Proving Title
Land and Conveyancing Law Reform Act 2009
Chapter 1
Contracts relating to land
Evidence in writing.
51.- (1) Subject to subsection (2), no action shall be brought to enforce any contract for the sale or other disposition of land unless the agreement on which such action is brought, or some memorandum or note of it, is in writing and signed by the person against whom the action is brought or that person’s authorised agent.
[SF 1695, s. 2]
(2) Subsection (1) does not affect the law relating to part performance or other equitable doctrines.
(3) For the avoidance of doubt, but subject to an express provision in the contract to the contrary, payment of a deposit in money or money’s worth is not necessary for an enforceable contract.
Passing of beneficial interest.
52.- (1) Subject to subsection (2), the entire beneficial interest passes to the purchaser on the making, after the commencement of this Chapter, of an enforceable contract for the sale or other disposition of land.
(2) Subsection (1) does not affect-
(a) the obligation of the vendor to maintain the land so long as possession of it is retained, or
(b) the liability of the vendor for loss or damage under any contractual provision dealing with such risk, or
(c) the vendor’s right to rescind the contract for failure by the purchaser to complete or other breach of the contract, or
(d) any provision to the contrary in the contract.
Abolition of the Rule in Bain v. Fothergill.
53.- (1) The rule of law restricting damages recoverable for breaches of contract occasioned by defects in title to land (known as the Rule in Bain v. Fothergill) is abolished.
(2) Subsection (1) applies only to contracts made after the commencement of this Chapter.
Order for return of deposit.
54.- Where the court refuses to grant specific performance of a contract for the sale or other disposition of land, or in any action for the return of a deposit, the court may, where it is just and equitable to do so, order the repayment of the whole or any part of any deposit, with or without interest.
Vendor and purchaser summons.
55.- (1) Any party to a contract for the sale or other disposition of land may apply to the court in a summary manner for an order determining a question relating to the contract.
[VPA 1874, s. 9]
(2) On such an application the court may make such order, including an order as to costs, as it thinks fit.
(3) A question in respect of which an application may be made under subsection (1) includes a question relating to any requisition, objection, claim for compensation or other question arising out of or connected with the contract, but does not include a question affecting the existence or validity of the contract.
Chapter 2
Chapter 2
Title
Root of title.
56.- (1) Subject to subsections (2) and (3), after the commencement of this Chapter, a period of at least 15 years commencing with a good root of title is the period for proof of title which the purchaser may require.
[VPA 1874, s. 1]
(2) Where the title originates with a fee farm grant or lease, subsection (1) does not prevent the purchaser from requiring production of the fee farm grant or lease.
(3) Subsection (1) takes effect subject to the terms of the contract for the sale or other disposition of the land.
Tenancies.
[VPA 1874, s. 2][CA 1881, ss. 3 and 13][CA 1882, s. 4]
57.- (1) Subject to subsections (2) and (5), under a contract to grant or assign a tenancy or subtenancy of land, the intended grantee or assignee is not entitled to call for the title to-
[VPA 1874, s. 2]
[CA 1881, ss. 3 and 13]
(a) the fee simple, or
[CA 1882, s. 4]
(b) any tenancy superior to that out of which the subtenancy is, or is to be, immediately derived.
(2) Subject to subsection (5), under a contract made after the commencement of this Chapter to grant a tenancy or subtenancy for a term exceeding 5 years the intended grantee may call for-
(a) in the case of a tenancy to be derived immediately out of the fee simple, a copy of the conveyance of that estate to the grantor, or
(b) in the case of a subtenancy, a copy of the superior lease out of which it is to be immediately derived and, if any, of the immediate assignment of the superior lease to the grantor,
and, where the tenancy or subtenancy is granted for the full market rent, taking into account any premium also paid by, but disregarding any concessions or inducements made to, the intended grantee, that grantee may also call for 15 years’ title as a purchaser under section 56 (1).
(3) For the purpose of the deduction of title to an intended assignee, no preliminary contract for or relating to the tenancy forms part of the title, or evidence of the title, to the tenancy.
(4) Where by reason of subsection (1) an intended grantee or assignee is not entitled to call for the title to the fee simple or a superior tenancy, that person, where the contract is made after the commencement of this Chapter, is not affected with notice of any matter or thing of which, if the contract had specified that such title should be furnished, that person might have had notice.
(5) Subsections (1) and (2) take effect subject to the terms of the contract for the grant or assignment of the tenancy or subtenancy.
Other conditions of title.
58.- (1) Subject to subsection (2), a purchaser of land is not entitled to require-
[VPA 1874, s. 2]
[CA 1881, s. 3]
(a) the production of an instrument dated or made before the period referred to in section 56 , or stipulated in the contract for sale, for the commencement of the title, even though the instrument creates a power subsequently exercised by an instrument produced to the purchaser, or
(b) any information, or make any requisition, objection or inquiry with respect to any instrument referred to in paragraph (a) or the title prior to that period, notwithstanding that any instrument, or that prior title, is recited, agreed to be produced or noticed,
and the purchaser shall assume, unless the contrary appears, that-
(i) the recitals contained in the instruments produced, relating to any instrument forming part of that prior title are correct, and give all the material contents of the instrument so recited, and
(ii) every instrument so recited was duly executed by all necessary parties, and perfected, if and as required, by any act required or permitted by law.
(2) Subsection (1) does not deprive a purchaser of the right to require the production of any-
(a) power of attorney under which any instrument which is produced is executed, or
(b) instrument creating or disposing of an interest, power or obligation which is not shown to have ceased or expired, and subject to which any part of the land is disposed of by an instrument which is produced, or a copy of which is produced, or
(c) instrument creating any limitation or trust by reference to which any part of the land is disposed of by an instrument which is produced.
(3) On a sale of land, the purchaser, where the purchaser requires the vendor to carry out such matters, shall bear the expenses (except where such expenses should be borne by the vendor in compliance with the obligation to deduce title) of-
(a) production and inspection of all instruments, letters of administration, probates, proceedings at courts, records, statutory provisions and other documents not in the possession of the vendor, or the vendor’s mortgagee or trustee,
(b) making, procuring, producing, searching for and verifying all certificates, declarations, evidence and information, and all attested, office, stamped or other copies or abstracts of, or extracts from, any statutory provisions or other documents, not in the possession of the vendor or the vendor’s mortgagee or trustee,
(c) making any copy, whether attested or unattested, of any document retained by the vendor, or the vendor’s mortgagee or trustee, required to be delivered by the purchaser.
(4) On a sale of land in lots, a purchaser of two or more lots held wholly or partly under the same title is entitled to no more than one abstract of the common title, nor to more than one copy of any document forming part of the common title, except at the purchaser’s own expense.
(5) The inability of a vendor to furnish the purchaser with an acknowledgment of the right to production and delivery of copies of documents of title is not an objection to title where the purchaser will, on the completion of the contract, have an equitable right to the production of such documents.
(6) Such acknowledgments and such undertakings for the safe custody of documents as the purchaser requires shall be furnished at the purchaser’s expense, and the vendor shall bear the expense of perusal and execution on behalf of or by the vendor, and on behalf of and by necessary parties other than the purchaser.
(7) A vendor may retain a document of title where-
(a) the vendor retains any part of the land to which the document relates, or
(b) the document comprises an instrument-
(i) creating a trust which still exists, or
(ii) relating to the appointment or discharge of a trustee of an existing trust.
(8) This section takes effect subject to the terms of the contract for the sale or other disposition of the land.
(9) Nothing in this section is to be read as binding a purchaser to complete the purchase in any case where, on a contract made without reference to this section but containing stipulations similar to any of its provisions, specific performance would not be granted by the court against the purchaser.
(10) In this section-
(a) “instrument” includes a copy or abstract,
(b) “production” includes furnishing a copy or abstract and cognate words shall be read accordingly.
Protection of purchasers.
59.- (1) Recitals, statements and descriptions of facts, matters and parties contained in instruments, statutory provisions or statutory declarations 15 years old at the date of the contract are, unless and except so far as they are proved to be inaccurate, sufficient evidence of the truth of such facts, matters and parties.
[VPA 1874, s. 2][CA 1881, s. 3]
(2) Where land sold is held under a tenancy (other than a subtenancy), the purchaser shall assume, unless the contrary appears, that the tenancy was duly granted; and, on production of the receipt for the last payment due for rent under the tenancy before the date of the actual completion of the purchase, the purchaser shall assume, unless the contrary appears, that all the covenants and provisions of the tenancy have been duly performed and observed up to the date of actual completion of the purchase.
(3) Where land sold is held under a subtenancy, the purchaser shall assume, unless the contrary appears, that the subtenancy and every superior tenancy were duly granted; and, on production of the receipt for the last payment due for rent under the subtenancy before the date of the actual completion of the purchase, the purchaser shall assume, unless the contrary appears, that all the covenants and provisions of the subtenancy have been duly performed and observed up to the date of actual completion of the purchase, and also that all rent due under, and all covenants and provisions of, every superior tenancy have been paid and duly performed and observed up to that date.
Fraudulent concealment and falsification.
60.- (1) Any person disposing of land to a purchaser, or the solicitor or other agent of such a person, who with intent to defraud-
[LPAA 1859, s. 24][LPAA 1860, s. 8]
(a) conceals from the purchaser any instrument or incumbrance material to the title, or
(b) falsifies any information or matter on which the title may depend in order to induce the purchaser to accept the title offered or produced,
is guilty of an offence under this Act.
(2) Any such person or the person’s solicitor or agent is also liable to an action for damages by the purchaser, or persons deriving title under the purchaser, for any loss sustained by reason of-
(a) the concealment of the instrument or incumbrance, or
(b) any claim made by a person whose title to the land was concealed by such falsification.
(3) In estimating damages, where the land is recovered from the purchaser or persons deriving title under the purchaser, regard shall be had to any expenditure by them on improving the land.
(4) Nothing in this section affects the provisions of the Criminal Justice (Theft and Fraud Offences) Act 2001.
Notice of rights on common title.
61.- (1) Where land having a common title with other land is conveyed to a purchaser (other than a tenant or mortgagee) who does not hold or obtain possession of the documents forming the common title, the purchaser, notwithstanding a stipulation to the contrary in the contract or conveyance, may require that a memorandum giving notice of any provisions in the conveyance restricting user of or conferring rights over any other land comprised in the common title is endorsed on or permanently annexed to some document selected by the purchaser but retained in the possession or control of the vendor and being or forming part of the common title.
[CA 1911, s. 11]
(2) The title of any person omitting to require an endorsement or annexation under this section is not affected or prejudiced merely by such omission.
(3) This section does not apply to registered land.
Chapter 5
General provisions
Restrictions on constructive notice.
86.- (1) A purchaser is not affected prejudicially by notice of any fact, instrument, matter or thing unless-
[CA 1882, s. 3]
(a) it is within the purchaser’s own knowledge or would have come to the purchaser’s knowledge if such inquiries and inspections had been made as ought reasonably to have been made by the purchaser, or
(b) in the same transaction with respect to which a question of notice to the purchaser arises, it has come to the knowledge of the purchaser’s counsel, as such, or solicitor or other agent, as such, or would have come to the knowledge of the solicitor or other agent if such inquiries and inspections had been made as ought reasonably to have been made by the solicitor or agent.
(2) Without prejudice to section 57 (4), subsection (1) does not exempt a purchaser from any liability under, or any obligation to perform or observe, any covenant, provision or restriction contained in any instrument under which the purchaser’s title is derived, immediately or mediately; and such liability or obligation may be enforced in the same manner and to the same extent as if this section had not been enacted.
(3) A purchaser is not, by reason of anything in this section, affected by notice in any case where the purchaser would not have been so affected if this section had not been enacted.
Court orders.
87.- (1) Without prejudice to any ground of appeal against any order, an order of the court under any statutory or other jurisdiction is not invalid as against a purchaser on the ground of want of-
[CA 1881, s. 70]
(a) jurisdiction, or
(b) any concurrence, consent, notice or service.
(2) This section applies to any lease, sale or other act under the authority of the court and purporting to be in pursuance of any statutory provision, notwithstanding any exception in that provision.
Regulations for Part 9.
88.- With a view to facilitating electronic conveyancing of land or providing further protection for the interests of vendors and purchasers of land, the following matters may be prescribed:
(a) the general conditions of sale applicable to a contract for the sale or other disposition of an estate or interest in land;
(b) any other matter referred to in this Part.