Real Property Act 1900

This Act may be cited as the Real Property Act 1900.

The Acts mentioned in Schedule 1, to the extent therein expressed, are hereby repealed, and all lands, estates, and interests which at the commencement of this Act are subject to the provisions of the Acts so repealed shall be subject to the provisions of this Act.

All rules, forms, and orders made under the provisions of any Act hereby repealed and in force at the commencement of this Act shall be deemed to have been made under the corresponding provisions of this Act.

All applications duly made, registrations duly effected, proceedings duly commenced or had, and acts or things duly done under the Acts hereby repealed shall be deemed to have been duly made, effected, commenced, had, or done respectively under the corresponding provisions of this Act, but at the date on which the same were in fact made, effected, commenced, had, or done.

All laws, statutes, Acts, ordinances, rules, regulations, and practice whatsoever relating to freehold and other interests in land operative on the first day of January one thousand eight hundred and sixty-three are, so far as inconsistent with the provisions of this Act, hereby repealed so far as regards their application to land under the provisions of this Act, or the bringing of land under the operation of this Act.

, (6) (Repealed)

In the construction and for the purposes of this Act, and in all instruments purporting to be made or executed thereunder (if not inconsistent with the context and subject matter)—

the following terms shall bear the respective meanings set against them—

Approved form—Form approved by the Registrar-General for the purposes of any provision of this or any other Act in relation to which the expression is used (see section 104), including an electronic data file containing such a form.

approved way—see section 3D.

Authorised representative—A law practice or licensed conveyancer (or firm of licensed conveyancers) authorised under a client authorisation to represent a party to a conveyancing transaction in connection with the execution or lodgment of documents that give effect to that transaction.

Caveator—The person by whom or on whose behalf a caveat has been lodged under the provisions of this Act, or any enactment hereby repealed.

Charge—Any charge on land created for the purpose of securing the payment of an annuity, rent-charge or sum of money other than a debt.

Chargee—The proprietor of a charge.

Charger—The proprietor of land or of an estate or interest in land that is subject to a charge.

Client authorisation—A client authorisation as defined by section 107.

Computer folio—A folio of the Register that is not a manual folio.

Computer folio certificate means a certificate containing—

the information recorded in a specified folio of the Register, on the date and at the time stated in the certificate, and

information held by the Registrar-General, on the date and at the time stated in the certificate, about the following—

a plan or dealing, whether registered or awaiting registration, the registration of which requires or will require a change to be made in the information recorded in the specified folio,

a caveat or priority notice that purports to affect land comprised in the specified folio if information about the caveat or priority notice is not recorded in the folio.

Consular officer—Consul-general, consul, and vice-consul, and any person for the time being discharging the duties of consul-general, consul, or vice-consul.

Conveyancing rules—The rules determined by the Registrar-General under section 12E.

Conveyancing transaction—A conveyancing transaction within the meaning of the Electronic Conveyancing National Law (NSW) to which this Act applies.

Covenant charge—Any charge on land created under section 88F of the Conveyancing Act 1919 for securing the payment of money.

Covenant chargee—The proprietor of a covenant charge.

Covenant charger—The proprietor of land or of any estate or interest in land subject to a covenant charge.

Dealing—Any instrument other than a grant, caveat or priority notice, including an electronic form of that instrument, being an instrument—

that is registrable or capable of being made registrable under the provisions of this Act, or

in respect of which any recording in the Register is by this or any other Act or any Act of the Commonwealth required or permitted to be made.

Note.

The Electronic Conveyancing National Law (NSW) facilitates the electronic lodgment of registry instruments. Dealings are a type of registry instrument.

Department—The Department of Customer Service.

Deputy Registrar-General—A member of staff of the Department who has been designated under section 4B to be a Deputy Registrar-General.

Digitally sign—Has the same meaning as in the Electronic Conveyancing National Law (NSW).

Easement in gross—An easement without a dominant tenement created pursuant to the provisions of section 88A or 88B of the Conveyancing Act 1919 or acquired by the Commonwealth in exercise of authority conferred by any Act of the Parliament of the Commonwealth.

Electronic Lodgment Network—An Electronic Lodgment Network under the Electronic Conveyancing National Law (NSW).

Firm of licensed conveyancers—A firm of licensees within the meaning of the Conveyancers Licensing Act 2003.

Fraud—Fraud includes fraud involving a fictitious person.

Grant—Any Crown grant of land.

Instrument—Any grant, conveyance, assurance, deed, map, plan, will, probate, or exemplification of will, or any other document in writing or in electronic form relating to the disposition, devolution or acquisition of land or evidencing title to land.

Land—Land, messuages, tenements, and hereditaments corporeal and incorporeal of every kind and description or any estate or interest therein, together with all paths, passages, ways, watercourses, liberties, privileges, easements, plantations, gardens, mines, minerals, quarries, and all trees and timber thereon or thereunder lying or being unless any such are specially excepted.

Law practice—A law practice within the meaning of the Legal Profession Uniform Law (NSW).

Licensed conveyancer means the holder of a licence in force under the Conveyancers Licensing Act 2003.

Limited folio—A folio of the Register that includes a recording under section 28T (4) that has not been cancelled.

Lodge—Includes lodge electronically—

in accordance with this Act or the Electronic Conveyancing National Law (NSW), or

in a way approved by the Registrar-General.

Lodgment rules—Rules made by the Registrar-General under section 12F.

Manual folio—A folio of the Register maintained by the Registrar-General wholly in the form of a document in writing.

Mortgage—Any charge on land (other than a covenant charge) created merely for securing the payment of a debt.

Mortgagor—The proprietor of land or of any estate or interest in land pledged as security for the payment of a debt.

Mortgagee—The proprietor of a mortgage.

Ordinary folio—A folio of the Register that is neither a limited folio nor a qualified folio.

Plan of survey—A formal land survey plan within the meaning of the Surveying and Spatial Information Act 2002.

Possessory applicant—Person who makes a possessory application.

Possessory application—Application under section 45D.

Primary applicant—Person who makes a primary application.

Primary application—Application to bring under the provisions of this Act land that is not subject to those provisions.

Priority notice—A priority notice under Part 7B.

Proprietor—Any person seised or possessed of any freehold or other estate or interest in land at law or in equity in possession in futurity or expectancy.

Qualified folio—A folio of the Register in which is recorded a caution under section 28J that has not been cancelled.

Registrar-General—The person employed in the Public Service as the Registrar-General.

Regulations—The regulations made under this Act.

Sign—Includes digitally sign in accordance with the Electronic Conveyancing National Law (NSW).

The Register—The Register required to be maintained by section 31B (1).

Torrens Assurance Fund—The Torrens Assurance Fund established under section 134.

Transfer—The passing of any estate or interest in land under this Act whether for valuable consideration or otherwise.

Transmission—The acquirement of title to or interest in land consequent on the death, will, intestacy or bankruptcy of a proprietor.

Uplift—The removal of a dealing or other document that has been lodged for registration or recording from its priority position so that it can be corrected or amended without withdrawing the dealing or document.

Writ—A writ for the levy of property within the meaning of Part 8 of the Civil Procedure Act 2005, including any such writ issued pursuant to an Act of the Commonwealth.

Note.

See, for example, section 77M of the Judiciary Act 1903 of the Commonwealth and other similar provisions of Commonwealth legislation.

The description of any person as a proprietor, transferor, transferee, mortgagor, mortgagee, charger, chargee, lessor, or lessee, or as seised of having or taking any estate or interest in any land shall be deemed to include the executors, administrators, and assigns of such person.

(Repealed)

A reference to recording includes a reference to amending, cancelling or deleting.

A reference to a caveator includes a reference to any person who claims through or under the caveator and also includes a reference to any person other than the caveator who, by virtue of section 74M (1), is authorised to withdraw the caveat which was lodged by the caveator.

A reference to an office copy of an order, judgment or injunction made, given or granted by a court is a reference to a copy of that order, judgment or injunction certified as such an office copy by the proper officer of the court.

A reference to a dealing, caveat, priority notice, instrument or other document that is in paper form being duly executed or witnessed includes a reference to it being certified or otherwise authenticated in accordance with the conveyancing rules.

Note.

See also sections 107 (4) and 108 with respect to the effect of the signing of documents under the authority or purported authority of client authorisations.

Note.

The Interpretation Act 1987 contains definitions and other provisions that affect the interpretation and application of this Act.

A reference in this or any other Act to a recording in a folio of the Register includes a reference to a recording in the Register with respect to that folio.

Words and expressions used in this Act that are defined in the Land and Property Information NSW (Authorised Transaction) Act 2016 have the same meanings as in that Act, except in so far as they are defined differently in this Act or the context or subject-matter otherwise indicates or requires.

Notes in the text of this Act do not form part of this Act.

This section applies to—

plans lodged for the purposes of this Act, and

other documents required, under this Act or another Act, to be lodged with the plans.

A reference in this Act—

to a plan or another document includes a reference to an electronic data file containing a plan or another document in an electronic form, and

to the lodging of a plan or another document includes a reference to the electronic lodging of a plan or another document in an electronic form approved by the Registrar-General, and

to a sheet of a plan or another document that is in electronic form, is a reference to a sheet on which the whole or part of the plan or other document would be reproduced if the plan or other document were converted to hard copy form without re-pagination.

If a plan is lodged electronically, all documents required to be lodged with the plan must also be lodged electronically in a form approved by the Registrar-General, unless excepted by—

regulations under this Act or another Act, or

the Registrar-General.

Any signature, seal, certificate, consent or other approval required to authenticate, or to authorise the registration or recording of, a plan proposed to be lodged in electronic form is to be endorsed on an approved form for signatures. When the plan is lodged, that form must also be lodged electronically in an electronic form approved by the Registrar-General.

This Act applies to and in respect of plans and other documents lodged in electronic form in the same way as it applies to other plans and documents, subject to any modifications prescribed by this Act or the Conveyancing Act 1919 or the regulations under either of those Acts.

The regulations may prescribe the following—

functions under this Act, the regulations or another law for which a fee may be charged and the amount of the fee,

the fees to be paid for the exercise of titling and registry functions.

This section operates in addition to a provision of this Act or another law that allows for the prescribing of a fee.

A prescribed fee must be paid before the relevant function is exercised unless otherwise agreed between the person exercising the function and the person responsible for paying the fee.

If a titling and registry function is exercised by an authorised operator, the prescribed fee for the function is the maximum fee that may be charged.

To avoid doubt, the acceptance by an authorised operator of a fee less than the prescribed fee does not operate to reduce the amount required to be paid from the fee into the Torrens Assurance Fund.

If a provision of this Act or the regulations provides for the Registrar-General to give notice of a matter in the approved way, notice may be given in the way provided for in the Conveyancing Act 1919, section 170 (the approved way).

The Registrar-General is authorised to execute the provisions of this Act.

The Registrar-General may delegate any of the powers and functions of the Registrar-General under this or any other Act, other than this power of delegation, to a Deputy Registrar-General or member of staff of the Department.

The Registrar-General is to have a seal of office that bears an impression of the Arms of the State of New South Wales and has inscribed in the margin the words “Registrar-General, New South Wales”.

An instrument or document issued by the Registrar-General or a Deputy Registrar-General, acting or purporting to act under the authority of any Act, is not invalid only because of—

any irregularity in the manner or time of affixing, impressing or printing the seal of the Registrar-General to or on the instrument or document, or

a failure to affix, impress or print the seal of the Registrar-General to or on the instrument or document.

All courts and persons acting judicially—

are required to take judicial notice of the seal of the Registrar-General, and

must, until the contrary is proved, presume that the seal was properly affixed.

The seal of the Registrar-General may be affixed by electronic or mechanical means.

The Registrar-General may, by instrument in writing, designate one or more members of staff of the Department to be Deputy Registrars-General.

If more than one Deputy Registrar-General is designated, the Registrar-General may, in the instrument designating a person to be a Deputy Registrar-General or by a subsequent instrument in writing, designate one of the Deputy Registrars-General to be the Senior Deputy Registrar-General.

A Deputy Registrar-General has such powers and functions as may be—

assigned to the Deputy Registrar-General by the Registrar-General, and

conferred or imposed on the Deputy Registrar-General by or under this or any other Act.

A Deputy Registrar-General is to exercise his or her powers and functions (including delegated powers and functions of the Registrar-General) in accordance with any directions given by the Registrar-General.

If there is no Registrar-General or the Registrar-General is absent from his or her duties—

in the case where there is only one Deputy Registrar-General—the Deputy Registrar-General may act as the Registrar-General, or

in the case where there is more than one Deputy Registrar-General—the Senior Deputy Registrar-General may act as the Registrar-General.

A Deputy Registrar-General acting as the Registrar-General under subsection (5) has the same powers and functions as the Registrar-General and anything done by the Deputy Registrar-General in the exercise of those powers and functions has same effect as if it had been done by the Registrar-General.

The Minister may give directions to the Registrar-General requiring the implementation by the Registrar-General of policies or requirements of general application that the Minister is satisfied are necessary or desirable in the public interest to protect the integrity of the Register.

The Registrar-General is required to give effect to any direction of the Minister under this section.

The Registrar-General may exercise the following powers, that is to say—

The Registrar-General may require any person who may have possession or control of an instrument relating to land the subject of a dealing, or relating to the title to any such land, to produce that instrument, and the Registrar-General may retain any such instrument, whether produced pursuant to this paragraph or otherwise, until it is no longer required for action in connection with a dealing lodged with the Registrar-General.

The Registrar-General may summon any person referred to in paragraph (a) or any person who to the Registrar-General appears to be interested in any land, title to land, or instrument affecting land, the subject of a dealing to appear and give an explanation respecting that land, title, or instrument.

The Registrar-General may administer oaths or may take a statutory declaration in lieu of administering an oath.

The Registrar-General may, subject to this section and upon such evidence as appears to the Registrar-General sufficient, correct errors and omissions in the Register.

The Registrar-General may, subject to subsection (3A), on such evidence and after such notices (if any) as appear to the Registrar-General to be sufficient, and with the consent of the proprietors and any mortgagees of the land, correct the Register by correcting a reference to one or more lot numbers in a plan. The Registrar-General may make the correction on the application of a proprietor or mortgagee or on the Registrar-General’s own initiative.

The Registrar-General may record in the Register a caveat on behalf of any person under any legal disability or on behalf of Her Majesty to prohibit the transfer or dealing with any land belonging or supposed to belong to any such person as hereinbefore mentioned, and also to prohibit the dealing with any land in any case in which it appears to the Registrar-General that an error has been made by misdescription of such land or otherwise in any folio of the Register or instrument, or for the prevention of any fraud or improper dealing.

Editorial note.

See Trustee Act 1925, sec 11.

For the protection of any person interested in land under the provisions of this Act the Registrar-General may record in the Register a caveat, or may otherwise record the interest of that person in the Register in such manner as appears to the Registrar-General to be appropriate.

The Registrar-General may, on such evidence as appears to the Registrar-General sufficient, record in the Register any change in the name of a registered proprietor, whether the change is consequent upon the marriage of the proprietor or otherwise.

The Registrar-General may at the Registrar-General’s discretion, and notwithstanding anything in this Act, dispense with any advertisement or the supply to the Registrar-General of any information or the production to the Registrar-General of any instrument.

The Registrar-General may give notice of the intended exercise or performance of a power, authority, duty or function conferred or imposed by this Act as follows—

in the approved way,

by advertisement,

by directing another person to give notice in a way and form approved by the Registrar-General.

The Registrar-General may, where the Registrar-General is satisfied that an estate or interest has been extinguished by merger, make such recording in the Register as the Registrar-General considers appropriate.

(Repealed)

Where a person required to produce an instrument pursuant to paragraph (a) of subsection (1) fails to produce the instrument or to allow it to be inspected or, being summoned pursuant to paragraph (b) of that subsection, refuses or neglects to give an explanation which the person is, pursuant to that paragraph, required to give, or knowingly misleads or deceives any person authorised to demand any such explanation, the person shall for each such offence incur a penalty not exceeding 2 penalty units, and the Registrar-General, if the instrument or information withheld appears to the Registrar-General material, may reject the relevant dealing referred to in that subsection.

Where the Registrar-General, in the exercise of the powers conferred upon the Registrar-General by subsection (1) (d), makes a correction in the Register—

the Registrar-General shall, by an appropriate recording in the Register, authenticate the correction and record the date thereof, and

to the extent that, but for this paragraph, the correction would prejudice or affect a right accrued from a recording made in the Register before the correction, the correction shall be deemed to have no force or effect, and

subject to paragraph (b), the Register shall, as so corrected, have the same validity and effect as it would have had if the error or omission had not occurred, and

the Registrar-General shall, while any right preserved by paragraph (b) is subsisting, maintain available for search a record of the date, nature and effect of the correction, and

the Registrar-General must keep a record of every correction.

If the Registrar-General makes a correction referred to in subsection (1) (d1)—

the correction—

must not make original words or symbols illegible, and

must be dated, and

must be initialled by the Registrar-General, and

the correction takes effect as if the error corrected had not occurred, and

the correction does not affect the construction of any instrument made or entered into before the correction so as to prejudice any person claiming under that instrument, and

the Registrar-General must keep a record of every correction.

Where the Registrar-General exercises the powers conferred upon the Registrar-General by subsection (1) (f) otherwise than by entering the Registrar-General’s caveat, the interest recorded shall be deemed to be an interest within the meaning of section 42 but otherwise shall have no greater operation or effect than it would have had if not so recorded.

Upon the recording, pursuant to subsection (1) (i), of the extinction of an estate or interest by merger, that estate or interest shall be deemed to have been extinguished accordingly.

The powers of the Registrar-General under this section may be exercised with respect to electronic lodgments in conjunction with powers granted under the Electronic Conveyancing National Law (NSW).

A power to correct errors and omissions conferred by subsection (1) includes a power to correct errors and omissions resulting from a malfunction of—

an Electronic Lodgment Network or electronic system in which information is communicated between the Electronic Lodgment Network and the Registrar-General, or

any other system, approved by the Registrar-General, that enables the lodgment of dealings, caveats, priority notices and other documents in electronic form.