SERV - Secure Electronic Registries Victoria

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Change in practice where a company is a mortgagor

It has been a long-standing practice for Land Registry to require a company search for a mortgagor company, where the amount secured is $1 million or more. The same practice applies where a further advance in a variation of mortgage amounts to $1 million or more.

The stamp duty assessment stamp currently sets out the amount secured. Land Registry uses this information to establish whether a company search is required or not. However, as from 1 July 2004 stamp duty is not payable on mortgages in Victoria.

As a result, from 1 July 2004 Land Registry will require the following for either a mortgage or a variation of mortgage where the amount secured is varied:

Where the amount secured by companies is less than $1 million, either:

• The mortgage or variation of mortgage should contain a statement that the amount secured is less than $1 million at the date of the mortgage or variation; or
• If the mortgagee is represented, the mortgagee’s current practitioner should confirm in writing, using his/her letterhead, that the amount secured was less than $1 million at the date of the mortgage or variation; or
• Where the mortgagee acts for itself, the mortgagee should confirm in writing, using the mortgagee’s letterhead, that the amount secured was less than $1 million at the date of the mortgage or variation; or
• A certified copy of a company search for the mortgagor company should be provided. The company search must have been obtained no earlier than fourteen days prior to the date of the mortgage.

Where the amount secured by companies is $1 million or more:

• A certified copy of a company search for the mortgagor company should be provided. The company search must have been obtained no earlier than fourteen days prior to the date of the mortgage.

Please note that Land Registry’s requirements relating to other types of company transactions where the consideration stated is $1 million or more remains unchanged.

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Dating of all mortgages

By way of reminder, all mortgages and variations of mortgage should be dated prior to lodging. This will assist Land Registry in assessing whether a mortgage or variation of mortgage needs to be referred to the State Revenue Office and will avoid any unnecessary refusal or requisition.

Where a caveator claims an interest as mortgagee or charge, the date of the instrument relied on should be set out in the grounds of claim.

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No duplicate or triplicate instruments to be lodged

Under recent legislation, the Transfer of Land (Electronic Transactions) Act 2004, starting 1 October 2004, and s35(1) and (2) of the Transfer of Land Act 1958 (“TLA”) were amended.

This amendment was made to reflect changes and updates in Land Registry resulting from the following developments:

• From 1 July 2004, duty on mortgages is to be abolished in Victoria. After that date, there will be no requirement for a duplicate or triplicate of mortgage documents.
• Proposed electronic lodgment under Land Victoria’s Electronic Conveyancing Project will involve the preparation and receipt of non-stamped documents.

As a result of these changes from 1 October 2004, duplicate and triplicate instruments will no longer be accepted for registration in Land Registry.

Duplicates or triplicate instruments previously required to be lodged will no longer be accepted for recording under the Transfer of Land Act 1958.

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Transfer of Land (General) Regulations 2004

The new Transfer of Land (General) Regulations 2004 No. 37 (Vic) have been made under the Transfer of Land Act 1958 No. 6399 (Vic).

The Regulations: (a) prescribe new forms; (b) prescribe the quality and size of documents or instruments lodged with the Registrar; (c) prescribe the manner of application to the Registrar for the Registrar to take a certain action; (d) require documents evidencing the shares in a building subdivision to be lodged prior to the issue of a certificate of title in respect of a strata estate; (e) specify requirements for applications for approval of plans under s. 121 of the Act; (f) make further miscellaneous provisions in relation to forms.

The Regulations also revoke the Transfer of Land (General) Regulations 1998 No. 65 (Vic) and the Transfer of Land (General) (Amendment) Regulations 1998 No. 165 (Vic).

The new 2004 regulations can be downloaded via the Victorian Government Legislation page at www.dms.dpc.vic.gov.au.

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Superfluous markings on documents

Many customers present documents for lodgment that are marked with “X’s”, signatures, highlighters, annotations, and sign-on sheets.

These markings, usually in pencil, are often large and at times interfere with core components of the transaction such as the folio reference, surnames, or witness signatures, etc. Some annotations made to a title document become illegible, as text and images will appear as black.

To avoid Dealing Refusal, it is vital that customers ensure that these annotations are omitted or remain legible.

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Important notice to users of the Combined Form (T1 Transfer and Notice of Acquisition)

A Combined Form (T1 Transfer and Notice of Acquisition of an Interest in Land) was introduced as part of a pilot project by State Revenue Office (SRO) and Land Registry in February 2004. This combined form had been intended to reduce the number of forms required by customers, and Land Registry has decided to withdraw the form from 1 January 2005.

Land Registry will continue to accept for lodgment any Combined Form (T1/NOA) dated prior to 1 January 2005. To phase out the Combined Form, customers should from now on use only the Approved Form T1 (Transfer) and lodge a separate Notice of Acquisition with the dealing.

Notice of Acquisition form is to be lodged with the SRO. Forms are available from the State Revenue Office website at www.sro.vic.gov.au.

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Adverse possession applications – Section 60 of the Transfer of Land Act 1958 (TLA)

To assist customers in the preparation of Adverse Possession applications, Land Registry has undertaken an analysis of data relating to the refusal of applications presented for lodgement and prepared a Lodgement Checklist for customers’ future use.

The Lodgement Checklist is to be completed and presented with the Application (Form 24) when lodging an Adverse Possession application in person or by correspondence. (Required documentation not supplied, or incorrect information, presented to the Plan Acceptance Officers will lead to non-acceptance of the application and result in delayed lodgement and registration at Land Registry).

The analysis identified that major reasons for the refusals were as follows:

• Insufficient evidence lodged to substantiate the claim for possession (50%).

Particular issues were:

• Application was dependent on evidence from prior possessors, which was not supplied;
• Deeds of Assignments were not presented to the State Revenue Office for stamping and denoting;
• The application did not identify whether the Registered Proprietor of the subject land was under a legal disability;
• The application did not specify whether the estate was to be free of encumbrance or subject to existing encumbrances (20%);
• The Municipality, postal address or value of the subject land was not given (18%);
• The application did not identify the land claimed by reference to the plan of survey (15%);
• Where the survey was required to identify the boundaries of the land claimed relevant survey documents were not supplied (5%);
• Prescribed form not used or form incorrectly completed (5%).

Particular areas of concern were:

• Application was presented on a superseded form;
• Volume and Folio of affected land not identified;
• The subject land was not under the TLA (5%).

Copies of the Lodgement Checklist and General Notes can be obtained from Reception, Level 9/570 Bourke Street Melbourne.

If any further information is required about the above matter please contact Title Registration Services on Tel 03 8636 2010.

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Important change to Land Registry practice – New approved forms

The Registrar of Titles has approved new forms under section 121 Transfer of Land Act 1958 (“TLA”) for general use from 30 June 2004.

The new forms include all the currently Approved Forms:

• A1 Annexure Page
• APA Application by Acquiring Authority
• APR Application by Legal Personal Representative
• ASP Application by Surviving Proprietor
• C Caveat
• DM Discharge of Mortgage or Charge
• MCP Memorandum of Common Provisions
• M1A Mortgage or Charge
• T1 Transfer of Land
• T2 Transfer of Land (creating or reserving easement or covenant)
• WC Withdrawal of Caveat

The new Approved Forms include the following additional information:

• Privacy Collection Statement to facilitate Land Registry’s compliance with the Information Privacy Act 2000;
• Address and contact details of Land Registry – 570 Bourke Street, Melbourne 3000 Tel 03 8636 2010;
• Changed Made Available / Change Control panel for Office Use Only where applicable.

An example of one of the newly Approved Forms, the T1-Transfer of Land form, appears on the back of this bulletin. Copies of the new Approved Forms will be available from Reception, Title Registration Services on Level 9, 570 Bourke Street, Melbourne.

Transitional arrangements are as follows:

• Forms purchased from commercial suppliers currently licensed to print and sell forms (blue print on white) with an approval number will continue to be lodged;
• Any form approved for use under section 121 TLA may continue to be used until the expiry of the approval under that section;
• After 1 January 2005, any new application or renewal of existing approvals under section 121 must be accompanied by a completed new Approved Form.

Enquiries on the use of the new Approved Forms, or requests for approval of forms under section 121 TLA should be made to: Forms Officer, Specialist Registration, Level 9, 570 Bourke Street, Melbourne 3000
Tel: 03 8636 2012

or contact Title Registration Services on 03 8636 2010 or 03 8636 2020 for callers outside Melbourne Metropolitan area.