Registration of Deeds

Registration of Deeds

Provision for recording deeds and other documents relating to land in NSW has existed since the early days of the colony. On the 26 February 1802 an Order by Governor King established the first formal register of instruments. The express purpose of this registration was to prevent fraud.

A Proclamation of Governor Macquarie on 18 January 1817 had provided for the registration at the office of the Judge-Advocate of “Deeds and Conveyances” affecting land {Refer to Darbyshire v Darbyshire [1905] HCA 28; (1905) 2 CLR 787}

In 1825 NSW adopted the Irish system whereby recording or registration of a deed affecting land was not essential to the validity of the deed, but a deed that was recorded took priority over one which was either nor recorded or recorded subsequently.

Similar enactments were passed in all other states:

Tasmania: Registration Act 1827

South Australia: Registration of Deeds, Wills, Judgements, Conveyances and Other Instruments Act 1841

Western Australia: Registration of Deeds, Wills, Judgements and Conveyances Affecting Real Property Ordinance 1832

When Victoria and Queensland separated from New South Wales in 1851 and 1859 respectively, they took over all laws that had previously applied to them by virtue of their status as part of the colony of New South Wales, including the laws related to deeds registration. Thus, the deeds registration system, in the form of the Registration of Deeds Act 1843 (NSW), applied in Victoria and Queensland from the beginnings of their existence as separate colonies.

In NSW the Registration of Deeds Act 1843 was repealed by the Registration of Deeds Act 1897. The 1897 Act remained in force until repealed in 1984, its substantive provisions were re-enacted in Div 1 of Pt 23 of the Conveyancing Act 1919 as ss 184A-184J

The current legislation is contained in the following Acts:

NSW      – Sections 184A-194J of the Conveyancing Act 1919Section 184C

{ Also refer to Registration of Deeds Act 1897}

Vic          – Section 6 of the Property Law Act 1958

Qld         – Sections 241 of the Property Law Act 1974

{Also refer to Registration of Deeds Act 1843}

WA         – Registration of Deeds Act 1856

SA           – Registration of Deeds Act 1935

{Section 10A provides for the registration of new Trustees under Part 5 of the Trustee Act 1936}

Tas         – Registration of Deeds Act 1935

The legislation in New South Wales, Victoria, Queensland and Tasmania was similar in form.

The South Australian and Western Australian provisions differed from each other and both sets of provisions were substantially different from the relevant provisions in the eastern states.

In NSW, Victoria and Tasmania areas of land remain under the general law system. In South Australia, general law land has virtually disappeared and in Western Australia only small pockets of general law land remain. In Queensland there is no general law land. There is no general law land in either the Northern Territory or the ACT.

In general, any instrument which affects an interest in land is capable of registration.

NSW      – Sections 184D of the Conveyancing Act 1919

Vic          – Section 6 of the Property Law Act 1958

WA         -Section 2 of the Registration of Deeds Act 1856

SA           – Section 10 of the Registration of Deeds Act 1935

Tas         – Sections 6 of the Registration of Deeds Act 1935

In NSW the provision is not even limited to instruments affecting land. Section 184D provides that the Registrar-General may register “any instrument whatever, whether affecting or relating to land or not”.

In South Australia the appointment of New Trustees can be registered under Section 10A.

The Registration of Deeds in NSW

Section 184C of the Conveyancing Act 1919 requires the Registrar-General to maintain a General Register of Deeds. To register an instrument in the Register, the original and a copy (the “registration copy“) are delivered to the Registrar-General, or the original only is delivered with a request for the Registrar-General to prepare a registration copy {Conveyancing (General) Regulations 1998, Pt 2 repealed by Conveyancing (General) Regulations 2008}.

The provisions of Div 1 of Pt 23 of the Conveyancing Act 1919 are not restricted to deeds. Nor are they restricted to instruments affecting land. Under Section 184D the Registrar-General may register “any instrument whatsoever, whether affecting or relating to land or not“.

However, the registration of any instrument that does not affect land is effective for purposes of record only; there is no priority for a registered instrument unless it deals with land.

Division 1 of Pt 23 of the Conveyancing Act 1919 does not require instruments to be registered for validity. But some other Acts do require certain instruments to be registered in the General Register of Deeds as a condition precedent to their validity or operation.

Examples are:

  • the statutory short form of discharge of mortgage {Section 91}
  • the executor’s acknowledgement {Wills, Probate and Administration Act 1898, Section 83}
  •  the deed by which a new trustee is appointed {Trustee Act 1925, Section 6}
  • the deed by which a trustee retires {Trustee Act 1925, Section 8}
  • the power of attorney to be used to execute a conveyance or other deed {Section 163(2)- repealed}
  • any restrictions on use or forestry convenants imposed on land the subject of a forestry right {Section 88 EA(3)}

Registration Provisions – Power of Attorney

A power of attorney is a document by which a person (called the principal or donor) appoints another (the attorney or donee) as their representative for certain purposes. A person travelling overseas may, for instance, grant a power of attorney to a relative or friend who can then access the traveller’s bank to pay his or her bills. A power of attorney can also be useful where a person becomes ill or incapacitated and requires a friend or relative to manage his or her financial affairs for the duration of an illness.

A power of attorney can be granted to anyone who has the legal capacity to do whatever needs to be done.

New South Wales

Powers of attorney (Section 51 of the Powers of Attorney Act 2003) may be registered by the Registrar-General in the General Register of Deeds kept under the Conveyancing Act 1919. A Power of Attorney does not need to be registered unless it is to be used to sign a document which itself has to be registered (eg a land transfer dealing).

Victoria

No Provision under the Instruments Act 1958.

Queensland Powers of attorney (Section 25 of the Powers of Attorney Act 1998) may be registered

Western Australia

Powers of attorney (Guardianship and Administration Act 1990) may be registered in accordance with the Transfer of Land Act 1893.

South Australia

Powers of attorney ( Powers of Attorney and Agency Act 1984) may be registered in accordance with the Registration of Deeds Act 1935, Part 2.

Tasmania

Powers of Attorney (Powers of Attorney Act 2000) must be registered by the Recorder. The Recorder may include in the register any power of attorney that immediately before the commencement of the Act was registered under the Registration of Deeds Act 1935.

ACT

Powers of Attorney (Section 29 of the Powers of Attorney Act 2006) may be registered under the Registration of Deeds Act 1957 and must be registered for any dealing in land.

Northern Territory

Powers of Attorney (Section 7 of the Powers of Attorney Act 1980) may be registered

Registration of a power of attorney ensures a copy of the document is held in a public place. Any power of attorney may be registered as long as it meets the requirements of the Powers of Attorney Act. Registration is mandatory in some cases including cases where:

  • the donee will be signing documents relating to land transactions (Section 8, Powers of Attorney Act);
  • an enduring power of attorney (Section 13, Powers of Attorney Act).

To register a Power of Attorney in the Northern Territory, two original documents should be lodged at the Registrar-General’s Office (Land Titles Office) and a fee paid.  If lodging an original and a photocopy, the photocopy must be an exact reproduction of the original instrument and contain a certification on each page stating it is a true and complete copy of the original Power of Attorney instrument.  Certification can only be undertaken by the donor of the power or by a legal practitioner.

 

 

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