Land Transfer Bill

  • not the latest version

Land Transfer Bill

Government Bill

118—1

Explanatory note

General policy statement

The Land Transfer Bill implements the Government’s response to the recommendations from the Law Commission’s 2010 report A New Land Transfer Act. The recommendations were aimed at modernising, simplifying, and consolidating the land transfer legislation for enhanced clarity and accessibility.

New Zealand has a world-leading land title registration system that facilitates the sale, purchase, and development of property and ensures New Zealanders can have confidence in their property rights. The legislation that governs the system is, however, outdated.

The Land Transfer Act 1952 (the 1952 Act) has not kept pace with technological and other changes that have occurred since its enactment and nor is it future-proofed. It is focussed on paper-based land registration when, in fact, the registration system is now almost exclusively electronic. Land transfer information in a new electronic system will be digital, interoperable, and location-based. Survey and title data will be interoperable with other location-based data in the Government’s property and building sector.

While workable, the 1952 Act’s 2 stand-alone amendment Acts (the Land Transfer Amendment Act 1963 and the Land Transfer (Computer Registration and Electronic Lodgement) Amendment Act 2002) are cumbersome and have resulted in a legislative framework that is unwieldy and difficult to navigate. For enhanced clarity and ease of access, the Bill will repeal all three statutes and replace them with a new Land Transfer Act.

The 1952 Act is based on the Torrens system of registration of title, which was introduced over 100 years ago to simplify and minimise the costs of transferring interests in land and to provide security of title.

The Bill retains the core principles of the Torrens system, which are—

  • title to land should be acquired by registration:

  • title should, as far as possible, be secure and indefeasible:

  • a purchaser should not need to go behind the register to investigate the root of title:

  • the register should reflect as accurately as possible the true state of title to land so that “persons who propose to deal with land can discover all the facts relative to the title”:

  • the system for transfer of land should be efficient, effective, and simple:

  • there should be adequate compensation where an innocent owner has suffered loss due to the operation of the system.

The Bill does, however, make changes in relation to 2 aspects of the Torrens system: indefeasibility of title and compensation.

In relation to indefeasibility, the Bill introduces a limited judicial discretion to order alteration of the register in situations where immediate indefeasibility would result in manifest injustice. The Bill also addresses the problem of mortgage fraud by introducing a requirement for the mortgagee or their agent to take reasonable steps to verify the identity of the mortgagor. If the mortgagee or their agent does not meet this requirement, and the mortgage is, through fraud, executed by a person without lawful authority, the title of the mortgagee and of any subsequent purchaser of the mortgage will be defeasible.

In relation to compensation, the Bill retains the State compensation system that currently operates to compensate those who suffer loss due to the operation of the land transfer system, but makes a few modifications.

Compensation will be available for loss through Registrar’s error, the operation of the land registration system, and having acted in reliance on a guaranteed search. This is broadly consistent with the current legislation but the guaranteed search periods have been shortened to reflect the automated conveyancing environment.

Under the 1952 Act, compensation is based on land value at the date of loss. This is problematic because loss can take some time to discover and the compensation in that case would not cover an increase in property value or improvements made to the property in the interim. The Bill addresses this problem by providing for compensation to be generally based on the value of the land at the date when the claim is discovered, or should reasonably have been discovered, subject to judicial discretion to change the valuation date and add a loss adjustment allowance (based on property market movement) where the value is inappropriate.

The Bill also clarifies that—

  • the amount of compensation payable where the claimant has been deprived of an estate or interest in land is the value of the lost estate or interest in land:

  • for mortgagees, compensation only extends to the value of the security and excludes any amount beyond that which might be owing under the mortgage.

Other modifications provide for reduced compensation where the claimant or the claimant’s agent (excluding a solicitor or conveyancer) contributes to the loss. The Crown will also be able to take legal action to recover the amount of compensation paid for loss caused by a third party, and to join any proceedings that relate to the loss of an estate or interest in land.

Key measures aimed at enhancing clarity and certainty are—

  • the introduction of a definition of fraud. Fraud is not defined in the 1952 Act, which has resulted in uncertainty and increased litigation:

  • provisions clarifying that registered title can be limited by overriding interests in other statutes. There are many statutory rights, charges, and interests in land that override the 1952 Act. This measure will signal the existence of such provisions to prospective buyers who may otherwise be unaware of their existence:

  • provisions clarifying the nature and scope of the Registrar’s powers of correction. The current legislation empowers the Registrar to correct the register in certain circumstances. However, the nature and scope of these powers is unclear as the relevant provisions in the 1952 Act are confusing in their extent and application:

  • removing an inconsistency under the existing legislation that protects administrators from personal liability in relation to positive, but not restrictive, covenants. The Bill will extend the protection to restrictive covenants:

  • limiting the use and effect of covenants in gross for consistency with the original policy intent, by removing the protection of indefeasibility through registration and instead providing for covenants in gross to be noted on the title in the same way that other land covenants are.

The Bill also makes changes aimed at simplifying administration of the legislation and the land title registration system as follows:

  • the 1952 Act and the Land Transfer Amendment Act 1963 are jointly administered by Land Information New Zealand and the Ministry of Justice and the Land Transfer (Computer Registers and Electronic Lodgement) Amendment Act 2002 is solely administered by Land Information New Zealand. The Bill provides for Land Information New Zealand to administer the new Land Transfer Act:

  • the Bill repeals the Statutory Land Charges Registration Act 1928 and incorporates its provisions into the new Land Transfer Act to give the Registrar-General of Land more control over the whole regime of statutory land charges, which will in turn improve consistency and simplify administration. The change is purely administrative and does not change the law in regard to the effects of registration such as priority:

  • a more streamlined process with less onerous notice requirements will apply when adjoining neighbours seek ownership of land that is in a limited title on the basis of adverse possession. This should reduce costs and speed up the process.

Finally, the Bill will improve the protection of privacy. It will clarify that the electronic register is a public register under the Privacy Act 1993 and is subject to the relevant privacy principles. The Bill will also extend the Registrar-General of Land’s statutory powers to withhold an individual’s personal information to protect his or her personal safety in specified circumstances.

George Tanner QC and Warren Moyes

Sadly, two outstanding public servants who were both instrumental in the development of the Bill have since passed away. The Law Commissioner responsible for the Commission’s review of the 1952 Act was George Tanner QC, who became ill and later passed away following the publication of the report. The Commission’s report included a Bill drafted by Mr Tanner that formed the foundation of this the current Bill. This was the last complete draft Bill of a peerless drafter, gentleman, and colleague of those at the Law Commission. It says much about George that he spent the time between Christmas and New Year of 2010–2011 completing some of the provisions. He remains greatly missed.

Warren Moyes was also a true professional and a gentleman who had a long and distinguished career as the Wellington District Land Registrar and then latterly as a Senior Advisor in the Office of the Registrar-General of Land. Warren worked tirelessly on the Bill and the review that preceded it. Warren will be remembered for his contribution to the Torrens system in New Zealand, his extensive knowledge and expertise as a property lawyer, and the time he freely gave to the many people who sought his advice and assistance.

Departmental disclosure statement

Land Information New Zealand is required to prepare a disclosure statement to assist with the scrutiny of this Bill. The disclosure statement provides access to information about the policy development of the Bill and identifies any significant or unusual legislative features of the Bill.

Regulatory impact statement

Land Information New Zealand produced regulatory impact statements on 20 October 2010 and 20 March 2015 to help inform the main policy decisions taken by the Government relating to the contents of this Bill.

Clause by clause analysis

Clause 1 is the Title clause.

Clause 2 is the commencement clause. It provides that the Bill comes into force on a date or dates appointed by Order in Council. An Order in Council commencement date is provided for to allow time for regulations to be made under the Act. Any provision that has not earlier been brought into force by Order in Council comes into force 12 months after the date on which the Bill receives the Royal assent.

Part 1Preliminary provisions

Clause 3 is the purpose clause.

Clause 4 specifies the land that is subject to the Act.

Clause 5 defines terms used in the Act.

Clause 6 defines fraud for the purpose of the Act.

Clause 7 inserts transitional provisions (see Schedule 1).

Clause 8 provides that the Act binds the Crown.

Part 2Land title and registration

Subpart 1—Land title register

Land title register

Clause 9 requires the Registrar to keep and operate a register of land that is subject to the Act. It replaces section 33 of the Land Transfer Act 1952 (the present Act) and sections 5 and 14 of the Land Transfer (Computer Registers and Electronic Lodgement) Amendment Act 2002 (the 2002 amendment Act).

Clause 10 sets out the purpose of the register.

Clause 11 specifies the information and documents that the Registrar must record in the register.

Records of title

Clause 12 provides for the Registrar to create records of title for different types of estates and interests in land and specifies the information that a record of title must contain. The clause replaces sections 7 to 13 of the present Act.

Clause 13 provides that the Registrar may create a single record of title in place of 2 or more records of title and vice versa. It replaces section 86 of the present Act.

Clause 14 provides that the Registrar may create a separate record of title for an undivided share in an estate in land. The Registrar must create the separate record of title if requested by a registered owner who owns the share as a tenant in common. The clause replaces section 72 of the present Act.

Clause 15 provides that a record of title created in the name of a deceased person takes effect as if it were created immediately before the person died. It replaces section 74 of the present Act.

Clause 16 gives the court the power to make an order directing the Registrar to cancel, create, or alter a record of title. It replaces section 85 of the present Act.

Qualified records of title

Clause 17 provides that the Registrar may record on a record of title that the title is qualified. Qualified title replaces provisional registration under the present Act and the clause replaces section 50 of the present Act.

Clause 18 provides for the effect of a qualified record of title for an estate in land. The title to the estate is not fully indefeasible. The clause replaces section 54 of the present Act.

Clause 19 provides that the Registrar may replace a qualified record of title with a new (unqualified) record of title if the Registrar is satisfied that the grounds for recording the qualification have ceased to exist. The clause replaces section 51 of the present Act.

Retention of information in register

Clause 20 requires information that is recorded in the register to be retained, even if certain changes happen. It replaces section 32 of the 2002 amendment Act.

Registrar’s powers of alteration

Clause 21 provides for the Registrar to alter the register in certain situations. It replaces sections 80 and 81 of the present Act.

Registration and notation of instruments

Clause 22 provides for the Registrar to register or note an instrument lodged for registration or notation. It replaces sections 34 and 42 of the present Act and sections 23 and 30 of the 2002 amendment Act.

Clause 23 provides that an instrument may be registered or noted despite the fact that, at the time the instrument was created or executed, a person named in the instrument was not registered as the owner of the estate or interest to which the instrument relates. It replaces section 76 of the present Act.

Clause 24 provides that an instrument has effect under the provisions of the Act only once it is registered. It also covers express and implied terms, conditions, and covenants. The clause replaces section 41(1) and (4) to (6) of the present Act.

Electronic workspace facilities

Clause 25 provides for the Registrar to approve electronic workspace facilities for use in the preparation of electronic instruments for lodgement under the Act. The chief executive may provide and manage an electronic workspace facility. The clause replaces section 22 of the 2002 amendment Act.

Instruments

Clause 26 requires an instrument lodged for registration or notation to comply with the requirements of the Act and any other enactment.

Clause 27 requires certain lodged instruments to be certified. It applies to classes of electronic or paper instruments that are specified in regulations as requiring certification. The clause replaces sections 164 and 164A of the present Act.

Clause 28 specifies who may certify instruments: practitioners (lawyers and conveyancers) and persons of a class authorised by regulations. The regulations may restrict a class of persons to certifying certain classes of instrument. The clause replaces section 164B(1) of the present Act.

Clause 29 provides that the Registrar may revoke a person’s authority to certify instruments in certain situations. The clause replaces section 164B(2) to (4) of the present Act.

Clause 30 requires a person who gives a certificate to retain the evidence relied on in support of the certificate. The Registrar may specify standards relating to the evidence and may require the person to provide the evidence and a statutory declaration. The clause replaces section 164C of the present Act.

Clause 31 provides for the effect of certification of an electronic instrument. The instrument is treated as if it were in writing and executed by the parties, and has effect according to its terms. The clause replaces section 164E of the present Act.

Clause 32 requires certain instruments to be lodged electronically. It applies to an instrument of a class specified in regulations that is lodged by a practitioner or a person of a class authorised to certify the instrument. An instrument need not be lodged electronically if the Registrar determines it is impracticable or inappropriate to do so.

Clause 33 requires a paper instrument to be executed and witnessed in accordance with the Act and any other enactment. The clause replaces section 157 of the present Act.

Clause 34 requires a paper instrument to be lodged by posting it to a land registry office. The clause replaces section 47(1) and (2) of the present Act.

Clause 35 provides for the priority of different instruments. Priority is mainly determined by the time of lodgement. The clause replaces section 37 of the present Act.

Clause 36 sets out special rules for the priority of paper instruments lodged by post. The clause replaces sections 41(2) and (3) and 47(4) to (6) of the present Act.

Clause 37 applies to an instrument that does not comply with the requirements for lodgement. The Registrar may reject and return the instrument. Or the Registrar may retain the instrument for correction (ie, requisition it). The clause replaces sections 43 and 148B of the present Act.

Clause 38 provides for the Registrar to produce a record, copy, or image of a paper instrument. The record, copy, or image can be used for the purposes of registering the instrument or for other purposes. The clause replaces section 27 of the 2002 amendment Act.

Clause 39 provides that the Registrar may refuse to register or note an instrument if it is impracticable to capture its data or to copy it or create an image of it. The clause replaces section 28 of the 2002 amendment Act.

Access to register

Clause 40 requires the Registrar to provide a person with a copy, or a certified copy, of an instrument or a record of title on payment of the prescribed fee or charge. The clause replaces sections 45, 45A, and 46 of the present Act and section 33 of the 2002 amendment Act.

Clause 41 allows the Registrar to grant a withholding period to a person if the Registrar is satisfied that the publication of information that discloses, or is likely to disclose, the whereabouts of the person may prejudice the safety of the person or the person’s family. During the withholding period, the Registrar may refuse to provide a copy of an instrument or a record of title that names or contains identifying information about the person, and may prevent the name of, or identifying information about, the person from being included in any public part of the register.

Clause 42 provides for how a person applies to the Registrar to grant a withholding period under clause 41.

Clause 43 provides for exceptions where the Registrar may provide a copy of an instrument or a record of title despite being entitled to withhold it under clause 41. The exceptions relate to the conduct of transactions, the registration or notation of instruments, and rights held and obligations owed in relation to land.

Evidentiary effect of documents

Clause 44 provides for the evidentiary effect of documents that appear to be or to represent electronic images of instruments or records of title. It also provides for the evidentiary effect of certified copies of instruments and records of title. The clause replaces sections 45, 75, and 163 of the present Act and sections 34 and 35 of the 2002 amendment Act.

Instruments lost before registration or notation

Clause 45 provides for a person to become registered as owner, or noted as a person entitled to, an estate or interest despite the loss, destruction, or inability to find a record of an instrument or related authority. The clause replaces sections 56 and 57 of the present Act.

Replacement or reconstitution of records

Clause 46 provides for the Registrar to replace or reconstitute documents or information that has been lost, damaged, or destroyed or has become unfit for use. The clause replaces sections 215A and 215B of the present Act.

Joint tenancy

Clause 47 sets out a default rule for 2 or more persons named in an instrument as transferees, mortgagees, or owners of an estate or interest in land to be treated as joint tenants. The clause replaces section 61 of the present Act.

Clause 48 provides for how a joint tenant may become registered as a tenant in common.

Dealings by overseas Governments

Clause 49 gives an overseas Government the power to be registered as owner of, and to deal with, an estate or interest in land. The clause replaces section 165 of the present Act.

Registers under other Acts

Clause 50 provides for the Registrar to keep any other required registers.

Subpart 2—Title to land

Clause 51(1) provides that title to land acquired by registration cannot be set aside. Subclause (2) provides that the title is free from interests that are not registered or noted, or not capable of being registered or noted. Subclauses (1) and (2) encapsulate the principle known as the principle of indefeasibility.

This principle is subject to the following as set out in subclause (3):

  • the exceptions and limitations in clauses 52 to 57:

  • subpart 1 of Part 4 (which relates to adverse possession) and subpart 3 of Part 4 (which relates to title to access strips):

  • clause 203 (which relates to applications by persons claiming title to land for which there is a limited record of title).

Subclause (4)(a) makes it clear that a volunteer is in no different position to that of a person who acquires title for valuable consideration. Subclause (4)(b) provides that subclauses (1) and (2) apply even if the registered owner acquired the estate or interest from a fictitious person.

Clause 52 provides that the title of a registered owner to an estate or interest in land is subject to the following exceptions and limitations:

  • fraud by the registered owner:

  • existing estates and interests registered or noted on the record of title:

  • the estate or interest of a person with a valid claim under a prior record of title:

  • the estate or interest of another registered owner included in the record of title as a result of an incorrect description of area or boundaries:

  • omitted and misdescribed easements.

Clauses 51 and 52 replace sections 62, 63(1), and 183 of the present Act. The protection for good faith purchasers in section 183 of the present Act is not expressed as such in clause 51, but is intended to be captured by clause 51(1).

Clause 53 applies if a road or reserve has been included in a record of title without authority or acquired under an unauthorised instrument. The clause provides that the road or reserve does not vest in the person in whose title it has been included. This clause replaces section 77 of the present Act.

Clause 54 has no counterpart in the present Act. It imposes a duty on a mortgagee to take reasonable steps, or ensure that reasonable steps are taken, to verify the identity of the mortgagor and the identity and authority of any person who executes the mortgage. The Registrar is given the power under clause 234 to specify standards for verifying identity. Subclause (7) provides that the High Court may set the registered estate or interest of a mortgagee aside if it did not comply with this section and through fraud the mortgage instrument was executed by a person other than the mortgagor or someone with lawful authority.

Clause 55 is also new. It applies to a transferee of a mortgage. The transferee acquires the estate or interest in mortgaged land subject to clause 54(7) and cannot acquire a better title to the estate or interest than the transferor had in that regard.

Clauses 56 and 57 are new. They give the High Court discretion to order the alteration of the register in cases of manifest injustice. They apply to a person (person A) who—

  • has been deprived of an estate or interest in land by the registration under a void or voidable instrument of another person as the owner of the estate or interest; or

  • suffers any other loss or damage by the registration under a void or voidable instrument of another person as the owner of an estate or interest in the land.

Person A may apply for the order. Clause 57(4) sets out various factors that the court may take into account.

Subpart 3—Compensation

This subpart provides for the granting of Crown compensation on various grounds. The grounds are set out in clauses 58 to 60.

Grounds for compensation

Clause 58 applies to loss or damage resulting from errors or wrongful acts or omissions of the Registrar or a delegate, or system failure. It replaces section 172(a) of the present Act.

Clause 59 replaces section 172(b) of the present Act. It provides that a person may bring a proceeding in the court against the Crown for compensation if the person, by reason of anything in subclause (2), is deprived of an estate or interest in land and, by the Bill, is barred from bringing an action for possession or other action for recovery of the estate or interest. Subclause (2) refers to losses resulting from—

  • registration of another person as the owner of the estate or interest or of a different estate or interest under a void instrument or through fraud:

  • bringing land under the Act otherwise than in accordance with the procedure prescribed by the Act or any other Act:

  • an order under clause 57:

  • unlawful alterations to, or entries on, the register.

Clause 60 applies to loss or damage as a result of registrations following a guaranteed search. It replaces section 172A of the present Act.

Clause 61 sets out certain exceptions to the ability to get compensation. Subclause (1) replaces certain provisions of section 178 of the present Act (see paragraphs (a) and (b)) but also incorporates other provisions that exclude the right to claim compensation (see paragraphs (c) to (e)). Subclause (2) carries forward in modified form section 60 of the present Act.

Notice of claim

Clause 62 provides that, before commencing a proceeding to recover compensation, a claimant must give notice of the claim to the Registrar. If the amount of the claim exceeds a prescribed amount the claimant must also give notice to the Attorney-General. This is different to the process applicable under the present Act in that this notice is given before court proceedings are commenced.

Consideration of claim

Clause 63 is new. Subclause (1) provides that if the claim does not exceed the prescribed amount (to be prescribed in regulations), the Registrar may decide whether or not to accept Crown liability. Subclause (2) provides that if the claim exceeds the prescribed amount, the Attorney-General and the Registrar may decide whether or not to accept Crown liability. If the Attorney-General and Registrar (or as the case may be, the Registrar alone) decline the claim the claimant may commence proceedings in court.

Calculation of compensation for deprivation of estate or interest in land

Clause 64 specifies the maximum amount of compensation for deprivation of an estate or interest in land as follows:

  • the maximum amount of compensation payable where a claimant has been deprived of an estate or interest in land is the value of the lost estate or interest in land:

  • where the claimant is a mortgagee, no compensation is payable for any amount owing on the mortgage that exceeds the value of the estate or interest in land that the mortgagee has been deprived of.

This clause is subject to clauses 65 to 67.

Clause 65 deals with the valuation of the estate or interest in land.

Clause 66 provides that improvements made to the land after the claimant gained (or ought reasonably to have gained) knowledge about the loss are generally not to be taken into account.

Clause 67 provides that the value of any benefit obtained by the claimant must be taken into account in determining the amount of compensation in certain cases.

Clause 68 provides a discretion for the court to adjust the compensation determined under clauses 64 to 67 if the court considers that the amount of compensation determined in accordance with those clauses would be inadequate or excessive. The court may use a different date of valuation of the estate or interest in land to that set out in clause 65(1), or increase the compensation to reflect movement in land values (that amount to be calculated in accordance with regulations), or both.

Clause 69 applies in court proceedings or where the Attorney-General or Registrar is dealing with a claim under clause 63. Subclause (1) provides that no compensation is payable for any loss or damage suffered by a claimant—

  • wholly or partly as a result of the claimant’s own fraud; or

  • wholly as a result of the claimant’s own lack of proper care.

Subclause (2) provides that if any loss or damage is suffered by a claimant partly as a result of the claimant’s own lack of proper care, any compensation payable to the claimant is to be reduced to the extent that is fair having regard to the claimant’s share in the responsibility for the loss or damage.

Clause 70 provides that interest may be awarded on the amount of compensation.

Further provision where compensation paid

Clause 71 provides a right of subrogation for the Crown where compensation is made.

Clause 72 provides that the Crown may recover compensation paid for fraud from the person responsible for the fraud. It replaces section 175(1) and (1A) of the present Act.

Part 3Dealings in estates and interests in land

Subpart 1—Transfers, transmissions, and vesting

Transfers of estates and interests

Clause 73 requires a transfer instrument to be used in order to register the transfer of an estate or interest in land. It sets out requirements for using a transfer instrument. The clause replaces section 90 of the present Act.

Clause 74 provides for records of title to be part-cancelled and created when part of the land in a record of title is transferred. The clause replaces sections 92 to 94 of the present Act.

Clause 75 provides for the effect of registering the transfer or assignment of an estate or interest under a registered lease or mortgage. The clause replaces section 97 of the present Act.

Clause 76 requires a transfer instrument to be used in order to register certain freehold estates: a life estate with successive future estates or any other freehold estate that terminates when a future event happens. The Registrar must do certain things relating to records of title. The clause replaces section 95 of the present Act.

Tax statement required for registration of instrument to transfer some estates in land

Clauses 77 to 86 are substantially the same as sections 156A to 156J of the present Act, as inserted by the Land Transfer Amendment Act 2015. They provide that purchasers and vendors of property will, subject to certain exceptions, be required to provide tax numbers when transferring specified estates in land (as that term is defined in clause 77).

Clause 77 defines terms used in clauses 78 to 86.

Clause 78 provides that an instrument to transfer a specified estate in land is not in order for registration unless each transferor and transferee has completed a tax statement, and some of the information set out in that statement (defined in clause 77 as tax information) is given to the chief executive of Land Information New Zealand (LINZ).

Clause 79 sets out the information that must be included in a tax statement. The statement must either state that the transfer is non-notifiable or include the transferor’s or transferee’s IRD number and (if applicable) the equivalent of the transferor’s or the transferee’s overseas tax information number and country code. Clause 77(2) defines a non-notifiable transfer.

Clause 80 provides a procedure for an omission or error in any tax information to be corrected. It also provides that an omission or error in any tax information that is provided, or any other failure to comply with clauses 78 and 79, does not affect the validity of any registration of a transfer instrument or give rise to any liability of, or claim for compensation from, the chief executive of LINZ, the Registrar-General, or the Crown.

Clause 81 provides that a person commits an offence if the person gives a tax statement that, to the person’s knowledge or with intent to deceive, contains false or misleading tax information.

Clause 82 requires the chief executive of LINZ to supply the tax information and details about the transfer or transfers to which the tax information relates to the Commissioner of Inland Revenue.

Clause 83 permits the chief executive of LINZ to release or to give certain tax information to any person who requests it, provided that the information is given in aggregate form only and in a manner that prevents any person, estate in land, or transaction from being identified.

Clause 84 requires a certifier and the chief executive of LINZ to retain a tax statement given to him or her for 10 years and to give a copy of that statement to the Commissioner of Inland Revenue as soon as practicable after receiving a request in writing from the Commissioner.

Clause 85 provides that the chief executive of LINZ and certifiers must not use tax information, or disclose tax information to any person, except as required by clauses 78, 80, 82, 83, 84, and 86, or as authorised or required by order of a court.

Clause 86 permits tax information or related information to be disclosed between certain authorised persons in specified circumstances.

Transmissions

Clause 87 requires a transmission instrument to be used in order to register a person as the owner of an estate or interest vested by transmission. The clause replaces section 122 of the present Act.

Clause 88 provides for the effect of registering a transmission instrument. The clause replaces section 123 of the present Act.

Vesting

Clause 89 provides for the Registrar to register a court order that vests an estate or interest in land in a person. The clause replaces section 99 of the present Act.

Clause 90 provides for the Registrar to register the vesting under an enactment of an estate or interest in land. The clause replaces section 99A of the present Act.

Subpart 2—Leases

Clause 91 provides that a lease instrument must be used in order to register a lease under the Act. A lease of any length may be registered. The lease instrument must be executed by the lessor and the lessee. If the estate or interest in land to be leased is subject to a mortgage, the consent of the mortgagee must be obtained before the registration of the lease instrument. This clause replaces section 115 of the present Act. In contrast to that section, this clause does not use the term “demise”. In this context, demise is considered to be synonymous with lease. Also, this clause does not set out the required content of a lease instrument. This will be prescribed in regulations.

Clause 92 replaces section 116 of the present Act. It provides that a lease variation instrument must be used to extend the term of the lease or vary the covenants and conditions contained in the lease. The lease variation instrument must be registered before the expiry of the current term of the lease. It has the same effect as if it were a lease instrument for the extended term subject to the same covenants and conditions as the lease. The lease variation instrument must be executed by the lessor and the lessee. Subclause (6) provides that on registration of the lease variation instrument, the lease continues to be subject to the same registered or noted interests to which the lease was subject or of which it had the benefit. This differs from section 116 of the present Act in that it makes it clear that it is registered or noted interests.

Clause 93 replaces section 120 of the present Act. It provides that a lease surrender instrument must be used in order to surrender a registered lease. Subclause (4) provides that a lease cannot be surrendered without the consent of a mortgagee or sublessee. The term “sublease” is used instead of the term “underlease” in section 120 because sublease is the term used in the Property Law Act 2007. Subclause (5) is new. It provides that the consent of a sublessee is not required if section 216 of the Property Law Act 2007 applies. This relates to certain circumstances where it is permissible for a superior lease to be surrendered without a sublease also needing to be surrendered.

Clause 94 replaces section 117 of the present Act. It relates to the registration of a replacement lease. The term replacement lease defined in subclause (1) includes a lease in renewal or substitution. The definition is intended to make it clear that no replacement lease may be registered that takes effect later than the expiry or surrender of the prior lease. That is, an expired lease cannot be revived. On registration, the new lease becomes subject to all registered or noted interests to which the prior lease was subject. This will include a sublease. Subclause (3) provides that the lease has the benefit of registered or noted interests that benefited the prior lease if the owner of the burdened land consents to them benefiting the replacement lease.

Clause 95 replaces part of section 118A of the present Act. It applies where a lessee acquires the fee simple estate in the leased land. The lessee may apply to the Registrar to record on the record of title for the fee simple estate all registered or noted interests to which the lease was subject, and note the merger of the fee simple and leasehold estates. In the case of the holder of an interest to which the lease is subject, that person must consent.

Clause 96 provides that a registered lease may include—

  • a covenant by the lessee to purchase the fee simple estate; or

  • a right for the lessee to purchase the fee simple estate.

It sets out the circumstances in which the lessor must transfer the fee simple estate to the lessee. It replaces section 118 of the present Act.

Clause 97 provides for the noting on records of title for the fee simple estate and leasehold estate where the lessor takes possession of the leased land under a court order or re-enters the leased land. It replaces section 121 of the present Act.

Subpart 3—Mortgages

Clause 98 provides that a mortgage takes effect only as security and not as a transfer of the estate or interest charged. It replaces section 100 of the present Act.

Clause 99 provides that a mortgage instrument (or encumbrance instrument) must be used in order to mortgage an estate or interest in land under the Act. It replaces section 101 of the present Act. There will continue to be a separate form for encumbrances.

Clause 100 provides that a mortgage variation instrument must be used in order to vary a registered mortgage. This clause also deals with the consent required from any subsequent mortgagee or submortgagee. It replaces sections 102 and 114 of the present Act. It differs from section 102 in that the consent of a prior mortgagee to a variation is not required.

Clause 101 provides that a mortgage priority instrument must be used in order to vary the priority between themselves of registered mortgages. This clause also deals with the consent required from any submortgagee. It replaces section 103 of the present Act.

Clause 102 deals with the transfer of mortgaged land following a mortgagee sale. It replaces section 105 of the present Act.

Clause 103 provides that a mortgage discharge instrument may be used in order to discharge a registered mortgage. It replaces section 111 of the present Act.

Clause 104 allows a mortgagor to apply to the High Court to have a mortgage discharged if remedies under it are statute-barred. It replaces section 112 of the present Act.

Clause 105 provides for the discharge of a mortgage securing an annuity or a rentcharge. It replaces section 113 of the present Act.

Subpart 4—Easements, profits à prendre, and covenants under Property Law Act 2007

Easements and profits à prendre

Clause 106 defines terms used in the subpart. The clause replaces section 90E(2) of the present Act.

Clause 107 requires the following to be used in order to register an easement or a profit à prendre or the surrender of an easement or a profit à prendre: an easement instrument, a transfer instrument, or (for an easement) a deposit document and related plan. The clause replaces section 90 and parts of sections 90A, 90B, and 90E of the present Act.

Clause 108 sets out requirements for using an easement instrument. The clause replaces parts of sections 90A and 90E of the present Act.

Clause 109 sets out requirements for using a deposit document to create or surrender an easement. The clause replaces parts of sections 90B and 90E of the present Act.

Clause 110 provides for the rights and powers that are implied in easements, which may be modified. The clause replaces section 90D of the present Act.

Clause 111 requires an easement variation instrument to be used in order to register a variation or an addition to, or an exclusion of, the rights and powers that apply to a registered easement or profit à prendre. It sets out requirements for using an easement variation instrument. The clause replaces section 90C and part of section 90E of the present Act.

Clause 112 provides for the Registrar, on application, to record that an easement or a profit à prendre has merged or is extinguished because of lapse of time. The clause replaces part of section 70 of the present Act.

Clause 113 provides for the Registrar, on application, to record that an easement or a profit à prendre is extinguished because of an event that brought it to an end. Notice must be given and persons may object. The clause replaces part of section 70 of the present Act.

Clause 114 provides for the Registrar, on application, to record that an easement is extinguished because it is redundant. An easement is redundant if parts of the relevant land no longer adjoin so that the easement has no practical effect. Notice must be given and persons may object. The clause replaces part of section 70 of the present Act.

Notation of covenants under Property Law Act 2007

Clause 115 requires a covenant instrument to be used in order to note the following on the register: a positive or restrictive covenant to which section 307 of the Property Law Act 2007 applies, a covenant in gross to which new section 307F of the Property Law Act 2007 applies, or the revocation of such covenants. A covenant variation instrument must be used in order to note on the register that a covenant is affected or modified. The clause sets out requirements for using a covenant instrument or covenant variation instrument. It also requires a covenant to be noted on registration of a transfer instrument that transfers an estate or interest in land and provides for the covenant. And it requires a transfer instrument to be used in order to note on the register the assignment of the benefit of a covenant in gross to which new section 307F of the Property Law Act 2007 applies. The clause replaces section 90F of the present Act.

Subpart 5—Statutory land charges

The subpart incorporates the provisions of the Statutory Land Charges Registration Act 1928 (the SLCR Act) into the Bill.

Clause 116 provides that this subpart applies to a charge on land created or arising under another Act except if the other Act provides for its registration. It replaces section 4 of the SLCR Act.

Clause 117 provides that a statutory land charge may be registered by lodging a notice with the Registrar. It replaces section 6 of the SLCR Act.

Clause 118 is a new provision about the priority of a statutory land charge. It provides that the priority of a charge registered under this subpart is determined in accordance with this Act (see clause 35). This replaces section 5(1) of the SLCR Act and section 3(1) of the Statutory Land Charges Registration Amendment Act 1930.

Clause 119 provides for the release of a statutory land charge. It replaces section 7 of the SLCR Act.

Clause 120 provides the Registrar with protection from liability when acting on the basis of information provided to the Registrar under clause 119. It replaces section 11(1) of the SLCR Act, but extends the protection from liability (see paragraph (b)(ii)).

Subpart 6—Flat and office-owning companies

This subpart carries over the provisions of the present Act relating to flat and office-owning companies with some updating and modification.

Clause 121 defines terms used in this subpart. There are some new definitions, including flat and office.

Clause 122 requires a flat or office-owning company to issue a share certificate to each shareholder. It replaces section 121B of the present Act.

Clause 123 provides for the registration of a licence to occupy. It replaces section 121C of the present Act with some updating to reflect the registration provisions in the Bill.

Clause 124 provides that the Registrar may require a person who lodges a licence for registration to lodge a plan for deposit identifying the flat or office and other structures and adjoining land that the licensee has a right to use. It replaces section 121D of the present Act.

Clause 125 sets out the effect of the registration of a licence. It expressly provides that a registered licence is an interest noted on the record of title to which clause 52(1)(b) applies. It replaces section 121F of the present Act.

Clause 126 provides that an instrument that can be registered against a lease registered under this Bill may be registered against a licence under this subpart in the same manner as an instrument may be registered against a lease.

Clause 127 provides for the notification and recording of a mortgage of a registered licence. It replaces section 121G of the present Act.

Clause 128 deals with certain rights of the mortgagee of a registered licence. It replaces section 121H of the present Act.

Clause 129 provides certain restrictions on the disposal of a licence or shares if a licence is subject to a mortgage. It replaces section 121I of the present Act, with some differences. The consent of the mortgagee of a licence is not required to the sale or other disposal of the licence. The consent of the mortgagee is not required where the company cancels, revokes, rescinds, or accepts a surrender of the licence and issues a new licence if the new licensee requests the Registrar to register the mortgage against the new licence.

Clause 130 imposes certain restrictions on the cancellation, revocation, or rescission of the licence or the forfeiture of any of the shares to which the licence relates. It replaces section 121J of the present Act.

Clause 131 provides for the registration by the Registrar of the cancellation, revocation, or rescission of a registered licence. It replaces section 121K of the present Act.

Clause 132 provides that a licence surrender instrument must be used in order to registered a surrender of a registered licence. It also provides that a licence must not be surrendered if it is subject to a mortgage.

Clause 133 provides for the registration of a mortgage where shares in a company are transferred and a new licence is issued to the person who acquires the shares. It replaces section 121L of the present Act.

Clause 134 provides for the priority of a replacement mortgage over land of a company. It replaces section 121O of the present Act.

Clause 135 provides for the transfer of shares in a company on the exercise of a power of sale by a mortgagee of a licence. It replaces section 121N of the present Act.

Clause 136 sets out certain preconditions that apply to the registration of a transfer of a licence or a replacement licence. It replaces section 121M of the present Act.

Subpart 7—Caveats

Clause 137 sets out the grounds on which a person may lodge a caveat against dealings with an estate or interest in land. It replaces section 137 of the present Act, but contains a new ground (see subclause (1)(d)).

Clause 138 requires the Registrar to give notice of the lodging of a caveat against dealings to the registered owner of the estate or interest against which the caveat is lodged.

Clause 139 sets out the effect of a caveat against dealings. It replaces section 141(1), (2), and (5) of the present Act. As long as a caveat is on the register, the Registrar must not register an instrument or record any matter on the register that transfers, charges, or prejudicially affects the estate or interest protected by the caveat. Some exceptions to this are set out in subclause (2), but this is not an exhaustive list.

Clause 140 provides that in certain circumstances a transfer under a mortgagee power of sale may be registered despite a caveat. It replaces section 141(3) and (4) of the present Act.

Clause 141 gives the High Court the power to order the removal of a caveat. It replaces section 143 of the present Act.

Clause 142 provides that the following persons may apply to the Registrar for the lapse of a caveat:

  • a person who wishes to register an instrument affecting the estate or interest protected by the caveat; or

  • the registered owner or a person acting for or on behalf of the registered owner of the estate or interest affected by the caveat.

The caveator may apply to the High Court for an order that the caveat not lapse. This clause replaces sections 145 and 145A of the present Act. It retains the same basic time periods as the present Act but provides for interim orders to be made, effectively extending the period for the court to fully deal with the application.

Clause 143 provides for the withdrawal of a caveat by the caveator. It replaces that part of section 147 of the present Act dealing with withdrawal of a caveat.

Clause 144 replaces the part of section 147 of the present Act relating to consenting to dealings, and also section 147A (which dealt particularly with the registration of an electronic instrument). It provides that the caveator may consent to the registration of an instrument, but the consent is subject to the rights of the caveator.

Clause 145 prevents a second caveat against dealings being lodged (protecting the same estate or interest) after one has been removed or has lapsed. It replaces section 148 of the present Act.

Clause 146 provides that the Registrar is not required to verify that a person is entitled to lodge a caveat. It replaces section 148A of the present Act.

Clause 147 provides that a person (not limited to a caveator) who lodges a caveat against dealings without reasonable cause is liable to pay compensation to a person who suffers loss or damage. It replaces section 146 of the present Act.

Registrar’s caveats

Clause 148 allows the Registrar to lodge a caveat to prevent a dealing in land that may prejudice—

  • a minor:

  • a person who the Registrar is satisfied is not capable of managing his or her affairs in relation to the estate or interest:

  • a person on account of a misdescription of the land or the estate or interest in the land on the record of title:

  • a person through fraud or improper conduct.

It replaces section 211(d) of the present Act. However the term “improper conduct” is intended to cover a broader range of activity than the words “improper dealings” in section 211(d).

Clause 149 requires the Registrar to give notice of the caveat to the registered owner of the land.

Clause 150 sets out the effect of a Registrar’s caveat.

Clause 151 provides that the Registrar may withdraw the caveat at any time.

Subpart 8—Trusts

Clause 152 provides that no notice of a trust may be registered or noted on the register. It replaces section 128 of the present Act.

Clause 153 is an exception to the rule in clause 152. It applies to land that is public reserve as that term is defined in subclause (6). In these cases, the capacity in which the land is held is to be recognised on the register. This clause replaces section 129 of the present Act.

Part 4Miscellaneous applications and other matters

Subpart 1—Applications for title based on adverse possession

Clause 154 provides for applications for title to land based on adverse possession. It only applies if the land is subject to the Act. This clause replaces sections 3 and 6 of the Land Transfer Amendment Act 1963 (the 1963 amendment Act).

Clause 155 requires an application under clause 154 to be accompanied by a certificate or plan relating to the boundaries of the land. This clause replaces section 14 of the 1963 amendment Act.

Clause 156 provides that a registered owner who was incapacitated during the 20-year period required for adverse possession may apply for a court order extending the period. This clause replaces part of section 4 of the 1963 amendment Act.

Clause 157 provides that the 20-year period required for adverse possession does not run while the registered owner is a minor. This clause replaces part of section 4 of the 1963 amendment Act.

Clause 158 prohibits an application for title to certain types of land. This clause replaces section 21 of the 1963 amendment Act.

Clause 159 provides that the Registrar may dispense with a requirement for information, or may require additional information, relating to an application. This clause replaces section 5 of the 1963 amendment Act.

Clause 160 requires the Registrar to give notice of a compliant application. The notice must specify the period within which a person may lodge a caveat to prevent the application from being granted. This clause replaces section 7 of the 1963 amendment Act.

Clause 161 provides that a person claiming an estate or interest in land to which an application relates may lodge a caveat preventing the application from being granted. It sets out requirements for the caveat. This clause replaces section 8 of the 1963 amendment Act.

Clause 162 requires the Registrar to give notice to the applicant of the lodging of a caveat preventing an application from being granted. This clause replaces section 8 of the 1963 amendment Act and section 142 of the present Act.

Clause 163 requires the Registrar to refuse an application if satisfied that a caveat has been lodged by or for the registered owner of certain freehold estates. This clause replaces section 9 of the 1963 amendment Act.

Clause 164 applies if the Registrar is satisfied that a caveat has been lodged by or for a person who claims to be the beneficial or equitable owner of certain freehold estates. The caveator must satisfy certain requirements in order to have the application refused. Otherwise, the caveat lapses. This clause replaces section 10 of the 1963 amendment Act.

Clause 165 applies if the Registrar is satisfied that a caveat has been lodged by or for the person who is the registered owner of, or person noted as entitled to, an estate or interest in any land to which the application relates. The estate or interest must not be a freehold estate covered by clauses 163 and 164. The applicant may agree to his or her title being subject to the estate or interest. Otherwise, the Registrar must refuse the application. This clause replaces section 11 of the 1963 amendment Act.

Clause 166 applies if the Registrar is satisfied that a caveat has been lodged by or for a person who claims to be beneficially or equitably the owner of, or entitled to, an estate or interest in any land to which the application relates. The estate or interest must not be a freehold estate covered by clauses 163 and 164 and must not be covered by clause 165. If the caveator can establish the claim and become registered as owner of the estate or interest, clause 165 is applied with modifications so that the applicant’s title may become subject to the estate or interest. If the caveator’s claim satisfies certain evidential requirements, the applicant may agree to his or her title being subject to the caveat as evidence of the caveator’s claim. Otherwise, the Registrar must refuse the application. This clause replaces section 12 of the 1963 amendment Act.

Clause 167 requires the Registrar to perform actions granting an application if satisfied of certain matters. This clause replaces section 15 of the 1963 amendment Act.

Clause 168 requires the Registrar to cancel or partly cancel a previous record of title as a consequence of granting an application. This clause replaces section 18 of the 1963 amendment Act.

Clause 169 provides for applications relating to land of a dissolved company. This clause replaces section 17 of the 1963 amendment Act.

Subpart 2—Applications to bring land under Act

Clause 170 applies the subpart to land that is not subject to the Act, that is not Māori land, and that has been alienated or contracted to be alienated by the Crown by Crown grant or other instrument.

Clause 171 specifies who may apply to bring land under the Act and sets out the requirements for applications. This clause replaces sections 20 and 21 and part of section 25 of the present Act.

Clause 172 provides for the Registrar to give notice of an application to bring land under the Act. The notice must specify the period within which a person may lodge a caveat to prevent the land being brought under the Act. This clause replaces sections 23, 24, 26, and 28 and part of section 25 of the present Act.

Clause 173 provides that a person claiming an estate or interest in land to which an application relates may lodge a caveat preventing the Registrar from bringing the land under the Act. It sets out the requirements for the caveat. This clause replaces section 136 of the present Act.

Clause 174 provides that, as long as a caveat against bringing land under the Act remains in force, the Registrar must not bring the land under the Act. This clause replaces section 140 of the present Act.

Clause 175 requires the Registrar to give notice to the applicant of a caveat against bringing land under the Act. This clause replaces section 142(a) of the present Act.

Clause 176 provides for the procedure where a caveat is lodged by a person who claims to be entitled to a freehold estate in the land. The caveator must take court proceedings. This clause replaces part of section 144 of the present Act.

Clause 177 provides for the procedure where a caveat is lodged by a person who claims to be entitled to an estate or interest in the land that is not a freehold estate. The applicant may agree to the land being brought under the Act subject to the estate or interest of the caveator. If the applicant gives no notice, the Registrar must refuse the application. If the applicant gives notice that he or she does not agree, the caveator must take court proceedings. This clause replaces sections 58 and 59 and part of section 144 of the present Act.

Clause 178 provides that the Registrar may require an instrument to be lodged to give effect to an agreement or court order under clause 177.

Clause 179 provides for when an applicant may withdraw the application. This clause replaces sections 29 and 140 of the present Act.

Clause 180 requires the Registrar to register the applicant as the owner of the estate to which the application relates if certain requirements are met. This clause replaces section 27 of the present Act.

Clause 181 requires the Registrar to cancel or partly cancel any previous document of title as a consequence of granting an application. This clause replaces section 30 of the present Act.

Clause 182 provides that the Registrar does not need to register a Crown grant under the Deeds Registration Act 1908 if the land to which the grant relates is the subject of an application. This clause replaces section 32 of the present Act.

Subpart 3—Title to access strips

Clause 183 defines access strip. An access strip need only be in use principally to provide access from adjoining lots. This contrasts with the present Act, which applies only to an access strip used solely for such access.

Clause 184 provides that the registered owners of the fee simple estate in lots adjoining an access strip may apply to the Registrar for the issue of a record of title to the access strip. It replaces section 89A(1) and (2) of the present Act.

Clause 185 requires the Registrar to give public notice of the application (as public notice is defined in clause 219) and also give notice of the application to—

  • every person who is the owner of a freehold estate in the access strip; and

  • the territorial authority and any statutory body that would, if the access strip were a road or a service lane or an access way, have jurisdiction over it; and

  • every other person the Registrar thinks fit.

Clause 186 provides that the following persons may lodge a caveat against the application:

  • if the access strip is subject to this Act, a person who is the registered owner of a freehold estate in the access strip:

  • if the access strip is not subject to this Act, a person who claims to be entitled to a freehold estate in the access strip.

Clause 187 requires the Registrar to give notice of a caveat to the applicant.

Clause 188 provides that the High Court may, on application by the applicant, order that the caveat be removed.

Clause 189 provides that if a caveat is lodged by a person who owns a freehold estate in the access strip, the Registrar must refuse the application to the extent it relates to that estate.

Clause 190 deals with the position of a person who owns a freehold estate in the access strip and is not an adjoining owner. The estate of this person will vest in the applicants if,—

  • after reasonable enquiries have been made, the person cannot be found; or

  • the person consents to the application and to forfeiting ownership of the estate to the applicants.

Clause 191 applies to a person who is not an applicant but is an adjoining owner and has an estate or interest in the access strip. The person may consent to forfeiting the estate or interest. If the person does not consent, the estate or interest will remain unaffected. This clause replaces section 89B of the present Act.

Clause 192 applies to a person who is not an applicant and does not have an estate or interest in the access strip, but is an adjoining owner. The person may consent to waiving any right to apply for title to the access strip. If the person does not consent, the person does not lose the right to do so.

Clause 193 deals with the creation of a record of title for the access strip and how share of ownership is apportioned.

Clause 194 sets out certain matters flowing from the creation of a record of title under this subpart. They include rules about dealings (for example, mortgaging) a share in an access strip.

Subpart 4—Limited certificates of title

Clause 195 sets out the purpose of the subpart: to continue, with appropriate modification, provisions of Part 12 of the present Act in relation to estates in land for which limited certificates of title have been issued under certain enactments.

Clause 196 defines limited certificate of title.

Clause 197 requires the Registrar to retain the Registrar’s minutes kept under section 193 of the present Act. The Registrar may update the minutes. This clause replaces sections 193 and 194 of the present Act.

Clause 198 provides that a record of title for an estate in land for which a limited certificate of title has been issued must indicate that the record of title is limited as to parcels or title, or both. This clause replaces section 191 of the present Act.

Clause 199 provides for the effect of a limited record of title for an estate in land. The title to the estate is not fully indefeasible. This clause replaces sections 198 and 199 of the present Act.

Clause 200 provides that the Registrar may remove the limitation from a limited record of title if satisfied that the limitation can be removed and that the registered owner’s title has not been extinguished. This clause replaces section 195 of the present Act.

Clause 201 imposes further requirements for removal of the limitation from a record of title limited as to parcels. This clause replaces section 207 of the present Act.

Clause 202 provides that a registered or noted estate or interest is subject to the same limitation as stated in the limited record of title for the freehold estate. This clause replaces section 203 of the present Act.

Clause 203 applies to a person who claims to be entitled on certain grounds to a freehold estate in land for which there is a limited record of title. The person may apply to be registered as owner of the estate under subpart 2. This clause replaces section 200 of the present Act.

Clause 204 provides that certain estates or interests are extinguished in relation to land for which there is a record of title limited as to title (which derives from a limited certificate of title). It also provides for when the Registrar may create a record of title that is no longer limited as to title. This clause replaces section 204 of the present Act.

Clause 205 applies to a caveat lodged under the Deeds Registration Act 1908 in accordance with section 205(1) of the present Act. The caveat is treated as a caveat against bringing land under the Act. This clause replaces section 205 of the present Act.

Clause 206 specifies who may lodge a caveat against a limited record of title that is limited as to parcels. It sets out requirements for the caveat. This clause replaces section 205 of the present Act.

Part 5Miscellaneous provisions

Subpart 1—General provisions

Covenants implied in instruments

Clause 207 sets out the covenants implied in every instrument used to create, transfer, or charge an estate or interest under the Act. The words “before or after registration” are intended to confirm that, as well as operating post-registration, this clause operates in relation to unregistered instruments before registration. It replaces section 154 of the present Act.

Provisions incorporated in instruments by reference

Clause 208 provides that a memorandum may be registered to incorporate provisions (contained in the memorandum) into an instrument also being registered. It replaces section 155A of the present Act.

Instruments under this Act that may be used under other Acts

Clause 209 provides that regulations may be made specifying instruments under this Act that may be used under other Acts that provide for the registration or notation of any instrument or thing under this Act. It replaces section 99B of the present Act.

Powers of attorney

Clauses 210 to 212 deal with powers of attorney. They replace sections 150 to 152 of the present Act.

Review and appeal

Clause 213 provides that the following persons may apply for a review of a decision of the Registrar or a delegate of the Registrar:

  • a person who is registered as the owner of an estate or interest in land:

  • a person who claims to be entitled to an estate or interest in land.

The Registrar must give notice of the application to any other person who, in the Registrar’s opinion, is affected or is likely to be affected by the review. That person may make submissions in writing to the Registrar. This clause replaces section 216 of the present Act.

Clause 214 provides for a right of appeal to the High Court against the following decisions:

  • a decision under this Act by the Registrar or by a person acting under delegation from the Registrar:

  • a decision by the Registrar under clause 213.

Unlike in the equivalent provision in the present Act, this clause allows a person to appeal directly to the court rather than having to first apply for review by the Registrar. This clause replaces sections 217 to 219, 223, and 224 of the present Act. Much of the material in those sections can be dealt with under rules of court so these procedural matters are not included in the Bill.

Application to court by Registrar

Clause 215 provides that the Registrar may apply to the High Court for directions concerning the performance of any function or the exercise of any power by the Registrar under the Act. It replaces section 222 of the present Act.

Notice to Registrar of proceedings

Clause 216 has no counterpart in the present Act. It requires a plaintiff to serve notice on the Registrar of any proceeding under the Act to which the Registrar is not a party, and gives the Registrar the right to participate in the proceedings.

Offences

Clauses 217 and 218 are offence provisions prescribing offences in relation to registration and false statements. They replace sections 225 to 228A of the present Act. Some of the offence provisions in the present Act are not carried forward as the conduct concerned is considered to be covered by the Crimes Act 1961.

Notices

Clauses 219 to 222 relate to the giving of notices for the purpose of the Act. They replace sections 240 to 240D of the present Act.

Plans

Clause 223 provides that the Registrar is not required to perform functions under the Act in relation to land unless the land is adequately defined. Subclause (2) describes what adequately defined means. It replaces section 167 of the present Act.

Clause 224 allows the Registrar to specify the form of a document to be deposited in relation to matters under the Act. It replaces section 167A of the present Act.

Clause 225 provides that the Crown must meet the cost of a survey certified by the Surveyor-General as required to correct an error in a plan deposited under the Act or in a record of title. It replaces section 170 of the present Act.

Regulations

Clause 226 is a regulation-making power.

Fees and charges

Clause 227 provides for the prescribing of fees and charges.

Land registration districts

Clause 228 provides for the Governor-General, by Order in Council, to create, alter, etc, land registration districts.

Registrar-General of Land

Clauses 229 to 234 relate to the office of Registrar-General of Land. They replace sections 4, 5, 6, 241, and 243 of the present Act. Clause 234 replaces, and expands on, section 240A of the present Act.

Subpart 2—Amendments and repeals

Subpart 2 provides for certain amendments and repeals. The Property Law Act 2007 is amended, including by inserting new sections 307A to 307F and 318A to 318E, for covenants in gross to be noted on a record of title under the Act.

Schedule 1 contains transitional and savings provisions. Clause 9 of that schedule is a back-up provision for any enactment not amended by Schedule 2.

Schedule 2 amends other enactments.