Real Property Act 1886 (SA)

South Australia Real Property Act 1886 An Act to consolidate and amend the Real Property Act 1861, the Real Property Act Amendment Act 1878 and the Rights-of-Way Act 1881, and for other purposes.

Contents Part 1—Preliminary 1 Short title 3 Interpretation 4 Repeal 5 Savings 6 Laws inconsistent not to apply 6A Effect of section 6 7 Lands under previous Acts to be under this Act 8 Land not to be withdrawn Part 2—Objects of this Act 10 Objects 11 Construction Part 3—The Lands Titles Registration Office 12 Lands Titles Registration Office to be at Adelaide 13 Administration of Act 16 Exercise of powers of Registrar-General 17 Delegation 19 Solicitor not to engage in private practice 21 Seal of office 22 Fees etc 23 Accounts of Registrar-General and payment of moneys 23A Payment of moneys received in trust 24 Registrar-General not to be liable for acts done bona fide Part 4—The bringing of land under the Act 25 Land in two classes 26 Land on alienation from Crown to be under Act 27 Lands granted prior to the day on which this Act comes into operation may be brought into operation under this Act 28 Undivided shares and mortgaged land may not be brought under Act except upon conditions 29 Provisions as to surrender of documents etc 30 Statements to be verified by declaration 31 Application, how to be dealt with 32 Titles in three classes 33 Procedure under second class 34 Procedure under third class 35 Notice of application to be published 36 Second and third classes brought under this Act 37 How land to be brought under Act 38 Action to be taken on return of notices or failure of personal service 39 Caveat against bringing land under Act 40 If caveat be received within time limited, proceedings stayed 41 Applicant may withdraw his application 42 Documents of title, if they include other property, to be returned to applicant 43 Certificate to issue in name of deceased applicant proprietor or his nominee 44 Proceedings under caveat 45 Lapse of caveat 46 Reversion expectant on lease not to be extinguished Part 5—Registration of title Division 1—Registration of title in the Register Book 47 Registration of title in the Register Book 49 Folios in Register Book 51 Requirements of memorial 51A Evidentiary Division 2—Registration of title by other methods 51B Registration of title electronically etc 51C Issuing certificates of title 51D Evidentiary Division 2A—Boundaries of registered land 51E Coordinated cadastre Division 3—General 52 Record of registration 53 Retention of records 54 Form of instruments and manner of lodgement 55 Non-compliant documents may be registered or recorded 56 Priority of instruments 56A Registration 57 Effect of registration or recording of instruments 59 Provision for registration in case of death of person 64 Power of court to direct cancellation of certificate or entry 65 Search allowed 66A Lodgement of land grant Part 6—The title of registered proprietors 67 Instruments not effectual until registration 69 Title of registered proprietor indefeasible 70 In other cases title of registered proprietor shall prevail 71 Saving of certain rights and powers 72 Knowledge of trust not evidence of want of bona fides Part 7—Certificates of title 74 Joint tenants and tenants in common 75 Certificates for remainder and reversions 76 Mode of inheritance or succession shall be implied 77 Memorials on certificates 78 Issue of new certificate on application 78A Issue of new certificate on alteration etc Part 7A—Title by possession to land under this Act 80A Application for certificate based on possession 80B Application requirements 80C Application how dealt with 80D Requisitions 80E Notice of application 80F Caveats 80G Power to issue certificates 80H Cancellation of instruments 80I Fees Part 8—Easements 81 Certificates may contain statement of right-of-way or other easement 82 Description of easement 83 Registered proprietor not to be subject to rights-of-way not mentioned in certificate 84 Easement not binding on registered proprietor subsequently acquiring land bona fide for value unless entered on certificate of title 85 Land to be held free of rights-of-way 86 Public rights-of-way etc not within this Act 87 Certificates heretofore issued conclusive evidence of right-of-way therein described 88 Entry as to easement to be made on certificates of title 89 Short form of describing right-of-way 89A Incorporation of long forms of easements in instruments 90 Deposit of plan showing rights-of-way 90A Application of sections 90B, 90C, 90D, 90E and 90F 90B Variation and extinguishment of easements 90C Easement and servient land may be vested in same person 90D Survey of easement 90E No private right-of-way over public street or road 90F Easement subject to existing mortgage etc Part 9—Crown leases 90G Interpretation 91 Interpretation of Crown lease 92 Person now holding under lease or agreement may surrender 93 Execution and registration of Crown Lease 94 Forfeiture etc of Crown Lease 95 Indefeasibility of title under Crown lease 95A Evidentiary 95B Operation of Part in relation to Crown leases and other instruments subject to other Acts Part 10—Transfers 96 Transfers 96AA Creation of easements by reservation 97 Transferee of land subject to mortgage or encumbrance to indemnify transferor 102 Memorial of order for sale of land for non-payment of rates 103 Registration of transfer hereunder 104 Discharge of memorial 105 Sale under writ of fieri facias or decree, warrant or order of court 106 Transfer not to be valid against purchaser until entry of writ 107 Transfer on sale under writ, warrant, decree or order 109 Satisfaction of writ, warrant, decree, or order 110 Lapse of writ, decree, warrant, or order 111 Transfer by registered proprietor to spouse etc 115A Issue of certificate where land is vested by operation of law Part 11—Leases and surrenders 116 Leasing of land 117 Contents of lease 118 Leases not to bind non-consenting mortgagees or encumbrancees 119 Lease for 1 year need not be registered 119A Standard terms and conditions of lease 120 Lease may be surrendered by separate instrument 121 Registrar‑General may record surrender 122 Effect of entry of surrender 123 Surrender where lease subject to mortgage or under-lease 124 Covenants to be implied in every lease against the lessee 125 Powers to be implied in lessor 126 Registrar-General to note particulars of re-entry in Register Book Part 12—Mortgages, encumbrances, and discharges 128 Mortgage of land 128A Obligations of mortgagee 128B Encumbrance of land 129 Contents of mortgage or encumbrance 129A Standard terms and conditions of mortgage or encumbrance 130 Covenant to be implied in every mortgage 130A Implied covenant in encumbrance 131 Subsequent mortgagees or encumbrancees, may redeem prior mortgages etc 132 Nature of mortgage and encumbrance, and procedure in case of default 133 Power of sale 134 Mortgagee's receipt to discharge purchaser 135 Appropriation of proceeds 135A Mode of payment of encumbrance 136 Transfer upon sale by mortgagee or encumbrancee 137 Power of mortgagee to enter, take possession, distrain, let, or bring action for recovery of land 138 Power of mortgagee to distrain on tenant or occupier for arrears not exceeding the amount of rent due 139 Duty of mortgagee of leasehold entering into possession of rent and profits to account 140 Application by mortgagee to Registrar-General for foreclosure 141 Procedure on foreclosure application 142 Effect of order for foreclosure 142A Provision for case where mortgagee or encumbrancee refuses to join in proceedings on default 143 Discharge of mortgages and encumbrances 144 Partial discharge of mortgage or encumbrance on grant of easement 145 Entry of satisfaction of annuity 146 Discharge of mortgage by Minister in certain cases 147 Cancellation of registration of mortgage by Registrar‑General 148A Entry in Register Book where rights of mortgagee barred by Statute 150 Transfer of mortgage, lease and encumbrance 151 Effect of such transfer 152 Covenants implied in transfer of lease 152A Obligation of transferee if mortgage transferred Part 13—Extensions 153 Renewal or extension of mortgage etc 153A Requirements for renewal or extension of mortgage 153B Obligations of mortgagee Part 13A—Priority notices 154A Person who intends to lodge instrument may lodge priority notice 154B Effect of priority notices 154C Registration of instruments identified in priority notice 154D Lodging party need not be informed that instrument cannot be registered or recorded 154E Withdrawal of priority notice 154F Cancellation of priority notice by Registrar-General 154G Cessation of priority notice 154H Registration of instruments after priority notice is no longer in force 154I Civil liability Part 14—Powers of attorney 155 Power of attorney 156 Deposit of duplicate or attested copy 157 Revocation of power of attorney 158 Power of attorney heretofore given 159 Entry of death of grantor 160 Instruments executed before entry of revocation or death to be valid 160A Note of revocation or death may be made on electronic copy of power of attorney Part 15—Trusts and transmissions 161 Trusts contained in grant from the Crown to be inserted in certificate as in original grant 162 No particulars of trust to be entered in Register Book but trust instrument may be deposited 163 Insertion of the words "with no survivorship" in instruments 164 Trustees may authorise insertion of "with no survivorship" 165 Effect of record 166 Court may direct notice to be published before order is made 167 Court may protect persons interested 168 Survivors may perform duties or transfer to new trustees 169 Disclaimers 170 Transmission by bankruptcy or statutory assignment 171 Transmission to be recorded in Register Book 172 Proceedings in case assignment declared void 173 Bankruptcy or assignment of lessee 174 Entry of surrender or foreclosure not to prejudice cause of action 175 Transmission of estate of deceased persons 176 Application to be made in such case 177 Particulars of application to be recorded 178 Effect of such entry 179 Where 2 or more executors or administrators, all must concur 180 Person registered in place of deceased, bankrupt, or assigning proprietor, to be proprietor of land for purpose of dealing 181 Proceedings when executor etc refuse to transfer 182 Court may order transfer to person entitled 183 Court may decide question of title etc 184 Order of Court vesting land 185 Action may be brought by person claiming beneficial interest in name of trustee 186 Purchases from registered proprietor not to be affected by notice 187 Except in case of fraud 188 Registration of survivor of joint proprietors, and of remainder-man entitled to estate in possession Part 16—Caveats 191 Caveats Part 17—Ejectment 192 Summons to give up possession 193 Summons to contain description of land 194 Orders on non-appearance to summons 195 Orders on appearance to summons 196 Dismissal of summons not to prejudice other rights 197 Effect of order for possession 198 Writ of habere facias unnecessary where no one is in possession, or the land is surrendered voluntarily 199 Existing rights preserved Part 18—The Assurance Fund 201 The Assurance Fund 203 Party deprived of land may sue for compensation 204 Exoneration of proprietor after transfer for value, except in certain cases 205 Proceedings against the Registrar-General, as nominal defendant 207 Purchasers etc protected 208 Proceedings against the Registrar-General as nominal defendant 209 Value of buildings to be excluded 210 Persons claiming may, before taking proceedings, apply to the Registrar‑General for compensation 210A Value of land determined by market value 210B Registrar‑General may use Fund money 211 Assurance Fund not liable for breach of trust or improper exercise of power of sale 212 Nor for misdescription of boundaries or parcels except in certain cases 213 Procedure upon, and enforcement of claims against the Assurance Fund 214 Proceedings where same land is included in two or more grants from the Crown. Assurance Fund not liable in such case 215 Limitation of actions 216 Court to have regard to contributory negligence 217 Payments out of Assurance Fund to be deemed made on account of certain persons 218 Moneys paid out of the Assurance Fund may be recovered 219 Judgment may be entered by Registrar-General for amount paid on account of absent persons Part 19—Special powers and duties of Registrar-General 220 Powers of Registrar-General 220A Registrar-General may require production or verification of documents or information 221 Reviews 223 Registrar-General may refer question of law Part 19A—Rectification of certificates 223A Applications for amendment 223B Notices to be given 223C Power of Registrar-General to reject 223D Caveats 223E Grant of application 223F Alterations of certificate in bringing land under this Act 223G Amendment of title 223H Notice of amendment of title 223J Rectification by consent 223K Saving of other powers 223L Operation of corrections Part 19AB—Division and amalgamation of allotments Division 1—Preliminary 223LA Interpretation 223LB Unlawful division of land 223LC Application of this Part Division 2—General procedures to be observed in relation to division of land 223LD Application for division 223LDA Application may deal with statutory encumbrances 223LE Deposit of plan of division in Lands Titles Registration Office 223LF Streets, roads etc 223LG Service easements 223LH Consent to plans of division 223LI Assessment of stamp duty Division 3—Amalgamation 223LJ Amalgamation Division 5—Miscellaneous provisions 223LP Regulations Part 20—Procedure and penalties 226 Forms of summons by Registrar-General 227 On refusal or neglect of person summoned, Registrar-General may apply to Judge 228 Declarations 229 Offences 230 Perjury 232 Certifying incorrect documents 232A Offences relating to verification of identity 232B Offences relating to verification of authority 233 Other offences 234 Certificate etc procured by fraud to be void 240 Conviction not to affect civil remedy Part 20A—Client authorisation 240A Client authorisation 240B Effect of client authorisation 240C Termination of client authorisation 240D Instruments to be executed by natural persons 240E Client authorisation may be given by Crown or statutory corporation 240F Legal practitioner and registered conveyancer must obtain authorisation 240G Retention of client authorisation Part 21—Miscellaneous 241 Plans and maps 242 Diagrams of land in certificates of title 242A Cases where measurements not required 244 Provision for person under disability of infancy or mental incapacity 245 Court may appoint guardian 246 Unregistered instruments to confer claim to registration 247 Informal documents may be registered 248 Memorial to be entered 249 Equities not abolished 250 Lis pendens not to be registered 251 No title by adverse possession 252 Corporations and district councils to furnish Registrar-General with plans of new streets etc 253 Surveyor-General to furnish Registrar-General with particulars of orders confirming opening of new roads etc 254 Alteration of plans 255 Confused boundaries 258 Reference to Real Property Acts 259 General powers of Court not affected 260 Valuable consideration may be proved by prior instruments 261 General covenants to be implied in instruments 262 Implied powers and covenants may be modified or negatived 263 In action for breach, party may be proceeded against as if he had covenanted in express words 264 Implied covenants to be joint and several 265 Short forms of covenants in mortgages and leases 266 Short form for expressing exception of mines and minerals 267 Witnessing of instruments 268 Improper witnessing 270 Execution of instrument by corporation 273 Authority to register 273AA Proof of authority of unrepresented parties to enter into transaction 273A Verification of identity requirements 273B Verification of authority guidelines 274 Solicitors and conveyancers to be generally entitled to recover fees for work done under this Act 275 Forms in Schedules 276 Service of notices 276A Evidence of instruments lodged electronically 277 Regulations Schedule 1—Transitional provisions Schedule 2—Application to bring land under the provisions of the Real Property Act 1886 Schedule 3—Caveat forbidding lands to be brought under the Real Property Act 1886 Schedule 5—A free and unrestricted right‑of‑way Schedule 6—Short forms of easements and their interpretation Schedule 16—Short forms of covenants and their interpretation Schedule 17—Short form of exception of mines and minerals and its interpretation Schedule 22—Summons by Registrar-General Legislative history