Land Transfer Amendment Regulations (No 2) 2007

2007/261

Land Transfer Amendment Regulations (No 2) 2007


Note

These regulations are administered by Land Information New Zealand.


  • Preamble

    At Wellington this 27th day of August

Pursuant to section 236 of the Land Transfer Act 1952, His Excellency the Governor-General, acting on the advice and with the consent of the Executive Council, makes the following regulations.

1 Title
  • These regulations are the Land Transfer Amendment Regulations (No 2) 2007.

2 Commencement
  • These regulations come into force on 8 October 2007.

3 Principal regulations amended
  • These regulations amend the Land Transfer Regulations 2002.

4 Interpretation
  • Regulation 3 is amended by inserting the following definitions in their appropriate alphabetical order:

    charge, in relation to a discharge instrument, means the charge, notation, or other thing to which the instrument relates

    chargeholder, in relation to a discharge instrument, means the person who is authorised by an enactment or rule of law to require the Registrar to give effect to the instrument

    discharge instrument means an instrument of any of the kinds listed under the item discharge instrument in Part 2 of Schedule 1.

5 New regulation 6 substituted
  • Regulation 6 is revoked and the following regulation substituted:

    6 Who must sign paper instruments
    • If the instrument is of a class described in the first column of the following table and the case described in the second column applies, the party or parties specified (opposite those descriptions) in the third column must sign the instrument:

      InstrumentCaseParties who must sign
      Transfer instrument (section 90 of Act)Any land or estate or interest in land is transferredThe transferor
       An easement is reservedThe transferor and the transferee
       An easement or profit à prendre is created or surrendered, or the transfer contains covenants binding on the person who is to take the interest under the transferThe transferor and the person who is to take the interest
      Easement instrument (sections 90A and 90F of Act)The easement to be created or surrendered is not in grossThe registered proprietors of the dominant and servient tenements
       The easement to be created or surrendered is in grossThe registered proprietor of the servient tenement and the grantee
       A land covenant is created or surrenderedThe registered proprietors of the dominant and servient tenements
      Easement variation instrument (sections 90C and 90F of Act)The easement to be varied is not in grossThe registered proprietors of the dominant and servient tenements
       The easement to be varied is in grossThe registered proprietor of the servient tenement and the grantee
       A land covenant is variedThe registered proprietors of the dominant and servient tenements
      Mortgage instrument (section 101 of Act)All casesThe registered proprietor of the land, estate, or interest affected by the mortgage
      Encumbrance instrument (section 101 of Act)All casesThe registered proprietor of the land, estate, or interest affected by the encumbrance
      Mortgage variation instrument (section 102 of Act)The variation only operates to reduce the amount secured or the rate of interestThe mortgagee
       The variation only operates to increase the amount secured or the rate of interestThe registered proprietor of the land, estate, or interest affected by the mortgage
       All other casesThe registered proprietor of the land, estate, or interest affected by the mortgage, and the mortgagee
      Mortgage priority instrument (section 103 of Act)All casesThe registered proprietor of the land, estate, or interest affected by the mortgage, and every mortgagee under every mortgage that, as a result of the mortgage priority instrument, will be ranked after any mortgage over which it previously had priority
      Mortgage discharge instrument (section 111 of Act)All casesThe mortgagee
      Lease instrument (section 115 of Act)All casesThe lessee and the lessor
      Lease variation instrument (section 116 of Act)All casesThe lessee and the lessor
      Lease surrender instrument (section 120 of Act)All casesThe lessee and the lessor
      Licence to occupy (section 121C of Act)All casesThe flat or office owning company and the share-holder
      Variation of licence to occupy (sections 121C and 121E of Act)All casesThe flat or office owning company and the licensee
      Surrender of licence to occupy (section 121K of Act)All casesThe flat or office owning company and the licensee
      Transmission (section 122 of Act)All casesThe person applying to have a transmission registered
      Caveat against bringing land under Act (section 136 of Act)All casesThe caveator or the caveator's attorney or agent
      Caveat against dealings with land under Act (section 137 of Act)All casesThe caveator or the caveator's attorney or agent
      Withdrawal of caveat (section 147 of Act)All casesThe caveator or the caveator's attorney or agent under a written authority (or without written authority if the proviso to section 147 of the Act applies)
6 New regulation 11 substituted
  • Regulation 11 is revoked and the following regulation substituted:

    11 Parties in respect of whom certification under section 164A of Act is required
    • If the instrument is of a class described in the first column of the following table and the case described in the second column applies, a certification must be given on behalf of the party specified (opposite those descriptions) in the third column:

      Electronic instrumentCaseSpecified party
      Transfer instrument (section 90 of Act)A conveyancer acting for the transferorThe registered proprietor
       A conveyancer acting for the transfereeThe transferee
      Mortgage instrument (section 101 of Act)A conveyancer acting for the mortgagorThe mortgagor
       A conveyancer acting for the mortgageeThe mortgagee
      Discharge instrument (section 111 of Act and various other enactments)A conveyancer acting for the chargeholderThe chargeholder
7 Legal effect of certifications
  • Regulation 13 is amended by revoking subclause (2) and substituting the following subclause:

    • (2) For the purposes of section 164E(3)(b) of the Act, on the registration of an instrument of a class described in the first column of the following table, the instrument has effect as an instrument made in writing and duly executed by the party or parties specified (opposite that description) in the second column:

      InstrumentParties deemed to have executed
      Transfer instrument (section 90 of Act)The transferor
      Mortgage instrument (section 101 of Act)The registered proprietor of the land or estate or interest affected by the mortgage
      Discharge instrument (section 111 of Act and various other enactments)The chargeholder
8 Revocations
  • Regulations 17, 18, 35, 36, and 37 are revoked.

9 Registration as to part of land affected
  • Regulation 24 is amended by adding the following subclause:

    • (3) However, this regulation does not apply to electronic instruments.

10 Schedule 1 amended
  • (1) Schedule 1 is amended by revoking Parts 1 and 2 and substituting the Parts 1 and 2 set out in the Schedule of these regulations.

    (2) Part 3 of Schedule 1 is amended by revoking the item relating to a discharge of mortgage and substituting the following item:

    Discharge instrument(a)discharges, releases, withdraws, or otherwise cancels a charge from all the land in 1or more computer registers; and
     (b)affects only 1 charge

    (3) Part 3 of Schedule 1 is amended by revoking the item relating to a withdrawal instrument.

11 Schedule 4 amended
  • (1) Clause 1 of Schedule 4 is amended by inserting the following definition in its appropriate alphabetical order:

    repair and maintenance, in relation to an easement facility, includes the replacement of the easement facility.

    (2) Clause 11(4) of Schedule 4 is amended by inserting or subclause (5) after subclause (2).

    (3) Clause 11 of Schedule 4 is amended by adding the following subclauses:

    • (5) The grantor or grantee must promptly carry out at that party's sole cost any repair and maintenance of the easement facility that is attributable solely to an act or omission by that party.

    • (6) However, if the repair and maintenance of the easement facility is only partly attributable to an act or omission by the grantor or grantee,—

      • (a) that party must pay the portion of the costs of the repair and maintenance that is attributable to that act or omission; and

      • (b) the balance of those costs is payable in accordance with subclause (2).

    • (7) The costs of any electric power used for the conveyance of water must be apportioned between users of the water in proportion to their usage of the water.


Schedule
New Parts 1 and 2 of Schedule 1 substituted

r 10

1
Permissible transactions

The following table sets out, for the purposes of regulation 4(2)(a), the number of instruments that may be included in a permissible transaction:

Class of permissible instrumentNumber of instruments
Discharge instrumentNo limit
Transfer instrument1
Mortgage instrument1

2
Permissible instruments

The following table describes, for the purposes of regulation 4(2)(b), the classes of permissible instrument:

Class of permissible instrumentDescription
Mortgage instrumentMade under section 101(1) of Act
Transfer instrumentMade for the purpose of registering a transfer of land under section 90(1) of Act
Discharge instrument— 
(a)discharge of mortgage (includes discharge of encumbrance)Section 111 of Act
(b)discharge of family benefit chargeSection 14(3) or (4), Family Benefits (Home Ownership) Act 1964
(c)discharge of charging orderRule 599, District Courts Rules 1992
  Rule 577, High Court Rules
  Section 184, Child Support Act 1991
  Section 101, Domestic Proceedings Act 1968
  Section 118, Family Proceedings Act 1980
  Section 66 or 101, Local Government (Rating) Act 2002
  Section 55, Maori Affairs Restructuring Act 1989
  Section 80 or 153, Rating Act 1967
  Section 143 or 186, Rating Powers Act 1988
  Section 82 or 333, Te Ture Whenua Maori Act 1993
  Any other provision of an enactment that authorises the discharge of a charging order against land noted on the register
(d)discharge of statutory land chargeSection 7, Statutory Land Charges Registration Act 1928
  Section 52, Electricity Act 1968
  Section 57(3), Estate and Gift Duties Act 1968
  Section 14L(5), Farm Ownership Savings Act 1974
  Section 18, Legal Aid Act 1969
  Section 40, Legal Services Act 1991
  Section 32, Legal Services Act 2000
  Section 326(10), 331(1), 335(7), 355(5), 465, 468(5), 511(6), 626(1), 650(5), 674(7), or 692ZK(3), Local Government Act 1974,
  Section 372, Municipal Corporations Act 1954
  Section 73(5), 74(5), or 107(6), Public Works Act 1981
  Section 162(5), Rating Powers Act 1988
  Section 109(5) or 315(3), Resource Management Act 1991
  Section 5A, Rural Housing Act 1939
  Section 125, Social Security Act 1964
  Section 25, Soil Conservation and River Control Act 1941
  Any other provision of an enactment that authorises the discharge of a statutory land charge against land noted on the register
(e)withdrawal of caveatSection 147 of Act
(f)withdrawal of notice of claimSection 42(3), Property (Relationships) Act 1976
(g)cancellation or expiration of consent noticeSection 221(5), Resource Management Act 1991
(h)cancellation of bondSection 348, Local Government Act 1974
(i)discharge of lienSection 42, Wages Protection and Contractors' Liens Act 1939
(j)cancellation of building-line restrictionSection 327A, Local Government Act 1974
(k)withdrawal of notice of desire to acquire landSection 18, Public Works Act 1981
(l)discharge of compensation certificateSection 19(7), Public Works Act 1981
(m)discharge of certificate of consentSection 115, Public Works Act 1981
(n)release of irrigation noticeSection 220, Public Works Act 1981
(o)discharge of irrigation chargeSection 221, Public Works Act 1981
(p)discharge of Earthquake Commission noticeRegulation 5A(6), Earthquake and War Damage Regulations 1984
(q)discharge of Earthquake Commission noticeSection 28, Earthquake Commission Act 1993
(r)removal of notification of building consentSection 74, Building Act 2004
(s)discharge of tax chargeSection 367, Income Tax Act 1976

Martin Bell,

for Clerk of the Executive Council.

Explanatory note

This note is not part of the regulations, but is intended to indicate their general effect.

These regulations, which come into force on 8 October 2007, amend the Land Transfer Regulations 2002 to support the expansion of electronic lodgement. This is to be done progressively with the ultimate aim of applying electronic lodgement to all instruments that may be lodged by conveyancers.

The regulations replace the table in regulation 6 of the principal regulations by completing the list of parties who must sign paper instruments. This is to better match signing provisions in the Land Transfer Act 1952 and to make the table more comprehensive.

The regulations add repair and maintenance to the definition of easement facility in Schedule 4 of the principal regulations.

The regulations also revoke the following provisions of the principal regulations, which are no longer required:

  • regulation 17 (when duplicate certificate or other instrument of title must be produced):

  • regulation 18 (when particulars of other instruments must be supplied):

  • regulation 35 (delivery of new certificate of title issued on request):

  • regulation 36 (delivery of new certificate of title issued on registration of instrument):

  • regulation 37 (general powers of Registrar as to delivery of documents).


Issued under the authority of the Acts and Regulations Publication Act 1989.

Date of notification in Gazette: 30 August 2007.