Land Transfer Amendment Regulations (No 2) 2008

  • revoked
  • Land Transfer Amendment Regulations (No 2) 2008: revoked, on 12 November 2018, pursuant to section 249(1) of the Land Transfer Act 2017 (2017 No 30).

Reprint as at 12 November 2018

Coat of Arms of New Zealand

Land Transfer Amendment Regulations (No 2) 2008

(SR 2008/283)

Land Transfer Amendment Regulations (No 2) 2008: revoked, on 12 November 2018, pursuant to section 249(1) of the Land Transfer Act 2017 (2017 No 30).

Anand Satyanand, Governor-General

Order in Council

At Wellington this 25th day of August 2008

Present:
His Excellency the Governor-General in Council

Note

Changes authorised by subpart 2 of Part 2 of the Legislation Act 2012 have been made in this official reprint.

Note 4 at the end of this reprint provides a list of the amendments incorporated.

These regulations are administered by Land Information New Zealand.

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 instrumentCaseSpecified 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 grantorThe grantor
A conveyancer acting for the granteeThe grantee
Easement variation instrument (sections 90C, 90F of Act)A conveyancer acting for the grantorThe grantor
A conveyancer acting for the granteeThe 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 encumbranceeThe encumbrancee
Mortgage variation instrument (section 102 of Act)A conveyancer acting for the mortgagorThe mortgagor
A conveyancer acting for the mortgageeThe mortgagee
Mortgage priority instrument (section 103 of Act)A conveyancer acting for the mortgagorThe mortgagor
A conveyancer or conveyancers acting for 1 or more mortgagees giving priorityEvery 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 lessorThe lessor
A conveyancer acting for the lesseeThe lessee
Lease variation instrument (section 116 of Act)A conveyancer acting for the lessorThe lessor
A conveyancer acting for the lesseeThe lessee
Lease surrender instrument (section 120 of Act)A conveyancer acting for the lessorThe lessor
A conveyancer acting for the lesseeThe lessee
Licence to occupy (section 121C of Act)A conveyancer acting for the licensorThe licensor
A conveyancer acting for the licenseeThe licensee
Surrender of licence to occupy (section 121K of Act)A conveyancer acting for the licensorThe licensor
A conveyancer acting for the licenseeThe 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 applicantThe 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 proprietorThe applicant
Application to cancel a joint family home (section 10(1)(a), Joint Family Homes Act 1964)A conveyancer acting for the registered proprietorThe applicant
Application for deposit of unit title plan (section 5(3), Unit Titles Act 1972)A conveyancer acting for the registered proprietorThe applicant
Esplanade strip (sections 232, 235, Resource Management Act 1991)A conveyancer acting for the registered proprietorThe registered proprietor
A conveyancer acting for the territorial authorityThe territorial authority
Easement for access strip (section 237B, Resource Management Act 1991)A conveyancer acting for the registered proprietorThe registered proprietor
A conveyancer acting for the territorial authorityThe territorial authority
Covenant against transfer, lease, or other disposition (section 240, Resource Management Act 1991)A conveyancer acting for the registered proprietorThe registered proprietor
A conveyancer acting for the territorial authorityThe 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:

InstrumentParties 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:

InstrumentCaseParties deemed to have executed
Transfer instrument (section 90 of Act) Any land, estate, or interest in land is transferredThe 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 transferThe 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 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 to be created or surrenderedThe registered proprietors of the dominant and servient tenements
Easement variation instrument (sections 90C, 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 to be 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 encumbrancer
Mortgage variation instrument (section 102 of Act)All casesThe 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 casesThe chargeholder
Lease instrument (section 115 of Act)All casesThe lessor and the lessee
Lease variation instrument (section 116 of Act)All casesThe lessor and the lessee
Lease surrender instrument (section 120 of Act)All casesThe lessor and the lessee
Licence to occupy (section 121C of Act)All casesThe flat or office owning company and the share-holder
Surrender of licence to occupy (section 121K of Act)All casesThe flat or office owning company and the licensee
Application for transmission (sections 99A, 122 of Act)All casesThe applicant
Caveat (sections 137, 205(4) of Act)All casesThe caveator or the caveator’s attorney or agent
Application to note merger of lease (regulation 25 of these regulations)All casesThe registered proprietor
Application for correction or change of name (regulation 26 of these regulations)All casesThe registered proprietor
Notice of claim (section 42(3), Property (Relationships) Act 1976)All casesThe 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 casesThe applicant
Application to cancel a joint family home (section 10(1)(a), Joint Family Homes Act 1964)All casesThe applicant
Application for deposit of unit title plan (section 5(3), Unit Titles Act 1972)All casesThe applicant
Esplanade strip (sections 232, 235, Resource Management Act 1991)All casesThe registered proprietor and the local authority
Easement for access strip (section 237B, Resource Management Act 1991)All casesThe registered proprietor and the local authority
Covenant against transfer, lease, or other disposition (section 240, Resource Management Act 1991)All casesThe owner and the territorial authority
7 Registration as to part of land affected

Regulation 24(3) is revoked.

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 instrumentDescription
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 caveatSection 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 conditionSection 241, Resource Management Act 1991
(u)revocation of compulsory easement conditionSection 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 leaseMade under regulation 25 of these regulations
Application for correction or change of nameMade 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 stripMade under sections 232, 235, Resource Management Act 1991
Easement for access stripMade 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 instrumentRestrictions
All instrumentsAn 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 instrumentMay 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 transmissionMay 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 Legislation Act 2012.

Date of notification in Gazette: 28 August 2008.

Reprints notes
1 General

This is a reprint of the Land Transfer Amendment Regulations (No 2) 2008 that incorporates all the amendments to those regulations as at the date of the last amendment to them.

2 Legal status

Reprints are presumed to correctly state, as at the date of the reprint, the law enacted by the principal enactment and by any amendments to that enactment. Section 18 of the Legislation Act 2012 provides that this reprint, published in electronic form, has the status of an official version under section 17 of that Act. A printed version of the reprint produced directly from this official electronic version also has official status.

3 Editorial and format changes

Editorial and format changes to reprints are made using the powers under sections 24 to 26 of the Legislation Act 2012. See also http://www.pco.parliament.govt.nz/editorial-conventions/.

4 Amendments incorporated in this reprint

Land Transfer Act 2017 (2017 No 30): section 249(1)