This Act may be cited as the Land Transfer (Hawke’s Bay) Act 1931, and is part of the Land Transfer Act 2017 (the principal Act).

This Act shall be deemed to have come into force on 4 February 1931.

In this Act, if not inconsistent with the context,—

The provisions of this section shall apply only in cases where certificates of title or other instruments that were registered in the old register or duplicates of instruments that were embodied in the old register have not been destroyed.

In any case to which this section applies, the Registrar may cause copies of such instruments or duplicates as aforesaid to be prepared. Such copies shall, upon being duly authenticated under the hand and seal of the Registrar, and subject to the provisions of this Act, have the same force and effect as the corresponding folios of the old register, or the corresponding original instruments, as the case may be.

In the case of certificates of title, the Registrar, in lieu of making and authenticating copies as provided for in the last preceding subsection, may issue new certificates of title which shall, subject to the provisions of this Act, have the same force and effect as if they were certificates of title issued under the provisions of the principal Act. Every such certificate shall have endorsed thereon a memorandum to the effect that it is issued in lieu of a certificate of title the register copy of which has been destroyed.

In any case where an instrument was executed in triplicate, and whether or not a triplicate was presented for registration, if 2 copies of such instrument have been destroyed, the provisions of subsection (2) shall apply with respect to the remaining triplicate if the Registrar is satisfied that the same is a true triplicate of such instrument. Unless and until the Registrar endorses thereon a memorandum to the effect that it is conclusive, no such remaining triplicate or duplicate copy adopted in accordance with the next succeeding subsection shall be conclusive as to any memorials that may have been endorsed upon the triplicate that was retained by the Registrar, and the Registrar shall endorse upon it a memorandum that it is not conclusive as to such memorials (if any). Subject to the foregoing provisions of this subsection, every such remaining triplicate or adopted duplicate shall for the purposes of this section be regarded as if it were the registered triplicate upon which memorials were or may have been endorsed by the Registrar.

On the adoption of any triplicate of any registered instrument it shall be lawful for the Registrar to receive with the adopted triplicate 2 copies thereof, and to certify one of such copies free of cost, and to issue the same in substitution for the outstanding duplicate of the instrument upon which memorials are to be endorsed under section 40 of the principal Act, and thereafter such copy shall have the same force and effect as if it were the original duplicate upon which memorials may be endorsed by the Registrar.

Except as provided in subsection (3), no certificate of title issued under the last preceding section, or issued in substitution for any such certificate of title, or issued in respect of any part of the land comprised in any such certificate of title, and no copy of any instrument authenticated under that section, shall, until the expiration of 1 year from the date of the issue of such certificate of title, or from the date of the issue of the first such certificate where more than 1 certificate of title has been issued, or from the date of the Registrar’s authentication of such copy, as the case may be, or until the expiration of 1 year from the date of the passing of this Act, whichever period is the later to expire, be conclusive as to the proprietorship of any mortgage, lease, easement, or profit à prendre, or as to the non-existence on 3 February 1931 of—

Any person claiming the benefit of any such charge, lien, estate or interest, encumbrance, or other dealing as is referred to in the last preceding subsection may re-register such charge or lien in the manner provided for the registration of the same in the old register, or may lodge a caveat or a new caveat to protect such charge, lien, estate or interest, or encumbrance, or other dealing. Upon the expiration of the time limited by the said subsection every such charge or lien in respect of which a memorial has not been entered on the new register by the Registrar, or that has not been re-registered, or in respect of which a caveat has not been lodged, and every caveat lodged to protect an interest in respect of which a new caveat has not been lodged, shall, as against any person who within the time limited as aforesaid or at any time thereafter becomes a registered proprietor bona fide and for value, be deemed never to have been registered or lodged, as the case may be.

If the Registrar is satisfied, upon such evidence as may seem to him to be sufficient, that the land comprised in any certificate of title or dealt with by any other instrument referred to in the last preceding section was not on the said date subject to any such charge, lien, estate or interest, encumbrance, or other dealing as is mentioned in subsection (1), the Registrar may endorse upon the copy prepared and authenticated, or upon the new certificate of title issued, as respectively provided for in the last preceding section, a memorandum to the effect that it is conclusive as to such matters, or as to any 1 or more of them, and it shall thereupon be conclusive accordingly.

Any person claiming to have been on the said date the registered proprietor, or a mortgagee under a registered mortgage, of an estate of freehold, evidenced by any certificate of title, in any land, if he knows or believes that such certificate of title was destroyed, may make application to the Registrar, in the form in the Schedule or in such other form as may be prescribed, for the issue of a new certificate of title for such land. Such application shall have endorsed thereon or shall be accompanied by a plan of the land of which the applicant claims to have been the registered proprietor or mortgagee, and shall include a statement of the registered encumbrances, liens, and interests, statutory and other charges, restrictions, and caveats to which, within the knowledge or belief of the applicant, the land was subject; and the statements contained in such application shall be verified by the statutory declaration of the applicant. The plan shall be as full and accurate as the circumstances of each case will permit without the making of a new survey of the land.

The Registrar, if he is satisfied, after the making of such inquiries and the sending of such notices, if any, as he may deem necessary or advisable, that the certificate of title was destroyed, and that the applicant was the registered proprietor or a mortgagee as aforesaid, may issue a new certificate of title for the land the subject of the application.

The Registrar shall endorse on every such new certificate of title a memorandum setting forth the encumbrances, liens, and interests, statutory and other charges, restrictions, and caveats to which the land appears to him to be subject.

In any case in which it seems to him proper so to do, the Registrar may at any time cancel any such memorandum, or he may add to or amend the statements contained in any such memorandum, by a further memorandum:

provided that in any case where by any such addition or amendment it is shown that any interest in the land is subject to any further encumbrance, lien, interest, charge, restriction, or caveat, the Registrar shall forthwith send by registered letter to every registered proprietor adversely affected by such addition or amendment a notice that such addition or amendment has been made.

Every such memorandum shall be prima facie proof of the existence of the estates or interests or of the matters referred to in it.

The Registrar, in any case where he knows or believes that the certificate of title for any land was destroyed, may, if it seems to him proper so to do, of his own motion or at the instance of any person claiming an estate or interest in the land, issue a new certificate of title for such land. The provisions of the last preceding section shall, with the necessary modifications, apply to every such certificate of title.

Every certificate of title issued pursuant to section 6 or section 8 shall have endorsed thereon a memorandum to the effect that it is an interim certificate of title.

Except as provided in the next succeeding subsection, or in section 11 or section 12, an interim certificate of title shall not be conclusive.

The Registrar may at any time, on such evidence as seems to him to be sufficient, endorse upon an interim certificate of title a memorandum to the effect that it is conclusive as to all estates and interests evidenced thereby, or that it is conclusive as to any 1 or more of such estates and interests, or that it is conclusive as to the description and delineation of the land comprised therein, and the said certificate of title shall thereupon be conclusive according to the tenor of such memorandum.

Any certificate of title issued in substitution for an interim certificate of title or issued for any part of the land comprised in an interim certificate shall be an interim certificate, with respect to which the provisions of the last preceding subsection shall apply.

The registered proprietor, or a mortgagee, of land comprised in an interim certificate of title may at any time make application in writing to the Registrar, to endorse upon such certificate a memorandum that it is conclusive. Such application shall be accompanied by such evidence as may be necessary to establish, without reasonable doubt, the ownership of the land comprised in the certificate of title, and the encumbrances, liens, interests, charges, and restrictions (if any) to which the land is subject.

Upon receipt of any such application the Registrar shall consider the evidence submitted in support thereof, and may require the production of further evidence in support thereof.

If the Registrar is satisfied with any such evidence or further evidence, he shall endorse upon the interim certificate of title a memorandum as provided for by the last preceding section.

If the Registrar is not satisfied with such evidence or further evidence, he may, at the expense of the applicant, publish notice of the application once in the Gazette and twice at an interval of not less than 2 weeks in some newspaper or newspapers published and circulating in the district. Such notice shall limit and appoint a time, not less than the prescribed period, within which any person claiming to have been the registered proprietor of, or claiming to be entitled to the benefit of any encumbrance, lien, or interest upon or in, the land may present for registration an appropriate instrument, in the same manner as if the old register had not been destroyed, for the purpose of re-evidencing such encumbrance, lien, or interest, or may lodge a caveat in the form required by section 137 of the principal Act to protect the same, whether such encumbrance, lien, or interest was registered in the old register or not.

After the expiration of the time limited in any such notice, the Registrar shall, unless in his opinion there is good and sufficient reason to the contrary, endorse upon the interim certificate of title for the land referred to in such notice a memorandum to the effect that it is conclusive, or that it is conclusive except as to the description and delineation of the land comprised therein, as to him shall seem proper in the circumstances, and the certificate of title shall thereupon be conclusive according to the tenor of such memorandum; but subject, nevertheless, to the rights, if any, of any person who shall theretofore have lodged a caveat.

The Registrar may at any time thereafter, if he is reasonably satisfied that the interim certificate correctly sets forth the description and delineation of the land comprised therein, endorse a further memorandum to the effect that such certificate of title is conclusive as to the description and delineation of the land, and the certificate shall thereupon be conclusive according to the tenor of such memorandum.

Every interim certificate shall, after the expiration of 6 years from the date of its issue, be conclusive as to all matters except the description and delineation of the land comprised therein, whether or not the Registrar has endorsed thereon a memorandum to that effect. For the purposes of this section, in cases when an interim certificate has been issued in substitution for an interim certificate or in respect of part of the land comprised in a former interim certificate, the period of 6 years aforesaid shall begin to run on the date of the issue of the original interim certificate.

Where, with respect to Crown land or other land administered by the Commissioner of Crown Lands (appointed under section 12A(1) of the Survey Act 1986), a lease or licence a duplicate of which was embodied in the old register as a folium has been cancelled, the Commissioner shall, on application by the lessee or licensee or by a mortgagee, prepare and execute and shall present for registration a new lease or licence of the land for the unexpired residue of the term, and subject to the terms and conditions, as nearly as they can be ascertained, of the destroyed lease or licence. The Registrar shall thereupon register such new lease or licence in the new register in the manner in which the destroyed lease or licence was registered. Every lease or licence issued under this section shall have endorsed thereon a memorandum to the effect that it is an interim lease or licence.

The provisions of sections 7, 9, 10, 11, and 12 shall apply, with the necessary modifications, to every interim lease or licence issued under this section in the same manner as they apply to interim certificates of title.

Any person claiming to have been the registered proprietor on the said date of any estate or interest in or of any charge or lien upon any land, other than an estate of freehold in respect of which a certificate of title existed on the said date, or other than a leasehold interest under a lease or licence embodied in the old register as a folium thereof, and knowing or believing that the instrument under which he claims has been destroyed may, without payment of any fee, lodge a caveat in the form required by section 137 of the principal Act to protect such estate or interest, charge, or lien. Every such caveat shall operate to preserve for all purposes the priority of the estate or interest, charge, or lien to protect which such caveat was lodged:

provided that where pursuant to this section a caveat affecting the land comprised in any certificate of title or in any lease or licence is lodged at any time after an interim certificate of title or an interim lease or licence comprising such land has been made or has become conclusive, in accordance with the foregoing provisions of this Act, such caveat shall not operate to affect any estate or interest in such land that may have been acquired for valuable consideration, without notice of the estate or interest, charge, or lien of the caveator:

provided also that in the case of the land comprised in any certificate of title or other instrument to which section 5 applies, a caveat lodged in accordance with this section shall not affect the estate or interest of a registered proprietor whose right or interest is protected by subsection (2) of that section.

Upon the registration of an instrument for the purpose of evidencing any such estate or interest, charge, or lien, such caveat shall be deemed to have lapsed.

No such caveat shall prevent the registration of any instrument in which, or by endorsement on which, the rights of the caveator are admitted. The consent of the caveator to the registration of any such instrument shall not be necessary.

Every proprietor whose estate or interest is subject to an encumbrance, lien, or interest acquired under or by virtue of an instrument that was destroyed, upon being requested so to do by the person who was on the said date the proprietor of such encumbrance, lien, or interest, or by the successor in title of such person, shall be bound, in the same manner as if he had contracted so to do, but without cost to himself, to execute an appropriate instrument having as nearly as possible the same effect, after registration, as the destroyed instrument had.

No instrument so executed by any such person shall, unless therein expressed or necessarily implied to the contrary as regards the person executing the same, have any greater effect as against any person or any estate or interest than the destroyed instrument had, and no such instrument shall, unless therein expressed or necessarily implied to the contrary, operate so as to relieve any person, other than any party to it, from the obligation to perform any covenant that may have been expressed or implied in any destroyed instrument.

Notwithstanding anything to the contrary in the principal Act, every new instrument executed and registered to replace a destroyed instrument shall have the same priority over any other instrument as the destroyed instrument had, notwithstanding that such new instrument may be registered subsequently to the registration of such other instrument. Where a new instrument has such priority the Registrar shall add to the memorial of such new instrument a memorandum indicating the priority.

Notwithstanding anything to the contrary in the Native Land Act 1909, or in any other Act, the Registrar shall not be bound to register any partition order affecting any Maori freehold land or any other land that is or was subject to the jurisdiction of the Native Land Court, or to register any other order having the effect of vesting in any person an estate of freehold in any such land, unless and until he is reasonably satisfied either—

For the purposes of this section the expression Maori freehold land has the same meaning as in the Native Land Act 1909.

In addition to the powers conferred on him by the principal Act, the Registrar may, in respect of land in the district, exercise all or any of the powers conferred by the following provisions of this section.

He may require any person having in his possession or under his control any grant, certificate, or other instrument of title, or any plan, search notes, report on title, or other written or printed document evidencing or tending to evidence in any manner the boundaries, extent, or position of, or the state of the title to, or the encumbrances upon, any parcel of land in the district, to produce the same within a reasonable time to be fixed by a notice requiring such production and indicating the particular documents or kind of documents required, and to deposit the same in any land registry office for such time as may be necessary to enable the Registrar to examine or make copies of the same.

He may make such copies or records of, or such extracts from, any such plans or documents as he thinks fit.

He may require any person of any of the classes hereinafter mentioned to give any information, explanation, or evidence, in writing upon oath or otherwise, concerning the subject matter of such application, title, or claim, or, except in the case of a solicitor or agent acting as hereinafter mentioned, to attend before him at any land registry office and give such information, explanation, or evidence orally upon oath or otherwise. The classes of persons herein referred to are the following:

If the proprietor of any easement, or profit à prendre, or other encumbrance which had been registered, neglects to furnish such particulars of his easement, or profit à prendre, or other encumbrance, as the Registrar may require by notice in writing, directed to the usual or last known address of such proprietor, the Registrar may, at his discretion, at any time after the expiration of the prescribed period, remove any entry of such easement, profit à prendre, or other encumbrance from the register, or from any certificate of title, or other outstanding duplicate of the register, by marking the memorial thereof in the register with the words “Removed.—See K No . . . ([date]) . . . Registrar”, and a like entry shall be made or noted on every servient title or tenement against which the easement or profit à prendre, or encumbrance has been registered. From the date of such removal being noted by the Registrar such easement, or profit à prendre, or encumbrance shall cease and determine.

If upon a requisition in writing made by the Registrar for any purpose mentioned in the last preceding section any person without reasonable cause refuses or neglects to comply with such requisition, he shall be liable to the penalties provided for by section 212 of the principal Act.

Until a folium of the new register is made in respect of any parcel of land the Registrar shall accept for registration or lodgement every instrument or document relating to such parcel of land that appears to be in order and that could have been registered or lodged if the old register had not been destroyed. He shall file and index every such instrument or document, and upon the making of a folium of the new register for such parcel of land he shall deal in the usual manner with all such instruments or documents that are then found to be in order affecting such parcel of land, in such a manner as to preserve their relative priorities in accordance with the provisions of the principal Act and of this Act.

The Registrar may acquire and file as records of his office such plans or copies of plans as shall appear to him to be desirable as evidencing or tending to evidence the boundaries of any land in the district comprised in any certificate of title or in any destroyed deposited plan, and no fee shall be payable for the checking or deposit of any such plan or copy of plan.

The provisions of this section shall extend and apply to plans of surveys made since the said date for the purpose of replacing deposited plans that were destroyed, or for the purpose only of fixing the boundaries of the land comprised in any certificate of title existing on the said date.

Except in the case of plans referred to in subsection (2), the Registrar shall endorse on every plan or copy of plan filed as aforesaid a memorandum showing from whom the plan or copy was acquired, and, if possible and necessary, by whom and under whose authority it was made.

No person having or claiming any estate or interest in or any charge or lien upon any land who had notice by personal service or otherwise, or was aware of any proposed act of the Registrar, shall be entitled to commence any action for the recovery of damages under the provisions of the principal Act in respect of any loss he may have sustained by reason of such act of the Registrar unless, within a reasonable time after receiving such notice or becoming aware of such proposed act, he has taken the appropriate steps in accordance with the provisions of this Act or the principal Act to protect his estate or interest, charge, or lien.

No person shall be entitled to commence any action for the recovery of damages under the provisions of the principal Act in respect of any loss he may have sustained by reason of an interim certificate of title or interim lease or licence becoming or being made conclusive as against any estate or interest, charge, or lien he may have had in or over the land comprised in such certificate of title, lease, or licence unless action to recover the same is commenced within 6 years from the date when such certificate of title or such lease or licence has become or been made conclusive:

provided that any person being under the disability of infancy, unsoundness of mind, or absence from New Zealand may bring any action as aforesaid after the expiration of the aforesaid period of 6 years but within 3 years from the date on which such disability ceases.

No fee shall be payable to the Registrar for a provisional or new certificate of title or for a provisional lease or licence or mortgage of any land, wheresoever situated, issued in lieu of a destroyed certificate of title, lease, licence, or mortgage, and it shall not be necessary for the Registrar to advertise notice of his intention to issue any such certificate, lease, licence, or mortgage if he is reasonably satisfied that the certificate, lease, licence, or mortgage in lieu of which it is to be issued was destroyed by the earthquake:

provided that nothing in this section shall affect the liability of any person to pay any fee outstanding and unpaid in respect of any destroyed certificate of title or other instrument.

The following instruments shall be exempt from stamp duty or registration fees, as the case may be, namely: