Land Transfer Amendment Regulations (No 2) 2008

2008/283

Crest

Land Transfer Amendment Regulations (No 2) 2008

Anand Satyanand, Governor-General

Order in Council

At Wellington this 25th day of August 2008

Present:
His Excellency the Governor-General in Council

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.

Regulations

1 Title
  • These regulations are the Land Transfer Amendment Regulations (No 2) 2008.

2 Commencement
  • These regulations come into force on 29 September 2008.

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

4 Interpretation
  • The definition of discharge instrument in regulation 3 is amended by omitting Part 2 and substituting Part 1.

5 Classes of instruments capable of being electronic instruments
  • Regulation 4 is amended by revoking subclause (2) and substituting the following subclause:

    • (2) The instrument—

      • (a) must belong to a class of permissible instrument described in Part 1 of Schedule 1; and

      • (b) is subject to the restrictions set out for instruments of that class in Part 2 of Schedule 1.

6 New regulations 11 to 13 substituted
  • Regulations 11 to 13 are revoked and the following regulations 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 instrument Case Specified party
      Transfer instrument (section 90 of Act)  A conveyancer acting for the transferor  The transferor
        A conveyancer acting for the transferee  The transferee
      Easement instrument (sections 90A, 90F of Act) A conveyancer acting for the grantor The grantor
        A conveyancer acting for the grantee The grantee
      Easement variation instrument (sections 90C, 90F of Act) A conveyancer acting for the grantor The grantor
        A conveyancer acting for the grantee The grantee
      Mortgage instrument (section 101 of Act)  A conveyancer acting for the mortgagor  The mortgagor
        A conveyancer acting for the mortgagee  The mortgagee
      Encumbrance instrument (section 101 of Act)  A conveyancer acting for the encumbrancer  The encumbrancer
        A conveyancer acting for the encumbrancee The encumbrancee
      Mortgage variation instrument (section 102 of Act) A conveyancer acting for the mortgagor The mortgagor
        A conveyancer acting for the mortgagee The mortgagee
      Mortgage priority instrument (section 103 of Act) A conveyancer acting for the mortgagor The mortgagor
        A conveyancer or conveyancers acting for 1 or more mortgagees giving priority Every mortgagee giving priority
        A conveyancer or conveyancers acting for 1 or more mortgagees taking priority  Every mortgagee taking priority
      Discharge instrument (section 111 of Act and various other enactments)  A conveyancer acting for the chargeholder  The chargeholder
      Lease instrument (section 115 of Act) A conveyancer acting for the lessor The lessor
        A conveyancer acting for the lessee The lessee
      Lease variation instrument (section 116 of Act) A conveyancer acting for the lessor The lessor
        A conveyancer acting for the lessee The lessee
      Lease surrender instrument (section 120 of Act) A conveyancer acting for the lessor The lessor
        A conveyancer acting for the lessee The lessee
      Licence to occupy (section 121C of Act) A conveyancer acting for the licensor The licensor
        A conveyancer acting for the licensee The licensee
      Surrender of licence to occupy (section 121K of Act) A conveyancer acting for the licensor The licensor
        A conveyancer acting for the licensee The licensee
      Application for transmission (sections 99A, 122 of Act) A conveyancer acting for the applicant  The applicant
      Caveat (sections 137, 205(4) of Act) A conveyancer acting for the caveator  The caveator
      Application to note merger of lease (regulation 25 of these regulations) A conveyancer acting for the applicant The applicant
      Application for correction or change of name (regulation 26 of these regulations) A conveyancer acting for the applicant  The applicant
      Notice of claim (section 42(3), Property (Relationships) Act 1976) A conveyancer acting for the claimant  The claimant
      Application to settle land as a joint family home (sections 4, 5, 12A, Joint Family Homes Act 1964) A conveyancer acting for the registered proprietor The applicant
      Application to cancel a joint family home (section 10(1)(a), Joint Family Homes Act 1964) A conveyancer acting for the registered proprietor The applicant
      Application for deposit of unit title plan (section 5(3), Unit Titles Act 1972) A conveyancer acting for the registered proprietor The applicant
      Esplanade strip (sections 232, 235, Resource Management Act 1991) A conveyancer acting for the registered proprietor The registered proprietor
        A conveyancer acting for the territorial authority The territorial authority
      Easement for access strip (section 237B, Resource Management Act 1991) A conveyancer acting for the registered proprietor The registered proprietor
        A conveyancer acting for the territorial authority The territorial authority
      Covenant against transfer, lease, or other disposition (section 240, Resource Management Act 1991) A conveyancer acting for the registered proprietor The registered proprietor
        A conveyancer acting for the territorial authority The territorial authority
    12 Form of certification
    • A certification that is given on behalf of a party specified in the third column of the table in regulation 11 must be in the following form:

      ‘I certify that I have the authority to act for [insert description of the appropriate party from the third column of the table in regulation 11] and that the party has the legal capacity to authorise me to lodge this instrument.
      I certify that I have taken reasonable steps to confirm the identity of the person who gave me authority to lodge this instrument.
      I certify that any statutory provisions specified by the Registrar for this class of instrument have been complied with or do not apply, and [whichever of the following apply]—
       I certify that any statutory provisions specified by the Registrar relating to Maori freehold land have been complied with or do not apply [use this form if an electronic workspace facility generates a notification that the land is or could be Maori land]; or
       I certify that the caveator or claimant under [insert Caveat, or Notice of Claim, and number here] has consented to this transaction, which is subject to the caveat or notice of claim, and I hold that consent [use this form if the transaction is to be registered with caveator's or claimant's consent]; or
       I certify that the chargeholder under [insert type and registration number of charge here] has consented to this transaction and I hold that consent, or the charge does not prevent registration [use this form if the title affected by the transaction is subject to a charge]; or
       I certify that the mortgagee under Mortgage [insert the mortgage number here] has consented to this transaction and I hold that consent [use this form if the transaction is to be registered with the mortgagee's consent]; or
       I certify that the licensor or lessor of the affected licence or lease has consented to this transaction, or notice has been given to the Commissioner of Crown Lands, or (in the case of mortgages) the licensor's or lessor's consent or notice to the Commissioner is not required under the Land Act 1948 [use this form if the transaction is to be registered against a licence or lease under that Act]; or
       I certify that the mortgagee under Submortgage [insert the submortgage number here] has consented to this transaction and I hold that consent, or the mortgage postponed by this transaction is not subject to the submortgage [use this form if the title affected by the transaction is affected by a submortgage]; or
        I certify that the applicant is entitled to be registered as proprietor by virtue of transmission [use this form if the transaction is an application for transmission]; or
       I certify that the territorial authority has consented to this transaction and I hold that consent, or the affected easement is not the subject of a condition imposed by the territorial authority [use this form if the transaction to be registered is a variation of easement or a surrender of easement].
      I certify that I hold evidence showing the truth of the certifications I have given and will retain that evidence for the prescribed period.’
    13 Legal effect of certifications
    • (1) For the purposes of section 164E(1) of the Act, on the registration of an instrument of a class described in the first column of the following table, the instrument has the same effect as a deed executed by the party or parties specified (opposite that description) in the second column:

      Instrument Parties deemed to have executed instrument
      Transfer instrument (section 90 of Act) The transferor and the transferee
      Easement instrument (sections 90A, 90F of Act) The grantor and the grantee
      Easement variation instrument (sections 90C, 90F of Act) The grantor and the grantee
      Mortgage instrument (section 101 of Act)  The registered proprietor of the land, estate, or interest affected by the mortgage
      Encumbrance instrument (section 101 of Act) The encumbrancer
      Mortgage variation instrument (section 102 of Act) The mortgagor and the mortgagee
      Mortgage priority instrument (section 103 of Act) The mortgagor; 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

      Lease instrument (section 115 of Act) The lessor and the lessee
      Lease variation instrument (section 116 of Act) The lessor and the lessee
      Lease surrender instrument (section 120 of Act) The lessor and the lessee

      (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 where the case described in the second column of that table applies, the instrument has effect as an instrument made in writing and duly executed by the party or parties specified (opposite that description) in the third column:

      Instrument Case Parties deemed to have executed
      Transfer instrument (section 90 of Act)  Any land, estate, or interest in land is transferred The transferor
        An easement is reserved  The 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 transfer The transferor and the person who is to take the interest
      Easement instrument (sections 90A, 90F of Act) The easement to be created or surrendered is not in gross The registered proprietors of the dominant and servient tenements
        The easement to be created or surrendered is in gross The registered proprietor of the servient tenement and the grantee
        A land covenant is to be created or surrendered The registered proprietors of the dominant and servient tenements
      Easement variation instrument (sections 90C, 90F of Act) The easement to be varied is not in gross The registered proprietors of the dominant and servient tenements
        The easement to be varied is in gross The registered proprietor of the servient tenement and the grantee
        A land covenant is to be varied The registered proprietors of the dominant and servient tenements
      Mortgage instrument (section 101 of Act)  All cases The registered proprietor of the land, estate, or interest affected by the mortgage
      Encumbrance instrument (section 101 of Act) All cases The encumbrancer
      Mortgage variation instrument (section 102 of Act) All cases The mortgagor and the mortgagee
      Mortgage priority instrument (section 103 of Act) All cases 

      The mortgagor; 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

      Discharge instrument (section 111 of Act and various other enactments)  All cases The chargeholder
      Lease instrument (section 115 of Act) All cases The lessor and the lessee
      Lease variation instrument (section 116 of Act) All cases The lessor and the lessee
      Lease surrender instrument (section 120 of Act) All cases The lessor and the lessee
      Licence to occupy (section 121C of Act) All cases The flat or office owning company and the share-holder
      Surrender of licence to occupy (section 121K of Act) All cases The flat or office owning company and the licensee
      Application for transmission (sections 99A, 122 of Act) All cases The applicant
      Caveat (sections 137, 205(4) of Act) All cases The caveator or the caveator's attorney or agent
      Application to note merger of lease (regulation 25 of these regulations) All cases The registered proprietor
      Application for correction or change of name (regulation 26 of these regulations) All cases The registered proprietor
      Notice of claim (section 42(3), Property (Relationships) Act 1976) All cases The claimant or claimant’s attorney or agent
      Application to settle land as a joint family home (sections 4, 5, 12A, Joint Family Homes Act 1964) All cases The applicant
      Application to cancel a joint family home (section 10(1)(a), Joint Family Homes Act 1964) All cases The applicant
      Application for deposit of unit title plan (section 5(3), Unit Titles Act 1972) All cases The applicant
      Esplanade strip (sections 232, 235, Resource Management Act 1991) All cases The registered proprietor and the local authority
      Easement for access strip (section 237B, Resource Management Act 1991) All cases The registered proprietor and the local authority
      Covenant against transfer, lease, or other disposition (section 240, Resource Management Act 1991) All cases The owner and the territorial authority
7 Registration as to part of land affected
8 New Schedule 1 substituted
  • Schedule 1 is revoked and the Schedule 1 set out in the Schedule of these regulations substituted.


Schedule
New Schedule 1 substituted

r 8

Schedule 1
Electronic instrument

r 4

Part 1
Permissible instruments

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

Class of permissible instrument Description
Transfer instrument  Made under section 90(1) of Act
Easement instrument  Made under sections 90A and 90F of Act
Easement variation instrument  Made under sections 90C and 90F of Act
Mortgage instrument  Made under section 101 of Act
Encumbrance instrument  Made under section 101 of Act
Mortgage variation instrument  Made under section 102 of Act
Mortgage priority instrument  Made under section 103 of Act
Discharge instrument—   
(a) discharge of mortgage (includes discharge of encumbrance)  Section 111 of Act
(b) discharge of family benefit charge  Section 14(3) or (4), Family Benefits (Home Ownership) Act 1964
(c) discharge of charging order  Rule 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
    Sections 66, 101, Local Government (Rating) Act 2002
    Section 55, Maori Affairs Restructuring Act 1989
    Sections 80, 153, Rating Act 1967
    Sections 143, 186, Rating Powers Act 1988
    Sections 82, 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 charge  Section 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
    Sections 326(10), 331(1), 335(7), 355(5), 465, 468(5), 511(6), 626(1), 650(5), 674(7), 692ZK(3), Local Government Act 1974
    Section 372, Municipal Corporations Act 1954
    Sections 73(5), 74(5), 107(6), Public Works Act 1981
    Section 162(5), Rating Powers Act 1988
    Sections 109(5), 315(3), Resource Management Act 1991
    Section 5A, Rural Housing Act 1939
    Section 125, Social Security Act 1964
    Section 25, Soil Conservation and Rivers 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 caveat Section 147 of Act
(f) withdrawal of notice of claim  Section 42(3), Property (Relationships) Act 1976
(g) cancellation or expiration of consent notice  Section 221(5), Resource Management Act 1991
(h) cancellation of bond  Sections 304, 348, Local Government Act 1974, or section 109(2), Resource Management Act 1991
(i) discharge of lien  Section 42, Wages Protection and Contractors' Liens Act 1939
(j) cancellation of building-line restriction  Section 327A, Local Government Act 1974
(k) withdrawal of notice of desire to acquire land  Section 18, Public Works Act 1981
(l) discharge of compensation certificate  Section 19(7), Public Works Act 1981
(m) discharge of certificate of consent  Section 115, Public Works Act 1981
(n) release of irrigation notice  Section 220, Public Works Act 1981
(o) discharge of irrigation charge  Section 221, Public Works Act 1981
(p) discharge of Earthquake Commission notice  Regulation 5A, Earthquake and War Damage Regulations 1984
(q) discharge of Earthquake Commission notice  Section 28, Earthquake Commission Act 1993
(r) removal of notification of building consent  Section 74, Building Act 2004
(s) discharge of tax charge  Section 367, Income Tax Act 1976
(t) cancellation of amalgamation condition Section 241, Resource Management Act 1991
(u) revocation of compulsory easement condition Section 243(f), Resource Management Act 1991
Lease instrument  Made under section 115 of Act
Lease variation instrument  Made under section 116 of Act
Lease surrender instrument  Made under section 120 of Act
Licence to occupy  Made under section 121C of Act
Surrender of licence to occupy  Made under section 121K of Act
Application for transmission  Made under sections 99A, 122 of Act
Caveat  Made under sections 137, 205(4) of Act
Application to note merger of lease Made under regulation 25 of these regulations
Application for correction or change of name Made under regulation 26 of these regulations
Notice of claim  Made under section 42(3), Property (Relationships) Act 1976
Application to settle land as a joint family home  Made under sections 4, 5, 12A, Joint Family Homes Act 1964
Application to cancel a joint family home  Made under section 10(1)(a), Joint Family Homes Act 1964
Application for deposit of unit title plan  Made under section 5(3), Unit Titles Act 1972
Esplanade strip Made under sections 232, 235, Resource Management Act 1991
Easement for access strip Made under section 237B, Resource Management Act 1991
Covenant against transfer, lease, or other disposition  Made under section 240, Resource Management Act 1991

Part 2
Restrictions on electronic instruments

The following table sets out, for the purposes of regulation 4(2)(b), restrictions for each class of permissible instrument:

Class of permissible instrument Restrictions
All instruments An instrument required by any enactment to be executed by a court registrar or under a court seal cannot be an electronic instrument
Mortgage variation instrument  May affect only 1 mortgage
Discharge instrument May affect only 1 charge
Transfer instrument, mortgage instrument, mortgage variation instrument, mortgage priority instrument, application for transmission, caveat, notice of claim, or application for correction or change of name 

An instrument affecting any land, estate, or interest—

  • (a) for which 1 computer register has been created; or

  • (b) comprised in 1 registered instrument; or

  • (c) for which more than 1 computer register has been created (if the affected registered proprietor is the same in each case); or

  • (d) comprised in more than 1 registered instrument (if the type of estate or interest, and affected registered proprietor, are the same in each case).

Application for transmission May not relate to a transmission of any land, estate, or interest comprised in a computer register noted with the words “No survivorship”.

Rebecca Kitteridge,
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 29 September 2008, amend the Land Transfer Regulations 2002. The regulations implement Landonline upgrade release 3.1 and will enable almost all land transactions to be lodged electronically. In particular, this release will enable the following instruments to be lodged electronically rather than on paper:

  • easements (rights to use another person's land for a specific purpose), easement variations, encumbrances (a type of mortgage), mortgage variations, leases, licences to occupy land, variations of leases and licences, transmissions (acquiring title by operation of law), caveats (claims of unregistered land entitlements or interests), mergers of leases, and corrections or changes of name:

  • notices of claim on a land title by a spouse or a civil union or de facto partner of a land holder under the Property (Relationships) Act 1976. These have the same effect as caveats:

  • applications to settle and to cancel settlements of land under the Joint Family Homes Act 1964:

  • applications for the creation of stratum estates for buildings or parts of buildings under the Unit Titles Act 1972:

  • agreements between local authorities and landowners creating esplanade strips, easements for access strips, and land amalgamation conditions under the Resource Management Act 1991.

In addition, 3 new conveyancer certifications required under the Land Transfer Act 1952 for variations of mortgage priority, transmissions, and variations or surrender of easements will be provided for electronic versions of these instruments.


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

Date of notification in Gazette: 28 August 2008.

These regulations are administered by Land Information New Zealand.