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Notices of acquisition

Under the Land Tax Act 1958, every person who acquires land in Victoria must give notice of that acquisition to the Victorian Registrar of Titles as prescribed on behalf of the Commissioner of State Revenue. This notice takes the form of the “Notice of Acquisition.”

For the purpose of giving that notice, the Registrar requires that a Notice of Acquisition must accompany each dealing presented for registration, in which a person is acquiring land.

In the event that a dealing is not to be lodged immediately following an acquisition of land (eg. Terms Contract), then a Notice of Acquisition is to be delivered or mailed to the Registrar of Titles addressed to:

Registrar of Titles
LANDATA®
Marland House
PO Box 500
EAST MELBOURNE VIC 3002

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Amendment of dealings by agents

Dealings lodged with Land Registry represent the expression of intention of the parties to them. Any change to the text of those documents after they have been signed creates the prospect that the intention will be changed or, if the name of a party or the parties is changed, that there will be a forgery. Accordingly, dealings lodged or presented for lodgement cannot be amended without the authority of the party/parties or their current practitioner(s), whichever is appropriate.

With the introduction of the Victorian Online Titles System (VOTS), more dealings are being refused at lodgement. This has resulted in lodging parties/agents attempting to amend refused documents without the appropriate authority. A person who has a role as an agent to lodge dealings on behalf of a party or their current practitioner must amend a document by producing a written direction to perform the amendment accordingly. Where a dealing is amended without authority, this office will refuse the dealing for lodgement stating the refusal reason as “Amended without appropriate authority.”

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Patent errors

The Registrar has power under Section 103I(1a) of the Transfer of Land Act 1958 to “correct a patent error in a document lodged for and registered or recorded.” Prior to the introduction of VOTS, a lodged dealing that contained a patent error would be amended by a Registration Officer. Under VOTS, the examination of documents may detect errors prior to lodgement. The Registrar does not have the power to amend a document before it is lodged (accepted) in VOTS.

Where any document presented for lodgement is found to have any error it will be returned to the lodging party together with a Refusal Notice setting out the reason(s) for refusal.

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Caveats claiming an interest under a deceased estate

The interest of a beneficiary of a deceased’s estate can only give rise to a caveatable interest if:

1. Probate has been granted and
2. The debts of the estate have been paid and
3. The land forms the subject of a specific devise or is part of the remainder of the estate and is not subject to a trust to sell.

In order to avoid requisitions, the above should be born in mind when drafting a caveat.

You are reminded that compensation may be claimed where a caveat is lodged without reasonable cause (see Section 118 of the Transfer of Land Act 1958).

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Things to consider when drafting leases

1. All Torrens land is subject to “the interest (but excluding any option to purchase) of a tenant in possession of the land” (see Sub-Section 42(2)(e) of the Transfer of Land Act 1958 (“the Act”). As a result, it is not essential to register leases in Victoria.
2. To be registrable the lease term must exceed three years i.e. the minimum term is three years and one day (see Section 66 of the Act).
3. The prescribed form for a lease is Form 26, as set out in the Transfer of Land (General) Regulations 1994. As with a Form T1, which is a transfer, the Form 26 is a lease, not simply an application form. Any additional covenants should be set out on approved annexure pages. Please note that as from 1 January 2004, Land Registry will not accept for lodging a Form 26 with a separately stapled lease attached to it.
4. A Form 26 may be lodged in duplicate, or in triplicate.
5. Going through the panels on a Form 26:
   a) Land – you should specify the current title reference. If part of a registered title, the plan and diagram showing the part subject of the lease should be supplied. The use of copies of diagrams certified by the applicant or their representative in dealings with Land Registry is generally understood and accepted.
   b) Land – this should equate with the registered proprietor of the land affected.
   c) Lessee – the lessee’s full name and address should be included.
   d) Term – as mentioned above, the term must be for at least three years and one day.
   • The rule in Lace v Chantler KB 368 (CA) establishes that at the date of entering a lease, the exact termination date must either be known or be ascertainable. However, if the maximum extent of the term is fixed, it may be possible to have a lease determinable on an uncertain event happening within the term, for example, “21 years determinable if the tenant ceases to live on the premises” or “99 years if X shall so long live.” If the lease expires on an earlier ascertainable date, an application pursuant to either Section 69 or Section 70 of the Act will be required to remove the lease from title.
   • There should be no reference to an option to renew the lease in the definition of the term, as if the option is taken up, a new lease will be created (this new lease may be registrable).
6. Not possible to register a conditional lease:
   • Execution – both parties must execute the Form 26 lease and sign all annexure pages. When either party is a company, please remember to print the signatories’ full names, usual residential addresses, and office (for example, director or secretary).
7. There can be no confusion in the register. The lease covenants will be checked to ensure that they do not contradict the information contained in the panels of the Form 26.
8. Please bear in mind that in most cases an annexure attached to the lease and lodged for registration will require the written consent of the registered proprietor. In cases where the annexure is amended on registration or where the amendment is accepted, the statutory consents will be issued in either written or electronic form.

Things to consider when drafting restrictive covenants

To validly create a restrictive covenant at common law, the covenant must:

• a) be negative (meaning it must be a covenant that is not favorable to the use of the land)
• b) have both land which takes the benefit of the covenant and land which is burdened and owned in separate ownership
• c) intent that both the burden and the benefit run with the land
• d) contain operative wording.

A simple test to establish whether you have created a restrictive covenant, as opposed to a positive covenant, is to ask yourself whether the owner of the burdened land can comply with the covenant by doing nothing. If he has to do something (for example put up a fence) or spend money doing something (for example pay fees for gym membership or a residents’ association), then you have created a positive covenant.

Unless authorized by statute, positive covenants do not run with the land and are therefore only enforceable between the parties to the original covenant. To ensure that successive registered proprietors are bound by a positive covenant, you will need to devise a system by which each new proprietor of the burdened land covenants afresh with each new proprietor of the benefited land. Any break in the chain will mean that the covenant cannot be enforceable. Obviously, this has serious consequences.

Land Registry simply records restrictive covenants or restrictions in plans. If a positive covenant were recorded on title, the status of the covenant will not change, and neither the benefit nor the burden of the positive covenant will run with the land. You are referred to Sub-Section 88(3) of the Transfer of Land Act 1958.

Nothing discriminatory, ridiculous, illegal, or offensive will be recorded. For example, a covenant seeking to ensure that people of a specific race are prevented from being registered as proprietors of certain land is obviously discriminatory and therefore is not recordable. It is also illegal to discriminate on the grounds of gender, religious belief, age, sexual preference, color, nationality, and ethnic origin, political beliefs, disability, or marital status in Victoria. It is accepted law in Victoria that registered proprietors are free to deal with their land as they wish. Any covenant seeking to limit this right is unacceptable; for example, the owners of the burdened land shall sell his land until they have built a dwelling house on it. Additionally, this is a positive covenant.

Increasingly covenants refer to covenants. Internet web sites, which are not incorporated into the transfer plan or agreement creating the restrictive covenant, the sense of this must be questioned. Is it going to be possible to access those documents or web sites in 20 years? If not, how will it be possible to establish whether or not the covenant has been complied with?

Difficulties may also arise where the consent of someone other than the owner of the benefited land is required. Will it always be possible to find this person? If not, how will it be possible to establish whether or not the covenant has been complied with?

Finally, it is not Land Registry’s role to interpret the meaning of a restrictive covenant, including who benefits from it. Ultimately this is something for the Court to decide.

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New location for Planning Certificates

Planning Certificates will be in a new location from Monday, 22 September 2003.

Formerly in the Department of Infrastructure, Planning Certificates is now part of LANDATA® in the Department of Sustainability and Environment.

From September, applicants can be lodged in person at: Land Victoria, Level 10, Marland House, 570 Bourke Street, Melbourne, or posted to:

LANDATA®
Marland House
PO Box 500
EAST MELBOURNE VIC 3002

Cheques for planning certificates should now be made payable to LANDATA®. The fees remain at $16 for a standard certificate or $50 for a priority certificate.

For more information contact Patricia Matta, Manager Planning Certificates, on (03) 9655 8837.

Consents by mortgagees to leases, easements or restrictive covenants

If a mortgagee (or annuitant) either:
a) Consents in writing to a lease, easement or restrictive covenant or
b) Is a party to a lease, easement or restrictive covenant,
such a lease, easement or restrictive covenant will remain on the title where there is a transfer by a mortgagee. Please see Sub-Section 77(4)(a) of the Transfer of Land Act 1958.

It will be taken by Land Registry that the mortgagee has given its consent to a lease, easement or restrictive covenant if:

1. The Certificate of Title is produced and
2. Some form of consent is given by the mortgagee.

Please note that Land Registry will not examine the terms of consent. The lease, easement or restrictive covenant will therefore remain on title should a transfer by mortgagee be given. The lease, easement or restrictive covenant will remain on title unless the lease is surrendered or determined or the easement or restrictive covenant is removed by other means.

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“Withdrawal” of unrecorded caveats

Where you wish to “withdraw” a Caveat that has been lodged in this Office but has not yet been recorded (for example because there are outstanding requisitions), it is not appropriate to lodge a Withdrawal of Caveat (Approved Form WC). Instead you should write to the Registrar of Titles requesting the Caveat’s removal from Land Registry. In so doing you will save your clients a fee, which is currently $31.00.