me REAL PROPERTY ACTS AMENDMENT ACT of Eliz. 2 No. 43

Transcription

1 755 me REAL PROPERTY ACTS AMENDMENT ACT of Eliz. 2 No. 43 An Act to Amend "The Real Property Acts, 1861 to 1946," in certain particulars, and for other purposes [Assented to 4 December 1952] PART I-PRELIMINARY 1. (1) Short title. This Act may be cited as "The Real Property Acts Amendment Act of 1952." (2) Construction. This Act shall be read as one with- (a) The "Real Property Act of 1861," "The Real Property Act of 1877," "The Registrar of Titles Act of 1884," "The Real Property (Local Registries) Act of 1887," "The Real Property (Commonwealth Titles) Act of 1924," "The Real Property (Commonwealth Defence Notification) Act of 1929," and "The Real Property Acts Amendment Act of 1942"; and (b) The provisions amending the Acts, or any of the Acts, cited in paragraph (a) of this subsection of the following Acts, namely section two of "The Central and Northern Districts Boundaries Act of 1900," section two and the First Schedule of "The Land Surveyors Act of 1908," section three and the Schedule of "The Public Curator Act of 1915," subsection one of section two of "The Trade Unions (Property) Act of 1922," section seven of "The Justices Acts and Real Property Fees Act of 1932," and section five of "The Australian Consular Officers Notarial Powers and Evidence Act of 1946." (3) Collective title. The Acts cited in paragraph (a) of subsection two of this section, the provisions amending those Acts of the Acts cited in paragraph (b) of subsection two of this section, and this Act may collectively be cited as "The Real Property Acts, 1861 to 1952." (4) Principal Act. In this Act the "Real Property Act of 1861," as heretofore amended is referred to as the Principal Act. Acts referred to: Real Property Acts, 1861 to p. 633, WUe. Real Property Act of 1877, p. 737, ai/fl'. Registrar of Titles Act of 1884, p. 777, post. Real Property (Local Registries) Act of 1887, p (los/. Real Property (Commonwealth Titles) Act of p. 769, post. Real Property (Commonwealth Defence Notification) Act of 1929, p. 767, post. Real Property Acts Amendment Act of 1942 (not reprinted). Central and Northern Districts Boundaries Act of 1900, title BOUNDARIES, Vol. 1, p Land Surveyors Acts, 1908 to 1916, title SURVEYS. Public Curator Acts, 1915 to 1957, title TRUSTEES AND EXECUTORS. Trade Unions (Property) Act of 1922 (repealed). Justices Acts and Real Property Fees Act of 1932, not reprinted, see 1936 Reprint, Vol. 4. Australian Consular Officers' Notarial Powers and Evidence Acts, 1946 to 1963, title EVIDENCE, Vol. 5, p. 451.

2 756 REAL PROPERTY Vol (1) Parts of Act. This Act is divided into Parts as follows: PART I-PRELIMINARY; PART II-AMENDMENTS OF THE REAL PROPERTY ACTS; PART III-TITLES BY POSSESSION. (2) Division of Part III. Part III of this Act is further divided into divisions as follows:- DIVISION I-PROHIBITION OF TITLES BY POSSESSION; DIVISION II-REGISTRATION OF TITLES BY POSSESSION; PART II-AMENDMENTS OF THE REAL PROPERTY ACTS Amended Real Property Acts, 1861 to Amended Real Property Act of PART III-TITLES BY POSSESSION DIVISION I-PROHIBITION OF TITLES BY POSSESSION 45. Interpretation. In this Part of this Act, unless the context otherwise indicates or requires,- (a) The term "the Acts" means "The Real Property Acts to 1952"; and (b) The term "this Act" means this Part of this Act. Act referred to: Real Property Acts, 1861 to 1963, p. 633, aliii'. 46. General prohibitions. A person shall not obtain a title by possession to any land under the Acts or any interest therein save and except under, subject to. and in accordance with this Act. 47. Encroachment. Whereas parts of parcels of lands under the Acts may have been before the passing of this Act or may be hereafter encroached upon by a building or any part thereof or by the enclosure of those parts with contiguous lands by means of a wall, fence, hedge, ditch, or other means whatsoever of demarcating boundaries between lands erected or put on a line on the lands so encroached upon which is not the. true boundary thereof as shown in the plan on the deed of grant or certificate of title therefor: And whereas it is not desirable that a person should obtain a title by possession to parts of land encroached upon by any building or part thereof or by enclosure as aforesaid: Now therefore be it hereby enacted that a person shall not obtain under this Act a title by possession to parts of parcels of lands under the Acts so encroached upon. Title to land encroached upon may now be obtained pursuant to the Encroachment of Buildings Act of 1955, p. 625, (lnfe. 48. Crown corporations. A person shall not obtain under this Act a title by possession to any land under the Acts or to any estate or interest in any land under the Acts whereof any Crown corporation or instrumentality or any corporation or instrumentality representing the Crown is the registered proprietor or wherein such a corporation or instrumentality has or shall have had an interest save and except with the prior consent in writing of that corporation or instrumentality.

3 REAL PROPERTY ACTS AMENDMENT ACT OF 1952 ss Repeal of the Imperial Act. To the extent to which the Imperial Act intituled "The Crown Suits Act of 1769" is in force in the State of Queensland that Act is repealed. DIVISION II-REGISTRATION OF TITLES BY POSSESSION SO. Who may apply for title by possession. ( 1) Subject to sections forty-five to forty-eight, both inclusive, of this Act a person who would have obtained a title by possession to any land under the Acts if that land had not been under the Acts may apply to the Registrar of Titles for the issue to him of a certificate of title to that land. (2) The following persons shall be entitled to so apply, namely (a) Any person claiming to be entitled to an estate in fee simple in possession; (b) Any person claiming to be entitled beneficially for an estate of freehold in possession; (c) Any guardian of any minor claiming to be entitled to an estate of freehold in possession in the name of such minor; ( d) The committee or administrator of the estate of any mentally sick person claiming to be entitled to an estate of freehold in possession in the name of such mentally sick person. As to title by adverse possession, see Limitation Act of 1960, ss , title LIMITATION. Vol. 9. pp For form of application. see s. 52. Applications may be withdrawn, s. 60. As to rejection of application, see s. 54. As to applications which are incomplete or imperfect because of possible competing claims, see ibid. Unrejected applications are advertised, s. 55. Caveats may be entered against applica~ions, s. 56. As to when a certificate of title may issue, see s. 57. For when future estates or interests are barred by the issue of such a certificate of title, see s Where application to be lodged. Where land the subject of an application under this Act is situated within the Central District or the Northern District as defined in "The Real Property (Local Registries) Act of 1887" as amended by "The Central and Northern Districts Boundaries Act of 1900," the application and all documents including caveats relating to such application shall be lodged at the Local Registry for the District in which the land is so situated: Provided that the Local Deputy Registrar shall only perform such duties and powers imposed and conferred upon the Registrar of Titles by this Act as the Registrar of Titles shall direct. Acts referred to: Real Property (Local Registries) Act of 1887, p post. Central and Northern Districts Boundaries Act of 1900, title BOUNDARIES, Vol. 1, p Form of application [Schedule, form 1.] (1) Every such application shall- (a) Be in writing in form 1 in the Schedule to this Act or in words to the like effect; (b) Be signed by the applicant;

4 758 REAL PROPERTY Vol. 14 (c) State the estate or interest in such land applied for; (d) State full particulars of the possession upon which the application is based; (e) State whether any documents of title affecting the land are in his possession or under his control; (f) State the nature of every estate or interest held by other persons at law or in equity in such land within the applicant's knowledge; (g) Whether the land be occupied or unoccupied and if occupied the name and description of the occupant and the nature of his occupancy; (h) The names and addresses of the occupants and proprietors of all lands contiguous to the land in respect of which the application is made so far as is known to him; and (i) State the value as at the time of making the application of the land including all the improvements thereon; (j) State that he verily believes himself to be entitled to the estate or interest in respect of which he applies for the certificate of title. (2) Such statement shall be verified by the oath or statutory declaration of the applicant. (3) The applicant shall deposit with his application all documents of title affecting the land in his possession or under his control and shall, if required by the Registrar of Titles, furnish him with a plan of survey of the land in respect of which the application is made. 53. Registrar of Titles may require additional information and documents. ( 1) The Registrar of Titles may require an applicant to furnish him with all such additional information, verified by oath or statutory declaration, and documents relating to his application as the Registrar of Titles deems fit. (2) The Registrar of Titles and the Master of Titles shall consider each application including all information and documents furnished therewith and any additional information and documents furnished pursuant to a requisition by the Registrar of Titles. See also Real Property Acts, 1861 to s. 11. p. 638, al1te, and notes thereto. 54. Rejection of applications. (1) If either the Registrar of Titles or the Master of Titles is satisfied that the evidence does not establish the title by possession to the land of the applicant the Registrar of Titles shall reject the application: Provided that if both of them are satisfied that the evidence of the claim is only imperfect or incomplete because of possible claims by persons who may have an estate or interest in reversion or remainder or other future estate or interest in the subject land, or who may claim by virtue of such an estate or interest having become an estate or interest in possession, the Registrar of Titles may, in lieu of rejecting the application, proceed as hereinafter provided. (2) Any person claiming to have an estate or interest in reversion or remainder or other future estate or interest or claiming by virtue of such an estate or interest having become an estate or interest in possession, in

5 REAL PROPERTY ACTS AMENDMENT ACT OF 1952 ss any land may give written notice thereof at any time before the issue of a certificate of title by possession under this Part of this Act to the Registrar of Titles. Such notice shall contain the following:- (a) Such description as may be sufficient to identify the land in respect of which the estate or interest is claimed; (b) Particulars of the nature and of the origin of the estate or interest claimed; (c) An address at which notices may be served on the claimant. Any such person may at any time give written notice to the Registrar of Titles of any change in the facts set forth in such first written notice. 55. Application to be publicly advertised. If an application is not rejected, the Registrar of Titles shall cause a notice of the application in a form fixed by him- (a) To be published once at least in a Gazette and in a newspaper circulating in the neighbourhood of the land and if he thinks necessary in any other newspaper; t b) To be given by registered post to any person who has given him the written notice mentioned in subsection two of section fifty-four of this Act at the last address notified pursuant to that subsection; t c) To be given by advertisement or otherwise in such manner as he shall think fit to any person who, in the opinion of the Registrar of Titles or of the Master of Titles has or may have any estate or interest in the land; and l d) To be published in any other way or given to any other persons as he or the Master of Titles deems fit. (2) The notice shall fix a time not less than two months nor more than three years from the first publication of the notice in the Gazette at or after the expiration of which the Registrar of Titles may, unless a caveat is lodged, grant the application. A certificate of title may be issued after the expiration of the time fixed DY the notice, s Objection to application to be by caveat. (1) A person claiming an estate or interest in the land to which an application under this Part of this Act relates may, at any time before the application is granted, lodge with the Registrar of Titles a caveat in form 2 in the Schedule to this Act forbidding the issue of a certificate of title by possession under this Act. Such caveat shall state the nature of the estate or interest claimed by the person lodging it, the ground upon which it is founded, and shall give an address at which notices and proceedings relating to the caveat may be served. The Registrar of Titles may require a caveator to furnish him with all such additional information verified by oath or statutory declaration and documents relating to his caveat as the Registrar of Titles deems fit. (2) If the Registrar of Titles or the Master of Titles is satisfied that the caveator is the registered proprietor of the land to which the application relates or has an estate or interest in that land derived through, under or from the registered proprietor, the Registrar of Titles shall refuse the application:

6 760 REAL PROPERTY Vol. 14 Provided that, if any person is proved to the satisfaction of the Registrar of Titles and the Master of Titles to be entitled to an estate or interest in or over the said land less than an estate in fee simple, the Registrar of Titles may, instead of refusing the application solely on that ground, with the consent of the applicant, include in any certificate of title issued to the applicant a memorial that the land is subject to such estate or interest in the land. (3) If both the Registrar of Titles and the Master of Titles are not satisfied that the caveator is the registered proprietor of the land or has an estate or interest therein derived through, under or from the registered proprietor, the Registrar of Titles shall give, in the manner set forth in section one hundred of the Principal Act as amended by "The Real Property Acts Amendment Act of 1952," notice to the caveator that the caveator is required to take proceedings in the Supreme Court to establish his title to the estate or interest claimed by him within a time specified in the notice being not less than six months after the giving thereof. (4) If a caveator who has received such a notice from the Registrar of Titles does not, within the time mentioned in the notice, bring an action in the Supreme Court to obtain a declaration that he is entitled to the estate or interest claimed by him and give written notice thereof to the Registrar of Titles or obtain from the Court an order or injunction restraining the Registrar of Titles from issuing a certificate of title by possession to the applicant under this Act, the caveat shall lapse. (5) The lapsed caveat shall not unless by leave of the Supreme Court be renewed by or on behalf of the same person in respect of the same estate or interest. (6) In any proceedings to establish the title of the caveator the issue for the Supreme Court to decide shall be whether the caveator is the registered proprietor of the land or is entitled to an estate or interest therein derived through, under or from the registered proprietor or the applicant. As to caveats generally, see Real Property Acts to 1963, et seq., p. 699,01/11'. 57. When certificate of title by possession may be issued. Upon or after the expiration of the time fixed by the notice under section fifty-five of this Act, if the Registrar of Titles and the Master of Titles are satisfied that the possession on which the applicant relies would, if the land had not been under "The Real Property Acts, 1861 to 1952," have conferred on the applicant a title by possession, the Registrar of Titles may issue to the applicant a certificate of title for an estate in fee simple or for any other estate acquired by the applicant, free from all estates, interests, claims or encumbrances appearing by the register book to affect the existing title, excepting those specified in the proviso to subsection two of section fifty-six of this Act, and further excepting any estate, interest, claim encumbrance or notice, so registered in favour of the Crown, any Crown corporation or instrumentality or corporation or instrumentality representing the Crown, Brisbane City Council or any other Local Authority: Provided that where a caveat has been lodged against the granting of an application the Registrar of Titles shall not (except under and subject to the proviso to subsection two of section fifty-six of this Act) grant the application unless the caveat has lapsed, or proceedings taken

7 REAL PROPERTY ACTS AMENDMENT ACT OF 1952 ss by the caveator to establish his title have been finally disposed of, and in those proceedings the caveator has failed to establish his title or to obtain from the Supreme Court an injunction restraining the Registrar of Titles from issuing a certificate of title to the applicant. Act referred to: Real Property Acts, 1861 to 1963, p. 633, lillie. 58. Cancellation of existing instruments of title consequent on the issue of a certificate of title by possession. ( 1) Where a certificate of title for any land is issued under this Part, the Registrar of Titles- (a) Shall cancel the existing deed of grant or certificate of title for that land and any instrument entry or memorial in the register book altogether or to such extent as is necessary to give effect to the certificate of title issued; and (b) Shall endorse on every deed of grant or certificate of title and instrument so cancelled a memorial stating the circumstances and authority under which the cancellation is made. (2) Upon the cancellation of a deed of grant or certificate of title, instrument, entry or memorial pursuant to this section, the estate or interest evidenced thereby shall cease and determine. 59. When future estates or interests barred by issue of certificate of title by possession. Where, in respect of any land for which a certificate of title by possession under this Act shall have issued, a person c1aiming- ( a) To have an estate or interest in reversion or remainder or other future estate or interest (or to have had such an estate or interest which has become an estate or interest in possession); and (b) That he acquired that estate or interest prior to the issue of such certificate of title by possession, shall, before the issue of that certificate of title, have-- (i) Neither given to the Registrar of Titles a written notice pursuant to subsection two of section fifty-two of this Act; nor (ii) Taken any of the other steps provided by this Act to protect his estate or interest, then his right to make an entry or distress or to bring an action to recover the land or rent shall for all purposes be deemed to have first accrued as though his estate or interest had become an estate or interest in possession on the date the person entitled to be in possession of the land or in receipt of the profits or rents of the land was first dispossessed or discontinued such possession or receipt of such rents or profits. 60. Withdrawal of application. It shall be lawful for any applicant to withdraw his application at any time prior to the issuing of a certificate of title and the Registrar of Titles shall in such case upon request in writing signed by such applicant return to him all documents deposited by him for the purpose of supporting his application.

8 762 REAL PROPERTY Vol. 14 [SECTION 52] The Registrar of Titles, Brisbane, SCHEDULE FORM 1 I (here insert name, address and occupation) hereby apply for the issue to me under Part III of "The Real Property Acts Amendment Act of 1952" of a Certificate of Title by possession for all that piece of land being (describe land by reference to the description thereof contained in the existing deed of grant or certificate of title therefor and give the volume or folium of that deed of grant or certificate of title) which land is shown in plan catalogue No. lodged in the Office of the Registrar of Titles for an estate in fee simple in possession free from encumbrances (other than any special reservation, exception or condition in the existing Crown grant or certificate of title therefor, and other than any easement therein or thereover to which any person is entitled) and I declare- (1) Set forth full particulars of the possession on which the claim is based (a) The date on and circumstances in which the possession commenced; (b) The name of the person by whom the possession was commenced; (c) The duration of his possession and the nature thereof; and (d) The subsequent history and nature of the possession up to the time of lodging the application. (2) That there are no documents or evidences of title affecting such land in my possession or under my control other than those included in the Schedule hereto. (3) That there is no person in possession or occupation of the said land adversely to my estate or interest therein and that the said land is now (state the name and description of occupier or as the case may be, that the land is unoccupied). ( 4) I am not aware of any mortgage, encumbrance or claim affecting the said land or that any person has any claim, estate or interest in the said land at law or in equity save and except the following: (set out full particulars.) (5) That the names and addresses so far as known to me of the occupants of all lands contiguous to the said land are as follow: (set out full particulars.) (6) That the names and addresses so far as known to me of the proprietors of all lands contiguous to the said land are as foliow: (set out full particulars.) (7) That the present value of the land including all improvements thereon is (8) In consequence of the evidence herein set forth I verily believe and claim that I am entitled to the issue to me under Part III of "The Real Property Acts Amendment Act of 1952," of a certificate of title for an estate in fee simple or (state the other estate claimed) in the said land. THE SCHEDULE REFERRED TO IN nus MY DECLARATION and Dated this day of One thousand nine hundred Made and signed in the presence of { (This dec/aration must be verified by the Oath or Statutory Declaration of the applicant).

9 REAL PROPERTY ACTS AMENDMENT ACT OF 1952 Sell. 763 FORM 2 [SE.C110N 56] To the Registrar of Titles, Brisbane, Take notice that I of claiming estate or interest (here state the nature of the estate claimed and the ground on which such claim is founded) in lands described as (here state particulars of description from declaration of applicant) in notice dated day of advertising the same as land to which application has been made for the issue of a Certificate of Title by possession under Part III of "The Real Property Act" Amendment Act of 1952," do hereby forbid the issue of such a Certificate of Title. Dated this day of 19 Signed by the said in the presence of Caveator. Justice of the Peace. The address for service of any notices on the Caveator is Correct for the purposes of registration. Caveator.

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