Queensland
Property Law Act 1974
Current as at 30 April 2022
© State of Queensland 2022
This work is licensed under a Creative Commons Attribution 4.0 International License.
Queensland
Property Law Act 1974
Contents
Page
Part 1 Preliminary
1 Short title . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
2 Act binds Crown . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
3 Dictionary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
4 Act not to be taken to confer right to register restrictive covenant 17
5 Application of Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
6 Savings in regard to ss 10–12 and 59 . . . . . . . . . . . . . . . . . . . . . 18
Part 2 General rules affecting property
7 Effect of repeal of Statute of Uses . . . . . . . . . . . . . . . . . . . . . . . . 19
8 Lands lie in grant only . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
9 Reservation of easements etc. in conveyances of land . . . . . . . 20
10 Assurances of land to be in writing . . . . . . . . . . . . . . . . . . . . . . . 20
11 Instruments required to be in writing . . . . . . . . . . . . . . . . . . . . . . 20
12 Creation of interests in land by parol . . . . . . . . . . . . . . . . . . . . . . 21
13 Persons taking who are not parties . . . . . . . . . . . . . . . . . . . . . . . 21
14 Conveyances by a person to the person etc. . . . . . . . . . . . . . . . 22
15 Rights of husband and wife . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
15A Rights of aliens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
16 Presumption that parties are of full age . . . . . . . . . . . . . . . . . . . . 23
17 Merger . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
18 Restrictions on operation of conditions of forfeiture . . . . . . . . . . 24
Part 3 Freehold estates
19 Freehold estates capable of creation . . . . . . . . . . . . . . . . . . . . . 25
20 Incidents of tenure on grant in fee simple . . . . . . . . . . . . . . . . . . 25
21 Alienation in fee simple . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
22 Abolition of estates tail . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
23 Abolition of quasi-entails . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Contents
Property Law Act 1974
Page 2
24 Liability of life tenant for voluntary waste . . . . . . . . . . . . . . . . . . . 29
25 Equitable waste . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
26 Recovery of property on determination of a life or lives . . . . . . . 30
27 Penalty for holding over by life tenant . . . . . . . . . . . . . . . . . . . . . 31
28 Abolition of the rule in Shelley’s Case . . . . . . . . . . . . . . . . . . . . . 31
29 Words of limitation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Part 4 Future interests
30 Creation of future interests in land . . . . . . . . . . . . . . . . . . . . . . . 32
31 Power to dispose of all rights and interests in land . . . . . . . . . . . 33
32 Restriction on executory limitations . . . . . . . . . . . . . . . . . . . . . . . 33
Part 5 Concurrent interest—co-ownership
Division 1 General rules
33 Forms of co-ownership . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
34 Power for corporations to hold property as joint tenants . . . . . . . 34
35 Construction of dispositions of property to 2 or more persons together
35
36 Tenants in common of equitable estate acquiring the legal estate 36
Division 2 Statutory trusts, sale and division
37 Definitions for div 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
37A Property held on statutory trust for sale . . . . . . . . . . . . . . . . . . . 36
37B Property held on statutory trust for partition . . . . . . . . . . . . . . . . 37
38 Statutory trusts for sale or partition of property held in co-ownership 37
39 Trustee on statutory trusts for sale or partition to consult persons
interested . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
40 Right of co-owners to bid at sale under statutory power of sale . 40
41 Sale or division of chattels . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
42 Powers of the court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
43 Liability of co-owner to account . . . . . . . . . . . . . . . . . . . . . . . . . . 41
Part 6 Deeds, covenants, instruments and contracts
Division 1 Deeds and covenants
Subdivision 1 Preliminary
44 Definitions for division . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
45 What is a counterpart for a document . . . . . . . . . . . . . . . . . . . . . 44
46 Division does not apply to enduring documents . . . . . . . . . . . . . 44
46A Application of division to powers of attorney . . . . . . . . . . . . . . . . 44
46B Execution of documents under other Acts . . . . . . . . . . . . . . . . . . 45
Contents
Property Law Act 1974
Page 3
Subdivision 2 General rules
46C How deed is made generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
46D Deed may be in form of electronic document and electronically signed
46
46E Execution by individual . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
46F Execution by corporation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
46G Execution by partnership or unincorporated association . . . . . . . 48
46GA Execution by the State . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
46H Signing counterpart or true copy . . . . . . . . . . . . . . . . . . . . . . . . . 50
47 Delivery of deeds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
48 Construction of expressions used in deeds and other instruments 50
49 Implied covenants may be negatived . . . . . . . . . . . . . . . . . . . . . 51
50 Covenants and agreements entered into by a person with himself or
herself and another or others . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
51 Receipt in instrument sufficient . . . . . . . . . . . . . . . . . . . . . . . . . . 52
52 Receipt in instrument or endorsed evidence . . . . . . . . . . . . . . . . 52
53 Benefit and burden of covenants relating to land . . . . . . . . . . . . 52
53A Deposit of deed in registry . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
53B Protection for third parties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
Division 2 General rules affecting contracts
54 Effect of joint contracts and liabilities . . . . . . . . . . . . . . . . . . . . . 55
55 Contracts for the benefit of third parties . . . . . . . . . . . . . . . . . . . 55
56 Guarantees to be in writing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
57 Effect of provisions as to conclusiveness of certificates etc. . . . . 58
57A Effect of Act or statutory instrument . . . . . . . . . . . . . . . . . . . . . . 59
58 Insurance money from burnt building . . . . . . . . . . . . . . . . . . . . . 59
Division 3 Sales of land
58A Definitions for div 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
58B Meaning of settlement of a sale of land in an e-conveyance . . . 61
59 Contracts for sale etc. of land to be in writing . . . . . . . . . . . . . . . 62
60 Sales of land by auction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
61 Conditions of sale of land . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
62 Stipulations not of the essence of the contract . . . . . . . . . . . . . . 64
63 Application of insurance money on completion of a sale or exchange 64
64 Right to rescind on destruction of or damage to dwelling house . 66
65 Rights of purchaser as to execution . . . . . . . . . . . . . . . . . . . . . . 67
Contents
Property Law Act 1974
Page 4
66 Receipt in instrument or endorsed authority for payment . . . . . . 67
67 Restriction on vendor’s right to rescind on purchaser’s objection 68
67A When statutory rights of termination end for land sales if e-conveyancing
is used . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
68 Damages for breach of contract to sell land . . . . . . . . . . . . . . . . 69
68A Forfeiture of deposit on purchaser’s default . . . . . . . . . . . . . . . . 69
69 Rights of purchaser where vendor’s title defective . . . . . . . . . . . 70
70 Applications to court by vendor and purchaser . . . . . . . . . . . . . . 71
70A Computers inoperative on day for completion . . . . . . . . . . . . . . . 71
Division 4 Instalment sales of land
71 Definitions for div 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
71A Application of div 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
72 Restriction on vendor’s right to rescind . . . . . . . . . . . . . . . . . . . . 74
73 Land not to be mortgaged by vendor . . . . . . . . . . . . . . . . . . . . . 74
74 Right of purchaser to lodge caveat . . . . . . . . . . . . . . . . . . . . . . . 75
75 Right to require conveyance . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
76 Deposit of title deed and conveyance . . . . . . . . . . . . . . . . . . . . . 78
Part 7 Mortgages
77 Definitions for pt 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
77A Application of pt 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
78 Implied obligations in mortgages . . . . . . . . . . . . . . . . . . . . . . . . . 80
78A Mortgages lodged electronically . . . . . . . . . . . . . . . . . . . . . . . . . 81
79 Variation of mortgage . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
80 Inspection and production of instruments . . . . . . . . . . . . . . . . . . 83
81 Actions for possession by mortgagors . . . . . . . . . . . . . . . . . . . . 85
82 Tacking and further advances . . . . . . . . . . . . . . . . . . . . . . . . . . . 86
83 Powers incident to estate or interest of mortgagee . . . . . . . . . . . 87
84 Regulation of exercise of power of sale . . . . . . . . . . . . . . . . . . . 89
84A Exercise of power of sale in relation to disclaimed properties . . . 90
85 Duty of mortgagee or receiver as to sale price . . . . . . . . . . . . . . 92
86 Effect of conveyance on sale . . . . . . . . . . . . . . . . . . . . . . . . . . . 93
87 Protection of purchasers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94
88 Application of proceeds of sale . . . . . . . . . . . . . . . . . . . . . . . . . . 95
89 Provisions as to exercise of power of sale . . . . . . . . . . . . . . . . . 96
90 Mortgagee’s receipts discharges etc. . . . . . . . . . . . . . . . . . . . . . 96
91 Amount and application of insurance money . . . . . . . . . . . . . . . 97
Contents
Property Law Act 1974
Page 5
92 Appointment, powers, remuneration and duties of receiver . . . . 98
93 Effect of advance on joint account . . . . . . . . . . . . . . . . . . . . . . . 100
94 Obligation to transfer instead of discharging mortgage . . . . . . . . 101
95 Relief against provision for acceleration of payment . . . . . . . . . . 102
96 Mortgagee accepting interest on overdue mortgage not to call up without
notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104
97 Interest of mortgagor not seizable on judgment for mortgage debt 104
98 Abolition of consolidation of mortgages . . . . . . . . . . . . . . . . . . . . 105
99 Sale of mortgaged property in action for redemption or foreclosure 105
100 Realisation of equitable charges by the court . . . . . . . . . . . . . . . 106
101 Facilitation of redemption in case of absent or unknown mortgagees
107
Part 8 Leases and tenancies
Division 1 Rights, powers and obligations
102 Abolition of interesse termini as to reversionary leases and leases for
lives . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108
104 Voluntary waste . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109
105 Obligations of lessees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 110
106 Obligations in short leases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 110
107 Powers in lessor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 111
109 Short forms of covenants and obligations of lessees . . . . . . . . . 113
110 Cases in which statutory obligations or powers not implied . . . . 113
111 Lessee to give notice of ejectment to the lessor . . . . . . . . . . . . . 113
112 Provisions as to covenants to repair . . . . . . . . . . . . . . . . . . . . . . 114
Division 2 Surrenders, assignments and waiver
113 Head leases may be renewed without surrendering under-leases 115
114 Provision as to attornments by tenants . . . . . . . . . . . . . . . . . . . . 116
115 When reversion on a lease is surrendered etc. the next estate to be
deemed the reversion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117
116 Apportionment of conditions on severance . . . . . . . . . . . . . . . . . 117
117 Rent and benefit of lessee’s covenants to run with the reversion 118
118 Obligation of lessor’s covenants to run with reversion . . . . . . . . 119
119 Waiver of a covenant in a lease . . . . . . . . . . . . . . . . . . . . . . . . . 119
120 Effect of licences granted to lessees . . . . . . . . . . . . . . . . . . . . . . 120
121 Provisions as to covenants not to assign etc. without licence or consent
121
122 Involuntary assignment no breach of covenant . . . . . . . . . . . . . . 123
Contents
Property Law Act 1974
Page 6
Division 3 Relief from forfeiture
123 Definitions for div 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 123
123A Application of div 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 124
124 Restriction on and relief against forfeiture . . . . . . . . . . . . . . . . . . 124
125 Power of court to protect under-lessee on forfeiture of superior leases
127
126 Costs and expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 127
127 Relief against notice to effect decorative repairs . . . . . . . . . . . . . 128
128 Relief against loss of lessee’s option . . . . . . . . . . . . . . . . . . . . . 129
Division 4 Termination of tenancies
129 Abolition of yearly tenancies arising by implication of law . . . . . . 133
130 Notice of termination of tenancy . . . . . . . . . . . . . . . . . . . . . . . . . 134
131 Form and contents of notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . 135
132 Manner of giving notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 135
133 Notice to terminate weekly tenancy . . . . . . . . . . . . . . . . . . . . . . . 137
134 Notice to terminate monthly tenancy . . . . . . . . . . . . . . . . . . . . . . 137
135 Notice to terminate yearly tenancy . . . . . . . . . . . . . . . . . . . . . . . 137
136 Notice to terminate other periodic tenancy . . . . . . . . . . . . . . . . . 138
137 Notice to terminate other tenancies . . . . . . . . . . . . . . . . . . . . . . . 138
138 Tenants and other persons holding over to pay double the yearly value
138
139 Tenant holding over after giving notice to be liable for double rent 139
Division 5 Summary recovery of possession
140 Definitions for div 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 139
141 Summary proceedings for recovery of possession . . . . . . . . . . . 140
142 Mode of proceeding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 140
143 Contents of complaint . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 141
144 Summons upon complaint for recovery of possession of land . . 141
145 Hearing and determination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 142
146 Warrant for possession . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 144
147 Arrears of rent etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 145
148 Rehearing where proof made by affidavit . . . . . . . . . . . . . . . . . . 147
149 Court’s powers in proceeding under this division . . . . . . . . . . . . 148
150 Protection of justices etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 149
151 Protection of landlord entitled to possession . . . . . . . . . . . . . . . . 149
152 Persons lacking right to possession not protected . . . . . . . . . . . 150
Contents
Property Law Act 1974
Page 7
Division 6 Agricultural holdings
153 Definitions for div 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 150
154 Application of div 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 151
155 Tenant’s property in fixtures . . . . . . . . . . . . . . . . . . . . . . . . . . . . 152
156 Tenant’s right to compensation . . . . . . . . . . . . . . . . . . . . . . . . . . 153
157 Intended improvements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 153
158 Agreements etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 154
159 Arbitration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 155
160 Notice of intended claim . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 155
161 Rules for ascertaining amount of compensation . . . . . . . . . . . . . 156
162 Recovery of compensation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 156
163 Landlord who is a trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 157
164 Compensation to tenants, when mortgagee in possession . . . . . 158
165 Incoming tenant’s claim for compensation reserved . . . . . . . . . . 158
166 Change of tenancy not to affect right to compensation . . . . . . . . 159
167 Power of entry . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 159
Part 10 Incorporeal hereditaments and appurtenant rights
176 Prohibition upon creation of rent charges . . . . . . . . . . . . . . . . . . 159
177 Release of part of land subject to rent charge . . . . . . . . . . . . . . . 159
178 No presumption of right to access or use of light or air . . . . . . . . 160
179 Right to support of land and buildings . . . . . . . . . . . . . . . . . . . . . 160
180 Imposition of statutory rights of user in respect of land . . . . . . . . 160
181 Power to modify or extinguish easements and restrictive covenants 163
Part 11 Encroachment and mistake
Division 1 Encroachment of buildings
182 Definitions for div 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 166
183 Application of div 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 167
184 Application for relief in respect of encroachments . . . . . . . . . . . . 167
185 Powers of court on application for relief in respect of encroachment 167
186 Compensation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 168
187 Charge on land . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 168
188 Encroaching owner—compensation and conveyance . . . . . . . . 169
189 Adjacent owner—compensation and conveyance . . . . . . . . . . . 169
190 Vesting order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 169
191 Boundaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 170
192 Suit, action or other proceeding . . . . . . . . . . . . . . . . . . . . . . . . . 170
Contents
Property Law Act 1974
Page 8
193 Persons interested . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 171
194 Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 171
Division 2 Improvements under mistake of title
195 Application of div 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 171
196 Relief in case of improvements made by mistake . . . . . . . . . . . . 171
197 Nature of relief . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 171
198 Right to apply or be served . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 173
Part 11A Rights of way
198A Prescriptive right of way not acquired by user . . . . . . . . . . . . . . . 174
Part 12 Equitable interests and things in action
199 Statutory assignments of things in action . . . . . . . . . . . . . . . . . . 174
200 Efficacy in equity of voluntary assignments . . . . . . . . . . . . . . . . . 175
Part 13 Powers of appointment
201 Application of pt 13 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 176
202 Mode of exercise of powers . . . . . . . . . . . . . . . . . . . . . . . . . . . . 176
203 Validation of appointments where objects are excluded or take illusory
shares . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 177
204 Protection of purchasers claiming under certain void appointments 177
205 Disclaimer etc. of powers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 178
Part 14 Perpetuities and accumulations
206 Definitions for pt 14 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 179
206A When disposition in will made . . . . . . . . . . . . . . . . . . . . . . . . . . . 179
206B When person to be treated as member of class . . . . . . . . . . . . . 179
207 Application of pt 14 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 179
208 Powers of appointment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 180
209 Power to specify perpetuity period . . . . . . . . . . . . . . . . . . . . . . . 180
210 Wait and see rule . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 181
211 Power to apply to court for declaration as to validity . . . . . . . . . . 182
212 Presumptions and evidence as to future parenthood . . . . . . . . . 183
213 Reduction of age and exclusion of class members to avoid remoteness
183
214 Unborn husband or wife . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 185
215 Dependent dispositions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 185
216 Abolition of the rule against double possibilities . . . . . . . . . . . . . 185
217 Restrictions on the perpetuity rule . . . . . . . . . . . . . . . . . . . . . . . . 186
218 Options . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 187
Contents
Property Law Act 1974
Page 9
219 Determinable interests . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 188
220 Trustee powers and superannuation funds . . . . . . . . . . . . . . . . . 189
221 Non-charitable purpose trusts . . . . . . . . . . . . . . . . . . . . . . . . . . . 190
222 Accumulation of income . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 190
Part 15 Corporations
223 Devolution of property of corporation sole . . . . . . . . . . . . . . . . . . 191
224 Vacancy in corporation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 191
225 Transactions with corporation sole . . . . . . . . . . . . . . . . . . . . . . . 191
226 Corporation incapable of acting . . . . . . . . . . . . . . . . . . . . . . . . . . 192
227 Corporate contracts and transactions not under seal . . . . . . . . . 193
Part 16 Voidable dispositions
228 Voluntary conveyances to defraud creditors voidable . . . . . . . . . 194
229 Voluntary disposition of land how far voidable as against purchasers
195
230 Acquisitions of reversions at an under value . . . . . . . . . . . . . . . . 195
Part 17 Apportionment
231 Definitions for pt 17 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 195
232 Rents etc. apportionable in respect of time . . . . . . . . . . . . . . . . . 196
233 Exceptions and application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 197
Part 18 Unregistered land
Division 1 Application of part—interpretation
234 Definition for pt 18 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 197
234A Application of pt 18 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 197
Division 2 Sales and conveyances
235 No conveyance to have tortious operation . . . . . . . . . . . . . . . . . 198
236 Want of livery of seisin . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 198
237 Statutory commencements of title . . . . . . . . . . . . . . . . . . . . . . . . 198
238 Other statutory conditions of sale . . . . . . . . . . . . . . . . . . . . . . . . 199
239 General words implied in conveyances . . . . . . . . . . . . . . . . . . . . 203
240 All estate clause implied . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 204
Division 3 Registration of deeds
241 Registration of instruments and wills . . . . . . . . . . . . . . . . . . . . . . 204
242 Mode of registration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 205
243 Signature on behalf of dead or absent party . . . . . . . . . . . . . . . . 205
244 Receipts by registrar and endorsement . . . . . . . . . . . . . . . . . . . 206
245 Mistakes in registration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 206
Contents
Property Law Act 1974
Page 10
246 Deeds to take effect according to priority of registration . . . . . . . 207
247 Fraud of conveying party . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 207
248 Covenants to produce deeds . . . . . . . . . . . . . . . . . . . . . . . . . . . 207
249 Certified copy as evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 207
Division 4 Compulsory registration of title
250 Progressive registration of unregistered land . . . . . . . . . . . . . . . 208
251 Claims by persons claiming to be entitled to land or registrable interests
211
252 Vesting of land in Crown . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 212
253 Powers and duties of the registrar . . . . . . . . . . . . . . . . . . . . . . . . 214
254 Investigator of old system titles . . . . . . . . . . . . . . . . . . . . . . . . . . 215
254A Continuation of division after commencement of Land Title Act 1994
215
Part 19 Property (de facto relationships)
Division 1 Preliminary
255 Main purposes of pt 19 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 216
255A Relationship of this part with the Family Law Act in relation to particular
financial matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 217
256 How main purposes are to be achieved . . . . . . . . . . . . . . . . . . . 218
257 Application of pt 19 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 218
258 Other rights not affected . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 219
Division 2 Interpretation
Subdivision 1 General
259 Definitions for pt 19 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 219
Subdivision 2 De facto partner and relationship concepts
260 Extended meaning of de facto partner for pt 19 . . . . . . . . . . . . . 221
261 Meaning of de facto relationship . . . . . . . . . . . . . . . . . . . . . . . . . 221
Subdivision 3 Financial matters and financial resources concepts
262 Meaning of financial matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . 221
263 Meaning of financial resources . . . . . . . . . . . . . . . . . . . . . . . . . . 221
Subdivision 4 Cohabitation, separation and recognised agreement concepts
264 Meaning of cohabitation agreement . . . . . . . . . . . . . . . . . . . . . . 222
265 Meaning of separation agreement . . . . . . . . . . . . . . . . . . . . . . . . 222
266 Meaning of recognised agreement . . . . . . . . . . . . . . . . . . . . . . . 223
Subdivision 5 Publication and account of a de facto proceeding concepts
267 Meaning of publish . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 224
268 Meaning of account of a de facto proceeding . . . . . . . . . . . . . . . 224
Contents
Property Law Act 1974
Page 11
Division 3 Resolution of financial matters by de facto partners
Subdivision 1 Purpose of division and use of agreements
269 Purpose of div 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 224
270 Cohabitation and separation agreements are valid . . . . . . . . . . . 225
271 Court’s jurisdiction may not be excluded . . . . . . . . . . . . . . . . . . . 225
272 Law of contract applies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 225
273 Effect of de facto partner’s death . . . . . . . . . . . . . . . . . . . . . . . . 225
Subdivision 2 Relationship between recognised agreements and proceedings
274 No property adjustment order inconsistent with recognised agreement
226
275 Court to ignore revoked provision . . . . . . . . . . . . . . . . . . . . . . . . 226
276 Court may vary recognised agreement if serious injustice or
impracticable . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 226
Subdivision 3 Relationship between agreements other than recognised
agreements and proceedings
277 Other cohabitation or separation agreements may be considered 227
278 Court to ignore revoked provision . . . . . . . . . . . . . . . . . . . . . . . . 227
Division 4 Resolution of financial matters by court
Subdivision 1 Declaration of property interests
279 Purpose of sdiv 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 228
280 Court may declare property interests . . . . . . . . . . . . . . . . . . . . . 228
281 Court may give effect to declaration . . . . . . . . . . . . . . . . . . . . . . 228
Subdivision 2 Adjustment of property interests
Subsubdivision 1General
282 Purpose of sdiv 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 229
283 De facto partner may apply . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 229
284 De facto partners or child may benefit from adjustment . . . . . . . 229
285 Not affected by other rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 229
286 Court may make property adjustment order . . . . . . . . . . . . . . . . 230
Subsubdivision 2Requirements for property adjustment proceedings
287 Type of de facto relationship . . . . . . . . . . . . . . . . . . . . . . . . . . . . 230
288 Time limit for making application . . . . . . . . . . . . . . . . . . . . . . . . . 230
289 Disclosure of financial circumstances . . . . . . . . . . . . . . . . . . . . . 231
290 Disclosure of child support and relevant orders . . . . . . . . . . . . . 231
Subsubdivision 3Matters for consideration in deciding what is just and equitable
291 Contributions to property or financial resources . . . . . . . . . . . . . 232
292 Contributions to family welfare . . . . . . . . . . . . . . . . . . . . . . . . . . 232
Contents
Property Law Act 1974
Page 12
293 Effect on future earning capacity . . . . . . . . . . . . . . . . . . . . . . . . . 233
294 Child support . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 233
295 Other orders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 233
296 Other matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 234
Subsubdivision 4Additional matters for consideration to the relevant extent in
deciding what is just and equitable
297 Age and health . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 234
298 Resources and employment capacity . . . . . . . . . . . . . . . . . . . . . 234
299 Caring for children . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 234
300 Necessary commitments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 234
301 Responsibility to support others . . . . . . . . . . . . . . . . . . . . . . . . . 235
302 Government assistance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 235
303 Appropriate standard of living . . . . . . . . . . . . . . . . . . . . . . . . . . . 236
304 Contributions to income and earning capacity . . . . . . . . . . . . . . 236
305 Length of relationship . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 236
306 Effect of relationship on earning capacity . . . . . . . . . . . . . . . . . . 236
307 Financial circumstances of cohabitation . . . . . . . . . . . . . . . . . . . 236
308 Child maintenance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 236
309 Other facts and circumstances . . . . . . . . . . . . . . . . . . . . . . . . . . 236
Subsubdivision 5Adjournment because of likely change in financial circumstances
310 Likelihood of significant change in financial circumstances . . . . 237
311 Matters for consideration by court . . . . . . . . . . . . . . . . . . . . . . . . 237
312 Orders may be made before adjournment . . . . . . . . . . . . . . . . . 237
313 Adjournments on other grounds not affected . . . . . . . . . . . . . . . 238
Subsubdivision 6Change in circumstances
314 Delayed operation of order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 238
315 Effect on proceeding of death of party . . . . . . . . . . . . . . . . . . . . 238
Division 5 Existence of a de facto relationship
Subdivision 1 Declaration about existence of relationship
316 Purpose of div 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 239
317 Application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 239
318 Court may adjourn hearing if other affected person . . . . . . . . . . 239
319 Court may make declaration about existence of relationship . . . 240
320 Court may make declaration about non-existence of relationship 240
321 Declaration to include date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 240
322 Death of de facto partners irrelevant . . . . . . . . . . . . . . . . . . . . . . 240
Contents
Property Law Act 1974
Page 13
323 Effect of declaration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 241
Subdivision 2 Revocation of declaration
324 Party or affected person may apply . . . . . . . . . . . . . . . . . . . . . . . 241
325 Court may adjourn hearing if other affected person . . . . . . . . . . 241
326 Court may revoke declaration . . . . . . . . . . . . . . . . . . . . . . . . . . . 242
327 Court may make ancillary orders . . . . . . . . . . . . . . . . . . . . . . . . . 242
328 Effect of revocation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 243
Division 6 Courts
Subdivision 1 Jurisdiction
329 Courts having jurisdiction under pt 19 . . . . . . . . . . . . . . . . . . . . . 243
330 Stay or dismissal of proceeding in relation to same person . . . . 244
331 Transfer of proceeding to more appropriate court . . . . . . . . . . . . 244
Subdivision 2 Powers
332 Purpose of sdiv 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 244
333 Court’s powers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 244
334 Variation and setting aside of orders . . . . . . . . . . . . . . . . . . . . . . 246
335 Transactions to defeat claims . . . . . . . . . . . . . . . . . . . . . . . . . . . 247
336 Interests of other parties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 248
337 Duty of court to end financial relationship . . . . . . . . . . . . . . . . . . 248
Subdivision 3 Miscellaneous matters concerning proceedings
Subsubdivision 1Intervention
338 Application for leave . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 249
339 Leave to intervene . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 249
340 Intervener’s rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 249
Subsubdivision 2Costs
341 Party bears own costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 249
Subsubdivision 3Publication of proceedings
342 Specifically authorised publication . . . . . . . . . . . . . . . . . . . . . . . 250
343 No identification in general publication . . . . . . . . . . . . . . . . . . . . 251
344 Offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 252
Part 20 Miscellaneous
345 Protection of solicitors and others adopting this Act . . . . . . . . . . 252
346 Restriction on constructive notice . . . . . . . . . . . . . . . . . . . . . . . . 253
347 Service of notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 254
348 Payments into and applications to court . . . . . . . . . . . . . . . . . . . 255
349 Forms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 256
Contents
Property Law Act 1974
Page 14
350 Approval of forms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 256
350A Fees for titles registry functions . . . . . . . . . . . . . . . . . . . . . . . . . . 257
351 Regulation-making power . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 257
Part 21 Transitional provision for Property Law (Mortgagor Protection)
Amendment Act 2008
352 Mortgagor protection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 257
Part 22 Transitional Provision for Civil and Criminal Jurisdiction Reform
and Modernisation Amendment Act 2010
353 Amendments do not affect existing matters . . . . . . . . . . . . . . . . 258
Part 23 Transitional provisions for Land Sales and Other Legislation
Amendment Act 2014
354 Definitions for pt 23 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 259
355 Application of s 68A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 259
356 Existing instalment contracts . . . . . . . . . . . . . . . . . . . . . . . . . . . . 259
Part 24 Transitional provisions for Court and Civil Legislation Amendment
Act 2017
357 Application of s 57A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 259
358 Saving provision for s 57A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 260
Part 25 Transitional provisions for Justice and Other Legislation
Amendment Act 2020
359 Application of s 84A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 261
360 Application of proceeds of sales that happened before commencement
261
Part 26 Transitional and validating provisions for Justice and Other
Legislation Amendment Act 2021
360A Deed signed by different signatories before and after commencement
262
360B Execution of deed by corporation sole or State after commencement of
Justice Legislation (COVID-19 Emergency Response—Wills and
Enduring Documents) Amendment Regulation 2020 . . . . . . . . . 263
Schedule 1 Procedure in cases of bona vacantia . . . . . . . . . . . . . . . . . . . 265
1 Procedure in cases of escheat or other like cases . . . . . . . . . . . 265
2 Writ of inquisition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 265
3 Return of writ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 265
4 Writ to be returned before new grant made . . . . . . . . . . . . . . . . . 266
5 Effect of certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 266
6 Saving . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 266
7 Procedure when waiver by the Crown . . . . . . . . . . . . . . . . . . . . . 266
8 Power to regulate procedure with respect to escheats to the Crown 267
Contents
Property Law Act 1974
Page 15
10 Interpretation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 267
Schedule 3 Short forms of covenants in leases . . . . . . . . . . . . . . . . . . . . . 268
Schedule 4 Improvements by tenant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 281
Schedule 5 Rules as to arbitration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 282
Schedule 6 Dictionary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 287
[s 1]
Property Law Act 1974
Part 1 Preliminary
Current as at 30 April 2022 Page 17
Authorised by the Parliamentary Counsel
Property Law Act 1974
An Act to consolidate, amend, and reform the law relating to
conveyancing, property, and contract, to terminate the
application of certain statutes, to facilitate the resolution of
financial matters at the end of a de facto relationship, and for
other purposes
Part 1 Preliminary
1 Short title
This Act may be cited as the Property Law Act 1974.
2 Act binds Crown
This Act, except where otherwise provided, binds the Crown
not only in right of the State of Queensland but also, so far as
the legislative power of Parliament permits, the Crown in all
its other capacities.
3 Dictionary
The dictionary in schedule 6 defines particular words used in
this Act.
4 Act not to be taken to confer right to register restrictive
covenant
Nothing in this Act shall be construed as conferring on any
person a right, in respect of registered land, to registration of a
restrictive covenant.
[s 5]
Property Law Act 1974
Part 1 Preliminary
Page 18 Current as at 30 April 2022
Authorised by the Parliamentary Counsel
5 Application of Act
(1) This Act shall—
(a) apply to unregistered land; and
(b) apply to land under the provisions of the Land Title Act
1994, including any lease of such land, but subject to
that Act; and
(c) apply to estates, interests, and any other rights in or in
respect of land, granted, created or taking effect under
any Act or any repealed Act provisions of which
continue to apply with respect to this Act, but subject to
the provisions of such Act; and
(d) without limiting the generality of paragraph (c)—
(i) subject to the provisions of the Coal Mining Act,
apply to land under that Act; or
(ii) subject to the provisions of the Land Act, apply to
land under that Act; or
(iii) subject to the provisions of the Mineral Resources
Act, apply to leases, and any other rights in or in
respect of land, granted, created or taking effect
under that Act.
(2) Where, by this Act, including this section, a provision is
expressed to apply to land or interests in land under the
provisions of a particular Act, such expression shall not be
construed to mean that the provision—
(a) applies exclusively to such land; or
(b) does not apply to property other than land.
6 Savings in regard to ss 10–12 and 59
Nothing in section 10 to 12 or 59—
(a) invalidates any disposition by will; or
(b) affects any interest validly created before the
commencement of this Act; or
[s 7]
Property Law Act 1974
Part 2 General rules affecting property
Current as at 30 April 2022 Page 19
Authorised by the Parliamentary Counsel
(c) affects the right to acquire an interest in land because of
taking possession; or
(d) affects the law relating to part performance; or
(e) affects a sale by the court.
Part 2 General rules affecting
property
7 Effect of repeal of Statute of Uses
(1) Interest in land which under the Statute of Uses could before
the commencement of this Act have been created as legal
interests shall after the commencement of this Act be capable
of being created as equitable interests.
(2) Despite subsection (1), an equitable interest in land shall, after
the commencement of this Act, only be capable of being
validly created in any case in which an equivalent equitable
interest in property real or personal could have been validly
created before such commencement.
(3) In a voluntary conveyance executed after the commencement
of this Act a resulting trust for the grantor shall not be implied
merely by reason that the property is not expressed to be
conveyed for the use or benefit of the grantee.
8 Lands lie in grant only
(1) All lands and all interests in land shall lie in grant and shall be
incapable of being conveyed by livery or livery and seisin, or
by feoffment, or by bargain and sale, or by lease and release,
and a conveyance of an interest in land may operate to pass
the possession or right to possession of land, without actual
entry, but subject to all prior rights to the land.
(2) The use of the word ‘grant’ is not necessary to convey land or
to create an interest in the land.
[s 9]
Property Law Act 1974
Part 2 General rules affecting property
Page 20 Current as at 30 April 2022
Authorised by the Parliamentary Counsel
9 Reservation of easements etc. in conveyances of land
(1) In a conveyance of land a reservation of any easement, right,
liberty, or privilege not exceeding in duration the estate
conveyed in the land, shall operate without any execution of
the conveyance by the grantee of the land out of which the
reservation is made, or any regrant by the grantee, so as to
create the easement, right, liberty or privilege, and so as to
vest the same in possession in the person (whether or not the
person be the grantor) for whose benefit the reservation was
made.
(2) This section applies only to reservations made after the
commencement of this Act.
10 Assurances of land to be in writing
(1) No assurance of land shall be valid to pass an interest at law
unless made by deed or in writing signed by the person
making such assurance.
(2) This section does not apply to—
(a) a disclaimer made under any law relating to bankruptcy
in force before or after the commencement of this Act,
or not required to be evidenced in writing; or
(b) a surrender by operation of law, including a surrender
which may, by law, be effective without writing; or
(c) a lease or tenancy or other assurance not required by law
to be made in writing; or
(d) a vesting order; or
(e) an assurance taking effect under any Act or
Commonwealth Act.
11 Instruments required to be in writing
(1) Subject to this Act with respect to the creation of interests in
land by parol—
[s 12]
Property Law Act 1974
Part 2 General rules affecting property
Current as at 30 April 2022 Page 21
Authorised by the Parliamentary Counsel
(a) no interest in land can be created or disposed of except
by writing signed by the person creating or conveying
the same, or by the person’s agent lawfully authorised in
writing, or by will, or by operation of law; and
(b) a declaration of trust respecting any land must be
manifested and proved by some writing signed by some
person who is able to declare such trust or by the
person’s will; and
(c) a disposition of an equitable interest or trust subsisting
at the time of the disposition, must be manifested and
proved by some writing signed by the person disposing
of the same, or by the person’s agent lawfully authorised
in writing, or by will.
(2) This section does not affect the creation or operation of
resulting, implied, or constructive trusts.
12 Creation of interests in land by parol
(1) All interests in land created by parol and not put in writing
and signed by the person so creating the same, or by the
person’s agent lawfully authorised in writing, shall have,
despite any consideration having been given for the same, the
force and effect of interests at will only.
(2) Nothing in this Act shall affect the creation by parol of a lease
taking effect in possession for a term not exceeding 3 years,
with or without a right for the lessee to extend the term for any
period which with the term would not exceed 3 years.
13 Persons taking who are not parties
(1) In respect of an assurance or other instrument executed after
the commencement of this Act, a person may take—
(a) an immediate or other interest in land; or
(b) the benefit of any condition, right of entry, covenant or
agreement over or respecting land;
[s 14]
Property Law Act 1974
Part 2 General rules affecting property
Page 22 Current as at 30 April 2022
Authorised by the Parliamentary Counsel
even though the person may not have executed the assurance
or other instrument, or may not be named as a party to the
assurance or other instrument, or may not have been identified
or in existence at the date of execution of the assurance or
other instrument.
(2) Such person may sue, and shall be entitled to all rights and
remedies in respect of the assurance or other instrument, as if
the person had been named as a party to and had executed the
assurance or other instrument.
14 Conveyances by a person to the person etc.
(1) In conveyances and leases made after 28 December 1867,
personal property, including chattels real, may be conveyed or
leased by a person to the person jointly with another person by
the like means by which it might be conveyed or leased by the
person to another person.
(2) In conveyances or leases made after the commencement of
this Act freehold land, or a thing in action, may be conveyed
or leased by a person to the person jointly with another
person, by the like means by which it might be conveyed or
leased by the person to another person, and may, in like
manner, be conveyed or leased by a husband to his wife, and
by a wife to her husband, alone or jointly with another person.
(3) After the commencement of this Act a person may convey or
lease land to or vest land in the person but may not convey to
or vest in the person an estate in fee simple absolute in such
land.
(4) Two or more persons (whether or not being trustees or
personal representatives) may convey or lease, and shall be
deemed always to have been capable of conveying or leasing,
any property vested in them to any 1 or more of themselves in
like manner as they could have conveyed or leased such
property to a third party.
(4A) However, if the persons in whose favour the conveyance or
lease is made are, because of any fiduciary relationship or
otherwise, precluded from validly carrying out the
[s 15]
Property Law Act 1974
Part 2 General rules affecting property
Current as at 30 April 2022 Page 23
Authorised by the Parliamentary Counsel
transaction, the conveyance or lease shall be liable to be set
aside.
(5) In subsection (4)—
or more of themselves includes all the persons by whom the
conveyance or lease is or has been made.
15 Rights of husband and wife
A husband and wife shall, for all purposes of acquisition of
any interest in property, under a disposition made or coming
into operation after the commencement of the Act, be treated
as 2 persons.
15A Rights of aliens
(1) An alien may take, give, buy or sell property as if the alien
were an Australian citizen.
(2) The application of succession laws to a person is not different
merely because the person is an alien.
(3) This section does not entitle an alien to any right as an
Australian citizen other than a right given by this section.
(4) In this section—
property means any interest in real, personal, movable or
immovable property.
16 Presumption that parties are of full age
The persons expressed to be parties to any conveyance shall,
until the contrary is proved, be presumed at the date of such
conveyance to be of full age or of such other lesser age as to
have capacity to give effect to the conveyance.
[s 17]
Property Law Act 1974
Part 2 General rules affecting property
Page 24 Current as at 30 April 2022
Authorised by the Parliamentary Counsel
17 Merger
An estate does not merge by operation of law only if the
beneficial interest in the estate would not be merged or
extinguished in equity.
18 Restrictions on operation of conditions of forfeiture
(1) Where there is a person entitled to income (including an
annuity or other periodical income) or any other property,
subject to a condition of forfeiture on alienation, whether
voluntary or involuntary, and whether with or without words
of futurity, then—
(a) unless the instrument containing the condition expressly
provides to the contrary, no alienation, whether by way
of charge or otherwise, of the income or other property,
made or occurring before the person becomes entitled to
receive payment of the income, or to call for a
conveyance or delivery of the other property, shall
operate to create forfeiture under the condition unless
the alienation is in operation at the time the person
becomes so entitled; and
(b) despite any stipulation to the contrary in the instrument
containing the condition no voluntary alienation made
by the person, with the sanction of the court, shall
operate to create forfeiture under the condition.
(2) This section applies where the condition of forfeiture is
contained in an instrument executed, made, or coming into
operation before or after the commencement of this Act, but
only in cases where such person becomes entitled to receive
payment of the income, or to call for an assurance or delivery
of the other property, or where the alienation with the sanction
of the court is made, after such commencement.
[s 19]
Property Law Act 1974
Part 3 Freehold estates
Current as at 30 April 2022 Page 25
Authorised by the Parliamentary Counsel
Part 3 Freehold estates
19 Freehold estates capable of creation
After the commencement of this Act the following estates of
freehold shall be capable of being created and, subject to this
Act, of subsisting in land—
(a) estate in fee simple;
(b) estate for life or lives.
20 Incidents of tenure on grant in fee simple
(1) All tenures created by the Crown upon any grant of an estate
in fee simple made after the commencement of this Act shall
be taken to be in free and common socage without any
incident of tenure for the benefit of the Crown.
(2) Where any quit rent issues to the Crown out of any land, or the
residue of any quit rent issues to the Crown out of any land in
respect of which quit rent has been apportioned or redeemed,
such land or residue is released from quit rent.
(3) In respect of property of any person dying intestate on or after
16 April 1968—
(a) escheat is abolished; and
(b) all such property, whether real or personal, shall, subject
to this section, be distributed in the manner and to the
person or persons provided by the Succession Act 1981,
but subject to the provisions (including part 4) of that
Act.
(4) Subject to any other Act, property of any corporation
dissolved after the commencement of this Act shall not
escheat, but the Crown shall be entitled to and take as bona
vacantia all such property, whether real or personal, as would
apart from this Act be liable to escheat or pass to the Crown as
bona vacantia.
[s 20]
Property Law Act 1974
Part 3 Freehold estates
Page 26 Current as at 30 April 2022
Authorised by the Parliamentary Counsel
(5) Despite this section, where the Crown, or it is made to appear
to the Minister that the Crown, has a right to any property, by
escheat or devolution or as bona vacantia, on the death
intestate of any person, whether the death occurred before or
after the passing of this Act, the Minister, upon application
being made for the waiver of that right, may by gazette notice
waive such right on such terms (if any), whether for the
payment of money or otherwise, in favour of any 1 or more of
the following persons, whether belonging to the same or to
different classes—
(a) any dependants, whether kindred or not, of the intestate;
(b) any other persons for whom the intestate might
reasonably have been expected to make provision;
(c) any persons to whom the State would, if the State’s title
had been duly proved by inquisition, have the power to
grant such property;
(d) any other persons having in the opinion of the Minister a
just claim to the grant of the property;
(e) the trustees of any person as mentioned in
paragraphs (a) to (d);
as to the Minister seems reasonable.
(6) Upon a waiver made under subsection (5), the right of the
State so waived, subject to subsection (10), shall vest in the
person or persons in favour of whom the waiver is made.
(7) For the purpose of giving effect to any waiver under
subsection (5) the Minister, by gazette notice or a further
gazette notice, may do all or any of the following things—
(a) appoint such person as the Minister considers suitable to
be administrator of the property of the person who has
died intestate (the deceased);
(b) appoint a person to execute any conveyance or transfer
or other document for the purpose of conveying or
transferring under the terms of the waiver to the person
or persons in whose favour the waiver is made the right
of the State so waived;
[s 20]
Property Law Act 1974
Part 3 Freehold estates
Current as at 30 April 2022 Page 27
Authorised by the Parliamentary Counsel
(c) give directions that the Minister considers necessary or
desirable to give effect to the waiver (including the
terms of the waiver) and the directions are to be given
effect.
(8) The person appointed under subsection (7)(a) to be
administrator may apply to the Supreme Court for a grant of
letters of administration of the property of the deceased and
such letters of administration may be granted accordingly.
(8A) For the purposes of the grant of the letters of administration
and the administration under the grant, the property in respect
of which the right of the State has been waived shall be
deemed to form part of the estate of the deceased to be
administered under the terms of the waiver for the benefit of
the person or persons in favour of whom the waiver is made.
(9) A waiver under subsection (5) shall have the effect of a grant
of the land or other property of whatever kind the subject of
the waiver or any part of the waiver, and in the case of land in
fee simple or for any less estate, to the administrator
appointed under this section or to any person or persons in
favour of whom the waiver is made.
(10) This section shall be subject to schedule 1 and all proceedings
by way of writ of inquisition or otherwise may be had under
that schedule.
(11) Despite this section and that because of the death intestate of
any person the State has a right to any property of that person
by escheat or devolution or as bona vacantia the public trustee
shall have and shall be deemed always to have had the same
power—
(a) to obtain from the court or otherwise under the Public
Curator Act 1915 or the Public Trustee Act 1978
authority to administer the estate of such person; and
(b) to deal in due course of administration with the estate of
such person;
as the public trustee has in a case where the State has no such
right.
(12) In this section—
[s 21]
Property Law Act 1974
Part 3 Freehold estates
Page 28 Current as at 30 April 2022
Authorised by the Parliamentary Counsel
intestate has the meaning given by the Succession Act 1981,
section 5.
21 Alienation in fee simple
Land held of the Crown in fee simple may be assured in fee
simple without licence and without fine and the person taking
under the assurance shall hold the land of the Crown in the
same manner as the land was held before the assurance took
effect.
22 Abolition of estates tail
(1) In any instrument coming into operation after the
commencement of this Act a limitation which, if this section
had not been enacted, would have created an estate tail (legal
or equitable) in any land in favour of any person shall be
deemed to create an estate in fee simple (legal or equitable as
the case may be) in that land in favour of that person to the
exclusion of all estates or interests limited to take effect after
the determination or in defeasance of any such estate tail and
to the exclusion of all estates or interests in reversion on any
such estate tail.
(2) Where at or after the commencement of this Act any person is
entitled, or would, but for subsection (1), be entitled, to an
estate tail (legal or equitable) and whether in possession,
reversion, or remainder, in any land, that person, subject to
subsection (2A), shall be deemed to be entitled to an estate in
fee simple (legal or equitable, as the case may be) in that land,
to the exclusion of all estates or interests limited to take effect
after the determination or in defeasance of the estate tail and
to the exclusion of all estates or interests in reversion on the
estate tail.
(2A) Where any such person is an infant and such land for any
estate or interest would pass to any other person in the event
of the death of the infant before attaining full age and without
issue, then in such case, the infant shall be deemed to take an
estate in fee simple with an executory limitation over of such
[s 23]
Property Law Act 1974
Part 3 Freehold estates
Current as at 30 April 2022 Page 29
Authorised by the Parliamentary Counsel
estate or interest on the happening of such event in favour of
such other person.
(3) In this section—
estate tail includes that estate in fee into which an estate tail is
converted where the issue in tail are barred, but persons
claiming estates by way of remainder or otherwise are not
barred, also an estate in fee voidable or determinable by the
entry of the issue in tail, but does not include the estate of a
tenant in tail after possibility of issue extinct.
(4) The registrar is authorised, on a request in the approved form,
to make the recordings in the register necessary to give effect
to this section.
23 Abolition of quasi-entails
In any instrument coming into operation after the
commencement of this Act a limitation which, if this section
had not been passed, would have created in favour of any
person a quasi-entail (legal or equitable) in respect of any
estate for life or lives of another or others shall be deemed to
create in favour of that person an estate (legal or equitable as
the case may be) for the life or lives of that other.
24 Liability of life tenant for voluntary waste
(1) A tenant for life or lives shall not commit voluntary waste.
(2) Nothing in subsection (1) applies to any estate or tenancy
without impeachment of waste, or affects any licence or other
right to commit waste.
(3) A tenant who infringes subsection (1) is liable in damages to
the tenant’s person in remainder or reversioner, but this
section imposes no criminal liability.
25 Equitable waste
An estate for life without impeachment of waste shall not
confer, or be deemed to have conferred, upon the tenant for
[s 26]
Property Law Act 1974
Part 3 Freehold estates
Page 30 Current as at 30 April 2022
Authorised by the Parliamentary Counsel
life any legal right to commit waste of the description known
as equitable waste, unless an intention to confer such right
expressly appears by the instrument creating such estate.
26 Recovery of property on determination of a life or lives
(1) Every person having any estate or interest in any property
determinable upon a life or lives who, after the determination
of such life or lives without the express consent of the person
next immediately entitled upon or after such determination,
holds over or continues in possession of such property estate
or interest, or of the rents, profits or income of the property,
shall be liable in damages or to an account for such rents and
profits, or both, to the person entitled to such property, estate,
interest, rents, profits or income after the determination of
such life or lives.
(2) Where a reversion, remainder, or other estate or interest in any
property is expectant upon the determination of a life or lives,
the reversioner, person in remainder, or other person entitled
to such reversion, remainder, or estate or interest may in any
proceeding claiming relief on the basis that such life or lives
has or have determined, adduce evidence of belief that such
life or lives has or have been determined and of the grounds of
such belief, and the court may in its discretion order that,
unless the person or persons on whose life or lives such
reversion, remainder, or other estate or interest is expectant is
or are produced in court or is or are otherwise shown to be
living, such person or persons shall for the purposes of such
proceedings be accounted as dead, and relief may be given
accordingly.
(3) If in such proceedings a person in respect of whom it is
material that the person be shown to be living or not is shown
to have remained beyond Australia, or otherwise absented
himself or herself from the place in which if in Australia the
person might be expected to be found, for the space of 7 years
or upwards, such person, if not proved to be living, shall for
the purposes of such proceedings be accounted as dead, and
relief may be given accordingly.
[s 27]
Property Law Act 1974
Part 3 Freehold estates
Current as at 30 April 2022 Page 31
Authorised by the Parliamentary Counsel
(4) If in any such proceedings judgment has been given against
the plaintiff, and afterwards such plaintiff brings subsequent
proceedings upon the basis that such life has determined, the
court may make an order staying such proceedings
permanently or until further order or for such time as may be
thought fit.
(5) If in consequence of the judgment given in any such
proceedings, any person having any estate or interest in any
property determinable on such life or lives has been evicted
from or deprived of any property or any estate or interest in
the property, and afterwards it appears that such person or
persons on whose life or lives such estate or interest depends
is or are living or was or were living at the time of such
eviction or deprivation, the court may give such relief as is
appropriate in the circumstances.
27 Penalty for holding over by life tenant
Where any tenant for life or lives or person who is in or comes
into possession of any land by, from or under or by collusion
with such tenant, wilfully holds over any land after—
(a) termination of the tenancy; and
(b) after demand has been made and notice in writing given
for the delivery of possession of the land by the person
to whom the remainder or reversion of such land
belongs or the person’s agent lawfully authorised;
then, the person so holding over shall, for and during the time
the person so holds over or keeps the person entitled out of
possession of the land, be liable to the person kept out of
possession at the rate of double the yearly value of the land so
detained for as long as the land shall have been so detained, to
be recovered by action in a court of competent jurisdiction.
28 Abolition of the rule in Shelley’s Case
Where by any instrument coming into operation after the
commencement of this Act an interest in any property is
[s 29]
Property Law Act 1974
Part 4 Future interests
Page 32 Current as at 30 April 2022
Authorised by the Parliamentary Counsel
expressed to be given to the heir or heirs or issue or any
particular heir or any class of the heirs or issue of any person
in words which, but for this section would, under the rule of
law known as the rule in Shelley’s Case, and independently of
section 22, have operated to give to that person an interest in
fee simple or an entailed interest, such words shall operate as
words of purchase and not of limitation, and shall be
construed and have effect accordingly.
29 Words of limitation
(1) A disposition of freehold land to any person without words of
limitation, or any equivalent expression, shall pass to the
disponee the whole interest which the disponor had power to
dispose of in such land, unless a contrary intention appears in
the disposition.
(2) A disposition of freehold land to a corporation sole by the
disponor’s corporate designation without the word
‘successors’ shall pass to the corporation the whole interest
which the disponor had power to dispose of in such land,
unless a contrary intention appears in the disposition.
(3) This section applies to dispositions effected after the
commencement of this Act.
Part 4 Future interests
30 Creation of future interests in land
(1) A future interest in land validly created after the
commencement of this Act shall take effect as an equitable
and not a legal interest.
(2) An interest in remainder created after the commencement of
this Act must not be registered in the freehold land register.
(2A) Subsection (2) has effect despite anything in the Land Title
Act 1994.
(3) This section shall not apply to any future interest—
[s 31]
Property Law Act 1974
Part 4 Future interests
Current as at 30 April 2022 Page 33
Authorised by the Parliamentary Counsel
(a) created before the commencement of this Act whether
that interest arose or arises before or after the
commencement of this Act; or
(b) created or arising because of section 22.
(4) In this section—
future interest means—
(a) a legal contingent remainder; or
(b) a legal executory interest.
31 Power to dispose of all rights and interests in land
(1) All rights and interests in land may be disposed of
including—
(a) a contingent, executory or future interest in any land or a
possibility coupled with an interest in any land, whether
or not the object of the gift or limitation of such interest
or possibility be ascertained; and
(b) a right of entry, into or upon land whether immediate or
future, and whether vested or contingent.
(2) All rights of entry affecting a legal estate which are
exercisable on condition broken or for any other reason may,
after the commencement of this Act, be made exercisable by
any person and the persons deriving title under that person,
but, in regard to an estate in fee simple (not being a rent
charge held for a legal estate) only within the period
authorised by the rule relating to perpetuities.
32 Restriction on executory limitations
(1) Where there is a person entitled to—
(a) land, or an equitable interest in land, for an estate in fee
simple or for any less estate or interest; or
(b) any other property, or an interest in any other property;
[s 33]
Property Law Act 1974
Part 5 Concurrent interest—co-ownership
Page 34 Current as at 30 April 2022
Authorised by the Parliamentary Counsel
with an executory limitation over on default or failure of all or
any of the person’s issue, whether within or at any specified
period of time or not, that executory limitation shall be or
become void and incapable of taking effect if, and as soon as,
there is living any issue who has attained full age and capacity
of the class on default or failure of which the limitation over
was to take effect.
(2) This section applies where the executory limitation is
contained in an instrument coming into operation after the
commencement of this Act.
Part 5 Concurrent
interest—co-ownership
Division 1 General rules
33 Forms of co-ownership
(1) Any property and any interest, whether legal or equitable, in
any property may be held by 2 or more persons—
(a) as joint tenants; or
(b) as tenants in common.
(2) Any 2 or more persons acquiring land after the
commencement of this Act in circumstances in which, but for
the passing of this Act, they would have acquired the land as
coparceners shall acquire such land as tenants in common and
not as coparceners.
34 Power for corporations to hold property as joint tenants
(1) A body corporate shall be capable of acquiring and holding
any property in joint tenancy in the same manner as if it were
an individual, and where a body corporate and an individual
or 2 or more bodies corporate become entitled to any property
under circumstances or because of any instrument which
[s 35]
Property Law Act 1974
Part 5 Concurrent interest—co-ownership
Current as at 30 April 2022 Page 35
Authorised by the Parliamentary Counsel
would, if the body corporate had been an individual, have
created a joint tenancy they shall be entitled to the property as
joint tenants.
(1A) However, the acquisition and holding of property by a body
corporate in joint tenancy shall be subject to the like
conditions and restrictions as attach to the acquisition and
holding of property by a body corporate in severalty.
(2) Where a body corporate is a joint tenant of any property, then
on its dissolution the property shall devolve on the other joint
tenant.
(3) This section shall apply in all cases of the acquisition or
holding of property after the commencement of this Act.
35 Construction of dispositions of property to 2 or more
persons together
(1) A disposition of the beneficial interest in any property,
whether with or without the legal interest, to or for 2 or more
persons together beneficially shall be construed as made to or
for them as tenants in common, and not as joint tenants.
(2) This section does not apply—
(a) to persons who by the terms or by the tenor of the
disposition are executors, administrators, trustees, or
mortgagees, nor in any case where the disposition
provides that persons are to take as joint tenants or
tenants by entireties; and
(b) to a disposition for partnership purposes in favour of
persons carrying on business in partnership.
(3) Subject to the provisions of the Partnership Act 1891, a
disposition for partnership purposes of an interest in any
property in favour of persons carrying on business in
partnership shall, unless a contrary intention appears, be
construed as—
(a) a disposition (if any) of the legal interest to those
persons as joint tenants; and
[s 36]
Property Law Act 1974
Part 5 Concurrent interest—co-ownership
Page 36 Current as at 30 April 2022
Authorised by the Parliamentary Counsel
(b) a disposition (if any) of the beneficial interest to those
persons as tenants in common.
(4) This section applies to any disposition made after the
commencement of this Act.
(5) In this section—
disposition includes a disposition which is wholly or partly
oral.
36 Tenants in common of equitable estate acquiring the
legal estate
Where 2 or more persons entitled beneficially as tenants in
common to an equitable estate in any property are or become
entitled in their own right, whether as joint tenants or tenants
in common, to the legal estate in such property equal to and
coextensive with such equitable estate both the legal and
equitable estates shall be held by them as tenants in common
unless such persons otherwise agree.
Division 2 Statutory trusts, sale and division
37 Definitions for div 2
In this division—
co-owner has a corresponding meaning and includes an
encumbrancee of the interest of a joint tenant or tenant in
common.
co-ownership means ownership whether at law or in equity in
possession by 2 or more persons as joint tenants or as tenants
in common.
37A Property held on statutory trust for sale
Property held upon the statutory trust for sale shall be held
upon trust to sell the same and to stand possessed of the net
proceeds of sale, after payment of costs and expenses, and of
[s 37B]
Property Law Act 1974
Part 5 Concurrent interest—co-ownership
Current as at 30 April 2022 Page 37
Authorised by the Parliamentary Counsel
the net income until sale after payment of costs, expenses, and
outgoings, and in the case of land of rates, taxes, costs of
insurance, repairs properly payable out of income, and other
outgoings upon such trusts, and subject to such powers and
provisions as may be requisite for giving effect to the rights of
the co-owners.
37B Property held on statutory trust for partition
Property held upon the statutory trust for partition shall be
held upon trust—
(a) with the consent of the encumbrancee of the entirety (if
any) to partition the property and to provide (by way of
mortgage or otherwise) for the payment of any equality
money; and
(b) upon such partition being made to give effect to the
partition by assuring the property so partitioned in
severalty (subject or not to any mortgage created for
raising equality money) to the persons entitled under the
partition;
but a purchaser shall not be concerned to see or inquire
whether any such consent has been given.
38 Statutory trusts for sale or partition of property held in
co-ownership
(1) Where any property (other than chattels personal) is held in
co-ownership the court may, on the application of any 1 or
more of the co-owners, and despite any other Act, appoint
trustees of the property and vest the same in such trustees,
subject to encumbrances affecting the entirety, but free from
encumbrances affecting any undivided shares, to be held by
them on the statutory trust for sale or on the statutory trust for
partition.
(2) Where the entirety of the property is vested in trustees or
personal representatives, those trustees or personal
representatives shall, unless the court otherwise determines,
be appointed trustees on either of such statutory trusts, but
[s 38]
Property Law Act 1974
Part 5 Concurrent interest—co-ownership
Page 38 Current as at 30 April 2022
Authorised by the Parliamentary Counsel
subject, in the case of personal representatives, to, their rights
and powers for the purposes of administration.
(3) Where the entirety of the property is vested at law in
co-owners the court may appoint a trustee corporation either
alone or with 1 or 2 individuals (whether or not being
co-owners), or 2 or more individuals, not exceeding 4
(whether or not including 1 or more of the co-owners), to be
trustees of the property on either of such statutory trusts.
(3A) On such appointment under subsection (3), the property shall,
subject to the Trusts Act 1973, section 90, vest in the trustees.
(4) If, on an application for the appointment of trustees on the
statutory trust for sale, any of the co-owners satisfies the court
that partition of the property would be more beneficial for the
co-owners interested to the extent of upwards of a moiety in
value than sale, the court may, with the consent of the
encumbrancee of the entirety (if any), appoint trustees of the
property on the statutory trust for partition, or as to part of the
property on the statutory trust for sale, and as to part on the
statutory trust for partition, but a purchaser shall not be
concerned to see or inquire whether any such consent has
been given.
(5) When such trustees for partition have prepared a scheme of
partition they shall serve notice in writing of the scheme on all
the co-owners of full age, and any of such co-owners
dissatisfied with the scheme may, within 1 month after service
upon the co-owner of such notice, apply to the court for a
variation of the same.
(5AA) If any of the co-owners is a person for whom an administrator
has been appointed under the Guardianship and
Administration Act 2000 for the property, the notice must be
served on the administrator.
(5A) If any of the co-owners is an incapacitated person within the
meaning of the Public Trustee Act 1978, the notice must be
served on the person charged by law with the management
and care of the incapacitated person’s property, or if there is
no person charged, on the public trustee.
[s 38]
Property Law Act 1974
Part 5 Concurrent interest—co-ownership
Current as at 30 April 2022 Page 39
Authorised by the Parliamentary Counsel
(5B) Where any of the co-owners is a person not of full age or a
person who cannot be found or ascertained, or as to whom it is
uncertain whether the person is living or dead, the trustees
may act on behalf of the person, and retain land or other
property to represent the person’s share.
(6) In relation to the sale or partition of property held in
co-ownership, the court may alter such statutory trusts, and
the trusts so altered shall be deemed to be the statutory trust in
relation to that property.
(6A) Without limiting the power of the court so to alter the
statutory trusts, the court shall, unless for good reason the
court otherwise directs, so alter the statutory trusts as to
provide in the case of the statutory trust for partition that—
(a) any encumbrance which, prior to the appointment of the
trustees, affected any undivided share shall continue to
extend and apply to any such share; and
(b) any mortgage created for raising equality money shall
rank in priority after any such encumbrance.
(7) Where property becomes subject to such statutory trust for
sale—
(a) in the case of joint tenancy—a sale under the trust shall
not of itself effect a severance of that tenancy; and
(b) in any case—land shall be deemed to be converted upon
the appointment of trustees for sale unless the court
otherwise directs.
(8) This section applies to property held in co-ownership at the
commencement of this Act and to property which becomes so
held after such commencement.
(9) This section does not apply to property in respect of which a
subsisting contract for sale (whether made under an order in a
suit for partition, or by or on behalf of all the co-owners) is in
force at the commencement of this Act, if the contract is
completed in due course, nor to land in respect of which a suit
for partition is pending at such commencement if a decree for
a partition or sale is subsequently made in such suit.
[s 39]
Property Law Act 1974
Part 5 Concurrent interest—co-ownership
Page 40 Current as at 30 April 2022
Authorised by the Parliamentary Counsel
39 Trustee on statutory trusts for sale or partition to consult
persons interested
(1) So far as practicable trustees on the statutory trust for sale, or
on the statutory trust for partition, shall—
(a) consult the persons of full age and not subject to
disability for the time being beneficially entitled to
income of the property until sale or partition, and the
public trustee or other person charged by law with the
management and care of the property of any person for
whom an administrator has been appointed under the
Guardianship and Administration Act 2000 for the
property, or protected person, for the time being
beneficially entitled to income of the property until sale
or partition; and
(b) so far as consistent with the general interest of the trust,
give effect to the wishes of the persons so consulted if
they are interested in respect of more than half of the
income of the property until sale or partition or, in case
of dispute, of such of the persons so consulted as are in
agreement and are interested in respect of more than
half of the income of the property until sale or partition.
(2) A purchaser shall not be concerned to see that this section has
been complied with.
40 Right of co-owners to bid at sale under statutory power of
sale
(1) On any sale under a statutory trust for sale the court may
allow any of the co-owners of the property to purchase
whether at auction or otherwise on such terms as to
non-payment of deposit, or as to setting off or accounting for
the purchase money or any part of the purchase money instead
of paying the same, or as to any other matters as to the court
seems reasonable.
(2) A co-owner, with a right to purchase shall not, without the
leave of the court, be entitled to act as trustee in connection
with the sale.
[s 41]
Property Law Act 1974
Part 5 Concurrent interest—co-ownership
Current as at 30 April 2022 Page 41
Authorised by the Parliamentary Counsel
41 Sale or division of chattels
(1) Where any chattel or chattels belong to 2 or more persons
jointly or in undivided shares any such person or persons may
apply to the court for an order under this section.
(2) On any application under this section the court may—
(a) order that the chattels in respect of which the application
is made, or any 1 or more of them, be sold and the
proceeds of sale distributed among the persons entitled
to them under their interests in the chattel or chattels; or
(b) order that the chattels or some of them in respect of
which the application is made be divided among the
persons entitled to them; or
(c) order that 1 or more of such chattels be sold and the
others be divided; or
(d) make such other orders and give any consequential
directions as it thinks fit.
42 Powers of the court
In proceedings under section 38 or 41 the court may on the
application of any party to the proceedings or of its own
motion—
(a) determine any question of fact arising (including
questions of title) in the proceedings or give directions
as to how such questions shall be determined; and
(b) direct that such inquiries be made and such accounts be
taken as may in the circumstances be necessary for the
purpose of ascertaining and adjusting the rights of the
parties.
43 Liability of co-owner to account
(1) A co-owner shall, in respect of the receipt by the co-owner of
more than the co-owner’s just or proportionate share
according to the co-owner’s interest in the property, be liable
to account to any other co-owner of the property.
[s 44]
Property Law Act 1974
Part 6 Deeds, covenants, instruments and contracts
Page 42 Current as at 30 April 2022
Authorised by the Parliamentary Counsel
(2) In this section—
co-owner means a joint tenant, whether in law or in equity, or
a tenant in common, whether at law or in equity, of any
property.
Part 6 Deeds, covenants, instruments
and contracts
Division 1 Deeds and covenants
Subdivision 1 Preliminary
44 Definitions for division
In this division—
accepted method, for electronically signing a document,
means a method that—
(a) identifies the signatory for the document and the
signatory’s intention in relation to the contents of the
document; and
(b) is either—
(i) as reliable as appropriate for the purposes for
which the document is made or signed, having
regard to all the circumstances, including any
relevant agreement; or
(ii) proven in fact to have fulfilled the functions
described in paragraph (a), by itself or together
with further evidence; and
(c) is consented to by each other signatory to the document.
consent includes consent that can reasonably be inferred from
the conduct of the person concerned, but does not include
[s 44]
Property Law Act 1974
Part 6 Deeds, covenants, instruments and contracts
Current as at 30 April 2022 Page 43
Authorised by the Parliamentary Counsel
consent given subject to conditions unless the conditions are
complied with.
copy, of an electronic document, means a reproduction of the
document in either electronic or hard copy form.
counterpart, for a document, see section 45.
document means any record of information however recorded
and includes—
(a) anything on which there is writing; and
(b) anything on which there are marks, symbols or
perforations having a meaning for persons qualified to
interpret them; and
(c) anything from which sounds, images or writings can be
reproduced with or without the aid of anything else; and
(d) any record of information that exists in digital form and
is capable of being reproduced, transmitted, stored or
duplicated by electronic means.
electronically sign, a document, means sign the document
using an accepted method.
electronic document means—
(a) a record of information reproduced from a thing
mentioned in definition document, paragraph (c); or
(b) a document of a type mentioned in definition document,
paragraph (d).
information includes information in the form of data, text or
images.
physical document means a document of a type mentioned in
definition document, paragraph (a) or (b).
seal, of a corporation, includes a common seal of the
corporation.
secretary, of a corporation, means the clerk, secretary or other
permanent officer of the corporation.
sign, a document, means—
[s 45]
Property Law Act 1974
Part 6 Deeds, covenants, instruments and contracts
Page 44 Current as at 30 April 2022
Authorised by the Parliamentary Counsel
(a) for a physical document—physically sign the document;
or
(b) for an electronic document—electronically sign the
document.
45 What is a counterpart for a document
(1) A counterpart, for a document, is a copy of the document that
includes the entire contents of the document.
(2) Despite subsection (1), a counterpart need not include—
(a) the signatures of the other persons who are to sign the
document; or
(b) if a common seal is fixed to the document—the seal.
46 Division does not apply to enduring documents
This division does not apply to an enduring document under
the Powers of Attorney Act 1998.
46A Application of division to powers of attorney
(1) Despite anything in this division, each of the following
documents made by an individual must be a physical
document that is signed by the individual in the presence of a
witness—
(a) a general power of attorney under the Powers of
Attorney Act 1998;
(b) a power of attorney given under a deed.
(2) However, a document containing a power of attorney given by
an individual under a deed may be an electronic document
that is electronically signed by the individual if—
(a) the document is part of a commercial or other
arms-length transaction; and
(b) the power of attorney is given for the purpose of the
commercial or other arms-length transaction.
[s 46B]
Property Law Act 1974
Part 6 Deeds, covenants, instruments and contracts
Current as at 30 April 2022 Page 45
Authorised by the Parliamentary Counsel
Example of a document that may be electronically signed under
subsection (2)—
A document containing a power of attorney given by an individual
under a deed as security for a proprietary interest of another party to the
document or the performance of an obligation owed by the individual.
(3) To remove any doubt, it is declared that—
(a) subsection (2) applies to a document even if the
document is executed at a different time from, and is
separate to, other documents that form part of the
transaction; and
(b) a power of attorney given by an individual under a deed
under subsection (2) may be signed under subsection (2)
whether or not in the presence of a witness.
(4) This section applies subject to section 46G.
(5) In this section—
individual includes an individual in the individual’s capacity
as a sole trader.
46B Execution of documents under other Acts
This division does not affect the way in which documents are
validly executed under the Land Act 1994 or the Land Title
Act 1994.
Subdivision 2 General rules
46C How deed is made generally
(1) A document takes effect as a deed if the document—
(a) is in writing; and
(b) contains a clear statement that the document is a deed;
and
(c) is executed under this division; and
(d) is delivered in accordance with section 47.
[s 46D]
Property Law Act 1974
Part 6 Deeds, covenants, instruments and contracts
Page 46 Current as at 30 April 2022
Authorised by the Parliamentary Counsel
(2) A document takes effect as a deed under subsection (1) even
if—
(a) it is not written on paper or parchment; or
(b) it is not an indenture or stated to be an indenture; or
(c) it is not sealed or stated to be sealed.
46D Deed may be in form of electronic document and
electronically signed
A document that is to have effect as a deed may be in the form
of an electronic document and may be electronically signed.
46E Execution by individual
(1) An individual may execute a document that is to have effect as
a deed by signing the document.
(2) An individual may sign a document under subsection (1)
whether or not in the presence of a witness.
46F Execution by corporation
(1) Subject to subsection (2A), a corporation may execute a
document that is to have effect as a deed, without using a seal,
if the document is signed by—
(a) 2 directors of the corporation; or
(b) 1 director and 1 secretary of the corporation; or
(c) for a proprietary company that has a sole director—that
director, if—
(i) the director is also the sole company secretary; or
(ii) the company does not have a company secretary;
or
(d) a lawfully authorised agent or attorney of the
corporation, whether or not the agent or attorney is
appointed under seal.
[s 46F]
Property Law Act 1974
Part 6 Deeds, covenants, instruments and contracts
Current as at 30 April 2022 Page 47
Authorised by the Parliamentary Counsel
(2) Subject to subsection (2A), a corporation with a common seal
may execute a document that is to have effect as a deed if the
seal is fixed to the document and the fixing of the seal is
witnessed by—
(a) 2 directors of the corporation; or
(b) 1 director and 1 secretary of the corporation; or
(c) for a proprietary company that has a sole director—that
director, if—
(i) the director is also the sole company secretary; or
(ii) the company does not have a company secretary.
(2A) A corporation sole or statutory corporation may execute a
document that is to have effect as a deed, without using a seal,
if the document is signed by a person, or in a way, authorised
by the Act or another document under which the corporation
is established, incorporated or registered.
(3) For subsection (2), or a corporation sole or statutory
corporation if a seal is used, the fixing of a seal to a document
is taken to have been witnessed by a person if—
(a) the person observes the fixing of the seal by audio visual
link; and
(b) the person signs the document; and
(c) the document includes a statement that the person
observed the fixing of the seal by audio visual link.
(5) A corporation that is not incorporated under an Australian law
may execute a document that is to have effect as a deed if the
document is signed by a person, or in a way, authorised by the
law of the place in which the corporation is incorporated.
(6) A document that is to have effect as a deed may be signed
under this section whether or not in the presence of a witness.
(7) If a person signs a document that is to have effect as a deed for
a corporation as a lawfully authorised agent or attorney for the
corporation, the person must—
[s 46G]
Property Law Act 1974
Part 6 Deeds, covenants, instruments and contracts
Page 48 Current as at 30 April 2022
Authorised by the Parliamentary Counsel
(a) sign the document in a way that indicates the person is
signing as a lawfully authorised agent or attorney; and
(b) if the person is an individual—sign the document under
section 46E; and
(c) if the person is a corporation—sign the document under
this section.
(8) This section does not limit the ways in which a document that
is to have effect as a deed for a corporation may be executed
by the corporation.
(9) In this section—
attorney, for a corporation, means a person acting under the
authority of a power of attorney given by the corporation
under a deed, a general power of attorney under the Powers of
Attorney Act 1998, or another law.
audio visual link means facilities that enable reasonably
contemporaneous and continuous audio and visual
communication between persons at different places and
includes videoconferencing.
statutory corporation means an entity established,
incorporated or registered under an Act of the Commonwealth
or a State, that is not a corporation registered under the
Corporations Act.
46G Execution by partnership or unincorporated association
(1) An individual may execute a document that is to have effect as
a deed on behalf of a partnership or unincorporated
association by signing the document.
(2) An individual may sign a document under subsection (1)
whether or not in the presence of a witness.
(3) If an individual signs a document under subsection (1), the
individual must sign the document in a way that indicates the
person is executing the document on behalf of the partnership
or unincorporated association.
[s 46GA]
Property Law Act 1974
Part 6 Deeds, covenants, instruments and contracts
Current as at 30 April 2022 Page 49
Authorised by the Parliamentary Counsel
(4) A reference in subsection (1) to a document includes a
document containing a power of attorney for the partnership
or unincorporated association.
(5) This section does not limit or otherwise affect another law or
instrument that requires or permits a document executed on
behalf of a partnership or unincorporated association to be
executed in a particular way.
Example—
This section does not affect an instrument that requires or permits a
document executed on behalf of a partnership to be executed by a stated
number of partners.
46GA Execution by the State
(1) A person who is authorised to execute a document that is to
have effect as a deed for the State may execute the document
by signing the document.
(2) The person may sign the document under subsection (1)
without using a seal and whether or not in the presence of a
witness.
(3) If a seal is used to execute a document that is to have effect as
a deed for the State, the fixing of the seal to the document is
taken to have been witnessed by a person who is authorised to
witness the fixing of the seal if—
(a) the person observes the fixing of the seal by audio visual
link; and
(b) the person signs the document; and
(c) the document includes a statement that the person
observed the fixing of the seal by audio visual link.
(4) This section is subject to section 46F(2A).
(5) This section does not limit the State’s powers or legal capacity
under another law.
(6) In this section—
State includes a public sector unit and any other entity that
represents the State.
[s 46H]
Property Law Act 1974
Part 6 Deeds, covenants, instruments and contracts
Page 50 Current as at 30 April 2022
Authorised by the Parliamentary Counsel
46H Signing counterpart or true copy
(1) A document that is to have effect as a deed for a person may
be signed by or for the person by signing a counterpart or true
copy of the document.
(2) For subsection (1), if the counterpart or true copy is
electronically signed by a person, the counterpart or true copy
need not include any material included in the document about
the method used for electronically signing the document.
(3) In this section—
person includes a partnership, an unincorporated association
and the State.
47 Delivery of deeds
(1) After the commencement of this Act, execution of an
instrument—
(a) in the form of a deed; or
(b) in another form under this subdivision;
shall not of itself import delivery, nor shall delivery be
presumed from the fact of such execution only, unless it
appears that execution of the document was intended to
constitute delivery of the document.
(2) Subject to subsection (1), delivery may be inferred from any
fact or circumstance, including words or conduct, indicative
of delivery.
(3) In this section—
delivery means the intention to be legally bound either
immediately or subject to fulfilment of a condition.
48 Construction of expressions used in deeds and other
instruments
(1) In all deeds, contracts, wills, orders and other instruments
executed, made or coming into operation after the
[s 49]
Property Law Act 1974
Part 6 Deeds, covenants, instruments and contracts
Current as at 30 April 2022 Page 51
Authorised by the Parliamentary Counsel
commencement of this Act, unless the context otherwise
requires—
(a) month means calendar month; and
(b) person includes an individual and a corporation; and
(c) words indicating a gender include each other gender;
and
(d) words in the singular include the plural and words in the
plural include the singular.
(2) A covenant, power or other provision implied in a deed or
other instrument because of this or any other Act shall be
construed in accordance with subsection (1).
49 Implied covenants may be negatived
(1) Subject to this Act, a covenant, power or other provision
implied under this or any other Act shall have the same force
and effect, and may be enforced in the same manner, as if it
had been set out at length in the instrument in which it is
implied.
(2) Any such covenant or power may, unless otherwise provided
in this or such other Act, be negatived, varied, or extended
by—
(a) an express declaration in the instrument in which it is
implied; or
(b) another instrument.
(3) Any such covenant or power so varied or extended shall, so
far as may be, operate in the like manner and with all the like
incidents, effects and consequences as if such variations or
extensions were implied under the Act.
50 Covenants and agreements entered into by a person with
himself or herself and another or others
(1) Any covenant, whether express or implied, or agreement
entered into by a person with the person and 1 or more other
[s 51]
Property Law Act 1974
Part 6 Deeds, covenants, instruments and contracts
Page 52 Current as at 30 April 2022
Authorised by the Parliamentary Counsel
persons shall be construed and be capable of being enforced in
like manner as if the covenant or agreement had been entered
into with the other person or persons alone.
(2) This section applies to covenants or agreements entered into
before or after commencement of this Act, and to covenants
implied by statute in the case of a person who conveys or is
expressed to convey to the person and 1 or more other
persons, but without prejudice to any order of the court made
before such commencement.
51 Receipt in instrument sufficient
(1) A receipt for consideration money or securities in the body of
a deed or other instrument shall be a sufficient discharge for
the same to the person paying or delivering the same without
any further receipt for the same being endorsed on the deed or
instrument.
(2) This section applies only to deeds or instruments executed
after the commencement of this Act.
52 Receipt in instrument or endorsed evidence
(1) A receipt for consideration money or other consideration in
the body of a deed or instrument or endorsed on the deed or
instrument shall in favour of a subsequent purchaser not
having notice that the money or other consideration
acknowledged to be received was not in fact paid or given
wholly or in part be sufficient evidence of the payment or
giving of the whole amount of the money or other
consideration.
(2) This section applies to deeds or instruments executed or
endorsements made before or after the commencement of this
Act.
53 Benefit and burden of covenants relating to land
(1) A covenant relating to any land of the covenantee shall be
deemed to be made with the covenantee and the covenantee’s
[s 53A]
Property Law Act 1974
Part 6 Deeds, covenants, instruments and contracts
Current as at 30 April 2022 Page 53
Authorised by the Parliamentary Counsel
successors in title and the persons deriving title under the
covenantee or the covenantee’s successors in title, and shall
have effect as if such successors and other persons were
expressed.
(2) A covenant relating to any land of a covenantor or capable of
being bound by the covenantor, shall, unless a contrary
intention is expressed, be deemed to be made by the
covenantor on behalf of the covenantor, the covenantor’s
successors in title and the persons deriving title under the
covenantor or the covenantor’s successors in title, and, shall
have effect as if such successors and other persons were
expressed.
(2A) Subsection (2) extends to a covenant to do some act relating to
the land, even though the subject matter may not be in
existence when the covenant is made.
(3) For the purposes of this section in connection with covenants
restrictive of the user of land—
successors in title shall be deemed to include the owners and
occupiers for the time being of such land.
(4) This section applies only to covenants made after the
commencement of this Act, but shall take effect subject, in the
case of registered land, to the Land Title Act 1994.
53A Deposit of deed in registry
(1) This section applies to a deed made under this part that is
proposed to be deposited in a registry—
(a) in support of another document lodged or deposited in
the registry; or
(b) for registration, enrolment or recording under
section 241(1).
(2) If the deed is made in counterparts, each counterpart must be
deposited in the registry for the purpose.
(3) If the deed or a counterpart of the deed is in the form of an
electronic document, a printed copy of the deed or counterpart
[s 53B]
Property Law Act 1974
Part 6 Deeds, covenants, instruments and contracts
Page 54 Current as at 30 April 2022
Authorised by the Parliamentary Counsel
certified under subsection (4) must be deposited in the registry
for the purpose.
(4) For subsection (3), the printed copy must be certified as a true
copy of the original deed or counterpart—
(a) on the last page of the printed copy; and
(b) by 1 of the following persons—
(i) 1 of the signatories;
(ii) a lawyer;
(iii) a justice;
(iv) a commissioner for declarations;
(v) a notary public;
(vi) a trustee company under the Trustee Companies
Act 1968;
(vii) a stockbroker.
(5) In this section—
registry means—
(a) the land registry; or
(b) the water allocations register under the Water Act 2000.
53B Protection for third parties
(1) A person may assume that a document has been duly executed
by a corporation if—
(a) the document appears to have been signed under
section 46F(1); or
(b) both of the following apply—
(i) the common seal of the corporation appears to
have been fixed to the document under
section 46F(2);
[s 54]
Property Law Act 1974
Part 6 Deeds, covenants, instruments and contracts
Current as at 30 April 2022 Page 55
Authorised by the Parliamentary Counsel
(ii) the fixing of the common seal as mentioned in
subparagraph (i) appears to have been witnessed
under section 46F(2).
(2) Nothing in this section limits or affects any requirement to be
satisfied that a person signing a document is a director,
secretary, or lawfully authorised agent or attorney, of a
corporation.
Division 2 General rules affecting contracts
54 Effect of joint contracts and liabilities
(1) Subject to this and to any other Act—
(a) a promise made by 2 or more persons shall, unless a
contrary intention appears, be construed as a promise
made jointly and severally by each of those persons; and
(b) a liability which is joint shall not be discharged, nor
shall a cause of action with respect to the liability be
extinguished, because of any fact, event, or matter
except to the extent that the same would because of the
fact, event or matter be discharged or extinguished if the
liability were joint and several and not joint.
(2) In this section—
promise includes a promise under seal, a covenant, whether
express or implied under this Act, and a bond or other
obligation under seal.
(3) This section applies only to a promise, liability or cause of
action coming into existence after the commencement of this
Act.
55 Contracts for the benefit of third parties
(1) A promisor who, for a valuable consideration moving from
the promisee, promises to do or to refrain from doing an act or
acts for the benefit of a beneficiary shall, upon acceptance by
[s 55]
Property Law Act 1974
Part 6 Deeds, covenants, instruments and contracts
Page 56 Current as at 30 April 2022
Authorised by the Parliamentary Counsel
the beneficiary, be subject to a duty enforceable by the
beneficiary to perform that promise.
(2) Prior to acceptance the promisor and promisee may, without
the consent of the beneficiary, vary or discharge the terms of
the promise and any duty arising from it.
(3) Upon acceptance—
(a) the beneficiary shall be entitled in the beneficiary’s own
name to such remedies and relief as may be just and
convenient for the enforcement of the duty of the
promisor, and relief by way of specific performance,
injunction or otherwise shall not be refused solely on the
ground that, as against the promisor, the beneficiary may
be a volunteer; and
(b) the beneficiary shall be bound by the promise and
subject to a duty enforceable against the beneficiary in
the beneficiary’s own name to do or refrain from doing
such act or acts (if any) as may by the terms of the
promise be required of the beneficiary; and
(c) the promisor shall be entitled to such remedies and relief
as may be just and convenient for the enforcement of the
duty of the beneficiary; and
(d) the terms of the promise and the duty of the promisor or
the beneficiary may be varied or discharged with the
consent of the promisor and the beneficiary.
(4) Subject to subsection (1), any matter which would in
proceedings not brought in reliance on this section render a
promise void, voidable or unenforceable, whether wholly or in
part, or which in proceedings (not brought in reliance on this
section) to enforce a promissory duty arising from a promise
is available by way of defence shall, in like manner and to the
like extent, render void, voidable or unenforceable or be
available by way of defence in proceedings for the
enforcement of a duty to which this section gives effect.
(5) In so far as a duty to which this section gives effect may be
capable of creating and creates an interest in land, such
interest shall, subject to section 12, be capable of being
[s 55]
Property Law Act 1974
Part 6 Deeds, covenants, instruments and contracts
Current as at 30 April 2022 Page 57
Authorised by the Parliamentary Counsel
created and of subsisting in land under any Act but subject to
that Act.
(6) In this section—
acceptance means an assent by words or conduct
communicated by or on behalf of the beneficiary to the
promisor, or to some person authorised on the promisor’s
behalf, in the manner (if any), and within the time, specified in
the promise or, if no time is specified, within a reasonable
time of the promise coming to the notice of the beneficiary.
beneficiary means a person other than the promisor or
promisee, and includes a person who, at the time of
acceptance is identified and in existence, although that person
may not have been identified or in existence at the time when
the promise was given.
promise means a promise—
(a) which is or appears to be intended to be legally binding;
and
(b) which creates or appears to be intended to create a duty
enforceable by a beneficiary;
and includes a promise whether made by deed, or in writing,
or, subject to this Act, orally, or partly in writing and partly
orally.
promisee means a person to whom a promise is made or
given.
promisor means a person by whom a promise is made or
given.
(7) Nothing in this section affects any right or remedy which
exists or is available apart from this section.
(8) This section applies only to promises made after the
commencement of this Act.
[s 56]
Property Law Act 1974
Part 6 Deeds, covenants, instruments and contracts
Page 58 Current as at 30 April 2022
Authorised by the Parliamentary Counsel
56 Guarantees to be in writing
(1) No action may be brought upon any promise to guarantee any
liability of another unless the promise upon which such action
is brought, or some memorandum or note of the promise, is in
writing, and signed by the party to be charged, or by some
other person by the party lawfully authorised.
(2) A promise, or memorandum or note of a promise, in writing
shall not be treated as insufficient for the purpose of this
section merely because the consideration for such promise
does not appear in writing or by necessary inference from a
written document.
57 Effect of provisions as to conclusiveness of certificates
etc.
(1) Subject to any other Act, a provision in a contract or
instrument to the effect that a certificate, statement or opinion
of any person shall be or be received as conclusive evidence of
any fact in the certificate, statement or opinion contained shall
be construed to mean only that such certificate, statement or
opinion shall be or be received as prima facie evidence of that
fact.
(2) This section shall not apply to—
(a) a certificate, statement or opinion of a person who, in
making the certificate or statement or in forming the
opinion, is bound to act judicially or quasi-judicially or
as arbitrator or quasi-arbitrator; or
(b) a provision agreed to after a dispute has arisen as to the
relevant fact.
(3) This section applies to a contract made or instrument executed
after but not before the commencement of this Act, and shall
have effect despite any stipulation to the contrary.
(4) In this section—
fact includes any matter, thing, event, circumstance or state of
affairs.
[s 57A]
Property Law Act 1974
Part 6 Deeds, covenants, instruments and contracts
Current as at 30 April 2022 Page 59
Authorised by the Parliamentary Counsel
57A Effect of Act or statutory instrument
(1) A statutory instrument, other than prescribed subordinate
legislation, does not and can not—
(a) render void or unenforceable any contract or dealing
concerning property that is made, entered into or
effected contrary to the statutory instrument; or
(b) for a contract for the sale of land—give a party to the
contract a right to terminate the contract for a failure by
another party to the contract to comply with the
statutory instrument.
(2) Where an Act or statutory instrument requires that a
certificate, consent or approval relating to any contract or
dealing with property (by sale, lease, mortgage or otherwise)
be obtained or tendered before or at the time the contract is
entered into or the time of the dealing, then, in the absence of
greater particularity as to that time in the Act or instrument, it
shall be sufficient compliance with that requirement if the
certificate, consent or approval is obtained or tendered as
required at or immediately before—
(a) in the case of a sale—settlement; and
(b) in the case of a lease—the lessee’s entry into possession
under the lease; and
(c) in the case of a mortgage—the mortgagor’s accepting
liability under the mortgage; and
(d) in the case of any other dealing—its finalisation.
(3) In this section—
prescribed subordinate legislation means subordinate
legislation that is prescribed by regulation.
Note—
See section 357 in relation to the application of this section.
58 Insurance money from burnt building
Where a building is destroyed or damaged by fire a person
who has granted a policy of insurance for insuring it against
[s 58A]
Property Law Act 1974
Part 6 Deeds, covenants, instruments and contracts
Page 60 Current as at 30 April 2022
Authorised by the Parliamentary Counsel
fire may, and shall, on the request of a person interested in or
entitled to the building, cause the money for which the
building is insured to be laid out and expended, so far as it will
go, towards rebuilding, reinstating, or repairing the building,
unless—
(a) the person claiming the insurance money within 30 days
next after the person’s claim is adjusted, gives sufficient
security to the person who has granted that policy that
the insurance money will be so laid out and expended;
or
(b) the insurance money is in that time settled and disposed
of to and amongst the contending parties to the
satisfaction and approbation of the person who has
granted the policy of insurance.
Division 3 Sales of land
58A Definitions for div 3
In this division—
conveyancing transaction see the National Law, section 3.
e-conveyance means a conveyancing transaction to be
completed using e-conveyancing.
e-conveyancing means a system of land conveyancing that
uses an ELN to lodge documents electronically for the
purposes of the land titles legislation.
electronic workspace, for an e-conveyance, means a shared
electronic workspace within an ELN that allows the
participating subscribers to the e-conveyance—
(a) to lodge a document electronically under the National
Law; and
(b) if relevant, to authorise or complete financial settlement
of the e-conveyance.
[s 58B]
Property Law Act 1974
Part 6 Deeds, covenants, instruments and contracts
Current as at 30 April 2022 Page 61
Authorised by the Parliamentary Counsel
ELN means an Electronic Lodgment Network under the
National Law.
financial settlement, of an e-conveyance, means the exchange
of value, in an ELN, between financial institutions in
accordance with the instructions of participating subscribers
to the e-conveyance.
land titles legislation see the Electronic Conveyancing
National Law (Queensland) Act 2013, section 6.
National Law means the Electronic Conveyancing National
Law (Queensland).
participating subscriber, to an e-conveyance, means a
subscriber who is involved in the e-conveyance as a party to
the e-conveyance or as a representative of a party.
subscriber see the National Law, section 3.
58B Meaning of settlement of a sale of land in an
e-conveyance
(1) In an Act, a reference to the settlement (however described) of
a sale of land or a contract for the sale of land has the meaning
given by this section if the sale is to be completed using
e-conveyancing, unless the Act expressly provides otherwise.
Example of another way to describe a settlement of the sale of land—
completion of the sale of the land
(2) Settlement, of the sale of land, occurs when the electronic
workspace for the e-conveyance records that—
(a) financial settlement occurs; or
(b) if there is no financial settlement, the documents
necessary to transfer title have been accepted for
electronic lodgment by the registrar.
(3) In this section—
sale, of land, includes an exchange for value.
[s 59]
Property Law Act 1974
Part 6 Deeds, covenants, instruments and contracts
Page 62 Current as at 30 April 2022
Authorised by the Parliamentary Counsel
59 Contracts for sale etc. of land to be in writing
No action may be brought upon any contract for the sale or
other disposition of land or any interest in land unless the
contract upon which such action is brought, or some
memorandum or note of the contract, is in writing, and signed
by the party to be charged, or by some person by the party
lawfully authorised.
60 Sales of land by auction
(1) In the case of a sale of land by auction—
(a) where the sale is not notified in the conditions of sale to
be subject to a right to bid on behalf of the vendor—the
vendor shall not be entitled to bid or to employ any
person to bid at the sale, nor shall the auctioneer be
entitled to take any bid from the vendor or any such
person; and
(aa) any sale contravening paragraph (a) may be treated as
fraudulent by the purchaser; and
(b) a sale may be notified in the conditions of sale to be
subject to a reserved or upset price, and a right to bid
may also be in the auction expressly reserved by or on
behalf of the vendor; and
(c) where a right to bid is expressly reserved, but not
otherwise—the vendor or any one person on the
vendor’s behalf may bid at the auction.
(2) This section applies to sales effected after the commencement
of this Act.
61 Conditions of sale of land
(1) Under a contract for the sale of registered land the purchaser
shall be entitled at the cost of the vendor—
(a) to receive from the vendor sufficient particulars of title
to enable the purchaser to prepare the appropriate
instrument to give effect to the contract; and
[s 61]
Property Law Act 1974
Part 6 Deeds, covenants, instruments and contracts
Current as at 30 April 2022 Page 63
Authorised by the Parliamentary Counsel
(b) to receive from the vendor an abstract of any instrument,
forming part of the vendor’s title, in respect of which a
caveat is entered upon the register; and
(c) to have the relevant certificate of title or other document
of title lodged by the vendor in the land registry to
enable the instrument to be registered; and
(d) to have any objection to the registration of the
instrument removed by the vendor.
(1A) However, as to any such objection which the purchaser ought
to have raised on the particulars or abstract, or upon the
investigation of the title, or which arises from the purchaser’s
own act, default, or omission, the purchaser shall not be
entitled to have the same removed except at the purchaser’s
own cost.
(2) Under any contract for the sale of any land there shall be
implied a term that—
(a) payment or tender of any money payable under the
contract may be made by a financial institution cheque
drawn on itself or a bank; and
(b) an obligation on the part of the vendor to execute and
deliver a conveyance of the subject land, or instruments
of title to the land, free of encumbrances shall be
satisfied if the vendor will, upon completion of the
contract, be able to and does in fact discharge any
existing encumbrance out of the purchase money
payable under the contract by the purchaser; and
(c) unless otherwise agreed by the parties, their solicitors or
conveyancers, settlement of the contract must take place
at the office of the land registry under the Land Title Act
1994 at which the document relating to the conveyance
may be lodged or, if there are 2 or more such offices, the
office that is nearest to the land.
(3) Where in any contract for the sale of any land the date for
payment of the purchase money or any part of the purchase
moneys is to be ascertained by reference to a period of time
expiring on a day which is a Saturday, a Sunday, or a public
[s 62]
Property Law Act 1974
Part 6 Deeds, covenants, instruments and contracts
Page 64 Current as at 30 April 2022
Authorised by the Parliamentary Counsel
holiday, then, unless the contract designates such day as a
Saturday, a Sunday, or by the name of the public holiday,
completion shall take place—
(a) on such other day as may be agreed by the parties, their
solicitors or conveyancers; or
in default of such agreement—
(b) on the day, other than a Saturday, Sunday, or public
holiday, next following the day on which the period of
time so expired.
(3A) However, if under subsection (2)(c) settlement of the contract
must take place at an office of the land registry under the Land
Title Act 1994, but the office is not open for business on the
day (the relevant day) provided for completion under
subsection (3), the completion must take place—
(a) on a day, on which the office is open for business,
agreed by the parties, their solicitors or conveyancers; or
(b) if there is no agreement under paragraph (a)—on the
next day the office is open for business after the relevant
day.
(4) This section applies only if and as far as a contrary intention is
not expressed in the contract, and shall have effect subject to
the terms of the contract, and to the provisions contained in
the contract.
62 Stipulations not of the essence of the contract
Stipulations in contracts, as to time or otherwise, which under
rules of equity are not deemed to be or to have become of the
essence of the contract, shall be construed and have effect at
law under rules of equity.
63 Application of insurance money on completion of a sale
or exchange
(1) Where after the date of any contract for sale or exchange of
property, money becomes payable under any policy of
[s 63]
Property Law Act 1974
Part 6 Deeds, covenants, instruments and contracts
Current as at 30 April 2022 Page 65
Authorised by the Parliamentary Counsel
insurance maintained by the vendor in respect of any damage
to or destruction of property included in the contract, the
money shall, on completion of the contract, be held or
receivable by the vendor on behalf of, and, on completion of
the sale or exchange or so soon afterwards as the same shall
be received by the vendor, paid—
(a) to any person entitled to the money because of an
encumbrance over or in respect of the land; and
(b) as to any balance remaining, to the purchaser.
(2) For the purpose of this section, cover provided by such a
policy maintained by the vendor extends until the date of
completion, and money does not cease to become payable to
the vendor merely because the risk has passed to the
purchaser.
(3) This section shall apply only to contracts made after the
commencement of this Act, and shall have effect subject to—
(a) any stipulation to the contrary contained in the contract;
or
(b) the payment by the purchaser of the proportionate part
of the premium from the date of the contract.
(4) This section shall apply to a sale or exchange by an order of
court, as if—
(a) for references to the ‘vendor’ there were substituted
references to the ‘person bound by the order’; and
(b) for the reference to the completion of the contract there
were substituted a reference to the payment of the
purchase or equality money (if any) into court; and
(c) for reference to the date of the contract there were
substituted a reference to the time when the contract
became binding.
[s 64]
Property Law Act 1974
Part 6 Deeds, covenants, instruments and contracts
Page 66 Current as at 30 April 2022
Authorised by the Parliamentary Counsel
64 Right to rescind on destruction of or damage to dwelling
house
(1) In any contract for the sale of a dwelling house where, before
the date of completion or possession whichever earlier occurs,
the dwelling house is so destroyed or damaged as to be unfit
for occupation as a dwelling house, the purchaser may, at the
purchaser’s option, rescind the contract by notice in writing
given to the vendor or the vendor’s solicitor not later than the
date of completion or possession whichever the earlier occurs.
(2) Upon rescission of a contract under this section, any money
paid by the purchaser shall be refunded to the purchaser and
any documents of title or transfer returned to the vendor who
alone shall be entitled to the benefit of any insurance policy
relating to such destruction or damage subject to the rights of
any person entitled to the insurance policy because of an
encumbrance over or in respect of the land.
(3) In this section—
sale of a dwelling house means the sale of improved land the
improvements on which consist wholly or substantially of a
dwelling house or the sale of a lot on a building units plan
within the meaning of the Building Units and Group Titles Act
1980 or the sale of a lot included in a community titles scheme
under the Body Corporate and Community Management Act
1997 if the lot—
(a) wholly or substantially, consists of a dwelling; and
(b) is, under the Land Title Act 1994—
(i) a lot on a building format plan of subdivision; or
(ii) a lot on a volumetric format plan of subdivision,
and wholly contained within a building.
(4) This section applies only to contracts made after the
commencement of this Act and shall have effect despite any
stipulation to the contrary.
[s 65]
Property Law Act 1974
Part 6 Deeds, covenants, instruments and contracts
Current as at 30 April 2022 Page 67
Authorised by the Parliamentary Counsel
65 Rights of purchaser as to execution
(1) On a sale, the purchaser shall not be entitled to require that the
conveyance to the purchaser be executed in the purchaser’s
presence, or in that of the purchaser’s solicitor or conveyancer,
as such, but shall be entitled to have, at the purchaser’s own
cost, the execution of the conveyance attested by some person
appointed by the purchaser, who may, if the purchaser thinks
fit, be the purchaser’s solicitor or conveyancer.
(2) This section applies only to sales made after the
commencement of this Act.
66 Receipt in instrument or endorsed authority for payment
(1) If a financial institution manager, a solicitor or a conveyancer
produces an instrument, having in the body of the instrument
or endorsed on the instrument a receipt for consideration
money or other consideration, the instrument being executed,
or the endorsed receipt being signed, by the person entitled to
give a receipt for that consideration, or produces a duly
executed instrument in respect of registered land, the
instrument shall be a sufficient authority to the person liable
to pay or give the same for the person’s paying or giving the
same to the financial institution manager, solicitor, or
conveyancer without the financial institution manager,
solicitor or conveyancer producing any separate or other
direction or authority in that behalf from the person who
executed or signed the receipt or instrument.
(2) In this section—
conveyancer includes the agent of the conveyancer.
financial institution manager means the person performing
the function of general manager or manager of a financial
institution, and includes an agent of the financial institution
manager.
instrument includes a discharge of mortgage.
solicitor includes the agent of the solicitor.
[s 67]
Property Law Act 1974
Part 6 Deeds, covenants, instruments and contracts
Page 68 Current as at 30 April 2022
Authorised by the Parliamentary Counsel
67 Restriction on vendor’s right to rescind on purchaser’s
objection
(1) In any contract the vendor shall not be entitled to exercise any
right to rescind the contract, whether given by the contract
expressly or otherwise, on the ground of any requisition or
objection made by the purchaser unless and until the vendor
has given the purchaser 7 days notice of the vendor’s intention
to rescind so as to enable the purchaser to withdraw or waive
the requisition or objection.
(2) This section applies only to contracts made after the
commencement of this Act, and shall have effect despite any
stipulation to the contrary.
67A When statutory rights of termination end for land sales if
e-conveyancing is used
(1) This section applies if—
(a) an Act provides for a right of termination (however
described) in relation to the sale of land or a contract for
the sale of land; and
(b) the right is expressed to end on settlement; and
(c) the sale is settled using e-conveyancing.
(2) The right of termination ends on settlement.
(3) However, the right of termination may not be exercised during
any period the electronic workspace for the e-conveyance is
locked for the purpose of settlement.
(4) In this section—
locked, in relation to an electronic workspace for an
e-conveyance, means the ELN for the workspace does not
allow a participating subscriber to the e-conveyance to change
a document or instruction in the workspace.
[s 68]
Property Law Act 1974
Part 6 Deeds, covenants, instruments and contracts
Current as at 30 April 2022 Page 69
Authorised by the Parliamentary Counsel
68 Damages for breach of contract to sell land
(1) A vendor who in breach of contract fails to perform a contract
for the sale of land shall be liable by way of damages as
compensation for the loss sustained by the purchaser in such
sum as at the time the contract was made was reasonably
foreseeable as the loss liable to result, and which does in fact
result, from the failure of the vendor to perform the contract
and, unless the contract otherwise provides, the vendor shall
not be relieved, wholly or in part, of liability for damages
measured under this section merely because of the vendor’s
inability to make title to the land the subject of the contract of
sale, whether or not such inability was occasioned by the
vendor’s own default.
(2) This section shall not affect any right, power or remedy
which, apart from this section, may be available to a purchaser
in respect of the failure of a vendor to show or make good title
or otherwise to perform a contract for the sale of land.
(3) This section shall not apply to contracts for the sale of
unregistered land and shall apply only to contracts entered
into after the commencement of this Act.
68A Forfeiture of deposit on purchaser’s default
(1) This section applies in relation to a contract for the sale of a
proposed lot.
(2) The contract may provide for a sum not exceeding 20% of the
purchase price of the proposed lot paid under the contract as a
deposit (whether paid in 1 or more amounts) to be forfeited
and retained by the vendor in the event of a breach of contract
by the purchaser.
(3) However, the sum may only be forfeited or retained by the
vendor if the breach results in the termination of the contract.
(4) It is declared, for this section, that a sum not exceeding 20%
of the purchase price of the proposed lot that is paid under the
contract as a deposit (whether paid in 1 or more amounts) is
not, either at law or in equity, a penalty if the sum is forfeited
[s 69]
Property Law Act 1974
Part 6 Deeds, covenants, instruments and contracts
Page 70 Current as at 30 April 2022
Authorised by the Parliamentary Counsel
and retained by the vendor because the contract is terminated
following the purchaser’s breach of the contract.
(5) In this section—
proposed lot means—
(a) a proposed lot within the meaning of the Land Sales Act
1984; or
(b) a proposed lot within the meaning of the Body
Corporate and Community Management Act 1997; or
(c) land that will be shown as a lot on a building units plan
or group titles plan registered under the Building Units
and Group Titles Act 1980; or
Note—
There is limited scope for the registration of new building units
plans and group titles plans under the Building Units and Group
Titles Act 1980—see section 5A of that Act.
(d) a proposed lot within the meaning of the South Bank
Corporation Act 1989, section 97B.
69 Rights of purchaser where vendor’s title defective
(1) Where specific performance of a contract would not be
enforced against the purchaser by the court because of a
defect in or doubt as to the vendor’s title, but such defect or
doubt does not entitle the purchaser to rescind the contract,
the purchaser shall nevertheless be entitled to recover the
purchaser’s deposit and any instalments under the contract
and to be relieved from all liability under the contract, unless
the contract discloses such defect or doubt and contains a
stipulation precluding the purchaser from objecting to the
defect or doubt.
(2) If the defect or doubt not disclosed by the contract is one
which is known or ought to have been known to the vendor at
the date of the contract the purchaser shall in addition be
entitled to recover the purchaser’s expenses of investigating
the title.
(3) This section applies—
[s 70]
Property Law Act 1974
Part 6 Deeds, covenants, instruments and contracts
Current as at 30 April 2022 Page 71
Authorised by the Parliamentary Counsel
(a) to a contract for the sale or exchange of land or any
interest in land made after the commencement of this
Act; and
(b) despite any provision to the contrary contained in the
contract.
70 Applications to court by vendor and purchaser
A vendor or purchaser of land, or their respective
representatives, may apply in a summary way to the court, in
respect of any requisitions or objections, or any claim for
compensation, or any other question arising out of or
connected with a contract (not being a question affecting the
existence or validity of the contract), and the court may make
such order upon the application as to the court may appear
just, and may order how and when and by whom all or any of
the costs of and incident to the application are to be borne and
paid.
70A Computers inoperative on day for completion
(1) This section applies if—
(a) a contract for the sale of land does not provide
otherwise; and
(b) time is of the essence of the contract; and
(c) the purchaser under the contract, without default on the
purchaser’s part, can not, on the date for completion of
the contract, verify the vendor’s title because computers
in the relevant office of the land registry under the Land
Title Act 1994 are inoperative for any reason.
(2) Time ceases to be of the essence of the contract.
(3) The vendor is taken—
(a) not to have proved title to the land; and
(b) not to be in breach of the contract only because of the
failure to prove title at that time.
[s 71]
Property Law Act 1974
Part 6 Deeds, covenants, instruments and contracts
Page 72 Current as at 30 April 2022
Authorised by the Parliamentary Counsel
(4) The vendor or purchaser may give a written notice to the other
party to the contract to complete the sale.
(5) The notice must state—
(a) that the computers are again fully operational; and
(b) a period of days, of not more than 7 business days, from
the day the notice is given for completion of the sale.
(6) The notice may be given no earlier than the day after the first
continuous day of operation of the computers after computer
operation is fully restored.
(7) From a party’s receipt of the notice, time is again of the
essence of the contract.
Division 4 Instalment sales of land
71 Definitions for div 4
In this division—
deposit means a sum—
(a) not exceeding the prescribed percentage of the purchase
price payable under an instalment contract; and
(b) paid or payable in 1 or more amounts; and
(c) liable to be forfeited and retained by the vendor in the
event of a breach of contract by the purchaser.
instalment contract means an executory contract for the sale
of land in terms of which the purchaser is bound to make a
payment or payments (other than a deposit) without becoming
entitled to receive a conveyance in exchange for the payment
or payments.
mortgage includes any encumbrance or charge other than a
charge attaching by the operation of any statutory enactment.
prescribed percentage means—
(a) for a contract for the sale of a proposed lot—20%; or
[s 71A]
Property Law Act 1974
Part 6 Deeds, covenants, instruments and contracts
Current as at 30 April 2022 Page 73
Authorised by the Parliamentary Counsel
(b) otherwise—10%.
proposed lot means—
(a) a proposed lot within the meaning of the Land Sales Act
1984; or
(b) a proposed lot within the meaning of the Body
Corporate and Community Management Act 1997; or
(c) land that will be shown as a lot on a building units plan
or group titles plan registered under the Building Units
and Group Titles Act 1980; or
Note—
There is limited scope for the registration of new building units
plans and group titles plans under the Building Units and Group
Titles Act 1980—see section 5A of that Act.
(d) a proposed lot within the meaning of the South Bank
Corporation Act 1989, section 97B.
purchaser includes any person from time to time deriving an
interest under an instalment contract from the original
purchaser under the contract.
sale includes an agreement for sale and an enforceable option
for sale.
vendor includes any person to whom the rights of a vendor
under an instalment contract have been assigned.
71A Application of div 4
(1) This division shall not bind the Crown.
(2) Where a contract for the sale of land may, at the election of
the purchaser, be performed in a manner which would
constitute it an instalment contract, it shall, unless and until
the purchaser elects to perform it in some other manner, be
presumed to be an instalment contract within the meaning of
this section.
(3) This division applies—
[s 72]
Property Law Act 1974
Part 6 Deeds, covenants, instruments and contracts
Page 74 Current as at 30 April 2022
Authorised by the Parliamentary Counsel
(a) to an instalment contract entered into after the
commencement of this Act; and
(b) despite anything to the contrary contained in any
contract.
(4) Sections 74 to 76 do not apply with respect to a contract for
the sale of land by the public trustee.
72 Restriction on vendor’s right to rescind
(1) An instalment contract shall not be determinable or
determined because of default on the part of the purchaser in
payment of any instalment or sum of money (other than a
deposit or any part of a deposit) due and payable under the
contract until the expiration of a period of 30 days after
service upon the purchaser of a notice in the approved form.
(2) A purchaser upon whom a notice in the approved form has
been served may within the period mentioned in
subsection (1) pay or tender to the vendor or the vendor’s
agent such sum as would have been due and payable under the
contract at the date of such payment or tender but for such
default (including any sum in respect of which the default was
made).
(3) Upon payment or tender under subsection (2) any right or
power of the vendor to determine the contract because of the
default specified in the notice shall cease and the purchaser
shall be deemed not to be in default under the contract.
(4) A notice shall be deemed to be to the like effect of that in the
approved form if it is reasonably sufficient fully and fairly to
apprise the purchaser of the purchaser’s default and of the
effect of the purchaser’s failure to remedy the default within
the time specified in this section.
73 Land not to be mortgaged by vendor
(1) A vendor under an instalment contract shall not without the
consent of the purchaser sell or mortgage the land the subject
of the contract.
[s 74]
Property Law Act 1974
Part 6 Deeds, covenants, instruments and contracts
Current as at 30 April 2022 Page 75
Authorised by the Parliamentary Counsel
(2) Where land is mortgaged in contravention of this section—
(a) the instalment contract shall be voidable by the
purchaser at any time before completion of the contract;
and
(b) the vendor shall be guilty of an offence against this Act.
Maximum penalty—9 penalty units.
(3) Nothing in this section affects—
(a) the rights of any bona fide purchaser from the vendor for
value and without notice of the instalment contract; or
(b) the Land Title Act 1994.
74 Right of purchaser to lodge caveat
(1) A purchaser under an instalment contract for the sale of land
registered under the Land Title Act 1994 may, by a caveat
under that Act that is expressed to be lodged under this
section, forbid the registration of any instrument affecting the
land the subject of the contract until completion of the
instalment contract.
(1A) A caveat lodged under this section is taken, for the purposes
of the Land Title Act 1994, to have been lodged other than
under part 7, division 2 of that Act.
(2) A caveat lodged under this section may on the application of
any person interested be removed upon proof to the
satisfaction of the registrar or of the court—
(a) that the purchaser has consented to removal of the
caveat; or
(b) that the instalment contract has been rescinded or
determined or discharged by performance or otherwise;
or
(c) of any other ground which justifies removal of a caveat.
(3) Nothing in this section affects the powers of the registrar in
relation to caveats under the Land Title Act 1994.
[s 75]
Property Law Act 1974
Part 6 Deeds, covenants, instruments and contracts
Page 76 Current as at 30 April 2022
Authorised by the Parliamentary Counsel
75 Right to require conveyance
(1) A purchaser who is not in default under an instalment contract
may at any time after an amount equal to one-third of the
purchase price has been paid serve upon the vendor a notice in
writing requiring the vendor to convey the land to the
purchaser conditionally upon the purchaser at the same time
executing a mortgage in favour of the vendor or such other
person as the vendor may specify to secure payment of all
money which would afterwards but for the execution of such
mortgage have become payable by the purchaser under the
instalment contract.
(2) A vendor who is not in default under an instalment contract
may at any time after an amount equal to one-third of the
purchase price has been paid serve upon a purchaser a notice
in writing requiring the purchaser to accept conveyance of the
land from the vendor conditionally upon the purchaser at the
same time executing a mortgage, or (if it is reasonable to so
require) mortgages, in favour of the vendor or such other
person or persons as the vendor may specify to secure
payment of all money which would afterwards but for the
execution of such mortgage or mortgages have become
payable by the purchaser under the instalment contract.
(3) A vendor who requires a purchaser to accept a conveyance
under subsection (2) shall be obliged to advance to the
purchaser—
(a) an amount equal to the transfer duty imposed under the
Duties Act 2001 on the conveyance; and
(b) an amount equal to legal costs payable by the purchaser
of preparation, execution and registration of conveyance
of the land to the purchaser;
but such obligation shall be conditional upon the purchaser
agreeing to the amount so advanced being added to the
principal sum secured by the mortgage or by such 1 of the
mortgages as is specified by the vendor.
(4) A mortgage executed under this section shall—
[s 75]
Property Law Act 1974
Part 6 Deeds, covenants, instruments and contracts
Current as at 30 April 2022 Page 77
Authorised by the Parliamentary Counsel
(a) contain all such terms and all such powers and
covenants on the part of the mortgagor as may be agreed
by the vendor and the purchaser and shall accord with
and provide for observance of all obligations of the
purchaser under the instalment contract; and
(b) in the case of subsection (1), but subject to
subsection (7)—be prepared and registered at the
expense of the purchaser; and
(c) in the case of subsection (2), but subject to
subsection (7)—be prepared and registered at the
expense of the vendor.
(5) Transfer duty under the Duties Act 2001 and the legal costs of
preparation, execution and registration of conveyance of the
land to the purchaser shall be payable by the party or parties in
the same way as if such land were being conveyed to the
purchaser in consequence of payment in full of the purchase
price or other performance by the purchaser of the contract.
(6) In the event of the vendor and the purchaser failing to agree
upon the terms, covenants and powers, or any of them, to be
contained in the mortgage or whether it is reasonable on the
part of the vendor to require the purchaser to execute more
than 1 mortgage, the mortgage and any such term, covenant or
power to be contained in the mortgage shall be settled, or the
number of mortgages and the land to be made subject to such
mortgages determined, by an independent practising solicitor
or conveyancer appointed by the president of the Law Society
on the application to the solicitor or conveyancer of the
vendor and the purchaser or either of them, and the mortgage
so settled and the number so determined shall be deemed to
have been agreed upon by both the vendor and the purchaser.
(7) The reasonable costs of settling a mortgage under
subsection (6) shall be borne by the vendor and the purchaser
in such proportions (if any) as in the circumstances the
president of the Law Society thinks fit, and such costs shall be
recoverable by the solicitor or conveyancer in those
proportions (if any) from the vendor and the purchaser in any
court of competent jurisdiction.
[s 76]
Property Law Act 1974
Part 6 Deeds, covenants, instruments and contracts
Page 78 Current as at 30 April 2022
Authorised by the Parliamentary Counsel
(8) A person liable for costs because of subsection (7) shall be
entitled to require those costs to be taxed under the Costs Act
1867.
(9) Where a notice in writing under this section has been served
upon a vendor by a purchaser or upon a purchaser by a
vendor, and such vendor or, as the case may be, purchaser
without lawful excuse fails to convey or to accept a
conveyance of the land or to execute any instrument requisite
for giving effect to this section, such vendor or purchaser—
(a) shall be deemed to have broken a condition of the
contract, and the purchaser or, as the case may be,
vendor shall be entitled to all civil remedies
accordingly; and
(b) the party so failing shall be guilty of an offence under
this Act.
Maximum penalty—9 penalty units.
(10) In any contract entered into after the commencement of this
Act, a reference to the Contracts of Sale of Land Act 1933,
section 9 shall be construed as a reference to this section.
76 Deposit of title deed and conveyance
(1) A purchaser who is not in default under an instalment contract
may at any time after the contract has been entered into direct
the vendor at the cost of the purchaser to deposit with a
prescribed authority—
(a) the title deed or deeds relating to the land the subject of
the contract; and
(b) a duly executed conveyance or instrument of transfer of
the land in favour of the purchaser, which shall be
deemed to be delivered by the vendor in escrow pending
discharge of the contract by performance or otherwise.
(2) A vendor who fails to comply with a direction given under
subsection (1) shall be deemed to have broken a condition of
the contract, and the purchaser shall be entitled to all civil
remedies accordingly.
[s 76]
Property Law Act 1974
Part 6 Deeds, covenants, instruments and contracts
Current as at 30 April 2022 Page 79
Authorised by the Parliamentary Counsel
(3) The title deed or deeds and the conveyance or instrument of
transfer referred to in subsection (1) shall be held in trust by
the prescribed authority who shall not, except for the purpose
of safekeeping, deliver the same to any person (other than
another prescribed authority, to be held by the person under
this section) until—
(a) the time for performance of the contract arrives; or
(b) the contract is discharged by performance or otherwise;
or
(c) the court otherwise orders on the application of the
prescribed authority or of the vendor or the purchaser or
some interested person.
(4) In this section—
prescribed authority means any of the following—
(a) any person, firm or corporation who at the
commencement of this Act is a prescribed authority for
the purposes of the Contracts of Sale of Land Act 1933,
section 5(i);
(b) any financial institution carrying on business in the
State;
(c) a trustee corporation;
(d) a solicitor or conveyancer or firm of solicitors or
conveyancers, other than a solicitor, conveyancer or firm
whom the Council of the Queensland Law Society
Incorporated has resolved should not be a prescribed
authority;
but does not include a person to whom paragraph (a) applies
where the Minister’s approval of that person to be a prescribed
authority has been withdrawn, which the Minister is
authorised to do.
(5) Nothing in this section applies to an instalment contract where
at the time such contract is made the land is subject to an
existing mortgage.
[s 77]
Property Law Act 1974
Part 7 Mortgages
Page 80 Current as at 30 April 2022
Authorised by the Parliamentary Counsel
Part 7 Mortgages
77 Definitions for pt 7
In this part—
instrument of mortgage includes an instrument or
memorandum of mortgage under the Land Act, the Land Title
Act 1994 or the Mineral Resources Act.
principal money includes any annuity, rent charge or principal
money secured or charged by an instrument of mortgage
registered under the Land Title Act 1994.
77A Application of pt 7
(1) This part—
(a) applies to unregistered land and to any mortgage of such
land; and
(b) applies to land and any mortgage of land which is
subject to the provisions of—
(i) the Land Title Act 1994; or
(ii) the Land Act; or
(iii) the Mineral Resources Act; or
(iv) the Housing Act; or
(v) any other Act, and any repealed Act which
continue to apply to such land or mortgage made
before that Act was repealed; and
(c) subject to any other Act, applies to any other mortgage
whether of land or any other property.
78 Implied obligations in mortgages
(1) In every instrument of mortgage there shall be implied on the
part of the mortgagor the following obligations—
[s 78A]
Property Law Act 1974
Part 7 Mortgages
Current as at 30 April 2022 Page 81
Authorised by the Parliamentary Counsel
(a) that the mortgagor will pay the principal money and
interest secured according to the rate and at the times
and mentioned in the mortgage without any deduction
whatever;
(b) that the mortgagor will keep all buildings and other
improvements erected and made upon the land in as
good and substantial repair as the same were in at the
date of the mortgage, and that the mortgagor will permit
the mortgagee at all convenient times, until such
mortgage is redeemed, with or without agents, to enter
into and upon such land to view and inspect the state of
repair of such buildings and improvements.
(2) An obligation implied because of this section shall, if the
mortgage is by deed, take effect as a covenant on the part of
the mortgagor.
(3) This section applies only if and as far as a contrary intention is
not expressed in the instrument of mortgage, and shall have
effect subject to the terms of the instrument, and to the
provisions contained in the instrument.
(4) Subject to subsection (3), an obligation implied by this section
shall have effect as if it were in terms contained in the
instrument of mortgage.
78A Mortgages lodged electronically
(1) This section applies in relation to a mortgage under this Act or
another law if—
(a) the mortgage is lodged under the Electronic
Conveyancing National Law (Queensland), section 7;
and
(b) the mortgagee holds a document that grants a mortgage
by the mortgagor that—
(i) is on the same terms as the lodged mortgage; and
(ii) complies with section 11.
[s 79]
Property Law Act 1974
Part 7 Mortgages
Page 82 Current as at 30 April 2022
Authorised by the Parliamentary Counsel
(2) However, this section does not apply in relation to a mortgage
that is a deed.
(3) If the mortgage is required to be given, produced or used for
any purpose, the document mentioned in subsection (1)(b)
may be—
(a) given, produced or used for the purpose; and
(b) relied on as evidence of the mortgage.
(4) Subsection (3) applies regardless of whether the document
mentioned in subsection (1)(b)—
(a) was signed by or for the mortgagor or mortgagee in the
presence of a witness; or
(b) was electronically signed by or for the mortgagor or
mortgagee.
79 Variation of mortgage
(1) A mortgage evidenced by an instrument of mortgage in
respect of land may be varied by a memorandum of variation,
which may—
(a) increase or reduce the rate of interest payable in respect
of the debt or obligation secured by the mortgage; or
(b) increase or reduce the amount secured by the mortgage;
or
(c) shorten, extend or renew the term or currency of the
mortgage; or
(d) vary any condition, covenant or other provision of the
instrument of mortgage; or
(e) provide for any 1 or more of the matters mentioned in
paragraphs (a) to (b).
(2) A memorandum of variation may be registered and, if
registered, must be in the approved form, with such variations
or additions as circumstances may require.
[s 80]
Property Law Act 1974
Part 7 Mortgages
Current as at 30 April 2022 Page 83
Authorised by the Parliamentary Counsel
(3) The power of and procedure for variation provided by this
section shall be in addition to any other such power existing at
law.
80 Inspection and production of instruments
(1) A mortgagor, as long as the mortgagor’s right to redeem
subsists, shall because of this Act be entitled from time to
time at reasonable times on the mortgagor’s request and at the
mortgagor’s own cost and on payment or tender of the
mortgagee’s proper costs and expenses in that behalf, by the
mortgagor or the mortgagor’s solicitor or conveyancer, to
inspect and to make or be supplied with copies or abstracts of,
or extracts from, the documents of title or other documents
relating to the mortgaged property in the possession, custody
or power of the mortgagee.
(2) Subject to any other Act, where in the case of a mortgage of
land the mortgagor executes any instrument or other
document subsequent to that mortgage in relation to—
(a) any authorised dealing with the land; or
(b) a second or subsequent mortgage;
the mortgagee or other person holding the relevant certificate
of title, instrument of lease or other documents of title shall—
(c) upon being requested in writing so to do by the
mortgagor or a person entitled to the benefit of the
subsequent instrument or document; and
(d) at the cost of the person making that request; and
(e) upon payment or tender to that mortgagee or other
person of the person’s proper costs and expenses in that
behalf;
produce the document or documents of title for lodgment in
the land registry so that the subsequent instrument or
document may be registered.
(2A) If the mortgagee or other person refuses or neglects to comply
with a request made under subsection (2), the mortgagor or
[s 80]
Property Law Act 1974
Part 7 Mortgages
Page 84 Current as at 30 April 2022
Authorised by the Parliamentary Counsel
person entitled to the benefit of the subsequent instrument or
document concerned may make application to a judge of the
Supreme Court in chambers for an order directed to that
mortgagee or other person to show cause why the document
or documents of title should not be produced under
subsection (2).
(2B) If the mortgagee or other person neglects or refuses to attend
before the judge of the Supreme Court in chambers at the time
appointed in the order, the judge may issue a warrant
authorising and directing some person to be named in the
warrant to apprehend and arrest the person so ordered to show
cause and bring the person before a judge of the Supreme
Court in chambers for examination.
(2C) Upon the appearance before the judge of any person under
subsection (2A) or (2B) and after examining that person upon
oath the judge may—
(a) order that person to deliver up the document or
documents of title; or
(b) order the registrar or warden to dispense with
production of the document or documents of title to
enable the subsequent instrument or document to be
registered.
(3) A certificate of title, instrument of lease, or other document of
title lodged in terms of subsection (2)—
(a) shall, when the dealing or mortgage referred to in that
subsection has been registered, be redelivered to the
mortgagee or other person authorised by the mortgagee
to take delivery of the dealing or mortgage; and
(b) shall not whilst so lodged, be used or available for the
purpose of registering any instrument, dealing, or
mortgage other than those referred to in subsection (2).
(3A) Subsection (3)(a) does not apply to a certificate of title or
other document of title if, under the Land Title Act 1994, it
must be cancelled and not be redelivered to the mortgagee.
(4) The execution or attempted execution of a second or
subsequent mortgage shall not—
[s 81]
Property Law Act 1974
Part 7 Mortgages
Current as at 30 April 2022 Page 85
Authorised by the Parliamentary Counsel
(a) constitute a breach of any term, covenant, condition or
proviso for re-entry contained in the mortgage; or
(b) occasion any forfeiture or penalty; or
(c) render payable or accelerate the time for payment of any
sum or sums which, if such mortgage had not been
executed or if the attempt to execute such mortgage had
not been made, would not have been payable or would
not have been payable at that time.
(5) A mortgagee, whose mortgage is surrendered, discharged or
otherwise extinguished, shall not be liable on account of
delivering documents of title in the mortgagee’s possession to
the person not having the best right to the mortgage, unless the
mortgagee has notice of the right or claim of a person having a
better right, whether because of a right to require a surrender,
discharge or reconveyance or otherwise.
(6) This section shall apply to mortgages made after but not
before the commencement of this Act and shall have effect
despite any stipulation to the contrary in any mortgage.
81 Actions for possession by mortgagors
(1) A mortgagor for the time being entitled to the possession or
receipt of the rents and profits of any land, as to which the
mortgagee has not given notice of the mortgagee’s intention to
take possession or to enter into the receipt of the rents and
profits of the land, may sue for such possession, or for the
recovery of such rents or profits, or to prevent or recover
damages in respect of any trespass or other wrong relative to
the land, in the mortgagor’s own name only, unless the cause
of action arises upon a lease or other contract made by the
mortgagor jointly with any other person.
(2) This section does not prejudice the power of a mortgagor
independently of this section to take proceedings in the
mortgagor’s own name only, either in right of any legal estate
vested in the mortgagor or otherwise.
(3) This section applies whether the mortgage was made before or
after the commencement of this Act.
[s 82]
Property Law Act 1974
Part 7 Mortgages
Page 86 Current as at 30 April 2022
Authorised by the Parliamentary Counsel
82 Tacking and further advances
(1) After the commencement of this Act, a prior mortgagee shall
have a right to make further advances to rank in priority to
subsequent mortgages (whether legal or equitable)—
(a) if an arrangement has been made to that effect with the
subsequent mortgagees; or
(b) if the mortgagee had no notice of such subsequent
mortgages at the time when the further advance was
made by the mortgagee; or
(c) if the mortgagee’s mortgage imposes on the mortgagee
an obligation to make such further advances.
(2) Nothing in subsection (1) affects the right of a prior
mortgagee to rank in priority to subsequent mortgagees in
respect of expenses properly incurred in preserving the
mortgaged property.
(3) In relation to the making of further advances after the
commencement of this Act a mortgagee shall not be deemed
to have notice of a mortgage merely by reason that it was
registered under an Act providing for registration of
mortgages or deeds, if it was not so registered at the time
when the original mortgage was created or when the last
search (if any) by or on behalf of the mortgagee was made,
whichever last happened.
(3A) Subsection (3) applies only where the prior mortgage was
made expressly for securing a current account or other further
advances.
(4) Save in regard to the making of further advances as mentioned
in subsection (1), the right to tack is abolished.
(4A) However, nothing in this Act shall affect any priority acquired
before the commencement of this Act by tacking, or in respect
of further advances made without notice of a subsequent
encumbrance or by arrangement with the subsequent
encumbrancee.
(5) This section applies to mortgages of land made whether
before or after the commencement of this Act.
[s 83]
Property Law Act 1974
Part 7 Mortgages
Current as at 30 April 2022 Page 87
Authorised by the Parliamentary Counsel
83 Powers incident to estate or interest of mortgagee
(1) A mortgagee, where the mortgage is made by instrument,
shall, because of this Act, have the following powers, to the
like extent as if they had in terms been conferred by and were
contained in the instrument of mortgage, but not further,
namely—
(a) a power to sell, or to concur with any other person in
selling, the mortgaged property, or any part of the
mortgaged property, either subject to prior charges or
not, and either together or in lots, in subdivision or
otherwise, by public auction or by private contract, and
for a sum payable either in 1 sum or by instalments,
subject to such conditions respecting title, or evidence
of title, or other matters as the mortgagee thinks fit, with
power to vary any contract for sale, and to buy in at an
auction, or to rescind any contract for sale, and to resell,
without being answerable for any loss occasioned by the
exercise of the power, with power to make such roads,
streets and passages and grant such easements of right
of way or drainage over the same as the circumstances
may require and the mortgagee thinks fit;
(b) a power, at any time after the date of the instrument of
mortgage, to insure and keep insured against loss or
damage by fire and by storm and tempest any building,
or any effects or property of an insurable nature,
whether affixed to the freehold or not, being or forming
part of the property which or an estate or interest in
which is mortgaged, and the premiums paid for any such
insurance shall be a charge on the mortgaged property or
estate or interest, in addition to the mortgage money, and
with the same priority, and with interest at the same rate,
as the mortgage money;
(c) a power to appoint a receiver of the income of the
mortgaged property, or any part of the mortgaged
property or, if the mortgaged property consists of an
interest in income, or of a rent charge or an annual or
other periodical sum, a receiver of that property or any
part of that property;
[s 83]
Property Law Act 1974
Part 7 Mortgages
Page 88 Current as at 30 April 2022
Authorised by the Parliamentary Counsel
(d) a power, while the mortgagee is in possession, to cut and
sell timber and other trees ripe for cutting, and not
planted or left standing for shelter or ornament, or to
contract for any such cutting and sale, to be completed
within any time not exceeding 12 months from the
making of the contract;
(e) a power to sell any easement, right or privilege of any
kind over or in relation to the mortgaged property.
(2) The power of sale includes the following powers as incident to
the sale, namely—
(a) a power to impose or reserve or make binding, as far as
the law permits, by covenant, condition, or otherwise,
on the unsold part of the mortgaged property or any part
of it, or on the purchaser and any property sold, any
restriction or reservation with respect to building on or
other user of land, or with respect to mines and
minerals, or for the purpose of the more beneficial
working of the land, or with respect to any other thing;
(b) a power to sell the mortgaged property, or any part of it,
or all or any mines and minerals apart from the
surface—
(i) with or without a grant or reservation of rights of
way, rights of water, easements, rights, and
privileges for or connected with building or other
purposes in relation to the property remaining in
mortgage or any part of it, or to any property sold;
and
(ii) with or without an exception or reservation of all
or any of the mines and minerals in or under the
mortgaged property, and with or without a grant or
reservation of powers of working, wayleaves, or
rights of way, rights of water and drainage and
other powers, easements and rights and privileges
for or connected with mining purposes in relation
to the property remaining unsold or any part of it,
or to any property sold; and
[s 84]
Property Law Act 1974
Part 7 Mortgages
Current as at 30 April 2022 Page 89
Authorised by the Parliamentary Counsel
(iii) with or without covenants by the purchaser to
expend money on the land sold.
(3) The provisions of this Act relating to the powers mentioned in
subsections (1) and (2), comprised either in this section, or in
any other section regulating the exercise of those powers, may
be varied or extended by the instrument of mortgage.
(4) This section applies only—
(a) to an instrument of mortgage of land executed whether
before or after the commencement of this Act; and
(b) if and so far as a contrary intention is not expressed in
the instrument of mortgage and has effect subject to the
terms of the instrument and to the provisions expressed
in it.
(5) The provisions of this Act relating to the powers mentioned in
subsections (1) and (2) comprised in this section, or in any
other section regulating the exercise of those powers, apply to
mortgages of land under the Land Act or the Mineral
Resources Act, but subject to and to the extent only that the
provisions of this Act are consistent with those provisions.
84 Regulation of exercise of power of sale
(1) A mortgagee shall not exercise the power of sale conferred by
this Act or otherwise unless and until—
(a) default has been made in payment of the principal
money or interest or any part of it secured by the
instrument of mortgage, and notice requiring payment
of the amount the failure to pay which constituted the
default under such instrument of mortgage has been
served on the mortgagor and such default has continued
for a space of 30 days from service of the notice; or
(b) default has been made in the observance or fulfilment of
some provision contained in the instrument of mortgage
or implied by this or any other Act and on the part of the
mortgagor, or of some person concurring in making the
mortgage, to be observed and performed, and notice
[s 84A]
Property Law Act 1974
Part 7 Mortgages
Page 90 Current as at 30 April 2022
Authorised by the Parliamentary Counsel
requiring the default to be remedied has been served on
the mortgagor, and such default has continued for the
space of 30 days from service of the notice.
(2) A notice under this section may be in the approved form.
(3) This section applies, despite any stipulation to the contrary
and despite section 49, to mortgages made whether before or
after the commencement of this Act, but only to the exercise
of a power of sale arising upon or in consequence of a default
occurring after the commencement of this Act.
(4) A reference in any instrument of mortgage to the power of
sale conferred on a mortgagee by any 1 or more of the Acts
repealed by the Land Title Act 1994 shall be construed as a
reference to the power of sale conferred by this Act.
(5) Nothing in this section applies to the exercise by a mortgagee
of the power of sale conferred on a mortgagee under the Land
Act.
84A Exercise of power of sale in relation to disclaimed
properties
(1) This section applies in relation to the mortgaged freehold
property of a bankrupt that has been disclaimed by the trustee
of the estate of the bankrupt under the Bankruptcy Act 1966
(Cwlth), section 133(1) if—
(a) for property in relation to which section 133(3) of that
Act applies—the trustee has given notice of the
disclaimer under section 133(3) of that Act; and
(b) an application to a court for an order under
section 133(9) of that Act in relation to the property—
(i) has not been made; or
(ii) has been finally dealt with by the court or
withdrawn; and
(c) a court has not made an order in relation to the property
under section 133(9) of that Act, other than an order
vesting the property in the mortgagee.
[s 84A]
Property Law Act 1974
Part 7 Mortgages
Current as at 30 April 2022 Page 91
Authorised by the Parliamentary Counsel
(2) Also, this section applies in relation to the mortgaged freehold
property of a company that has been disclaimed by a
liquidator of the company under the Corporations Act,
section 568(1) if—
(a) the liquidator has complied with section 568A of that
Act in relation to the disclaimer; and
(b) the disclaimer is in effect under that Act; and
(c) an application to a court under section 568E or 568F of
that Act in relation to the property—
(i) has not been made; or
(ii) has been finally dealt with by the court or
withdrawn; and
(d) a court has not made an order in relation to the property
under section 568F(1) of that Act, other than an order
vesting the property in the mortgagee.
(3) The disclaimer does not affect the right of the mortgagee to
exercise the mortgagee’s power of sale conferred by this Act
or otherwise in relation to the property.
(4) Despite section 84(1), the mortgagee may exercise the
mortgagee’s power of sale conferred by this Act or otherwise
in relation to the property if the mortgagee has given notice, in
the approved form, of the mortgagee’s intention to exercise
the power of sale to—
(a) each person who has an interest in the property; and
(b) the registrar for recording in the land registry.
(5) The mortgagee must not exercise the power of sale until 30
days after the last of the notices mentioned in subsection (4)
has been given.
(6) This section does not apply in relation to the exercise of a
power of sale conferred on the mortgagee under the Land Act
1994.
(7) In this section—
bankrupt see the Bankruptcy Act 1966 (Cwlth), section 5(1).
[s 85]
Property Law Act 1974
Part 7 Mortgages
Page 92 Current as at 30 April 2022
Authorised by the Parliamentary Counsel
company means a company registered under the Corporations
Act.
85 Duty of mortgagee or receiver as to sale price
(1) It is the duty of a mortgagee, including as attorney for the
mortgagor, or a receiver acting under a power delegated to the
receiver by a mortgagee, in the exercise of a power of sale
conferred by the instrument of mortgage or by this or any
other Act, to take reasonable care to ensure that the property is
sold at the market value.
(1A) Also, if the mortgage is a prescribed mortgage, the duty
imposed by subsection (1) includes that a mortgagee or
receiver must, unless the mortgagee or receiver has a
reasonable excuse—
(a) adequately advertise the sale; and
(b) obtain reliable evidence of the property’s value; and
(c) maintain the property, including by undertaking any
reasonable repairs; and
(d) sell the property by auction, unless it is appropriate to
sell it in another way; and
(e) do anything else prescribed under a regulation.
Maximum penalty—
(a) if the contravention of duty relates only to
paragraph (e)—20 penalty units; or
(b) otherwise—200 penalty units.
(2) Within 28 days from completion of the sale, the mortgagee
shall give to the mortgagor notice in the approved form.
(3) The title of the purchaser is not impeachable on the ground
that the mortgagee or receiver has committed a breach of any
duty imposed by this section, but a person damnified by the
breach of duty has a remedy in damages against the
mortgagee exercising the power of sale.
[s 86]
Property Law Act 1974
Part 7 Mortgages
Current as at 30 April 2022 Page 93
Authorised by the Parliamentary Counsel
(4) A mortgagee who, without reasonable excuse, fails to comply
with subsection (2) commits an offence.
Maximum penalty—2 penalty units.
(5) An agreement or stipulation is void to the extent that it
purports to relieve, or might have the effect of relieving, a
mortgagee or receiver from the duty imposed by this section.
(6) Nothing in this section affects the operation of any rule of law
relating to the duty of the mortgagee to account to the
mortgagor.
(7) Nothing in sections 83(1)(a), 89(3) and 92(2) affects the duty
imposed by this section.
(8) Nothing in this section affects the operation of a law of the
Commonwealth, including, for example, the Corporations
Act, section 420A.
(9) This section applies to mortgages whether made before or
after the commencement of this Act but only in relation to the
exercise of a power of sale if—
(a) the exercise of the power arises upon or in consequence
of a default, mentioned in section 84(1), that happens
after the commencement of this Act; or
(b) the power is being exercised under section 84A(4).
(10) In this section—
prescribed mortgage means a mortgage of a kind prescribed
under a regulation.
86 Effect of conveyance on sale
(1) A mortgagee exercising the power of sale conferred by this
Act has, in the case of unregistered land, power by deed or
instrument in writing to convey to and vest in the purchaser
the property sold for all the estate (including the legal estate)
and interest in it which the original mortgagor had power to
dispose of freed from all estates, interests and rights to which
the mortgage has priority, but subject to all estates, interests
and rights which have priority to the mortgage.
[s 87]
Property Law Act 1974
Part 7 Mortgages
Page 94 Current as at 30 April 2022
Authorised by the Parliamentary Counsel
(2) A mortgagee exercising the power of sale conferred by this
Act has, in the case of land the subject of an instrument of
mortgage registered under the Land Title Act 1994, power to
sell and, subject to any prior registered encumbrance, transfer
the land mortgaged and all the interest in the land mortgaged
of the mortgagor.
(3) A conveyance on sale by a mortgagee, made after the
commencement of this Act, shall be deemed to have been
made in exercise of the power of sale conferred by this Act
unless a contrary intention appears.
(4) This section shall not apply to a transfer in the exercise of the
power of sale conferred on a mortgagee under the Land Act or
Mineral Resources Act.
87 Protection of purchasers
(1) Where a conveyance is made in exercise of the power of sale
conferred by this Act the title of the purchaser shall not be
impeachable on the ground—
(a) that no case had arisen to authorise the sale; or
(b) that due notice was not given; or
(c) that leave of the court, when so required, was not
obtained; or
(d) whether the mortgage was made before or after the
commencement of this Act, that the power was
otherwise improperly or irregularly exercised;
and a purchaser is not, either before or on conveyance,
concerned to see or inquire whether a case has arisen to
authorise the sale, or due notice has been given or the power is
otherwise properly and regularly exercised, but any person
damnified by an unauthorised, or improper, or irregular
exercise of power shall have a remedy in damages against the
person exercising the power.
(2) This section shall not apply to a transfer made in exercise of
the power of sale conferred on a mortgagee under the Land
Act or Mineral Resources Act, except that where, after the
[s 88]
Property Law Act 1974
Part 7 Mortgages
Current as at 30 April 2022 Page 95
Authorised by the Parliamentary Counsel
commencement of this Act, a transfer is so made the title of
the purchaser shall not be impeachable on the ground that no
case had arisen to authorise the sale, and the purchaser is not,
either before or on conveyance, concerned to see whether a
case has arisen to authorise the sale, but any person damnified
by an unauthorised exercise of such power of sale shall have a
remedy in damages against the person exercising the power.
88 Application of proceeds of sale
(1) Subject to this section, the money arising from sale, and
which is in fact received by the mortgagee, shall be held by
the mortgagee in trust to be applied by the mortgagee—
(a) firstly, in payment of all costs, charges and expenses
properly incurred by the mortgagee as incident to the
sale, or any attempted sale, or otherwise; and
(b) secondly, in discharge of the mortgage money, interest
and costs, and other money (if any) due under the
mortgage; and
(c) thirdly, in payment of any subsequent mortgages or
encumbrances;
and the residue (if any) of the money so received shall be paid
to the person entitled to receive or entitled to give receipts for
the proceeds of sale of the mortgaged property.
(2) However, if the money arises from the sale of mortgaged
freehold property that has been disclaimed under the
Bankruptcy Act 1966 (Cwlth), section 133(1) or the
Corporations Act, section 568(1), the residue of the money
mentioned in subsection (1) must be paid into court.
(3) The money that is in fact received by a mortgagee arising
from sale in the exercise of the power conferred under the
Mineral Resources Act must, subject to subsection (1)(a) and
(b), be dealt with as provided under that Act.
(4) The proceeds of sale arising from a sale by a mortgagee in the
exercise of the power conferred by the Land Act shall be
disposed of as provided in that Act.
[s 89]
Property Law Act 1974
Part 7 Mortgages
Page 96 Current as at 30 April 2022
Authorised by the Parliamentary Counsel
89 Provisions as to exercise of power of sale
(1) The power of sale conferred by this Act may be exercised by
any person for the time being entitled to receive and give a
discharge for the mortgage money.
(2) The power of sale conferred by this Act does not affect the
right of foreclosure.
(3) The mortgagee shall not be answerable for any involuntary
loss happening in or about the exercise or execution of the
power of sale conferred by this Act, or of any trust connected
with it, or of any power or provision contained in the
instrument of mortgage.
(4) At any time after the power of sale conferred by this Act has
become exercisable, the person entitled to exercise the power
may demand and recover from any person, other than a person
having in the mortgaged property an estate, interest, lien, or
right in priority to the mortgage, all the deeds and documents
relating to the property, or to the title to the property, which a
purchaser under the power of sale would be entitled to
demand and recover from the person.
90 Mortgagee’s receipts discharges etc.
(1) The receipt in writing of a mortgagee shall be a sufficient
discharge for any money arising under the power of sale
conferred by this Act, or for any money or securities
comprised in the mortgagee’s mortgage, or arising under the
mortgage, and a person paying or transferring the same to the
mortgagee shall not be concerned to inquire whether any
money remains due under the mortgage or to see to the
application of the money or securities so paid or transferred.
(2) Money received by a mortgagee under the mortgagee’s
mortgage or from the proceeds of securities comprised in the
mortgagee’s mortgage shall be applied in like manner as in
this Act directed respecting money received by the mortgagee
arising from a sale under the power of sale conferred by this
Act, but with this variation, that the costs, charges, and
expenses payable shall include the costs, charges, and
[s 91]
Property Law Act 1974
Part 7 Mortgages
Current as at 30 April 2022 Page 97
Authorised by the Parliamentary Counsel
expenses properly incurred of recovering and receiving the
money or securities, and of conversion of securities into
money, instead of those incident to sale.
91 Amount and application of insurance money
(1) The amount of an insurance effected by a mortgagee against
loss or damage by fire or otherwise under the power in that
behalf conferred by this Act shall not exceed such amount as
is specified in the mortgage, or, if no amount is specified, the
full insurable value of the buildings upon the mortgaged land
or the amount owing to the mortgagee in respect of the
mortgage.
(2) An insurance shall not, under the power conferred by this Act,
be effected by a mortgagee in any of the following cases,
namely—
(a) where there is a declaration in the instrument of
mortgage that no insurance is required;
(b) where an insurance is kept up by or on behalf of the
mortgagor in accordance with the instrument of
mortgage;
(c) where the instrument of mortgage contains no
stipulation respecting insurance, and an insurance is
kept up by or on behalf of the mortgagor with the
consent of the mortgagee to the amount to which the
mortgagee is by this Act authorised to insure.
(3) All money received on an insurance of mortgaged property
against loss or damage by fire or otherwise effected under this
Act or on an insurance for the maintenance of which the
mortgagor is liable under the instrument of mortgage, shall, if
the mortgagee so requires, be applied by the mortgagor in
making good the loss or damage in respect of which the
money is received.
(4) If and so far as a contrary intention is not expressed in the
instrument of mortgage, a mortgagee may require that all
money received on an insurance of mortgaged property
against loss or damage by fire, or otherwise effected under
[s 92]
Property Law Act 1974
Part 7 Mortgages
Page 98 Current as at 30 April 2022
Authorised by the Parliamentary Counsel
this Act, or on an insurance for the maintenance of which the
mortgagor is liable under the instrument of mortgage, shall be
applied in or towards the discharge of the mortgage money.
(5) Despite subsection (4) where a mortgagee requires a
mortgagor to effect, or consents to a mortgagor effecting,
insurance for the reinstatement or replacement value of the
mortgaged property, and the mortgagor so insures, the
mortgagor may require that all money received or payable on
such insurance be applied in reinstating or replacing the
mortgaged property.
(6) Any obligation of a mortgagor to insure or continue to insure
mortgaged property on a reinstatement or replacement basis
shall be suspended if, and for as long as, it ceases—
(a) to be possible to effect the reinstatement or replacement
of the mortgaged property; or
(b) to be lawful to use the mortgaged property for a use to
which, prior to such reinstatement or replacement, such
property was being put; or
(c) to be lawful to use the mortgaged property for such use
without the approval of the local government, or other
authority having power to grant or withhold approval to
such use, and such approval is withheld.
(6A) But subsection (6) shall not relieve a mortgagor of an
obligation of insuring mortgaged property against the risk of
destruction or damage by fire to an extent not exceeding the
current market value of such property as might be destroyed
or damaged by fire.
(7) This section applies to mortgages whether made before or
after the commencement of this Act and shall have effect
despite any stipulation to the contrary.
92 Appointment, powers, remuneration and duties of
receiver
(1) A mortgagee entitled to appoint a receiver under the power in
that behalf conferred by this Act shall not appoint a receiver
[s 92]
Property Law Act 1974
Part 7 Mortgages
Current as at 30 April 2022 Page 99
Authorised by the Parliamentary Counsel
until the mortgagee has become entitled to exercise the power
of sale conferred by this or any other Act, but may then
appoint such person as the mortgagee thinks fit to be receiver.
(1A) However, for a mortgage registered under the Land Act or the
Mineral Resources Act a mortgagee entitled to appoint a
receiver may appoint a receiver at any time after the
mortgagee has become entitled to enter upon and take
possession of the land subject to the mortgage.
(2) A receiver appointed under the powers conferred by this Act,
shall be deemed to be the agent of the mortgagor, and the
mortgagor shall be solely responsible for the receiver’s acts or
defaults unless the instrument of mortgage otherwise
provides.
(3) The receiver shall have power to demand and recover all the
income of which the receiver is appointed receiver, by action
or otherwise, in the name either of the mortgagor or of the
mortgagee, to the full extent of the estate or interest which the
mortgagor could dispose of, and to give effectual receipts
accordingly for the same, and to exercise any powers which
may have been delegated to the receiver by the mortgagee
under this Act.
(4) A person paying money to the receiver shall not be concerned
to inquire whether any case has happened to authorise the
receiver to act.
(5) The receiver may be removed, and a new receiver may be
appointed, from time to time by the mortgagee by writing.
(6) The receiver shall be entitled to retain out of any money
received by the receiver, for the receiver’s remuneration, and
in satisfaction of all costs, charges and expenses incurred by
the receiver as receiver, a commission at such rate, not
exceeding 5% on the gross amount of all money received, as
is specified in the receiver’s appointment, and if no rate is so
specified, then at the rate of 5% on that gross amount, or at
such other rate as the court thinks fit to allow, on application
made by the receiver for that purpose.
(7) The receiver shall, if so directed in writing by the mortgagee,
insure to the extent (if any) to which the mortgagee might
[s 93]
Property Law Act 1974
Part 7 Mortgages
Page 100 Current as at 30 April 2022
Authorised by the Parliamentary Counsel
have insured, and keep insured against loss or damage by fire,
or by storm and tempest out of the money received by the
receiver, any building, effects, or property comprised in the
mortgage, whether affixed to the freehold or not, being of an
insurable nature.
(8) Subject to this Act as to the application of insurance money,
the receiver shall apply all money received by the receiver as
follows, namely—
(a) in discharge of all rents, taxes, rates, and outgoings
whatever affecting the mortgaged property;
(b) in keeping down all annual sums or other payments, and
the interest on all principal sums, having priority to the
mortgage in right of which the receiver’s is receiver;
(c) in payment of the receiver’s commission, and of the
premiums on fire, life, or other insurances (if any)
properly payable under the instrument of mortgage or
under this Act, and the cost of executing necessary or
proper repairs directed in writing by the mortgagee;
(d) in payment of the interest accruing due in respect of any
principal money due under the mortgage;
(e) in or towards discharge of the principal money if so
directed in writing by the mortgagee;
and shall pay the residue (if any) of the money received by the
receiver to the person who, but for the possession of the
receiver, would have been entitled to receive the income of
which the receiver is appointed receiver, or who is otherwise
entitled to the mortgaged property.
(9) The appointment of a receiver or of a new receiver under this
section shall be made by the mortgagee by writing in the
approved form.
93 Effect of advance on joint account
(1) Where—
[s 94]
Property Law Act 1974
Part 7 Mortgages
Current as at 30 April 2022 Page 101
Authorised by the Parliamentary Counsel
(a) in a mortgage, or an obligation for payment of money, or
a transfer of a mortgage or of such an obligation, the
sum, or any part of the sum, advanced or owing is
expressed to be advanced by or owing to more persons
than 1 out of money, or as money, belonging to them on
a joint account; or
(b) a mortgage, or such an obligation, or such a transfer is
made to more persons than 1, jointly;
the mortgage money, or other money or money’s worth, for
the time being due to those persons on the mortgage or
obligation, shall, as between them, and the mortgagor or
obligor, be deemed to be and remain money or money’s worth
belonging to those persons on a joint account, and the receipt
in writing of the survivors or last survivor of them, or of the
personal representative of the last survivor, shall be a
complete discharge for all money or money’s worth for the
time being due, despite any notice to the payer of a severance
of the joint account.
(2) This section applies if and so far as a contrary intention is not
expressed in the mortgage, obligation, or transfer, and has
effect subject to the terms of the mortgage, obligation, or
transfer, and to the provisions contained in the mortgage,
obligation or transfer.
(3) Where the Act (if any) under which the mortgage is registered
provides for registration of a record of death or transmission
by or upon death, this section shall have effect only upon such
registration as is provided by that Act.
(4) This section applies only to mortgages made or obligations
created after the commencement of this Act.
94 Obligation to transfer instead of discharging mortgage
(1) Where a mortgagor is entitled to redeem the mortgagor shall
because of this Act, have power to require the mortgagee,
instead of discharging, and on the terms on which the
mortgagee would be bound to discharge, to transfer the
mortgage to any third person as the mortgagor directs, and the
[s 95]
Property Law Act 1974
Part 7 Mortgages
Page 102 Current as at 30 April 2022
Authorised by the Parliamentary Counsel
mortgagee shall because of this Act be bound to transfer
accordingly.
(2) The right of the mortgagor conferred by this section shall
belong to and be capable of being enforced by each
encumbrancee, or by the mortgagor, despite any intermediate
encumbrance, but a requisition of an encumbrancee shall
prevail over a requisition of the mortgagor, and as between
encumbrancees a requisition of a prior encumbrancee shall
prevail over a requisition of a subsequent encumbrancee.
(3) This section shall not apply—
(a) in the case of a mortgagee being or having been in
possession; or
(b) in the case of a mortgage which contains a valid and
enforceable covenant or condition in favour of the
mortgagee in restraint of the trade or business of the
mortgagor or any other collateral benefit or advantage in
favour of the mortgagee.
(4) This section applies to mortgages whether made before or
after the commencement of this Act, and shall have effect
despite any stipulation to the contrary.
95 Relief against provision for acceleration of payment
(1) Where default has taken place—
(a) in payment of any instalment due of principal or interest
under a mortgage; or
(b) in the observance of any covenant or obligation in a
mortgage;
and under the terms of the mortgage an accelerated sum may
or has, because of such default or of the exercise upon such
default of any option or election conferred by the mortgage,
become due and payable, the mortgagor shall be entitled to
relief under this section.
[s 95]
Property Law Act 1974
Part 7 Mortgages
Current as at 30 April 2022 Page 103
Authorised by the Parliamentary Counsel
(2) A mortgagor who, at any time before sale by the mortgagee or
before the commencement of proceedings to enforce the
rights of the mortgagee—
(a) performs the covenant or obligation in respect of which
the default has taken place; and
(b) tenders to the mortgagee, who accepts payment of, the
amount of the instalment in respect of which the default
has taken place and any reasonable expenses incurred by
the mortgagee;
is relieved from the consequences of such default.
(3) The mortgagor, in any proceedings brought to enforce the
rights of the mortgagee or brought by the mortgagor, may—
(a) upon undertaking to the court to perform any such
covenant or obligation; and
(b) upon tender or payment into court of such instalment;
apply to the court for relief from the consequences of such
default, and the court may grant or refuse relief (whether by
staying proceedings brought by the mortgagee or otherwise)
as the court, having regard to the conduct of the parties and to
all other circumstances, thinks fit, and in the case of relief
may grant it on such terms (if any) as to payment of any
reasonable expenses of the mortgagee and as to the costs or
otherwise as the court in the circumstances thinks fit.
(4) Where in granting relief under subsection (3) the court stays
proceedings for the enforcement of the rights of the
mortgagee, the court may on application remove the stay if
default takes place in carrying out the undertaking referred to
in subsection (3).
(5) This section applies to mortgages of any property whether
made before or after the commencement of this Act, but only
to a default occurring after the commencement of this Act,
and shall have effect despite any stipulation to the contrary.
(6) In this section—
[s 96]
Property Law Act 1974
Part 7 Mortgages
Page 104 Current as at 30 April 2022
Authorised by the Parliamentary Counsel
accelerated sum means the whole or part of principal or
interest secured by the mortgage other than the instalment
referred to in subsection (1)(a).
96 Mortgagee accepting interest on overdue mortgage not
to call up without notice
(1) Where the mortgagor has made default in payment of the
principal sum at the expiry of the term of the mortgage, or of
any period for which it has been renewed or extended, and the
mortgagee has accepted interest on the sum for any period
(not being less than 3 months) after default has been so made,
then so long as the mortgagor performs and observes all
covenants expressed or implied in the mortgage, other than
the covenant for payment of the principal sum, the mortgagee
shall not be entitled to take proceedings to compel payment of
the sum, or for foreclosure, or to enter into possession, or to
exercise any power of sale, without giving to the mortgagor 3
months’ notice of the mortgagee’s intention so to do.
(2) No purchaser from the mortgagee exercising the mortgagee’s
power of sale shall be concerned to inquire whether the
mortgagee has accepted interest after such default.
(3) This section applies to mortgages whether made before or
after the commencement of this Act, but only where the
default has occurred after such commencement, and shall
have effect despite any stipulation to the contrary.
97 Interest of mortgagor not seizable on judgment for
mortgage debt
(1) On a judgment of any court for a debt secured by mortgage of
any property, the interest of the mortgagor in that property
shall not be taken in execution.
(2) This section applies to execution on a judgment whether
obtained before or after the commencement of this Act, and
applies despite any stipulation to the contrary in the mortgage.
[s 98]
Property Law Act 1974
Part 7 Mortgages
Current as at 30 April 2022 Page 105
Authorised by the Parliamentary Counsel
98 Abolition of consolidation of mortgages
(1) A mortgagor seeking to redeem any 1 mortgage is entitled to
do so without paying any money due under any separate
mortgage made by the mortgagor, or by any person through
whom the mortgagor claims, solely on property other than
that comprised in the mortgage which the mortgagor seeks to
redeem.
(2) This section has effect despite any stipulation to the contrary.
(3) This section applies only where the mortgages are or 1 of
them is made after the commencement of this Act.
99 Sale of mortgaged property in action for redemption or
foreclosure
(1) Any person entitled to redeem mortgaged property may have a
judgment or order for sale instead of for redemption in an
action brought by the person either for redemption alone, or
for sale alone, or for sale or redemption in the alternative.
(2) In any action, whether for foreclosure, or for redemption, or
for sale, or for the raising and payment in any manner of
mortgage money, the court, on the request of the mortgagee,
or of any person interested either in the mortgage money or in
the right of redemption, and, even though—
(a) any other person dissents; or
(b) the mortgagee or any person so interested does not
appear in the action;
and without allowing any time for redemption or for payment
of any mortgaged money, may direct a sale of the mortgaged
property, on such terms, subject to subsection (3), as it thinks
fit, including the deposit in court of a reasonable sum fixed by
the court to meet the expenses of sale and to secure
performance of the terms.
(3) In an action brought by a person interested in the right of
redemption and seeking a sale, the court may, on the
application of any defendant, direct the plaintiff to give such
security for costs as the court thinks fit, and may give the
[s 100]
Property Law Act 1974
Part 7 Mortgages
Page 106 Current as at 30 April 2022
Authorised by the Parliamentary Counsel
conduct of the sale to any defendant, and may give such
directions as it thinks fit respecting the costs of the defendants
or any of them.
(4) In any case within this section the court may, if it thinks fit,
direct a sale without previously determining the priorities of
encumbrancees.
(5) This section applies to actions brought whether before or after
the commencement of this Act.
(6) In this section—
mortgaged property includes the estate or interest which a
mortgagee would have had power to convey if the statutory
power of sale were applicable.
(7) For the purposes of this section the court may, in favour of a
purchaser, make an order vesting the mortgaged property, or
appoint a person to convey the property, subject or not to any
encumbrance, as the court may think fit or, in the case of an
equitable mortgage, may create and vest a legal estate in the
mortgagee to enable the mortgagee to carry out the sale as if
the mortgage had been made by deed or instrument by way of
legal mortgage.
100 Realisation of equitable charges by the court
(1) Where an order for sale is made by the court in reference to an
equitable mortgage of land the court may, in favour of a
purchaser, make an order vesting the land or may appoint a
person to convey the land or create and vest in the mortgagee
a legal estate in the land to enable the mortgagee to carry out
the sale, as the case may require, in like manner as if the
mortgage had been created by instrument or deed by way of
legal mortgage, but without prejudice to any encumbrance
having priority to the equitable mortgage unless the
encumbrancee consents to the sale.
(2) This section applies to equitable mortgages whether made or
arising before or after the commencement of this Act.
[s 101]
Property Law Act 1974
Part 7 Mortgages
Current as at 30 April 2022 Page 107
Authorised by the Parliamentary Counsel
101 Facilitation of redemption in case of absent or unknown
mortgagees
(1) When any person entitled to receive or alleged to have
received payment of any money secured by mortgage is out of
the jurisdiction, cannot be found, or is unknown, or it is
uncertain who is so entitled, the court, upon the application of
the person entitled to redeem the mortgaged premises, may
order the amount of such debt to be ascertained in such
manner as the court thinks fit, and direct the amount so
ascertained and not paid (if any) to be paid into court.
(2) A certificate of the registrar of the court that such payment
was directed and has been made or that no amount remains
payable under the mortgage, shall operate to discharge the
mortgage debt, but, as between the mortgagor and the person
so entitled to receive payment, any amount which is
eventually shown by the person entitled to the mortgage debt
to have been in fact due or payable over and above the amount
so paid shall continue to be a debt due under the mortgage.
(3) The court shall order the amount so paid into court to be paid
to the person entitled, upon the application of such person,
and on proof that the deed or instrument of mortgage, and all
the title deeds which were delivered by the mortgagor to the
mortgagee on executing the same, or in connection with the
execution, have been delivered up to the person by whom the
amount was so paid into court, or the person’s executors,
administrators, or assigns, or have been otherwise
satisfactorily accounted for.
(4) The certificate referred to in subsection (2)—
(a) shall, in the case of a mortgage of unregistered land,
upon registration of the certificate under this Act operate
in favour of a purchaser of the land as a discharge of the
land as from the date of the certificate and as a
reconveyance of the estate and interest of the mortgagee
of and in the mortgaged property to the person who at
the date of the certificate is entitled to the equity of
redemption according to the person’s interest in the
mortgaged property; and
[s 102]
Property Law Act 1974
Part 8 Leases and tenancies
Page 108 Current as at 30 April 2022
Authorised by the Parliamentary Counsel
(b) shall, in the case of a mortgage of registered land, be
registrable in the manner prescribed under the Land Title
Act 1994 and upon registration shall have effect as a
discharge under that Act; and
(c) shall, in the case of a mortgage registered under the
Land Act, be registered in the manner of a discharge of
mortgage under that Act and upon registration shall
have effect accordingly; and
(d) shall, in the case of a mortgage registered under the
Mineral Resources Act, be delivered to the warden and
have effect under that Act as a certificate signed by the
mortgagee to the effect that the debt secured has been
paid or discharged.
(5) For the purpose of effecting registration under
subsection (4)(b), the registrar may dispense with production
of a certificate of title or other instrument and with the
publication of any notice or the doing of any other act
required by the Land Title Act 1994.
(6) Nothing in this section affects the Public Trustee Act 1978,
section 61.
Part 8 Leases and tenancies
Division 1 Rights, powers and obligations
102 Abolition of interesse termini as to reversionary leases
and leases for lives
(1) The doctrine of interesse termini is abolished.
(2) As from the commencement of this Act all terms of years
absolute shall, whether the interest is created before or after
such commencement, be capable of taking effect at law or in
equity, according to the estate interest or powers of the
grantor, from the date fixed for commencement of the term,
without actual entry.
[s 104]
Property Law Act 1974
Part 8 Leases and tenancies
Current as at 30 April 2022 Page 109
Authorised by the Parliamentary Counsel
(3) A term, at a rent or granted in consideration of a fine, limited
after the commencement of this Act to take effect more than
21 years from the date of the instrument purporting to create
it, shall be void, and any contract made after such
commencement to create such a term shall likewise be void,
but this subsection does not apply to any term taking effect in
equity under a settlement, or created out of an equitable
interest under a settlement, or under an equitable power for
mortgage, indemnity or other like purposes.
(4) Nothing in subsections (1) and (2) prejudicially affects the
right of any person to recover any rent or to enforce or take
advantage of any covenants or conditions, or, as respects
terms or interests created before the commencement of this
Act, operates to vary any statutory or other obligations
imposed in respect of such terms or interests.
(5) Nothing in this Act affects the rule of law that a legal term,
whether or not being a mortgage term, may be created to take
effect in reversion expectant on a longer term, which rule is
confirmed.
(6) In this section—
term of years includes a term for less than a year, or for a year
or years and a fraction of a year or from year to year.
104 Voluntary waste
(1) A lessee shall not commit voluntary waste.
(2) Nothing in subsection (1) applies to any lease without
impeachment of waste, or affects any licence or other right to
commit waste.
(3) A lessee who infringes subsection (1) is liable in damages to
the reversioner but this section imposes no criminal liability.
(4) This section does not affect the operation of any event which
may determine a tenancy at will.
[s 105]
Property Law Act 1974
Part 8 Leases and tenancies
Page 110 Current as at 30 April 2022
Authorised by the Parliamentary Counsel
105 Obligations of lessees
(1) Subject to this Act and to the provisions of the lease, in every
lease of land made after the commencement of this Act there
shall, unless otherwise agreed, be implied the following
obligations by the lessee with the lessor—
(a) To pay rent—that the lessee will pay the rent reserved
at the time mentioned in the lease, but, if the demised
premises or any part of the premises shall at any time
during the continuance of the lease be destroyed or
damaged by fire without fault on the part of the lessee,
flood, lightning, storm, or tempest so, in any such event
as to render the same unfit for the occupation and use of
the lessee, then and so often as the same shall happen,
the rent reserved, or a proportionate part of the rent,
according to the nature and extent of the damage
sustained shall abate, and all or any remedies for
recovery of the rent or such proportionate part of the
rent shall be suspended until the demised premises shall
have been rebuilt or made fit for the occupation and use
of the lessee;
(b) To keep in repair—that the lessee will, at all times
during the continuance of the lease, keep and, at the
termination of the lease, yield up the demised premises
in good and tenantable repair, having regard to their
condition at the commencement of the lease, damage
from fire, flood, lightning, storm and tempest, and
reasonable wear and tear excepted, but this obligation is
not implied in the case of a lease for a term of 3 years or
for any less period of premises for the purpose or
principally for the purpose of human habitation.
(2) In the case of a lease by deed any obligation implied by this
section shall take effect as a covenant.
106 Obligations in short leases
(1) In a lease of premises for a term of 3 years or for any less
period there is an obligation—
[s 107]
Property Law Act 1974
Part 8 Leases and tenancies
Current as at 30 April 2022 Page 111
Authorised by the Parliamentary Counsel
(a) on the part of the lessor, in the case of a lease of
premises for the purpose or principally for the purpose
of human habitation, to provide and maintain the
premises or such part as is let for such purpose in a
condition reasonably fit for human habitation; and
(b) on the part of the lessee—
(i) to care for the premises in the manner of a
reasonable tenant; and
(ii) to repair damage caused by the lessee or by
persons coming on the premises with the lessee’s
permission.
(2) This section applies—
(a) to leases made after the commencement of this Act; and
(b) despite any other provision of this Act or any agreement
to the contrary.
107 Powers in lessor
Unless otherwise agreed, in every lease of land made after the
commencement of this Act there shall be implied the
following powers in the lessor—
(a) To enter and view—that the lessor may, by the lessor,
or the lessor’s agents, during the term at a reasonable
time of the day upon giving to the lessee 2 days previous
notice in writing of the lessor’s intention to enter, enter
upon the demised premises and view the state of repair
of the premises, and may serve upon the lessee or leave
at the lessee’s last or usual place of abode in the State, or
upon the demised premises, a notice in writing of any
defect, requiring the lessee, within a reasonable time, to
repair same in accordance with any covenant or
obligation expressed or implied in the lease;
(b) To enter and repair—that in default of the lessee
repairing any defect according to notice, the lessor may
from time to time enter the premises and execute the
required repairs;
[s 107]
Property Law Act 1974
Part 8 Leases and tenancies
Page 112 Current as at 30 April 2022
Authorised by the Parliamentary Counsel
(c) To enter and carry out requirements of public
authority, and repair under the lease—that the lessor
may, by the lessor, or the lessor’s agents, at all
reasonable times during the term, with workpersons and
others and all necessary materials and appliances, enter
upon the demised premises or any part of the premises,
for the purpose of complying with the terms of any
present or future legislation affecting the premises, and
of any notices served upon the lessor or lessee by the
licensing, local, municipal, or other competent authority,
involving the destruction of noxious weeds or animals,
or the carrying out of repairs, alterations, or works of a
structural character, which the lessee may not be bound,
or if bound may neglect, to do, and also for the purpose
of exercising the powers and authorities of the lessor
under the lease;
(ca) However, such destruction, repairs, alterations, and
works shall be carried out by the lessor without undue
interference with the occupation and use of the demised
premises by the lessee;
(d) To re-enter and take possession—that, in case the rent
or any part of the rent is in arrear for the space of 1
month (although no formal demand therefor has been
made), or in case default is made in the fulfilment of any
covenant, obligation, condition, or stipulation, whether
expressed or implied in the lease, and on the part of the
lessee to be performed or observed, and such default is
continued for the space of 2 months, or in case the
repairs required by such notice are not completed within
the time specified in the lease, the lessor may re-enter
upon the demised premises (or any part of the premises
in the name of the whole) and determine the estate of the
lessee in the premises, but without releasing the lessee
from liability in respect of the breach or non-observance
of any such covenant, obligation, condition, or
stipulation.
[s 109]
Property Law Act 1974
Part 8 Leases and tenancies
Current as at 30 April 2022 Page 113
Authorised by the Parliamentary Counsel
109 Short forms of covenants and obligations of lessees
(1) Whenever in any lease which expressly refers to schedule 3
there is used the form of words contained in column 1 and
distinguished by a number in it, such form of words shall
imply an obligation by the lessee or the lessor with the lessor
or the lessee in the terms contained in column 2, and
distinguished by the corresponding number.
(2) There may be introduced into or annexed to any form in
column 1 any addition to, exception from, or qualification of
the same, or any words in such column may be struck out or
omitted, and a proviso which would give effect to the
intention indicated by such addition, exception, qualification,
striking out, or omission, shall be taken to be added to the
corresponding form in column 2.
(3) In the case of a lease by deed any obligation implied by this
section shall take effect as a covenant.
(4) This section applies only to leases made after the
commencement of this Act.
110 Cases in which statutory obligations or powers not
implied
Where on the face of any lease it appears that any of the short
forms of words contained in schedule 3, column 1 has been
struck out, the covenant, obligation or proviso represented by
such short form of words shall not be implied in the lease by
sections 105 and 109.
111 Lessee to give notice of ejectment to the lessor
Every lessee to whom there is delivered any writ or plaint for
recovery or for delivery of land leased to or held by the lessee,
or to whose knowledge any such writ or plaint comes, shall
immediately give notice to the lessor or the lessor’s agent,
and, if the lessee fails to do so, the lessee shall be liable to the
person of whom the lessee holds the land for any damages
sustained by that person because of the failure, to be
recovered by action in any court of competent jurisdiction.
[s 112]
Property Law Act 1974
Part 8 Leases and tenancies
Page 114 Current as at 30 April 2022
Authorised by the Parliamentary Counsel
112 Provisions as to covenants to repair
(1) Damages for a breach of a covenant, obligation or agreement
to keep or put premises in repair during the currency of a
lease, or to leave or put premises in repair at the termination of
a lease, whether such covenant, obligation or agreement is
expressed or implied, and whether general or specific, shall in
no case exceed the amount (if any) by which the value of the
reversion (whether immediate or not) in the premises is
diminished owing to the breach of such covenant, obligation,
or agreement, and in particular no damage shall be recovered
for a breach of any such covenant, obligation, or agreement to
leave or put premises in repair at the termination of a lease, if
it is shown that the premises, in whatever state of repair they
might be, would at or shortly after the termination of the lease
have been or be pulled down, or such structural alterations
made to the premises as would render valueless the repairs
covered by the covenant, obligation, or agreement.
(2) A right of re-entry or forfeiture for a breach of any such
covenant, obligation, or agreement shall not be enforceable,
by action or otherwise, unless the lessor proves that the fact
that such a notice as is required by section 124 had been
served on the lessee was known either—
(a) to the lessee; or
(b) to an under-lessee holding under an under-lease which
reserved a nominal reversion only to the lessee; or
(c) to the person who last paid the rent due under the lease
either on the person’s own behalf or as agent for the
lessee or under-lessee;
and that a time reasonably sufficient to enable the repairs to be
executed had elapsed since the time when the fact of the
service of the notice came to the knowledge of any such
person.
(3) Where a notice as referred to in subsection (2) has been sent
by post in a registered letter addressed to a person at the
person’s last known place of abode in or out of the State, and
that letter is not returned through the post office undelivered,
then, for the purposes of subsection (2), that person shall be
[s 113]
Property Law Act 1974
Part 8 Leases and tenancies
Current as at 30 April 2022 Page 115
Authorised by the Parliamentary Counsel
deemed, unless the contrary is proved, to have had knowledge
of the fact that the notice had been served as from the time at
which the letter would have been delivered in the ordinary
course of post.
(4) This section applies whether the lease was created before or
after the commencement of this Act.
Division 2 Surrenders, assignments and
waiver
113 Head leases may be renewed without surrendering
under-leases
(1) In case any lease is duly surrendered in order to be renewed,
and a new lease made and executed by the head landlord, such
new lease shall without a surrender of all or any of the
under-leases, be as good and valid to all intents and purposes
as if all the under-leases derived out of that lease had been
likewise surrendered at or before the taking of such new lease.
(2) Every person in whom any estate for life, or lives, or for years,
is from time to time vested because of such new lease and the
person’s executors and administrators shall be entitled to the
rents, covenants, obligations, and duties, and have like remedy
for the recovery of the rents, covenants, obligations and
duties, and the under-lessees shall hold and enjoy the lands in
the respective under-leases comprised, as if the original leases
out of which the respective under-leases are derived had been
still kept on foot and continued.
(3) The head landlord shall be entitled to the same remedy by
entry in and upon the lands comprised in any such under-lease
for the rents and duties reserved by such new lease (so far as
the same do not exceed the rents and duties reserved in the
lease out of which such under-lease was derived) as the head
landlord would have had in case such former lease had been
still continued or as the head landlord would have had in case
the respective under-leases had been renewed under such new
principal lease.
[s 114]
Property Law Act 1974
Part 8 Leases and tenancies
Page 116 Current as at 30 April 2022
Authorised by the Parliamentary Counsel
(4) For a registered lease of registered land, this section is subject
to the Land Title Act 1994.
114 Provision as to attornments by tenants
(1) Where land is subject to a lease—
(a) the conveyance of a reversion in the land expectant on
the determination of the lease; or
(b) the creation or conveyance of a rent charge to issue or
issuing out of the land;
shall be valid without any attornment of the lessee.
(1A) Nothing in subsection (1)—
(a) affects the validity of any payment of rent by the lessee
to the person making the conveyance or grant before
notice of the conveyance or grant is given to the lessee
by the person entitled under the conveyance or grant; or
(b) renders the lessee liable for any breach of covenant to
pay rent, on account of the lessee’s failure to pay rent to
the person entitled under the conveyance or grant before
such notice is given to the lessee.
(2) An attornment by the lessee in respect of any land to a person
claiming to be entitled to the interest in the land of the lessor,
if made without the consent of the lessor, shall be void.
(2A) Subsection (2) does not apply to an attornment—
(a) made under a judgment of a court of competent
jurisdiction; or
(b) to a mortgagee, by a lessee holding under a lease from
the mortgagor where the right of redemption is barred;
or
(c) to any person rightfully deriving title under the lessor.
[s 115]
Property Law Act 1974
Part 8 Leases and tenancies
Current as at 30 April 2022 Page 117
Authorised by the Parliamentary Counsel
115 When reversion on a lease is surrendered etc. the next
estate to be deemed the reversion
(1) When the reversion expectant on a lease of land made either
before or after the commencement of this Act is surrendered
or merges after the commencement of this Act, the estate
which for the time being confers as against the lessee under
the lease the next vested right to the land, shall, to the extent
and for the purpose of preserving such incidents to, and
obligations on, the reversion as, but for the surrender or
merger of the lease, would have subsisted, be deemed the
reversion expectant on the lease.
(2) This section is subject, in the case of a registered lease of
registered land, to the provisions of the Land Title Act 1994.
116 Apportionment of conditions on severance
(1) Despite the severance by conveyance, surrender, or otherwise
of the reversionary estate in any land comprised in a lease, and
despite the avoidance or cesser in any other manner of the
term granted by a lease as to part only of the land comprised
in the lease, every condition or right of re-entry, and every
other condition contained in the lease, shall be apportioned,
and shall remain annexed to the severed parts of the
reversionary estate as severed, and shall be in force with
respect to the term on which each severed part is reversionary,
or the term in the part of the land as to which the term has not
been surrendered, or has not been avoided or has not
otherwise ceased, in like manner as if the land comprised in
each severed part, or the land as to which the term remains
subsisting, as the case may be, had alone originally been
comprised in the lease.
(2) In this section—
right of re-entry includes a right to determine the lease by
notice to quit or otherwise, but where the notice is served by a
person entitled to a severed part of the reversion so that it
extends to part only of the land demised, the lessee may
within 1 month determine the lease in regard to the rest of the
[s 117]
Property Law Act 1974
Part 8 Leases and tenancies
Page 118 Current as at 30 April 2022
Authorised by the Parliamentary Counsel
land by giving to the owner of the reversionary estate in it a
counter notice expiring at the same time as the original notice.
(3) This section applies to—
(a) leases made after the commencement of this Act; and
(b) leases made before the commencement of this Act
where the reversionary estate in the lands comprised in
the lease is severed or there is an avoidance or cesser of
the term as mentioned in this section after the
commencement of this Act.
117 Rent and benefit of lessee’s covenants to run with the
reversion
(1) Rent reserved by a lease, and the benefit of every covenant,
obligation, or provision contained in the lease, touching and
concerning the land, and on the lessee’s part to be observed or
performed, and every condition of re-entry and other
condition contained in the lease, shall be annexed and incident
to and shall go with the reversionary estate in the land, or in
any part of the reversionary estate, immediately expectant on
the term granted by the lease, despite severance of that
reversionary estate, and without prejudice to any liability
affecting a covenantor or the covenantor’s estate.
(2) Any such rent, covenant, obligation, or provision shall be
capable of being recovered, received, enforced, and taken
advantage of, by the person from time to time entitled, subject
to the term, to the income of the whole or any part, as the case
may require, of the land leased.
(3) Where that person becomes entitled by conveyance or
otherwise, such rent, covenant, obligation, or provision may
be recovered, received, enforced or taken advantage of by the
person even though the person becomes so entitled after the
condition of re-entry or forfeiture has become enforceable, but
this subsection does not render enforceable any condition of
re-entry or other condition waived or released before such
person becomes entitled.
(4) This section applies to—
[s 118]
Property Law Act 1974
Part 8 Leases and tenancies
Current as at 30 April 2022 Page 119
Authorised by the Parliamentary Counsel
(a) leases made after the commencement of this Act; and
(b) leases made before the commencement of this Act, but
with respect only to rent accruing due after the
commencement of this Act and to the benefit of a
condition of re-entry or forfeiture for a breach
committed after the commencement of this Act of any
covenant, condition, obligation or provision contained
in the lease.
118 Obligation of lessor’s covenants to run with reversion
(1) The obligation under a condition or of a covenant or other
obligation entered into by a lessor touching and concerning
the land shall, if and as far as the lessor has power to bind the
reversionary estate immediately expectant on the term granted
by the lease, be annexed and incident to and shall go with that
reversionary estate, or the several parts of the reversionary
estate, despite severance of that reversionary estate, and may
be taken advantage of and enforced by the person in whom the
term is from time to time vested by conveyance, devolution in
law, or otherwise, and, if and as far as the lessor has power to
bind the person from time to time entitled to that reversionary
estate, the obligation may be taken advantage of and enforced
against any person so entitled.
(2) This section applies to—
(a) leases made after the commencement of this Act; and
(b) leases made before the commencement of this Act so far
only as relates to breaches of covenant committed after
the commencement of this Act.
(3) This section takes effect without prejudice to any liability
affecting a covenantor or the covenantor’s estate.
119 Waiver of a covenant in a lease
(1) Where any actual waiver by a lessor or the persons deriving
title under the lessor of the benefit of any covenant,
obligation, or condition in any lease is proved to have taken
[s 120]
Property Law Act 1974
Part 8 Leases and tenancies
Page 120 Current as at 30 April 2022
Authorised by the Parliamentary Counsel
place in any particular instance, such waiver shall not be
deemed to extend to any instance, or to any breach of
covenant, obligation, or condition save that to which such
waiver specially relates, nor operate as a general waiver of the
benefit of any such covenant, obligation, or condition.
(2) Unless a contrary intention appears, this section applies and
extends to waivers effected after 28 December 1867.
120 Effect of licences granted to lessees
(1) Where a licence is granted to a lessee to do any act, the
licence, unless otherwise expressed, extends only—
(a) to the permission actually given; or
(b) to the specific breach of any provision or covenant
referred to; or
(c) to any other matter specifically authorised to be done by
the licence;
and the licence does not prevent any proceeding for any
subsequent breach unless otherwise specified in the licence.
(2) Despite any such licence—
(a) all rights under covenants, obligations, and powers of
re-entry contained in the lease remain in full force and
are available as against any subsequent breach of
covenant, obligation, condition or other matter not
specifically authorised or waived, in the same manner as
if no licence had been granted; and
(b) the condition or right of entry remains in force in all
respects as if the licence had not been granted, save in
respect of the particular matter authorised to be done.
(3) Where in any lease there is a power or condition of re-entry on
the lessee assigning, subletting or doing any other specified
act without a licence, and a licence is granted—
(a) to any 1 of 2 or more lessees to do any act, or to deal
with the lessee’s equitable share or interest; or
[s 121]
Property Law Act 1974
Part 8 Leases and tenancies
Current as at 30 April 2022 Page 121
Authorised by the Parliamentary Counsel
(b) to any lessee, or to any 1 of 2 or more lessees to assign
or underlet part only of the property, or to do any act in
respect of part only of the property;
the licence does not operate to extinguish the right of entry in
case of any breach of covenant, obligation, or condition by the
co-lessees of the other shares or interests in the property, or by
the lessee or lessees of the rest of the property (as the case
may be), in respect of such shares or interests or remaining
property, but the right of entry remains in force in respect of
the shares, interests or property not the subject of the licence.
(4) This section applies to licences granted after 28 December
1867.
121 Provisions as to covenants not to assign etc. without
licence or consent
(1) In all leases whether made before or after the commencement
of this Act, containing a covenant, condition, or agreement
against assigning, underletting, charging or parting with the
possession of premises leased or any part of the premises,
without licence or consent, such covenant, condition, or
agreement shall—
(a) despite any express provision to the contrary, be deemed
to be subject—
(i) to a proviso to the effect that the licence or consent
is not to be unreasonably withheld, but this proviso
does not preclude the right of the lessor to require
payment of a reasonable sum in respect of any
legal or other expenses incurred in connection with
the licence or consent; and
(ii) if the lease is for more than 40 years and is made in
consideration wholly or partially of the erection, or
the substantial improvement, addition, or alteration
of buildings—to a proviso to the effect that in the
case of any assignment, underletting, charging, or
parting with the possession (whether by the holders
of the lease or any under-lessee whether immediate
[s 121]
Property Law Act 1974
Part 8 Leases and tenancies
Page 122 Current as at 30 April 2022
Authorised by the Parliamentary Counsel
or not) effected more than 7 years before the end of
the term no consent or licence shall be required, if
notice in writing of the transaction is given to the
lessor within 6 months after the transaction is
effected; and
(b) unless the lease contains an express provision to the
contrary, be deemed to be subject to a proviso to the
effect that no fine or sum of money in the nature of a
fine shall be payable for or in respect of the licence or
consent, but this proviso does not preclude the right to
require the payment of a reasonable sum in respect of
any legal or other expenses incurred in relation to the
licence or consent.
(2) In all leases, whether made before or after the commencement
of this Act, containing a covenant, condition, or agreement
against the making of improvements without licence or
consent, such covenant, condition, or agreement shall be
deemed, despite any express provision to the contrary, to be
subject to the proviso that the licence or consent is not to be
unreasonably withheld, but this proviso does not preclude the
right to require as a condition of the licence or consent the
payment of a reasonable sum in respect of any damage to or
diminution in the value of the premises or any neighbouring
premises belonging to the lessor, and of any legal or other
expenses properly incurred in connection with the licence or
consent nor in the case of an improvement which does not add
to the letting value of the holding, does it preclude the right to
require as a condition of the licence or consent, where such a
requirement would be reasonable, an undertaking on the part
of the lessee to reinstate the premises in the condition in
which they were before the improvement was executed.
(3) In all leases, whether made before or after the commencement
of this Act, containing a covenant, condition, or agreement
against the alteration of the user of the leased premises
without licence or consent such covenant, condition, or
agreement shall, if the alteration does not involve any
structural alteration of the premises, be deemed, despite any
express provision to the contrary, to be subject to a proviso
[s 122]
Property Law Act 1974
Part 8 Leases and tenancies
Current as at 30 April 2022 Page 123
Authorised by the Parliamentary Counsel
that no fine or sum of money in the nature of a fine, whether
by way of increase of rent or otherwise, shall be payable for or
in respect of the licence or consent, but this proviso does not
preclude the right of the lessor to require payment of a
reasonable sum in respect of any damage to or diminution in
the value of the premises or any neighbouring premises
belonging to the lessor and of any legal or other expenses
incurred in connection with the licence or consent.
(4) Where a dispute as to the reasonableness of any such sum has
been determined by a court of competent jurisdiction, the
lessor shall be bound to grant the licence or consent on
payment of the sum so determined to be reasonable.
122 Involuntary assignment no breach of covenant
Neither the assignment nor the underletting of any lease by
the trustee of a bankrupt, or by the liquidator on behalf of a
company (other than a liquidator in a voluntary winding up of
a solvent company), nor the sale of any lease under an
execution, nor the bequest of a lease shall be deemed to be a
breach of a covenant, condition, or agreement against the
assigning, underletting, parting with the possession, or
disposing of the land leased.
Division 3 Relief from forfeiture
123 Definitions for div 3
In this division—
lease includes an original or derivative under-lease, also a
grant at a fee farm rent, or securing a rent by condition, and an
agreement for a lease where the lessee has become entitled to
have the lease granted.
lessee includes an original or derivative under-lessee, a
grantee under such a grant, a grantee’s executors,
administrators, and assigns, a person entitled under such an
[s 123A]
Property Law Act 1974
Part 8 Leases and tenancies
Page 124 Current as at 30 April 2022
Authorised by the Parliamentary Counsel
agreement, and the executors, administrators, and assigns of a
lessee.
lessor includes an original or derivative under-lessor, such a
grantor, a person bound to grant a lease under such an
agreement, and the executors, administrators, and assigns of a
lessor.
proceedings include an application commenced by
originating summons.
under-lease includes an agreement for an under-lease where
the under-lessee has become entitled to have the under-lease
granted.
under-lessee includes any person deriving title through or
from an under-lessee.
123A Application of div 3
This division does not apply to leases from the State of land
held from the State under the Coal Mining Act, Land Act,
Mineral Resources Act or Housing Act, but does apply to
under-leases from the holder of such land.
124 Restriction on and relief against forfeiture
(1) A right of re-entry or forfeiture under any proviso or
stipulation in a lease, for a breach of any covenant, obligation,
condition or agreement (express or implied) in the lease, shall
not be enforceable by action or otherwise unless and until the
lessor serves on the lessee a notice—
(a) specifying the particular breach complained of; and
(b) if the breach is capable of remedy, requiring the lessee
to remedy the breach; and
(c) in case the lessor claims compensation in money for the
breach, requiring the lessee to pay the same;
and the lessee fails within a reasonable time after service of
the notice to remedy the breach, if it is capable of remedy,
and, where compensation in money is required, to pay
[s 124]
Property Law Act 1974
Part 8 Leases and tenancies
Current as at 30 April 2022 Page 125
Authorised by the Parliamentary Counsel
reasonable compensation to the satisfaction of the lessor for
the breach.
(2) Where a lessor is proceeding by action or otherwise to enforce
such a right of re-entry or forfeiture, or has re-entered without
action the lessee may, in the lessor’s action (if any) or in
proceedings instituted by the lessee, apply to the court for
relief, and the court, having regard to the proceedings and
conduct of the parties under subsection (1), and to all the other
circumstances, may grant or refuse relief, as it thinks fit, and
in case of relief may grant the same on such terms (if any) as
to costs, expenses, damages, compensation, penalty or
otherwise, including the granting of an injunction to restrain
any like breach in the future, as the court in the circumstances
of each case thinks fit.
(3) The making of an application under this section shall not of
itself be construed as an admission on the part of the lessee—
(a) that any such notice as is mentioned in subsection (1)
has been served by the lessor; or
(b) that any such breach as is mentioned in subsection (1)
has occurred or that any right of or cause for re-entry or
forfeiture has accrued or arisen;
and the court may, if it thinks fit, grant relief without making a
finding that, or arriving at a final determination whether, any
such notice has been served, or any such breach has occurred,
or that any such right has accrued or cause arisen.
(4) This section applies although the proviso or stipulation under
which the right of re-entry or forfeiture accrues is inserted in
the lease under the directions of any Act of Parliament.
(5) For the purposes of this section a lease limited to continue as
long only as the lessee abstains from committing a breach of
covenant or obligation shall be and take effect as a lease to
continue for any longer term for which it could subsist, but
determinable by a proviso for re-entry on such a breach.
(6) This section does not extend—
(a) to any lease or tenancy for a term of 1 year or less; or
[s 124]
Property Law Act 1974
Part 8 Leases and tenancies
Page 126 Current as at 30 April 2022
Authorised by the Parliamentary Counsel
(b) to a covenant, condition, or agreement against the
assigning, underletting, parting with the possession or
disposing of the land leased where the breach occurred
before the commencement of this Act; or
(c) to a condition for forfeiture on the taking in execution of
the lessee’s interest in any lease of—
(i) agricultural or pastoral land; or
(ii) mines or minerals; or
(iii) a house used or intended to be used as licensed
premises under the Liquor Act 1992; or
(iv) a house let as a dwelling house; or
(v) any property with respect to which the personal
qualifications of the tenant are of importance for
the preservation of the value or character of the
property, or on the ground of neighbourhood to the
lessor or to any person holding under the lessor; or
(d) in case of a mining lease—to a covenant, condition, or
agreement for allowing the lessor to have access to or
inspect books, accounts, records, weighing-machines, or
other things, or to enter or inspect the mine or the
workings of the mine; or
(e) to a condition for forfeiture on the taking in execution of
the lessee’s interest in any lease (other than a lease
mentioned in paragraph (c)) after the expiration of 1
year from the date of taking in execution, provided the
lessee’s interest be not sold within such 1 year.
(6A) But if the lessee’s interest be sold within such 1 year this
section shall extend and be applicable to such condition for
forfeiture.
(7) The rights and powers conferred by this section are in addition
to and not in derogation of any right to relief or power to grant
relief had apart from this section.
(8) The notice mentioned in this section shall be in the approved
form.
[s 125]
Property Law Act 1974
Part 8 Leases and tenancies
Current as at 30 April 2022 Page 127
Authorised by the Parliamentary Counsel
(9) This section applies to leases made either before or after the
commencement of this Act, and shall have effect despite any
stipulation to the contrary.
125 Power of court to protect under-lessee on forfeiture of
superior leases
(1) Where a lessor is proceeding, by action or otherwise, to
enforce a right of re-entry or forfeiture, under any covenant,
proviso, or stipulation in a lease made either before or after
the commencement of this Act or for non-payment of rent, the
court may, on application by any person claiming as
under-lessee any estate or interest in the property comprised
in the lease, or any part of any estate or interest in the
property, make an order staying any such action or other
proceeding on such terms as to the court may seem just, and
vesting, for the whole term of the lease, or any less term, the
property comprised in the lease or any part of any estate or
interest in the property, in any person entitled as under-lessee
to any estate or interest in such property, upon such conditions
as to execution of any deed or other document, payment of
proper and reasonable rent, costs, expenses, damages,
compensation, giving security, or otherwise as the court in the
circumstances of each case, and having regard to the consent
or otherwise of the lessor to the creation of the estate or
interest claimed by the under-lessee, thinks fit, but in no case
shall any such under-lessee be entitled to require a lease to be
granted to the under-lessee for a larger area of land or for any
longer term than the under-lessee had under the original
under-lease.
(2) Any such order may be made in proceedings brought for the
purpose by the person claiming as under-lessee or, where the
lessor is proceeding by action or otherwise in the court, may
be made in such proceeding.
126 Costs and expenses
(1) A lessor shall be entitled to recover as a debt due to the lessor
from a lessee, and in addition to damages (if any), all
[s 127]
Property Law Act 1974
Part 8 Leases and tenancies
Page 128 Current as at 30 April 2022
Authorised by the Parliamentary Counsel
reasonable costs and expenses properly incurred by the lessor
in the employment of a solicitor and surveyor or valuer, or
otherwise, in reference to any breach giving rise to a right of
re-entry or forfeiture which, at the request of the lessee, is
waived by the lessor, or from which the lessee is relieved,
under this Act.
(2) The lessor shall be so entitled to recover whether the lessee
has or has not rendered forfeiture unenforceable against the
lessee under section 124(2).
127 Relief against notice to effect decorative repairs
(1) After a notice is served on a lessee relating to the internal
decorative repairs to a house or other building, the lessee may
apply to the court for relief, and if, having regard to all the
circumstances of the case (including in particular the length of
the lessee’s term or interest remaining unexpired), the court is
satisfied that the notice is unreasonable, it may, by order,
wholly or partially relieve the lessee from liability for such
repairs.
(2) This section does not apply—
(a) where the liability arises under an express covenant or
agreement to put the property in a decorative state of
repair and the covenant or agreement has never been
performed; or
(b) to any matter necessary or proper—
(i) for putting or keeping the property in a sanitary
condition; or
(ii) for the maintenance or preservation of the
structure; or
(c) to any statutory liability to keep a house in all respects
reasonably fit for human habitation; or
(d) to any covenant or stipulation to yield up the house or
other building in a specified state of repair at the end of
the term.
[s 128]
Property Law Act 1974
Part 8 Leases and tenancies
Current as at 30 April 2022 Page 129
Authorised by the Parliamentary Counsel
(3) This section applies whether the notice is served before or
after the commencement of this Act, and has effect despite
any stipulation to the contrary.
(4) The rights and powers conferred by this section are in addition
to and not in derogation of any right to relief or power to grant
relief had apart from this section.
128 Relief against loss of lessee’s option
(1) In this section—
(a) a reference to an option contained in a lease is a
reference to a right on the part of the lessee to require
the lessor—
(i) to sell, or offer to sell, to the lessee the reversion
expectant on the lease; or
(ii) to grant, or offer to grant, to the lessee a renewal or
extension of the lease, or a further lease, of the
demised premises or a part of the demised
premises, whether the right is conferred by the
lease or by an agreement collateral to the lease; and
(b) a reference to a breach by a lessee of the lessee’s
obligations under a lease containing an option is a
reference to a breach of those obligations by an act done
or omitted to be done before or after the commencement
of this Act in so far as the act or omission would
constitute a breach of those obligations if there were no
option contained in the lease.
(2) This section applies to and in respect of leases granted before
or after the commencement of this Act and options contained
in such leases, and has effect despite any stipulation to the
contrary.
(3) In this section—
prescribed notice means a notice in writing that—
(a) specifies an act or omission; and
[s 128]
Property Law Act 1974
Part 8 Leases and tenancies
Page 130 Current as at 30 April 2022
Authorised by the Parliamentary Counsel
(b) states that, subject to any order of the court under
subsection (6), a lessor giving the notice proposes to
treat that act or omission as having precluded a lessee on
whom the notice is served from exercising an option
contained in the lease.
(4) Where an act or omission that constituted a breach by a lessee
of the lessee’s obligations under a lease containing an option
would, but for this section, have had the effect of precluding
the lessee from exercising the option, the act or omission shall
be deemed not to have had that effect where the lessee
purports to exercise the option unless, during the period of 14
days next succeeding the purported exercise of the option, the
lessor serves on the lessee prescribed notice of the act or
omission and—
(a) an order for relief against the effect of the breach in
relation to the purported exercise of the option is not
sought from the court before the expiration of the period
of 1 month next succeeding service of the notice; or
(b) where such relief is so sought—
(i) the proceedings in which the relief is sought are
disposed of, in so far as they relate to that relief,
otherwise than by granting relief; or
(ii) where relief is granted upon terms to be complied
with by the lessee before compliance by the lessor
with the order granting relief, the lessee fails to
comply with those terms within the time stipulated
by the court for the purpose.
(5) Relief referred to in subsection (4) may be sought—
(a) in proceedings instituted in the court for the purpose; or
(b) in proceedings in the court in which—
(i) the existence of an alleged breach by the lessee of
the lessee’s obligations under the lease; or
(ii) the effect of the breach from which relief is sought;
is in issue.
[s 128]
Property Law Act 1974
Part 8 Leases and tenancies
Current as at 30 April 2022 Page 131
Authorised by the Parliamentary Counsel
(6) The court may, in proceedings in which relief referred to in
subsection (4) is sought—
(a) make such orders (including orders affecting an
assignee of the reversion) as it thinks fit for the purpose
of granting the relief sought; or
(b) refuse to grant the relief sought.
(7) The court may, in proceedings referred to in subsection (6),
take into consideration—
(a) the nature of the breach complained of; and
(b) the extent to which, at the date of the institution of the
proceedings, the lessor was prejudiced by the breach;
and
(c) the conduct of the lessor and the lessee, including
conduct after the giving of the prescribed notice; and
(d) the rights of persons other than the lessor and the lessee;
and
(e) the operation of subsection (9); and
(f) any other circumstances considered by the court to be
relevant.
(8) The court—
(a) may make an order under subsection (6) on such terms
as to costs, damages, compensation or penalty, or on
such other terms, as the court thinks fit; and
(b) may make any consequential or ancillary order it
considers necessary to give effect to an order made
under that subsection.
(9) Subject to any order of the court and to subsections (10) and
(11)—
(a) where—
(i) an option is contained in a lease; and
(ii) the lessee exercises, or purports to exercise, the
option; and
[s 128]
Property Law Act 1974
Part 8 Leases and tenancies
Page 132 Current as at 30 April 2022
Authorised by the Parliamentary Counsel
(iii) the lease would, but for this paragraph, expire
within the period of 14 days after the exercise, or
purported exercise, of the option;
the lease shall be deemed to continue in force until the
expiration of that period; and
(b) where—
(i) a prescribed notice is duly served on a lessee; and
(ii) the lease in respect of which the notice is served
would, but for this paragraph, expire within the
period of 1 month referred to in subsection (4)(a);
the lease shall be deemed to continue in force until the
expiration of that period; and
(c) where, in relation to a lease continued in force under
paragraph (b), relief referred to in subsection (4) is
sought by a lessee, the lease shall, subject to
subsections (10) and (11) be deemed to continue in
force until—
(i) the proceedings in which the relief is sought are
disposed of, in so far as they relate to that relief,
otherwise than by granting the relief; or
(ii) effect is given to orders made by the court in
granting that relief in so far as they affect the lessor
or relate to an assurance to the lessee.
(10) Subsection (9)(c)—
(a) does not apply to or in respect of a lease that, but for that
paragraph, would continue in force for a period longer
than the period for which it is, by the operation of that
paragraph, continued in force; and
(b) does not, where a lessee fails to comply with terms
imposed upon the lessee under subsection (8)(a),
operate to continue the lease in force beyond the time of
that failure by the lessee.
(11) Where, under subsection (9), a lease continues in force after
the day on which, but for that subsection, it would expire—
[s 129]
Property Law Act 1974
Part 8 Leases and tenancies
Current as at 30 April 2022 Page 133
Authorised by the Parliamentary Counsel
(a) the lease so continues in force subject to the provisions,
stipulations, covenants, conditions and agreements in
the lease (other than those relating to the term and the
option contained in the lease) but without prejudice to
any rights or remedies of the lessor or lessee in relation
to the lease; and
(b) the lessee, if the lease is of registered land and the lessee
is in possession of the leased premises, has the
protection given by the Land Title Act 1994 to—
(i) if the lessee’s interest in the lease is held by the
lessee as a registered proprietor—a registered
proprietor; or
(ii) if the lease is an unregistered short lease (within
the meaning of the Land Title Act 1994)—the
interest of a lessee under a short lease.
(12) Subject to subsection (13), where, under an option contained
in a lease continued in force under subsection (9), the lease is
renewed or a new lease is granted, the period during which the
lease was so continued in force shall be deemed to be part of
the term for which the lease was renewed or the new lease
granted, and any lease granted under an exercise of the option
shall be expressed to have commenced when the lease
containing the option would, but for subsection (9), have
expired.
(13) Subsection (12) does not apply to or in respect of a lease that
stipulates for the commencement of any lease granted under
an exercise of the option contained in the lease on a day that is
later than the day on which the lease so granted would, but for
this subsection, commence under subsection (12).
Division 4 Termination of tenancies
129 Abolition of yearly tenancies arising by implication of law
(1) No tenancy from year to year shall, after the commencement
of this Act, be implied by payment of rent; if there is a
[s 130]
Property Law Act 1974
Part 8 Leases and tenancies
Page 134 Current as at 30 April 2022
Authorised by the Parliamentary Counsel
tenancy, and no agreement as to its duration, then such
tenancy shall be deemed to be a tenancy determinable at the
will of either of the parties by 1 month’s notice in writing
expiring at any time.
(2) This section shall not apply where there is a tenancy from year
to year which has arisen by implication before the
commencement of this Act, and, in the case of any such
tenancy in respect of which the date of its creation is unknown
to the lessor or lessee, as the case may be, who is seeking to
determine the same, such tenancy shall, subject to any express
agreement to the contrary, be determinable by 6 months’
notice in writing expiring on the day immediately before the
first anniversary of the coming into operation of this Act, or
any date afterwards.
130 Notice of termination of tenancy
(1) Subject to the other provisions of this division, a weekly,
monthly, yearly, or other periodic tenancy may be terminated
by either the landlord or the tenant upon notice to the other
and, unless otherwise agreed upon, the notice—
(a) shall satisfy the requirements of section 131; and
(b) shall be given in the manner prescribed by section 132;
and
(c) shall be given in sufficient time to provide the period of
notice required by section 133, 134, 135 or 136, as the
case may be.
(2) Subject to section 129, any other kind of tenancy
determinable on notice may, unless otherwise expressly
agreed upon, be terminated as provided by sections 131 and
132.
(3) In this section—
yearly tenancy means a tenancy from year to year other than a
tenancy from year to year arising by implication before the
commencement of this Act.
[s 131]
Property Law Act 1974
Part 8 Leases and tenancies
Current as at 30 April 2022 Page 135
Authorised by the Parliamentary Counsel
131 Form and contents of notice
(1) A landlord or a tenant may give notice to terminate either
orally or in writing, but a notice by a landlord to a tenant shall
not be enforceable under division 5 unless it is in writing.
(2) A notice in writing—
(a) shall be signed by the person giving the notice or by the
person’s agent; and
(b) shall identify the land or premises in respect of which
the notice is given; and
(c) shall state the date on which the tenancy is to terminate
or that the tenancy is to terminate on the last day of the
period of the tenancy next following the giving of the
notice.
(3) A notice may state both—
(a) the date on which the tenancy is to terminate; and
(b) that the tenancy is to terminate on the last day of the
period of the tenancy next following the giving of the
notice;
and, if it does state both, and the date on which the tenancy is
to terminate is incorrectly stated, the notice shall be effective
to terminate the tenancy on the last day of the period of the
tenancy next following the giving of the notice.
(4) A notice need not be in a particular form, but a notice by a
landlord to a tenant, or by a tenant to a landlord, may be in the
approved form.
132 Manner of giving notice
(1) Notice to terminate shall be sufficiently given if delivered
personally to the tenant or, as the case may be, to the landlord
or the landlord’s agent.
(2) Where the tenant is absent from the land or premises, or is
evading service, the notice may be given to the tenant—
[s 132]
Property Law Act 1974
Part 8 Leases and tenancies
Page 136 Current as at 30 April 2022
Authorised by the Parliamentary Counsel
(a) by delivering it to some person apparently over the age
of 18 years and apparently residing on or in occupation
of the land or premises; or
(b) by delivering it to the person by whom the rent is
usually paid, if such person is apparently over the age of
18 years; or
(c) by posting it up in a conspicuous place upon some part
of the land or premises; or
(d) by sending it by registered post to the tenant at the
tenant’s usual or last known place of abode or business.
(3) Where a tenant has died and probate or letters of
administration of the tenant’s estate have not been granted,
any notice to terminate which might have been given to the
legal personal representative of the deceased tenant had
probate or letters of administration of the tenant’s estate been
granted shall be sufficiently given if—
(a) where any person is or persons are apparently residing
on or in occupation of the land or premises—it is
delivered to any of such persons apparently over the age
of 18 years; and
(b) in any other case—it is advertised twice in a daily
newspaper circulating in the district in which the land or
premises are situated.
(3A) Where a proceeding for the recovery of the possession of land
or premises is taken in reliance on a notice to terminate given
in a manner provided in subsection (3)(a), any occupier of the
land or premises or other person claiming an interest in the
land or premises shall be entitled to be heard in the proceeding
and the contesting of the proceeding shall not of itself be
regarded as an act of administration or as intermeddling in the
estate of the deceased tenant or as constituting the person so
contesting the proceeding an executor de son tort of the
deceased tenant.
(4) Nothing in this section shall affect the right of a landlord to
give notice to terminate otherwise than as provided in this
section.
[s 133]
Property Law Act 1974
Part 8 Leases and tenancies
Current as at 30 April 2022 Page 137
Authorised by the Parliamentary Counsel
133 Notice to terminate weekly tenancy
(1) A notice to terminate a weekly tenancy shall be given on or
before the last day of 1 week of the tenancy to be effective on
the last day of the following week of the tenancy.
(2) In this section—
week of the tenancy means the weekly period on which the
tenancy is based and not necessarily a calendar week, and,
unless otherwise expressly agreed upon, the week shall be
deemed to begin on the day on which the rent is payable.
134 Notice to terminate monthly tenancy
(1) A notice to terminate a monthly tenancy shall be given on or
before the last day of 1 month of the tenancy to be effective on
the last day of the following month of the tenancy.
(2) In this section—
month of the tenancy means the monthly period on which the
tenancy is based and not necessarily a calendar month, and,
unless otherwise expressly agreed upon, the month shall be
deemed to begin on the day on which the rent is payable.
135 Notice to terminate yearly tenancy
(1) A notice to terminate a yearly tenancy shall be given on or
before the first day of the period of 6 months ending with the
last day of any year of the tenancy to be effective on the last
day of that year of the tenancy.
(2) In this section—
year of the tenancy means the yearly period on which the
tenancy is based and not necessarily a calendar year, and,
unless otherwise expressly agreed upon, the year shall be
deemed to begin on the day, or the anniversary of the day, on
which the tenant first became entitled to possession.
[s 136]
Property Law Act 1974
Part 8 Leases and tenancies
Page 138 Current as at 30 April 2022
Authorised by the Parliamentary Counsel
136 Notice to terminate other periodic tenancy
(1) A notice to terminate a periodic tenancy other than a weekly,
monthly, or yearly tenancy shall be given on or before the last
day of any period of the tenancy to be effective on the last day
of the following period of the tenancy.
(2) In this section—
period of the tenancy means the period on which the tenancy
is based, and, unless otherwise expressly agreed upon, such
period shall be deemed to begin on the day on which the rent
is payable.
137 Notice to terminate other tenancies
(1) A notice to terminate a tenancy, including a tenancy at will,
must be for a reasonable period.
(2) What constitutes a reasonable period of notice depends on the
circumstances, including the nature of the tenancy, the
circumstances surrounding the creation of the tenancy, the
terms (if any) of the tenancy, and any proper implications
from the agreement (if any) of the parties with respect to the
tenancy.
(3) Subsection (1) does not apply to—
(a) a tenancy for which a period of notice has, expressly or
impliedly, been agreed on by the parties; and
(b) a weekly, monthly, yearly or other periodic tenancy
subject to this Act with respect to notices to terminate;
and
(c) a tenancy at will arising because of the abolition by this
Act of the implication of a tenancy from year to year.
138 Tenants and other persons holding over to pay double
the yearly value
Where any tenant for years, including a tenant from year to
year or other person who is or comes into possession of any
[s 139]
Property Law Act 1974
Part 8 Leases and tenancies
Current as at 30 April 2022 Page 139
Authorised by the Parliamentary Counsel
land by, from or under or by collusion with such tenant,
wilfully holds over any land after—
(a) determination of the lease or term; and
(b) after demand made and notice in writing has been given
for the delivery of possession of the land by the lessor or
landlord or the person to whom the remainder or
reversion of such land belongs or the person’s agent
lawfully authorised;
then the person so holding over shall, for and during the time
the person so holds over or keeps the person entitled out of
possession of such land, be liable to the person so kept out of
possession at the rate of double the yearly value of the land so
detained for so long as the land shall have been so detained, to
be recovered by action in any court of competent jurisdiction.
139 Tenant holding over after giving notice to be liable for
double rent
(1) Where a lessee who has given notice of intention to quit the
land held by the lessee at a time specified in such notice does
not accordingly deliver up possession at the time so specified,
then, the lessee shall after that time be liable to the lessor for
double the rent or sum which would have been payable to the
lessor before such notice was given.
(2) Such lessee shall continue to be liable for such double rent or
sum during the time the lessee continues in possession, to be
recovered by action in any court of competent jurisdiction.
Division 5 Summary recovery of possession
140 Definitions for div 5
In this division—
agent means—
(a) a person usually employed by the landlord in the letting
of the land or in the collection of the rents of the land; or
[s 141]
Property Law Act 1974
Part 8 Leases and tenancies
Page 140 Current as at 30 April 2022
Authorised by the Parliamentary Counsel
(b) a person specially authorised to act in the particular
matter by writing under the hand of the landlord; or
(c) a solicitor authorised to act on behalf of the landlord.
court means a Magistrates Court.
defendant means the person alleged in a complaint under this
division to be a person who fails to deliver up possession of
land.
Magistrates Court District means a district for the purposes
of Magistrates Courts appointed under the Justices Act 1886.
141 Summary proceedings for recovery of possession
(1) When the term or interest of the tenant of any land held by the
tenant as tenant for any term of years or for any lesser estate
or interest whether with or without being liable for payment of
rent—
(a) has expired by effluxion of time; or
(b) has been determined by notice to terminate or demand
of possession;
and the tenant or any person claiming under the tenant and in
actual occupation of the land or any part of the land fails to
deliver up possession of such land or part, the landlord may by
complaint under this division proceed to recover possession of
that land or part of it.
(2) The power to recover possession of any land or part of land
conferred by this division shall be in addition to, and not,
except where otherwise provided, in derogation from, any
other power, right, or remedy of the landlord.
142 Mode of proceeding
(1) Subject to this Act proceedings under this division for the
recovery of possession of any land referred to in section 141
may be heard and determined by a Magistrates Court in a
summary way under the Justices Act 1886, upon the
complaint in writing of the landlord or the landlord’s agent.
[s 143]
Property Law Act 1974
Part 8 Leases and tenancies
Current as at 30 April 2022 Page 141
Authorised by the Parliamentary Counsel
(2) The complaint shall be heard and determined at a place where
it could be heard and determined were it a complaint for a
breach of duty committed in the Magistrates Courts district
within which the land concerned is situated or, where the land
concerned is situated in more than 1 such district, in any of
those districts.
143 Contents of complaint
(1) A complaint under this division for the recovery of the
possession of land shall state—
(a) the description in brief of the land or premises or such
other particulars as are sufficient to identify the land;
and
(b) where the land is situated; and
(c) the landlord of whom the land was held; and
(d) that the land was held under a tenancy and (if
practicable) the nature of the tenancy under which the
land was so held; and
(e) the date on which the tenancy expired by effluxion of
time or as the case may be, was determined by a notice
to terminate or demand of possession; and
(f) that the defendant fails to deliver up possession of the
land.
(2) The complaint may be in the approved form.
144 Summons upon complaint for recovery of possession of
land
(1) Upon complaint under section 143 signed by the complainant
or his or her agent a justice may issue his or her summons
directed to the defendant requiring him or her to appear on the
day and at the time stated in the summons at the Magistrates
Court at the place stated in the summons to answer the
complaint and to show cause why a warrant to eject the
defendant from the land should not be issued.
[s 145]
Property Law Act 1974
Part 8 Leases and tenancies
Page 142 Current as at 30 April 2022
Authorised by the Parliamentary Counsel
(2) The summons may be in the approved form.
(3) Every summons shall be endorsed on its face with a notice
directed to the defendant that unless the defendant, not less
than 3 days before the day on which the defendant is required
by the summons to appear, gives written notice to the clerk of
the court at which the defendant is summoned to appear that
the defendant wishes to appear to answer the complaint, the
complaint may be heard and determined in the defendant’s
absence and evidence by affidavit on behalf of the
complainant may be admitted.
(4) The summons shall be served within a reasonable time before
the time appointed for the defendant to appear and in the
manner provided by the Justices Act 1886.
(5) However, where it is made to appear by oral evidence or
affidavit (including affidavit founded upon information and
belief and stating the sources of such information and grounds
of belief) to the court before which the defendant is required
by the summons to appear that for any cause the service of a
summons issued and complaint made under this division
cannot be effected in the manner provided by that Act, the
court may—
(a) make such order for substituted or other service as it
thinks proper, in which case the summons and complaint
served in the manner provided by such order shall be
deemed to have been duly served on the defendant; or
(b) upon being satisfied that the summons and complaint
have by any means come to the knowledge of the
defendant, order that the defendant be deemed to have
been duly served with the summons and on the making
of such order may deal with the complaint as if such
complaint and summons had been duly served under the
Justices Act 1886.
145 Hearing and determination
(1) At the hearing and upon proof of—
(a) the tenancy; and
[s 145]
Property Law Act 1974
Part 8 Leases and tenancies
Current as at 30 April 2022 Page 143
Authorised by the Parliamentary Counsel
(b) the expiry or determination, by notice to terminate or
demand of possession, of the tenancy; and
(c) the lawful right of the landlord as against the defendant
to possession; and
(d) the failure of the defendant to deliver up possession; and
(e) (where the defendant does not appear in person or by
counsel or solicitor) due service of the summons upon
the defendant a reasonable time (being in no case less
than 7 days) before the time appointed for the
defendant’s appearance;
it shall be lawful for the court, unless the defendant appears
and shows to its satisfaction reasonable cause why such a
warrant should not be issued, or the court is otherwise
satisfied that there is such cause, to order that a warrant be
issued against the defendant requiring and authorising any
person to whom it is addressed to take and give possession of
the land the subject of the complaint to the landlord or, where
the complaint was made by an agent, the agent.
(2) Where a defendant does not, at least 3 days before the day on
which the defendant is required by the summons to appear,
give written notice to the clerk of the court before which the
defendant is summoned to appear, that the defendant wishes
to appear to answer the complaint, and proof is made to the
court upon oath, or by deposition made in manner prescribed
by the Justices Act 1886, or by admission of the defendant, of
due service of the summons upon the defendant a reasonable
time (being in no case less than 7 days) before the time
appointed for the defendant’s appearance, then—
(a) an affidavit or affidavits, made by some person or
persons having personal knowledge of the facts deposed
to and deposing to all or any of the matters prescribed in
subsection (1), shall, until the contrary is shown, be
accepted by the court as prima facie evidence of all or,
as the case may be, each of such matters; and
(b) the court shall hear and determine the matter of the
complaint upon all the evidence properly adduced at the
hearing or any adjourned hearing of the complaint,
[s 146]
Property Law Act 1974
Part 8 Leases and tenancies
Page 144 Current as at 30 April 2022
Authorised by the Parliamentary Counsel
including any evidence adduced by or on behalf of the
defendant, and any further evidence (which the
complainant shall be at liberty to adduce) in rebuttal or
in support of the complaint.
146 Warrant for possession
(1) The warrant issued by order of the court shall be in the
approved form, may be issued by the court (or, after the case
has been heard and determined, by the clerk of the court), and
shall require and authorise any person to whom it is
addressed, within the period specified in it (not being more
than 3 months from the date of the order), to enter (by force if
necessary) into and upon the land specified in the warrant
(being the land the subject of the complaint) and to eject from
the land the defendant and all persons claiming under or
through the defendant together with the defendant’s or their
goods and effects, and to give possession of the same to the
landlord or, as the case requires, the landlord’s agent.
(2) The warrant shall be sufficient authority to any person to
whom it is addressed to enter (by force if necessary) into and
upon the land specified in the warrant, with such assistants as
the person deems necessary, to eject from the land the
defendant and all persons claiming under or through the
defendant together with the defendant’s or their goods and
effects, and to give possession to the landlord or, as the case
requires, the landlord’s agent accordingly.
(3) The warrant may be executed not only against the defendant
but also against every person claiming under or through the
defendant who is in actual occupation of the land specified in
the warrant or any part of the land and for this purpose a
person whose occupation is referable to a tenancy held of the
defendant (whether the tenancy was created before or after the
commencement of the proceeding out of which the warrant
was issued) shall be deemed to claim under the defendant
even though such tenancy has expired by effluxion of time,
has been determined by a notice to terminate, or has been
otherwise terminated.
[s 147]
Property Law Act 1974
Part 8 Leases and tenancies
Current as at 30 April 2022 Page 145
Authorised by the Parliamentary Counsel
(4) A warrant issued under this section in relation to a building, or
a unit or part of a multiple house or other building, shall be
sufficient authority to any person to whom it is addressed to
pass (by force if necessary), with such assistants as the person
thinks necessary, through, along, across, over or under any
land (including in the case of any such unit or part, any other
part of the multiple house or other building in which it is
comprised) ordinarily used as a means of access to such
building, or unit or part.
(5) No entry upon a warrant issued under this section shall be
made on a Sunday, Good Friday, Christmas Day or Anzac
Day, or at any time except between the hours of 9a.m. and
4p.m.
(6) Where the complaint has been heard and determined ex parte
such a warrant shall not be issued within 7 days after the
determination.
(7) Where the circumstances of the case make it appear to the
court proper so to do, the court may, upon making an order
that such a warrant be issued, further order that the issue of
the warrant be postponed for such time (not exceeding 15
clear days from the date of the adjudication) and on such
conditions (if any) as appear to it just and are specified in the
order, and on the making of the further order the warrant shall
not be issued within such time while such conditions are
complied with.
(8) Despite a postponement of the issue of a warrant under
subsection (7) the maximum period within which the warrant,
when issued, may be executed shall not exceed 3 months from
the date on which was made the order that the warrant be
issued.
147 Arrears of rent etc.
(1) In a complaint under this division for the recovery of the
possession of land, it may be joined as a further matter of
complaint that the defendant is indebted to the landlord for
rent or mesne profits, or both, in respect of the land the subject
of the complaint.
[s 147]
Property Law Act 1974
Part 8 Leases and tenancies
Page 146 Current as at 30 April 2022
Authorised by the Parliamentary Counsel
(1A) Such further matter of complaint shall be set out in a separate
paragraph in the complaint.
(2) In respect of such further matter of complaint the same
particulars of the complainant’s claim for rent or mesne
profits, or both, shall be supplied and served as would be
required if the claim were being made by way of a claim filed
in a Magistrates Court exercising jurisdiction under the
Magistrates Courts Act 1921.
(3) In any case where the court orders that the further matter of
complaint be heard separately it may, by the same or any
subsequent order, give directions for the conduct of the
proceedings in relation to the complaint or may order that the
proceedings be carried on in the same manner as if the claim
were being made by way of a claim filed in a Magistrates
Court exercising jurisdiction under the Magistrates Courts Act
1921.
(4) Where the matters of complaint are heard together, if, under
section 145(2), the matters prescribed by section 145(1) may
be proved by affidavit, the amount of indebtedness the subject
of the further matter of complaint may also be proved by
affidavit.
(5) In respect of the further matter of complaint, the court shall
order the defendant to pay to the landlord such amount (if
any) (but not exceeding $150,000) as it determines to be
payable and unpaid in respect of the indebtedness the subject
of the complaint when it makes the determination.
(6) An order made by a court under subsection (5) shall, for the
purposes of the enforcement of the order, be deemed to have
been made by a Magistrates Court in the exercise of its
jurisdiction under the Magistrates Courts Act 1921, and shall
be enforceable accordingly, and not otherwise.
(6A) However, where the matters of complaints are heard and
determined together ex parte, action to enforce the order made
in respect of the further matter of complaint shall not be taken
within 7 days after the determination.
(7) A postponement of the issue of a warrant under section 146(7)
shall not affect any order for payment made under this section.
[s 148]
Property Law Act 1974
Part 8 Leases and tenancies
Current as at 30 April 2022 Page 147
Authorised by the Parliamentary Counsel
(8) An order for the payment of arrears of rent under this section
may be made whether or not a warrant for possession is
issued.
148 Rehearing where proof made by affidavit
(1) Where, in default of appearance of the defendant at the time
and place appointed by the summons for the hearing and
determination of the complaint, or at any time or place to
which the hearing is adjourned, the court has, upon proof by
affidavit of the matters required by section 145(1) to be
proved, ordered that the warrant mentioned in that subsection
be issued, a Magistrates Court at the place where the order
was made may, upon application in that behalf made by the
defendant or by the defendant’s counsel or solicitor, within 7
days after the date on which the order was made, if in its
opinion there is a proper reason for so doing, grant a rehearing
of the complaint upon which the order was made on such
terms and subject to the payment of such costs as it thinks fit.
(2) Upon and because of the grant of a rehearing—
(a) subject to subsection (4), the order for the issue of a
warrant made upon the first hearing and any warrant
issued under it shall cease to have effect; and
(b) the court may, with the consent of the complainant,
proceed with the rehearing immediately or it may and, if
the complainant does not consent to the court
proceeding with the rehearing immediately, shall set
down the rehearing for a later date; and
(c) on the rehearing, the complaint shall be reheard and
redetermined as if the rehearing were the original
hearing and determination.
(3) Upon the rehearing proof shall not be made by affidavit of any
of the matters required by section 145(1) to be proved.
(4) If the defendant when called does not appear at the time and
place appointed for the rehearing, the court, if it thinks fit,
may without rehearing the complaint order that the original
order (and, where applicable, warrant) be restored and such
[s 149]
Property Law Act 1974
Part 8 Leases and tenancies
Page 148 Current as at 30 April 2022
Authorised by the Parliamentary Counsel
order (and, where applicable, warrant) shall be restored to
effect accordingly and shall be deemed to have had force and
effect on and from the date when the order was first made or,
in the case of such warrant, it was first issued.
(4A) However, in the case of such a warrant the time limited for its
execution shall begin to run on and from the date of the order
restoring it to effect.
(5) Where in the case of a complaint containing a further matter
of complaint under section 147, the matters of complaint have
been heard together, then upon and because of the grant of a
rehearing of the complaint the order (if any) made against the
defendant in respect of such further matter of complaint shall,
subject to subsection (6), cease to have effect and upon the
rehearing such further matter of complaint shall be reheard
and redetermined as if the rehearing were the original hearing
and determination of the original hearing.
(6) If, under subsection (4), the court orders the original order for
the issue of a warrant made upon the complaint to be restored
the order (if any) made against the defendant in respect of the
further matter of complaint shall, without any order of the
court be also restored to effect.
(7) However, the court, upon the application of the complainant
and upon proof, which may be by affidavit, of the amount
payable and unpaid at the date it restores the order for the
issue of a warrant made upon the original complaint, may vary
the order made in respect of the further matter of complaint so
as to require the payment of such amount.
149 Court’s powers in proceeding under this division
(1) The powers conferred on a court by this division are in
addition to the powers (including any power of amending a
complaint) of the court under the Justices Act 1886.
(2) In respect of a proceeding under this division upon a
complaint that includes a claim for the recovery of possession
of land the court shall have and may exercise all or any of its
[s 150]
Property Law Act 1974
Part 8 Leases and tenancies
Current as at 30 April 2022 Page 149
Authorised by the Parliamentary Counsel
powers as if the proceeding were upon a complaint for a
breach of duty.
(3) In respect of a claim for rent or mesne profits made before it
by way of complaint under this division the court shall have
and may exercise all or any of the powers conferred by the
Magistrates Courts Act 1921 on a Magistrates Court
constituted by the person or persons who constitute the court
in the proceeding in which the claim is made.
(4) An order made in a proceeding under this division for the
payment of money (including by way of costs) shall, for the
purposes of the enforcement of the order, be deemed to have
been made by a Magistrates Court in the exercise of its
jurisdiction under the Magistrates Courts Act 1921 and shall
be enforced accordingly and not otherwise.
150 Protection of justices etc.
An action or prosecution shall not be brought against—
(a) a justice who constituted a court which issued a warrant
under this division; or
(b) a clerk of the court who issued a warrant under an order
of a court made under this division; or
(c) a person by whom any such warrant was executed;
on account of the issue or execution of the warrant by reason
that the landlord by or on whose behalf the warrant was
obtained had no lawful right to possession of the land for the
recovery of which the warrant was issued.
151 Protection of landlord entitled to possession
In all cases where at the time of the execution of a warrant
issued under this division the landlord by or on whose behalf
the warrant was obtained, had as against the person in
possession of the land lawful right to the possession of the
land, then neither such landlord, nor the landlord’s agent nor
any other person acting on the landlord’s behalf, shall be a
trespasser merely because of any irregularity or informality in
[s 152]
Property Law Act 1974
Part 8 Leases and tenancies
Page 150 Current as at 30 April 2022
Authorised by the Parliamentary Counsel
the manner of obtaining possession under the authority of this
division but the party aggrieved may, if the party thinks fit,
bring an action for any such irregularity or informality.
152 Persons lacking right to possession not protected
(1) Neither a provision of this division nor a warrant to take and
give possession of land issued under this division shall be
construed to protect a landlord by whom or on whose behalf
the warrant was obtained from action brought against the
landlord on account of entry upon or taking possession of the
land or any part of the land because of the warrant where the
landlord, at the time the warrant was executed, had not lawful
right to possession of the land or part as against the person in
possession of the land at that time.
(2) Without prejudice to the rights to which any person may be
entitled as outgoing tenant, where the landlord had not such
right to possession the landlord shall be liable in respect of the
entry and taking possession as if the same were made or
effected by the landlord or at the landlord’s direction without
the authority of the warrant.
Division 6 Agricultural holdings
153 Definitions for div 6
(1) In this division—
absolute owner means the owner or person capable of
disposing by appointment or otherwise of the fee simple or
whole interest in a holding, although the land or the person’s
interest in the land is mortgaged or encumbered or charged.
compensation means compensation payable under this
division, or compensation payable under any agreement
which by this division is deemed to be substituted for
compensation under this division.
[s 154]
Property Law Act 1974
Part 8 Leases and tenancies
Current as at 30 April 2022 Page 151
Authorised by the Parliamentary Counsel
contract of tenancy means a letting of a holding for a term, or
for lives, or for lives and years, or from year to year, under a
contract entered into at any time after 1 January 1905.
determination of tenancy means the cesser of a tenancy by
effluxion of time or from any other cause.
holding means any parcel of agricultural land (which
expression includes land suitable for dairying purposes) of an
area of not less than 5 acres held by a tenant under a landlord.
landlord means the person for the time being entitled to
possession of a holding, as the absolute owner of the land,
subject to a contract of tenancy.
tenant means the person in possession of a holding under a
contract of tenancy.
(2) The designations of landlord and tenant shall continue to
apply to the parties until the conclusion of any proceedings
taken under this division.
154 Application of div 6
(1) Except where otherwise provided, this division—
(a) applies to any contract of tenancy entered into after the
commencement of this Act; and
(b) does not apply to any lease or licence from the Crown
under any law in force for the time being relating to the
leasing and occupying of Crown land.
(2) A provision in a contract of tenancy, or in any other agreement
made at the time the contract of tenancy is entered into, is
unenforceable in so far as it purports to take away or limit the
right of a tenant to compensation in respect of any
improvement, unless the contract of tenancy or such other
agreement—
(a) specifies the particular improvement or improvements;
and
(b) provides that, or to the effect that, the tenant is required
to make such improvement or improvements; and
[s 155]
Property Law Act 1974
Part 8 Leases and tenancies
Page 152 Current as at 30 April 2022
Authorised by the Parliamentary Counsel
(c) specifies what compensation (if any) shall be payable in
respect of the improvement or improvements.
(3) The provisions of this division are in addition to any other
right, power or privilege of a tenant, whether arising by
agreement or otherwise.
155 Tenant’s property in fixtures
(1) Subject to this section—
(a) any engine, machinery, fencing or other fixture affixed
to a holding by the tenant of the holding; and
(b) any building (other than one in respect of which the
tenant is entitled to compensation under this Act or
otherwise) erected by the tenant on the holding;
not being a fixture affixed or, as the case may be, a building
erected under some obligation in that behalf or instead of
some fixture or building belonging to the landlord, as the case
may be, shall be removable by the tenant at any time during
the continuance of the tenancy or before the expiration of 2
months from the termination of the tenancy, and shall remain
the tenant’s property so long as the tenant may remove it
because of this subsection.
(2) The right conferred by subsection (1) shall not be exercisable
in relation to a fixture or building unless the tenant—
(a) has paid all rent owing by the tenant and has performed
or satisfied all the tenant’s other obligations to the
landlord in respect of the holding; and
(b) has, at least 1 month before both the exercise of the right
and the termination of the tenancy, given to the landlord
notice in writing of the tenant’s intention to remove the
fixture or building.
(3) If, before the expiration of the notice given under
subsection (2), the landlord gives to the tenant a
counter-notice in writing electing to purchase a fixture or
building comprised in the notice, subsection (1) shall cease to
apply to that fixture or building, but the landlord shall be
[s 156]
Property Law Act 1974
Part 8 Leases and tenancies
Current as at 30 April 2022 Page 153
Authorised by the Parliamentary Counsel
liable to pay to the tenant the fair value of that fixture or
building to an incoming tenant of the holding.
(4) In the removal of a fixture or building because of
subsection (1), the tenant shall not do to any other building or
other part of the holding any avoidable damage, and
immediately after the removal shall make good all damage so
done that is occasioned by the removal.
(5) This section applies—
(a) to a contract of tenancy entered into after the
commencement of this Act; and
(b) subject to any agreement to the contrary contained in the
contract of tenancy.
156 Tenant’s right to compensation
When a tenant makes on the tenant’s holding any of the
improvements mentioned in schedule 4, part 1 or 2, the tenant
shall be entitled, on quitting the holding at the determination
of the tenancy, to obtain from the landlord compensation for
such of those improvements as are not removed by the tenant
under section 155 or otherwise.
157 Intended improvements
(1) Despite section 156, compensation shall not be payable in
respect of any improvement mentioned in schedule 4, part 1
unless the tenant has, not more than 3 months nor less than 2
months before beginning to make such improvement, given to
the landlord, or to the landlord’s agent duly authorised in that
behalf, notice in writing of the tenant’s intention to make the
improvement and of the manner in which the tenant proposes
to do the intended work.
(2) The landlord may within 1 month from the giving of such
notice serve upon the tenant a dissent in writing to such
intended improvement and require the matter in difference to
be referred to arbitration, and on service of the dissent and
[s 158]
Property Law Act 1974
Part 8 Leases and tenancies
Page 154 Current as at 30 April 2022
Authorised by the Parliamentary Counsel
requirement a reference may be had in manner provided by
this division.
(2A) If the arbitrator is satisfied that any improvement specified in
the tenant’s notice will increase the value of the holding to an
incoming tenant and will be a suitable and desirable
improvement, the arbitrator shall make an award accordingly,
and the tenant shall be entitled to compensation for every
improvement which the tenant makes under such award.
(2B) If the arbitrator is satisfied that such improvement will not
increase the value of the holding to an incoming tenant, and
will be an unsuitable and undesirable improvement, the tenant
shall not, if the tenant executes such improvement, be entitled
to any compensation in relation to the improvement.
(3) If no agreement is entered into within 1 month after such
notice has been given, or if there is a reference to arbitration,
then, within 1 month after the award has been made the
landlord may, unless the notice of the tenant is previously
withdrawn, undertake to make the improvement, and may
make the same accordingly in any reasonable and proper
manner the landlord thinks fit, and may charge the tenant
interest at the rate of 5% per annum on the outlay incurred in
making the improvement.
(3A) Such interest shall be payable and recoverable as rent in the
same manner and at the same time as the rent in respect of the
holding is payable and recoverable.
(4) In default of any such agreement or undertaking, and also in
the event of the landlord failing to comply with the landlord’s
undertaking within a reasonable time, the tenant may make
the improvement, and shall in that case be entitled to
compensation in respect of the improvement.
158 Agreements etc.
(1) The landlord and tenant may at the time—
(a) dispense (whether expressly, by conduct, or otherwise)
with any notice required by this division to be given by
either party to the other; and
[s 159]
Property Law Act 1974
Part 8 Leases and tenancies
Current as at 30 April 2022 Page 155
Authorised by the Parliamentary Counsel
(b) subject to section 153(2), enter into an agreement
between themselves as to the party by whom and the
mode in which any improvement is to be made, or as to
the amount and mode and time of payment of
compensation or other money to be paid to the tenant or
to the landlord under this division.
(2) Any compensation payable under such agreement shall be
deemed to be substituted for compensation under this
division.
159 Arbitration
(1) In the absence of an agreement between the parties, every
matter or question arising under this division shall be
determined by arbitration under schedule 5.
(2) An arbitration shall, unless the parties otherwise agree, be
before a single arbitrator.
160 Notice of intended claim
(1) A tenant shall not be entitled to compensation, unless 2
months at least before the determination of the tenancy the
tenant gives notice in writing to the landlord claiming
compensation.
(2) When a tenant gives such a notice, the landlord may, within 1
month, give a notice in writing to the tenant claiming any set
off.
(3) Every notice under this section shall state as far as reasonably
may be the particulars and amount of the intended claim.
(4) However, noncompliance by either party with this section
shall not deprive such party of any rights under this division if
the arbitrator is of opinion that there was reasonable excuse
for such noncompliance.
[s 161]
Property Law Act 1974
Part 8 Leases and tenancies
Page 156 Current as at 30 April 2022
Authorised by the Parliamentary Counsel
161 Rules for ascertaining amount of compensation
In ascertaining the amount of compensation payable to the
tenant in respect of any improvements made by the tenant, the
arbitrator shall be guided by the following rules—
(a) the amount to be awarded shall be such sum as fairly
represents the value of the improvements to an incoming
tenant;
(b) there shall not be taken into account as part of such
improvements what is justly due to the inherent
capabilities of the soil;
(c) there shall be taken into account by way of set off
against such improvements—
(i) any benefit which the landlord has given or
allowed to the tenant in consideration of the tenant
making the improvements; and
(ii) any sum due to the landlord from the tenant for
rent or otherwise; and
(iii) compensation to the landlord by way of damages
for any waste, or for any breach of covenant,
contract or agreement connected with the tenancy
committed or permitted by the tenant, but the
landlord shall not be entitled to have taken into
account any waste or breach by the tenant in
relation to a matter of husbandry or cultivation
committed or permitted more than 2 years before
the determination of the tenancy; and
(iv) any rates, taxes, or assessments due in respect of
the holding to which the tenant is liable as between
the tenant and the landlord.
162 Recovery of compensation
(1) Where any money agreed to be paid for compensation, costs,
or otherwise is not paid within 14 days after the time when it
is agreed to be paid, it shall be recoverable upon an order
made by a judge of the District Court as money ordered to be
[s 163]
Property Law Act 1974
Part 8 Leases and tenancies
Current as at 30 April 2022 Page 157
Authorised by the Parliamentary Counsel
paid by the District Court in its ordinary jurisdiction is
recoverable.
(2) Where any money awarded to be paid for compensation,
costs, or otherwise is not paid in accordance with such order, a
copy of such award may be filed in a District Court registry,
and on the order may then be enforced in all respects as if it
were judgment of the District Court for the amount due,
together with the costs of and incidental to enforcing the
award.
163 Landlord who is a trustee
(1) Where the landlord is a person entitled to receive the rents and
profits of any holding as a trustee or otherwise than for the
landlord’s own benefit, the amount due from such landlord in
respect of compensation, costs, or otherwise shall not be
recoverable personally against the landlord, nor shall the
landlord be under any personal liability to pay such amount,
but the same shall be a charge on and recoverable against the
holding.
(1A) If such landlord has not paid to the tenant the amount due to
the tenant within 14 days after the time when such amount
was agreed or awarded to be paid, then the tenant shall be
entitled to obtain from the court an order in favour of the
tenant, the tenant’s executors, administrators, and assigns
charging the holding to the amount due to the tenant together
with all costs properly incurred in obtaining the charge.
(2) Such landlord shall, either before or after payment to the
tenant of the amount due to the tenant, be entitled to obtain
from the court an order charging the holding to the amount to
be paid or paid, as the case may be, to the tenant, together
with all costs properly incurred in obtaining the charge.
(3) The court may, by such order or by any subsequent order, give
all directions necessary for securing full legal effect to any
such charge, and every such order shall be obeyed.
[s 164]
Property Law Act 1974
Part 8 Leases and tenancies
Page 158 Current as at 30 April 2022
Authorised by the Parliamentary Counsel
164 Compensation to tenants, when mortgagee in
possession
(1) Where a tenant holds land under a contract of tenancy with the
mortgagor, and such land is mortgaged at the time when such
contract was made, or is subsequently mortgaged, and the
mortgagee enters into possession of the holding, then the
tenant shall, as against such mortgagee in possession, be
entitled to any compensation which is or would be due to the
tenant from the mortgagor.
(2) Before such mortgagee deprives the tenant of possession of
the holding otherwise than under such contract, the mortgagee
shall give to the tenant 6 months’ notice in writing of the
mortgagee’s intention so to deprive the tenant.
(3) In ascertaining the amount of such compensation payable by
the mortgagee the arbitrator shall have regard to the same
rules as are hereinbefore provided for the ascertainment of
compensation payable by a landlord, with this addition, that
compensation shall be paid to the tenant for the tenant’s crops,
and for any expenditure upon the land which the tenant has
made in the expectation of holding the land for the full term of
the tenant’s contract of tenancy, in so far as any improvement
resulting therefrom is not exhausted at the time of the tenant
being deprived of possession.
(4) Such compensation shall be determined and recovered in like
manner as compensation under this division, and for all such
purposes the expression landlord, wherever used in this
division, shall be deemed to include such mortgagee in
possession.
165 Incoming tenant’s claim for compensation reserved
Where an incoming tenant has, with the consent in writing of
the tenant’s landlord, paid to an outgoing tenant any
compensation in respect of the whole or part of any
improvement, such incoming tenant shall be entitled, on
quitting the holding, to obtain compensation in respect of such
improvement or part in like manner (if at all) as the outgoing
tenant would have been entitled if the tenant had remained
[s 166]
Property Law Act 1974
Part 10 Incorporeal hereditaments and appurtenant rights
Current as at 30 April 2022 Page 159
Authorised by the Parliamentary Counsel
tenant of the holding, and had quitted the holding at the time
when the incoming tenant quits the same.
166 Change of tenancy not to affect right to compensation
A tenant who has remained on his or her holding during a
change or changes of tenancy shall not afterwards, on quitting
his or her holding at the determination of a tenancy, be
deprived of the tenant’s right to compensation in respect of
improvements merely because such improvements were made
by the tenant during a former tenancy or tenancies, and not
during the tenancy at the determination of which the tenant is
quitting.
167 Power of entry
The landlord of a holding, or any person authorised by the
landlord, may at all reasonable times enter on the holding, or
any part of it, for the purpose of viewing the state of the
holding.
Part 10 Incorporeal hereditaments and
appurtenant rights
176 Prohibition upon creation of rent charges
No rent charge shall be created after the commencement of
this Act, and any rent charge so created shall be void and of no
effect.
177 Release of part of land subject to rent charge
The release from a rent charge of part of the land charged with
it shall not extinguish the whole rent charge, but shall operate
only to bar the right to recover any part of the rent charge out
of the land released without prejudice to the rights of all
[s 178]
Property Law Act 1974
Part 10 Incorporeal hereditaments and appurtenant rights
Page 160 Current as at 30 April 2022
Authorised by the Parliamentary Counsel
persons interested in the land remaining unreleased and not
concurring in or confirming the release.
178 No presumption of right to access or use of light or air
From and after 1 March 1907, no right to the access or use of
light or air to or for any building shall be deemed to exist, or
to be capable of coming into existence, merely because of the
enjoyment of such access or use for any period or of any
presumption of lost grant based upon such enjoyment.
179 Right to support of land and buildings
For the benefit of all interests in other land which may be
adversely affected by any breach of this section, there shall be
attached to any land an obligation not to do anything on or
below it that will withdraw support from any other land or
from any building, structure or erection that has been placed
on or below it.
180 Imposition of statutory rights of user in respect of land
(1) Where it is reasonably necessary in the interests of effective
use in any reasonable manner of any land (the dominant land)
that such land, or the owner for the time being of such land,
should in respect of any other land (the servient land) have a
statutory right of user in respect of that other land, the court
may, on the application of the owner of the dominant land but
subject to this section, impose upon the servient land, or upon
the owner for the time being of such land, an obligation of
user or an obligation to permit such user in accordance with
that order.
(2) A statutory right of user imposed under subsection (1) may
take the form of an easement, licence or otherwise, and may
be declared to be exercisable—
(a) by such persons, their servants and agents, in such
number, and in such manner and subject to such
conditions; and
[s 180]
Property Law Act 1974
Part 10 Incorporeal hereditaments and appurtenant rights
Current as at 30 April 2022 Page 161
Authorised by the Parliamentary Counsel
(b) on 1 or more occasions; or
(c) until a date certain; or
(d) in perpetuity or for some fixed period;
as may be specified in the order.
(3) An order of the kind referred to in subsection (1) shall not be
made unless the court is satisfied that—
(a) it is consistent with the public interest that the dominant
land should be used in the manner proposed; and
(b) the owner of the servient land can be adequately
recompensed in money for any loss or disadvantage
which the owner may suffer from the imposition of the
obligation; and
(c) either—
(i) the owner of the servient land has refused to agree
to accept the imposition of such obligation and the
owner’s refusal is in all the circumstances
unreasonable; or
(ii) no person can be found who possesses the
necessary capacity to agree to accept the
imposition of such obligation.
(4) An order under this section (including an order under this
subsection)—
(a) shall, except in special circumstances, include provision
for payment by the applicant to such person or persons
as may be specified in the order of such amount by way
of compensation or consideration as in the
circumstances appears to the court to be just; and
(b) may include such other terms and conditions as may be
just; and
(c) shall, unless the court otherwise orders, be registered as
provided in this section; and
(d) may on the application of the owner of the servient
tenement or of the dominant tenement be modified or
[s 180]
Property Law Act 1974
Part 10 Incorporeal hereditaments and appurtenant rights
Page 162 Current as at 30 April 2022
Authorised by the Parliamentary Counsel
extinguished by order of the court where it is satisfied
that—
(i) the statutory right of user, or some aspect of it, is
no longer reasonably necessary in the interests of
effective use of the dominant land; or
(ii) some material change in the circumstances has
taken place since the order imposing the statutory
right of user was made; and
(e) shall when registered as provided in this section be
binding on all persons, whether of full age or capacity or
not, then entitled or afterwards becoming entitled to the
servient land or the dominant land, whether or not such
persons are parties to proceedings or have been served
with notice or not.
(5) The court may—
(a) direct a survey to be made of any land and a plan of
survey to be prepared; and
(b) order any person to execute any instrument or
instruments in registrable or other form necessary for
giving effect to an order made under this section; and
(c) order any person to produce to any person specified in
the order any title deed or other instrument or document
relating to any land; and
(d) give directions for the conduct of proceedings; and
(e) make orders in respect of the costs of any of the
preceding matters and of proceedings generally.
(6) In any proceedings under this section the court shall not,
except in special circumstances, make an order for costs
against the servient owner.
(7) In this section—
owner includes any person interested whether presently,
contingently or otherwise in land.
statutory right of user includes any right of, or in the nature
of, a right of way over, or of access to, or of entry upon land,
[s 181]
Property Law Act 1974
Part 10 Incorporeal hereditaments and appurtenant rights
Current as at 30 April 2022 Page 163
Authorised by the Parliamentary Counsel
and any right to carry and place any utility upon, over, across,
through, under or into land.
utility includes any electricity, gas, power, telephone, water,
drainage, sewerage and other service pipes or lines, together
with all facilities and structures reasonably incidental to the
utility.
(8) This section does not bind the Crown.
181 Power to modify or extinguish easements and restrictive
covenants
(1) Where land is subject to an easement or to a restriction arising
under covenant or otherwise as to the user of the land, the
court may from time to time, on the application of any person
interested in the land, by order modify or wholly or partially
extinguish the easement or restriction upon being satisfied—
(a) that because of change in the user of any land having the
benefit of the easement or restriction, or in the character
of the neighbourhood or other circumstances of the case
which the court may deem material, the easement or
restriction ought to be deemed obsolete; or
(b) that the continued existence of the easement or
restriction would impede some reasonable user of the
land subject to the easement or restriction, or that the
easement or restriction, in impeding that user, either—
(i) does not secure to persons entitled to the benefit of
it any practical benefits of substantial value, utility,
or advantage to them; or
(ii) is contrary to the public interest;
and that money will be an adequate compensation for
the loss or disadvantage (if any) which any such person
will suffer from the extinguishment or modification; or
(c) that the persons of full age and capacity for the time
being or from time to time entitled to the easement or to
the benefit of the restriction, whether in respect of
estates in fee simple or any lesser estates or interests in
[s 181]
Property Law Act 1974
Part 10 Incorporeal hereditaments and appurtenant rights
Page 164 Current as at 30 April 2022
Authorised by the Parliamentary Counsel
the land to which the easement or the benefit of the
restriction is annexed, have agreed to the easement or
restriction being modified or wholly or partially
extinguished, or by their acts or omissions may
reasonably be considered to have abandoned the
easement wholly or in part or waived the benefit of the
restriction wholly or in part; or
(d) that the proposed modification or extinguishment will
not substantially injure the persons entitled to the
easement, or to the benefit of the restriction.
(2) In determining whether a case is one falling within
subsection (1)(a) or (b), and in determining whether (in such
case or otherwise) an easement or restriction ought to be
extinguished or modified, the court shall take into account the
town plan and any declared or ascertainable pattern of the
local government for the grant or refusal of consent,
permission or approval to use any land or to erect or use any
building or other structure in the relevant area, as well as the
period at which and context in which the easement or
restriction was created or imposed, and any other material
circumstance.
(3) The power conferred by subsection (1) to extinguish or
modify an easement or restriction includes a power to add
such further provisions restricting the user or the building on
the land as appear to the court to be reasonable in view of the
relaxation of the existing provisions, and as may be accepted
by the applicant, and the court may accordingly refuse to
modify an easement or restriction without such addition.
(4) An order extinguishing or modifying an easement or
restriction under subsection (1) may direct the applicant to
pay to any person entitled to the benefit of the easement or
restriction such sum by way of consideration as the court may
think it just to award under one, but not both, of the following
heads, that is to say, either—
(a) a sum to make up for any loss or disadvantage suffered
by that person in consequence of the extinguishment or
modification; or
[s 181]
Property Law Act 1974
Part 10 Incorporeal hereditaments and appurtenant rights
Current as at 30 April 2022 Page 165
Authorised by the Parliamentary Counsel
(b) a sum to make up for any effect which the restriction
had, at the time when it was imposed, in reducing the
consideration then received for the land affected by it.
(5) Where any proceedings by action or otherwise are instituted
to enforce an easement or restriction, or to enforce any rights
arising out of a breach of any restriction, any person against
whom the proceedings are instituted may in such proceedings
apply to the court for an order under this section, and such
application shall, unless the court otherwise orders, operate to
stay such proceedings until determination of the application
made under this section.
(6) The court may in any proceedings under this section on the
application of any person interested make an order declaring
whether or not in any particular case any land is or would in
any given event be affected by an easement or restriction, and
the nature and extent of it, and whether the same is or would
in any given event be enforceable, and if so by whom.
(7) Notice of any application made under this section shall, if the
court so directs, be given to the local government in whose
area the land is situated, and to such other persons and in such
manner, whether by advertisement or otherwise, as the court,
either generally or in a particular instance, may order.
(8) An order under this section shall, when registered, entered or
endorsed, be binding on all persons, whether of full age or
capacity or not, then entitled or afterwards becoming entitled
to the easement, or interested in enforcing the restriction and
whether such persons are parties to the proceedings or have
been served with notice or not.
(9) The court may—
(a) direct a survey to be made of any land and a plan of
survey to be prepared; and
(b) order any person to execute any instrument or
instruments in registrable or other form necessary for
giving effect to an order made under this section; and
[s 182]
Property Law Act 1974
Part 11 Encroachment and mistake
Page 166 Current as at 30 April 2022
Authorised by the Parliamentary Counsel
(c) order any person to produce to any person specified in
the order any title deed or other instrument or document
relating to any land; and
(d) give such directions for the conduct of proceedings; and
(e) make orders in respect of the costs of any of the
preceding matters and of proceedings generally.
Part 11 Encroachment and mistake
Division 1 Encroachment of buildings
182 Definitions for div 1
In this division—
adjacent owner means the owner of land over which an
encroachment extends.
boundary means the boundary line between contiguous
parcels of land.
building means a substantial building of a permanent
character, and includes a wall.
encroaching owner means the owner of land contiguous to
the boundary beyond which an encroachment extends.
encroachment means encroachment by a building, including
encroachment by overhang of any part as well as
encroachment by intrusion of any part in or upon the soil.
owner means any person entitled to an estate of freehold in
possession—
(a) whether in fee simple or for life or otherwise; or
(b) whether at law or in equity; or
(c) whether absolutely or by way of mortgage, and includes
a mortgagee under a registered mortgage of a freehold
[s 183]
Property Law Act 1974
Part 11 Encroachment and mistake
Current as at 30 April 2022 Page 167
Authorised by the Parliamentary Counsel
estate in possession in land under the Land Title Act
1994.
subject land means that part of the land over which an
encroachment extends.
183 Application of div 1
This division applies despite the provisions of any other Act.
184 Application for relief in respect of encroachments
(1) Either an adjacent owner or an encroaching owner may apply
to the court for relief under this division in respect of any
encroachment.
(2) This section applies to encroachments made either before or
after the commencement of this Act.
185 Powers of court on application for relief in respect of
encroachment
(1) On an application under section 184 the court may make such
order as it may deem just with respect to—
(a) the payment of compensation to the adjacent owner; and
(b) the conveyance, transfer, or lease of the subject land to
the encroaching owner, or the grant to the encroaching
owner of any estate or interest in the land or of any
easement, right, or privilege in relation to the land; and
(c) the removal of the encroachment.
(2) The court may grant or refuse the relief or any part of the
relief as it deems proper in the circumstances of the case, and
in the exercise of this discretion may consider, amongst other
matters—
(a) the fact that the application is made by the adjacent
owner or by the encroaching owner, as the case may be;
and
[s 186]
Property Law Act 1974
Part 11 Encroachment and mistake
Page 168 Current as at 30 April 2022
Authorised by the Parliamentary Counsel
(b) the situation and value of the subject land, and the
nature and extent of the encroachment; and
(c) the character of the encroaching building, and the
purposes for which it may be used; and
(d) the loss and damage which has been or will be incurred
by the adjacent owner; and
(e) the loss and damage which would be incurred by the
encroaching owner if the encroaching owner were
required to remove the encroachment; and
(f) the circumstances in which the encroachment was made.
186 Compensation
(1) The minimum compensation to be paid to the adjacent owner
in respect of any conveyance, transfer, lease, or grant under
section 185 to the encroaching owner shall, if the encroaching
owner satisfies the court that the encroachment was not
intentional and did not arise from negligence, be the
unimproved capital value of the subject land, and in any other
case 3 times such unimproved capital value.
(2) In determining whether the compensation shall exceed the
minimum and if so by what amount, the court shall have
regard to—
(a) the value, whether improved or unimproved, of the
subject land to the adjacent owner; and
(b) the loss and damage which has been or will be incurred
by the adjacent owner through the encroachment and
through the orders proposed to be made in favour of the
encroaching owner; and
(c) the circumstances in which the encroachment was made.
187 Charge on land
(1) The order for payment of compensation may be registered in
the land registry in such manner as the registrar determines
and shall, except so far as the court otherwise directs, upon
[s 188]
Property Law Act 1974
Part 11 Encroachment and mistake
Current as at 30 April 2022 Page 169
Authorised by the Parliamentary Counsel
registration operate as a charge upon the land of the
encroaching owner, and shall have priority to any charge
created by the encroaching owner or the encroaching owner’s
predecessor in title.
(2) In this section, the land of the encroaching owner means the
parcel of land contiguous to the boundary beyond which the
encroachment extends, or such part of the land as the court
may specify in the order.
188 Encroaching owner—compensation and conveyance
Wherever the court sees fit, and in particular where the
encroaching owner is not an owner beneficially entitled to the
fee simple free from encumbrances, the court may
determine—
(a) by whom and in what proportions the compensation is
to be paid in the first instance, and is to be borne
ultimately; and
(b) to whom, for whose benefit and upon what limitations
the conveyance, transfer, or lease of the subject land or
grant in respect of the land is to be made.
189 Adjacent owner—compensation and conveyance
Wherever the court sees fit, and in particular where the
adjacent owner is not an owner beneficially entitled to the fee
simple free from encumbrances, the court may determine—
(a) to whom, for whose benefit, and in what proportions the
compensation is to be paid or applied; and
(b) by whom the conveyance, transfer, or lease of the
subject land or grant in respect of the subject land is to
be made.
190 Vesting order
Wherever the court may make or has made an order under this
division with respect to the subject land, the court may make
[s 191]
Property Law Act 1974
Part 11 Encroachment and mistake
Page 170 Current as at 30 April 2022
Authorised by the Parliamentary Counsel
such vesting order as it may deem proper instead of or in
addition to the order, or in default of compliance with the
order.
191 Boundaries
(1) Where any question arises as to whether an existing building
encroaches or a proposed building will encroach beyond the
boundary, either of the owners of the contiguous parcels of
land may apply to the court for the determination under this
division of the true boundary.
(2) On the application the court may make such orders as it may
deem proper for determining, marking, and recording the true
boundary.
(3) This section applies to buildings erected either before or after
the commencement of this Act.
192 Suit, action or other proceeding
(1) In any suit or proceeding before the court, however originated,
the court may, if it sees fit, exercise any of the powers
conferred by this division, and may stay the suit or proceeding
on such terms as it may deem proper.
(2) Where any action or proceeding is taken or is about to be
taken at law by any person, and the court is of opinion that the
matter could more conveniently be dealt with by an
application under this division, the court may grant an
injunction, on such terms as it may deem proper, restraining
the person from taking or continuing the action or proceedings
at law.
(3) In any action at law a judge may, if the judge is of opinion that
the matter could more conveniently be dealt with by an
application under this division, stay the action or proceeding
on such terms as the judge may deem proper.
[s 193]
Property Law Act 1974
Part 11 Encroachment and mistake
Current as at 30 April 2022 Page 171
Authorised by the Parliamentary Counsel
193 Persons interested
In any application under this division the court may require—
(a) that notice of the application shall be given to any
person interested; and
(b) that any person who is or appears to be interested shall
be made a party to the application.
194 Costs
In any application under this division the court may make
such order as to payment of costs (to be taxed as between
solicitor and client or otherwise), charges, and expenses as it
may deem just in the circumstances and may take into
consideration any offer of settlement made by either party.
Division 2 Improvements under mistake of title
195 Application of div 2
This division applies despite the provisions of any other Act.
196 Relief in case of improvements made by mistake
Where a person makes a lasting improvement on land owned
by another in the genuine but mistaken belief that—
(a) such land is the person’s property; or
(b) such land is the property of a person on whose behalf
the improvement is made or intended to be made;
application may be made to the court for relief under this
division.
197 Nature of relief
(1) If in the opinion of the court it is just and equitable that relief
should be granted to the applicant or to any other person, the
[s 197]
Property Law Act 1974
Part 11 Encroachment and mistake
Page 172 Current as at 30 April 2022
Authorised by the Parliamentary Counsel
court may if it thinks fit make any 1 or more of the following
orders—
(a) vesting in any person or persons specified in the order
the whole or any part of the land on which the
improvement or any part of the improvement has been
made either with or without any surrounding or
contiguous or other land;
(b) ordering that any person or persons specified in the
order shall or may remove the improvement or any part
of the improvement from the land or any part of it;
(c) ordering that any person or persons specified in the
order pay compensation to any other person in respect
of—
(i) any land or part of the land; or
(ii) any improvement or part of the improvement; or
(iii) any damage or diminution in value caused or likely
to be caused by or to result from any improvement
or order made under this division;
(d) ordering that any person or persons specified in the
order have or give possession of the land or
improvement or part of the improvement for such period
and upon such terms and conditions as the court may
specify.
(2) An order under this division, and any provision of the order,
may—
(a) include or be made upon and subject to such terms and
conditions as the court thinks fit, whether as to payment
by any person of any sum or sums of money including
costs (to be taxed as between solicitor and client or
otherwise), or the execution by any person of any
mortgage, lease, easement, contract or other instrument,
or otherwise; and
(b) declare that any estate or interest in the land or any part
of the land on which the improvement has been made to
be free of any mortgage, lease, easement or other
[s 198]
Property Law Act 1974
Part 11 Encroachment and mistake
Current as at 30 April 2022 Page 173
Authorised by the Parliamentary Counsel
encumbrance, or may vary, to such extent as may be
necessary in the circumstances, any mortgage, lease,
easement, contract, or other instrument affecting or
relating to such land or any part of the land; and
(c) direct that any person or persons execute any instrument
or instruments in registrable or other form necessary to
give effect to the declaration or order of the court; and
(d) order any person to produce to any person specified in
the order any title deed or other instrument or document
relating to any land; and
(e) direct a survey to be made of any land and a plan of
survey to be prepared.
198 Right to apply or be served
(1) Application for relief under this division may be made by—
(a) any person who made or who is for the time being in
possession of any improvement referred to in
section 196; and
(b) any person having any estate or interest in the land or
any part of the land upon which such improvement has
been made; and
(c) any person claiming to be a party to or to be entitled to
any benefit under any mortgage, lease, easement,
contract or other instrument relating to such land or
improvement; and
(d) the successor in title to, or mortgagee or lessee of, any
person upon whose land the improvement or any part of
the improvement was intended to be made; and
(e) the local government within whose area the land or
improvement or any part of the land or improvement is
situated.
(2) In any application under this division the court may require—
(a) that notice of the application be given to any of the
persons referred to in subsection (1) and to any other
[s 198A]
Property Law Act 1974
Part 11A Rights of way
Page 174 Current as at 30 April 2022
Authorised by the Parliamentary Counsel
person who is or appears to be interested in or likely to
be affected by an order made under this division; and
(b) that any such person be made a party to the application.
Part 11A Rights of way
198A Prescriptive right of way not acquired by user
(1) User after the commencement of this Act of a way over land
shall not of itself be sufficient evidence of an easement of way
or a right of way having been acquired by prescription or by
the fiction of a lost grant.
(2) If at any time it is established that an easement of way or right
of way over land existed at the commencement of this Act, the
existence and continuance of the easement or right shall not
be affected by subsection (1).
(3) For the purpose of establishing the existence at the
commencement of this Act of an easement of way or right of
way over land user after such commencement of a way over
that land shall be disregarded.
Part 12 Equitable interests and things
in action
199 Statutory assignments of things in action
(1) Any absolute assignment by writing under the hand of the
assignor (not purporting to be by way of charge only) of any
debt or other legal thing in action, of which express notice in
writing has been given to the debtor, trustee or other person
from whom the assignor would have been entitled to claim
such debt or thing in action, is effectual in law (subject to
equities having priority over the right of the assignee) to pass
and transfer from the date of such notice—
(a) the legal right to such debt or thing in action; and
[s 200]
Property Law Act 1974
Part 12 Equitable interests and things in action
Current as at 30 April 2022 Page 175
Authorised by the Parliamentary Counsel
(b) all legal and other remedies for the same; and
(c) the power to give a good discharge for the same without
the concurrence of the assignor.
(2) If the debtor, trustee or other person liable in respect of such
debt or thing in action has notice—
(a) that the assignment is disputed by the assignor or any
person claiming under the assignor; or
(b) of any other opposing or conflicting claims to such debt
or thing in action;
the debtor may, if the debtor thinks fit, either call upon the
persons making claim to the debt or other thing in action to
interplead concerning the same, or pay the debt or other thing
in action into court under and in conformity with the
provisions of the Acts relating to relief of trustees.
200 Efficacy in equity of voluntary assignments
(1) A voluntary assignment of property shall in equity be
effective and complete when, and as soon as, the assignor has
done everything to be done by the assignor that is necessary in
order to transfer the property to the assignee—
(a) even though anything remains to be done in order to
transfer to the assignee complete and perfect title to the
property; and
(b) provided that anything so remaining to be done is such
as may afterwards be done without intervention of or
assistance from the assignor.
(2) This section is without prejudice to any other mode of
disposing of property, but applies subject to the provisions of
this and of any other Act.
[s 201]
Property Law Act 1974
Part 13 Powers of appointment
Page 176 Current as at 30 April 2022
Authorised by the Parliamentary Counsel
Part 13 Powers of appointment
201 Application of pt 13
This part applies to powers created or arising either before or
after the commencement of this Act.
202 Mode of exercise of powers
(1) Where a power of appointment by an instrument other than a
will is exercised by deed, executed and attested under this Act,
or, in the case of an instrument under the Land Title Act 1994,
under that Act, such deed or instrument shall, so far as
respects the execution and attestation of the instrument, be a
valid exercise of the power, even though by the instrument
creating the power some additional or other form of execution
or attestation or solemnity is required.
(2) This section does not operate to defeat any direction in the
instrument creating the power that—
(a) the consent of any particular person is to be necessary to
a valid execution; or
(b) in order to give validity to any appointment, any act is to
be performed having no relation to the mode of
executing and attesting the instrument.
(3) This section does not prevent the donee of a power from
executing it under the power by writing, or otherwise than by
an instrument executed and attested as a deed, and where a
power is so executed this section does not apply.
(4) This section applies to the exercise after the commencement
of this Act of any such power created by an instrument
coming into operation before or after the commencement of
this Act.
[s 203]
Property Law Act 1974
Part 13 Powers of appointment
Current as at 30 April 2022 Page 177
Authorised by the Parliamentary Counsel
203 Validation of appointments where objects are excluded or
take illusory shares
(1) No appointment made in exercise of any power to appoint any
property among 2 or more objects shall be invalid on the
ground that—
(a) an unsubstantial, illusory, or nominal share only is
appointed to or left unappointed to devolve upon any 1
or more of the objects of the power; or
(b) any object of the power is altogether excluded;
but every such appointment shall be valid even though any 1
or more of the objects is not, or in default of appointment, to
take any share in the property.
(2) This section does not affect any provision in the instrument
creating the power which declares the amount of any share
from which any object of the power is not to be excluded.
(3) This section applies to appointments made before or after the
commencement of this Act.
204 Protection of purchasers claiming under certain void
appointments
(1) An instrument purporting to exercise a power of appointment
over property, which, in default of and subject to any
appointment, is held in trust for a class or number of persons
of whom the appointee is one, shall not be void on the ground
of fraud on the power as against a purchaser in good faith.
(1A) However, if the interest appointed exceeds, in amount or
value, the interest in such property to which immediately
before the execution of the instrument the appointee was
presumptively entitled under the trust in default of
appointment, having regard to any advances made in the
appointee’s favour and to any hotchpot provision, the
protection afforded by this section to a purchaser shall not
extend to such excess.
(2) In this section—
[s 205]
Property Law Act 1974
Part 13 Powers of appointment
Page 178 Current as at 30 April 2022
Authorised by the Parliamentary Counsel
a purchaser in good faith means a person dealing with an
appointee of the age of not less than 25 years for valuable
consideration in money or money’s worth, and without notice
of the fraud, or of any circumstances from which, if
reasonable inquiries had been made, the fraud might have
been discovered.
(3) Persons deriving title under any purchaser entitled to the
benefit of this section shall be entitled to the like benefit.
(4) This section applies only to dealings effected after the
commencement of this Act.
205 Disclaimer etc. of powers
(1) A person to whom any power, whether or not coupled with an
interest, is given, may by deed disclaim, release or contract
not to exercise the power, and after such disclaimer release or
contract shall not be capable of exercising or joining in the
exercise of the power.
(2) On such disclaimer, release, or contract, the power may be
exercised by the other person or persons or the survivor or
survivors of the other persons to whom the power is given
unless the contrary is expressed in the instrument creating the
power.
(3) Where such power is exercisable by any instrument which
may or is required to be registered under any Act, the power
may be released or disclaimed by a memorandum in the
approved form which may be registered.
(4) This section—
(a) does not apply to a power coupled with a duty; and
(b) applies to a power created by an instrument coming into
operation whether before or after the commencement of
this Act.
[s 206]
Property Law Act 1974
Part 14 Perpetuities and accumulations
Current as at 30 April 2022 Page 179
Authorised by the Parliamentary Counsel
Part 14 Perpetuities and accumulations
206 Definitions for pt 14
In this part—
disposition includes the conferring or exercise of a power of
appointment or any other power or authority to dispose of an
interest in or a right over property and any other disposition of
an interest in or right over property.
instrument includes a will, and also includes an instrument,
testamentary or otherwise, exercising a power of appointment
whether general or special but does not include an Act.
power of appointment includes any discretionary power to
transfer or grant or create a beneficial interest in property
without the furnishing of valuable consideration.
206A When disposition in will made
For the purposes of this part a disposition contained in a will
shall be deemed to be made at the death of the testator.
206B When person to be treated as member of class
For the purposes of this part a person shall be treated as a
member of a class if in the person’s case all the conditions
identifying a member of the class are satisfied, and shall be
treated as a potential member if in the person’s case only 1 or
some of those conditions are satisfied but there is a possibility
that the remainder will in time be satisfied.
207 Application of pt 14
(1) Save as otherwise provided in this part, this part shall apply
only in relation to instruments taking effect after the
commencement of this Act, and in the case of an instrument
under which a special power of appointment is exercised shall
[s 208]
Property Law Act 1974
Part 14 Perpetuities and accumulations
Page 180 Current as at 30 April 2022
Authorised by the Parliamentary Counsel
apply only where the instrument creating the power takes
effect after that commencement.
(1A) However, section 208 shall apply in all cases for construing
the reference in this subsection to a special power of
appointment.
(2) This part applies in relation to a disposition made otherwise
than by an instrument as if the disposition had been contained
in an instrument taking effect when the disposition was made.
208 Powers of appointment
(1) For the purposes of the rule against perpetuities a power of
appointment shall be treated as a special power unless—
(a) in the instrument creating the power it is expressed to be
exercisable by 1 person only; and
(b) it could at all times during its currency when that person
is of full age and capacity be exercised by the person so
as immediately to transfer to or otherwise vest in the
person the whole of the interest governed by the power
without the consent of any other person or compliance
with any other condition, not being a formal condition
relating only to the mode of exercise of the power.
(2) However, for the purpose of determining whether a
disposition made under a power of appointment exercisable
by will only is void for remoteness the power shall be treated
as a general power where it would have fallen to be so treated
if exercisable by deed.
209 Power to specify perpetuity period
(1) Except as otherwise provided in this part where the instrument
by which any disposition is made so provides the perpetuity
period applicable to the disposition under the rule against
perpetuities instead of being of any other duration shall be
such number of years not exceeding 80 as is specified in the
instrument as the perpetuity period applicable to the
disposition.
[s 210]
Property Law Act 1974
Part 14 Perpetuities and accumulations
Current as at 30 April 2022 Page 181
Authorised by the Parliamentary Counsel
(2) Subsection (1) shall not have effect where the disposition is
made in exercise of a special power of appointment but where
a period is specified under that subsection in the instrument
creating such a power the period shall apply in relation to any
disposition under the power as it applies in relation to the
power itself.
(3) If no period of years is specified in an instrument by which a
disposition is made as the perpetuity period applicable to the
disposition but a date certain is specified in the instrument as
the date on which the disposition shall vest the instrument
shall, for the purposes of this section, be deemed to specify as
the perpetuity period applicable to the disposition a number of
years equal to the number of years from the date of the taking
effect of the instrument to the specified vesting date.
210 Wait and see rule
(1) Where apart from the provisions of this section and of
section 213 a disposition would be void on the ground that the
interest disposed of might not become vested until too remote
a time the disposition shall be treated until such time (if any)
as it becomes established that the vesting must occur, if at all,
after the end of the perpetuity period as if the disposition were
not subject to the rule against perpetuities, and its becoming
so established shall not affect the validity of anything
previously done in relation to the interest disposed of by way
of advancement, application of intermediate income or
otherwise.
(2) Where apart from the provisions of this section and of
section 213 a disposition consisting of the conferring of a
general power of appointment would be void on the ground
that the power might not become exercisable until too remote
a time the disposition shall be treated until such time (if any)
as it becomes established that the power will not be
exercisable within the perpetuity period as if the disposition
were not subject to the rule against perpetuities.
(3) Where apart from the provisions of this section and of
section 213 a disposition consisting of the conferring of any
[s 211]
Property Law Act 1974
Part 14 Perpetuities and accumulations
Page 182 Current as at 30 April 2022
Authorised by the Parliamentary Counsel
power, option or other right would be void on the ground that
the right might be exercised at too remote a time the
disposition shall be treated as regards any exercise of the right
within the perpetuity period as if it were not subject to the rule
against perpetuities and subject to the provisions shall be
treated as void for remoteness only if and so far as the right is
not fully exercised within that period.
(4) Nothing in this section makes any person a life in being for
the purposes of ascertaining the perpetuity period unless the
life of that person is one expressed or implied as relevant for
this purpose by the terms of the disposition and would have
been reckoned a life in being for such purpose if this section
had not been enacted.
(5) However, in the case of a disposition to a class of persons or to
1 or more members of a class, any person living at the date of
the disposition whose life is so expressed or implied as
relevant for any member of the class may be reckoned a life in
being in ascertaining the perpetuity period.
211 Power to apply to court for declaration as to validity
(1) A trustee of any property, or any person interested under, or
on the invalidity of, a disposition of property, may at any time
apply to the court for a declaration as to the validity, in respect
to the rule against perpetuities, of a disposition of that
property.
(2) The court may, on an application under subsection (1), make a
declaration, on the basis of facts existing and events that have
occurred at the time the declaration is made, as to the validity
or otherwise of the disposition in respect of which the
application is made, but the court shall not make a declaration
in respect of any disposition the validity of which cannot be
determined at the time at which the court is asked to make the
declaration.
[s 212]
Property Law Act 1974
Part 14 Perpetuities and accumulations
Current as at 30 April 2022 Page 183
Authorised by the Parliamentary Counsel
212 Presumptions and evidence as to future parenthood
(1) Where in any proceedings there arises on the rule against
perpetuities a question which turns on the capacity of a person
to have a child at some future time, then—
(a) it shall be presumed, subject to paragraph (b), that a
male can have a child at the age of 12 years or over but
not under that age and that a female can have a child at
the age of 12 years or over but not under that age or over
the age of 55 years; but
(b) in the case of a living person evidence may be given to
show that he or she will or will not be capable of having
a child at the time in question.
(2) Where any such question is decided by treating a person as
incapable of having a child at a particular time and he or she
does so, the court may make such order as it thinks fit for
placing the persons interested in the property comprised in the
disposition so far as may be just in the position they would
have held if the question had not been so decided.
(3) Subject to subsection (2), where any such question is decided
in relation to a disposition by treating a person as capable or
incapable of having a child at a particular time then he or she
shall be so treated for the purpose of any question which may
arise on the rule against perpetuities in relation to the same
disposition in any subsequent proceedings.
(4) In this section, references to having a child are references to
begetting or giving birth to a child, but this section (other than
subsection (1)(b)) shall apply in relation to the possibility that
a person will at any time have a child by adoption,
legitimation or other means as they apply to the person’s
capacity at that time to beget or give birth to a child.
213 Reduction of age and exclusion of class members to
avoid remoteness
(1) Where a disposition is limited by reference to the attainment
by any person or persons of a specified age exceeding 18
[s 213]
Property Law Act 1974
Part 14 Perpetuities and accumulations
Page 184 Current as at 30 April 2022
Authorised by the Parliamentary Counsel
years and it is apparent at the time the disposition is made or
becomes apparent at a subsequent time—
(a) that the disposition would apart from this section be
void for remoteness; but
(b) that it would not be so void if the specified age had been
18 years;
the disposition shall be treated for all purposes as if instead of
being limited by reference to the age in fact specified it had
been limited by reference to the age nearest to that age which
would if specified instead, have prevented the disposition
from being so void.
(2) Where in the case of any disposition different ages exceeding
18 years are specified in relation to different persons—
(a) the reference in subsection (1)(b) to the specified age
shall be construed as a reference to all the specified
ages; and
(b) that subsection shall operate to reduce each such age so
far as is necessary to save the disposition from being
void for remoteness.
(3) Where the inclusion of any persons being potential members
of a class or unborn persons who at birth would become
members or potential members of the class prevents
subsections (1) and (2) from operating to save a disposition
from being void for remoteness, those persons shall be
deemed for all the purposes of the disposition to be excluded
from the class and subsections (1) and (2) shall have effect
accordingly.
(4) Where in the case of a disposition to which subsection (3)
does not apply it is apparent at the time the disposition is
made or becomes apparent at a subsequent time that apart
from this subsection the inclusion of any persons, being
potential members of a class or unborn persons who at birth
could become members or potential members of the class
would cause the disposition to be treated as void for
remoteness, those persons shall unless their exclusion would
[s 214]
Property Law Act 1974
Part 14 Perpetuities and accumulations
Current as at 30 April 2022 Page 185
Authorised by the Parliamentary Counsel
exhaust the class be deemed for all the purposes of the
disposition to be excluded from the class.
(5) Where this section has effect in relation to a disposition to
which section 210 applies the operation of this section shall
not affect the validity of anything previously done in relation
to the interest disposed of by way of advancement, application
of intermediate income or otherwise.
214 Unborn husband or wife
The widow or widower of a person who is a life in being for
the purposes of the rule against perpetuities shall be deemed
to be a life in being for the purpose of—
(a) a disposition in favour of that widow or widower; and
(b) a disposition in favour of a charity which attains or of a
person who attains or of a class the members of which
attain under the terms of the disposition a vested interest
on or after the death of the survivor of the person who is
a life in being and that widow or widower, or on or after
the death of that widow or widower or on or after the
happening of any contingency during her or his lifetime.
215 Dependent dispositions
A disposition shall not be treated as void for remoteness
merely because the interest disposed of is ulterior to and
dependent upon an interest under a disposition which is so
void, and the vesting of an interest shall not be prevented from
being accelerated on the failure of a prior interest merely
because the failure arises because of remoteness.
216 Abolition of the rule against double possibilities
(1) The rule of law prohibiting the limitation, after a life interest
to an unborn person, of an interest in land to the unborn child
or other issue of an unborn person is abolished.
[s 217]
Property Law Act 1974
Part 14 Perpetuities and accumulations
Page 186 Current as at 30 April 2022
Authorised by the Parliamentary Counsel
(2) This section applies only to limitations or trusts created by an
instrument coming into operation after the commencement of
this Act.
217 Restrictions on the perpetuity rule
(1) For removing doubts, it is declared that the rule of law relating
to perpetuities does not apply and shall be deemed never to
have applied—
(a) to any power to distrain on or to take possession of land
or the income of the land given by way of indemnity
against a rent, whether charged upon or payable in
respect of any part of that land or not; or
(b) to any rent charge created only as an indemnity against
another rent charge, although the indemnity rent charge
may arise or become payable only on breach of a
condition or stipulation; or
(c) to any power, whether exercisable on breach of a
condition or stipulation or not, to retain or withhold
payment of any instalment of a rent charge as an
indemnity against another rent charge; or
(d) to any grant, exception or reservation of and right of
entry on, or user of, the surface of land or of any
easements, rights or privileges over or under land for the
purpose of—
(i) winning, working, inspecting, measuring,
converting, manufacturing, carrying away and
disposing of mines and minerals; and
(ii) inspecting, grubbing up, felling and carrying away
timber and other trees, and the tops and lops of
them; and
(iii) executing repairs, alterations or additions to any
adjoining land, or the buildings and erections on
the land; and
(iv) constructing, laying down, altering, repairing,
renewing, cleansing and maintaining sewers,
[s 218]
Property Law Act 1974
Part 14 Perpetuities and accumulations
Current as at 30 April 2022 Page 187
Authorised by the Parliamentary Counsel
watercourses, cesspools, gutters, drains, water
pipes, gas pipes, electric wires or cables or other
like works.
(2) This section applies to instruments coming into operation
before or after the commencement of this Act.
(3) In this section—
instrument includes a statute creating a settlement.
218 Options
(1) The rule against perpetuities shall not apply to a disposition
consisting of the conferring of an option to acquire for
valuable consideration an interest reversionary (whether
directly or indirectly) on the term of a lease if—
(a) the option is exercisable only by the lessee or the
lessee’s successors in title; and
(b) it ceases to be exercisable at or before the expiration of 1
year following the determination of the lease.
(1A) Subsection (1) applies in relation to an agreement for a lease
as it applies in relation to a lease, and lessee shall be construed
accordingly.
(2) An option to acquire an interest in land (not being an option to
which subsection (1) applies) or a right of pre-emption in
respect of land, which according to its terms is or may be
exercisable at a date more than 21 years from the date of its
grant shall after the expiration of 21 years from the date of its
grant be void and not exercisable by any person and no
remedy shall lie in contract or otherwise for giving effect to it
or making restitution for its lack of effect, but—
(a) this subsection shall not apply to an option or right of
pre-emption conferred by will; and
(b) nothing in this subsection shall affect an option for
renewal or right of pre-emption contained in a lease or
an agreement for a lease.
[s 219]
Property Law Act 1974
Part 14 Perpetuities and accumulations
Page 188 Current as at 30 April 2022
Authorised by the Parliamentary Counsel
219 Determinable interests
(1) The rule against perpetuities shall apply—
(a) to a possibility of reverter in land on the determination
of a determinable fee simple, in which case if the fee
simple does not determine within the perpetuity period
it shall afterwards continue as a fee simple absolute; and
(b) to a possibility of a resulting trust on the determination
of any other determinable interest in property, in which
case if the first interest created by the trust does not
determine within the perpetuity period the interest it
creates shall afterwards continue as an absolute interest;
and
(c) to a right of entry for condition broken the exercise of
which may determine a fee simple subject to a condition
subsequent and to an equivalent right in the case of
property other than land, in which case if the right of
entry or other right is not exercised within the perpetuity
period the fee simple shall afterwards continue as an
absolute interest and any such other interest in property
shall afterwards continue free from the condition.
(2) This section shall apply whether or not the determinable or
conditional disposition is charitable except that the rule
against perpetuities shall not apply to a gift over from 1
charity to another.
(3) Where a disposition is subject to any provision that causes an
interest to which subsection (1)(a) or (b) applies to be
determinable, or to any condition subsequent giving rise on
breach of it to a right of re-entry or an equivalent right in the
case of property other than land, or to any exception or
reservation the disposition shall be treated for the purposes of
this Act as including a separate disposition of any rights
arising because of the provision condition subsequent
exception or reservation.
[s 220]
Property Law Act 1974
Part 14 Perpetuities and accumulations
Current as at 30 April 2022 Page 189
Authorised by the Parliamentary Counsel
220 Trustee powers and superannuation funds
(1) The rule of law known as the rule against perpetuities does not
apply and shall be deemed never to have applied so as to
render void—
(a) a trust or power to sell property, where a trust of the
proceeds of sale is valid; or
(b) a trust or power to lease or exchange property, where the
lease or exchange directed or authorised by the trust or
power is ancillary to the carrying out of a valid trust; or
(c) any other power which is ancillary to the carrying out of
a valid trust or the giving effect to a valid disposition of
property; or
(d) a trust or fund established for the purpose of making
provision by way of assistance, benefits,
superannuation, allowances, gratuities or pensions for
persons who are or have been—
(i) employees; or
(ii) self-employed persons; or
(iii) employees and self-employed persons; or
(iv) the spouses, children, grandchildren, parents,
dependants or legal personal representatives of
employees or self-employed persons; or
(v) persons selected or nominated by an employee or a
self-employed person under the provisions of such
trust or fund; or
(e) any provision for the remuneration of trustees.
(2) This section does not—
(a) render any trustee liable for any acts done prior to the
commencement of this Act for which that trustee would
not have been liable had this section not been enacted;
or
(b) enable any person to recover any money distributed or
paid under any trust prior to the commencement of this
[s 221]
Property Law Act 1974
Part 14 Perpetuities and accumulations
Page 190 Current as at 30 April 2022
Authorised by the Parliamentary Counsel
Act, if the person could not have recovered that money
had this section not been enacted.
(3) In this section—
employee includes directors, servants, officers or employees
of any employer or employers.
self-employed persons includes persons engaged in any
lawful profession, trade, occupation or calling.
221 Non-charitable purpose trusts
(1) Except as provided in subsection (2) nothing in this Act shall
affect the operation of the rule of law rendering non-charitable
purpose trusts and trusts for the benefit of corporations which
are not charities void for remoteness in cases where the trust
property may be applied for the purposes of the trusts after the
end of the perpetuity period.
(2) If any such trust is not otherwise void sections 209 and 210
shall apply to it and the property subject to the trust may be
applied for the purposes of the trust during the perpetuity
period but not afterwards.
222 Accumulation of income
(1) Where property is settled or disposed of in such manner that
the income of the property may be or is directed to be
accumulated wholly or in part the power or direction to
accumulate that income shall be valid if the disposition of the
accumulated income is or may be valid but not otherwise.
(2) Nothing in this section shall affect the power of any person or
persons to terminate an accumulation that is for his or her
benefit or any jurisdiction or power of the court to maintain or
advance out of accumulations or any power of a trustee under
the Trusts Act 1973 or under any other Act or law or under any
instrument creating a trust or making a disposition.
[s 223]
Property Law Act 1974
Part 15 Corporations
Current as at 30 April 2022 Page 191
Authorised by the Parliamentary Counsel
Part 15 Corporations
223 Devolution of property of corporation sole
Where either before or after the commencement of this Act
any property or interest in the property is or has been vested in
a corporation sole (including the Crown), the same shall,
unless and until disposed of by the corporation, pass and
devolve to and vest in and be deemed always to have passed
and devolved to and vested in the successors from time to time
of such corporation.
224 Vacancy in corporation
Where either before or after the commencement of this Act
there is or has been a vacancy in the office of a corporation
sole or in the office of the head of a corporation aggregate (in
any case in which the vacancy affects the status or powers of
the corporation) at the time when, if there had been no
vacancy, any interest in or charge on property would have
been acquired by the corporation, such interest shall despite
such vacancy vest and be deemed to have vested in the
successor to such office on the successor’s appointment as a
corporation sole, or in the corporation aggregate (as the case
may be), but without prejudice to the right of such successor,
or of the corporation aggregate after the appointment of its
head officer, to disclaim that interest or charge.
225 Transactions with corporation sole
Any contract or other transaction expressed or purporting to
be made with a corporation sole, or any appointment of a
corporation sole as trustee, at a time when there was a vacancy
in the office and no administrator acting, shall on the vacancy
being filled take effect and be deemed to have taken effect as
if the vacancy had been filled before the contract, transaction
or appointment was expressed to be made or was capable of
taking effect, and on the appointment of a successor shall be
[s 226]
Property Law Act 1974
Part 15 Corporations
Page 192 Current as at 30 April 2022
Authorised by the Parliamentary Counsel
capable of being enforced, accepted, disclaimed or renounced
by the successor.
226 Corporation incapable of acting
(1) Where, because of the death or incapacity (whether before or
after the commencement of this Act) of any 1 or more of the
officers or members of a corporation or for any other reason,
the corporation ceases to be capable of acting—
(a) either generally or in respect of a particular transaction
or transactions; and
(b) either temporarily or for an indefinite or any lesser
period;
the court may, on the application of any officer or member of
the corporation or the personal representative of such member
or of any creditor or person having or appearing to have any
claim against the corporation, appoint an administrator.
(2) The court may in its discretion appoint any administrator for
an indefinite period or for a fixed period or until the
happening of any specified event and on such terms and
conditions as to remuneration out of the assets of the
corporation and otherwise as it thinks fit.
(3) Unless the court otherwise directs, the administrator shall, to
the exclusion of the corporation and any officer or member of
the corporation, have authority to and may exercise all the
powers of the corporation subject to such terms and
conditions (if any) as the court sees fit to impose.
(4) Unless the court otherwise directs, the administrator may
delegate any of the powers exercisable by the administrator.
(5) The court may in its discretion on the application of the
administrator or of any person referred to in subsection (1)—
(a) give to the administrator directions—
(i) as to the exercise of any of the powers exercisable
by the administrator; and
[s 227]
Property Law Act 1974
Part 15 Corporations
Current as at 30 April 2022 Page 193
Authorised by the Parliamentary Counsel
(ii) as to any question or matter arising in or with
respect to the affairs of the corporation; or
(b) remove or replace the administrator.
(6) On any application under this section the court may make
such order for the payment of costs as it thinks fit.
(7) This section applies to any corporation, whether a corporation
aggregate or corporation sole—
(a) incorporated under the Associations Incorporation Act
1981; or
(b) incorporated or registered under the Corporations Act;
or
(c) constituted under any other Act.
(8) Where an order is made under this section for the
appointment, removal or replacement of an administrator in
relation to a company incorporated or registered under the
Corporations Act the order shall not take effect until the
lodgment within 7 days of the making of the order, or such
longer period as the court may allow, of an office copy of the
order with the Australian Securities and Investments
Commission.
227 Corporate contracts and transactions not under seal
(1) Contracts and other transactions may be made or effected by
any body corporate, wherever incorporated, as follows—
(a) a contract or other transaction which if made or effected
by or between individuals would by law be required to
be in writing, signed by the party to be charged with it or
effecting the same, may be made by the corporation in
writing signed by any person under its authority, express
or implied; and
(b) a contract or other transaction, which if made or effected
by or between individuals would by law be valid
although made by parol only, and not reduced to
[s 228]
Property Law Act 1974
Part 16 Voidable dispositions
Page 194 Current as at 30 April 2022
Authorised by the Parliamentary Counsel
writing, may be made by parol by the corporation by
any person acting under its authority, express or implied.
(2) A contract or other transaction made or effected under this
section shall be effective in law, and shall bind the corporation
and the corporation’s successors and all other parties to the
contract or other transaction.
(3) A contract or other transaction made or effected under this
section may be varied or discharged in the same manner in
which it is by this section authorised to be made or effected.
(4) Nothing in this section shall be taken to prevent a contract or
other transaction from being made or effected under the seal
of the corporation.
(5) This section—
(a) applies to the making, effecting, variation or discharge
of a contract or transaction after the commencement of
this Act, whether the corporation gave its authority
before or after the commencement of this Act; and
(b) does not apply to contracts made by any company
within the meaning of the Corporations Act, or by any
corporation incorporated under any other Act which
expressly prescribes the manner and form in which
contracts may be made or transactions effected by or on
behalf of such corporation.
Part 16 Voidable dispositions
228 Voluntary conveyances to defraud creditors voidable
(1) Subject to this section, every alienation of property, made
whether before or after the commencement of this Act, with
intent to defraud creditors, shall be voidable, at the instance of
any person prejudiced by the alienation of property.
(2) This section does not affect the law of bankruptcy for the time
being in force.
[s 229]
Property Law Act 1974
Part 17 Apportionment
Current as at 30 April 2022 Page 195
Authorised by the Parliamentary Counsel
(3) This section does not extend to any estate or interest in
property conveyed for valuable consideration and in good
faith to any person not having, at the time of the conveyance,
notice of the intent to defraud creditors.
229 Voluntary disposition of land how far voidable as against
purchasers
(1) Every voluntary alienation of land made with intent to defraud
a subsequent purchaser is voidable at the instance of that
purchaser.
(2) For the purposes of this section, no voluntary disposition,
whenever made, shall be deemed to have been made with
intent to defraud merely because a subsequent conveyance for
valuable consideration was made, if such subsequent
conveyance is made after the commencement of this Act.
230 Acquisitions of reversions at an under value
(1) No acquisition made in good faith, without fraud or unfair
dealing, of any reversionary interest in real or personal
property, for money or money’s worth, shall be liable to be
opened or set aside merely on the ground of under value.
(1A) In subsection (1)—
reversionary interest includes an expectancy or possibility.
(2) This section does not affect the jurisdiction of the court to set
aside or modify unconscionable bargains.
Part 17 Apportionment
231 Definitions for pt 17
In this part—
annuities include salaries and pensions.
[s 232]
Property Law Act 1974
Part 17 Apportionment
Page 196 Current as at 30 April 2022
Authorised by the Parliamentary Counsel
dividends include (besides dividends strictly so-called) all
payments made by the name of dividend, bonus, or otherwise
out of the revenue of any company or other body corporate
incorporated under any statute, divisible between all, or any of
the members of such respective companies, whether such
payments shall be usually made or declared at any fixed times
or otherwise.
rents include rent service, rent charge, and rent seck, and all
periodical payments or renderings instead of or in the nature
of rent.
232 Rents etc. apportionable in respect of time
(1) All rents, annuities, dividends, and other periodical payments
in the nature of income whether reserved or made payable
under an instrument in writing or otherwise shall, like interest
on money lent be considered as accruing from day to day, and
shall be apportionable in respect of time accordingly.
(2) The apportioned part of any such rent, annuity, or other
payment shall be payable or recoverable in the case of a
continuing rent, annuity, or other such payment, when the
entire portion of which such apportioned part, forms part
becomes due and payable, and not before, and in the case of a
rent annuity or other such payment determined by re-entry,
death, or otherwise, when the next entire portion of the same
would have been payable if the same had not so determined,
and not before.
(3) All persons and their respective executors, administrators, and
assigns, and also the executors, administrators, and assigns
respectively of persons whose interests determine with their
own deaths, shall have such or the same remedies, at law and
in equity, for recovering such apportioned parts when payable
(allowing proportionate parts of all just allowances) as they
respectively would have had for recovering such entire
portions if entitled to them respectively.
(4) Despite subsection (3), where any person is liable to pay rent
reserved out of or charged on lands, that person and the lands
shall not be resorted to for any such apportioned part forming
[s 233]
Property Law Act 1974
Part 18 Unregistered land
Current as at 30 April 2022 Page 197
Authorised by the Parliamentary Counsel
part of an entire or continuing rent specifically, but the entire
or continuing rent, including such apportioned part, shall be
recovered and received by the person who, if the rent had not
been apportionable under this section or otherwise, would
have been entitled to such entire or continuing rent, and such
apportioned part shall be recoverable from such last person by
the executors, administrators, or other parties entitled to it
under this section by action or suit.
233 Exceptions and application
(1) Nothing in this part renders apportionable any annual sums
payable under policies of assurance of any description.
(2) This part does not extend to any case in which it is expressly
stipulated that apportionment shall not take place.
Part 18 Unregistered land
Division 1 Application of part—interpretation
234 Definition for pt 18
In this part—
instrument includes not only conveyances and other deeds,
but also all instruments in writing of any kind, under which
real or leasehold estate is affected or is intended so to be,
including—
(a) a certificate under section 101; and
(b) a power of attorney registered under an Act.
234A Application of pt 18
Subject to section 241, this part applies only to unregistered
land and any estate or interest in unregistered land.
[s 235]
Property Law Act 1974
Part 18 Unregistered land
Page 198 Current as at 30 April 2022
Authorised by the Parliamentary Counsel
Division 2 Sales and conveyances
235 No conveyance to have tortious operation
No conveyance of any land made or purporting to be made
after the commencement of this Act shall have a tortious
operation.
236 Want of livery of seisin
(1) Livery of seisin shall not be deemed to have been necessary to
give effect to any feoffment executed before 3 January 1842,
but every such feoffment shall be taken to have operated in the
same manner as the same would have done in case there had
been livery of seisin in the most valid form.
(2) However, nothing in subsection (1) shall make any such
feoffment operate as a tortious conveyance or shall prejudice
or affect the title of any person now in possession of land the
subject of any such feoffment and claimed adversely to the
feoffee or the feoffee’s heirs or assigns.
237 Statutory commencements of title
(1) After the commencement of this Act 30 years shall be
substituted for 60 years as the period of commencement of
title which a purchaser of land may require, even though
earlier title than 30 years may be required in cases similar to
those in which earlier title than 60 years might immediately
before the commencement of this Act be required.
(2) Under a contract to grant or assign a term of years, whether
derived or to be derived out of freehold or leasehold land, the
intended lessee or assign shall not be entitled to call for the
title to the freehold.
(3) Under a contract to sell and assign a term of years derived out
of a leasehold interest in land, the intended assign shall not
have the right to call for the title to the leasehold reversion.
[s 238]
Property Law Act 1974
Part 18 Unregistered land
Current as at 30 April 2022 Page 199
Authorised by the Parliamentary Counsel
(4) On a contract to grant a lease for a term of years to be derived
out of a leasehold interest, with a leasehold reversion, the
intended lessee shall not have the right to call for the title to
that reversion.
(5) Where, because of subsection (2), (3) or (4), an intending
lessee or assign is not entitled to call for the title to the
freehold or to a leasehold reversion, as the case may be, the
intending lessee or assign shall not, where the contract is
made after the commencement of this Act, be deemed to be
affected with notice of any matter or thing of which, if the
intending lessee or assign had contracted that such title should
be furnished, the intended lessee or assign might have had
notice.
(6) A purchaser shall not be deemed to be or ever to have been
affected with notice of any matter or thing of which, if the
purchaser had investigated the title or made enquires in regard
to matters prior to the period of commencement of title fixed
by this Act, or by any other statute, or by any rule of law, the
purchaser might have had notice, unless the purchaser actually
makes such investigation or enquires.
(7) Where a lease whether made before or after the
commencement of this Act, is made under a power contained
in a settlement, will, Act or other instrument, any preliminary
contract for or relating to the lease shall not, for the purpose of
the deduction of title to an intended assign, form part of the
title, or evidence of the title, to the lease.
(8) This section applies to contracts for sale whether made before
or after the commencement of this Act, and applies to
contracts for exchange in like manner as to contracts for sale,
save that it applies only to contracts for exchange made after
such commencement.
(9) This section applies only if and so far as a contrary intention is
not expressed in the contract.
238 Other statutory conditions of sale
(1) A purchaser of any property shall not—
[s 238]
Property Law Act 1974
Part 18 Unregistered land
Page 200 Current as at 30 April 2022
Authorised by the Parliamentary Counsel
(a) require the production, or any abstract or copy, of any
deed, will, or other document, dated or made before the
time prescribed by law, or stipulated, for the
commencement of the title, even though the same
creates a power subsequently exercised by an instrument
abstracted in the abstract furnished to the purchaser; or
(b) require any information, or make any requisition,
objection, or inquiry, with respect to any such deed, will,
or document, or the title prior to that time, even though
any such deed, will, or other document, or that prior
title, is recited, agreed to be produced, or noticed;
and the purchaser shall assume, unless the contrary appears,
that the recitals contained in the abstracted instruments, of any
deed, will, or other document, forming part of that prior title,
are correct, and give all the material contents of the deed, will,
or other document so recited, and that every document so
recited was duly executed by all necessary parties, and
perfected, if and as required, by fine, recovery,
acknowledgment, enrolment, or otherwise.
(1A) However, subsection (1) shall not deprive a purchaser of the
right to require the production, or an abstract or copy of—
(a) any power of attorney under which any abstracted
document is executed; or
(b) any document 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 property is
disposed of by an abstracted document; or
(c) any document creating any limitation or trust by
reference to which any part of the property is disposed
of by an abstracted document.
(2) Where land sold is held by lease (other than an under-lease),
the purchaser shall assume, unless the contrary appears, that
the lease was duly granted, and, on production of the receipt
for the last payment due for rent under the lease before the
date of actual completion of the purchase, the purchaser shall
assume, unless the contrary appears, that all the covenants and
[s 238]
Property Law Act 1974
Part 18 Unregistered land
Current as at 30 April 2022 Page 201
Authorised by the Parliamentary Counsel
provisions of the lease have been duly performed and
observed up to the date of actual completion of the purchase.
(3) Where land is held by under-lease, the purchaser shall
assume, unless the contrary appears, that the under-lease and
every superior lease were duly granted, and, on production of
the receipt for the last payment due for rent under the
under-lease before the date of actual completion of the
purchase, the purchaser shall assume, unless the contrary
appears, that all the covenants and provisions of the
under-lease have been duly performed and observed up to the
date of actual completion of the purchase, and further that all
rent due under every superior lease, and all the covenants and
provisions of every superior lease, have been paid and duly
performed and observed up to that date.
(4) On a sale of any property, the following expenses shall be
borne by the purchaser where the purchaser requires them to
be incurred for the purpose of verifying the abstract or any
other purpose—
(a) the expenses of the production and inspection of all
records, proceedings of courts, deeds, wills, probates,
letters of administration, and other documents, not in the
possession of the vendor or the vendor’s mortgagee or
trustee, and the expenses of all journeys incidental to
such production or inspection;
(b) the expenses of searching for, procuring, making,
verifying, and producing all certificates, declarations,
evidences, and information not in the possession of the
vendor or the vendor’s mortgagee or trustee, and all
attested, stamped, office, or other copies or abstracts of,
or extracts from, the documents referred to in
paragraph (a), not in the possession of the vendor or the
vendor’s mortgagee or trustee;
and where the vendor or the vendor’s mortgagee or trustee
retains possession of any document, the expenses of making
any copy of the document, attested or unattested, which a
purchaser requires to be delivered to the purchaser, shall be
borne by that purchaser.
[s 238]
Property Law Act 1974
Part 18 Unregistered land
Page 202 Current as at 30 April 2022
Authorised by the Parliamentary Counsel
(5) On a sale of any property in parcels, a purchaser of 2 or more
parcels held wholly or partly under the same title, shall not
have a right to more than 1 abstract of the common title,
except at the purchaser’s own expense.
(6) Recitals, statements, and descriptions of facts, matters, and
parties contained in deeds, instruments, or statutory
declarations, 20 years old at the date of the contract, shall,
unless and except so far as they may be proved to be
inaccurate, be taken to be sufficient evidence of the truth of
such facts, matters, and descriptions.
(7) The inability of a vendor to furnish a purchaser with an
acknowledgment of the vendor’s right to production and
delivery of copies of documents of title or with a legal
covenant to produce and furnish copies of documents of title
shall not be an objection to title in case the purchaser will, on
the completion of the contract, have an equitable right to the
production of such documents.
(8) Such acknowledgments of the right of production or
covenants for production and such undertakings or covenants
for safe custody of documents as the purchaser can and does
require shall be furnished or made at the purchaser’s expense,
and the vendor shall bear the expense of perusal and execution
on behalf of and by the vendor, and on behalf of and by
necessary parties other than the purchaser.
(9) A vendor shall be entitled to retain documents of title where—
(a) the vendor retains any part of the land to which the
documents relate; or
(b) the document consists of a trust instrument or other
instrument creating a trust which is still subsisting, or an
instrument relating to the appointment or discharge of a
trustee of a subsisting trust.
(10) This section applies to contracts for sale made after the
commencement of this Act, and applies to contracts for
exchange in like manner as to contracts for sale.
(11) This section applies subject to any stipulation or contrary
intention expressed in the contract.
[s 239]
Property Law Act 1974
Part 18 Unregistered land
Current as at 30 April 2022 Page 203
Authorised by the Parliamentary Counsel
(12) Nothing in this section shall be construed as binding a
purchaser to complete the purchase in any case where, on a
contract made independently of this section, and containing
stipulations similar to this section, or any of them, specific
performance of the contract would not be enforced against the
purchaser by the court.
239 General words implied in conveyances
(1) A conveyance of land after the commencement of this Act
shall be deemed to include and shall because of this Act
operate to convey, with the land, all buildings, erections,
fixtures, commons, hedges, ditches, fences, ways, waters,
watercourses, liberties, privileges, easements, rights and
advantages whatsoever, appertaining or reputed to appertain
to the land or any part of the land, or, at the time of
conveyance, demised, occupied, or enjoyed with, or reputed
or known as part or parcel of or appurtenant to the land or any
part of the land.
(2) A conveyance of land, having houses or other buildings on it,
shall be deemed to include and shall because of this Act
operate to convey, with the land, houses, or other buildings, all
outhouses, erections, fixtures, cellars, areas, courts,
courtyards, cisterns, sewers, gutters, drains, ways, passages,
lights, watercourses, liberties, privileges, easements, rights,
and advantages of any kind, appertaining or reputed to
appertain to the land, houses, or other buildings conveyed, or
any of them, or any part of them, or, at the time of
conveyance, demised, occupied, or enjoyed with, or reputed
or known as part or parcel of or appurtenant to, the land,
houses, or other buildings conveyed, or any of them, or any
part of them.
(3) This section applies only if and as far as a contrary intention is
not expressed in the conveyance, and has effect subject to the
terms of the conveyance and to the provisions contained in the
conveyance.
[s 240]
Property Law Act 1974
Part 18 Unregistered land
Page 204 Current as at 30 April 2022
Authorised by the Parliamentary Counsel
240 All estate clause implied
(1) Every conveyance is effectual to pass all the estate, right, title,
interest, claim, and demand which the conveying parties
respectively have, in, to, or on the property conveyed, or
expressed or intended so to be, or which they respectively
have power to convey in, to, or on the same.
(2) This section applies only if and as far as a contrary intention is
not expressed in the conveyance, and has effect subject to the
terms of the conveyance and to the provisions contained in the
conveyance.
(3) This section applies to conveyances made after the
commencement of this Act.
Division 3 Registration of deeds
241 Registration of instruments and wills
(1) After the commencement of this Act—
(a) any agreement in writing, deed, conveyance or other
instrument (except a lease for less than 3 years)
affecting any estate in land may; and
(b) any will or devise affecting any estate in land may; and
(c) any other instrument, record or document which, prior
to the passing of this Act, might have been registered
under the Registration of Deeds Act 1843 may; and
(d) every Act shall;
under this division, be registered, enrolled or, as the case may
be, recorded in the land registry.
(2) A reference in any Act or instrument to, or to registration of
an instrument under, the Registration of Deeds Act 1843 or the
Titles to Land Act 1858 shall be construed as a reference to
this division.
[s 242]
Property Law Act 1974
Part 18 Unregistered land
Current as at 30 April 2022 Page 205
Authorised by the Parliamentary Counsel
242 Mode of registration
(1) Registration under this division shall be effected by lodging in
the land registry a full copy of the instrument signed by some
1 or more of the parties to the original instrument, or will,
certified under this section.
(2) The copy referred to in subsection (1)—
(a) shall be legibly and neatly written or printed upon paper
of such form, size and quality as the registrar may from
time to time direct; and
(b) shall be certified to be a true copy by the oath of a
credible person, such oath to be taken before any of the
persons mentioned in the Land Title Act 1994,
schedule 1 to whom the original such instrument or will
shall be produced at the time of certification.
(3) Any erasure or interlineation on the copy referred to in
subsection (1) shall be endorsed in the margin opposite to it
with the signature or initials of the person certifying the same
to be a true copy.
243 Signature on behalf of dead or absent party
When any party to any instrument is dead or absent from the
State at the time when registration of the instrument is
required—
(a) the executor or administrator of that person; or
(b) the attorney constituted under a power of attorney of the
absent party; or
(c) if the registrar is satisfied that the signature of a party
cannot for any other reason be obtained, the registrar;
may, in place of a party referred to in the preceding section,
sign the copy instrument, and such signature shall be valid to
all intents and purposes as if such copy had been signed by the
original party to the instrument.
[s 244]
Property Law Act 1974
Part 18 Unregistered land
Page 206 Current as at 30 April 2022
Authorised by the Parliamentary Counsel
244 Receipts by registrar and endorsement
(1) Upon the lodging in the land registry of any such certified
copy and the verification of the same, the registrar shall grant
and sign a receipt for such copy, specifying the day and hour
on which it was lodged, and the name and place of abode of
the witnesses attesting or verifying the same, and the number
of such verified copy according as the same shall be numbered
in the land registry, and such receipt shall be endorsed upon
the original instrument to which such certified copy relates,
and shall also be entered on such certified copy.
(2) The time so endorsed shall be taken to be the time of
registration of every such instrument of which the certified
copy has been made.
(3) Every such certified copy so lodged in the office shall be
numbered successively accordingly to the order of time in
which the same has been lodged, and shall immediately be
registered according to such number and order of time in a
book or books to be provided and kept for such purpose in the
office, and every such book shall be open at all convenient
times to the inspection of persons desirous of searching the
same.
(4) The registrar shall make and keep proper indexes to all
registrations so that, as far as may be, information may readily
be obtained by parties interested as to all encumbrances, liens
or instruments affecting any land.
245 Mistakes in registration
No registration of any instrument under any Act now or
previously in force for the registration of deeds or intended to
be under any such Act shall be defeated or made ineffectual
because of any omission, misdescription or error in any case
where the identity of the instrument in evidence with the one
alleged to have been registered is established and the
substantial requirements of the Act have been complied with.
[s 246]
Property Law Act 1974
Part 18 Unregistered land
Current as at 30 April 2022 Page 207
Authorised by the Parliamentary Counsel
246 Deeds to take effect according to priority of registration
All deeds and other instruments (wills excepted) affecting
land or any interest in the land which shall be executed or
made bona fide and for valuable consideration and which shall
be duly registered under this division shall have and take
priority not according to their respective dates but according
to the priority of the registration of the land only.
247 Fraud of conveying party
No instrument that in future is executed and registered under
this division shall lose any priority to which it would be
entitled because of such registration merely because of bad
faith in the conveying party if the party beneficially taking
under such instrument acted bona fide and there was a
valuable consideration for the same paid or given.
248 Covenants to produce deeds
A covenant or undertaking whether now or in the future
entered into to produce to any purchaser, lessee or mortgagee
of land or the person’s assigns any deed of or relating to such
land shall be satisfied by a deposit of the deed permanently in
the land registry and the registrar shall give a receipt for and
keep in the land registry a list of all deeds so deposited and
shall permit any person on payment of the relevant titles
registry fees to inspect and obtain copies of every such deed.
249 Certified copy as evidence
(1) In all proceedings before any court of justice, a copy of any
instrument, will or copy registered, deposited or lodged under
this division shall, if such copy be signed by the registrar and
sealed with the seal of the registrar, be received in evidence as
prima facie proof of the instrument or will and of all matters
contained or recited in or endorsed on the original instrument.
(2) In any case where the production of a certified copy or of any
endorsement or memorial is required for the purpose of
[s 250]
Property Law Act 1974
Part 18 Unregistered land
Page 208 Current as at 30 April 2022
Authorised by the Parliamentary Counsel
evidence under this Act the same may be produced by the
registrar or any officer appointed by the registrar for the
purpose.
(3) In this section—
copy includes photostatic copy and machine copy.
Division 4 Compulsory registration of title
250 Progressive registration of unregistered land
(1) The registrar may from time to time by gazette notice (the
prescribed notice) direct that any unregistered land described,
or that all such land in any area defined, in the notice shall be
subject to this division and that, unless an application to bring
the land under the Real Property Acts is made within the
period of time as is specified in the prescribed notice (the
specified time) by the person entitled to make such
application, such land shall be liable, under the further
provisions of this division, to be brought under the Real
Property Acts and a certificate of title issued for it in the name
of the public trustee free from any estates, encumbrances,
liens or interests whatsoever otherwise than are registrable
under the Real Property Act 1861 (registrable interests) and
which shall have been allowed by the registrar under this
section and which immediately prior to the issue of such
certificate of title were registered in respect of that
unregistered land.
(2) In addition to publication of the prescribed notice as provided
in subsection (1), the registrar shall give to each person
appearing to the registrar (whether by reference to records of
any local government or otherwise) to be the owner of the
land and to each person appearing to have an interest in the
land a copy of such notice together with a written statement
briefly explaining the nature of this division.
(3) The registrar may also cause a copy of the prescribed notice
and a statement briefly explaining the nature of this division
to be advertised in a newspaper published in Brisbane and in
[s 250]
Property Law Act 1974
Part 18 Unregistered land
Current as at 30 April 2022 Page 209
Authorised by the Parliamentary Counsel
addition where in the opinion of the registrar the land is
situated at a distance more than 50km from Brisbane in any
newspaper circulated in the neighbourhood of the land to
which such notice relates.
(4) Within the specified time the person entitled in respect of any
land the subject of a prescribed notice to make application to
bring the land under the provisions of Real Property Acts,
shall make and afterwards with due diligence proceed with an
application to bring the land under those Acts.
(5) Any person claiming to be entitled to any registrable interests
in respect of any land the subject of a prescribed notice may
within the specified time make application to have such
interests noted on any certificate of title which may issue in
respect of such land under this section and on the making of
the application the Real Property Acts shall apply to such
application as if it were an application to bring unregistered
land under those Acts, with any necessary modification to
meet the circumstances of the case.
(5A) If the applicant establishes the claim, the registrar upon
issuing a certificate of title for the land shall note on the
certificate the interest of the applicant under the Real Property
Act 1861, section 33.
(6) In regard to any land the subject of the prescribed notice
which shall not have been brought under the Real Property
Acts upon the expiration of the specified time the following
provisions shall apply—
(a) if no application has been made, or every application
made has been rejected by the master of titles and
refused by the registrar—the land shall vest in the public
trustee;
(b) if an application has been made within the specified
time and is refused by the registrar having been
previously rejected by the master of titles—the land
shall on such refusal become vested in the public
trustee;
(c) if an application has been made but in the opinion of the
registrar the applicant has not proceeded with due
[s 250]
Property Law Act 1974
Part 18 Unregistered land
Page 210 Current as at 30 April 2022
Authorised by the Parliamentary Counsel
diligence—the registrar may give written notice to the
applicant requiring the applicant to take such action in
regard to the application as the registrar may require in a
time to be stated in the notice and if the applicant in the
opinion of the registrar does not afterwards take such
action within such time or such further time as the
registrar may allow, the master of titles shall reject and
the registrar shall refuse such application;
(d) despite the compliance by the applicant with a notice
given under paragraph (c) and until the registrar has
allowed or refused the application—the registrar may
from time to time give further such notices requiring
such further action as the registrar thinks fit.
(7) Where the master of titles has rejected and the registrar has
refused an application, the applicant may, even though the
land has vested in the public trustee, proceed under the Real
Property Act 1861, section 27 and the court may in such case
make such order or orders in respect of the application as shall
seem just and equitable.
(8) Any land shall, upon its vesting in the public trustee under this
section, be deemed to be registered land and the registrar shall
issue a certificate of title in the name of the public trustee
subject to such estates, encumbrances, liens or interests, and
bearing a memorial of any benefit easements appurtenant to
the land, which shall have been then registered in respect of
such land, and which are registrable under the Real Property
Acts.
(9) Nothing in this section affects the operation of the Public
Trustee Act 1978, part 8.
(10) The public trustee shall not, merely because of the vesting in
the public trustee of land under this section, be subject to any
liability in respect of such land.
(11) The public trustee may, if the public trustee sees fit, take such
action to obtain damages or compensation for any taking or
other dealing (whether under any statutory power or
otherwise) with land vested in the public trustee under this
section or any interest in the land as the public trustee might if
[s 251]
Property Law Act 1974
Part 18 Unregistered land
Current as at 30 April 2022 Page 211
Authorised by the Parliamentary Counsel
the land were otherwise vested in the public trustee as a
trustee.
(12) Any money received by the public trustee because of action
taken by the public trustee under subsection (11) shall be dealt
with as if they were received by the public trustee under the
Public Trustee Act 1978, part 8, division 2.
251 Claims by persons claiming to be entitled to land or
registrable interests
(1) In respect of any land which has become vested in the public
trustee under section 250, a person claiming that but for
section 250 the person would have been entitled after
application to the registrar to have such land brought under the
Real Property Acts and to have a certificate of title issued in
respect of the land may make application to the registrar in the
same manner in so far as is applicable to the circumstances of
the case for the issue of a new certificate of title in respect of
such land in such form and to such person as but for
section 250 the person would have been entitled to have
issued and on the making of the application the Real Property
Acts shall apply to such application, as if it were an
application to bring unregistered land under those Acts, with
any necessary modification to meet the circumstances of the
case.
(2) If upon such application the master of titles would have been
satisfied as to the claim of the applicant and the registrar
would have brought such land under the Real Property Acts if
such land was unregistered land which had not become vested
in the public trustee, the registrar shall issue a new certificate
of title to the land in the same manner as provided by the Real
Property Acts in that case and shall cancel the certificate of
title issued to the public trustee under section 250.
(2A) However, before the issue of any new certificate of title under
this section the applicant shall pay to the land registry such
sum as the registrar shall determine as representing the costs
reasonably attributable to such land incurred by the registrar
[s 252]
Property Law Act 1974
Part 18 Unregistered land
Page 212 Current as at 30 April 2022
Authorised by the Parliamentary Counsel
in obtaining any plan of survey for the purposes of
section 250.
(3) Despite the proviso to the Real Property Act 1861, section 16,
any person who claims to be entitled to an estate or interest in
fee simple in any land which has vested in the public trustee
under section 250 and who would have been a person entitled
to make application to have the person’s estate or interest in
the land brought under the Real Property Acts except for the
proviso, may make an application to the registrar to have that
estate or interest divested from the public trustee and vested in
the person and the application shall be dealt with in the same
manner as an application under subsection (1).
(4) In respect of any land which has become vested in the public
trustee under section 250, a person claiming that the person
would have been entitled to make application within the
specific time under section 250(5) to have any registrable
interests in respect of the land noted may make application to
the registrar in the same manner in so far as is applicable to
the circumstances of the case to have such interests noted on
the certificate of title for the land and on the making of the
application the provisions of the Real Property Acts shall
apply to such application, as if it were an application to bring
unregistered land under those Acts, with any necessary
modification to meet the circumstances of the case.
(5) If an applicant shall establish a claim under subsection (4), the
registrar shall note the interest of the applicant on the
certificate of title for the land in the same manner as is
provided in the Real Property Act 1861, section 33.
252 Vesting of land in Crown
(1) Despite any Act or rule of law to the contrary, if, within 12
years from the date when any land became vested in the
public trustee under section 250, no person establishes title to
such land or to any registrable interests in the land it shall vest
absolutely in the Crown.
(2) Any person who would have been entitled to make an
application to the registrar of titles under section 251 in
[s 252]
Property Law Act 1974
Part 18 Unregistered land
Current as at 30 April 2022 Page 213
Authorised by the Parliamentary Counsel
respect of such land may within a further period of 5 years
after such vesting in the Crown apply to the court for an order
that the registrar take such action as the registrar might have
on an application under section 251.
(3) On any such application the court may with the consent of the
Crown grant such application if it considers it just and
equitable to do so and on such terms and conditions if any as it
thinks reasonable and any order made by the court under this
section shall so far as necessary have the effect of a grant of
that land to the person in whose favour the order is made.
(4) If the Crown shall not consent to such application the court, if
it thinks it just and equitable to do so, may order the payment
out of the assurance fund constituted under the Real Property
Act 1861, sections 42 and 43 to the applicant or any other
person of such sum or sums of money as it thinks reasonable
not exceeding in all the value of the land or of the interest of
the applicant at the date of the vesting in the Crown.
Note—
Now see the Land Title Act 1994, section 207.
(5) In exercising its jurisdiction under subsections (3) and (4), the
court shall have regard to all the circumstances including
whether there is reasonable excuse for any delay and for
failure of the applicant or any other person to proceed under
sections 250 and 251.
(6) Whether or not any application has been made to the court
under this section the Governor in Council may by order in
council waive the right of the Crown in regard to the land or
any part of the land on such terms (if any) whether for the
payment of money or otherwise as to the Governor in Council
seems reasonable in favour of any person having in the
opinion of the Governor in Council a just claim in regard to
the land or such part of the land and on the making of the
order in council such land or such part shall vest in such
person and on such trusts (if any) as may be specified in the
order in council and a waiver under this subsection shall have
the effect of a grant of such land or such part to that person in
favour of whom the waiver is made.
[s 253]
Property Law Act 1974
Part 18 Unregistered land
Page 214 Current as at 30 April 2022
Authorised by the Parliamentary Counsel
(7) Even though any land has vested in the public trustee under
this division, and whether or not it has vested subsequently in
the Crown absolutely, any person claiming because of the
operation of this division to have been deprived without
default on the person’s part of some right or interest in respect
to such land may make application to the court for payment of
compensation in relation to such deprivation and the court
may order the payment out of the assurance fund to the
applicant or any other person of such sum or sums of money
by way of compensation as to the court seems reasonable.
253 Powers and duties of the registrar
For the purposes of carrying into effect this division, the
registrar—
(a) in the case of any application to bring land under the
Real Property Acts whether under section 250 or
otherwise, or in the case of any application for the issue
of a certificate of title under section 251—may, if the
registrar thinks fit, and with the approval of the master
of titles by direction under his or her hand dispense with
advertisement of the application or with any other step
which is or may be required under the Real Property
Acts for the purpose or in the course of making or
dealing with an application to bring land under those
provisions, and afterwards the application shall not be
invalidated because of the failure to take any such step
but shall proceed without such step having been taken;
and
(b) may cause any necessary survey to be made and a plan
of survey to be prepared of any unregistered land which
it is proposed to describe in a notice under
section 250(1); and
(c) shall have such further powers and duties as may be
prescribed.
[s 254]
Property Law Act 1974
Part 18 Unregistered land
Current as at 30 April 2022 Page 215
Authorised by the Parliamentary Counsel
254 Investigator of old system titles
(1) In order to enable the registrar to perform the registrar’s duties
under this division and otherwise to ensure that the provisions
of this division are carried into effect, there shall be an
investigator of old system titles.
(2) The power to make regulations under section 350 includes
power to make such regulations for the following purposes—
(a) regulating the appointment of the investigator of old
system titles and such number of assistants as may be
necessary;
(b) regulating the duties of such investigator;
(c) prescribing all matters and things required or necessary
for the purposes of carrying out or giving effect to this
division.
254A Continuation of division after commencement of Land
Title Act 1994
(1) In this section—
repealed Acts means the Real Property Act 1861 and the Real
Property Act 1877.
(2) This division continues to operate after the commencement of
the Land Title Act 1994 with all changes necessary to take
account of enactment of that Act and any changes prescribed
by regulation.
(3) The repealed Acts continue to apply to the extent necessary
for the continued operation of this division but subject to any
changes prescribed by regulation.
[s 255]
Property Law Act 1974
Part 19 Property (de facto relationships)
Page 216 Current as at 30 April 2022
Authorised by the Parliamentary Counsel
Part 19 Property (de facto
relationships)
Division 1 Preliminary
255 Main purposes of pt 19
This part has the following main purposes—
(a) to facilitate the resolution of financial matters at the end
of a de facto relationship;
(b) to recognise de facto partners should be allowed to plan
their financial future, and resolve financial matters at the
end of their relationship, by a cohabitation or separation
agreement;
(c) to facilitate a just and equitable property distribution at
the end of a de facto relationship in relation to the de
facto partners and, in particular cases, any child of the
de facto partners;
(d) to provide for declaratory relief to help persons ascertain
their existing interests in property of de facto partners;
(e) to provide for injunctive relief to help persons protect
their existing and adjusted interests in property of de
facto partners;
(f) to provide for declaratory relief about the existence or
non-existence of a de facto relationship and to avoid the
duplication of proceedings if the existence or
non-existence of a de facto relationship is relevant in 2
or more proceedings;
(g) to facilitate the resolution of matters concerning a de
facto relationship by the Supreme Court, the District
Court or a Magistrates Court.
[s 255A]
Property Law Act 1974
Part 19 Property (de facto relationships)
Current as at 30 April 2022 Page 217
Authorised by the Parliamentary Counsel
255A Relationship of this part with the Family Law Act in
relation to particular financial matters
(1) The State, by the Commonwealth Powers (De Facto
Relationships) Act 2003, referred the following matters (to the
extent that they are not otherwise included in the legislative
powers of the Parliament of the Commonwealth) to the
Parliament of the Commonwealth—
(a) financial matters relating to de facto partners arising out
of the breakdown (other than by reason of death) of de
facto relationships between persons of different sexes;
(b) financial matters relating to de facto partners arising out
of the breakdown (other than by reason of death) of de
facto relationships between persons of the same sex.
(2) Consequently, this part does not apply in relation to financial
matters relating to de facto partners arising out of the
breakdown of their de facto relationship if the Commonwealth
Act applies in relation to the matters.
Note—
In most cases de facto partners seeking resolution of financial matters
arising out of the breakdown of their relationship should now proceed
under the Commonwealth Act.
(3) However, this part continues to apply in relation to financial
matters relating to de facto partners if the Commonwealth Act
does not apply.
Examples—
1 The Commonwealth Act, section 90SK provides that particular
requirements must be satisfied before a court may make a
declaration under section 90SL of that Act. If, in the particular
circumstances of a case, those requirements are not satisfied, this
part may apply.
2 This part applies to de facto relationships that break down after 21
December 1999 and before the commencement of the Family Law
Amendment (De Facto Financial Matters and Other Measures) Act
2008 (Cwlth) (the Commonwealth amending Act) on 1 March
2009. However, section 86A of the Commonwealth amending Act
provides that de facto partners whose relationship broke down
before the commencement of that amending Act may choose to
agree to the application of particular provisions of the
[s 256]
Property Law Act 1974
Part 19 Property (de facto relationships)
Page 218 Current as at 30 April 2022
Authorised by the Parliamentary Counsel
Commonwealth Act to the de facto relationship in particular
circumstances.
256 How main purposes are to be achieved
The way in which these purposes are to be achieved
includes—
(a) providing in division 3 for the resolution of financial
matters by de facto partners; and
(b) providing in division 4 for the resolution of financial
matters by courts; and
(c) providing in division 5 for declaratory relief about the
existence or non-existence of de facto relationships; and
(d) providing in division 6 for the jurisdiction and powers of
the Supreme Court, the District Court and Magistrates
Courts to deal with matters under this part.
257 Application of pt 19
(1) This part applies to all de facto relationships other than
relationships that ended before the commencement of this
section.
(2) It does not matter whether a de facto relationship started
before or after the commencement of this section.
(3) Despite subsection (1), this part does not apply in relation to a
de facto relationship to the extent the Commonwealth Act
applies in relation to the relationship.
(4) Also if, in relation to a de facto relationship—
(a) a de facto partner in the relationship makes an
application about a matter to a court having jurisdiction
under this part (the State proceeding); and
(b) the other de facto partner in the relationship makes an
application about the same matter or a related matter to
a court having jurisdiction under the Commonwealth
Act (the Commonwealth proceeding); and
[s 258]
Property Law Act 1974
Part 19 Property (de facto relationships)
Current as at 30 April 2022 Page 219
Authorised by the Parliamentary Counsel
(c) neither of the applications has been finally dealt with;
the court mentioned in paragraph (a) must stay the State
proceeding until the Commonwealth proceeding is finally
dealt with.
258 Other rights not affected
(1) Nothing in this part affects a right of a de facto partner to
apply for a remedy or relief under another law.
(2) In this section—
law includes a law of the Commonwealth or a State.
Division 2 Interpretation
Subdivision 1 General
259 Definitions for pt 19
In this part—
account of a de facto proceeding has the meaning given by
section 268.
child of de facto partners means—
(a) a biological child of the de facto partners; or
(b) a child of the female de facto partner whose male de
facto partner is presumed or proved to be the father of
the child under an Act of the Commonwealth or a State;
or
(c) a child adopted by the de facto partners; or
(d) a child who, at a time during the de facto relationship, is
or was—
(i) treated by either de facto partner as a child of the
relationship; and
[s 259]
Property Law Act 1974
Part 19 Property (de facto relationships)
Page 220 Current as at 30 April 2022
Authorised by the Parliamentary Counsel
(ii) ordinarily a member of the de facto partners’
household.
cohabitation agreement has the meaning given by
section 264.
Commonwealth Act means the Family Law Act 1975 (Cwlth).
court means a court having jurisdiction under this part.
Note—
See section 329.
court document of a proceeding means—
(a) a pleading in the proceeding; or
(b) a transcript of evidence in the proceeding; or
(c) another document used in relation to the proceeding.
de facto partner has the meaning given by section 260.
de facto relationship has the meaning given by section 261.
financial matters has the meaning given by section 262.
financial resources has the meaning given by section 263.
monetary limit—
(a) for the District Court—has the meaning given by the
District Court of Queensland Act 1967, section 68; and
(b) for a Magistrates Court—means the prescribed limit
under the Magistrates Courts Act 1921.
property adjustment order means an order under section 286.
publish has the meaning given by section 267.
recognised agreement has the meaning given by section 266.
separation agreement has the meaning given by section 265.
[s 260]
Property Law Act 1974
Part 19 Property (de facto relationships)
Current as at 30 April 2022 Page 221
Authorised by the Parliamentary Counsel
Subdivision 2 De facto partner and relationship
concepts
260 Extended meaning of de facto partner for pt 19
(1) A reference to a de facto partner is a reference to either 1 of 2
persons who—
(a) are, under the Acts Interpretation Act 1954,
section 32DA (section 32DA), de facto partners of each
other; or
(b) have been, or would have been had section 32DA been
in force, de facto partners of each other, but who are no
longer living together as a couple on a genuine domestic
basis within the meaning of section 32DA.
(2) Subsection (1)(b) applies despite the Acts Interpretation Act
1954, section 32DA(6).
261 Meaning of de facto relationship
A de facto relationship is the relationship between de facto
partners.
Subdivision 3 Financial matters and financial
resources concepts
262 Meaning of financial matters
De facto partners’ financial matters are matters about the
property or financial resources of either or both of them.
263 Meaning of financial resources
A person’s financial resources include the following—
(a) a prospective claim or entitlement under a scheme, fund
or arrangement under which superannuation,
[s 264]
Property Law Act 1974
Part 19 Property (de facto relationships)
Page 222 Current as at 30 April 2022
Authorised by the Parliamentary Counsel
resignation, termination, retirement or similar benefits
are provided to, or in relation to, the person;
(b) property that, under a discretionary trust, may become
vested in, or applied to the benefit of, the person;
(c) property the disposition of which is wholly or partly
under the control of the person and that may be used or
applied by or on behalf of the person for the person’s
benefit;
(d) any other valuable benefit of the person.
Subdivision 4 Cohabitation, separation and
recognised agreement concepts
264 Meaning of cohabitation agreement
(1) A cohabitation agreement is an agreement—
(a) made by de facto partners—
(i) in contemplation of starting their de facto
relationship; or
(ii) during their de facto relationship; and
(b) dealing with all or some of the de facto partners’
financial matters.
(2) A cohabitation agreement includes a cohabitation agreement
varying a cohabitation agreement.
(3) It does not matter whether—
(a) a cohabitation agreement is made before or after the
commencement of this section; or
(b) there are other parties to a cohabitation agreement; or
(c) a cohabitation agreement deals with other matters.
265 Meaning of separation agreement
(1) A separation agreement is an agreement—
[s 266]
Property Law Act 1974
Part 19 Property (de facto relationships)
Current as at 30 April 2022 Page 223
Authorised by the Parliamentary Counsel
(a) made by de facto partners—
(i) in contemplation of ending their de facto
relationship; or
(ii) after their de facto relationship has ended; and
(b) dealing with all or some of the de facto partners’
financial matters.
(2) A separation agreement includes a separation agreement
varying a cohabitation agreement or separation agreement.
(3) It does not matter whether—
(a) a separation agreement is made before or after the
commencement of this section; or
(b) there are other parties to a separation agreement; or
(c) a separation agreement deals with other matters.
266 Meaning of recognised agreement
(1) A recognised agreement of de facto partners is a cohabitation
or separation agreement of the de facto partners that—
(a) is a written agreement; and
(b) is signed by the de facto partners and witnessed by a
justice of the peace (qualified) or solicitor; and
(c) contains a statement of all significant property, financial
resources and liabilities of each de facto partner when
the de facto partner signs the agreement.
(2) Whether all significant property, financial resources and
liabilities of a de facto partner are stated depends on whether
the value of a property, financial resource or liability of the de
facto partner that is not stated is significant given the total
value of the de facto partner’s stated property, financial
resources and liabilities.
[s 267]
Property Law Act 1974
Part 19 Property (de facto relationships)
Page 224 Current as at 30 April 2022
Authorised by the Parliamentary Counsel
Subdivision 5 Publication and account of a de
facto proceeding concepts
267 Meaning of publish
(1) A person publishes something if the person publishes the
thing or causes the thing to be published to the public or a
section of the public, including, for example—
(a) in a newspaper, periodical or circular; or
(b) through radio or television; or
(c) by another form of communication, including, for
example, telephone, fax or computer.
(2) In subsection (1)—
section of the public includes an individual.
268 Meaning of account of a de facto proceeding
An account of a de facto proceeding is an account of all or
part of a proceeding under this part.
Division 3 Resolution of financial matters by
de facto partners
Subdivision 1 Purpose of division and use of
agreements
269 Purpose of div 3
(1) The purpose of this division is to allow de facto partners to
plan their financial future and resolve financial matters at the
end of their relationship.
(2) This purpose is achieved by permitting de facto partners to
make cohabitation and separation agreements that, in
[s 270]
Property Law Act 1974
Part 19 Property (de facto relationships)
Current as at 30 April 2022 Page 225
Authorised by the Parliamentary Counsel
particular circumstances, exclusively regulate the resolution
of financial matters at the end of their relationship.
270 Cohabitation and separation agreements are valid
De facto partners may make cohabitation and separation
agreements.
271 Court’s jurisdiction may not be excluded
A provision in an agreement purporting to exclude the
jurisdiction of a court in relation to a cohabitation or
separation agreement is invalid, but its invalidity does not
affect the validity of the rest of the agreement.
272 Law of contract applies
A cohabitation or separation agreement is subject to, and
enforceable according to, the law of contract except as
otherwise provided by this part.
Example—
The effect of mistake, fraud, duress, undue influence or
unconscionability in relation to a cohabitation or separation agreement
is decided by the law of contract.
273 Effect of de facto partner’s death
If a de facto partner dies before the provisions of a
cohabitation agreement or separation agreement have been
carried out, the provisions may be enforced on behalf of or
against the estate of the deceased de facto partner unless the
agreement expressly provides otherwise.
[s 274]
Property Law Act 1974
Part 19 Property (de facto relationships)
Page 226 Current as at 30 April 2022
Authorised by the Parliamentary Counsel
Subdivision 2 Relationship between recognised
agreements and proceedings
274 No property adjustment order inconsistent with
recognised agreement
(1) If a court is satisfied there is a recognised agreement, the court
must not make a property adjustment order inconsistent with
the agreement’s provisions on financial matters.
(2) Subsection (1) is subject to sections 275 and 276.
275 Court to ignore revoked provision
For section 274, a court must ignore a provision on a financial
matter if the de facto partners have, in writing or by their
conduct, revoked the provision or consented to its revocation.
276 Court may vary recognised agreement if serious injustice
or impracticable
(1) On an application for a property adjustment order, the court
may vary all or any of the provisions of the agreement if the
court is satisfied—
(a) enforcement of the agreement would result in serious
injustice for a party to the agreement or a child of either
of the de facto partners; or
(b) because of circumstances arising since the agreement
was made, it is impracticable for the agreement or part
of the agreement to be carried out.
(2) It does not matter whether the agreement purports to prevent a
variation of all or any of the agreement’s provisions.
(3) If the court varies a provision of the agreement, section 274
applies to the agreement as varied.
(4) This section does not affect any other right a person may have
to have the agreement varied under another law.
(5) In this section—
[s 277]
Property Law Act 1974
Part 19 Property (de facto relationships)
Current as at 30 April 2022 Page 227
Authorised by the Parliamentary Counsel
law includes a law of the Commonwealth or a State.
vary includes set aside.
Subdivision 3 Relationship between agreements
other than recognised agreements
and proceedings
277 Other cohabitation or separation agreements may be
considered
(1) This section applies if, on an application for a property
adjustment order, a court is—
(a) satisfied there is a cohabitation or separation agreement
of the de facto partners; and
(b) not satisfied the agreement is a recognised agreement.
(2) The court may make any order it could have made if there
were no cohabitation or separation agreement.
(3) However, in making its order, the court may consider the
agreement’s provisions on financial matters, in addition to the
matters the court is required to consider under division 4,
subdivision 2.
278 Court to ignore revoked provision
For section 277, a court must ignore a provision on a financial
matter if the de facto partners have, in writing or by their
conduct, revoked the provision or consented to its revocation.
[s 279]
Property Law Act 1974
Part 19 Property (de facto relationships)
Page 228 Current as at 30 April 2022
Authorised by the Parliamentary Counsel
Division 4 Resolution of financial matters by
court
Subdivision 1 Declaration of property interests
279 Purpose of sdiv 1
(1) The purpose of this subdivision is to help persons ascertain
their existing rights in property of de facto partners.
(2) This purpose is achieved by allowing a court to declare the
title or rights of parties to a proceeding in property of de facto
partners.
280 Court may declare property interests
(1) In a proceeding between de facto partners about existing title
or rights in property, a court may declare any title or rights a
de facto partner or another party to the proceeding has in the
property.
(2) It does not matter whether or not the de facto relationship has
ended.
281 Court may give effect to declaration
A court may make orders to give effect to a declaration under
this subdivision.
[s 282]
Property Law Act 1974
Part 19 Property (de facto relationships)
Current as at 30 April 2022 Page 229
Authorised by the Parliamentary Counsel
Subdivision 2 Adjustment of property interests
Subsubdivision 1 General
282 Purpose of sdiv 2
(1) The purpose of this subdivision is to ensure a just and
equitable property distribution at the end of a de facto
relationship.
(2) This purpose is achieved by—
(a) providing de facto partners who satisfy the requirements
mentioned in subsubdivision 2 with particular property
rights; and
(b) allowing applications to a court for an adjustment of
interests in property.
283 De facto partner may apply
After a de facto relationship has ended, a de facto partner may
apply to a court for an order adjusting interests in the property
of either or both of the de facto partners.
284 De facto partners or child may benefit from adjustment
The application may be for the benefit of either or both of the
de facto partners or a child of the de facto partners.
285 Not affected by other rights
(1) An application may be made under this subdivision whether
or not an application for another remedy or relief has been
made, or may be made, under this part or another law.
(2) In this section—
law includes a law of the Commonwealth, other than the
Commonwealth Act, or a State.
[s 286]
Property Law Act 1974
Part 19 Property (de facto relationships)
Page 230 Current as at 30 April 2022
Authorised by the Parliamentary Counsel
286 Court may make property adjustment order
(1) A court may make any order it considers just and equitable
about the property of either or both of the de facto partners
adjusting the interests of the de facto partners or a child of the
de facto partners in the property.
(2) In deciding what is just and equitable, a court must consider
the matters mentioned in subsubdivision 3.
(3) It does not matter whether the court has declared the title or
rights in the property.
(4) In this section—
adjust, for interests of persons in property, includes give an
interest in the property to a person who had no previous
interest in the property.
Subsubdivision 2 Requirements for property
adjustment proceedings
287 Type of de facto relationship
A court may make a property adjustment order only if it is
satisfied—
(a) the de facto partners have lived together in a de facto
relationship for at least 2 years; or
(b) there is a child of the de facto partners who is under 18
years; or
(c) the de facto partner who applied for the order has made
substantial contributions of the kind mentioned in
section 291 or 292 and failure to make the order would
result in serious injustice to the de facto partner.
288 Time limit for making application
(1) A court may make a property adjustment order only if—
[s 289]
Property Law Act 1974
Part 19 Property (de facto relationships)
Current as at 30 April 2022 Page 231
Authorised by the Parliamentary Counsel
(a) the application was made within 2 years after the day on
which the de facto relationship ended; or
(b) the court has given the applicant leave to apply.
(2) The court may give leave only if it is satisfied hardship would
result to the applicant or a child of the de facto partners if
leave were not given.
289 Disclosure of financial circumstances
(1) A party to a proceeding for a property adjustment order must
disclose the party’s financial circumstances in the way
prescribed by the rules, or a practice direction, of the relevant
court.
(2) A court may make a property adjustment order in favour of a
party only if the party has complied with subsection (1).
(3) Nothing in this section affects a court’s power to make an
interim order.
290 Disclosure of child support and relevant orders
(1) A party to a proceeding for a property adjustment order who is
aware of either of the following must inform the court about
the support or order—
(a) any child support under the Child Support (Assessment)
Act 1989 (Cwlth) provided, or to be provided, by a de
facto partner for a child of the de facto partners;
(b) any order affecting a de facto partner or a child of the de
facto partners made under a law of the Commonwealth
or a State concerning de facto relationships.
(2) However, an order made in the proceeding for a property
adjustment order is not invalid only because the party does not
inform the court about the support or order.
[s 291]
Property Law Act 1974
Part 19 Property (de facto relationships)
Page 232 Current as at 30 April 2022
Authorised by the Parliamentary Counsel
Subsubdivision 3 Matters for consideration in
deciding what is just and equitable
291 Contributions to property or financial resources
(1) The court must consider the financial and non-financial
contributions made directly or indirectly by or for the de facto
partners or a child of the de facto partners to—
(a) the acquisition, conservation or improvement of any of
the property of either or both of the de facto partners;
and
(b) the financial resources of either or both of the de facto
partners.
(2) However, the non-financial contributions of a child of the de
facto partners must be considered only if the child’s
contributions are substantial.
(3) It does not matter whether the property or financial resources
mentioned in subsection (1) still belong to either or both of
the de facto partners when the court is considering the
contributions made.
292 Contributions to family welfare
(1) The court must consider the contributions, including any
homemaking or parenting contributions, made by either of the
de facto partners or a child of the de facto partners to the
welfare of—
(a) the de facto partners; or
(b) the family constituted by the de facto partners and 1 or
more of the following—
(i) a child of the de facto partners;
(ii) a person who is—
(A) accepted by either of the de facto partners
into the household of the de facto partners;
and
[s 293]
Property Law Act 1974
Part 19 Property (de facto relationships)
Current as at 30 April 2022 Page 233
Authorised by the Parliamentary Counsel
(B) dependent on either of the de facto partners.
(2) However, the contributions of a child of the de facto partners
must be considered only if the child’s contributions are
substantial.
Example—
A de facto couple own and live on a farm. They have twins, a boy and a
girl. The twins always lived on the farm. After the twins left school, the
parents bought 2 additional farms. The son then worked on the farms
for no wages assuming, in time, 1 of the farms would be his. The
daughter looked after the family’s home for no wages assuming, in
time, 1 of the farms would be hers. In both cases, the children did much
more than the household chores (such as mowing the lawn and doing
the dishes) that a family might normally expect of family members.
When the children were 31 years, the parents separated.
The son’s contributions are substantial and would be considered under
section 291. The daughter’s contributions are also substantial and
would be considered under this section.
293 Effect on future earning capacity
The court must consider the effect of any proposed order on
the earning capacity of the de facto partners.
294 Child support
The court must consider any child support under the Child
Support (Assessment) Act 1989 (Cwlth) provided, or to be
provided, by a de facto partner for a child of the de facto
partners.
295 Other orders
The court must consider any other order affecting a de facto
partner or a child of the de facto partners made under a law of
the Commonwealth or a State concerning de facto
relationships the court considers should be taken into account.
[s 296]
Property Law Act 1974
Part 19 Property (de facto relationships)
Page 234 Current as at 30 April 2022
Authorised by the Parliamentary Counsel
296 Other matters
The court must consider the matters mentioned in
subsubdivision 4 to the extent they are relevant in deciding
what order adjusting interests in property is just and equitable.
Subsubdivision 4 Additional matters for consideration
to the relevant extent in deciding
what is just and equitable
297 Age and health
The court must consider the age and state of health of each of
the de facto partners.
298 Resources and employment capacity
The court must consider—
(a) the income, property and financial resources of each of
the de facto partners; and
(b) the physical and mental capacity of each of them for
appropriate gainful employment.
299 Caring for children
The court must consider whether either de facto partner has
the care of a child of the de facto partners who is under 18
years.
300 Necessary commitments
The court must consider the commitments of each of the de
facto partners necessary to enable the de facto partner to
support—
(a) himself or herself; and
[s 301]
Property Law Act 1974
Part 19 Property (de facto relationships)
Current as at 30 April 2022 Page 235
Authorised by the Parliamentary Counsel
(b) a child or another person whom the de facto partner has
a duty to maintain.
301 Responsibility to support others
The court must consider the responsibility of either de facto
partner to support another person.
302 Government assistance
(1) The court must consider—
(a) the eligibility of either de facto partner for—
(i) an Australian pension, allowance or benefit that is
not income tested; or
(ii) a foreign pension, allowance or benefit; and
(b) the amount of any pension, allowance or benefit
mentioned in paragraph (a) being paid to either de facto
partner.
(2) The court must disregard—
(a) the eligibility of either de facto partner for an Australian
pension, allowance or benefit that is income tested; and
(b) the amount of any pension, allowance or benefit
mentioned in paragraph (a) being paid to either de facto
partner.
(3) For this section, whether an Australian pension, allowance or
benefit is income tested depends on whether it is an income
tested pension, allowance or benefit within the meaning of the
Family Law Act 1975 (Cwlth).
(4) In this section—
Australian pension, allowance or benefit means a pension,
allowance or benefit under the law of the Commonwealth or a
State.
foreign pension, allowance or benefit means a pension,
allowance or benefit under the law of a foreign country.
[s 303]
Property Law Act 1974
Part 19 Property (de facto relationships)
Page 236 Current as at 30 April 2022
Authorised by the Parliamentary Counsel
303 Appropriate standard of living
If the de facto partners have separated, the court must consider
what standard of living is reasonable for each of the de facto
partners in all the circumstances.
304 Contributions to income and earning capacity
The court must consider the contributions made by either of
the de facto partners to the income and earning capacity of the
other de facto partner.
305 Length of relationship
The court must consider the length of the de facto
relationship.
306 Effect of relationship on earning capacity
The court must consider the extent to which the de facto
relationship has affected the earning capacity of each of the de
facto partners.
307 Financial circumstances of cohabitation
If either de facto partner is cohabiting with another person, the
court must consider the financial circumstances of the
cohabitation.
308 Child maintenance
The court must consider any payments provided for the
maintenance of a child in the care of either de facto partner.
309 Other facts and circumstances
The court must also consider any fact or circumstance the
court considers the justice of the case requires to be taken into
account.
[s 310]
Property Law Act 1974
Part 19 Property (de facto relationships)
Current as at 30 April 2022 Page 237
Authorised by the Parliamentary Counsel
Subsubdivision 5 Adjournment because of likely
change in financial circumstances
310 Likelihood of significant change in financial
circumstances
A court may adjourn an application to adjust interests in the
property of either or both of the de facto partners, if the court
considers—
(a) there is likely to be a significant change in the financial
circumstances of either or both of the de facto partners
and it is reasonable to adjourn the application having
regard to the time when the change is likely to happen;
and
(b) an order the court could make about the property if the
change happens is more likely to do justice between the
parties than an order the court could make immediately.
311 Matters for consideration by court
In considering whether there is likely to be a significant
change in the financial circumstances of either of the de facto
partners, the matters a court may consider include any change
in the financial circumstances of the de facto partner that may
happen because of—
(a) the vesting of a financial resource in the de facto
partner; or
(b) the use or application of a financial resource for the de
facto partner’s benefit.
312 Orders may be made before adjournment
Before a court adjourns an application to adjust interests in
property, it may make any order it considers appropriate about
the property.
[s 313]
Property Law Act 1974
Part 19 Property (de facto relationships)
Page 238 Current as at 30 April 2022
Authorised by the Parliamentary Counsel
313 Adjournments on other grounds not affected
Section 310 does not limit the power of the court to adjourn a
proceeding before it.
Subsubdivision 6 Change in circumstances
314 Delayed operation of order
If the court considers a de facto partner is likely, within a short
time, to become entitled to property that may be applied in
satisfaction of a property adjustment order, the court may
delay the operation of the order until a day, or the happening
of an event, stated in the order.
315 Effect on proceeding of death of party
If a party to a proceeding for a property adjustment order dies
before a final order has been made, a court may make an order
if it considers—
(a) it would have adjusted interests in property if the
deceased party had not died; and
(b) it is still appropriate to adjust the interests despite the
death of the deceased party.
Note—
See also the Succession Act 1981, section 66(1).
[s 316]
Property Law Act 1974
Part 19 Property (de facto relationships)
Current as at 30 April 2022 Page 239
Authorised by the Parliamentary Counsel
Division 5 Existence of a de facto relationship
Subdivision 1 Declaration about existence of
relationship
316 Purpose of div 5
(1) The purpose of this division is to avoid the duplication of
proceedings where the existence or non-existence of a de facto
relationship is relevant in 2 or more proceedings.
(2) This purpose is achieved by allowing applications to a court
for a declaration about the existence or non-existence of a de
facto relationship.
317 Application
A person may apply to the Supreme Court or the District
Court for a declaration that—
(a) there is, or has been, a de facto relationship between the
person and another named person or between 2 named
persons at a particular time or for a particular period; or
(b) there is not, or was not, a de facto relationship between
the person and another named person or between 2
named persons at a particular time or for a particular
period.
318 Court may adjourn hearing if other affected person
(1) This section applies if, on an application under this
subdivision, a court considers—
(a) a person whose interests would be affected by the
making of a declaration—
(i) is not present or represented at the hearing of the
application; or
[s 319]
Property Law Act 1974
Part 19 Property (de facto relationships)
Page 240 Current as at 30 April 2022
Authorised by the Parliamentary Counsel
(ii) has not been given the opportunity to be present or
represented at the hearing of the application; and
(b) the person ought to be present or represented at the
hearing.
(2) The court may adjourn the hearing to enable the person to be
given an opportunity to be present or represented.
319 Court may make declaration about existence of
relationship
If, on an application under this subdivision, the court is
satisfied there is, or was, a de facto relationship between the
named persons at a particular time or for a particular period,
the court may make a declaration to that effect.
320 Court may make declaration about non-existence of
relationship
If, on an application under this subdivision, the court is
satisfied there is not, or was not, a de facto relationship
between the named persons at a particular time or for a
particular period, the court may make a declaration to that
effect.
321 Declaration to include date
A declaration must include either or both of the following—
(a) the date at which there was, or was not, a de facto
relationship;
(b) the dates between which there was, or was not, a de
facto relationship.
322 Death of de facto partners irrelevant
A declaration may be made whether or not the person or either
of the persons named by the applicant as a de facto partner or
de facto partners in the de facto relationship is alive.
[s 323]
Property Law Act 1974
Part 19 Property (de facto relationships)
Current as at 30 April 2022 Page 241
Authorised by the Parliamentary Counsel
323 Effect of declaration
(1) A declaration made by a court has effect as a judgment of the
court.
(2) The persons named in the declaration are taken, as stated in
the declaration, to have had or not to have had a de facto
relationship and to have been or not to have been de facto
partners for this part and the Acts Interpretation Act 1954,
section 32DA (section 32DA), at the date stated in the
declaration, between the dates stated in the declaration or
both.
(3) The declaration—
(a) only has effect for the persons, and for the date or during
the period, stated in it; and
(b) has effect for the purposes of another Act only to
establish whether the persons were, on the stated date or
during the stated period, de facto partners of each other,
as defined in section 32DA.
Subdivision 2 Revocation of declaration
324 Party or affected person may apply
If a declaration has been made under subdivision 1—
(a) a person who applied, or could have applied, for the
declaration; or
(b) a person who is affected by the declaration;
may apply to the court that made the declaration for a
revocation of the declaration.
325 Court may adjourn hearing if other affected person
(1) This section applies if, on an application under this
subdivision, a court considers—
[s 326]
Property Law Act 1974
Part 19 Property (de facto relationships)
Page 242 Current as at 30 April 2022
Authorised by the Parliamentary Counsel
(a) a person whose interests would be affected by the
making of a declaration—
(i) is not present or represented at the hearing of the
application; or
(ii) has not been given the opportunity to be present or
represented at the hearing of the application; and
(b) the person ought to be present or represented at the
hearing.
(2) The court may adjourn the hearing to enable the person to be
given an opportunity to be present or represented.
326 Court may revoke declaration
On an application under this subdivision, the court may make
an order revoking the declaration if satisfied—
(a) a new fact or circumstance has arisen that has not
previously been disclosed to the court; and
(b) if the applicant was a party to the application for the
declaration, the fact or circumstance was not within the
applicant’s knowledge when the declaration was made.
327 Court may make ancillary orders
(1) If a court makes an order revoking a declaration, the court
may, if it considers it would be just and equitable to do so,
make any ancillary order necessary to place a person affected
by the revocation of the declaration in the same position, as
far as practicable, as the person would have been in if the
declaration had not been made.
(2) Without limiting subsection (1), the court may make an order
varying rights in property or the financial resources of de facto
partners or another person.
[s 328]
Property Law Act 1974
Part 19 Property (de facto relationships)
Current as at 30 April 2022 Page 243
Authorised by the Parliamentary Counsel
328 Effect of revocation
(1) If the court makes an order revoking a declaration, the
declaration ceases to have effect.
(2) The revocation of the declaration does not affect anything
done in reliance on the declaration before the order revoking
the declaration was made.
Division 6 Courts
Subdivision 1 Jurisdiction
329 Courts having jurisdiction under pt 19
(1) The Supreme Court and the District Court have jurisdiction
under division 5 to make or revoke a declaration.
(2) The Supreme Court and, subject to subsection (4), the District
Court and the Magistrates Courts each have jurisdiction to
hear and decide all other matters under this part.
(3) The Uniform Civil Procedure Rules 1999, rule 35 does not
apply to a proceeding under this part.
Note—
Uniform Civil Procedure Rules 1999, rule 35 provides that a person
must start a proceeding before a court in 1 of the districts mentioned.
(4) In a proceeding, the District Court or a Magistrates Court may
make an order or declaration concerning an interest in
property if the value of the interest is more than the court’s
monetary limit only if—
(a) for the District Court—a document has been filed under
the District Court of Queensland Act 1967, section 72;
or
(b) for a Magistrates Court—a document has been filed
under the Magistrates Courts Act 1921, section 4A.
[s 330]
Property Law Act 1974
Part 19 Property (de facto relationships)
Page 244 Current as at 30 April 2022
Authorised by the Parliamentary Counsel
330 Stay or dismissal of proceeding in relation to same
person
(1) If there is a proceeding under this part started by or in relation
to the same person pending in more than 1 court, a court in
which a proceeding is pending may—
(a) stay the proceeding pending before it for the time it
considers appropriate; or
(b) dismiss the proceeding.
(2) Before staying or dismissing a proceeding, a court may make
any orders and give any directions it considers appropriate.
331 Transfer of proceeding to more appropriate court
(1) A court may transfer a pending proceeding to another court
having jurisdiction under this part if the first court considers it
is more appropriate for the proceeding to be dealt with in the
other court.
(2) Before transferring a proceeding, a court may make any
orders and give any directions it considers appropriate
pending the disposal of the proceeding by the court to which
the proceeding is transferred.
Subdivision 2 Powers
332 Purpose of sdiv 2
The purpose of this subdivision is to ensure the courts having
jurisdiction under this part have adequate powers to make
appropriate orders.
333 Court’s powers
(1) In exercising its powers under this part, a court may do any 1
or more of the following—
(a) order the transfer of property;
[s 333]
Property Law Act 1974
Part 19 Property (de facto relationships)
Current as at 30 April 2022 Page 245
Authorised by the Parliamentary Counsel
(b) order the sale of property, and the distribution of the
proceeds of sale in any proportions the court considers
appropriate;
(c) order that a document be executed, that a document of
title be produced or that anything else be done to enable
an order to be carried out effectively or to provide
security for the performance of an order;
(d) order payment of a lump sum, whether in a single
amount or by instalments;
(e) order that payment of an amount ordered to be paid be
wholly or partly secured in a way the court directs;
(f) appoint or remove a receiver or trustees;
(g) make an order or grant an injunction—
(i) for the protection of, or otherwise relating to, the
property or financial resources of a party to an
application; or
(ii) to aid enforcement of another order made in
relation to an application;
(h) make an order or grant an injunction about the use or
occupancy of the de facto partners’ home;
(i) if a de facto partner is the lessee of the home in which
the de facto partners have lived and on separation the
other de facto partner wishes to remain in the home, the
court may, with the consent of the lessor, order that the
lease be assigned from the lessee to the other de facto
partner;
(j) order that payments be made direct to a de facto partner,
to a trustee or into court for the benefit of a de facto
partner;
(k) make a final order or grant a final injunction;
(l) make an order or grant an injunction—
(i) pending the disposal of the proceeding; or
(ii) for a fixed term or for life or during joint lives; or
[s 334]
Property Law Act 1974
Part 19 Property (de facto relationships)
Page 246 Current as at 30 April 2022
Authorised by the Parliamentary Counsel
(iii) until the happening of a particular event, including,
for example, a further order;
(m) impose conditions;
(n) make an order by consent;
(o) make any other order or grant any other injunction it
considers necessary to do justice.
(2) This section does not affect any other power of the court under
this part or another law.
(3) This section applies for a Magistrates Court despite the
Magistrates Courts Act 1921, section 7.
(4) In this section—
law includes a law of the Commonwealth or a State.
334 Variation and setting aside of orders
(1) On the application of a person in relation to whom an order
has been made under this part, a court may vary the order if
satisfied—
(a) there has been a miscarriage of justice because of fraud,
duress, suppression of evidence, the giving of false
evidence, failing to disclose matters as required by this
part or another circumstance; or
(b) because of circumstances that have arisen since the
order was made, it is impracticable for the order or part
of the order to be carried out; or
(c) a person has defaulted in carrying out an obligation
imposed on the person by the order and, because of
circumstances that have arisen because of the default, it
is just and equitable to vary the order; or
(d) a child of the de facto partners (or the applicant if the
applicant has the care of a child of the de facto partners)
will suffer hardship if the court does not vary the order
because of circumstances of an exceptional nature
[s 335]
Property Law Act 1974
Part 19 Property (de facto relationships)
Current as at 30 April 2022 Page 247
Authorised by the Parliamentary Counsel
relating to the welfare of the child that have arisen since
the order was made.
Note—
See also the Uniform Civil Procedure Rules 1999, rule 667.
(2) In this section—
vary includes—
(a) set aside; and
(b) set aside and substitute another.
335 Transactions to defeat claims
(1) If a court is satisfied an existing or anticipated order in a
proceeding under this part is likely to be defeated by the
making of a document or disposition by a party to the
proceeding, the court may set aside or restrain the making of
the document or disposition.
(2) If a court is satisfied an order in a proceeding under this part
was defeated by the making of a document or disposition by a
party to the proceeding, the court may order that—
(a) any property dealt with by the document or disposition
be applied towards, or charged with, payment of—
(i) an amount payable under a property adjustment
order; or
(ii) costs; or
(b) the proceeds of a sale of the property be paid into court
to await its order.
(3) A court may order a party, or person acting in collusion with a
party, to pay the costs of—
(a) another party; or
(b) a purchaser in good faith; or
(c) another interested person.
(4) The costs mentioned in subsection (3) are the costs of and
incidental to—
[s 336]
Property Law Act 1974
Part 19 Property (de facto relationships)
Page 248 Current as at 30 April 2022
Authorised by the Parliamentary Counsel
(a) the document or disposition; or
(b) the setting aside or restraining of the document or
disposition.
(5) For this section, something is made by a person if the thing is
made by or on behalf of, or by direction or in the interests of,
the person.
(6) For this section, it does not matter whether the document or
disposition is or was intended to defeat the order it is likely to
defeat or has defeated.
336 Interests of other parties
(1) In the exercise of its powers under this part, a court must have
regard to the interest in the property of, and must make any
order proper for the protection of, a purchaser in good faith
and other interested persons.
(2) A court may order that a person be given notice of a
proceeding or be made a party to the proceeding on the
application of the person or if it appears to the court the
person may be affected by an order under this part.
337 Duty of court to end financial relationship
In a proceeding under division 4, subdivision 2, a court must
make orders that, as far as practicable, will end the financial
relationship between the de facto partners.
[s 338]
Property Law Act 1974
Part 19 Property (de facto relationships)
Current as at 30 April 2022 Page 249
Authorised by the Parliamentary Counsel
Subdivision 3 Miscellaneous matters concerning
proceedings
Subsubdivision 1 Intervention
338 Application for leave
A person may apply for leave to intervene in a proceeding
under this part.
339 Leave to intervene
(1) A court may give a person leave to intervene in a proceeding
before the court.
(2) The court may give leave subject to any conditions it
considers appropriate.
340 Intervener’s rights
A person who intervenes in a proceeding by leave of the court
is a party to the proceeding with all the rights, duties and
liabilities of a party unless the court orders otherwise.
Subsubdivision 2 Costs
341 Party bears own costs
(1) A party to a proceeding under this part bears the party’s own
costs.
(2) However, if the court is satisfied there are circumstances
justifying it making an order, it may make any order for costs
or security for costs it considers appropriate.
(3) The court may make an order at any stage of the proceeding or
after the proceeding ends.
[s 342]
Property Law Act 1974
Part 19 Property (de facto relationships)
Page 250 Current as at 30 April 2022
Authorised by the Parliamentary Counsel
(4) In considering whether there are circumstances justifying it
making an order, the court must consider the following
matters—
(a) the income, property and financial resources of each of
the parties;
(b) whether any party has legal aid and the terms of the
legal aid;
(c) the conduct of each of the parties in relation to the
proceeding, including, for example, conduct about
pleadings, particulars, disclosure, inspection,
interrogatories, admissions of facts and production of
documents;
(d) whether the proceeding results from a party’s failure to
comply with a previous order made under this part;
(e) whether any party has been wholly unsuccessful in the
proceeding;
(f) whether any party made an offer to settle under the
Uniform Civil Procedure Rules 1999 and the terms of
the offer;
Note—
See the Uniform Civil Procedure Rules 1999, chapter 9, part 5.
(g) any fact or circumstance the court considers the justice
of the case requires to be taken into account.
Subsubdivision 3 Publication of proceedings
342 Specifically authorised publication
(1) A person may publish an account of a de facto proceeding in
the following ways—
(a) by communicating, to a person involved in another
proceeding in any court, a court document from the de
facto proceeding for use in the other proceeding;
[s 343]
Property Law Act 1974
Part 19 Property (de facto relationships)
Current as at 30 April 2022 Page 251
Authorised by the Parliamentary Counsel
(b) by communicating a court document from the de facto
proceeding to—
(i) a body responsible for disciplining members of the
legal profession; or
(ii) a person involved in a disciplinary proceeding
against a member of the legal profession;
(c) by communicating, to a body that grants legal aid, a
court document from the de facto proceeding for use in
deciding whether legal aid should be provided or
continued in a particular case;
(d) by publishing a notice or report about the de facto
proceeding by direction of a court;
(e) by publishing an account of the de facto proceeding in a
publication that is—
(i) genuinely intended primarily for use by the
members of a profession; and
(ii) a separate volume or part of a series of law reports
or another publication of a technical character;
(f) by publishing an account of the de facto proceeding to—
(i) a member of a profession in relation to the
member’s practice of the profession; or
(ii) a student in relation to the student’s studies.
(2) In this section—
court means a court or tribunal established under a law of the
Commonwealth or a State.
343 No identification in general publication
(1) A person may publish an account of a de facto proceeding
only if the publication does not identify—
(a) a party to the proceeding; or
(b) a witness in the proceeding; or
[s 344]
Property Law Act 1974
Part 20 Miscellaneous
Page 252 Current as at 30 April 2022
Authorised by the Parliamentary Counsel
(c) another person who is, or is alleged to be, involved in a
matter relevant to the proceeding; or
(d) a person related to, or associated with, a person
mentioned in paragraph (a), (b) or (c).
(2) A publication identifies a person if it is sufficient to identify
the person to—
(a) a member of the public; or
(b) a member of the section of the public to whom the
publication was made.
(3) Subsection (1) does not apply to a publication under
section 342.
344 Offence
(1) A person must not publish an account of a de facto proceeding
other than under section 342 or 343.
Maximum penalty—40 penalty units.
(2) A proceeding for an offence against this section may be
started only with the written consent of the director of public
prosecutions.
(3) A document purporting to be a consent mentioned in
subsection (2) is taken to be the consent, and to have been
properly given, unless the contrary is established.
Part 20 Miscellaneous
345 Protection of solicitors and others adopting this Act
(1) The powers given by this Act to any person, and the
covenants, provisions, stipulations, and words which under
this Act are to be deemed to be included or implied in any
instrument, or are by this Act made applicable to any contract
for sale or other transaction, are and shall be deemed in law
proper powers, covenants, provisions, stipulations, and words,
[s 346]
Property Law Act 1974
Part 20 Miscellaneous
Current as at 30 April 2022 Page 253
Authorised by the Parliamentary Counsel
to be given by or to be contained in any such instrument, or to
be adopted in connection with, or applied to, any such
contract or transaction, and a solicitor, counsel or conveyancer
shall not be deemed guilty of neglect or breach of duty, or
become in any way liable, because of the person omitting, in
good faith, in any such instrument, or in connection with any
such contract or transaction, to negative the giving, inclusion,
implication, or application of any of those powers, covenants,
provisions, stipulations, or words, or to insert or apply any
others in place of them, in any case where this Act would
allow of the person doing so.
(2) Nothing in this Act shall be taken to imply that the insertion in
any such instrument, or the adoption in connection with, or
the application to, any contract or transaction, of any further
or other powers, covenants, provisions, stipulations, or words
is improper.
(3) Where the solicitor, counsel or conveyancer is acting for
trustees, executors, or other persons in a fiduciary position,
those persons shall also be protected in like manner.
(4) Where such persons are acting without a solicitor, counsel or
conveyancer, they shall also be protected in like manner.
346 Restriction on constructive notice
(1) A purchaser shall not be prejudicially affected by notice of
any instrument, fact, or thing, unless—
(a) it is within the purchaser’s own knowledge, or would
have come to the purchaser’s knowledge, if such
searches as to instruments registered or deposited under
any Act, 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 of the
purchaser’s solicitor or other agent as such, or would
have come to the knowledge of the purchaser’s solicitor
[s 347]
Property Law Act 1974
Part 20 Miscellaneous
Page 254 Current as at 30 April 2022
Authorised by the Parliamentary Counsel
or other agent as such, if such searches, inquiries, and
inspections had been made as ought reasonably to have
been made by the solicitor or other agent.
(2) This section shall not exempt a purchaser from any liability
under or any obligation to perform or observe any covenant,
condition, provision, or restriction contained in any
instrument under which the purchaser’s title is derived,
mediately or immediately, 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 shall not because of anything in this section be
affected by notice in any case where the purchaser would not
have been so affected if this section had not been enacted.
(4) This section applies to purchases made either before or after
the commencement of this Act, save that where an action is
pending at the commencement of this Act the rights of the
parties shall not be affected by this section.
347 Service of notices
(1) A notice required or authorised by this Act to be served on
any person or any notice served on any person under any
instrument or agreement that relates to property may be
served on that person—
(a) by delivering the notice to the person personally; or
(b) by leaving it for the person at the person’s usual or last
known place of abode, or, if the person is in business as
a principal, at the person’s usual or last known place of
business; or
(c) by posting it to the person by registered mail as a letter
addressed to the person at the person’s usual or last
known place of abode, or, if the person is in business as
a principal, at the person’s usual or last known place of
business; or
(d) in the case of a corporation by leaving it or by posting it
as a letter addressed in either case to the corporation at
[s 348]
Property Law Act 1974
Part 20 Miscellaneous
Current as at 30 April 2022 Page 255
Authorised by the Parliamentary Counsel
its registered office or principal place of business in the
State.
(1A) A notice so posted shall be deemed to have been served,
unless the contrary is shown, at the time when by the ordinary
course of post the notice would be delivered.
(2) If the person is absent from the State, the notice may be
delivered as provided in subsection (1) to the person’s agent in
the State.
(2A) If the person is deceased, the notice may be so delivered to the
person’s personal representative.
(3) If the person is not known, or is absent from the State and has
no known agent in the State or is deceased and has no
personal representative, the notice shall be delivered in such
manner as may be directed by an order of the court.
(4) Despite anything in subsections (1) to (3), the court may in
any case make an order directing the manner in which any
notice is to be delivered, or dispensing with the delivery of
any notice.
(5) This section does not apply to notices served in proceedings in
the court, nor where the person serving the notice prevents its
receipt by the person on whom the notice is intended to be
served.
(6) This section applies unless a contrary method of service of a
notice is provided in the instrument or agreement or by this
Act.
348 Payments into and applications to court
(1) Payment of money into court under this or any other Act shall
effectually exonerate the person making the payment.
(2) Every application to the court shall be by summons at
chambers, except where it is otherwise provided in this Act
(expressly or by implication) or in a regulation made under
this Act.
[s 349]
Property Law Act 1974
Part 20 Miscellaneous
Page 256 Current as at 30 April 2022
Authorised by the Parliamentary Counsel
(3) On an application by a purchaser, notice shall be served in the
first instance on the vendor unless the court dispenses with
such service.
(4) On an application by a vendor, notice shall be served in the
first instance on the purchaser unless the court dispenses with
such service.
(5) On any application, notice shall be served on such persons (if
any) as the court thinks fit.
(6) The court shall have full power and discretion to make such
order as it thinks fit respecting the costs, charges, or expenses
of all or any of the parties to any application.
349 Forms
(1) Where by this Act any application, instrument or document is
authorised or required to be made in the approved form, such
form, if the application, instrument or document is to be
registered in respect of land under the Real Property Acts,
shall in addition to any of the requirements of this Act—
(a) be attested under the requirements of the Real Property
Acts; and
(b) unless in any case the registrar otherwise directs, bear
the endorsement referred to in the Real Property Act
1861, section 139.
(2) The registrar may, before registering any such application,
instrument or document, require proof by statutory
declaration or otherwise of any matter because of which the
applicant or person seeking registration claims to be entitled
to registration of the application, instrument or document.
(3) This section applies despite any other section of this Act.
350 Approval of forms
The chief executive may approve forms for use under this Act.
[s 350A]
Property Law Act 1974
Part 21 Transitional provision for Property Law (Mortgagor Protection) Amendment Act 2008
Current as at 30 April 2022 Page 257
Authorised by the Parliamentary Counsel
350A Fees for titles registry functions
(1) The fees provided under the Queensland Future Fund (Titles
Registry) Act 2021 are payable in relation to a titles registry
function performed under this Act.
Note—
See the Queensland Future Fund (Titles Registry) Act 2021, part 3.
(2) In this section—
titles registry function see the Queensland Future Fund
(Titles Registry) Act 2021, section 5.
351 Regulation-making power
(1) The Governor in Council may make regulations under this
Act.
(2) The regulations may be about fees, other than titles registry
fees, including—
(a) the persons who are liable to pay fees; and
(b) when fees are payable; and
(c) the waiver of fees; and
(d) the recovery of unpaid amounts of fees.
Part 21 Transitional provision for
Property Law (Mortgagor
Protection) Amendment Act
2008
352 Mortgagor protection
(1) Section 85, as amended by the amending Act, applies to
mortgages whether made before or after the commencement
of this section.
[s 353]
Property Law Act 1974
Part 22 Transitional Provision for Civil and Criminal Jurisdiction Reform and Modernisation
Amendment Act 2010
Page 258 Current as at 30 April 2022
Authorised by the Parliamentary Counsel
(2) However, section 85(1A) does not apply to a mortgagee or
receiver if, immediately before the commencement, the
mortgagee—
(a) was entitled to immediately exercise the power of sale
conferred by this Act or otherwise; and
(b) was not prevented from doing so by section 84(1).
(3) In this section—
amending Act means the Property Law (Mortgagor
Protection) Amendment Act 2008.
Part 22 Transitional Provision for Civil
and Criminal Jurisdiction
Reform and Modernisation
Amendment Act 2010
353 Amendments do not affect existing matters
(1) The amendment of section 147(5) by the amending Act does
not apply in relation to a further matter of complaint as
mentioned in section 147(5) if the proceeding in relation to
the complaint was commenced before the commencement of
this section.
(2) The change to the monetary limit for part 19 brought into
effect by amendments of this Act, the Magistrates Courts Act
1921 and the District Court of Queensland Act 1967 by the
amending Act does not apply to a proceeding commenced
before the commencement of this section.
(3) In this section—
amending Act means the Civil and Criminal Jurisdiction
Reform and Modernisation Amendment Act 2010.
[s 354]
Property Law Act 1974
Part 23 Transitional provisions for Land Sales and Other Legislation Amendment Act 2014
Current as at 30 April 2022 Page 259
Authorised by the Parliamentary Counsel
Part 23 Transitional provisions for
Land Sales and Other
Legislation Amendment Act
2014
354 Definitions for pt 23
In this part—
amendment Act means the Land Sales and Other Legislation
Amendment Act 2014.
commencement means the commencement of this section.
355 Application of s 68A
Section 68A applies only in relation to a contract entered into
after the commencement.
356 Existing instalment contracts
(1) This section applies to an instalment contract entered into
before the commencement.
(2) Part 6, division 4 as in force before the commencement
continues to apply in relation to the instalment contract as if
this Act had not been amended by the amendment Act.
Part 24 Transitional provisions for
Court and Civil Legislation
Amendment Act 2017
357 Application of s 57A
(1) For a statutory instrument other than subordinate legislation,
amended section 57A—
[s 358]
Property Law Act 1974
Part 24 Transitional provisions for Court and Civil Legislation Amendment Act 2017
Page 260 Current as at 30 April 2022
Authorised by the Parliamentary Counsel
(a) applies from the commencement, regardless of when the
statutory instrument was made; but
(b) does not apply in relation to a contract or dealing
concerning property mentioned in that section if the
contract or dealing was made, entered into or effected
before the commencement.
(2) For subordinate legislation, amended section 57A—
(a) applies on and from the relevant day, regardless of when
the subordinate legislation was made; but
(b) does not apply in relation to a contract or dealing
concerning property mentioned in that section if the
contract or dealing was made, entered into or effected
before the relevant day.
(3) Section 57A, as in force immediately before the
commencement, continues to apply in relation to subordinate
legislation during the transitional period as if the section had
not been amended by the Court and Civil Legislation
Amendment Act 2017.
(4) In this section—
amended section 57A means section 57A as amended by the
Court and Civil Legislation Amendment Act 2017.
relevant day means the earlier of the following—
(a) the day that is 1 year after the commencement;
(b) the day prescribed by regulation.
transitional period means the period—
(a) starting on the commencement; and
(b) ending immediately before the relevant day.
358 Saving provision for s 57A
Section 57A(3), as in force immediately before the
commencement, is declared to be a law to which the Acts
Interpretation Act 1954, section 20A applies.
[s 359]
Property Law Act 1974
Part 25 Transitional provisions for Justice and Other Legislation Amendment Act 2020
Current as at 30 April 2022 Page 261
Authorised by the Parliamentary Counsel
Part 25 Transitional provisions for
Justice and Other Legislation
Amendment Act 2020
359 Application of s 84A
Section 84A applies in relation to a mortgaged freehold
property disclaimed under the Bankruptcy Act 1966 (Cwlth),
section 133(1) or the Corporations Act, section 568(1)—
(a) whether the mortgage was made before or after the
commencement; but
(b) only if—
(i) for a disclaimer under the Bankruptcy Act 1966
(Cwlth), section 133(1)—the disclaimer was made
on or after the commencement; or
(ii) for a disclaimer under the Corporations Act,
section 568(1)—the disclaimer took effect on or
after the commencement.
360 Application of proceeds of sales that happened before
commencement
Section 88(2), as inserted by the Justice and Other Legislation
Amendment Act 2020, does not apply in relation to the sale of
a mortgaged freehold property that happened before the
commencement.
[s 360A]
Property Law Act 1974
Part 26 Transitional and validating provisions for Justice and Other Legislation Amendment
Act 2021
Page 262 Current as at 30 April 2022
Authorised by the Parliamentary Counsel
Part 26 Transitional and validating
provisions for Justice and
Other Legislation Amendment
Act 2021
360A Deed signed by different signatories before and after
commencement
(1) This section applies to a deed if—
(a) an individual or corporation signed the deed before the
commencement; and
(b) another individual or corporation signs the deed after the
commencement.
(2) The individual or corporation signing the deed after the
commencement may electronically sign the deed under
section 46D.
(3) For subsection (2), the requirement under section 44,
definition accepted method, paragraph (c), for the method to
be consented to by each other signatory to the deed may be
inferred from conduct of the signatory before the
commencement.
(4) Also, subsection (2) applies whether or not the individual or
corporation who signed the deed before the commencement
electronically signed the deed.
(5) To remove any doubt, it is declared that the repealed
regulation applied to the individual or corporation signing the
deed before the commencement.
Note—
Former section 12O(2) of the repealed regulation did not require the
consent of another person to electronically signing the deed.
(6) In this section—
corporation means a corporation as defined under section 44.
[s 360B]
Property Law Act 1974
Part 26 Transitional and validating provisions for Justice and Other Legislation Amendment
Act 2021
Current as at 30 April 2022 Page 263
Authorised by the Parliamentary Counsel
repealed regulation means the repealed Justice Legislation
(COVID-19 Emergency Response—Documents and Oaths)
Regulation 2020 as in force from time to time before the
commencement.
360B Execution of deed by corporation sole or State after
commencement of Justice Legislation (COVID-19
Emergency Response—Wills and Enduring Documents)
Amendment Regulation 2020
(1) This section applies in relation to the execution of the
following documents—
(a) a document that is to have effect as a deed for a
corporation sole signed, during the transition period, by
a person, or in a way, authorised by the Act or another
document under which the corporation is established,
incorporated or registered;
(b) a document that is to have effect as a deed for the State
signed, during the transition period, by a person
authorised to execute the document.
(2) The execution of the document is taken to be, and always to
have been, as valid as if the new provisions were in effect
during the transition period.
(3) Without limiting subsection (2)—
(a) anything done under or in relation to the document is,
and was, as valid as if the new provisions had been in
effect during the transition period; and
(b) the rights and liabilities of all persons under or in
relation to the document are taken to be, and to have
been, for all purposes the same as if the new provisions
had been in effect during the transition period.
(4) Despite the COVID-19 Emergency Response Act 2020,
section 5, if this section is inconsistent with the Justice
Legislation (COVID-19 Emergency Response—Documents
and Oaths) Regulation 2020, this section prevails to the extent
of the inconsistency.
[s 360B]
Property Law Act 1974
Part 26 Transitional and validating provisions for Justice and Other Legislation Amendment
Act 2021
Page 264 Current as at 30 April 2022
Authorised by the Parliamentary Counsel
(5) In this section—
new provisions means—
(a) section 44, other than the following provisions—
(i) definition accepted method, paragraph (c);
(ii) definition consent; and
(b) sections 45, 46B, 46D, 46F(2A), (3) and (6), 46GA and
46H; and
(c) section 46C, but subject to the word ‘clear’ in
section 46C(1)(b) being taken to be a reference to the
word ‘conspicuous’.
transition period means the period—
(a) starting on the commencement of the Justice Legislation
(COVID-19 Emergency Response—Wills and Enduring
Documents) Amendment Regulation 2020; and
(b) ending immediately before the commencement of this
section.
Schedule 1
Property Law Act 1974
Current as at 30 April 2022 Page 265
Authorised by the Parliamentary Counsel
Schedule 1 Procedure in cases of bona
vacantia
section 20
1 Procedure in cases of escheat or other like cases
When any question arises as to the title of the State to any
land, or interest in land in any case of escheat or alleged
escheat or of bona vacantia or alleged bona vacantia, or in the
case of a grant to an alleged alien, or as to the title of the State
in any other case in which, prior to the passing of the Escheat
(Procedure and Amendment) Act 1891, an inquest of office
might have been held, the truth of the matter shall be
ascertained in the manner prescribed in this schedule.
2 Writ of inquisition
In any such case a writ called a writ of inquisition shall be
issued from the Supreme Court on the fiat of a Crown law
officer, which writ shall be addressed to a District Court
judge, or a commissioner of the Supreme Court for taking
affidavits, and shall command the person to make diligent
inquiry into the matter and to certify under the person’s hand
and seal such facts respecting the failure of the heirs or next of
kin of an intestate, or the alienage of a grantee, or such other
facts, as may be necessary to establish the title of the State or
otherwise.
3 Return of writ
The writ of inquisition with the certificate shall be
immediately returned into the office of the Supreme Court at
Brisbane, Rockhampton or Townsville, as the case may be,
and any person aggrieved by the certificate shall be entitled to
traverse or object to it, in such manner and within such time as
may be directed by rules of court, and in the absence of any
such rules within 1 month after the return of the writ.
Schedule 1
Property Law Act 1974
Page 266 Current as at 30 April 2022
Authorised by the Parliamentary Counsel
4 Writ to be returned before new grant made
No grant shall be made of any land alleged to be escheated or
to have become bona vacantia until after the writ of
inquisition and the certificate finding the title of the land has
been returned into the office of the Supreme Court, and the
time for traversing the same has expired.
5 Effect of certificate
Except as this schedule or rules of court otherwise provide,
the certificate shall be conclusive evidence of the facts stated
in it.
6Saving
The proceedings upon a writ of inquisition shall not prejudice
any rights which at the time of the death of the person that led
to the issue of the writ were vested in some other person.
7 Procedure when waiver by the Crown
(1) If at any time not later than 2 months after the making of an
instrument under section 20 waiving the title of the State to
any property, any person claiming any estate or interest in or
to the property requests that a writ of inquisition in respect of
the State’s title be issued, and gives security to the satisfaction
of a Crown law officer for the costs of the issue and execution
of such writ, such writ may issue under this schedule and the
instrument waiving the right of the State shall cease to have
effect from the date when it was made.
(2) If the title of the State to the property is established by a
certificate returned under this schedule, then, at any time after
the time for traversing such certificate has expired, a further
instrument (which may or may not differ from the previous
order in council) waiving the right of the State may be made
under section 20(5) but no further request may be made under
this clause.
(3) If an instrument is made waiving the right of the State to any
land or interest in land clause 1 shall be read subject to this
Schedule 1
Property Law Act 1974
Current as at 30 April 2022 Page 267
Authorised by the Parliamentary Counsel
clause save that a writ of inquisition at the instance of the
Crown may issue at any time.
8 Power to regulate procedure with respect to escheats to
the Crown
(1) Rules of court may be made prescribing and regulating the
procedure of the court on and incidental to writs of inquisition
and consequential on the holding of inquiries under such
writs.
(2) The rules of court may prescribe that any questions of fact
arising upon any such inquiry shall be determined by a jury,
and may prescribe the number of jurors, and may direct that
any provisions of the laws relating to juries shall apply to such
juries and jurors.
10 Interpretation
In this schedule—
a Crown law officer means and includes the Attorney-General
and the solicitor-general.
Schedule 3
Property Law Act 1974
Page 268 Current as at 30 April 2022
Authorised by the Parliamentary Counsel
Schedule 3 Short forms of covenants in
leases
section 109
Direction as to the forms in this schedule
1 Parties who use any of the forms in column 1 may substitute
for the words ‘lessee’ or ‘lessor’, any name or names, and in
every such case corresponding substitutions shall be taken to
be made in the corresponding forms in column 2.
2 Such parties may substitute 1 gender for another, or the plural
number for the singular, in the forms in column 1, and
corresponding changes shall be taken to be made in the
corresponding forms in column 2.
3 Such parties may fill up the blank spaces left in the forms in
column 1 so employed by them with any words or figures and
the words or figures so introduced shall be taken to be inserted
in the corresponding blank spaces left in the forms embodied.
4 Such parties may introduce into or annex to any form in
column 1 any addition to, exception from, or qualification of
the same, or may strike out or omit any words of or from such
column, and a proviso which would give effect to the intention
indicated by such addition, exception, qualification, striking
out, or omission shall be taken to be added to the
corresponding form in column 2.
5 The covenants in column 2 shall be taken to be made with or
by and apply to the lessor or lessee, as the case may be.
Schedule 3
Property Law Act 1974
Current as at 30 April 2022 Page 269
Authorised by the Parliamentary Counsel
Leases
Column 1 Column 2
1 That the lessee covenants
with the lessor to pay rent.
1 And the lessee covenants with
and promises to the lessor that
the lessee, will, during the term,
pay to the lessor, the rent
reserved, in manner mentioned
previously, without any
deduction of any kind, other
than any deduction which the
lessee is by an Act entitled to
make.
2 Provided that in the event
of damage by fire,
lightning, flood, or
tempest, rent shall abate
until the premises are
restored.
2 Provided that in case the
demised premises, or any part of
the demised premises, shall at
any time during the continuance
of the lease be destroyed or
damaged by fire without fault on
the part of the lessee, flood,
lightning, storm, or tempest, so,
in any such event as to render
the same unfit for the
occupation and use of the lessee,
then, and so often as the same
shall happen, the rent reserved,
or a proportionate part of the
rent, according to the nature and
extent of the damage sustained
shall abate, and all or any
remedies for recovery of the rent
or such proportionate part of the
rent shall be suspended until the
demised premises shall have
been rebuilt or made fit for the
occupation and use of the lessee.
Schedule 3
Property Law Act 1974
Page 270 Current as at 30 April 2022
Authorised by the Parliamentary Counsel
3 And to pay taxes, except
for local improvements.
3 And also that the lessee will pay
all taxes, rates and assessments
of any kind, whether municipal,
local government,
parliamentary, or otherwise
which are at any time during the
term charged upon the demised
premises, or upon the lessor, on
account of the demised
premises, except taxes for local
improvements or works
assessed upon the property
benefited by them.
4 And to maintain and leave
the premises in good repair
(having regard to their
condition at the
commencement of the
lease), reasonable wear
and tear, and damage by
fire, lightning, flood and
tempest excepted.
4 And also that the lessee will
during the term, when, where,
and so often as the need shall
be, but having regard to the
condition of the leased premises
at the commencement of the
lease and excepting reasonable
wear and tear, and damage by
fire, lightning, flood and
tempest occurring within the
term—
(a) well and sufficiently
maintain, amend, and keep;
and
(b) at the expiration or sooner
determination of the term
peaceably surrender and
yield up to the lessor;
in good and substantial repair
the leased premises, including
all appurtenances, buildings,
erections and fixtures belonging
to the leased premises, or at any
time within the term lawfully
made or erected by the lessor
upon or within the leased
premises.
Column 1 Column 2
Schedule 3
Property Law Act 1974
Current as at 30 April 2022 Page 271
Authorised by the Parliamentary Counsel
5 And that the lessor may
enter and view state of
repair, and that the lessee
will repair according to
notice in writing, and that
in default the lessor may
repair.
5 That the lessor, may, by himself
or herself or the lessor’s agents,
during the term at a reasonable
time of the day upon giving to
the lessee 2 days previous
notice, enter upon the demised
premises and view the state of
repair of the demised premises,
and may serve upon the lessee
or leave at the lessee’s last or
usual place of abode in the
State, or upon the demised
premises, a notice in writing of
any defect, requiring the lessee,
within a reasonable time, to
repair same in accordance with
any covenant expressed or
implied in the lease, and that in
default of the lessee so doing it
shall be lawful for the lessor
from time to time to enter and
execute the required repairs.
Column 1 Column 2
Schedule 3
Property Law Act 1974
Page 272 Current as at 30 April 2022
Authorised by the Parliamentary Counsel
6 And that the lessor may
enter and carry out
requirements of public
authorities, and repair
under the lease.
6 That the lessor may, by himself
or herself or the lessor’s agents,
at all reasonable times during
the term, with workers and
others, and all necessary
materials and appliances, enter
upon the demised premises, or
any part of the demised
premises, for the purpose of
complying with the terms of any
present or future legislation
affecting the premises, and of
any notices served upon the
lessor or lessee by licensing,
local, municipal, or other
competent authority, involving
the destruction of noxious
weeds or animals, or the
carrying out of any repairs,
alterations, or works of a
structural character, which the
lessee may not be bound, or if
bound may neglect, to do, and
also for the purpose of
exercising the powers and
authorities of the lessor under
the lease.
However, such destruction,
repairs, alterations, and works
shall be carried out by the lessor
without undue interference with
the occupation and use of the
demised premises by the lessee.
Column 1 Column 2
Schedule 3
Property Law Act 1974
Current as at 30 April 2022 Page 273
Authorised by the Parliamentary Counsel
7 And to insure from fire in
the joint names of the
lessor and the lessee.
7 And also that the lessee will
immediately insure the demised
premises to the full insurable
value of the demised premises
in some insurance office
approved by the lessor in the
joint names of the lessor and the
lessee, and keep the same so
insured during the continuance
of the lease, and will upon the
request of the lessor show to the
lessor the receipt for the last
premium paid for such
insurance, and as often as the
demised premises shall be
destroyed or damaged by fire all
and every the sum or sums of
money which shall be recovered
or received for or in respect of
such insurance, shall be laid out
and expended in building or
repairing the demised premises
or such parts of the demised
premises as shall be destroyed
or damaged by fire.
8 And to paint outside every
(___) year.
8 And also that the lessee will, in
every (___) year during the
continuance of the lease, paint
all the outside woodwork and
ironwork belonging to the
demised premises now or
usually painted with 2 coats of
proper paint, in a well executed
manner.
Column 1 Column 2
Schedule 3
Property Law Act 1974
Page 274 Current as at 30 April 2022
Authorised by the Parliamentary Counsel
9 And to paint and paper
inside every (___) year.
9 And also that the lessee will, in
every (___) year, paint the
inside wood, iron and other
works now or usually painted,
with 2 coats of proper paint, in a
well executed manner, and also
will repaper with paper of a
quality as at present such parts
of the premises as are now
papered, and also wash, stop,
whiten, or colour such parts of
the demised premises as are
now plastered.
10 And to fence. 10 And also that the lessee will,
during the continuance of the
lease, erect and put up on the
boundaries of the demised land
or upon such boundaries upon
which no substantial fence now
exists a good and substantial
fence.
11 And to keep up fences. 11 And also will, from time to
time, during the continuance of
the lease, keep up the fences and
walls of or belonging to the
demised premises, and make
anew any parts of the demised
premises that may require to be
new-made in a good and careful
manner and at proper seasons of
the year.
12 And to cultivate. 12 And also that the lessee will at
all times during the continuance
of the lease cultivate, use, and
manage all such parts of the
land as are or shall be broken up
or converted into tillage in a
proper and careful manner, and
will not impoverish or waste the
same.
Column 1 Column 2
Schedule 3
Property Law Act 1974
Current as at 30 April 2022 Page 275
Authorised by the Parliamentary Counsel
13 That the lessee will not cut
timber.
13 That also that the lessee will not
cut down, fell, injure, or destroy
any growing or living timber or
timber-like trees standing and
being upon the demised land,
without the consent in writing of
the lessor.
14 That the lessee will not
without consent use
premises otherwise than as
a private dwelling house.
14 And also that the lessee or any
subtenant will not convert, use,
or occupy the demised premises
or any part of the demised
premises into or as a shop,
warehouse, or other place for
carrying on any trade or
business of any kind, or suffer
the premises to be used for any
such purpose or otherwise than
as a private dwelling house,
without the consent in writing of
the lessor.
Column 1 Column 2
Schedule 3
Property Law Act 1974
Page 276 Current as at 30 April 2022
Authorised by the Parliamentary Counsel
15 And will not assign or
sublet without leave; no
fine to be taken.
15 And also that the lessee or any
subtenant will not, during the
continuance of the lease, assign,
transfer, demise, sublet, or part
with the possession or by any
act or deed, procure the demised
premises, or any part of the
demised premises, to be
assigned, transferred, demised,
sublet to or put into the
possession of any person or
persons, without the consent in
writing of the lessor, but such
consent shall not be refused in
the case of a proposed
respectable and responsible
assign, tenant or occupier.
Provided further, that no fine or
sum of money in the nature of a
fine shall be payable for or in
respect of such licence or
consent, but this proviso shall
not preclude the right of the
lessor to require the payment of
a reasonable sum in respect of
any legal or other expenses
incurred in relation to such
license or consent.
Column 1 Column 2
Schedule 3
Property Law Act 1974
Current as at 30 April 2022 Page 277
Authorised by the Parliamentary Counsel
16 That the lessee will not
carry on any offensive
trade.
16 That the lessee or any subtenant
will not at any time during the
continuance of the lease use,
exercise, or carry on, or permit
or suffer to be used, exercised,
or carried on in or upon the
demised premises or any part of
the demised premises, any
noxious, noisome, or offensive
art, trade, business, occupation,
or calling, and no act, matter, or
thing of any kind shall, at any
time during the continuance of
the lease, be done in or upon the
premises or any part of the
demised premises which shall or
may be or grow to the
annoyance, nuisance, grievance,
damage, or disturbance of the
occupiers or owners of any
neighbouring premises.
Column 1 Column 2
Schedule 3
Property Law Act 1974
Page 278 Current as at 30 April 2022
Authorised by the Parliamentary Counsel
17 That the lessee will carry
on the business of a
licensee within the
meaning of the Liquor Act
1992 and conduct the same
in an orderly manner.
17 And also that the lessee, or the
subtenant for the time being,
will at all times during the
continuance of the lease, use,
exercise, and carry on, in and
upon the demised premises, the
trade or business of a licensee
within the meaning of the
Liquor Act 1992, and keep open
and use the buildings upon the
demised land as and for a hotel,
and manage and conduct such
trade or business in a quiet and
orderly manner, and will not do,
commit, or permit, or suffer to
be done or committed any act,
matter, or thing of any kind by
which or by means of which any
licence shall or may be forfeited
or become void or liable to be
taken away, suppressed, or
suspended in any manner at all,
and will comply in all respects
with the requirements of the
Liquor Act 1992.
18 And will apply for renewal
of licence.
18 And also that the lessee, or the
subtenant for the time being,
will from time to time, during
the continuance of the lease at
the proper times for that
purpose, apply for and
endeavour to obtain at the
person’s own expense all such
licences as are or may be
necessary for carrying on the
trade or business of a licensee
within the meaning of the
Liquor Act 1992 in and upon the
demised premises, and keeping
the buildings open as and for a
hotel.
Column 1 Column 2
Schedule 3
Property Law Act 1974
Current as at 30 April 2022 Page 279
Authorised by the Parliamentary Counsel
19 And will facilitate the
transfer of licence.
19 And also that the lessee, or the
subtenant for the time being,
will at the expiration or other
sooner determination of the
lease sign and give such notice
or notices, and allow such notice
or notices of a renewal or
transfer of any licence as may
be required by law to be affixed
to the demised premises, to be
affixed and remain so affixed
during such time or times as
shall be necessary or expedient
in that behalf, and generally to
do and perform all such further
acts, matters, and things as shall
be necessary to enable the
lessor, or any person authorised
by the lessor, to obtain the
renewal of any licence or any
new licence or the transfer of
any licence then existing and in
force.
20 The (lessor) covenants
with the (lessee) for quiet
enjoyment.
20 And the lessor covenants with
the lessee that the lessee paying
the rent reserved, and
performing the covenants on the
lessee’s part contained, shall and
may peaceably possess and
enjoy the demised premises for
the term granted, without any
interruption or disturbance from
the lessor or any other person or
persons lawfully claiming by,
from or under the lessor.
Column 1 Column 2
Schedule 3
Property Law Act 1974
Page 280 Current as at 30 April 2022
Authorised by the Parliamentary Counsel
21 And that the lessee may
remove the lessee’s
fixtures.
21 And also that the lessee may at
or prior to the expiration of the
lease take, remove, and carry
away from the demised
premises all fixtures, fittings,
plant, machinery, utensils,
shelving, counters, safes, or
other articles upon the demised
premises in the nature of trade
or tenants’ fixtures bought upon
the demised premises by the
lessee, but the lessee shall in
such removal do no damage to
the demised premises, or shall
immediately make good any
damage which the lessee may
occasion to them.
Column 1 Column 2
Schedule 4
Property Law Act 1974
Current as at 30 April 2022 Page 281
Authorised by the Parliamentary Counsel
Schedule 4 Improvements by tenant
section 156
Part 1
1 drainage of land
2 erection or enlargement of buildings
3 making of fences
4 formation of silos
5 making of water meadows or works of irrigation
6 making of dams for the conservation of water, or wells
7 clearing of land
Part 2
8 liming of land
9 manuring or fertilising of land with purchased artificial or
other purchased manures or fertilisers
10 laying down pasture with clover, grass, lucerne, sainfoin, or
other seeds sown more than 2 years prior to the determination
of the tenancy
11 making of plantations of bananas or pineapples
12 planting of sugarcane
13 planting of orchards with fruit trees permanently set out
Schedule 5
Property Law Act 1974
Page 282 Current as at 30 April 2022
Authorised by the Parliamentary Counsel
Schedule 5 Rules as to arbitration
section 159
Part 1 Arbitration before a single
arbitrator
Appointment of arbitrator
1 The arbitrator shall be a person appointed by agreement
between the parties, or in default of agreement between the
parties within 14 days of the date of the giving of notice by
one party to the other party requiring appointment of an
arbitrator, a person appointed by the Minister on the
application in writing of either of the parties.
2 If a person appointed arbitrator dies, or is incapable of acting,
or for 7 days after notice from either party requiring the
arbitrator to act fails to act, a new arbitrator may be appointed
as if no arbitrator had been appointed.
3 Neither party shall have power to revoke the appointment of
the arbitrator without the consent of the other party.
4 Every appointment, notice, revocation, and consent under this
part of these rules must be in writing.
Time for award
5 The arbitrator shall make and sign the award within 28 days of
the arbitrator’s appointment or within such longer period as
the Minister may (whether the time for making the award has
expired or not) direct.
Removal of arbitrator
6 Where an arbitrator has misconducted himself or herself, the
court or a judge of the court may remove the arbitrator.
Schedule 5
Property Law Act 1974
Current as at 30 April 2022 Page 283
Authorised by the Parliamentary Counsel
Evidence
7 The parties to the arbitration, and all persons claiming through
them respectively, shall, subject to any legal objection, submit
to be examined by the arbitrator, on oath or affirmation, in
relation to the matters in dispute, and shall, produce before the
arbitrator all samples, books, deeds, papers, accounts,
writings, and documents, within their possession or power
respectively which may be required or called for, and do all
other things which during the proceedings the arbitrator may
require.
8 The arbitrator shall have power to administer oaths, and to
take the affirmation of parties and witnesses appearing, and
witnesses shall, if the arbitrator thinks fit, be examined on
oath or affirmation.
Statement of case
9 The arbitrator may at any stage of the proceedings, and shall,
if so directed by a judge of the court (which direction may be
given on the application of either party), state in the form of a
special case for the opinion of that court any question of law
arising in the course of the arbitration.
Award
10 The arbitrator shall on the application of either party specify
the amount awarded in respect of any particular improvement
or improvements, and the award shall fix a day not sooner
than 1 month nor later than 2 months after the delivery of the
award for the payment of the money awarded for
compensation, costs, or otherwise, and shall be in such form
as may be prescribed by the Minister.
11 The award to be made by the arbitrator shall be final and
binding on the parties and the persons claiming under them
respectively.
12 The arbitrator may correct in an award any clerical mistake or
error arising from any accidental slip or omission.
Schedule 5
Property Law Act 1974
Page 284 Current as at 30 April 2022
Authorised by the Parliamentary Counsel
13 When an arbitrator has misconducted himself or herself, or an
arbitration or award has been improperly procured, the court
or a judge of the court may set the award aside.
Costs
14 The costs of and incidental to the arbitration and award shall
be in the discretion of the arbitrator, who may direct to and by
whom and in what manner these costs or any part of these
costs are to be paid, and the costs shall be subject to taxation
by the proper officer of the court on the application of either
party.
15 The arbitrator shall, in awarding costs, take into consideration
the reasonableness or unreasonableness of the claim of either
party, either in respect of amount or otherwise, and any
unreasonable demand for particulars or refusal to supply
particulars, and generally all the circumstances of the case,
and may disallow the costs of any witness whom the arbitrator
considers to have been called unnecessarily, and any other
costs which the arbitrator considers to have been incurred
unnecessarily.
Part 2 Arbitration before 2 arbitrators
or an umpire
Appointment of arbitrators and umpire
1 If the parties agree in writing that there be not a single
arbitrator, each of them shall appoint an arbitrator.
2 If before award an arbitrator dies or is incapable of acting, or
for 7 days after notice from either party requiring the
arbitrator to act fails to act, the party appointing the arbitrator
shall appoint another arbitrator.
3 Notice of every appointment of an arbitrator by either party
shall be given to the other party.
4 If for 14 days after notice by 1 party to the other to appoint an
arbitrator, or another arbitrator, the other party fails to do so,
Schedule 5
Property Law Act 1974
Current as at 30 April 2022 Page 285
Authorised by the Parliamentary Counsel
then, on the application of the party giving notice, the
Minister shall appoint a person to be an arbitrator.
5 Where 2 arbitrators are appointed, then (subject to these rules)
they shall, before they enter on the arbitration, appoint an
umpire.
6 If before award an umpire dies or is incapable of acting, or for
7 days after notice from either party requiring the umpire to
act fails to act, the arbitrators may appoint another umpire.
7 If for 7 days after request from either party, the arbitrators fail
to appoint an umpire, or another umpire, then, on the
application of either party, the Minister shall appoint a person
to be the umpire.
8 Neither party shall have power to revoke an appointment of an
arbitrator without the consent of the other.
9 Every appointment, notice, request, revocation, and consent
under this part of these rules shall be in writing.
Time for an award
10 The arbitrators shall make and sign their award in writing
within 28 days after the appointment of the last appointed of
them, or on or before any later day to which the arbitrators, by
any writing signed by them, may enlarge the time for making
the award, not being more than 49 days from the appointment
of the last appointed of them.
11 If the arbitrators have allowed their time or extended time to
expire without making an award, or have delivered to either
party or to the umpire a notice in writing stating that they
cannot agree, the umpire may immediately enter on the
arbitration instead of the arbitrators.
12 The umpire shall make and sign the umpire’s award within 1
month after the original or extended time appointed for
making the award of the arbitrators has expired.
13 The time for making an award may from time to time be
extended by the Minister, whether the time for making the
award has expired or not.
Schedule 5
Property Law Act 1974
Page 286 Current as at 30 April 2022
Authorised by the Parliamentary Counsel
Removal of arbitrator, evidence, statement of case,
award, costs, forms
14 The provisions of part 1 as to the removal of an arbitrator, the
evidence, the statement of a case, the award, costs, and forms
shall apply to an arbitration under this part as if the expression
arbitrator whenever used in those provisions included 2
arbitrators or an umpire, as the case may require.
Schedule 6
Property Law Act 1974
Current as at 30 April 2022 Page 287
Authorised by the Parliamentary Counsel
Schedule 6 Dictionary
section 3
accepted method, for electronically signing a document, for
part 6, division 1, see section 44.
account of a de facto proceeding, for part 19, see section 268.
assurance includes a conveyance and a disposition made
otherwise than by will.
bankruptcy includes any act or proceeding in law having
under any Act or Commonwealth Act effects or results similar
to those of bankruptcy, and includes the winding-up of an
insolvent company.
child of de facto partners, for part 19, see section 259.
Coal Mining Act means the Coal Mining Safety and Health
Act 1999.
cohabitation agreement, for part 19, see section 264.
commencement of this Act means the commencement of this
Act other than part 18, division 4.
Commonwealth Act, for part 19, see section 259.
consent, for part 6, division 1, see section 44.
conveyance includes a transfer of an interest in land, and any
assignment, appointment, lease, settlement, or other assurance
in writing of any property.
conveyancing transaction, for part 6, division 3, see
section 58A.
copy, of an electronic document, for part 6, division 1, see
section 44.
counterpart, for a document, for part 6, division 1, see
section 45.
court means—
Schedule 6
Property Law Act 1974
Page 288 Current as at 30 April 2022
Authorised by the Parliamentary Counsel
(a) for part 19—a court having jurisdiction under the part;
and
Note—
See section 329.
(b) otherwise—the Supreme Court.
court document, of a proceeding, for part 19, see section 259.
deed includes an instrument having under this or any other
Act the effect of a deed.
de facto partner, for part 19, see section 260.
de facto relationship, for part 19, see section 261.
disposition includes a conveyance, vesting instrument,
declaration of trust, disclaimer, release and every other
assurance of property by an instrument except a will, and also
a release, devise, bequest, or an appointment of property
contained in a will.
District Court means the District Court or the District Court
judge.
document, for part 6, division 1, see section 44.
e-conveyance, for part 6, division 3, see section 58A.
e-conveyancing, for part 6, division 3, see section 58A.
electronically sign, a document, for part 6, division 1, see
section 44.
electronic document, for part 6, division 1, see section 44.
electronic workspace, for part 6, division 3, see section 58A.
ELN, for part 6, division 3, see section 58A.
encumbrance includes a mortgage in fee or for a lesser estate
or interest, and a trust for securing money, and a lien and a
charge of a portion, annuity or other capital or annual sum.
encumbrancee has a meaning corresponding with that of
encumbrance, and includes every person entitled to the benefit
of an encumbrance, or to require payment or satisfaction of an
encumbrancee.
Schedule 6
Property Law Act 1974
Current as at 30 April 2022 Page 289
Authorised by the Parliamentary Counsel
financial matters, for part 19, see section 262.
financial resources, for part 19, see section 263.
financial settlement, for part 6, division 3, see section 58A.
fine includes premium or foregift, and any payment,
consideration, or benefit in the nature of a fine, premium or
foregift.
Housing Act means the Housing Act 2003.
Imperial Act means any statute law in force in the realm of
England on 25 July 1828.
income, when used with reference to land, includes rents and
profits.
information, for part 6, division 1, see section 44.
instrument includes deed, will, and Act.
Land Act means the Land Act 1994.
land titles legislation, for part 6, division 3, see section 58A.
land under the provisions of the Land Act, or any equivalent
expression, means estates, interests, or any other rights in or in
respect of land, granted, leased, or granted in trust or reserved
and set aside under that Act but does not include registered
land or unregistered land.
Mineral Resources Act means the Mineral Resources Act
1989.
monetary limit, for part 19, see section 259.
mortgage includes a charge on any property for securing
money or money’s worth.
mortgagee includes any person from time to time deriving
title to the mortgage under the original mortgagee.
mortgagee in possession means a mortgagee who in right of
the mortgage has entered into and is in possession of the
mortgaged property.
mortgage-money means money or money’s worth secured by
a mortgage.
Schedule 6
Property Law Act 1974
Page 290 Current as at 30 April 2022
Authorised by the Parliamentary Counsel
mortgagor includes any person from time to time deriving
title to the equity of redemption under the original mortgagor,
or entitled to redeem a mortgage, according to the
mortgagor’s estate, interest, or right in the mortgaged
property.
National Law, for part 6, division 3, see section 58A.
notice includes constructive notice.
order includes judgment and decree of a court.
participating subscriber, for part 6, division 3, see
section 58A.
physical document, for part 6, division 1, see section 44.
possession, when used with reference to land, includes the
receipt of income from land.
president of the Law Society means the president for the time
being of the Queensland Law Society Incorporated
constituted under the Queensland Law Society Act 1952.
property adjustment order, for part 19, means an order under
section 286.
publish, for part 19, see section 267.
purchaser means a purchaser for valuable consideration, and
includes a lessee, mortgagee, or other person who for valuable
consideration acquires an interest in property.
recognised agreement, for part 19, see section 266.
registered means the making or recording by proper authority
in the appropriate register (if any) or other book, instrument or
document of such entries, endorsements, particulars or other
information as may be requisite for recording a dealing or
other transaction with respect to land.
registered land means land under the provisions of the Land
Title Act 1994.
registrar means the registrar of titles.
rent includes yearly or other rent, toll, duty, royalty, or other
reservation by the acre, hectare, the ton, tonne or otherwise.
Schedule 6
Property Law Act 1974
Current as at 30 April 2022 Page 291
Authorised by the Parliamentary Counsel
sale means only a sale properly so called.
seal, of a corporation, for part 6, division 1, see section 44.
secretary, of a corporation, for part 6, division 1, see
section 44.
securities include stocks, funds, and shares.
separation agreement, for part 19, see section 265.
settlement, of a sale of land or a contract for the sale of land,
see section 58B.
sign, a document, for part 6, division 1, see section 44.
subscriber, for part 6, division 3, see section 58A.
title deed includes a certificate of title to, or deed of grant in
respect of, registered land.
titles registry fee, for a matter mentioned in a provision of this
Act, means the fee payable for the matter under section 350A.
trustee corporation means the public trustee and any
corporation authorised by the Trustee Companies Act 1968 to
administer the estates of deceased persons and other trust
estates.
unregistered land means land that has been granted in fee
simple and is not registered land or land granted in trust under
the Land Act.
valuable consideration includes marriage but does not
include a nominal consideration in money.
warden has the meaning given by the Mineral Resources Act
1989.