Registration of Deeds Act 1935

Registration of Deeds Act 1935

An Act to consolidate and amend the law relating to the registration of deeds, wills, judgments, and other instruments affecting land in this State

Be it enacted by His Excellency the Governor of Tasmania, by and with the advice and consent of the Legislative Council and House of Assembly, in Parliament assembled, as follows:

PART I - Preliminary

1.   Short title

This Act may be cited as the Registration of Deeds Act 1935 .

2.   

[Section 2 Repealed by 25 Geo. V No. 78 ].  .  .  .  .  .  .  .  

3.   Application of Act

[Section 3 Amended by No. 19 of 1980, s. 171 and Sched. 1 (Pt. II) ]This Act shall not apply to –

(a) instruments, wills, or letters of administration, or survey plans, in so far as they affect land under the provisions of the Land Titles Act 1980 , or instruments which are registered, or require to be registered, under the provisions of that Act;

(b) bona fide leases at a rack rent for any term less than 14 years.

4.   Saving as to registration of powers of attorney

[Section 4 Amended by No. 9 of 2003, Sched. 1, Applied:16 Apr 2003] Nothing in this Act shall render it necessary to register a power of attorney in any other manner than that provided by the Powers of Attorney Act 2000 .

5.   Interpretation

[Section 5 Amended by No. 90 of 1974, s. 2 ][Section 5 Amended by No. 48 of 1990, s. 20 ][Section 5 Amended by No. 68 of 1994, s. 3 and Sched. 1 ]In this Act, unless the contrary intention appears –

index includes a copy of an index made pursuant to section 43 (1) ;

instrument means any deed, judgment, document, or writing (other than a will or letters of administration) affecting or intended to affect land in this State;

judgment means –

(a) any judgment, decree, rule, or order in any action, suit, or original proceeding given or made by the High Court of Australia or any court of record in this State, whereby any sum of money is made payable, or which affects or is intended to affect land in this State;

(b) any judgment, decree, rule, or order in any action, suit, or original proceeding which has, by virtue of the Service and Execution of Process Act 1992 of the Commonwealth or the Supreme Court Civil Procedure Act 1932 , the effect of a judgment of a court in this State;

letters of administration means any letters of administration issued out of or resealed by the Supreme Court, and includes any document authorizing the Public Trustee to administer the estate of a deceased person;

Registry means the Registry of Deeds.

PART II - [Part II Heading amended by 25 Geo. V No. 78 ]Registration of Instruments

Division I - The Registry

6.   The Registry of Deeds

The Registry shall be the office for the registration of instruments, wills, and letters of administration, and other documents as provided by this Act.

7.   Administration of Act

[Section 7 Substituted by No. 48 of 1990, s. 21 ]

(1)  The administration of this Act is vested in the Recorder of Titles appointed under section 4 (1) of the Land Titles Act 1980 (in this Act referred to as "the Registrar").

(2)  The provisions of sections 6 , 7 and 8 of the Land Titles Act 1980 relating to things done by the Deputy Recorder or an Assistant Recorder under that Act have effect in respect of any thing done by the Deputy Recorder or an Assistant Recorder under this Act.

(3)  A reference to the Registrar of Deeds in this or any other Act or document shall be read as a reference to the Recorder of Titles.

8.   Deputy-Registrar

[Section 8 Amended by No. 29 of 1984, s. 3 and Sched. 1 ][Section 8 Amended by No. 5 of 1990, s. 3 and Sched. 1 ]The Secretary of the Department may appoint a person employed in the Department to be Deputy-Registrar of Deeds, and all acts and things by this or any other Act required or authorized to be done by the Registrar may be done by the Deputy-Registrar, and every act and thing so done by the Deputy-Registrar shall be as valid and effectual as if the same had been done by the Registrar.

Division II - Registration of instruments

9.   Deeds to take effect according to priority of registration

(1)  All instruments which are executed or made in good faith and for valuable consideration, and are registered under the provisions of this Act, shall have and take priority, not according to their respective dates, but according to the priority of the registration thereof only.

(2)  For the purposes of this section an instrument shall be deemed to have been made in good faith if it is executed or taken in good faith by the purchaser.

10.   Wills, &c., to be registered

All wills and letters of administration which affect, or are intended to affect, land in this State shall be registered under this Act.

11.   Effect of registration of judgments

(1)  Subject to this section, every judgment whereby any sum of money is made payable, whether registered before or after the commencement of this Act, shall, when registered, be a charge upon the lands of the judgment debtor.

(2)  At the expiration of each period of 5 years from the date of the registration or reregistration thereof, any such judgment shall cease to be a charge upon the lands of the judgment debtor and shall, as to purchasers, mortgagees, and creditors, be of no effect against any such lands, unless it is reregistered as provided by this section.

(3)  Where the time prescribed by subsection (2) expires on a day on which the Registry Office is closed, the registration shall be effective if effected on the next day thereafter on which the office is open.

(4)  Any such judgment may be reregistered at the expiration of each such period of 5 years in the same manner as is provided by this Act for the registration of judgments.

(5)  Nothing in this section shall extend to revive or restore any judgment which is extinguished or barred, nor shall the same extend to affect or prejudice any judgment as between the parties thereto or their representatives or those deriving as volunteers under them.

(6)  Nothing in this section shall require judgments, other than those referred to in subsection (1) , to be registered more than once.

Division III - Method of registration

[Part II, Div. III Substituted by No. 90 of 1974, s. 3 ]

12.   Mode of registration

[Section 12 Substituted by No. 90 of 1974, s. 3 ]

(1)  [Section 12 Subsection (1) amended by No. 30 of 1995, s. 3 and Sched. 1 ]A person who wishes to register any instrument, will, or letters of administration under this Act shall lodge with the Registrar –

(a) in respect of the instrument, will, or letters of administration, an application for registration in the prescribed form and containing –

(i) the prescribed particulars; and

(ii) [Section 12 Subsection (1) amended by No. 66 of 2007, Sched. 1, Applied:31 Dec 2008] a certificate, signed by the person on whose behalf the application is made or by the Australian legal practitioner acting for that person, as to the correctness of those particulars and that there has been no failure to comply with Part 3 of the Local Government (Building and Miscellaneous Provisions) Act 1993 with respect to the transaction to which the application relates; and

(b) such other documents as may be prescribed –

and shall pay the prescribed fee.

(2)  The Registrar may refuse to accept for registration any instrument, will, or letters of administration if, in his opinion, it does not, or they do not, comply with the provisions of this Act.

(3)  Subject to this section, the Registrar –

(a) shall number every application for registration according to the order of time in which it is delivered to him;

(b) shall certify thereon the day and time when it was delivered to him;

(c) shall make and file in the Registry a record, made in the prescribed manner, of the application and every writing in respect of which the application is made; and

(d) shall certify on the instrument, will, or letters of administration in respect of which the application is made that it is, or they are, registered at the day and time referred to in paragraph (b) .

(4)  A certificate under subsection (3) (d) is evidence of the registration and time of registration of the instrument, will, or letters of administration to which it relates.

13.   Indexing of registered instruments, &c.

[Section 13 Substituted by No. 90 of 1974, s. 3 ]The Registrar shall, in the prescribed manner, make indexes of all instruments, wills, and letters of administration registered under this Act.

Division IV - Other registrable instruments

[Part II, Div. IV Substituted by No. 90 of 1974, s. 3 ][Part II, Div. IV Heading substituted by No. 47 of 1996, s. 8 and Sched. 1 ]

14.   Certificates of satisfaction of mortgages and judgments

[Section 14 Substituted by No. 90 of 1974, s. 3 ]

(1)  A certificate of satisfaction in accordance with this section may be registered under this Act as an instrument.

(2)  A certificate of satisfaction shall contain the prescribed particulars, and may certify that –

(a) all the moneys due under a registered mortgage or judgment have been paid, or that that mortgage or judgment is otherwise wholly satisfied;

(b) a registered mortgage or judgment has been partially satisfied and it is desired to release a portion of the land thereby affected, that portion being defined in the certificate; or

(c) a registered mortgage or judgment has been partially satisfied by the payment of a specified part of the moneys due thereunder.

(3)  A certificate of satisfaction –

(a) of a mortgage shall be signed by the mortgagee; or

(b) [Section 14 Subsection (3) amended by No. 66 of 2007, Sched. 1, Applied:31 Dec 2008] of a judgment shall be signed by the person to whom the money is payable under the judgment or by his Australian legal practitioner for him and on his behalf.

(4)  The signature to a certificate of satisfaction shall be attested.

15.   Attorney-General to give notice of forfeiture orders

[Section 15 Inserted by No. 47 of 1996, s. 8 and Sched. 1 ]Where, pursuant to section 29 of the Criminal Injuries Compensation Act 1976 , the State is registered as the owner of land under this Act, the Attorney-General is, within 30 days of the registration, to give notice of the registration to each person who appears to the Attorney-General, from the Registry, to have an interest in that land.

16.   

[Section 16 Repealed by No. 90 of 1974, s. 3 ].  .  .  .  .  .  .  .  

17.   

[Section 17 Repealed by No. 90 of 1974, s. 3 ].  .  .  .  .  .  .  .  

18.   

[Section 18 Repealed by No. 90 of 1974, s. 3 ].  .  .  .  .  .  .  .  

19.   

[Section 19 Repealed by No. 90 of 1974, s. 3 ].  .  .  .  .  .  .  .  

20.   

[Section 20 Repealed by No. 90 of 1974, s. 3 ].  .  .  .  .  .  .  .  

21.   

[Section 21 Repealed by No. 90 of 1974, s. 3 ].  .  .  .  .  .  .  .  

Division V - Deposit of deeds

22.   Deposit of deeds with Registrar

(1)  Any person having the lawful custody of any deeds or documents relating to the title to any real or personal estate may deposit such deeds or documents with the Registrar.

(2)  The Registrar shall retain all deeds and documents deposited as aforesaid unless the same are claimed by some person who, in the opinion of the Registrar, is absolutely entitled thereto, or unless a judge otherwise orders.

(3)  If the Registrar has received notice in writing signed by any person claiming an estate or interest in any land to which any deed or document deposited under this section relates, or by the attorney of such person, that he claims to have such deed or document retained in the custody of the Registrar on his behalf, the Registrar shall not part with the possession of such deed or document without the consent in writing of such person or the order of a judge directing him so to do.

(4)  Any person having any estate or interest in land to which any such instrument relates, and claiming to be entitled to possession of such deed or document, may apply to a judge, on summons, for an order directing the Registrar to deliver such deed or document to him, and, upon the hearing of any such summons, the judge may make such order (including an order as to costs) as he may think fit.

(5)  The provisions of subsection (3) shall not apply to the will of a living person.

23.   Covenants for production of deposited deeds inoperative

No action shall be brought or maintained upon any covenant or agreement for the production of any deeds or documents which are deposited in accordance with the provisions of this or any previous Act, or upon any agreement to give or enter into a covenant for the production thereof, and, if any such action is commenced, it shall be a sufficient answer thereto that such deeds or documents are so deposited.

24.   Inspection of deposited deeds

Subject to the regulations, any person may, upon payment of the prescribed fee, inspect any deeds or documents which have been deposited in accordance with this Division.

25.   Power of Registrar to furnish copies of deposited deeds, &c.

The Registrar may, upon payment of the prescribed fee, furnish, or permit to be furnished, copies of, or extracts from, any deeds or documents deposited with him in accordance with this Division.

Division VI - Lis pendens

26.   Purchasers not to be affected by lis pendens unless registered

[Section 26 Amended by No. 90 of 1974, s. 4 ]No lis pendens shall bind a purchaser or mortgagee without express notice thereof unless and until a memorandum or minute, signed by the plaintiff or his authorized agent, containing the name and the usual or last known place of abode or business and the description of the person whose estate is intended to be thereby affected, and the nature and situation of the property or estate intended to be affected thereby, and setting forth the title of the court and of the cause or matter, and the date when the proceedings therein were commenced, shall be left with the Registrar.

27.   Method of registration

A notification of lis pendens in accordance with this Division shall be registered by the Registrar in the same manner as if the same were a judgment, and the provisions of this Act relating to the registration and reregistration of judgments shall apply to the registration of a lis pendens.

27A.   Vacation of registration of lis pendens

[Section 27A Inserted by No. 90 of 1974, s. 5 ]

(1)  The plaintiff may apply, in writing, to the Registrar to vacate the registration of a lis pendens under this Act.

(2)  The Supreme Court or a judge may make an order vacating the registration of a lis pendens –

(a) either before or after the determination of the lis pendens;

(b) upon the application by summons of a party to the litigation or of a person who claims an estate or interest in the land mentioned in the memorandum under section 26 as intended to be affected by the lis pendens; and

(c) either ex parte or otherwise –

and may direct the person who caused the registration to be made to pay all or any of the costs and expenses occasioned by the registration and vacating thereof.

(3)  The Registrar shall –

(a) on receiving an application under subsection (1) ; or

(b) on being served with an order under subsection (2) –

record, in the prescribed manner, that the registration of the lis pendens to which the application or order relates is vacated.

PART III - Registration of plans

[Part III Substituted by No. 48 of 1990, s. 22 ]

28.   Plans to be lodged with Recorder of Titles

[Section 28 Substituted by No. 48 of 1990, s. 22 ]Where in accordance with this or any other Act a plan is required to be lodged, deposited or registered with the Registrar it shall be lodged or deposited with the Recorder of Titles in accordance with the Land Titles Act 1980 .

29.   

[Section 29 Repealed by No. 48 of 1990, s. 22 ].  .  .  .  .  .  .  .  

30.   

[Section 30 Repealed by No. 48 of 1990, s. 22 ].  .  .  .  .  .  .  .  

31.   

[Section 31 Repealed by No. 48 of 1990, s. 22 ].  .  .  .  .  .  .  .  

32.   

[Section 32 Repealed by No. 48 of 1990, s. 22 ].  .  .  .  .  .  .  .  

33.   

[Section 33 Repealed by No. 48 of 1990, s. 22 ].  .  .  .  .  .  .  .  

34.   

[Section 34 Repealed by No. 48 of 1990, s. 22 ].  .  .  .  .  .  .  .  

35.   

[Section 35 Repealed by No. 48 of 1990, s. 22 ].  .  .  .  .  .  .  .  

36.   

[Section 36 Repealed by No. 48 of 1990, s. 22 ].  .  .  .  .  .  .  .  

37.   

[Section 37 Repealed by No. 48 of 1990, s. 22 ].  .  .  .  .  .  .  .  

38.   

[Section 38 Repealed by No. 48 of 1990, s. 22 ].  .  .  .  .  .  .  .  

39.   

[Section 39 Repealed by No. 48 of 1990, s. 22 ].  .  .  .  .  .  .  .  

PART IV - Miscellaneous

39A.   Facsimile signature of Registrar and Deputy-Registrar

[Section 39A Inserted by No. 35 of 1972, s. 2 ]Notwithstanding anything contained elsewhere in this Act –

(a) the Registrar or the Deputy-Registrar may –

(i) himself attach a facsimile of his signature; or

(ii) authorize any person employed in the Registry to attach a facsimile of the signature of the Registrar or Deputy-Registrar –

to any memorial, certificate, receipt, endorsement, entry, memorandum, survey plan, or other document or writing, or any duplicate thereof, and the facsimile so attached has the same force and effect as if the Registrar or Deputy-Registrar, as the case may be, had personally signed the memorial, certificate, receipt, endorsement, entry, memorandum, survey plan, document, writing, or duplicate thereof; and

(b) a memorial, certificate, receipt, endorsement, entry, memorandum, survey plan, document, writing, or duplicate thereof bearing a facsimile of the signature of the Registrar or Deputy-Registrar shall be received as evidence that the facsimile was attached by the Registrar or Deputy-Registrar as his signature or by a person authorized by the Registrar or Deputy-Registrar to do so, unless the contrary is shown.

40.   Offences by Registrar and clerks

[Section 40 Amended by 25 Geo. V No. 78 ][Section 40 Amended by No. 55 of 1965, s. 5 ]

(1)  [Section 40 Subsection (1) amended by No. 43 of 1991, s. 5 and Sched. 1 ]No person employed in the Registry shall wilfully fail or neglect to number, register, or enter, as provided by this Act, any memorial, certificate, or other instrument or document delivered into the Registry.

Penalty:  Fine not exceeding 10 penalty units.

(2)  Any person contravening the provisions of this section shall be liable in damages to any person suffering damage by reason of such contravention to the extent of the loss or injury sustained.

41.   Offences by other persons

[Section 41 Amended by No. 55 of 1965, s. 5 ][Section 41 Amended by No. 90 of 1974, s. 8 ]

(1)  [Section 41 Subsection (1) amended by No. 66 of 2007, Sched. 1, Applied:31 Dec 2008] [Section 41 Subsection (1) amended by No. 43 of 1991, s. 5 and Sched. 1 ]No Australian legal practitioner or other person shall sign any certificate for the purposes of section 12 which is false or untrue in any particular.

Penalty:  Fine not exceeding 5 penalty units.

(2)  [Section 41 Subsection (2) amended by No. 43 of 1991, s. 5 and Sched. 1 ][Section 41 Subsection (2) omitted by No. 9 of 2003, Sched. 1, Applied:16 Apr 2003] .  .  .  .  .  .  .  .  

(3)  [Section 41 Subsection (3) amended by No. 43 of 1991, s. 5 and Sched. 1 ][Section 41 Subsection (3) omitted by No. 9 of 2003, Sched. 1, Applied:16 Apr 2003] .  .  .  .  .  .  .  .  

42.   Fees

[Section 42 Substituted by No. 90 of 1974, s. 9 ][Section 42 Amended by No. 98 of 2001, s. 20, Applied:01 Jan 2002] There is payable to the Registrar such fees as are prescribed in Schedule 2 in respect of matters under this Act.

42A.   Payment of prescribed fees

[Section 42A Inserted by No. 98 of 2001, s. 21, Applied:01 Jan 2002] Subsections (2) and (3) of section 169E of the Land Titles Act 1980 have the same application to the payment of a prescribed fee under this Act as they have to the payment of a prescribed fee under that Act.

42B.   Validation

[Section 42B Inserted by No. 98 of 2001, s. 21, Applied:01 Jan 2002] No regulation that prescribed a fee for the purposes of this Act before the commencement of the Registration and Related Fees Act 2001 is to be taken as having ever been invalid by reason only of the amount of the fee so prescribed.

43.   Power of Registrar to make transparencies for record purposes

[Section 43 Substituted by No. 90 of 1974, s. 9 ]

(1)  [Section 43 Subsection (1) amended by No. 68 of 1994, s. 3 and Sched. 1 ]The Registrar may cause to be made a transparency of any document, record, or index that is kept in the Registry and may, subject to the provisions of the Archives Act 1983 , keep that transparency in lieu of, or in addition to, the document, record, or index of which it is a transparency.

(2)  For the purposes of subsection (1) –

document includes a survey plan, but does not include a deed or document deposited with the Registrar under this Act or any other previous Act;

transparency has the meaning assigned to that expression by section 43A (4) .

43A.   Searches by, and copies of documents, &c., for, the public

[Section 43A Inserted by No. 90 of 1974, s. 9 ]

(1)  Subject to the regulations and on payment of the prescribed fee, a person may, at any time when the Registry is open to the public, search any indexes kept by the Registrar and make such of the following inspections as are appropriate:

(a) He may inspect a document or record kept in the Registry, if a transparency has not been made of the document or record pursuant to section 43 (1) ; and

(b) If a transparency of such a document or record has been so made, he may only inspect the transparency, whether or not the document or record is still kept in the Registry, unless, where it is still so kept, the Registrar directs that he may inspect the document or record itself.

(2)  [Section 43A Subsection (2) substituted by No. 48 of 1990, s. 23 ]The Registrar shall, on application and payment of the prescribed fee, furnish a person with a certified copy of an instrument, will, letters of administration, probate, document, survey plan or record kept by the Registry, including any such document awaiting registration.

(3)  [Section 43A Subsection (3) substituted by No. 48 of 1990, s. 23 ]A copy for the purpose of subsection (2) may, in the Registrar's discretion, be –

(a) in writing; or

(b) made by such photocopying, facsimile or electronic transmission process as the Registrar determines; or

(c) made partly in accordance with paragraph (a) and partly in accordance with paragraph (b) .

(4)  [Section 43A Subsection (4) amended by No. 48 of 1990, s. 23 ]In this section –

certified copy, in relation to a document of a type referred to in subsection (2) , means a copy of that document, that –

(a) is certified by the Registrar or some officer acting on behalf of the Registrar to be a copy of that document; or

(b) in the case of a copy created by a facsimile or electronic transmission process – has recorded upon it by that process an indication that the transmission creating the copy was initiated in an office of the Registrar and a record of the time and date of the transmission;

machine copy, in relation to a document, survey plan, or record, means a copy of the document, plan, or record –

(a) made by a machine wherein, or made by a process whereby, a latent image of the document, plan, or record is produced from surface contact with the document, plan, or record or by the use of photo-sensitive material other than transparent photographic film; or

(b) made by an electrostatic process;

photocopying process, in relation to a copy of a document, survey plan, or record, means the process of making a photographic copy or machine copy of the document, plan, or record;

photographic copy, in relation to a document, survey plan, or record, means a print made from a transparency of the document, plan, or record;

transparency, in relation to a document, survey plan, or record, means –

(a) a developed negative or positive photograph of that document, plan, or record (in this definition referred to as "an original photograph") made on a transparent base, by means of light reflected from, or transmitted through, the document, plan, or record;

(b) a copy of an original photograph made by the use of photo-sensitive material (being photo-sensitive material on a transparent base) placed in surface contact with the original photograph; or

(c) any one of a series of copies of an original photograph, the first of the series being made by the use of photo-sensitive material (being photo-sensitive material on a transparent base) placed in surface contact with a copy referred to in paragraph (b) , and each succeeding copy in the series being made, in the same manner, from any preceding copy in the series.

(5)  [Section 43A Subsection (5) added by No. 48 of 1990, s. 23 ][Section 43A Subsection (5) omitted by No. 80 of 2001, Sched. 1, Applied:01 Jul 2002] .  .  .  .  .  .  .  .  

44.   Regulations

The Governor may make regulations for the purposes of this Act.

SCHEDULE I - Acts Repealed

Section 2

SCHEDULE II - Prescribed Fees

[Schedule II Repealed by No. 90 of 1974, s. 10 ][Schedule II Inserted by No. 98 of 2001, s. 22, Applied:01 Jan 2002]

Section 42

[Schedule II Repealed by No. 90 of 1974, s. 10 ]

SCHEDULE III

[Schedule III Repealed by No. 90 of 1974, s. 10 ]