or (i) under the Economic Development Act 2012, section 104 or the Planning Act, the plan must be lodged for registration within 6 months after the approval.

(6)In this section—

relevant planning body means—

(a)if the proposed lots are in a priority development area—MEDQ; or

(aa)if the proposed lots are in a State development area and the subdivision is regulated by an approved development scheme—the Coordinator-General; or

(b)otherwise—the relevant local government.

s 50 amd 1994 No. 33 s 6 (retro); 1994 No. 81 s 527 sch 5; 1997 No. 28 s 295 sch 3; 2003 No. 6 s 149; 2004 No. 4 s 57 sch; 2003 No. 70 s 206 sch 2; 2005 No. 68 s 65; 2007 No. 41 s 238; 2007 No. 19 s 206; 2009 No. 36 s 872 sch 2; 2009 No. 51 s 56; 2010 No. 21 s 22; 2012 No. 43 s 221 sch 1; 2013 No. 23 s 113; 2013 No. 17 s 40; 2014 No. 40 s 154 sch 1 pt 1; 2016 No. 27 s 292; 2019 No. 8 s 59

51Dedication of public use land in plan

(1)The dedication of a lot to public use in a plan of subdivision must be of the registered proprietor’s whole interest in the lot.

(2)On registration of the plan, without anything further—

(a)if the dedication is for a road—the road is opened for the Land Act 1994; or

(b)if the dedication is for a non-tidal watercourse or a lake—the plan is taken to be the source material for the land for the Survey and Mapping Infrastructure Act 2003, section 99; or

Note—

The Survey and Mapping Infrastructure Act 2003, section 99 defines when a boundary of land is a non-tidal boundary (watercourse) or non-tidal boundary (lake). See the Land Act 1994, section 13A for provisions about the ownership of land on the watercourse side or lake side of one of these boundaries.

(c)if the dedication is for an identified community purpose under the Land Act 1994 and the plan is consented to by the Minister administering the Land Act 1994—the lot is dedicated as a reserve for the community purpose; or

(d)otherwise—the lot becomes unallocated State land under the Land Act 1994.

(3)Subsection (4) applies to an easement over a lot if—

(a)the easement is an easement for providing access or a right of way, including a public thoroughfare easement; and

(b)the lot or a part of the lot is dedicated for a road under subsection (2).

(4)The easement is extinguished to the extent it is over the lot or the part of the lot dedicated for the road.

s 51 sub 1994 No. 81 s 527 sch 5

amd 1997 No. 28 s 295 sch 3; 2005 No. 68 s 66; 2007 No. 19 s 207 (amd 2007 No. 57 s 26); 2013 No. 23 s 114

51AAccess for public use land

A plan of subdivision providing for the dedication of a lot to public use, other than as a road, non-tidal watercourse or a lake, may be registered only if—

(a)on registration, access to the lot will be available through a road or a public thoroughfare easement; or

(b)the Minister administering the Land Act 1994 has approved that the plan of subdivision may be registered without access to the lot being available.

s 51A ins 2005 No. 68 s 67

amd 2013 No. 23 s 115

52Particulars to be recorded on registration of plan

In registering a plan of subdivision, the registrar must record in the freehold land register particulars of—

(a)each proposed lot that is not public use land; and

(b)to the extent that it is practicable—common property created under the plan.

s 52 sub 1997 No. 28 s 295 sch 3

53Lodged plan that is withdrawn and relodged

If a plan of subdivision is lodged within 6 months after it is approved as mentioned in section 50(1)(h) or (i) and is withdrawn and re-lodged under section 159, it must be treated for the purposes of sections 175 and 178 to have been lodged when it was first lodged.

s 53 amd 1998 No. 13 s 191 sch; 2001 No. 57 s 7; 2009 No. 36 s 872 sch 2

53ADivision excluding road or watercourse

(1)A lot may be divided by a plan of subdivision, even though there is a road or watercourse within the boundaries of the lot that is not part of the lot.

(2)However, the road or watercourse is not included in any lot created by the plan of subdivision, even though it may be within the boundaries of the lot.

s 53A (prev s 54) amd 1997 No. 28 s 295 sch 3

renum 2013 No. 23 s 116

pt 4 div 3A hdg ins 2013 No. 23 s 117

54Dedication of road by notice

(1)The registered owner of a lot may dedicate the lot as a road for public use by the registration of a dedication notice.

(2)Part of a lot may not be dedicated as a road for public use under this section.

(3)A dedication notice must have been approved by the relevant planning body.

(4)On the day the dedication notice is registered—

(a)the dedication of the lot as a road for public use takes effect; and

(b)the land is opened for public use as a road.

(5)This section does not apply if the dedication notice is for the land to be dedicated as a road under the Acquisition of Land Act 1967, section 12B.

Note—

A dedication notice for land taken under the Acquisition of Land Act 1967 to be dedicated as a road is registered under section 12B of that Act.

(6)In this section—

dedication notice means a notice in the approved form requesting the registrar to register a dedication of land as a road.

relevant planning body means—

(a)if the lot is in a priority development area—MEDQ; or

(aa)if the lot is in a State development area—the Coordinator-General; or

(b)otherwise—the local government.

s 54 ins 2013 No. 23 s 117

amd 2014 No. 40 s 154 sch 1 pt 1

pt 4 div 4 hdg ins 1997 No. 28 s 295 sch 3

54ABuilding management statement may be registered

(1)A building management statement may be registered.

(2)A building management statement is an instrument that—

(a)identifies lots to which it applies; and

(b)contains provisions benefiting and burdening the lots to which it applies; and

(c)otherwise complies with the requirements of this division for a building management statement.

(3)Each lot to which a building management statement applies must be a lot entirely or partly contained in, or entirely or partly containing, 1 or more buildings.

(4)However, a building management statement that otherwise complies with subsection (3) may also apply to a lot that is not entirely or partly contained in, and does not entirely or partly contain, 1 or more buildings if the lot is the subject of a building development approval.

(5)If a lot to which a building management statement applies is the subject of a plan of subdivision, the statement applies to each lot created by the registration of the plan.

(6)In this section—

building development approval means a development approval under the Planning Act for development relating to a proposed building or buildings.

s 54A ins 1997 No. 28 s 295 sch 3

amd 2005 No. 68 s 68; 2007 No. 19 s 208; 2009 No. 36 s 872 sch 2; 2016 No. 27 s 293

54AASingle area for lots to which building management statement applies

(1)The lots to which a building management statement applies must form a single, continuous area of land.

(2)A number of lots are taken to form a single, continuous area of land even if there is a road or watercourse within the external boundaries of the area comprising of the lots.

(3)Despite subsection (1), a building management statement may apply to lots that do not form a single, continuous area of land if the registrar is satisfied, on reasonable grounds, that all the lots are located within an area that is sufficiently limited to ensure the effective and efficient application of the provisions of this division.

s 54AA ins 2005 No. 68 s 69

54BCircumstances under which building management statement may be registered

(1)A building management statement may be registered only if it is signed by the registered owners of all lots to which the statement applies.

(2)The lots to which a building management statement applies must comprise—

(a)2 or more volumetric format lots; or

(b)1 or more volumetric format lots, and 1 or more standard format lots.

(3)In this section, a reference to standard format lot or volumetric format lot is taken to include a reference to common property, if the common property is created on registration of—

(a)a building format plan of subdivision; or

(b)a volumetric format plan of subdivision.

s 54B ins 1997 No. 28 s 295 sch 3

amd 2003 No. 6 s 150; 2005 No. 68 s 70; 2010 No. 12 s 187

54CContent of building management statement

(1)A building management statement must contain provisions about the following—

(a)the supply of services to lots;

(b)rights of access to lots;

(c)rights of support and shelter;

(d)insurance arrangements.

(2)A building management statement may contain provisions about the following—

(a)establishment and operation of a management group;

(b)imposition and recovery of levies, how levy amounts are to be kept and how levy amounts are to be spent;

(c)property maintenance;

(d)architectural and landscaping standards;

(e)dispute resolution;

(f)rules for common services and facilities;

(g)administrative arrangements;

(h)arrangements for accomplishing the extinguishment of the statement;

(i)proposed future development.

(3)To avoid doubt, it is declared that a right of access, support or shelter, or other right in the nature of an easement, under a building management statement may operate according to its terms, and may be effective, despite the absence of a formal registered easement establishing the right.

(4)A dispute resolution provision under a building management statement may operate to require the referral of a dispute arising under the building management statement other than to a court, but the provision is ineffective to the extent that it purports to operate to stop final determination of the dispute in a court of competent jurisdiction.

s 54C ins 1997 No. 28 s 295 sch 3

amd 2005 No. 68 s 71

54DRegistration of building management statement

(1)When registering a building management statement, the registrar must record a reference to the statement on the indefeasible title for each lot to which the statement relates.

(2)However the registrar is not obliged to examine, but may examine, a building management statement for its validity, including, in particular, its consistency with any plan of subdivision, or its compliance with the requirements for a building management statement.

(3)A registered building management statement binds the successors in title to the registered owner of each lot to which the statement applies.

s 54D ins 1997 No. 28 s 295 sch 3

amd 2019 No. 7 s 226

54DAWhen building management statement taken not to be registered

(1)A registered building management statement is taken not to be registered under this Act to the extent it includes a prohibition, requirement or restriction that, under the Building Act 1975, chapter 8A, part 2, has no force or effect.

Editor’s note—

Building Act 1975, chapter 8A, part 2 (Provisions to support sustainable housing)

(2)Subsection (1) has effect only for a building management statement registered after the commencement of this section.

(3)The registrar may refuse to register an instrument purporting to be a building management statement if the registrar is satisfied it includes a prohibition, requirement or restriction that, under the Building Act 1975, chapter 8A, part 2, has no force or effect.

s 54DA ins 2009 No. 51 s 57

54EAmending a building management statement

(1)A building management statement may be amended by registering an instrument of amendment of the building management statement.

(2)The instrument of amendment must be signed by the registered owners of all lots to which the building management statement applies.

(3)The instrument of amendment must not change the lots to which it applies.

s 54E ins 1997 No. 28 s 295 sch 3

amd 2019 No. 7 s 313 sch 1 pt 1

54FBuilding management statement if lots owned by 1 registered owner

A building management statement may be registered even if all the lots to which it applies have the one registered owner.

s 54F ins 1997 No. 28 s 295 sch 3

54GOne person becoming registered owner of all lots

If the one person becomes the registered owner of all lots to which a building management statement applies, the building management statement is extinguished only if the registered owner asks the registrar to extinguish it.

s 54G ins 1997 No. 28 s 295 sch 3

54HExtinguishing a building management statement

(1)A building management statement may be extinguished by registering an instrument of extinguishment of the building management statement.

(2)A building management statement may be extinguished in part to remove a lot that is not contained in, or does not contain, a building or a part of a building, by registering an instrument of partial extinguishment of the building management statement.

(3)The instrument of extinguishment or partial extinguishment must be signed by the registered owners of all lots to which the building management statement applies.

(4)However, a building management statement may be extinguished or partially extinguished only if—

(a)for a partial extinguishment—all registered mortgagees of a lot to be removed consent to the partial extinguishment; or

(b)otherwise—all registered mortgagees of lots to which the building management statement applies consent to the extinguishment.

s 54H ins 1997 No. 28 s 295 sch 3

amd 2005 No. 68 s 72; 2010 No. 12 s 188

54ILots constituted by community titles schemes

(1)For the operation of this division—

(a)a lot could be constituted by the scheme land for a community titles scheme; and

(b)for the signing of the statement, or an amendment, extinguishment or partial extinguishment of the statement, by the registered owner of the lot, the body corporate for the scheme is taken to be the registered owner.

(2)To remove any doubt, it is declared that if a building management statement applies to scheme land for a community titles scheme, the building management statement is binding on the community titles scheme.

(3)Also, if the building management statement provides for the establishment and operation of a management group, a decision made by the management group under the building management statement is binding on the community titles scheme.

(4)Subsections (2) and (3) have effect despite section 97 of the BCCM Act.

(5)To remove any doubt, it is declared that if a building management statement applies to scheme land for a community titles scheme, registration of the building management statement does not, and can not, give the body corporate of the community titles scheme an interest in any particular lot included in the scheme.

s 54I ins 1997 No. 28 s 295 sch 3

amd 2005 No. 68 s 73

54JBuilding management statement affecting freehold and non-freehold land

(1)If a building management statement benefits or burdens both freehold and non-freehold land, the building management statement must be registered in the appropriate registers.

(2)Further dealings affecting the building management statement must also be registered in the appropriate registers.

(3)If a lot subject to a building management statement, including a lot over which a lease is issued under the Land Act 1994, is surrendered to the State to be dealt with under the Land Act 1994, the building management statement continues over the resulting unallocated State land only if the Minister approves the continuation.

(4)In considering whether to approve the continuation of the building management statement, the Minister may consider if it is reasonably necessary to benefit the lots, including the unallocated State land, the subject of the building management statement.

(5)In this section—

Minister means the Minister administering the Land Act 1994.

s 54J ins 2004 No. 9 s 82

55Registering life interests and remainders

The registrar may record in the freehold land register an interest in a lot for life and an interest in remainder in the way the registrar considers appropriate.

56Registering co-owners

(1)In registering an instrument transferring an interest to co-owners, the registrar must also register the co-owners as holding their interests as tenants in common or as joint tenants.

(2)If the instrument does not show whether co-owners are to hold as tenants in common or as joint tenants, the registrar must register the co-owners as tenants in common.

57Separate indefeasible titles for tenants in common

(1)If a lot is, or is to be held, by 2 or more registered owners as tenants in common, the registrar may create a separate indefeasible title for the interest of each owner by including a separate set of particulars in the freehold land register for the interest of each owner.

(2)The registrar may act under this section at the request of an owner.

58Time share schemes

If a registered owner of a lot subject to a time share scheme proposes to transfer to each participant in the scheme an interest as tenant in common with other participants, the registrar may create in the name of the registered owner—

(a)separate indefeasible titles for each interest by including a separate set of particulars in the freehold land register for each interest; or

(b)a single indefeasible title for several interests by including a single set of particulars in the freehold land register for the interests.

59Severing joint tenancy

(1)A registered owner of a lot subject to a joint tenancy may unilaterally sever the joint tenancy by registration of a transfer executed by the registered owner.

(2)However, the registrar may register the instrument of transfer only if the registrar is satisfied the registered owner has given, or made a reasonable attempt to give, each other joint tenant the following—

(a)if the instrument is an electronic conveyancing document—written notice of the registered owner’s intention to sever the joint tenancy under subsection (1);

(b)otherwise—a copy of the instrument.

(3)On registration of the instrument of transfer, the registered owner becomes entitled as a tenant in common with the other registered owners.

(4)If there are more than 2 joint tenants of the lot, the joint tenancy of the other registered owners is not affected.

s 59 amd 2013 No. 17 s 41; 2013 No. 23 s 118

60Registering a transfer

(1)A lot or an interest in a lot may be transferred by registering an instrument of transfer for the lot or interest.

(2)To remove any doubt, part of a lot may not be transferred.

61Requirements of instrument of transfer

(1)An instrument of transfer for a lot or an interest in a lot must—

(a)be validly executed; and

(b)include particulars sufficient to identify—

(i)the lot to be transferred; or

(ii)the lot to which the interest applies; and

(c)include an acknowledgement of the amount paid or details of other consideration; and

(d)for an interest in a lot—include a description sufficient to identify the interest to be transferred.

(2)Subsection (1) does not limit the matters that the appropriate form for an instrument of transfer may require to be included in the instrument.

62Effect of registration of transfer

(1)On registration of an instrument of transfer for a lot or an interest in a lot, all the rights, powers, privileges and liabilities of the transferor in relation to the lot vest in the transferee.

(2)Without limiting subsection (1), the registered transferee of a registered mortgage is bound by and liable under the mortgage to the same extent as the original mortgagee.

(3)Without limiting subsection (1), the registered transferee of a registered lease is bound by and liable under the lease to the same extent as the original lessee.

(4)In this section—

rights, in relation to a mortgage or lease, includes the right to sue on the terms of the mortgage or lease and to recover a debt or enforce a liability under the mortgage or lease.

63Dealing with mortgaged lot

(1)If a lot, or an interest in a lot, subject to a registered mortgage is transferred, the transferee is liable—

(a)to comply with the terms of the mortgage and the terms implied by an Act; and

(b)to indemnify the transferor against liability under the mortgage and under this or another Act.

(2)If a mortgagee of a lot becomes the registered owner of the lot, the registrar must register the mortgagee as registered owner released from the mortgage.

(3)The registrar must act under subsection (2) unless the mortgagee asks the registrar not to act under the subsection.

s 63 amd 2014 No. 29 s 105

64Registering a lease

A lot or part of a lot may be leased by registering an instrument of lease for the lot or part.

65Requirements of instrument of lease

(1)An instrument of lease for a lot or part of a lot must—

(a)be validly executed; and

(b)include a description sufficient to identify the lot or part of the lot to be leased; and

(c)include an acknowledgement of the amount paid or details of other consideration.

(2)If the instrument of lease is for part of the lot, for subsection (1)(b), the instrument must identify the part of the lot by reference to whichever of the following the registrar requires—

(a)a sketch plan in the instrument, drawn to a standard to the registrar’s satisfaction;

(b)a building lease plan, drawn to a standard to the registrar’s satisfaction;

(c)a plan of survey.

(3)However, the registrar may allow the part of the lot to be identified by a description alone if the registrar is satisfied the part of a lot is sufficiently identified by the description in the instrument.

(3A)If the instrument of lease (other than a lease of all or part of a building) is for reconfiguring a lot within the meaning of the Planning Act, the instrument must have been approved by—

(a)if the lot is in a priority development area—MEDQ; or

(aa)if the lot is in a State development area and the reconfiguration is regulated by an approved development scheme—the Coordinator-General; or

(b)otherwise—the relevant local government.

(4)This section does not limit the matters that the appropriate form for an instrument of lease may require to be included in the instrument.

s 65 amd 1994 No. 33 s 7 (retro); 1998 No. 31 s 83; 2001 No. 33 s 27; 2001 No. 92 s 21; 2007 No. 41 s 239; 2009 No. 36 s 872 sch 2; 2012 No. 43 s 221 sch 1; 2014 No. 40 s 154 sch 1 pt 1; 2016 No. 27 s 294; 2020 No. 9 s 31

66Validity of lease or amendment of lease against mortgagee

A lease or amendment of a lease executed after registration of a mortgage of a lot is valid against the mortgagee only if the mortgagee consents to the lease or amendment before its registration.

67Amending a lease

(1)A registered lease may be amended by registering an instrument of amendment of the lease.

(2)However, the instrument of amendment must not—

(a)increase or decrease the area leased; or

(b)add or remove a party to the lease; or

(c)be lodged after the lease’s term has ended.

(3)The term of a registered lease includes a period of possession under the lease because—

(a)an option to renew in the lease has been exercised, whether or not an instrument of amendment has been registered to extend the term of the lease for the option period; or

(b)otherwise—an instrument of amendment extending the term of the lease has been registered.

(4)However, subsection (3)(a) applies to a second or subsequent option to renew in a lease only if, before the end of the option period for the previous option, an instrument of amendment was registered to extend the term of lease for that previous option period.

(5)The procedure for amendment specified in this section is in addition to other rights that are not inconsistent with this Act.

(6)In this section—

option period, for an option to renew in a lease, means the period for which the term of a lease is, or will be, extended by the exercise of the option.

s 67 amd 2013 No. 23 s 119; 2019 No. 7 s 313 sch 1 pt 1

68Re-entry by lessor

(1)If a lessor under a registered lease of a lot or part of a lot lawfully re-enters and takes possession under the lease, the lessor may lodge a request for the registrar to register the re-entry.

(2)The interest of the lessee ends on the registration of the request for the re-entry.

69Surrendering a lease

(1)A registered lease may be wholly or partly surrendered by operation of law or by registering an instrument of surrender of the lease executed by the lessor and the lessee.

(2)However, a registered lease may be surrendered by registering an instrument of surrender only with the consent of every registered mortgagee and registered sublessee of the lessee.

(3)Also, if a registered lease (the surrendered lease) has been wholly or partly surrendered by operation of law, the registrar may register an instrument evidencing the surrender if satisfied every registered mortgagee and registered sublessee of the lessee under the surrendered lease has been given written notice of the surrender.

(4)If an instrument of surrender of lease is lodged, the registrar may register the instrument and record the date of surrender specified in the instrument in the freehold land register.

(5)On registration of an instrument of surrender of a registered lease, the interest of the lessee vests in the lessor.

(6)This section does not apply to a surrender or disclaimer under a law about bankruptcy.

s 69 amd 2019 No. 7 s 227

70Disclaimer in bankruptcy

The registrar may register a disclaimer of a lease or other interest in a lot under a law about bankruptcy only if notice of the disclaimer and a request to register it is lodged.

71Validity of unregistered lease

An unregistered lease of a lot or part of a lot is not invalid merely because it is unregistered.

72Mortgaging lot etc. by registration

(1)A lot or an interest in a lot may be mortgaged by registering an instrument of mortgage for the lot or interest.

(2)However, a mortgage is not an interest in a lot that can be mortgaged.

s 72 amd 2005 No. 68 s 74

73Requirements of instrument of mortgage

(1)An instrument of mortgage must—

(a)be validly executed; and

(b)include a description sufficient to identify the lot to be mortgaged; and

(c)include a description of the debt or liability secured by the mortgage; and

(d)include a description sufficient to identify the interest to be mortgaged.

(2)If the mortgagor is registered as a trustee, a document specifying the details of the trust, or the document creating the trust, must be deposited with the mortgage unless—

(a)a document has already been deposited with an instrument of transfer under section 110(3); and

(b)the details of the trust have not since changed.

(3)Subsection (1) does not limit the matters that the appropriate form for an instrument of mortgage may require to be included in the form.

s 73 amd 1994 No. 33 (retro) s 8; 1994 No. 81 s 527 sch 5 (amd 1995 No. 32 s 23 sch)

74Effect of registration of a mortgage

A registered mortgage of a lot or an interest in a lot operates only as a charge on the lot or interest for the debt or liability secured by the mortgage.

s 74 amd 1994 No. 33 s 9 (retro)

76Amending a mortgage

(1)A registered mortgage may be amended by registering an instrument of amendment of the mortgage.

(2)However, the instrument of amendment must not—

(a)increase or decrease the area of land charged by the mortgage; or

(b)add or remove a party to the mortgage.

77Amending priority of mortgages

(1)The priority of registered mortgages may be amended by registering an instrument amending priority.

(2)The instrument amending priority must—

(a)specify the order of priority of all affected registered mortgages; and

(b)be executed by all mortgagees affected by the amendment.

(3)On registration of the instrument amending priority, the mortgages have priority in the order specified in the instrument.

78Powers of mortgagee

(1)A registered mortgagee of a lot has the powers and liabilities of a mortgagee under the Property Law Act 1974, part 7.

(2)Without limiting subsection (1), but subject to the terms of the mortgage, if the mortgagor defaults under a registered mortgage, the mortgagee may—

(a)take possession of the mortgaged lot in a way that does not contravene the Criminal Code, section 70; or

(b)enter into possession of the mortgaged lot by receiving rents and profits; or

(c)by a proceeding in a court of competent jurisdiction—

(i)obtain possession of the mortgaged lot; or

(ii)foreclose the right of the mortgagor to redeem the mortgaged lot; or

(iii)obtain an order of the court for the sale of the mortgaged lot.

(3)The powers in this section are in addition to other powers exercisable by the mortgagee.

s 78 amd 1994 No. 33 s 10 (retro); 1994 No. 81 s 527 sch 5

79Effect of transfer after sale by mortgagee

If an instrument of transfer executed by a registered mortgagee after the exercise of the power of sale under the mortgage is registered, registration of the instrument vests in the transferee the mortgagor’s interest that is transferred, free from liability under the mortgage and any other mortgage registered after it.

80Liability of mortgagee in possession of leased lot

(1)A mortgagee of a leasehold interest in a lot who enters into possession under the lease (whether by taking the rents or profits or in another way) is liable under the lease to the same extent as the lessee was liable under the lease before the mortgagee entered into possession.

(2)However, the liability of the mortgagee under the lease is limited to the amount of rents, profits or other benefits received by the mortgagee during the mortgagee’s possession.

81Releasing a mortgage

(1)On lodgement of an instrument releasing a mortgage, the registrar may register the release to the extent shown in the instrument of release.

(2)The instrument of release may release the debt or liability secured for—

(a)all or part of the mortgage; or

(b)1 or more of the mortgagors.

(3)On registration of the instrument of release, the mortgage is discharged, and the lot is released from the mortgage, to the extent shown in the instrument of release.

pt 6 div 4 sdiv A hdg om 1997 No. 78 s 82

pt 6 div 4 sdiv B hdg om 1997 No. 78 s 87

81ADefinitions for div 4

In this division—

cane railway easement see the Sugar Industry Act 1999, section 63(5).

def cane railway easement ins 2008 No. 22 s 43 (1)

full supply level see the Water Supply (Safety and Reliability) Act 2008, schedule 3.

def full supply level ins 2003 No. 25 s 11

amd 2008 No. 34 s 751 sch 2

mill owner see the Sugar Industry Act 1999, schedule.

def mill owner ins 2008 No. 22 s 43 (1)

public thoroughfare easement means a public utility easement provided for under section 89(3).

def public thoroughfare easement ins 2005 No. 68 s 75 (1)

public utility easement means an easement in favour of a public utility provider.

public utility provider means—

(a)the State or another entity representing the State; or

(b)the Commonwealth or another entity representing the Commonwealth; or

(c)a local government; or

(d)a person authorised by law to provide a public utility service; or

(e)a person authorised under an Act to provide a particular public utility service;

Examples for paragraph (e)—

a special approval holder under the Electricity Act 1994 or a service provider for a registered service under the Water Supply (Safety and Reliability) Act 2008

(f)an entity approved by the Minister as suitable to provide infrastructure for use by another entity in the provision of a particular public utility service;

Example for paragraph (f)—

a relevant infrastructure owner as defined under the Water Supply (Safety and Reliability) Act 2008 whose infrastructure may be used by another entity authorised to supply a water or sewerage service under that Act

(g)a person approved by the Minister as suitable to provide a particular public utility service; or

(h)a mill owner, but only for the registration of a cane railway easement.

def public utility provider amd 2005 No. 68 s 75 (2); 2008 No. 22 s 43 (2); 2013 No. 23 s 120

s 81A ins 1997 No. 78 s 82

82Creation of easement by registration

(1)An easement over a lot or part of a lot may only be created by registering an instrument of easement.

(2)An easement over a registered lease of a lot may only be created by registering an instrument of easement.

(3)The instrument must state—

(a)the nature of the easement and its terms; and

(b)the land to be benefited, and the land to be burdened, by the easement; and

(c)for a high-density development easement—the purposes under division 4AA for which the easement is created.

(4)For subsection (3)(a), the terms of a high-density development easement are set out in division 4AA.

(5)A public utility easement for water storage may be created only for water storage—

(a)for a weir—on land upstream of the weir and within or outside the storage area at full supply level; or

(b)for a dam—on land upstream of the barrier of the dam and outside the storage area at full supply level.

(6)The instrument creating the easement must show the part of the land over which water may be stored.

s 82 amd 1997 No. 78 s 83; 2001 No. 33 s 28; 2003 No. 25 s 12; 2013 No. 23 s 121; 2014 No. 29 s 106

83Registration of easement

(1)An instrument of easement may be registered only if—

(a)for an easement, other than a high-density development easement, over a part of a lot—a plan of survey designating the easement is registered; and

(b)it is signed by—

(i)the registered owner of the lot or lessee of the registered lease to be burdened; and

(ii)if the easement benefits another lot—the registered owner of the lot; and

(iii)if the easement benefits a registered lease—the lessee; and

(iv)if the easement benefits non-freehold land—the lessee or other person entitled to the land; and

(v)if the easement is a public utility easement—the public utility provider.

(2)If, under the Planning Act, the creation of an easement giving access to a lot from a constructed road is the reconfiguring of a lot, the plan of survey must be approved by—

(a)if the lot is in a priority development area—MEDQ; or

(aa)if the lot is in a State development area and the reconfiguration is regulated by an approved development scheme—the Coordinator-General; or

(b)otherwise—the relevant local government.

(3)However, subsection (2)(a) applies to a plan of survey only if it is a plan of subdivision as defined in the Economic Development Act 2012, section 104(3).

(4)Also, subsection (2)(b) applies to a plan of survey only if it is a plan for which a process for approving the plan is provided under the Planning Act.

s 83 sub 1997 No. 78 s 84

amd 2001 No. 29 s 17; 2007 No. 41 s 240; 2009 No. 36 s 872 sch 2; 2010 No. 21 s 23; 2012 No. 43 s 221 sch 1; 2013 No. 23 s 122; 2014 No. 40 s 154 sch 1 pt 1; 2016 No. 27 s 295

83ARegistration of plan showing proposed easement

(1)A plan designating a proposed easement, other than a high-density development easement, may be registered only if the designation includes the words ‘proposed easement’.

(2)The designation—

(a)does not create an easement; and

(b)is not evidence of a present intention to create an easement.

s 83A ins 1994 No. 81 s 527 sch 5

amd 2013 No. 23 s 123

84Limitation of easements

An easement, other than a high-density development easement, may be limited wholly or partly in height, depth or both.

s 84 amd 2013 No. 23 s 124

85Instrument affecting freehold and non-freehold land

(1)If an easement benefits or burdens both freehold and non-freehold land, the easement must be registered in the appropriate registers.

(2)Further dealings affecting the easement must also be registered in the appropriate registers.

(3)If a lot subject to an easement is surrendered to the State to be dealt with under the Land Act 1994, the easement continues over the resulting unallocated State land only if—

(a)the easement is in favour of a public utility provider; and

(b)the Minister approves continuation of the easement.

(4)If an easement continues over unallocated State land, the continuation must be recorded in the appropriate registers.

s 85 sub 1994 No. 81 s 527 sch 5

85AParticulars to be registered

(1)When an easement is registered, the following particulars must be recorded in the appropriate registers—

(a)the lot burdened by the easement;

(b)any lot benefited by the easement;

(c)any registered lease benefited or burdened by the easement;

(d)if non-freehold land is benefited or burdened by the easement—any registered sublease or sub-sublease benefited or burdened by the easement.

(2)A public utility easement for water storage burdens the whole of the land any part of which may be affected by the storage.

s 85A ins 1997 No. 78 s 85

amd 2001 No. 33 s 29

85BRights and liabilities created on registration of instrument

(1)On registration of the instrument creating an easement, the easement is created and, without anything further, vests in the person entitled to the benefit of it.

(2)If the easement is in favour of a public utility provider and is not a public thoroughfare easement, the registered owner of a lot burdened by the easement may recover from the public utility provider a reasonable contribution towards the cost of keeping the part of the lot affected by the easement in a condition appropriate for enjoyment of the easement.

(3)The liability to contribute may be amended or excluded by agreement.

s 85B ins 1997 No. 78 s 85

amd 2005 No. 68 s 76

86Easement benefiting and burdening same registered owner’s lots

An instrument of easement may be registered even if—

(a)the lot benefited and the lot burdened by the easement have, or are to have, the same registered owner; or

(b)the owner of the lot benefited by the easement holds an interest in the lot burdened by the easement.

87Same person becoming registered owner of benefited and burdened lots

If the same person becomes the registered owner of the lot benefited and the lot burdened by an easement, the easement is extinguished only if—

(a)the registered owner asks the registrar to extinguish the easement; or

(b)the registrar creates a single indefeasible title for the lots.

88Owner of benefited land acquiring interest in burdened land

An easement is not extinguished merely because the owner of the lot benefited by the easement acquires an interest, or a greater interest, in the lot burdened by the easement.

89Easements for public utility providers

(1)Despite section 82(3), it is not necessary to state the land to be benefited in a public utility easement that is not attached to, or used or enjoyed with, other land.

(2)However, a public utility easement mentioned in subsection (1)—

(a)may be registered only for the following—

(i)a right of way;

(ii)drainage or sewerage;

(iii)the supply of water, gas, electricity, telecommunication facilities or another public utility service;

(iv)water storage;

(v)an infrastructure corridor;

(vi)a purpose mentioned in the State Development and Public Works Organisation Act 1971, section 125(1);

(vii)in the case of a cane railway easement in favour of a mill owner—a purpose for which a cane railway easement may be granted under the Sugar Industry Act 1999; and

(b)may be registered in favour of a person mentioned in section 81A, definition public utility provider, paragraph (g), only if the easement is for the public utility service mentioned in the paragraph.

(3)Further, a public utility easement mentioned in subsection (1) may be registered for a right of way for the public only if—

(a)the public utility provider under the easement is the State or a local government; and

(b)use of the easement is limited to the following—

(i)pedestrians;

(ii)cyclists;

(iii)vehicles reasonably necessary for the building and maintenance of the easement.

(4)A registered public thoroughfare easement is taken not to be registered under this Act to the extent it—

(a)is inconsistent with the relevant provisions for the easement; or

(b)purports to provide other than for a public thoroughfare easement.

(5)Subsection (4) has effect only in relation to public utility easements registered after the commencement of this subsection.

(6)The registrar may refuse to register an instrument of easement purporting to be a public thoroughfare easement if the registrar is satisfied it—

(a)is to any extent inconsistent with the relevant provisions for the easement; or

(b)purports to any extent to provide other than for a public thoroughfare easement.

(7)In this section—

infrastructure corridor means an infrastructure corridor under the State Development and Public Works Organisation Act 1971, section 82(8).

pedestrian includes—

(a)anyone who is a pedestrian within the meaning of the Transport Operations (Road Use Management) Act 1995; and

(b)anyone or anything else whose use of an area is commonly associated with pedestrian use of the area.

Example for paragraph (b)—

a child being pushed in a pram, an animal being taken on a leash

relevant provisions, for a public thoroughfare easement, means the provisions about public thoroughfare easements included in—

(a)if the public utility provider under the easement is a local government—the Local Government Act 2009; or

(b)if the public utility provider under the easement is the State—the Transport Infrastructure Act 1994.

Note—

See also the Economic Development Act 2012, section 51AV and the Queen’s Wharf Brisbane Act 2016, section 58 in relation to the registration of public thoroughfare easements.

s 89 amd 1997 No. 28 s 295 sch 3

sub 1997 No. 78 s 86

amd 2001 No. 33 s 30; 2005 No. 68 s 77; 2006 No. 54 s 25; 2008 No. 2 s 44; 2009 No. 17 s 331 sch 1; 2013 No. 23 ss 125, 352 sch 1 pt 1; 2019 No. 11 s 231 sch 1 pt 2

90Surrendering an easement

(1)A registered easement may be wholly or partly surrendered by registering an instrument of surrender of the easement.

(2)The instrument of surrender may be signed by—

(a)the owner of the lot, or the lessee of the lease, burdened by the easement and the owner of the lot benefited by the easement; or

(b)only the owner of the lot, or the lessee of the lease, benefited by the easement; or

(c)only the public utility provider in whose favour the easement is registered.

(3)However, a registered easement may be surrendered only if all registered mortgagees and lessees of the lot, or all registered mortgagees and sublessees of the lease, benefited by the easement consent to the surrender.

(4)Subsection (3) does not apply to a lessee of the lot, or a sublessee of the lease, who does not receive a benefit from the easement.

(5)In this section—

lessee, of a lease, means—

(a)the registered lessee of the lease; or

(b)if the mortgagee of the lease is in possession—the mortgagee in possession.

owner, of a lot, means—

(a)the registered owner of the lot; or

(b)if the mortgagee of the lot is in possession—the mortgagee in possession.

s 90 amd 2005 No. 68 s 78; 2014 No. 29 s 107

90AWhen easement over registered lease ends

(1)A registered easement, to the extent it benefits or burdens a registered lease, ends when the lease ends.

(2)If a registered lease is surrendered in part, to the extent a registered easement benefits or burdens the part of the lease that was surrendered, the easement ends.

(3)The registrar may remove an easement that has ended from the freehold land register.

s 90A ins 2013 No. 23 s 126

amd 2014 No. 29 s 108

91Amending an easement

(1)A registered easement, other than a high-density development easement, may be amended by registering an instrument of amendment of the easement.

(2)However, the instrument of amendment must not—

(a)change the location of the easement; or

(b)increase or decrease the area of land affected by the easement; or

(c)change a party to the easement.

s 91 amd 2013 No. 23 s 127

92Application of Property Law Act 1974, s 181

The Property Law Act 1974, section 181 applies to a registered easement.

pt 6 div 4AA hdg ins 2013 No. 23 s 128

93Application of div 4AA

(1)This division applies if an easement registered under section 82 is a high-density development easement.

(2)A reference in this division to a lot is a reference to a lot the subject of the easement.

s 93 prev s 93 om 1997 No. 78 s 87

pres s 93 ins 2013 No. 23 s 128

94Meaning of high-density development easement

(1)A high-density development easement is an easement created for 1 or more of the following purposes—

(a)support;

(b)shelter;

(c)projections;

(d)maintenance;

(e)roof water drainage.

(2)A high-density development easement may be created only over 2 small, adjoining lots, and only if—

(a)any of the following applies—

(i)a wall of a building situated on 1 of the adjoining lots is also a wall of a building situated on the other adjoining lot, and the wall is on the common boundary of the 2 adjoining lots;

(ii)a wall of a building situated on 1 of the adjoining lots is adjacent to a wall of a building situated on the other adjoining lot, each wall is constructed on the same foundation and the foundation is on the common boundary of the 2 adjoining lots;

(iii)a wall of a building situated on 1 of the adjoining lots is adjacent to a wall of a building situated on the other adjoining lot, each wall is constructed on a separate foundation and each foundation is adjacent to the common boundary of the 2 adjoining lots; or

(b)a relevant development approval, under which a requirement for a circumstance mentioned in paragraph (a)(i), (ii) or (iii) applies as a condition, applies to both adjoining lots.

(3)Each lot to which a high-density development easement relates is benefitted and burdened by the easement to the extent necessary to give effect to the purposes for which the easement is created.

(4)In this section—

relevant development approval means—

(a)a development approval under the Planning Act for any of the following as defined in that Act—

(i)carrying out building work;

(ii)reconfiguring a lot;

(iii)making a material change of use of premises; or

(b)a PDA development approval under the Economic Development Act 2012 for any of the following as mentioned in section 33(2) of that Act—

(i)carrying out building work;

(ii)reconfiguring a lot;

(iii)making a material change of use of premises.

small, for a lot, means the lot has an area of 450m² or less.

s 94 prev s 94 om 1994 No. 81 s 527 sch 5

pres s 94 ins 2013 No. 23 s 128

amd 2014 No. 29 s 109; 2016 No. 27 s 296; 2019 No. 17 s 56

95Easement for support

(1)This section applies if a high-density development easement is created for support.

(2)An easement of lateral or subadjacent support exists in favour of 1 lot (the benefitted lot) against the other lot (the burdened lot) if the burdened lot is capable of supplying lateral or subadjacent support to the benefitted lot.

(3)An easement of common wall support exists in favour of the benefitted lot against the burdened lot when a building on the burdened lot is supplying common wall support to a building on the benefitted lot.

(4)For subsection (3), a building (building A) supplies common wall support to another building (building B) if a wall (the common wall) of building A that is necessary to ensure the general safety and structural integrity of building B—

(a)is also a wall of building B; or

(b)is constructed on the same foundation as, and adjacent to, a wall of building B.

(5)An easement under subsection (2) or (3) entitles the owner of the benefitted lot to enter the burdened lot under the easement to maintain or replace any support.

(6)The owner of the benefitted lot and the owner of the burdened lot are each liable to contribute equally to the cost of maintaining or replacing any support.

(7)The owner of the burdened lot—

(a)must maintain any structures on the burdened lot that provide support; and

(b)must insure, to the extent practicable, any structures on the burdened lot that provide support for—

(i)the full replacement value of the structure; and

(ii)public risk; and

(c)must not remove, change or otherwise interfere with any support, other than as required under paragraph (a), without the written consent of the owner of the benefitted lot.

s 95 prev s 95 amd 1997 No. 28 s 295 sch 3

om 1997 No. 78 s 87

pres s 95 ins 2013 No. 23 s 128

amd 2014 No. 29 s 110

96Easement for shelter

(1)This section applies if a high-density development easement is created for shelter.

(2)An easement exists in favour of 1 lot (the benefitted lot) against the other lot (the burdened lot) entitling the owner of the benefitted lot to have the lot sheltered by the parts of a building situated on the burdened lot that are necessary to supply the shelter.

(3)The easement under subsection (2) entitles the owner of the benefitted lot to enter the burdened lot under the easement to maintain or replace the shelter.

(4)The owner of the burdened lot—

(a)must maintain the parts of the building that supply the shelter; and

(b)must insure, to the extent practicable, any parts of the building that supply the shelter for—

(i)the full replacement value of the structure; and

(ii)public risk; and

(c)must not remove, change or otherwise interfere with any of the parts of the building that supply the shelter, other than as required under paragraph (a), without the written consent of the owner of the benefitted lot.

s 96 prev s 96 om 1997 No. 78 s 87

pres s 96 ins 2013 No. 23 s 128

96AEasements for projections

(1)This section applies if a high-density development easement is created for projections.

(2)An easement exists in favour of 1 lot (the benefitted lot) against the other lot (the burdened lot) to permit parts of a building situated on the benefitted lot, including, for example, eaves, guttering, awnings and window sills, to project over the boundaries of the burdened lot.

(3)The easement entitles the owner of the benefitted lot to enter the burdened lot to maintain or replace the building parts.

(4)The owner of the benefitted lot—

(a)is solely liable for the costs of maintaining or replacing the building parts; and

(b)must insure, to the extent practicable, the building parts for—

(i)their full replacement value; and

(ii)public risk.

(5)The owner of the burdened lot must not remove, change or otherwise interfere with any projection without the written consent of the owner of the benefitted lot.

s 96A ins 2013 No. 23 s 128

96BEasement for maintenance of building close to boundary

(1)This section applies if a high-density development easement is created for maintenance.

(2)An easement exists in favour of 1 lot (the benefitted lot) against the other lot (the burdened lot) entitling the owner of the benefitted lot to enter the burdened lot to carry out maintenance or replacement of a building that is—

(a)on the boundary of the benefitted lot; or

(b)so close to the boundary of the benefitted lot that maintenance or replacement of the building is not able to be carried out without entering the burdened lot.

s 96B ins 2013 No. 23 s 128

96CEasement for roof water drainage

(1)This section applies if a high-density development easement is created for roof water drainage.

(2)An easement exists in favour of 1 lot (the benefitted lot) against the other lot (the burdened lot) to permit a roof water drainage structure that is part of a building situated on the benefitted lot to—

(a)project over the boundaries of the burdened lot; or

(b)be situated on the burdened lot; or

(c)also be part of a building situated on the burdened lot.

(3)For subsection (2), a roof water drainage structure is a structure—

(a)used for collecting rainwater from the roof of a building and conveying the rainwater to a drain or the ground, including, for example, guttering, a downpipe, a drainpipe or a box drain; and

(b)only to the extent the structure is visible and not concealed underground.

(4)The easement entitles the owner of the benefitted lot to enter the burdened lot to maintain or replace the roof water drainage structure.

(5)The owner of the benefitted lot—

(a)is solely liable for the costs of maintaining or replacing the roof water drainage structure; and

(b)must insure, to the extent practicable, the roof water drainage structure for—

(i)its full replacement value; and

(ii)public risk.

(6)The owner of the burdened lot must not, without the written consent of the owner of the benefitted lot—

(a)remove, change or otherwise interfere with the roof water drainage structure; or

(b)obstruct or otherwise interfere with the flow of water through the structure.

(7)However, the owner of the burdened lot may, without the written consent of the owner of the benefitted lot, interfere with the roof water drainage structure to the extent necessary to ensure water flows freely through the structure, including, for example, by removing from the structure a thing that is obstructing the flow of water.

s 96C ins 2013 No. 23 s 128

96DInsurance requirements

(1)A policy of insurance for the full replacement value of a structure required to be taken out under this division—

(a)must cover—

(i)damage; and

(ii)costs incidental to the reinstatement or replacement of the structure, including the cost of taking away debris and the fees of engineers and other professional advisors; and

(b)must provide for the reinstatement of the structure to its condition when new.

(2)A policy of public risk insurance of a structure required to be taken out under this division must cover amounts for—

(a)compensation for death, illness and bodily injury; and

(b)damage to property.

(3)In this section—

damage, for coverage under insurance required to be put in place under this division, means—

(a)earthquake, explosion, fire, lightning, storm, tempest and water damage; and

(b)glass breakage; and

(c)damage from impact, malicious act and riot.

s 96D ins 2013 No. 23 s 128

96ENotice of entry

(1)This section applies if, under this division, the owner of a lot benefitted by a high-density development easement is entitled to enter the lot burdened by the easement to maintain or replace a structure, part of a structure or another thing.

(2)Before exercising the right of entry, the owner of the benefitted lot must give the owner of the burdened lot reasonable notice in writing of the owner’s intention to enter the burdened lot and details of the maintenance or replacement to be carried out.

(3)However, if the structure or other thing is damaged or destroyed and, in the circumstances, urgent maintenance or replacement is required and it is impractical to give a notice under subsection (2)—

(a)the owner of the benefitted lot may exercise the right of entry without giving the notice to carry out the urgent maintenance or replacement; and

(b)as soon as practicable after the entry, the owner of the benefitted lot must give the owner of the burdened lot written notice of the entry and details of the maintenance or replacement carried out.

s 96E ins 2013 No. 23 s 128

97ACovenant by registration

(1)Subject to this section, a lot may be made the subject of a covenant by the registration of an instrument of covenant under this division.

(2)An instrument of covenant may be registered under this division only if the covenantee under the instrument is the State or another entity representing the State, or a local government.

(2A)An instrument of covenant may be registered even if the covenantor under the instrument is the same entity as the covenantee.

(3)The covenant must—

(a)relate to the use of—

(i)the lot or part of the lot; or

(ii)a building, or building proposed to be built, on the lot; or

(b)be aimed directly at preserving—

(i)a native animal or plant; or

(ii)a natural or physical feature of the lot that is of cultural or scientific significance; or

(c)be for ensuring that the lot may be transferred to a person only if there is also transferred to the person—

(i)another lot that is also the subject of the covenant; or

(ii)non-freehold land that, under the Land Act 1994, is the subject of the covenant; or

(iii)a lot mentioned in subparagraph (i) together with non-freehold land mentioned in subparagraph (ii); or

(iv)a registered lease for another lot or part of a lot.

(4)The covenant—

(a)may be a positive covenant or a negative covenant; and

(b)is binding on the covenantor and the covenantor’s successors in title.

(5)The covenant must not prevent a person from—

(a)registering an interest under this Act; or

(b)exercising the person’s rights under a registered interest; or

(c)releasing or surrendering a registered interest.

(6)Also, the covenant must not—

(a)secure the payment of money, or money’s worth, payable under a condition of a development approval, or an infrastructure agreement, under the Planning Act; or

Note—

See also the Planning Act, section 107.

(b)be inconsistent with a planning scheme under the Planning Act that—

(i)applies to the land the subject of the covenant; and

(ii)is in effect when the instrument of covenant is registered; or

(c)provide for anything capable of being the subject of an instrument of easement.

(6A)Subsection (6)(b) does not apply to a covenant if it was entered into under a condition of a development approval, or an infrastructure agreement, under the Planning Act.

(7)For subsection (3)(a), the covenant relates to the use of the lot, a part of the lot, a building on the lot or a building proposed to be built on the lot, only if it provides for—

(a)a purpose for which the lot, the part or the building must be used; or

Examples of covenants for paragraph (a)—

•that a building on the lot must be used for educational purposes

•that the lot must be used for noise attenuation purposes

(b)a purpose that is the only purpose for which the lot, the part or the building may be used; or

Examples of covenants for paragraph (b)—

•that a building on the lot may be used only for residential purposes

•that the lot may be used only for organic farming

(c)a purpose for which the lot, the part or the building must not be used.

Examples of covenants for paragraph (c)—

•that a building on the lot must not be used for a stated commercial purpose

•that the lot must not be used for industrial purposes

(8)For subsection (3)(a), the covenant does not relate to the use of the lot, a part of the lot, a building on the lot or a building proposed to be built on the lot, to the extent it provides for—

(a)an architectural, construction or landscaping standard for the lot or building; or

(b)a statement, acknowledgement or obligation relating to the use of land other than the lot; or

Examples—

•an acknowledgement that the lot is in the vicinity of other land and that the other land is used for industrial purposes

•a statement that the occupier of other land can not be made the subject of any proceedings relating to the occupier’s use of that land

(c)a condition that must be complied with before the lot can be used for a stated purpose or any purpose; or

Example—

a condition that a residence can not be built on the lot until stated utility services are connected

(d)regulation of the conduct of the owner of the lot, if the conduct is unrelated to, or is ancillary to, use of the lot.

Examples for paragraph (d)—

•an obligation not to start proceedings in relation to activities happening on land other than the lot

•an obligation not to use the lot for residential purposes unless a rainwater tank is installed

s 97A ins 1997 No. 28 s 295 sch 3

amd 2000 No. 2 s 28; 2003 No. 6 s 151; 2005 No. 68 s 79; 2009 No. 36 s 872 sch 2; 2010 No. 12 s 189; 2016 No. 27 s 297

97AACompliance with s 97A

(1)A registered instrument of covenant is taken not to be registered under this Act to the extent it is inconsistent with section 97A.

(2)Subsection (1) has effect only in relation to instruments of covenant registered after the commencement of this section.

(3)The registrar may refuse to register an instrument purporting to be an instrument of covenant if the registrar is satisfied it is to any extent inconsistent with section 97A.

(4)However, the registrar need not consider whether an instrument purporting to be an instrument of covenant complies with section 97A(6)(b).

s 97AA ins 2005 No. 68 s 80

amd 2016 No. 27 s 298

97BRequirements of instrument of covenant

(1)An instrument of covenant must—

(a)be validly executed; and

(b)include a description sufficient to identify the land to be the subject of the covenant; and

(c)include a description of the covenant.

(2)Subsection (1) does not limit the matters that the appropriate form for an instrument of covenant may require to be included in the form.

s 97B ins 1997 No. 28 s 295 sch 3

97CAmending an instrument of covenant

(1)A covenant may be amended by registering an instrument of amendment of the covenant.

(2)The instrument of amendment may be registered only if it is validly executed.

(3)However, the instrument of amendment must not—

(a)increase or decrease the area of land the subject of the covenant; or

(b)add or remove a party to the covenant.

s 97C ins 1997 No. 28 s 295 sch 3

amd 2000 No. 2 s 29

97DReleasing a covenant

(1)A registered covenant may be wholly or partly discharged by registering an instrument releasing the covenant.

(2)The instrument must be signed by the covenantee.

(3)On lodgement of the instrument, the registrar may register the release to the extent shown in the instrument.

(4)On registration of the instrument, the covenant is discharged, and the lot is released from the covenant, to the extent shown in the instrument.

s 97D ins 1997 No. 28 s 295 sch 3

sub 2000 No. 2 s 30

97DAApplication of Property Law Act 1974, s 181

The Property Law Act 1974, section 181, applies to a registered covenant.

s 97DA ins 2000 No. 2 s 30

pt 6 div 4B hdg ins 1997 No. 28 s 295 sch 3

97EProfit a prendre by registration

A lot may be made the subject of a profit a prendre by the registration of an instrument of profit a prendre under this division over the lot.

s 97E ins 1997 No. 28 s 295 sch 3

97EAProfit a prendre affecting a lot and non-freehold land

(1)This section applies if an instrument of profit a prendre is registered under section 97E in relation to a lot and the profit a prendre also—

(a)benefits another lot; or

(b)benefits non-freehold land; or

(c)burdens another lot; or

(d)burdens non-freehold land; or

(e)has effect in any combination of paragraphs (a) to (d).

(2)The instrument must be registered in the appropriate registers.

(3)Further dealings affecting the profit a prendre must also be registered in the appropriate registers.

s 97EA ins 2004 No. 4 s 51

97FRequirements of instrument of profit a prendre

(1)An instrument of profit a prendre must—

(a)be validly executed; and

(b)include a description sufficient to identify the lot to be the subject of the profit a prendre; and

(c)include a description of the profit a prendre to which the lot is to be subject, including the period for which the profit a prendre is to be enjoyed.

(2)Subsection (1) does not limit the matters that the appropriate form for an instrument of profit a prendre may require to be included in the form.

s 97F ins 1997 No. 28 s 295 sch 3

97GParticulars to be registered

When registering an instrument of profit a prendre, the registrar must record particulars of the following in the freehold land register—

(a)the lot burdened by the profit a prendre;

(b)any lot benefited by the profit a prendre;

(c)any lease of non-freehold land benefited or burdened by the profit a prendre.

s 97G ins 1997 No. 28 s 295 sch 3

amd 2004 No. 4 s 52

97HProfit a prendre benefiting and burdening same registered owner’s lots

If a lot is to be benefited by a profit a prendre, the instrument of profit a prendre may be registered even if—

(a)the lot benefited and the lot burdened by the profit a prendre have, or are to have, the same registered owner; or

(b)the owner of the lot benefited by the profit a prendre holds an interest in the lot burdened by the profit a prendre.

s 97H ins 1997 No. 28 s 295 sch 3

97ISame person becoming registered owner of benefited and burdened lots

If a lot is benefited by a profit a prendre, and the same person becomes the registered owner of the lot benefited and the lot burdened by the profit a prendre, the profit a prendre is extinguished only if—

(a)the registered owner asks the registrar to extinguish the profit a prendre; or

(b)the registrar creates a single indefeasible title for the lots.

s 97I ins 1997 No. 28 s 295 sch 3

97JOwner of benefited land acquiring interest in burdened land

If a lot is benefited by a profit a prendre, the profit a prendre is not extinguished merely because the owner of the lot benefited by the profit a prendre acquires an interest, or a greater interest, in the lot burdened by the profit a prendre.

s 97J ins 1997 No. 28 s 295 sch 3

97KAmending an instrument of profit a prendre

(1)A profit a prendre may be amended by registering an instrument of amendment of the profit a prendre.

(2)However, the instrument of amendment must not—

(a)increase or decrease the area of land the subject of the profit a prendre; or

(b)add or remove a party to the profit a prendre.

s 97K ins 1997 No. 28 s 295 sch 3

97LReleasing or removing a profit a prendre

(1)On lodgement of an instrument releasing a profit a prendre to which a lot is subject, the registrar may register the release to the extent shown in the instrument of release.

(2)On registration of the instrument of release, the profit a prendre is discharged, and the lot is released from the profit a prendre, to the extent shown in the instrument of release.

(3)Also, the registrar may remove a profit a prendre from the indefeasible title for a lot if a request to remove the profit a prendre is lodged, and it is clearly established that—

(a)the period of time for which the profit a prendre was intended to subsist has ended; or

(b)the event upon which the profit a prendre was intended to end has happened.

s 97L ins 1997 No. 28 s 295 sch 3

97MEffect of surrender of lot on profit a prendre

(1)If a lot subject to a profit a prendre is surrendered to the State, other than absolutely, the profit a prendre is a transaction that must be recorded on the new deed of grant under the Land Act 1994, section 358(5).

(2)If a lot subject to a profit a prendre is surrendered absolutely, the profit a prendre is an interest that, under the Land Act 1994, section 331(2), is extinguished from the day the surrender is registered.

s 97M ins 2004 No. 4 s 53

pt 6 div 4C hdg ins 2011 No. 31 s 335

pt 6 div 4C sdiv 1 hdg ins 2011 No. 31 s 335

97NDefinitions for div 4C

In this division—

carbon abatement interest, for land, means an interest in the land consisting of the exclusive right to the economic benefits associated with carbon sequestration on the land.

carbon abatement product means all or any of the following—

(a)living biomass;

(b)dead organic matter;

(c)soil;

(d)carbon sequestration by, and carbon stored in, a carbon abatement product mentioned in paragraphs (a) to (c).

carbon sequestration, by living biomass, dead organic matter or soil, includes—

(a)the process by which the biomass, matter or soil removes and stores carbon dioxide from the atmosphere; or

(b)the use of the biomass, matter or soil to avoid, reduce or eliminate greenhouse gas emissions.

s 97N ins 2011 No. 31 s 335

pt 6 div 4C sdiv 2 hdg ins 2011 No. 31 s 335

97OCreation only by registration

(1)A carbon abatement interest over a lot—

(a)is created by registering an instrument of carbon abatement interest for the lot; and

(b)can not be created other than under this division.

(2)An instrument of carbon abatement interest must—

(a)be validly executed; and

(b)include—

(i)a description sufficient to identify the lot the subject of the interest; and

(ii)the terms of the interest; and

(iii)the period for which the interest is granted.

(3)If the carbon abatement interest relates to a part of a lot, the instrument may only be registered if—

(a)a plan of survey has been registered, designating the part of the lot as being the subject of a carbon abatement interest; and

(b)the instrument includes a description identifying the part of the lot designated on the registered plan of survey.

(4)This section does not limit the matters that the appropriate form for an instrument of carbon abatement interest may require to be included in the instrument.

s 97O ins 2011 No. 31 s 335

97PRequirements for registration

The registrar may register an instrument creating a carbon abatement interest for a lot only if—

(a)the proposed grantor of the interest is the registered owner of the lot; and

(b)the registrar is satisfied the registered owner is the holder of the right to deal with the carbon abatement product for the lot; and

(c)all holders of a registered interest in the land whose interest may be affected by the proposed carbon abatement interest consent to the proposed grant; and

(d)there are no existing carbon abatement interests registered for the part of the lot to which the proposed carbon abatement interest relates.

s 97P ins 2011 No. 31 s 335

97QGrantor and grantee may be the same

A carbon abatement interest may be registered even though the proposed grantor and proposed grantee of the interest are the same.

s 97Q ins 2011 No. 31 s 335

97RParticular interests not to be registered

(1)This section applies in relation to land in the area of a specified national park.

(2)The registrar must not register a carbon abatement interest for the land in the freehold land register.

s 97R ins 2011 No. 31 s 335

pt 6 div 4C sdiv 3 hdg ins 2011 No. 31 s 335

97SAmending interest

(1)A carbon abatement interest may be amended by registering an instrument of amendment of the carbon abatement interest.

(2)However, the amendment can not—

(a)increase or decrease the area of land the subject of the interest; or

(b)add or remove a party to the interest.

s 97S ins 2011 No. 31 s 335

97USurrendering or removing an interest

(1)On lodgement of an instrument surrendering a carbon abatement interest to which a lot is subject, the registrar may register the surrender to the extent shown in the instrument of surrender.

(2)On registration of the instrument of surrender the interest is surrendered to the extent shown in the document.

(3)Also, the registrar may remove a carbon abatement interest from the indefeasible title of a lot if—

(a)a request to remove the carbon abatement interest is lodged, and the request establishes that—

(i)the period of time for which the carbon abatement interest was intended to exist has ended; or

(ii)an event upon which the carbon sequestration was intended to end has happened; or

(b)the registrar receives a request to remove the interest under an Act of the Commonwealth.

s 97U ins 2011 No. 31 s 335

98Application may not be made about particular matters

(1)An application may not be made under this division if the application—

(a)relates to only a part of a lot; or

(b)is for a lot that may be created in the future by the registration of a plan of subdivision; or

(c)is for a lot the registered owner of which is—

(i)the State or another entity representing the State; or

(ii)a local government; or

(d)relates to possession arising out of an encroachment.

(2)In this section—

encroachment means—

(a)an encroachment within the meaning of the Property Law Act 1974, part 11, division 1; or

(b)the enclosure of a part of a lot with another lot, if—

(i)the enclosure is established by the use of a wall, fence, hedge, ditch, garden bed or other way of marking the boundary between the lots; and

(ii)the wall, fence, hedge, ditch, garden bed or other way of marking the boundary is not on the true boundary between the lots as shown on a registered plan of subdivision.

s 98 sub 2005 No. 68 s 81

99Application for registration

(1)A person (the applicant) may apply to be registered as owner of a lot by lodging an application under this division.

(2)The application must be accompanied by—

(a)the documents of title for the lot that are in the possession or under the control of the applicant; and

(b)the names and addresses, for service of notices, of all registered proprietors and occupiers of lots adjoining the lot.

s 99 amd 2005 No. 68 s 82

100Withdrawal of application

(1)The applicant may withdraw the application at any time before the applicant is registered as owner of the lot under this division.

(2)If the applicant withdraws the application, the registrar must, if asked by the applicant, return all documents lodged or deposited in support of the application.

101Right to make application not affected by death etc.

(1)If a person who may apply to be registered as owner of a lot by lodging an application under this division dies without making the application, the application may be made in the person’s name by the person’s legal personal representative.

(2)If the applicant dies before the application has been dealt with under this division, the application may be continued, and any necessary steps taken, in the person’s name by the person’s legal personal representative.

102Refusal of application

The registrar may refuse to register the applicant as owner of the lot if the registrar is not satisfied that the information and documents in support of the application establish that the applicant is an adverse possessor.

103Notice of application

(1)Before registering the applicant as an adverse possessor, the registrar must, to the extent the registrar considers practicable, give written notice of the application to—

(a)all registered proprietors of the lot and adjoining lots; and

(b)anyone else the registrar considers may have an interest in the lot.

(2)The notice is in addition to the public notice that the applicant must give under section 18(3).

(3)The notice must include a statement to the effect that the applicant will be registered as the owner of the lot if a caveat is not lodged by a specified day.

(4)The specified day must be at least 2 months and not more than 6 months from the day public notice is last required to be given.

s 103 amd 2001 No. 57 s 7

104Objecting by caveat

A person who claims an interest in the lot may lodge a caveat over the lot at any time before the applicant is registered as owner of the lot.

105Lapsing of objector’s caveat

(1)If the registrar—

(a)is not satisfied that the caveator has an interest in the lot; or

(b)is satisfied that any interest that the caveator has in the lot has been extinguished under the Limitation of Actions Act 1974;

the registrar must, by written notice given to the caveator, require the caveator to start a proceeding to recover the lot in the Supreme Court within 6 months after the notice is given.

(2)The caveat lapses unless, within the required time, the caveator—

(a)starts a proceeding in the Supreme Court to recover the lot; and

(b)gives written notice, in the way the registrar requires, to the registrar that the proceeding has started.

(3)The caveat also lapses if—

(a)the proceeding is withdrawn or dismissed; or

(b)judgment in the proceeding is given against the caveator and the time for appealing against the judgment expires without an appeal being lodged; or

(c)if the judgment in the proceeding is given against the caveator and the judgment is appealed—the appeal is dismissed or withdrawn.

(4)In this section—

required time means—

(a)the 6 months mentioned in subsection (1); or

(b)if the registrar proposes to act under section 107(1)(b)—the time allowed under section 107(3).

s 105 amd 2001 No. 57 s 7; 2005 No. 68 s 83; 2013 No. 23 s 129; 2020 No. 9 s 32

106Further objector’s caveat

While the applicant’s application as adverse possessor is still current, a further caveat of the caveator can never be lodged in relation to the interest claimed on the same, or substantially the same, grounds unless the leave of the Supreme Court to lodge the further caveat has been granted.

s 106 sub 2005 No. 68 s 84

amd 2020 No. 9 s 33

107Refusing or compromising application

(1)If the registrar is satisfied that the caveator has an interest in the lot that has not been extinguished under the Limitation of Actions Act 1974, the registrar may—

(a)refuse to register the applicant as owner of the lot; or

(b)register the applicant as the holder of a lesser interest in the lot that the registrar considers appropriately reflects—

(i)the use made of the lot by the applicant; and

(ii)the period that the applicant has used the lot.

(2)If the caveator does not agree to the registration of the applicant for a lesser interest in the lot, the caveator may start a proceeding in the Supreme Court to recover the lot.

(3)The proceeding must be started within 1 month of receiving written notice from the registrar of the registrar’s intention to register the applicant as holder of a lesser interest in the lot.

(3A)Also, the caveator must, within the 1 month mentioned in subsection (3), give written notice, in the way the registrar requires, to the registrar that the proceeding has started.

(4)If the caveator does not start a proceeding within 1 month, the registrar may register the applicant as the holder of a lesser interest in the lot.

s 107 amd 2005 No. 68 s 85; 2013 No. 23 s 130

108Registering adverse possessor as owner

The registrar may register the applicant as owner of all or part of the lot if the registrar is satisfied that the applicant is an adverse possessor of the lot or part of it and—

(a)no caveat has been lodged by the day specified under section 103; or

(b)if a caveat is lodged by the day specified under section 103—

(i)the caveat has lapsed or has been withdrawn, cancelled or removed; and

(ii)a further caveat has not been lodged under section 106.

s 108 amd 2001 No. 57 s 7; 2005 No. 68 s 86

108ARequirements for part of a lot

(1)If, under section 108, the registrar proposes to register the applicant as owner of only a part (the relevant part) of the lot (the relevant lot), the registrar may require the applicant to lodge a plan of subdivision for the relevant lot, subdividing the relevant lot into the following lots—

(a)a lot made up of the relevant part;

(b)a lot made up of the remainder of the relevant lot.

(2)The applicant may sign the plan of subdivision as if the applicant were the registered owner of the relevant lot.

(3)However—

(a)the plan of subdivision must comply with section 50; and

(b)despite the outcome of the applicant’s application as an adverse possessor, the registrar can not proceed under section 108 to register the applicant as owner of the relevant part if section 50 can not be complied with.

(4)The registrar may require that the giving of public notice under section 18(3) and the giving of written notice under section 103(1) be delayed until the applicant satisfies the registrar that the applicant will be able to lodge a plan of subdivision complying with section 50.

s 108A ins 2005 No. 68 s 87

108BConsequences of registration

If, under section 108, the registrar registers the applicant as owner of the lot or a part of the lot, the registrar must—

(a)cancel the registration of the person previously registered as the owner of the lot or the part of the lot; and

(b)create in the applicant’s name an indefeasible title free from all other interests in the lot or the part, other than the following—

(i)any estate, interest, claim, encumbrance or notice registered in favour of an entity that is a public utility provider under division 4;

(ii)any easement or profit a prendre registered over the lot when the application was made under section 99;

(iii)any covenant that, under division 4A, was registered over the lot when the application was made under section 99.

s 108B ins 2005 No. 68 s 87

109How interest as trustee may be registered

(1)A person may be registered as trustee of an interest in a lot only by the registration of—

(a)an instrument transferring the interest to, or creating the interest in favour of, the person as trustee; or

(b)a request to vest the interest in the person as trustee.

(2)For subsection (1)(b), a request to vest an interest in a lot in a person as trustee includes a request to give effect to an order of a court appointing the person as trustee for the sale of the lot.

s 109 amd 1994 No. 81 s 527 sch 5

sub 1997 No. 28 s 295 sch 3

amd 2010 No. 12 s 190 ; 2017 No. 10 s 32

110Instrument of transfer to trustee

(1)An instrument of transfer may be lodged—

(a)to transfer an interest in a lot to a trustee; or

(b)by the registered owner to declare that the registered owner holds the interest in a lot as trustee.

(2)The registrar may register the instrument of transfer.

(3)A document, in the form required by the registrar, stating details of the trust, or a certified copy of a document creating the trust, must be deposited with the instrument of transfer.

(4)The document deposited with the instrument of transfer does not form part of the freehold land register.

s 110 amd 2010 No. 12 s 191; 2019 No. 17 s 57

110AInstrument to vest in trustee

(1)A request to vest may be lodged to vest an interest in a lot in a trustee.

(2)A request to vest must give effect to an order (the vesting order) of a court.

(3)The registrar may register the request to vest.

(4)The vesting order, and all other documents (the other documents) stating details of the trust subject to which the interest is vested in the trustee, must be deposited with the request to vest.

(5)The other documents do not form part of the freehold land register.

(6)The registrar must keep certified copies of the other documents and return the originals to the person who deposited them.

s 110A ins 1997 No. 28 s 295 sch 3

amd 2017 No. 10 s 33

111Registering personal representative

(1)A person may apply to the registrar to be registered as personal representative for a registered proprietor of a lot or an interest in a lot who has died.

(2)The registrar may register the lot or the interest in the lot in the name of the person as personal representative only if—

(a)the person has obtained—

(i)a grant of representation in Queensland; or

(ii)the resealing in Queensland of a grant of representation; or

(b)if paragraph (a) does not apply and the registered proprietor died without a will—

(i)letters of administration of the deceased person’s estate have not been granted in Queensland within 6 months after the death; and

(ii)the gross value of the deceased person’s Queensland estate at the date of death was no more than the amount prescribed by regulation or, if no amount is prescribed, $300,000; and

(iii)the registrar is of the opinion that the person would succeed in an application for a grant of representation; or

(c)if paragraph (a) does not apply and the registered proprietor died leaving a will—

(i)the person is or is entitled to be the deceased’s personal representative; or

(ii)the registrar considers the person would succeed in an application for a grant of representation; or

(iii)the person has obtained a grant of representation other than in Queensland and the registrar considers the person would succeed in an application for the resealing of the grant in Queensland.

(3)A person registered under this section without a grant of representation has the same rights, powers and liabilities as if a grant of representation had been made to the person.

(4)The validity of an act done or payment made in good faith by a person registered under this section is not affected by a later grant of representation.

(5)If the grantee of a grant of representation is different from the person registered under subsection (2), the person registered must—

(a)account to the grantee for all property of the deceased person controlled by the person before the grant; and

(b)take all action necessary to divest from the person and vest in the grantee all property of the deceased person remaining under the person’s control.

s 111 amd 1994 No. 81 s 527 sch 5; 2005 No. 68 s 88; 2014 No. 29 s 111; 2019 No. 7 s 228

112Registering beneficiary

(1)A person who is beneficially entitled under a will to a lot or an interest in a lot of a deceased registered proprietor may apply to the registrar to be registered as proprietor of the lot.

(2)However, the registrar may register the person only if—

(a)written consent is given by—

(i)the person who is or is entitled to be the deceased’s personal representative; or

(ii)a person who, in the registrar’s opinion, would succeed in an application for a grant of representation; or

(iii)a person who has obtained a grant of representation other than in Queensland and would, in the registrar’s opinion, succeed in an application for the resealing of the grant in Queensland; and

(b)the person satisfies the registrar that the person is beneficially entitled to the lot or the interest in the lot.

s 112 amd 1994 No. 81 s 527 sch 5; 2005 No. 68 s 89; 2013 No. 23 s 131; 2017 No. 10 s 34

113Form of application

An application under section 111 or 112 must state—

(a)the lot to which the application refers; and

(b)the interest for which registration is sought; and

(c)the nature of other interests in the lot known to the applicant.

s 113 amd 2001 No. 57 s 7

114Applying for Supreme Court order

(1)This section applies to—

(a)the Attorney-General; or

(b)a trustee or beneficiary under a trust; or

(c)a personal representative, a devisee or anyone else interested in—

(i)a lot of a deceased registered proprietor; or

(ii)a trust involving a lot of a deceased registered proprietor; or

(iii)a lot registered in the name of a person as personal representative.

Example of a person interested in a lot mentioned in subparagraph (iii)—

a person claiming to be entitled to be appointed as personal representative in the place of the person in whose name the lot is registered

(2)A person to whom this section applies may apply to the Supreme Court for an order that a named person be registered as proprietor of a lot.

(3)The Supreme Court may make 1 or more of the following orders—

(a)that a person be registered as proprietor of the lot;

(b)that a person be removed from the freehold land register as proprietor of the lot;

(c)that a caveat be lodged to protect a person’s interest in the lot;

(d)that a person advertise in a specified form, content or way;

(e)that costs be paid by any person or out of any property.

(4)The registrar must register particulars of an order if a request to register the order is lodged and an office copy of the order is deposited.

(5)An order does not vest an interest in the lot until it is registered.

s 114 amd 2019 No. 7 s 229

115Transmission on bankruptcy

The registrar may register a transmission of an interest in a lot under a law about bankruptcy only if a request to register the transmission is lodged.

pt 6A hdg ins 2003 No. 6 s 152

115ABasic concept for pt 6A—community titles scheme

(1)A community titles scheme is the basic concept for this part.

(2)A community titles scheme can only be over freehold land.

s 115A ins 2003 No. 6 s 152

115BMeaning of community titles scheme

(1)A community titles scheme is—

(a)a single community management statement recorded by the registrar identifying land (the scheme land); and

(b)the scheme land.

(2)Land may be identified as scheme land if it consists of—

(a)2 or more lots; and

(b)other land (the common property for the community titles scheme) that is not included in a lot mentioned in paragraph (a).

(3)Land can not be common property for more than 1 community titles scheme.

(4)For each community titles scheme, there must be—

(a)at least 2 lots; and

(b)common property; and

(c)a single body corporate; and

(d)a single community management statement.

(5)A community titles scheme is a basic scheme if all the lots mentioned in subsection (2)(a) are lots under this Act.

(6)However, under this part, a lot may be, for its inclusion in a community titles scheme other than a basic scheme, another community titles scheme.

Note—

BCCM Act, schedule 1 (Illustrations) contains examples of possible structures of community titles schemes.

s 115B ins 2003 No. 6 s 152

amd 2013 No. 23 s 352 sch 1 pt 1

115CMeaning of layered arrangement of community titles schemes

(1)A layered arrangement of community titles schemes is a grouping of community titles schemes—

(a)in which there is 1 community titles scheme (the principal scheme) that—

Note—

See BCCM Act, schedule 1, parts 2 and 3 for examples of layered arrangements of community titles schemes.

(i)is not a lot included in another community titles scheme; and

(ii)is made up of—

(A)the scheme land for all other community titles schemes in the grouping; and

(B)its own common property; and

(C)each lot, if any, that is not a community titles scheme, but that is included in the scheme; and

(b)in which there is at least 1 basic scheme; and

(c)in which there may or may not be 1 or more community titles schemes located between the principal scheme and each basic scheme.

(2)Each community titles scheme, other than the principal scheme, in a layered arrangement of community titles schemes—

(a)is a subsidiary scheme for the principal scheme; and

(b)unless it is a lot included in the principal scheme, may also be a subsidiary scheme for another community titles scheme forming part of the layered arrangement.

(3)A subsidiary scheme, for a community titles scheme (scheme A), is a community titles scheme the scheme land for which forms part of the scheme land for scheme A.

(4)In this Act, the expression included in, if used in the context of the inclusion of a lot in a community titles scheme—

(a)establishes the relationship the lot has to the scheme; and

(b)in general terms, is used to establish that the lot is directly a part of the scheme, rather than only indirectly a part of the scheme.

(5)The diagram and notes in the BCCM Act, schedule 1, part 3 illustrate more comprehensively how the expression ‘included in’ is used.

s 115C ins 2003 No. 6 s 152

amd 2013 No. 23 s 352 sch 1 pt 1

115DProvisions about lots that are community titles schemes

If a community titles scheme (scheme A) includes a lot that is another community titles scheme (scheme B)—

(a)a reference in this Act to the owner of the lot is a reference to the body corporate for scheme B; but

(b)a reference in this Act to a lot included in scheme A does not include a reference to scheme B if the provision is about—

(i)the subdivision of a lot; or

(ii)the indefeasible title for a lot; or

(iii)a lease or mortgage of a lot; or

(iv)the occupier or registered proprietor of a lot.

s 115D ins 2003 No. 6 s 152

115ENames of community titles schemes

(1)The registrar may refuse to record a community management statement for a community titles scheme if the scheme’s identifying name shown in the statement is—

(a)the identifying name in the community management statement for another community titles scheme; or

(b)a name reserved under this division, other than a name reserved by the person seeking to record the community management statement; or

(c)a name reserved under the Building Units and Group Titles Act 1980, section 120; or

(d)a name reserved under the South Bank Corporation Act 1989; or

Note—

See the South Bank Corporation Act 1989, schedule 4, section 9(3A).

(e)in the registrar’s opinion formed on reasonable grounds, undesirable.

(2)The registrar must allocate a unique identifying number for a scheme when the first community management statement is recorded for the scheme.

s 115E ins 2003 No. 6 s 152

amd 2013 No. 23 s 352 sch 1 pt 1

115FReservation of name

(1)The registrar may, on application, reserve a name stated in the application as the identifying name to be shown in the community management statement for a proposed community titles scheme.

(2)The reservation must identify the proposed scheme land for the proposed scheme.

(3)The registrar must reserve the name unless satisfied he or she would refuse to record a community management statement showing the name.

s 115F ins 2003 No. 6 s 152

115GPeriod of reservation

(1)The reservation of an identifying name for a proposed community titles scheme is for an initial period of 2 years and may be extended by the registrar, but only once, for an additional period of 1 year.

(2)The extension may be given only on an application made, within the initial period, by the person for whom the name is reserved.

(3)However, the reservation ends if—

(a)the person withdraws the reservation; or

(b)a community titles scheme is established and the reserved name is the identifying name shown in the community management statement for the scheme.

s 115G ins 2003 No. 6 s 152

115HSingle area for scheme land

(1)Scheme land for a community titles scheme must be made up of a single, continuous area of land.

(2)Scheme land is taken to be made up of a single, continuous area of land even if—

(a)a lot is subdivided under section 53A; or

(b)if paragraph (a) does not apply—there is nevertheless a road or watercourse within the external boundaries of the scheme land.

(3)However, a community titles scheme may be established with scheme land not made up of a single, continuous area of land if all lots that become the scheme land are—

(a)created under a single plan of subdivision; or

(b)in the opinion of the registrar formed on reasonable grounds, located within an area that is sufficiently limited to ensure the scheme can be administered under the BCCM Act efficiently and effectively as a single scheme.

(4)Nevertheless, if subsection (3) applies, and the scheme is later changed to include additional lots or common property, each of the additional lots or common property must form a single, continuous area of land with a part of the scheme land in existence for the scheme immediately before the inclusion of the additional lots or common property.

s 115H ins 2003 No. 6 s 152

amd 2013 No. 23 s 352 sch 1 pt 1

115IEnlarging the number of lots through progressive subdivision

(1)This section applies to a basic scheme for which—

(a)an application for a development approval is made under the Planning Act; or

(b)an application for a development approval, or a request for compliance assessment of development, was made under the repealed Sustainable Planning Act 2009; or

(c)an application for development approval was made under the repealed Integrated Planning Act 1997 on or after 4 March 2003.

(2)The number of lots included in the scheme may be increased through the progressive subdivision of lots to create further lots included in the scheme.

Note—

BCCM Act, schedule 1 (Illustrations), part 4 (Example of progressive subdivision for creating more lots in a scheme) gives an example of the operation of this section.

(3)Subject to subsection (4), the lots may be subdivided by plans of subdivision of a different format from the plan of subdivision that created the original lots if the subdivision is to create a layered arrangement of community titles schemes.

(4)The lots may be subdivided by plans of subdivision of a different format from the plan of subdivision that created the original lots, without creating a layered arrangement of community titles schemes, if each of the following apply to the scheme—

(a)the community management statement states that the lots included in the scheme are to be subdivided by different format plans of subdivision;

(b)the lots are subdivided by different format plans of subdivision;

(c)the contribution schedule lot entitlements equitably reflect the difference in the maintenance requirements of the standard format lots, building format lots and volumetric format lots.

s 115I ins 2003 No. 6 s 152

amd 2009 No. 36 s 872 sch 2; 2013 No. 23 s 352 sch 1 pt 1; 2016 No. 27 s 299

115JLodging request to record a new statement

(1)A request to record a new community management statement for a community titles scheme must be lodged when a new plan of subdivision affecting the scheme (including affecting a lot in, or the common property for, the scheme) is lodged.

(2)A request to record a new community management statement for a community titles scheme may be lodged, and the new statement may be recorded for the scheme, even though a plan of subdivision is not lodged, if all plans of subdivision relating to the scheme, and the new statement, will still be consistent after the new statement is recorded.

s 115J ins 2003 No. 6 s 152

115KRecording community management statements

(1)The registrar may record a community management statement if—

(a)a request to record the statement is lodged; and

(b)the statement is deposited with the request; and

(c)the statement complies with—

(i)section 115H; and

(ii)the requirements of the BCCM Act for a community management statement; and

(d)for a new community management statement—the body corporate’s consent to the recording of the new statement is endorsed on the statement.

(2)A community management statement is not an instrument under this Act.

(3)However, a request to record a community management statement is an instrument, and is lodged, under this Act.

(4)An interest created under a community management statement recorded under subsection (1) does not have effect as a registered interest.

s 115K ins 2003 No. 6 s 152

amd 2005 No. 68 s 90

115LWhen registrar records community management statement

(1)When the registrar records a community management statement for a community titles scheme, the registrar must—

(a)give the statement a unique identifying number; and

(b)record a reference to the community management statement, including its unique identifying number, on—

(i)the indefeasible title for each lot that is scheme land; and

(ii)the indefeasible title for any common property that is scheme land.

(2)However—

(a)the registrar is not obliged to examine, but may examine, a community management statement for its validity, including, in particular, its—

(i)consistency with any plan of subdivision; or

(ii)compliance with the requirements for a community management statement; and

(b)it must not be presumed that a community management statement is valid or enforceable, including, for example, that the by-laws for the scheme included in the statement are valid and enforceable, because the registrar records it; and

(c)neither the validity nor the enforceability of a community management statement, as recorded by the registrar, is guaranteed by the State.

(3)The community management statement takes effect when it is recorded by the registrar as the community management statement for the scheme.

s 115L ins 2003 No. 6 s 152

115MApplication of div 5

(1)This division provides for easements for lots included in, and common property for, a community titles scheme.

(2)However, subject to subsection (3), this division applies to the scheme only if the lots included in the scheme are lots on—

(a)a building format plan of subdivision; or

(b)a volumetric format plan of subdivision; or

(c)a standard format plan of subdivision registered under this Act on or after 13 July 1997.

(3)If a lot is a standard format lot in a community titles scheme intended to be developed progressively and there are no buildings on the lot, this division applies for the lot.

(4)This division has effect for the scheme subject to the provisions of an easement established under another part of this Act.

s 115M ins 2003 No. 6 s 152

115NEasements for support

(1)An easement of lateral or subjacent support exists—

(a)in favour of a lot against another lot capable of supplying lateral or subjacent support; and

(b)in favour of a lot against common property capable of supplying lateral or subjacent support; and

(c)in favour of common property against a lot capable of supplying lateral or subjacent support; and

(d)in favour of common property against other common property capable of supplying lateral or subjacent support.

(2)An easement of common wall support exists—

(a)in favour of a lot (lot X) against another lot when a building on the other lot is supplying common wall support to a building on lot X; and

(b)in favour of a lot against common property when a building on the common property is supplying common wall support to a building on the boundary of the lot; and

(c)in favour of common property against a lot when a building on the lot is supplying common wall support to a building on the boundary of the common property; and

(d)in favour of common property against other common property when a building on the other common property is supplying common wall support to a building on the boundary of the common property.

(3)For subsection (2), a building (building A) supplies common wall support to another building (building B) if a wall (the common wall) of building A is also a wall of building B and the common wall is necessary to ensure the general safety and structural integrity of building A.

(4)An easement for support under subsection (1) or (2)—

(a)entitles the owner of a lot (lot X) to enter a lot or common property supplying support to lot X under the easement to maintain or replace any support; and

(b)entitles the body corporate to enter a lot or common property supplying support to common property under the easement to maintain or replace any support.

(5)An easement for support under subsection (1) or (2) subsists until the scheme no longer exists.

s 115N ins 2003 No. 6 s 152

amd 2013 No. 23 s 132

115OEasements in favour of lots for utility services and utility infrastructure

(1)An easement exists in favour of a lot and against other lots and common property for supplying utility services to the lot and establishing and maintaining utility infrastructure reasonably necessary for supplying the utility services.

(2)However, the exercise of rights under the easement must not interfere unreasonably with the use or enjoyment of the lot or part of common property against which the easement lies.

s 115O ins 2003 No. 6 s 152

115PEasements for utility services and utility infrastructure

(1)An easement exists in favour of common property and against the lots for supplying utility services to the common property and establishing and maintaining utility infrastructure reasonably necessary for supplying utility services to the common property.

(2)However, the exercise of rights under the easement must not interfere unreasonably with the use or enjoyment of the lots against which the easement lies.

s 115P ins 2003 No. 6 s 152

115QEasements for shelter

(1)An easement entitling the owner of a lot to have the lot sheltered by parts of a building within scheme land necessary to supply shelter exists against the lots or parts of common property where the relevant parts of the building are situated.

(2)The easement for shelter under subsection (1) entitles the owner of the lot to enter a lot or common property supplying shelter under the easement to maintain or replace the shelter.

s 115Q ins 2003 No. 6 s 152

115REasements for projections

(1)If eaves, guttering, drainpipes, awnings, window sills, or other minor parts of a building within a lot (lot A) project over the boundaries of another lot (lot B) or common property, an easement exists in favour of lot A and against the part of lot B or common property over which the projection lies, permitting the projection.

(2)The easement entitles the owner of lot A to enter lot B or the common property to maintain or replace the building parts.

s 115R ins 2003 No. 6 s 152

115SEasement for maintenance of building close to boundary

(1)If a building is on the boundary of a lot (lot A) or so close to the boundary of lot A that maintenance or replacement of the building is not able to be carried out without entering another lot (lot B) or common property, an easement exists in favour of lot A and against lot B or the common property.

(2)The easement entitles the owner of lot A to enter lot B or common property to carry out the maintenance or replacement.

s 115S ins 2003 No. 6 s 152

115TRegistration for changes to scheme under approved reinstatement process

(1)If an approved reinstatement process provides for a change to a community titles scheme, the body corporate must lodge—

(a)if appropriate, having regard to the approved reinstatement process, or a community management statement mentioned in paragraph (b)—a plan of subdivision reflecting the approved reinstatement process; and

(b)if appropriate, having regard to the approved reinstatement process, or a plan of subdivision mentioned in paragraph (a)—a request to record a new community management statement; and

(c)a true copy of the approved reinstatement process.

(2)If an approved reinstatement process provides for a change to subdivisional arrangements (not including a change to a community titles scheme), the owners of lots the subject of the approved reinstatement process must lodge—

(a)if appropriate, having regard to the approved reinstatement process—a plan of subdivision reflecting the approved reinstatement process; and

(b)a true copy of the approved reinstatement process.

(3)In this section—

approved reinstatement process means a process, approved under the BCCM Act, section 72 or 74, for reinstating a building.

s 115T ins 2003 No. 6 s 152

amd 2004 No. 4 s 57 sch

115UInstruments required for terminating scheme

(1)If a community titles scheme is to be terminated, a plan cancelling the lots in the scheme must be lodged.

(2)The plan must be lodged by or for—

(a)the body corporate; or

(b)if the District Court made an order under the BCCM Act, section 78(2), for terminating the scheme—a person on whose application the court made the order.

(3)The plan must be accompanied by, as well as any other instrument required under this Act, a copy of—

(a)if the scheme is terminated under a resolution of the body corporate—the resolution to terminate the scheme, and any agreement entered into about termination issues; or

(b)if the scheme is terminated under an order of the District Court—the order.

(4)In this section—

termination issues see the BCCM Act, schedule 6.

s 115U ins 2003 No. 6 s 152

amd 2004 No. 4 s 57 sch

115VRecording termination of scheme

(1)If section 115U is complied with, the registrar must record the cancellation of the community management statement, and must also—

(a)register the termination in the freehold land register; and

(b)cancel the particulars (other than particulars of easements, covenants and other dealings capable of being maintained against scheme land after termination of the scheme) recorded in the freehold land register about scheme land.

(2)The termination takes effect when the registrar completes the action mentioned in subsection (1).

(3)On the termination of the scheme, the registrar must create 1 or more indefeasible titles for all land that, immediately before the termination, was scheme land.

(4)The registered owners for a title mentioned in subsection (3)—

(a)are the persons (former owners) who, immediately before the scheme’s termination, were the owners of the scheme land; and

(b)must be recorded as tenants in common in the shares proportionate to their respective interest schedule lot entitlements immediately before the termination.

(5)If a lot included in the scheme was subject to a mortgage immediately before the scheme was terminated, the former owner’s interest in the land as tenant in common is subject to the mortgage.

s 115V ins 2003 No. 6 s 152

115WRequest to record amalgamation of schemes

(1)A request to record the amalgamation of 2 or more community titles schemes (scheme A and scheme B) must be lodged.

(2)The request must be—

(a)signed by or for the body corporate for scheme A or scheme B; and

(b)lodged by or for—

(i)the bodies corporate for schemes A and B; or

(ii)if the District Court made an order under the BCCM Act, section 85(3), for amalgamating the schemes—a person on whose application the court made the order.

(3)The request must be accompanied by each of the following—

(a)a copy of each resolution, or the order, for the amalgamation of schemes A and B;

(b)the community management statement intended to be recorded for the single, newly established, community titles scheme formed, or to be formed from the amalgamation (scheme C), showing the appropriate consents and notifications;

(c)if schemes A and B are lots included in another community titles scheme and the existing statement for the other scheme is not consistent with the amalgamation of schemes A and B—a new community management statement for the other scheme;

(d)any other instrument required under this Act.

s 115W ins 2003 No. 6 s 152

amd 2004 No. 4 s 57 sch

115XRecording amalgamation of schemes

(1)If the request to record the amalgamation of schemes A and B complies with the BCCM Act (including with an order of the District Court made under that Act about the amalgamation), the registrar must—

(a)record the cancellation of the community management statements for schemes A and B; and

(b)record the community management statement for scheme C and any other community management statement accompanying the request; and

(c)register the amalgamation in the freehold land register.

(2)The amalgamation takes effect when the registrar completes the action mentioned in subsection (1).

s 115X ins 2003 No. 6 s 152

115YRequest to record creation of layered arrangement

(1)A request to record the creation of a layered arrangement of community titles schemes from 2 or more basic schemes (scheme A and scheme B) must be lodged.

(2)The request must be—

(a)signed by or for the body corporate for scheme A or scheme B; and

(b)lodged by or for—

(i)the bodies corporate for schemes A and B; or

(ii)if the District Court made an order under the BCCM Act, section 91(2), for creating the layered arrangement—a person on whose application the court made the order.

(3)The request must be accompanied by each of the following—

(a)a copy of each resolution, or the order, for the creation of the layered arrangement;

(b)the community management statements intended to be recorded for schemes A and B and the principal scheme in the layered arrangement, showing the body corporate consents required under the BCCM Act, section 62 and the community management statement notations required under that Act, section 60;

(c)new community management statements for schemes A and B if the statements will no longer be accurate after the layered arrangement is created;

(d)any other instrument required under this Act.

s 115Y ins 2003 No. 6 s 152

amd 2004 No. 4 s 57 sch

115ZRecording creation of layered arrangement

(1)If the request to record the creation of the layered arrangement complies with the BCCM Act (including with an order of the District Court made under that Act about the layered arrangement), the registrar must—

(a)record the community management statement for the principal scheme in the layered arrangement and any other community management statement accompanying the request; and

(b)register any instrument required, under this Act, to be registered for the layered arrangement.

(2)The creation of the layered arrangement takes effect when the registrar completes the action mentioned in subsection (1).

s 115Z ins 2003 No. 6 s 152

116Registering a writ of execution

The registrar may register a writ of execution only if a request to register it, and an office copy of it, is lodged.

117Effect of registering a writ of execution

For purchasers, lessees, mortgagees and creditors, a writ of execution—

(a)can not, until registered, bind or affect registered lots, whether or not there is actual or constructive notice of the writ; and

(b)binds or affects registered lots only if the writ is executed and put in force within—

(i)6 months of its lodgement; or

(ii)the extended time allowed by the court where the writ is filed and notified to the registrar.

118Cancellation of registration

Registration of a writ of execution may be cancelled if—

(a)a request to cancel it is lodged; and

(b)the registrar is satisfied that the time, or extended time, for executing and putting the writ into force has ended.

119Discharging or satisfying writ of execution

Discharge or satisfaction of a writ of execution may be registered if a request to register it is lodged.

120Transfer of lots sold in execution

(1)If a lot is sold under a registered writ of execution, the sheriff, registrar or clerk of the court of the relevant court may execute an instrument of transfer to the purchaser.

(2)On registration of the transfer, the transferee becomes the registered owner of the lot subject to—

(a)registered interests; and

(b)equitable mortgages notified by caveat lodged before registration of the writ of execution.

120AEffect on writ of execution of transfer after sale by mortgagee

(1)Subsection (2) applies if—

(a)a mortgage is registered over a lot; and

(b)a writ of execution is later registered in relation to the lot.

(2)If the mortgagee of the lot signs a transfer of the lot after exercising power of sale under the mortgage—

(a)registration of the writ of execution does not prevent registration of the transfer; and

(b)on registration of the transfer, the registrar must cancel registration of the writ of execution.

s 120A ins 2001 No. 33 s 31

121Requirements of caveats

(1)A caveat must be signed by or for the caveator.

(2)The caveat must state—

(a)the name of the caveator; and

(b)an address where documents can be served on the caveator; and

(c)unless the registrar dispenses with it, the name and address of—

(i)the registered proprietor of the lot affected by the caveat; and

(ii)each other person whose interest or whose right to registration of an instrument is affected by the caveat; and

(d)the registered interest affected by the caveat; and

(e)if the caveat relates to only a part of a lot—a description of the affected part; and

(f)the interest claimed by the caveator; and

(g)the grounds on which the interest is claimed.

(2A)Without limiting subsection (2)(b), the address stated may be the address of a stated legal practitioner.

(3)This section applies to all caveats under this Act other than a caveat prepared and registered by the registrar under section 17.

s 121 amd 2005 No. 68 s 91; 2019 No. 7 s 230

122Lodging a caveat

(1)A caveat may be lodged by any of the following—

(a)a person claiming an interest in a lot;

(b)the registrar under section 17;

(c)the registered owner of the lot;

(d)a person to whom an Australian court has ordered that an interest in a lot be transferred;

(e)a person who has the benefit of a subsisting order of an Australian court in restraining a registered proprietor from dealing with a lot.

(2)However a caveat may only be lodged by an equitable mortgagee if it is a caveat to which section 126 applies.

(3)To remove any doubt, it is declared that an interest in a lot does not include an interest in a proposed lot under the Land Sales Act 1984 that a person obtains by agreeing to buy the lot under a contract for the sale of the lot.

s 122 amd 1994 No. 33 s 11 (retro); 1997 No. 40 s 30; 2001 No. 57 s 7; 2014 No. 46 s 75 sch 1

123Notifying caveat

The registrar must give written notice of the lodgement of a caveat to each person mentioned in section 121(2)(c)(i) and (ii).

s 123 sub 2019 No. 7 s 231

124Effect of lodging caveat

(1)A caveat prevents registration of an instrument affecting the lot over which the caveat is lodged from the date and time endorsed by the registrar on the caveat as the caveat’s date and time of lodgement.

(1A)Subsection (1) has effect for a caveat until the caveat lapses or is cancelled, rejected, removed or withdrawn.

(2)However, lodgement of a caveat does not prevent registration of the following—

(a)an instrument specified in the caveat as an instrument to which the caveat does not apply;

(b)an instrument if the caveator consents to its registration;

(c)an instrument executed by a mortgagee whose interest was registered before lodgement of the caveat if—

(i)the mortgagee has power under the mortgage to execute the instrument; and

(ii)the caveator claims an interest in the lot as security for the payment of money or money’s worth;

(d)an instrument of transfer of mortgage executed by a mortgagee whose interest was registered before lodgement of the caveat;

(e)if the caveator is a person who has the benefit of an order mentioned in section 122(1)(e)—an instrument for a dealing other than a dealing restrained by the order;

Example—

A caveat lodged by a person who has the benefit of an order mentioned in section 122(1)(e) restrains the registered owner of a lot from transferring or mortgaging the lot. The lodgement of the caveat does not prevent registration of an instrument of lease for the lot.

(f)another interest that, if registered, will not affect the interest claimed by the caveator.

(3)The exceptions mentioned in subsection (2)(c) and (d) do not apply to a caveat lodged by the registrar.

(4)The exception in subsection (2)(d) does not apply to a caveat lodged by the registered owner.

(5)Lodgement of a caveat does not create in the caveator a registrable interest in the lot affected by the caveat.

s 124 amd 1997 No. 28 s 295 sch 3; 2001 No. 33 s 32; 2019 No. 7 s 232

125Withdrawing a caveat

A caveator may withdraw a caveat by lodging a request to withdraw it.

126Lapsing of caveat

(1)This section does not apply to a caveat if—

(a)it is lodged by the registered owner; or

(b)the consent of the registered owner, in the appropriate form, is deposited when the caveat is lodged; or

(c)an office copy of a court order mentioned in section 122(1)(d) or (e) is deposited when the caveat is lodged; or

(d)it is lodged by the registrar under section 17; or

(e)it is lodged other than under this division.

(1A)However, this section applies to a caveat lodged by the registered owner of a lot if—

(a)the lot is subject to a mortgage; and

(b)the grounds stated in the caveat relate to the actions of the mortgagee in relation to—

(i)if the mortgage is registered—registration of the mortgage; or

(ii)the mortgagee’s power of sale.

(2)The caveatee of a caveat to which this section applies—

(a)may serve on the caveator a notice requiring the caveator to start a proceeding in a court of competent jurisdiction to establish the interest claimed under the caveat; and

Note—

See section 131 in relation to the service of notices on the caveator.

(b)if the caveatee serves a notice under paragraph (a)—must, within 14 days after the notice is served, deposit an instrument notifying the registrar of the service of the notice.

(4)If a caveator does not want a caveat to which this section applies to lapse, the caveator must—

(a)start a proceeding in a court of competent jurisdiction to establish the interest claimed under the caveat—

(i)if the caveatee has served a notice under subsection (2)(a) on the caveator and has complied with subsection (2)(b)—within 14 days after the notice is served on the caveator; or

(ii)otherwise—within 3 months after the lodgement of the caveat; and

(b)notify the registrar, by depositing an instrument, within the 14 days or the 3 months that a proceeding has been started and identify the proceeding.

(5)If the caveator does not comply with subsection (4), the caveat lapses.

(6)The caveator is taken to have complied with subsection (4)(a) if, before the caveat was lodged—

(a)a proceeding has been started in a court of competent jurisdiction to establish the interest claimed under the caveat; and

(b)the proceeding has not been decided, discontinued or withdrawn.

(7)The registrar may remove a caveat that has lapsed from the freehold land register.

s 126 amd 1997 No. 28 s 295 sch 3; 2001 No. 57 s 7; 2013 No. 23 s 133; 2017 No. 10 s 35; 2019 No. 7 s 233

127Removing a caveat

(1)A caveatee may at any time apply to the Supreme Court for an order that a caveat be removed.

(2)The Supreme Court may make the order whether or not the caveator has been served with the application, and may make the order on the terms it considers appropriate.

128Cancelling a caveat

(1)The registrar may cancel a caveat if a request to cancel the caveat is lodged and the registrar is satisfied that—

(a)the interest claimed by the caveator has ceased or the claim to it has been abandoned or withdrawn; or

(b)the claim of the caveator has been settled by agreement or otherwise satisfied; or

(c)the nature of the interest claimed does not entitle the caveator to prevent registration of an instrument that has been lodged; or

(d)if the caveator is a person who has the benefit of an order mentioned in section 122(1)(e)—the proceeding in which the order was made has been discontinued or dismissed, or has otherwise ended.

(2)The registrar must notify the caveator of the registrar’s intention to cancel the caveat at least 7 days before cancelling it.

(3)The registrar may cancel a caveat immediately before registering an instrument that has been lodged if the instrument—

(a)will, on registration, give full effect to an interest claimed in the caveat; or

(b)is an instrument of transfer and the registrar is satisfied section 124(2)(c) applies to allow the registration of the instrument.

(4)Also, the registrar may cancel a caveat lodged by a person who has the benefit of an order mentioned in section 122(1)(e) if—

(a)an instrument for a dealing other than a dealing restrained by the order is registered; and

(b)because of the registration of the instrument, the order can have no further effect to restrain dealings by the person subject to the order.

s 128 amd 2013 No. 23 s 134; 2019 No. 7 s 234

129Further caveat

(1)This section applies if a caveat (the original caveat) is lodged in relation to an interest.

(2)A further caveat with the same caveator can never be lodged in relation to the interest on the same, or substantially the same, grounds as the grounds stated in the original caveat unless the leave of a court of competent jurisdiction to lodge the further caveat has been granted.

(3)However, subsection (2) does not apply if the original caveat is a caveat prepared and registered by the registrar under section 17.

s 129 amd 1997 No. 28 s 295 sch 3; 1997 No. 78 s 88

sub 2005 No. 68 s 92

amd 2010 No. 12 s 192

130Compensation for improper caveat

(1)The caveator under a caveat lodged or continued without reasonable cause must compensate anyone else who suffers loss or damage as a result.

(2)In a proceeding for compensation under subsection (1), a court of competent jurisdiction may include in a judgment for compensation a component for exemplary damages.

(3)In a proceeding for compensation under subsection (1), it must be presumed that the caveat was lodged or continued without reasonable cause unless the caveator proves that it was lodged or continued with reasonable cause.

(4)Subsection (1) does not apply to the registrar in relation to a caveat prepared and registered under section 17.

s 130 amd 1997 No. 28 s 295 sch 3; 2010 No. 12 s 193; 2017 No. 10 s 35; 2017 No. 10 s 36

131Notices to the caveator

(1)A notice to a caveator under this division is sufficiently served if left at or sent to the address mentioned in section 121(2)(b).

(2)If the registrar is satisfied that a notice under this division will not reach the caveator if served in the way mentioned in subsection (1), the notice may be served in a way specified in a written direction by the registrar.

(3)If the registrar is informed in writing, and is satisfied, that the name or address of the caveator has changed, the registrar must note on the caveat details of the new name or address.

(4)A new name or address noted under subsection (3) becomes the name or address for service of a notice on the caveator.

s 131 amd 2001 No. 57 s 7

132Instrument not registered until power of attorney registered

An instrument executed under the authority of a power of attorney may be registered only if the power of attorney is registered under this division.

s 132 amd 1994 No. 33 s 12 (retro)

sub 1997 No. 28 s 295 sch 3

133Registering power of attorney

(1)The registrar must keep a register of powers of attorney (the power of attorney register).

(2)The registrar may register a power of attorney by recording particulars of it in the power of attorney register if a request to register it is lodged and the power of attorney is deposited with the request.

(3)The registrar must keep a copy of the registered power of attorney and return the power of attorney to the person who deposited it.

(4)In this section—

power of attorney includes a copy of a power of attorney that has been certified under the Powers of Attorney Act 1998, section 14 or 45.

s 133 sub 1994 No. 81 s 527 sch 5

amd 2013 No. 23 s 135; 2019 No. 7 s 313 sch 1 pt 1

134Effect of registering a power of attorney

(1)An act done by the donee under and in accordance with the terms of a registered power of attorney has the same effect as if the act were done by the donor.

(2)A registered power of attorney is evidence that the donee is authorised to do anything within the terms of the power of attorney.

(3)The registrar may register an instrument executed under a registered power of attorney without being satisfied that the power of attorney has not been revoked.

(4)The registrar must not register an instrument executed under a registered power of attorney if the instrument became effective after—

(a)registration of an instrument of revocation or disclaimer of the power of attorney; or

(b)someone else is registered as owner of the relevant lot after the death or bankruptcy of the donor.

135Revoking or disclaiming a power of attorney

(1)A registered power of attorney may be revoked by registering an instrument of revocation or disclaimer.

(2)This section also applies to enduring powers of attorney.

s 135 amd 1994 No. 33 s 13 (retro)

136Act for a minor

(1)This section applies if—

(a)this Act requires or permits an act to be done by or in relation to a person (the relevant person); and

(b)the relevant person is a minor; and

(c)no person has authority under this or another Act to act for the relevant person for the act.

(2)A person suitably authorised by a court of competent jurisdiction may act for the relevant person for the act.

s 136 prev s 136 om 2000 No. 8 s 263 sch 3

pres s 136 ins 2005 No. 68 s 93

137Act for other person lacking capacity

(1)This section applies if—

(a)this Act requires or permits an act to be done by or in relation to a person (the relevant person); and

(b)the relevant person is not a minor; and

(c)the relevant person does not have capacity for the act.

(2)Subject to the operation of the Guardianship and Administration Act 2000 and the Powers of Attorney Act 1998, a qualified person may act for the relevant person for the act.

(3)In this section—

capacity, for the relevant person for the act, means the relevant person is capable of—

(a)understanding the nature and effect of decisions about the act; and

(b)freely and voluntarily making decisions about the act; and

(c)communicating the decisions in some way.

qualified person means—

(a)an administrator for the relevant person appointed under the Guardianship and Administration Act 2000; or

(b)a person suitably authorised by the relevant person under an enduring power of attorney under the Powers of Attorney Act 1998.

s 137 sub 2005 No. 68 s 93

pt 7A hdg ins 1994 No. 81 s 526 sch 4

sub 2017 No. 10 s 39

138Definitions for part

(1)In this part—

extension request see section 141(1).

priority notice see section 139(1).

related instrument see section 139(2)(d)(ii).

(2)In this part, a reference to an instrument includes a reference to a caveat.

s 138 ins 1994 No. 81 s 526 sch 4

sub 2017 No. 10 s 39

139Depositing priority notice

(1)A notice (a priority notice) for a lot may be deposited by or for a person who is, or will be, a party to an instrument that—

(a)is to be lodged; and

(b)will affect the lot or an interest in the lot.

(2)A priority notice must—

(a)be in the appropriate form; and

(b)state the person’s name; and

(c)be signed by or for the person; and

(d)sufficiently describe—

(i)the lot; and

(ii)each instrument to which the notice relates (each a related instrument); and

(e)state the order in which the related instruments are intended to be lodged.

(3)The related instruments must include the instrument mentioned in subsection (1).

s 139 ins 1994 No. 81 s 526 sch 4

sub 2017 No. 10 s 39

140Effect of priority notice

(1)The deposit of a priority notice for a lot prevents an instrument affecting the lot or an interest in the lot being registered until the notice lapses or is withdrawn, removed or cancelled.

(2)However, the priority notice does not prevent registration of—

(a)an instrument if the person for whom the notice was deposited consents to its registration; or

(b)an instrument of transfer or release of mortgage executed by a mortgagee whose interest was registered before the notice was deposited; or

(c)an instrument lodged before the notice was deposited; or

(d)a related instrument that is lodged in the order stated in the notice; or

(e)a caveat; or

(f)another instrument that, if registered, would not affect an interest the subject of the notice.

(3)Also, the priority notice (the current notice) does not prevent the registration of an instrument to which another priority notice for the lot (the earlier notice) relates if—

(a)the earlier notice was deposited before the current notice; and

(b)the earlier notice has not lapsed or been withdrawn, removed or cancelled.

s 140 ins 1994 No. 81 s 526 sch 4

amd 2013 No. 23 s 352 sch 1 pt 1

sub 2017 No. 10 s 39

amd 2019 No. 17 s 58

141 Extending priority notice

(1)A priority notice may be extended for 30 days by depositing a request (an extension request) to extend the notice.

(2)An extension request must be—

(a)in the appropriate form; and

(b)signed by or for the person for whom the priority notice was deposited; and

(c)deposited within 60 days after the priority notice was deposited.

(3)Only 1 extension request may be deposited for a priority notice.

(4)The deposit of an extension request continues the effect of the priority notice under section 140.

s 141 ins 1994 No. 81 s 526 sch 4

sub 2017 No. 10 s 39

142Lapsing of priority notice

A priority notice lapses on the earliest of the following days—

(a)either—

(i)if an extension request for the notice has been deposited under section 141—the day that is 90 days after the notice was deposited; or

(ii)otherwise—the day that is 60 days after the notice was deposited;

(b)the day when all related instruments have been registered in the order stated in the notice.

s 142 ins 1994 No. 81 s 526 sch 4

sub 2017 No. 10 s 39

amd 2019 No. 17 s 59

143Withdrawing priority notice

(1)A priority notice may be withdrawn by depositing a request to withdraw the notice.

(2)The request must be—

(a)in the appropriate form; and

(b)signed by or for the person for whom the priority notice was deposited.

s 143 ins 1994 No. 81 s 526 sch 4

sub 2017 No. 10 s 39

144Removing priority notice

(1)An affected person for a lot may, at any time, apply to the Supreme Court for an order that a priority notice for the lot be removed.

(2)The Supreme Court may make the order—

(a)whether or not the person for whom the priority notice was deposited has been served with the application; and

(b)on the terms the court considers appropriate.

(3)In this section—

affected person, for a lot the subject of a priority notice, means a person, other than the person for whom the priority notice was deposited, who—

(a)is a registered proprietor of the lot; or

(b)has another interest in the lot.

s 144 ins 1994 No. 81 s 526 sch 4

sub 2017 No. 10 s 39

145Cancelling priority notice

(1)The registrar may cancel a priority notice for a lot if—

(a)a request to cancel the notice is deposited; and

(b)the registrar is satisfied it is unlikely the related instruments for the notice will be lodged before the notice lapses.

(2)The registrar must give written notice of the registrar’s intention to cancel the priority notice to the person for whom the priority notice was deposited at least 7 days before cancelling the notice.

(3)The registrar may give the notice by leaving it at, or sending it to, the address stated in the notice for the person who deposited the notice.

s 145 ins 1994 No. 81 s 526 sch 4

sub 2017 No. 10 s 39

146Compensation for improper priority notice

(1)This section applies if, without reasonable cause—

(a)a priority notice is deposited or extended; or

(b)a priority notice is not withdrawn after it is no longer needed to prevent the registration of an instrument.

(2)The person for whom the priority notice was deposited must compensate another person who suffers loss or damage because of the deposit or extension of the notice, or the failure to withdraw the notice.

(3)In a proceeding for compensation under subsection (2)—

(a)the Supreme Court may include a component for exemplary damages in a judgment for compensation; and

(b)proof there was reasonable cause to deposit or extend the priority notice, or not to withdraw the notice after it was no longer needed to prevent the registration of an instrument, rests on the person for whom the notice was deposited.

s 146 sub 2005 No. 68 s 94; 2017 No. 10 s 39

147Registrar may withdraw instrument

(1)The registrar may withdraw an instrument that has been lodged but prevented from being registered by a priority notice.

(2)The registrar must give written notice of the registrar’s intention to withdraw the instrument to the person who lodged the instrument at least 14 days before withdrawing the instrument.

s 147 ins 1994 No. 81 s 526 sch 4

sub 2017 No. 10 s 39

148Priority of instruments

(1)Instruments lodged, but prevented from being registered by a priority notice, are taken to have been lodged (in the order in which they were lodged) immediately after lodgement of the related instruments for the notice.

(2)This section does not apply to an instrument withdrawn by the registrar under section 147.

s 148 ins 1994 No. 81 s 526 sch 4

sub 2017 No. 10 s 39

amd 2019 No. 17 s 60

149Minor correction of priority notice

(1)This section applies if the registrar receives a written request to correct a priority notice from, or on behalf of, the person for whom the priority notice was deposited.

(2)The registrar may make the correction if the registrar is satisfied the correction is minor.

s 149 ins 1994 No. 81 s 526 sch 4

amd 2013 No. 23 s 352 sch 1 pt 1; 2014 No. 29 s 112

sub 2017 No. 10 s 39

153When instrument capable of registration

The registrar may register an instrument only if—

(a)it complies with this Act; and

(b)it appears on its face to be capable of registration.

155Correcting unregistered instruments

(1)The registrar may correct an obvious error in a lodged plan of survey that is in paper form by—

(a)drawing a line through the error without making the original words illegible; and

(b)writing in the correct information; and

(c)dating and initialling the correction.

(2)The registrar may correct an obvious error in a lodged instrument (other than a plan of survey) by noting the correction—

(a)on the instrument; or

(b)if the instrument is in electronic form—in the appropriate register.

(3)The registrar may correct an obvious error in a lodged instrument only if the registrar is satisfied that the instrument is incorrect and the correction will not prejudice the rights of a person.

(4)An instrument corrected by the registrar under this section has the same effect as if the relevant error had not been made.

s 155 amd 2005 No. 68 s 96; 2013 No. 17 s 42

156Requisitions

(1)The registrar may, by written notice (the requisition) given to a person who has lodged or deposited an instrument or other document, or to another person who reasonably appears to the registrar to be relevantly associated with the instrument or other document require a person—

(a)to re-execute, complete or correct the instrument or document if it appears to the registrar to be wrong, incomplete or defective; or

(b)to produce to the registrar specified information, or deposit a specified instrument or document, in support of the application to register the instrument.

(2)The registrar may require the instrument, document or information to be verified by statutory declaration or affidavit.

(3)The requisition may—

(a)state when, and where, it must be complied with; and

(b)if it relates to an electronic conveyancing document, be accompanied by a copy of the document.

(4)The registrar may extend the time for complying with the requisition.

(5)The registrar may refuse to deal with the instrument or document lodged or deposited (and any instrument that depends on it for registration) until the requisition is complied with.

(6)Also, subsections (7) and (8) apply in relation to an instrument or other document that is lodged if the registrar is satisfied—

(a)the instrument or document is not capable of registration; and

(b)the reason the instrument or document is not capable of registration is not a matter for which a requisition may be given under subsection (1).

(7)The registrar may give written notice (also the requisition) to the person who lodged the instrument or document, or to another person who reasonably appears to the registrar to be relevantly associated with the instrument or document, stating—

(a)that the instrument or document is not capable of registration; and

(b)why the instrument or document is not capable of registration.

(8)The requisition may, if it relates to an electronic conveyancing document, be accompanied by a copy of the document.

s 156 amd 2005 No. 68 s 97; 2013 No. 17 s 43; 2019 No. 7 s 235

156AElectronic communication of statutory declaration or affidavit

(1)A person is taken to have complied with a requirement under section 156(2) to give the registrar a statutory declaration or affidavit (the verifying document) if the person gives a signed electronic form of the verifying document by electronic communication and—

(a)having regard to all the relevant circumstances when the communication was sent, the method of generating the electronic form of the verifying document provided a reliable way of maintaining the integrity of the information it contained; and

(b)when the communication was sent, it was reasonable to expect the information contained in the electronic form of the verifying document would be readily accessible so as to be usable for subsequent reference; and

(c)the registrar consents to the electronic form of the verifying document being given by electronic communication.

(2)The person is taken to have signed the electronic form of the verifying document if—

(a)a method is used to identify the person and to indicate the person’s approval of the information communicated; and

(b)having regard to all the relevant circumstances when the method was used, the method was as reliable as was appropriate for the purposes for which the information was communicated; and

(c)the registrar consents to the electronic form of the verifying document being signed by using the method mentioned in paragraph (a).

s 156A ins 2003 No. 6 s 154

157Rejecting instrument or document after requisition given

(1)The registrar may reject an instrument or document to which a requisition relates and any instrument that depends on it for registration if—

(a)for a requisition given under section 156(1)—the requisition is not complied with by a person within the time stated or extended by the registrar; or

(b)the requisition is given under section 156(7).

(2)An instrument rejected under subsection (1) loses its priority under section 178.

(3)If the registrar rejects an instrument or document under subsection (1) the registrar must—

(a)give a written notice of the rejection to the person to whom the registrar gave the requisition for the instrument or document; and

(b)if the instrument or document is in paper form—return the instrument or document to the person who lodged or deposited it.

(4)A memorandum recording the rejection of an instrument under subsection (1) may be endorsed on the rejected instrument or recorded in a separate record kept in the land registry.

(5)An electronic conveyancing document that has been rejected under subsection (1) can not be relodged.

(6)Subject to subsection (5), this section does not prevent relodgement of an instrument rejected under subsection (1)(a) after the requisition has been complied with.

s 157 amd 2001 No. 57 s 7; 2013 No. 17 s 44; 2019 No. 7 s 236

158Borrowing lodged or deposited instrument before registration

(1)The registrar may permit any of the following persons to borrow an instrument lodged or deposited in paper form before the instrument is registered or used for the purpose for which it was deposited—

(a)the person who lodged or deposited the instrument;

(b)a person for whom the instrument was lodged or deposited;

(c)an agent of a person mentioned in paragraph (a) or (b).

(2)The person must return the instrument to the land registry within the time specified by the registrar.

(3)The registrar may extend the time for returning the instrument.

(4)A person must not fail to return the instrument to the land registry within the time specified or extended by the registrar, unless the person has a reasonable excuse.

Maximum penalty for subsection (4)—50 penalty units.

s 158 amd 2013 No. 17 s 45

159Withdrawing lodged instrument before registration

(1)The registrar may withdraw an instrument, or permit an instrument to be withdrawn, if the registrar is satisfied—

(a)the instrument will not give effect to the intention expressed in it or a related instrument because of the order in which the instrument has been lodged in relation to other instruments; or

(b)the instrument should not have been lodged, including, for example, because the instrument can not be given legal effect.

Example of an instrument that can not be given legal effect—

a power of attorney that names the same person as principal and attorney

(2)An instrument that is withdrawn by the registrar under subsection (1) remains in the land registry, unless the instrument is an instrument that should not have been lodged.

(3)The registrar may relodge an instrument that has been withdrawn by the registrar.

(4)On receiving a written application, the registrar may relodge an instrument that the registrar has permitted to be withdrawn.

(5)An instrument withdrawn under subsection (1) loses its priority and is taken to have been lodged on the date and at the time endorsed on it by the registrar at the time of its relodgement.

(6)Subsection (5) does not apply to a plan of subdivision mentioned in section 53.

s 159 amd 2001 No. 57 s 7; 2014 No. 29 s 113; 2017 No. 10 s 37

160Registrar may call in instrument for correction or cancellation

The registrar may require a person to deposit an instrument for correction or cancellation.

161Execution and proof

(1)For a corporation, an instrument is validly executed if—

(a)it is executed in a way permitted by law; or

(b)the instrument is sealed with the corporation’s seal in accordance with the Property Law Act 1974, section 46.

(2)For an individual, an instrument is validly executed if—

(a)it is executed in a way permitted by law; and

(b)the execution is witnessed by a person mentioned in schedule 1.

(3)However, the registrar may, in exceptional circumstances, register an instrument executed by an individual even though the execution was not witnessed or was not witnessed by a person mentioned in schedule 1.

(3A)If an instrument is executed by a legal practitioner authorised by a transferee or a person in whose favour an interest is created, the execution need not be witnessed.

(4)The witnessing of an instrument may be proved in any way permitted by law.

(5)This section does not apply to a plan of survey.

Note—

Under the Electronic Conveyancing National Law (Queensland), section 9(3)(b), if a registry instrument is digitally signed in accordance with the participation rules applicable to the instrument, the requirements of any other Queensland law relating to the execution, signing, witnessing, attestation or sealing of documents must be regarded as having been fully satisfied.

s 161 amd 1994 No. 81 s 527 sch 5; 2004 No. 11 s 596 sch 1; 2013 No. 23 s 352 sch 1 pt 1; 2013 No. 17 s 46

162Obligations of witness for individual

(1)A person who witnesses an instrument executed by an individual must—

(a)first take reasonable steps to verify the identity of the individual and ensure the individual is the person entitled to sign the instrument; and

(b)have the individual execute the instrument in the presence of the person; and

(c)not be a party to the instrument.

(2)Without limiting subsection (1)(a), the person takes reasonable steps to verify the identity of the individual if the person complies with practices included in the manual of land title practice under section 9A(2) for verifying the individual’s identity.

(3)The person must, for 7 years after the person witnesses the signing of the instrument—

(a)keep a written record of the steps taken under subsection (1)(a); or

(b)keep originals or copies of the documents and other evidence provided to or otherwise obtained by the person in complying with subsection (1)(a).

(4)The registrar may, whether before or after the registration of the instrument, ask the person—

(a)to advise the registrar about the steps taken by the person under subsection (1)(a); and

(b)to produce for the registrar’s inspection the written record mentioned in subsection (3)(a) or the originals or copies mentioned in subsection (3)(b).

(5)The person must comply with a request under subsection (4) unless the person has a reasonable excuse.

Maximum penalty—20 penalty units.

s 162 amd 1994 No. 33 s 14 (retro); 2010 No. 12 s 195

sub 2019 No. 17 s 190

164Dispensing with production of paper instrument

(1)The registrar may dispense with the production of a paper instrument.

(2)The registrar may require evidence that a person seeking to deal with a relevant lot is the registered proprietor, and that the instrument—

(a)has been lost or no longer exists; and

(b)is not deposited as security or for safe custody.

(3)The registrar must record in the freehold land register that production of the instrument has been dispensed with and the date production of it was dispensed with.

s 164 amd 2013 No. 17 s 47; 2017 No. 10 s 38; 2019 No. 7 s 244

165Requiring plan of survey to be lodged

(1)The registrar may require a registered proprietor of a lot who proposes to transfer, lease or otherwise deal with all or part of the lot to lodge a plan of survey of the lot.

(2)The plan of survey must comply with the Survey and Mapping Infrastructure Act 2003 and must be certified as accurate by a cadastral surveyor within the meaning of the Surveyors Act 2003.

s 165 amd 2003 No. 70 s 206 sch 2

166Destroying instrument in certain circumstances

(1)The registrar may destroy a part of the freehold land register or an instrument held in the land registry if the part of the register or the instrument—

(a)is not evidence of an existing interest; or

(b)is evidence of an existing interest of which there is accurate evidence in another part of the register; or

(c)will not be required for registering the effect of a transaction.

(2)The registrar may authorise a person to destroy an instrument held in a place other than an office of the department if the instrument—

(a)was lodged at the place for evidencing, in the land registry, an interest; and

(b)is evidence of an existing interest for which there is accurate evidence in the land registry.

(3)Before destroying a part of the register or an instrument under subsection (1), the registrar must copy it in whatever way the registrar considers appropriate.

(4)However, the registrar, or person acting under an authority given under subsection (2), must not destroy an original will.

(5)The registrar’s powers under subsections (1) and (2) are subject to the Public Records Act 2002.

s 166 amd 2002 No. 11 s 62 sch 1; 2003 No. 6 s 155; 2005 No. 68 s 98; 2019 No. 7 s 245

167Transferor must do everything necessary etc.

A person who, for valuable consideration, executes an instrument to transfer or create an interest in a lot must do everything necessary to give effect to the terms and other matters stated in the instrument or implied by this or another Act.

pt 8 div 2 hdg amd 1997 No. 28 s 295 sch 3

168Meaning of standard terms document in div 2

In this division—

standard terms document means a document containing provisions that are treated as terms of an instrument to which the document is to apply or applies.

s 168 sub 1997 No. 28 s 295 sch 3

168AReferences to registered standard terms document

In sections 170 and 171, a reference to a registered standard terms document includes a standard terms document that has been, or is taken to be, registered under the Land Act 1994.

s 168A ins 2005 No. 68 s 99

169Standard terms document to which instrument refers may be registered

(1)The registrar or another person may lodge a standard terms document and may amend the standard terms document by lodging a further standard terms document.

(2)The lodged standard terms document must be given a distinguishing reference and must be registered.

s 169 amd 1997 No. 28 s 295 sch 3

170Standard terms document that is part of an instrument

All or part of a registered standard terms document, or an amended registered standard terms document, forms part of an instrument if the instrument—

(a)says it forms part of the instrument; and

(b)belongs to a class identified in the standard terms document as an instrument to which the standard terms document applies.

s 170 amd 1997 No. 28 s 295 sch 3

171Instrument not limited to that contained in standard terms document

(1)In addition to the provisions in a registered standard terms document, an instrument may include a provision incorporating other terms into the instrument.

(2)If there is a conflict between the standard terms document and the terms in an instrument, the instrument prevails.

s 171 amd 1997 No. 28 s 295 sch 3

172Withdrawal or cancellation of standard terms document

(1)The registrar may withdraw a registered standard terms document if asked to withdraw it by the person who lodged it.

(2)The registrar may cancel a registered standard terms document lodged by the registrar after giving 1 month’s notice in the gazette.

(3)The registrar must keep and, if asked, produce for inspection a copy of a standard terms document cancelled or withdrawn under this section.

(4)Withdrawal or cancellation of a standard terms document, under this section or the Land Act 1994, does not affect an instrument already registered or executed within 7 days after its withdrawal or cancellation.

s 172 amd 1997 No. 28 s 295 sch 3; 2005 No. 68 s 100

173How an instrument is registered

The registrar registers an instrument in the freehold land register by recording in the freehold land register the particulars necessary to identify the instrument.

174When an instrument is registered

An instrument is registered when the particulars are recorded in the freehold land register.

175Time from when instrument forms part of register etc.

A registered instrument forms part of the freehold land register from when it is lodged.

176Registered instrument operates as a deed

A registered instrument operates as a deed.

177Order of registration of instruments

(1)Instruments affecting a lot, including instruments affecting or creating an interest in the lot, must be registered in the order in which they are lodged.

(2)Subsection (1) is subject to section 159.

(3)Despite subsection (1), if an instrument (instrument 2) affecting a lot is lodged after another instrument (instrument 1) affecting the lot, instrument 2 may be registered before instrument 1 if the registration of instrument 2 can not affect any interest that a person might claim under instrument 1.

Example for subsection (3)—

An instrument of easement over a lot (instrument 1) is lodged for registration. Subsequently, an instrument releasing a mortgage of the lot (instrument 2) is lodged for registration. However, the registrar has given the person who lodged instrument 1 a requisition relating to instrument 1, and instrument 1 can not yet be registered. The registrar could register instrument 2 even though instrument 1 has not been registered.

s 177 sub 1997 No. 28 s 295 sch 3

178Priority of registered instruments

(1)Registered instruments have priority according to when each of them was lodged and not according to when each of them was executed.

(2)An instrument is taken to be lodged on the date and at the time endorsed on the instrument by the registrar as the date and time of the lodgement unless the contrary is proved.

(3)Subsection (1) is not affected by actual, implied or constructive notice.

179Evidentiary effect of recording particulars in the freehold land register

In all proceedings, the particulars of a registered instrument recorded in the freehold land register are conclusive evidence of—

(a)the registration of the instrument; and

(b)the contents of the instrument; and

(c)all terms stated or implied in it by this or another Act; and

(d)when the instrument was lodged and registered.

180Benefits of registration

The benefits of this division apply to an instrument whether or not valuable consideration has been given.

181Interest in a lot not transferred or created until registration

An instrument does not transfer or create an interest in a lot at law until it is registered.

182Effect of registration on interest

On registration of an instrument that is expressed to transfer or create an interest in a lot, the interest—

(a)is transferred or created in accordance with the instrument; and

(b)is registered; and

(c)vests in the person identified in the instrument as the person entitled to the interest.

183Right to have interest registered

A person to whom an interest is to be transferred or in whom an interest has been created has a right to have the instrument transferring or creating the interest registered if—

(a)the instrument has been executed; and

(b)the person lodges the instrument and any documents required by the registrar to effect registration of the instrument; and

(c)the person has otherwise complied with this Act in relation to the registration of the instrument.

184Quality of registered interests

(1)A registered proprietor of an interest in a lot holds the interest subject to registered interests affecting the lot but free from all other interests.

(2)In particular, the registered proprietor—

(a)is not affected by actual or constructive notice of an unregistered interest affecting the lot; and

(b)is liable to a proceeding for possession of the lot or an interest in the lot only if the proceeding is brought by the registered proprietor of an interest affecting the lot.

(3)However, subsections (1) and (2) do not apply—

(a)to an interest mentioned in section 185; or

(b)if there has been fraud by the registered proprietor, whether or not there has been fraud by a person from or through whom the registered proprietor has derived the registered interest.

s 184 amd 2001 No. 57 s 7

185Exceptions to s 184

(1)A registered proprietor of a lot does not obtain the benefit of section 184 for the following interests in relation to the lot—

(a)an equity arising from the act of the registered proprietor;

(b)the interest of a lessee under a short lease;

(c)the interest of a person entitled to the benefit of an easement if its particulars have been omitted from, or misdescribed in, the freehold land register;

(d)the interest of a person who, on application, would be entitled to be registered as owner of the lot because the person is an adverse possessor;

(e)the interest of another registered proprietor making a valid claim under an earlier existing indefeasible title for all or part of the lot;

(f)the interest of another registered owner if there are 2 indefeasible titles for the same interest in the lot and the inconsistency has arisen through failure on transfer to cancel, wholly or partly, the indefeasible title of the first registered owner;

(g)the interest of another registered proprietor if the lot described in the indefeasible title wrongly includes land in which the other registered proprietor has an interest;

(h)the interest of a petroleum authority holder under the Petroleum and Gas (Production and Safety) Act 2004 under an access agreement under that Act that—

(i)was made before the registered proprietor became the registered proprietor of the lot; and

(ii)under that Act, binds the registered proprietor;

(i)the interest of a GHG authority holder under the Greenhouse Gas Storage Act 2009 under an access agreement under that Act that—

(i)was made before the registered proprietor became the registered proprietor of the lot; and

(ii)under that Act, binds the registered proprietor;

(j)the interest of a geothermal tenure holder under the Geothermal Energy Act 2010 under an access agreement under that Act that—

(i)was made before the registered proprietor became the registered proprietor of the lot; and

(ii)under that Act, binds the registered proprietor.

Note—

For when an access agreement mentioned in paragraph (h), (i) or (j) binds the registered proprietor, see the following—

•for the Petroleum and Gas (Production and Safety) Act 2004—sections 507 and 509 of that Act

•for the Greenhouse Gas Storage Act 2009—sections 292 and 294 of that Act

•for the Geothermal Energy Act 2010—sections 225 and 226 of that Act.

(1A)A registered proprietor of a lot (the relevant mortgagee) who is recorded in the freehold land register as a mortgagee of the lot or an interest in the lot does not obtain the benefit of section 184 for the relevant mortgagee’s interest as mortgagee if—

(a)the relevant mortgagee—

(i)in relation to the instrument of mortgage or amendment of mortgage, failed to comply with section 11A(2); or

(ii)in relation to a transfer of the instrument of mortgage, failed to comply with section 11B(2); and

(b)the person who was the mortgagor under the instrument of mortgage or amendment of mortgage was not the person who was, or who was about to become, the registered proprietor of the lot or the interest in a lot for which the instrument was registered.

(1B)For subsection (1A)(b), a person was the mortgagor under an instrument of mortgage or amendment of mortgage if the person executed the instrument as mortgagor, including, if the instrument is an electronic conveyancing document, through a subscriber digitally signing the instrument under the Electronic Conveyancing National Law (Queensland).

(1C)Also, for subsection (1A)(b), a person was the mortgagor under an instrument of mortgage or amendment of mortgage if the instrument is an electronic conveyancing document and the person signed, as mortgagor, a document that under the participation rules under the Electronic Conveyancing National Law (Queensland)—

(a)was required as a supporting document for the instrument of mortgage or amendment of mortgage; and

(b)was required to be kept by the original mortgagee mentioned in section 11A(2).

(2)The interest of the lessee under subsection (1)(b) does not include—

(a)a right to acquire the fee simple or other reversionary interest on or after ending of the short lease; or

(b)a right to renew or extend the term of the short lease beyond 3 years from the beginning of the original term.

(3)For subsection (1)(c), the particulars of an easement (the easement particulars) are taken to have been omitted from the freehold land register only if—

(a)the easement was in existence when the lot burdened by it was first registered, but the easement particulars have never been recorded in the freehold land register against the lot; or

(b)the easement particulars have previously been recorded in the freehold land register, but the current particulars in the freehold land register about the lot do not include the easement particulars, other than because the easement has been extinguished in relation to the lot; or

(c)the instrument providing for the easement was lodged for registration but, because of an error of the registrar, has never been registered.

(4)Subsection (3) applies whether or not the lot has at any time been transferred or otherwise dealt with.

(5)If an issue arises in a proceeding as to whether a person registered as a mortgagee does not obtain the benefit of section 184 because of subsection (1A), proof that the person complied with section 11A(2) or 11B(2) rests on the person.

(6)In subsection (3)(b)—

extinguished includes surrendered.

s 185 amd 2001 No. 57 s 7; 2004 No. 25 s 946; 2005 No. 68 s 101; 2009 No. 3 s 506; 2010 No. 12 s 196; 2010 No. 31 s 519; 2013 No. 17 s 48

186Action to correct wrong inclusion of a lot

(1)If the registrar is satisfied that section 185(1)(g) applies to an indefeasible title, the registrar may correct the indefeasible title.

(2)A person affected by the correction may apply to the Supreme Court for an order that the correction be amended or set aside.

(3)The application must be made within 1 month after the person receives written notice of the correction.

s 186 amd 2001 No. 57 s 7

187Orders by Supreme Court about fraud and competing interests

(1)If there has been fraud by the registered proprietor or section 185(1)(c), (d), (e), (f) or (g) or (1A) applies, the Supreme Court may make the order it considers just.

(2)Without limiting subsection (1), the Supreme Court may, by order, direct the registrar—

(a)to cancel or correct the indefeasible title or other particulars in the freehold land register; or

(b)to cancel, correct, execute or register an instrument; or

(c)to create a new indefeasible title; or

(d)to issue a new instrument; or

(e)to do anything else.

s 187 amd 2001 No. 57 s 7; 2005 No. 68 s 102

pt 9 div 2 sdiv C hdg amd 2005 No. 68 s 103

188Compensation for deprivation of lot or interest in lot

(1)This section applies if a person (the claimant) is deprived of a lot, or an interest in a lot, because of—

(a)the fraud of another person; or

(b)the incorrect creation of an indefeasible title in the name of another person; or

(c)incorrect registration; or

(d)an error in an indefeasible title or in the freehold land register; or

(e)tampering with the freehold land register; or

(f)loss, destruction or improper use of a document deposited or lodged at the land registry or held by the land registry for safe custody; or

(g)an omission, mistake, breach of duty, negligence or misfeasance of or by the registrar or a member of the staff in the land registry; or

(h)the exercise by the registrar of a power in relation to an application or dealing with which the person had no connection.

(2)The claimant is entitled to compensation from the State for the deprivation.

s 188 sub 1997 No. 28 s 295 sch 3

188ACompensation for loss or damage

(1)This section applies if a person (the claimant) suffers loss or damage because of—

(a)the incorrect creation of an indefeasible title in the name of another person; or

(b)incorrect registration; or

(c)an error in an indefeasible title or in the freehold land register; or

(d)reliance on the incorrect state of the freehold land register; or

(e)loss, destruction or improper use of a document deposited or lodged at the land registry or held by the land registry for safe custody; or

(f)omission, mistake, breach of duty, negligence or misfeasance of or by the registrar or a member of the staff of the land registry; or

(g)the exercise by the registrar of a power in relation to an application or dealing with which the person had no connection.

(2)The claimant is entitled to compensation from the State for the loss or damage.

(3)Despite anything in subsection (1) or (2), the claimant is not entitled to compensation under this section for loss or damage caused by the incorrectness of a register kept by the registrar if the registrar may correct the register under section 15.

(4)Subsection (3) does not limit the claimant’s rights to compensation otherwise than under subsections (1) and (2).

s 188A ins 1997 No. 28 s 295 sch 3

amd 2017 No. 10 s 42 sch 1

188AA Compensation for which claim may not be made

(1)The compensation to which a claimant is entitled under section 188 or 188A does not include compensation for personal injury.

(2)In subsection (1)—

personal injury includes loss of income, including loss of income claimed to arise from personal injury, and psychological and psychiatric injury.

s 188AA ins 2005 No. 68 s 104

188BOrder by Supreme Court about deprivation, loss or damage

(1)For section 188 or 188A, a claimant may apply to the Supreme Court for an order—

(a)for compensation to be paid by the State; or

(b)directing the registrar to take stated action.

(2)The court may make the order it considers just.

(3)Without limiting subsection (2), the court may by order direct the registrar to—

(a)cancel or correct an indefeasible title or other particulars in the freehold land register; or

(b)create a new indefeasible title; or

(c)issue a new instrument; or

(d)do anything else.

(4)The court may join any other person it considers appropriate in a proceeding under this section.

s 188B ins 1997 No. 28 s 295 sch 3

amd 2005 No. 68 s 105

188CTime limit for claim

A person applying to the Supreme Court under section 188B for compensation under section 188 or 188A must make the application—

(a)within 12 years after the person becomes aware, or ought reasonably to have become aware, of the circumstances giving rise to the entitlement to compensation; or

(b)within a longer period the court considers just.

s 188C ins 2005 No. 68 s 106