Mechanics of the LTA Flashcards
History of Land Transfer
LTA [when]
The LT (Automation) Amendment Act [when]
Land Transfer Systems
LTA 1956
Previously an RP in possession of freehold land was entitled to a CT under the LTA 1956: o incl Name, Nature of estate, legal description, notes of interests, authenticated by seal of registrar, original for register and copy for RP produced
The LT (Automation) Amendment Act [1998]
coverted paper based titles to ‘electronic transactions land’ o incl unique identifier, description, any restrictions on RP o This conversion would cancel existing paper CT’s from date transaction takes effect
Land Transfer Systems
Land Transfer Systems
Freehold [4 kinds] OLLL
Leasehold
Freehold -
I. Ordinary, fully guaranteed title – issued CT if applicant was in possession of land, competent to make an application of land where boundaries defined by instrument of title/plans
II. Limited as to parcels – issue with boundaries of land
III. Land as to title – issued with defect title to land
IV. Limited as to parcels and title
Leasehold -
• Electronic transactions land of this kind will state ‘leasehold’, date of commencement, and refer to Landlord’s CT
• On expiry of lease, leasehold CT is cancelled
Computer Registrar
o LT (Automation) Amendment Act 1998 – set out provisions for automation of land titles – gave power to Registrar to create computer registers for estates and interest in land o LT (CR) repealed the 1998 Act – but largely continues the entitlements o Forms of CR – ((must comply with registration requirements prescribed in LT CR i.e unique identifier, description of land)
- Computer Freehold – electronic equivalent of manual freehold
- Computer Interest – for those interests that require registration
- Computer Unit Title – governed by Unit Titles Act 2000 – usually for apartments
- Composite Computer Register – for cross leases/timeshares
Instrument
Permissable Instrument
S2 LTA – An instrument is any written or printed document/map/plan related to transfer or dealing of land
Reg 4 –a permissible Electronic instrument will
i. belong to certain class of permissible instruments
DWMT
a) discharge of mortgage
b) withdrawal instrument
c) mortgage instrument
d) transfer instrument
ii. be presented for registration as part of a permissible transaction
can include any number discharge of mortgage or withdrawal instruments– but only 1 transfer instrument and 1 mortgage instrument)
iii. contains necessary elements
Memorandum
s155A LTA -
intended to alleviate difficulty of storing bulky items (i.e mortgage/leases) for lending institutions/leasing authorities
o a lending institution can register a memorandum under s.155 that sets out provisions and covenants contained in its standard mortgage form
o Each mortgage taken by that institution can thereafter can be a single sheet form that will incorporate the provisions of the relevant pre-registered memorandum
o Limitation - Memorandum is only part of the register not for members of public
Searching the Register
Access
s46 - Any person may search the register for inspection at times approved by regulation
- however this does not apply to computer register
- However - s33LT(CR) - states people have a right to request paper/other form of copy of instrument as approved by registrar
Search
also called title search; can be for :
• CT, deposited plan, instruments currently in register, easements, title to cross leases, questions on drainage
• Failure to search may amount to negligence in certain claims to compensation
Essential requirements of Registrable instruments
[Act]
[2 requirements]
[Land Transfer (Computer Transfers and Electronic Lodgement) Amendment Act 2002]
An electronic instrument will be in order for registration if:
[1. in acceptable form (specificed by registrar)
[2. instrument is associated with a certification under s.164 LTA
[3. created by person who has
authority to act,
has taken reasonable steps to confirm identity of person they are confirming,
has evidence to show truth of certification)
Non- Registrable instruments
N, C, F, E, L,
o Non compliant o contrary to another law o involving fraud o that create estates incapable of registration o that deal with land not subject to LTA
Procedure of Registration/E-Dealing
S5 LT (CR) - Electronic Lodgement • Allows Registrar to authorize registration, and deposit of instruments
Preparing an electronic instrument within electronic workspace
Procedure:
• Registered User creates e-dealing – adds client reference – adds instruments that are signed/reviewed
• When instruments in E-Dealing are released, the eDealing may be submitted for registration (equivalent to lodging of paper dealing)
• E-dealing may be deleted after registration
When instruments are not in order…
o Instrument will be returned to individual
Completed when: o LTA s 34: every grant/certificate embodies the folium and volume completed in the register o LT (CR) s30 o In effect when unique identifier is entered into relevant computer register
Priority of Registered Instruments
- What cases?
- Unregistrable Instruments?
- Basic Rules
- Exceptions
1.
unregistered documents that evidence agreements for valuable consideration will create equitable interests in land: these are based on contractual transactions, not simply possession
[i.e is A tranfers paper instrument to B promising to register, B has equitable interest in registrable form]
- Unregistrable;
- agreement for sale and purchase
- agreement to mortgage
- agreement to lease - Mercury Geotherm v McLachlan
- equitable interest first in time holds priority
- called ‘temporal priority’
- burden of proof lies with person seeking to deprive earlier holder
BIG Q - Who has bigger equity?/justice fairness?
EXCEPTIONS
BFPV
- [general law] Equitable interest holder may suffer loss if holder of an interest later in time becomes BFPV (without notice of prior interest)
REGISTRATION OF ADVERSE INSTRUMENT, DONE WELL
- [under LTA] holder of unregistered instrument may suffer loss if holder of later equitable registers an adverse instrument:
• for valuable consideration, without fraud, within meaning of LTA
[lodging a caveat will never improve interest]
Priority of Registered Instruments
O’Leary v Sentiero Properties (Oh really)
O’Leary v Sentiero Properties (Oh realy)
- Farmer held option to purchase on O’Leary trust property but property was sold to Sentiero
- Sentiero was aware of this option
HELD
- Farmer held earlier equitable interest
- Sentiero held actual/constructive notice of interest, did not provide arguable case for temporal priority
EXCEPTIONS TO TEMPORAL PRIORITY (not settled law)
a. where holder of later interest knows of earlier, but is led to believe it will not be enforced
b. where earlier interest holder postpones their interest
Priority of Registered Instruments
Perkins v Purea and Tangi-Tuake
o Parents agreed to let daughter and her family live in their house for 15 years while they moved to the Cook Islands [as long as daughter paid mortgage and outgoings]
o When Mother died – father moved back to NZ, denied any agreement between parents and daughter, listed property for sale
o Perkins [appellant] saw property and bought it
o Daughters lawyer lodged a caveat to protect her interest in the property
o Stalemate ensued – daughter didn’t move, perkins unable to settle transaction, purea was without proceeds of sale
• Perkins sued Mr Purea for specific performance of contract
• Mr Purea sought order that daughter’s caveat be removed
o Daughter claimed she had an equitable interest in the property that preceeded the Perkin’s interest in time and outranked it in priority
Held –
o HC was correct in finding daughter had equitable interest in property
o Although it was argued that Perkins position was protected by s182 of LTA [1s82 protects RP who is not affected by notice]
o Per Duncan v Mcdonald – s182 has been consistently interpreted to extend its protection to a purchaser only from the time of registration by that purchaser and thereafter
o Up to registration, the purchaser has only an equitable interest in the land; it becomes a legal interest in registration
Caveats
Registration?
Purpose?
6 kinds?
Registration of Caveat - done through Registrar’s office, entry on date/time of reciept
Purpose of Registration
i. to protect caveator’s registrable interest
ii. to give notice to those looking in register of caveated interest
6 caveatable scenarios in LTA:
i. Against dealings/interests in land
i. Caveat against dealings in land
s137 - person may lodge caveat against dealings or interest in land if they
a. have a beneficial interest
b. they are transferring to another on trust
Components: Name; Nature; How interest relates to RP (applied strictly as in Holt)
Holt - once lodged a caveator asserts rights and protection of these rights
- registrar may not lodge an instrument against the caveat (s141)
- s141 only applies to unregistered mortgages
EXCEPTIONS TO HOLT
- no caveat clause; if lodged is a breach of contract; court may still allow caveat over equitable interest if they deem fair, court has residual discretion to remove/apply
- if instrument is already registred
- if mortgagee exercises power of sale
- if caveator gives consent
i. Caveat against dealings in land
Competing Equitable, and Caveatable Interests
o courts consider time/conduct when judging competing caveatable interests
o however individual can never improve interest by lodging caveat
