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Fiji Legislation |
LAWS OF FIJI
Ed. 1978]
CHAPTER 131
LAND TRANSFER
ARRANGEMENT OF SECTIONS
PART I-PRELIMINARY
SECTION
1.
Short title.
2.
Interpretation.
PART II-APPLICATION
3. Laws
inconsistent not to apply to land subject to this
Act.
4. Scope of
Act.
5. What lands subject to
Act.
PART III-APPOINTMENT, POWERS AND DUTIES OF OFFICERS
6. Appointment of
Registrar.
7. Deputy
Registrars.
8.
Seal.
9. Suitable premises to be
provided.
PART
IV-CROWN GRANTS, CERTIFICATES OF TITLE
AND
REGISTRATION
10. Crown
grants.
11. Certificate of
title.
12. Power to combine
certificates.
13. Power to divide
certificates.
14. Power of Registrar
to require the proprietor to take out a fresh
certificate.
15. Proprietor entitled
to certificate of title.
16. Power
to issue new certificate of
title.
17. History of dealings to be
preserved.
18. Instrument of title
to be evidence of
proprietorship.
19. Register of
Titles.
20. Presentation
Book.
21. Registration of
instruments of title.
22. Instrument
valid though proprietor not then
registered.
23. Priority of
registration to give priority of
title.
24. Memorial of
registration.
25. Memorial to be
endorsed on duplicate instrument, and certificate of time of registration to be
endorsed on every instrument so
registered.
26. Power of Registrar
to dispense with the production of duplicate grant or other
instrument.
27. Substitution for
lost or defaced instrument.
28. Case
of lost duplicate instrument.
29.
Merger how registered.
30. Search
certificates.
31. Applicant for
search certificate may inspect instrument of
title.
32. Stay of registration of
dealings on issue of search
certificate.
33. Instruments when
presented together.
34.
Co-ownership.
35. Registrar to be
guided by provisions of Act.
36.
Register to be open to search.
PART V-EFFECT OF REGISTRATION
37. Instruments
not effectual until registered.
38.
Registered instrument to be conclusive evidence of
title.
39. Estate of registered
proprietor paramount, and his title
guaranteed.
40. Purchaser not
affected by notice.
41. Instrument
etc., void for fraud.
42.
Proprietors protected against
ejectment.
43. Instrument of title
issued in name of deceased proprietor to be void.
PART VI-TRANSFERS
44.
Transfers.
45. Procedure in case of
transfer of land.
46. When new
certificate of title to be issued.
PART VII-RESTRICTIVE COVENANTS
47. Creation of
restrictive covenants.
48. Discharge
or modification of restrictive covenants.
PART VIII-EASEMENTS AND PROFITS A PRENDRE
49. Creation of
easement and profits.
50. Consent of
mortgagee, lessee or encumbrancee to easement or
profit.
51. Surrender of easements
and profits.
52. Variation of
easements and profits.
PART
IX-DISCHARGE AND MODIFICATION BY COURT
OF
RESTRICTIONS AND
EASEMENTS
53. Discharge or
modification by court of restrictions and easements.
PART X-LEASES
54. Form and
registration of leases.
55. Consent
of mortgagee.
56. Covenant not to
transfer or sublet.
57. Cancellation
by Registrar.
58.
Variation.
59. Consent to
variation.
60. Bringing down
encumbrances on registration of new
lease.
61. Bringing down
encumbrances on acquisition by lessee of fee
simple.
62. Surrender of lease how
registered.
PART XI-MORTGAGES
63. Mortgage to
have effect as security only.
64.
Sub-mortgages.
65. Form of
mortgage.
66. Variation of
mortgage.
67. Variation of priority
of mortgages.
68. Discharge of
mortgage.
69. Discharge of mortgage
in case of death of annuitant,
etc.
70. How mortgage discharged in
absence of the mortgagee from
Fiji.
71. Transfer by mortgagee in
exercise of power of sale.
72.
Effect of registration of transfer signed by the
mortgagee.
73. Application for
foreclosure, how and when made.
74.
Application to be advertised and Registrar to make order and register the
mortgagee as proprietor.
75.
Foreclosure to be in full satisfaction of mortgage debt.
PART XII-LIFE ESTATES AND REMAINDERS
76. Estates for
life in reversion or in remainder.
PART
XIII-TITLE BY POSSESSION TO LAND, AND REMOVAL
OF
ABANDONED EASEMENTS
77. Acquisition
of title by virtue of adverse possession prior to commencement of
Act.
78. Application for vesting
order.
79. Form of
application.
80. Powers and duties
of Registrar.
81.
Notice.
82. Person claiming interest
may lodge caveat.
83. Caveat by
registered proprietor of estate in fee simple,
etc.
84. Caveat by person entitled
to other estate or interest.
85.
Caveat by person claiming as beneficial or equitable owner of any estate or
interest.
86. Notice of refusal of
application to be given to
applicant.
87. Power of Registrar to
make vesting order.
88. Certificates
of title to be issued.
89. Duty to
be paid.
90. Certain lands
exempt.
91. Application for removal
of abandoned easement.
92. Power of
Registrar to cancel easement.
PART XIV-TRANSMISSION
93. Person
claiming under transmission may be
registered.
94. Registrar may enter
caveat.
95. Change or correction of
name of proprietor.
96. Trustee of
bankrupt to be registered as
proprietor.
97. Refusal by trustee
to accept a lease to operate as
surrender.
98. Refusal to accept
lease subject to mortgage to vest lease in
mortgagee.
99. Surrender not to
prejudice cause of action against
lessee.
100. Provision in case of
person holding for a deceased or bankrupt
proprietor.
101.
Survivorship.
PART XV-TRUSTS AND TRUSTEES
102.
Trustees.
PART XVI-JUDGMENTS AND EXECUTION
103. As to
proprietor preferred by court.
104.
Enforcement of judgments, etc. against
land.
105. Satisfaction, etc. of
registered judgment.
PART XVII-CAVEATS
106. Caveat may
be lodged.
107. Particulars to be
stated in and to accompany
caveat.
108. Entry and service of
caveats.
109. Notice and opposition
to caveat.
110. Removal of
caveat.
111. Caveat may be
withdrawn.
112. No second caveat may
be entered.
113. No entry to be made
in register affecting land in respect of which caveat continues in
force.
114. Compensation for lodging
caveat without reasonable
cause.
115. Memorandum of caveats to
be fixed to certificates.
116.
Removal of caveat where interest protected has ceased to
exist.
117. Caveat on behalf of a
beneficiary under a will or settlement does not bar registration in certain
cases.
PART XVIII-POWERS OF ATTORNEY
118. Registered
proprietor may deal by
attorney.
119. Powers of attorney to
be deposited and registered.
120.
Revocation of power of
attorney.
121. Cancellation of power
of attorney.
PART XIX ATTESTATION, CERTIFICATION AND EXECUTION
122. Witnesses
necessary in attesting
documents.
123. Application to have
force of statutory declaration.
124.
Instruments to be certified correct for
registration.
125. Consent to
dealing, how given.
126. Prior
encumbrances to be endorsed on
instruments.
127. Appointment of
liquidator of company to be entered in the register.
PART XX-GOVERNMENTS OF OVERSEA COUNTRIES
128. Governments
of overseas countries may be registered proprietors.
PART XXI-SPECIAL POWERS AND DUTIES OF REGISTRAR
129. Power to
call for documents.
130. To
administer oaths.
131. Powers to
enter caveats, to correct certificates and to destroy
documents.
132. To mark or stamp
instrument.
133. Exemptions from
fees.
134. Registrar to keep account
of moneys received.
135. Registrar
to carry out order vesting trust
estate.
136. Power of Registrar to
make a vesting order in cases of completed
purchase.
137. Certain encumbrances
which have ceased to affect the title may be removed from the
register.
138. Satisfaction of
judgment may be entered before the expiration of four months from the entry of
copy writs.
PART XXII-GUARANTEE OF TITLE
139.
Indemnity.
140. Damages for mistake
or misfeasance of Registrar.
141.
Notice of action to be served on Attorney-General and
Registrar.
142. Liability of
plaintiff for costs.
143. In case of
fraud compensation paid and costs
recoverable.
144. Consolidated Fund
to be credited or debited.
145.
Judgment may be signed against absconders,
etc.
146. Judgment recovered at any
time.
147. Crown not liable in
certain cases.
148. Value of land at
time of deprivation to be measure of
damages.
149. Limitation of
actions.
PART XXIII-SUBDIVISIONS AND ROADS
150. Power of
Registrar to require plan.
151.
Crown survey boundaries as marked on the ground to be deemed the true
boundaries.
152. Crown grant or
lease deemed to convey land within survey boundaries marked on the
ground.
153. How survey boundaries
may be proved in the absence of survey
marks.
154. Margin of error allowed
in description of boundaries.
155.
Registrar may disregard minute errors of
dimensions.
156. Excess of land may
be apportioned between different owners or
proprietors.
157. Proprietor
subdividing to deposit map if
required.
158. Number of allotment
on plan of subdivision sufficient description for purposes of
dealings.
159. Creation of easements
by certificate and deposit of
plan.
160. Plan of
subdivision.
161. Acquisition of
land for public purposes.
162.
Vesting of public roads in the
Crown.
163. Power of Registrar to
issue certificate of title for street.
PART
XXIV-SPECIAL JURISDICTION OF
THE
SUPREME COURT
164. Appeal to
court from order of Registrar.
165.
Reference to court on legal points,
etc.
166. Correction of instrument
issued in error.
167. Power of court
in case of refusal to deliver up instrument of
title.
168. Power of court to direct
Registrar.
169.
Ejectors.
170. Particulars to be
stated in summons.
171. Order for
possession.
172. Dismissal of
summons.
173. No necessity for writ
of possession when order is
obtained.
174. Proprietor to allow
his name to be used in any action upon application of person interested.
PART XXV-MISCELLANEOUS
175. Lands
belonging to Crown maybe withdrawn from operation of
Act.
176. Service of
notices.
177.
Regulations.
178. Repeal and
saving.
----------------------------------------------
CHAPTER 131
Act
No. 19 of 1971, Legal Notice No. 46 of 1972,AN ACT TO AMEND THE LAW RELATING TO THE TRANSFER OF LAND AND TO THE REGISTRATION OF TITLE TO LAND
[1 August 1971]
PART I-PRELIMINARY
Short title
1. This Act may
be cited as the Land Transfer Act.
Interpretation
2.-(1)
In this Act and in all instruments made or executed in pursuance thereof,
unless the context otherwise requires-
"court" means the Supreme Court;
"Crown grant" or "grant" means any grant of land by the Crown;
"dealing" means any transaction of whatsoever nature by which land or any estate or interest therein is affected under the provisions of this Act;
"Director of Lands" means the Director of Lands and Surveyor-General;
"disability" means the legal disability of infancy or unsoundness of mind;
"encumbrancee" means the proprietor of any encumbrance;
"encumbrancer" means the proprietor of any land, or of any estate or interest therein, that is subject to an encumbrance;
"encumbrances" includes all prior estates, interests, rights, claims and demands which can or may be had, made or set up in respect of land, and includes a mortgage;
"estate or interest" means any estate or interest in land subject to the provisions of this Act, and includes any mortgage thereon;
"instrument" includes every document registered or capable of registration under this Act or in respect of which any memorial is by this Act directed, required or permitted to be entered in the Register Book or endorsed on any registered instrument;
"instrument of title" includes a certificate of title, Crown grant, lease, sublease, mortgage or other encumbrance as the case may be;
"land" includes land, messuages, tenements and hereditaments, corporeal and incorporeal, of every kind and description, together with all buildings and other fixtures, paths, passages, ways, watercourses, liberties, privileges, easements, plantations, gardens, mines, minerals and quarries, and all trees and timber thereon or thereunder lying or being unless any such are specially excepted;
"lease" includes a sublease;
"lessee" means the proprietor of a lease or sublease;
"lessor" means the proprietor of the land leased and includes a sub-lessor;
"memorial" means the entry relating to any instrument duly entered by the Registrar on the instrument of title;
"mortgage" means any charge on land, or any estate or interest therein, created under the provisions of this Act for securing-
(a) the repayment of a loan or satisfaction of an existing debt;
(b) the repayment of future advances, or payment or satisfaction of any future or unascertained debt or liability, contingent or otherwise;
(c) the payment to the holders for the time being of any bonds, debentures, promissory notes or other securities, negotiable or otherwise, made or issued by the mortgagor before or after the creation of that charge;
(d) the payment to any person or persons by yearly or periodical payments or otherwise or any annuity, rent charge or sum of money other than a debt, and includes the instrument effecting the same;
"mortgage money" means all moneys, whether principal sum, annuity, rent charge or other periodical payment, interest or other moneys whatsoever, owing under or secured by a mortgage;
"mortgagee" means the proprietor of a mortgage;
"mortgagor" means the proprietor of land, or any estate or interest therein, charged with a mortgage;
"personal representative" means the executor, original or by representation, or the administrator for the time being of the estate of a deceased person;
"person of unsound mind" has the same meaning as in the Mental Treatment Act;
(Cap. 113.)
"proprietor" means the registered proprietor of land, or of any estate or interest therein;
"qualified witness" means any person prescribed as such under the provisions of paragraph (e) of section 177;
"register" means the Register of Titles to land to be kept in accordance with the provisions of this Act;
"Registrar" means the Registrar of Titles appointed under the provisions of this Act, and includes any Deputy Registrar;
"transmission" means the acquisition of title to land, or to any estate or interest therein, by operation of law and, without restricting the generality of the foregoing words, includes the acquisition of title to an estate or interest in land consequent on the death, will, intestacy or bankruptcy of a proprietor or by decree of the court or by assignment for the benefit of creditors.
(Amended by Act 24 of 1974, s.2; 14 of 1976, s.2.)
(2) In all instruments purporting to be made under the
provisions of this Act, unless the context otherwise requires the description
of
any person as proprietor, transferor, transferee, mortgagor, mortgagee,
encumbrancer, encumbrancee, lessor or lessee or as trustee
or as having or
taking any estate or interest in any land shall include the personal
representatives and transferees of such person.
PART II-APPLICATION
Laws inconsistent not to apply to land subject to Act
3. All written
laws, Acts and practice whatsoever so far as inconsistent with this Act shall
not apply or be deemed to apply to any
land subject to the provisions of this
Act or to any estate or interest therein.
Scope of Act
4. All land
subject to the provisions of the Land (Transfer and Registration) Ordinance and
every estate or interest therein and all
instruments and dealings affecting any
such land, estate or interest shall from the commencement of this Act be deemed
to be subject
to the provisions of this Act.
(Cap. 136.) (1955 Edition)
What lands subject to Act
5. The following
freehold and leasehold land shall be subject to the provisions of this
Act:-
(a) all land which has already in any manner become subject to the provisions of the Land (Transfer and Registration) Ordinance;
(Cap. 136.) (1955 Edition)
(b) all land hereafter alienated or contracted to be alienated from the Crown in fee;
(c) all leases of Crown land granted pursuant to the provisions of the Crown Lands Act, all leases of native land granted pursuant to the provisions of the Native Land Trust Act and all mining leases, special mining leases, special site rights and road access licences granted pursuant to the provisions of the Mining Act;
(Cap. 132.) (Cap. 134.) (Cap. 146.)
(d) all land in respect of which any order is hereafter made under the provisions of any Act now or hereafter in force which has the effect of vesting that land in any person in freehold tenure.
PART III-APPOINTMENT, POWERS AND DUTIES OF OFFICERS
Appointment of Registrar
6. The Judicial
and Legal Services Commission may appoint any fit and proper person to be
Registrar of Titles and such Registrar of
Titles shall be charged with the
administration of the provisions of this Act.
(Inserted by 25 of 1974, s.
3.)
Deputy Registrars
7. -(1) The
Minister may appoint Deputy Registrars of Titles and such other officers as may
be necessary for carrying out the provisions
of this Act.
(2) Whenever by
any law in force in Fiji anything is appointed to be done by the Registrar the
same may lawfully be done by any Deputy
Registrar.
Seal
8.-(1) The
Registrar shall cause to be kept a seal of office, and all certificates of title
and other documents purporting to be sealed
with such seal and signed by the
Registrar or a Deputy Registrar shall be admissible in evidence without further
proof.
(2) All courts, judges and persons acting judicially shall take
judicial notice of the signature of the Registrar of Titles and of
any Deputy
Registrar of Titles.
Suitable premises to be provided
9. There shall be
provided and maintained in proper repair at the public expense substantial and
fireproof premises to serve as the
place of deposit and preservation of the
registers and all other documents connected with the registration of titles, and
such premises
shall be equipped with such fireproof safes, strong-rooms and
other secure places as may be necessary.
PART
IV-CROWN GRANTS, CERTIFICATES
OF
TITLE AND. REGISTRATION
Crown grants
10.-(1) Crown
grants of land in Fiji shall be grants in fee simple. Every grant in addition to
proper words of description shall contain
a diagram of the land. Each Crown
grant shall be prepared in duplicate and shall be delivered by the Director of
Lands to the Registrar,
who shall register the grant in manner hereinafter
provided and deliver the duplicate to the proprietor named therein.
(2)
The Minister may issue a Crown grant of any whole island in any part of Fiji
without a diagram of such island being contained
in such Crown
grant:
Provided that-
(a) whenever any such island has been accurately surveyed and laid down on charts, maps or plans, the Director of Lands shall call in the duplicate Crown grant and add thereto a plan or diagram of the island and also add the same to the original Crown grant in the register, and the Registrar shall produce such original Crown grant for that purpose; and
(b) where any such island has been transferred before it has been accurately surveyed and laid down on charts, maps or plans the provisions of this section with regard to adding the plan or diagram to the Crown grant shall equally apply to the certificate of title in the name of the first or any subsequent transferee.
Certificate of title
11. When a Crown
grant is cancelled upon registration of a transfer or other dealing as
hereinafter provided, the Registrar shall issue
in duplicate a certificate of
title in favour of the new proprietor in the prescribed form, the original of
which he shall register
in the same manner as provided for Crown grants and the
duplicate he shall deliver to the new proprietor; and in like manner upon
the
cancellation of each certificate of title a fresh certificate of title shall be
issued, and the title of the proprietor under
each fresh certificate shall be as
valid and effectual in every respect as if he had been the original grantee of
the land contained
in the certificate.
Power to combine certificates
12. Upon the
application in writing of the proprietor of any land the subject of separate
grants or certificates and upon such proprietor
delivering up the duplicates of
all such grants and certificates, the Registrar may, subject to the other
provisions of this Act
and to the provisions of any Act relating to the
subdivision of land, issue in place thereof a single certificate of title in
favour
of such proprietor for the whole of such land, and upon the issue of such
new certificate shall-
(a) endorse thereon all memorials to which such land or any part thereof may, at that time, be subject; and
(b) cancel the previous grants or certificates endorsing thereon a memorandum of the reasons for such cancellation and a reference to the new certificate of title issued in place thereof.
Power to divide certificates
13. Upon the
application in writing of the proprietor of any land the subject of a grant or
certificate of title and upon such proprietor
delivering up the duplicate of
such grant or certificate, the Registrar may in accordance with the application
issue in place thereof,
either-
(a) separate certificates of title in favour of such proprietor for each portion of such land, and upon the issue of such new certificate shall-
(i) endorse on each such certificate all memorials to which the land included therein may, at that time, be subject; and
(ii) cancel the previous grant or certificate endorsing thereon a memorandum of the reasons for such cancellation and a reference to the new certificate of title issued in place thereof; or
(b) a separate certificate of title in favour of such proprietor for any portion of such land, and upon the issue of such new certificate shall-
(i) endorse thereon all memorials to which the land included therein may, at that time, be subject;
(ii) endorse on the certificate of title relating to the land from which such part is taken, a memorandum partially cancelling such grant or certificate; and
(iii) either retain the duplicate of such partially cancelled grant or certificate or return the same to the proprietor, and shall when so required by the proprietor of the land the subject of such partially cancelled grant or certificate, issue a new certificate of title in favour of such proprietor for the balance of the land the subject of such partially cancelled grant or certificate, and complete the cancellation of such partially cancelled grant or certificate endorsing thereon a memorandum of the reasons for such cancellation and a reference to the new certificate of title issued in place thereof.
Power of Registrar to require the proprietor to take out a fresh certificate
14. The Registrar
may, on or before the registration of any instrument, require the proprietor of
any land to take out a new certificate
of title or several new certificates of
title, or he may require such proprietor to combine several certificates of
title in one
new certificate of title.
Proprietor entitled to certificate of title
15. The
proprietor of any land shall be entitled to the issue of a certificate of title
in respect of such land and, if any certificate
be issued in favour of a person
under disability, the Registrar shall state, in such certificate, the date of
birth of the minor
or the nature of the disability so far as it is known to
him.
Power to issue new certificate of title
16.-(1) The
Registrar may, on delivery to him of a duplicate Crown grant or certificate of
title and on the application of the proprietor,
cancel the existing grant or
certificate and issue a new certificate of title in place thereof.
(2)
Where the Registrar is of the opinion that, because a Crown grant or certificate
of title has become defaced or illegible or has
no convenient space for further
endorsements, such grant or certificate should be replaced, he may-
(a) require the proprietor to apply for a new certificate of title; and
(b) retain the duplicate grant or certificate required to be replaced until the issue of a new certificate of title and on such issue cancel the replaced grant or certificate.
History of dealings to be preserved
17. The Registrar
shall cause to be noted on the register and on all instruments registered under
the provisions of this Act, such references
as will enable the title to be
traced either prior or subsequent to the original instrument of title.
Instrument of title to be evidence of proprietorship
18. Every
duplicate instrument of title duly authenticated under the hand and seal of the
Registrar shall be received in all courts
as evidence of the particulars
contained in or endorsed upon such instrument and of such particulars being
entered in the register
and shall, unless the contrary be proved by the
production of the register or a certified copy thereof, be conclusive evidence
that
the person named in such instrument or in any entry thereon as seised of or
as taking an estate or interest in the land described
in such instrument is
seised or possessed of such land for the estate or interest so specified as from
the date of such certificate
or as from the date from which such estate or
interest is expressed to take effect.
Register of Titles
19. The Registrar
shall keep books, to be called the "Register of Titles", and shall bind up
therein the originals of all instruments
of title to be issued as hereinafter
provided, and each instrument of title shall constitute a separate folium of the
book in which
such instrument is entered and the Registrar shall record, by
entering a memorial thereof on the folium constituted by each such
instrument of
title, the particulars of every other instrument, dealing or matter affecting
the same and which is required by the
provisions of this Act or entered in the
register.
Presentation Book
20. The Registrar
shall also keep a book, to be called the "Presentation Book", in which shall be
entered by a short description every
instrument which is presented for
registration with the day and hour and, if required by the person presenting the
instrument, the
minute of presentation; and, for purposes of priority only, the
time of registration, notwithstanding the provisions of section 21,
shall be
deemed to relate back to the time of presentation for registration. The
Registrar in entering memorials upon the instruments
of title embodied in the
register and endorsing a memorandum upon an instrument to be issued shall take
the time from the Presentation
Book as the time of registration.
Registration of instruments of title
21.-(1) Every
instrument of title shall be deemed and taken to be registered under the
provisions and for the purposes of this Act as
soon as the same has been signed
by the Registrar and marked with a serial number in the register, and every
instrument purporting
to transfer or in any way to affect land subject to the
provisions of this Act, or any estate or interest therein, shall be deemed
to be
so registered as soon as a memorial thereof as herein described has been entered
in the register upon the folium constituted
by each existing instrument of title
affected by such dealing.
(2) The person named in any instrument of
title or other instrument registered as provided in subsection (1) as the
proprietor or
as becoming a proprietor, of land subject to the provisions of
this Act, or of any estate or interest therein, shall be deemed and
taken to be
the duly registered proprietor thereof.
Instrument valid though proprietor not then registered
22. No instrument
purporting to deal with any land subject to the provisions of this Act, or any
estate or interest therein, shall be
or be deemed to have been invalid or
ineffectual by reason only that the same purports to have been executed at a
time when the person
executing the same was not actually registered as the
proprietor of such land or of such estate or interest therein.
Priority of registration to give priority of title
23. Except as
otherwise provided in this Act, every instrument presented for registration
shall, unless it is a Crown grant, be attested
by one witness, and shall be
registered in the order of time in which the same is presented for that purpose,
and instruments registered
in respect of or affecting the, same estate or
interest shall, notwithstanding any express, implied or constructive notice, be
entitled
to priority according to the date of each registration and not
according to the date of each instrument itself, and the Registrar,
upon
registration thereof, shall enter a memorial of the same in the register and, if
such instrument is in duplicate as herein provided,
he shall deliver the
duplicate to the person entitled thereto, and as soon as it has been registered,
every instrument shall, for
the purposes of this Act, be deemed to be embodied
in the register as part and parcel thereof.
Memorial of registration
24. Every
memorial entered in the register shall state the nature of the instrument to
which it relates, the day and hour of the presentation
of such instrument for
registration, and such other particulars as the Registrar may direct, and shall
refer by number or symbol
to such instrument, and shall be signed by the
Registrar.
Memorial to be endorsed on duplicate instrument, and certificate of time of registration to be endorsed one very instrument so registered
25. Whenever a
memorial of any instrument has been entered in the register, the Registrar
shall, except as herein otherwise provided,
endorse the like memorial on each
duplicate grant, certificate of title or other instrument affected thereby,
unless he dispenses
with production of the same, as hereinafter provided; and
the Registrar shall endorse on every instrument so registered a certificate
of
the time at which the instrument was presented for registration and shall
authenticate each such certificate by signing his name
and affixing his seal
thereto, and such certificate shall be received in all courts as conclusive
evidence that such instrument has
been duly registered.
Power of Registrar to dispense with the production of duplicate grant or other instrument
26. The Registrar
may dispense with the production of the duplicate of any grant, certificate of
title, or other instrument for the
purpose of endorsing the memorial required by
the provisions of section 25 to be endorsed thereon and, upon the registration
of any
instrument affecting the same, the Registrar shall state in the memorial
entered in the register in respect thereof that no endorsement
of such memorial
has been made on the duplicate grant, certificate of title or other instrument,
and the dealing effected thereby
shall thereupon be as valid and effectual as if
such memorial had been so entered:
Provided that, before registering such
instrument, the Registrar shall require the party presenting the same for a
registration to
make a declaration that such grant, certificate of title or
other instrument has not been deposited by way of lien or as security
for any
loan or other liability, and shall give at least fourteen days' notice in the
Gazette and in one newspaper published and
circulating in Fiji of his intention
to register such dealing.
Substitution for lost or defaced instrument
27.-(1)
Where the Registrar is satisfied that any original instrument of title in
the register has been lost or destroyed or has become defaced
or illegible he
may cause another instrument to be prepared and to be endorsed with all the
entries made on the original instrument
so far as can be ascertained from the
records on the register and from an inspection of the duplicate or such other
evidence as may
be available as to the contents of the original.
(2) When
the Registrar has caused a new instrument of title to be prepared in accordance
with the provisions of subsection (1) he
shall cause to be made and sign a
memorandum on such instrument stating that it is a substitute instrument to be
used in place of
the original and showing what has become of the original so far
as is known to him and, on and after the date of such signature,
the substitute
shall be bound in the register book and used in place of the original for the
purpose of all dealings.
Case of lost duplicate instrument
28.-(1)
In the event of any duplicate instrument of title being lost or
destroyed, the proprietor of the land, estate or interest to
which such instrument relates,
together with other persons, if any, having knowledge of the circumstances, may
make a statutory declaration
stating to the best of the declarant's knowledge
and belief, the facts of the case, the names and descriptions of the registered
owners, and the particulars of all encumbrances and other matters affecting such
instrument and the land, estate or interest to
which it relates, and the Registrar,
if satisfied as to the truth of such declaration and the bona fides of the
transaction, may issue to
such proprietor a special duplicate instrument of
title, which special instrument shall contain an exact copy of the original
instrument
of title bound up in the register and of every memorial entered or
endorsed thereon and shall also contain a statement why such special
duplicate
instrument was issued, and the Registrar shall at the same time enter on the
original instrument notice of the issuing
of each special duplicate instrument
and the date thereof and why it was issued, and such special duplicate
instrument shall be available
for all purposes and uses for which the duplicate
instrument of title so lost or destroyed would have been available and as valid
to all intents as such lost instrument:
Provided that the Registrar
before issuing such special duplicate instrument shall give at least fourteen
days' notice of his intention
so to do in the Gazette and in one newspaper
published and circulating in Fiji.
(2) In the event of a special
duplicate instrument of title being issued under the provisions of subsection
(1) and of the duplicate
instrument being at any time thereafter found or
recovered, such duplicate instrument shall forthwith be lodged, by the person
who
finds or recovers it, with the Registrar who shall cause such duplicate
instrument to be cancelled.
(3) If, in the circumstances specified in
subsection (2), the duplicate instrument of title is not lodged with the
Registrar for cancellation,
such duplicate instrument shall, by virtue of the
issue of the special duplicate instrument, become null and void and cease to
have
any value or effect in relation to the land comprised therein.
Merger how registered
29. When the
proprietor of any estate or interest in land becomes also the proprietor of a
less or greater estate or interest in the
same land so that a merger occurs in
law and in equity he may make application to the Registrar to note the merger
and produce the
duplicates of both instruments of title, and the Registrar shall
thereupon make an entry in the register of the merger and shall
cancel the
instrument of title which merges in the greater title.
Search certificates
30.-(1)
Where any person desires information as to whether a proprietor is able
to deal with the land, estate or interest comprised in his
instrument of title
free from any caveat, instrument presented for registration, order, injunction
or other cause known to the Registrar
but not appearing on the instrument of
title, such person may apply, in the prescribed manner and on payment of the
prescribed fee,
for a search certificate.
(2) Before issuing a search
certificate under the provisions of subsection (1), the Registrar shall cause
the necessary searches and
inquiries to be made relating to the subject of the
application and shall certify the result of such searches and inquiries in the
prescribed form and manner.
Applicant for search certificate may inspect instrument of title
31. A search
certificate issued under the provisions of section
30 shall refer to the dealing or
encumbrance last noted on the instrument of title in order to show the state of
the register at the
time of such issue but not for the purpose of informing the
applicant for such search certificate as to the contents of, or endorsements
on,
the instrument of title. Such applicant may inspect the instrument of title and
shall be deemed to have knowledge of all that
which such an inspection would
have revealed.
Stay of registration of dealings on issue of search certificate
32.-(1) Any
person proposing to deal with the proprietor of any land, or any estate or
interest therein may, at the time of making an
application for a search
certificate under the provisions of section
30, with the consent in writing of such
proprietor or his agent authorized in writing in that behalf and on stating the
particulars
of such dealing, apply in the prescribed manner for a stay of
registration of any instrument affecting the land, estate or interest
proposed
to be dealt with, for a period of forty-eight hours from the time of issue of
such search certificate; and, if the result
of the search certificate shows that
such proprietor is able to deal with such land, estate or interest, the
Registrar shall, on
payment of the prescribed fees, sign an order in the
prescribed form staying registration of any instrument affecting the land,
estate
or interest proposed to be affected by such dealing, for a period of
forty-eight hours from the time of issue of the search certificate;
and such
order shall be affixed to the search certificate and a copy thereof given to the
applicant.
(2) If a properly perfected instrument effecting the proposed
dealing be duly presented for registration within such period of forty-eight
hours, such instrument shall have priority over any other instrument which may
be presented for registration after the time of issue
of the search certificate
and shall be registered notwithstanding any caveat, copy of writ or application
by any assignee in bankruptcy
which have been lodged after the time of issue of
such search certificate.
(3) Subject to the presentation of such duly
perfected instrument within such period any other instrument and any caveat,
copy writ
or application received during such period shall be dealt with in the
same manner and shall have the same priority as between themselves
and shall be
as effectual as if no stay of registration had been obtained.
Instruments when presented together
33. Should two or
more instruments executed by the same proprietor and purporting to transfer or
encumber the same estate or interest
or any portion thereof in any land be
presented at the same time to the Registrar for registration, he shall register
the instrument
presented by the person producing the duplicate instrument of
title to the estate or interest purported to be dealt with.
Co-ownership
34.-(1)
Subject to the provisions of any law for the time being in force relating
to trusts and to the provisions of Part XV, unless the contrary
intention is
expressed in the instrument of title, where two or more persons are registered
as proprietors of any estate or interest
in land subject to the provisions of
this Act, they shall be deemed to be entitled to the same as tenants in common,
and on the death
of any one of such proprietors there shall be no right of
survivorship in the other or others and the share of such deceased proprietor
shall pass to his personal representative.
(2) Where two or more person
are entitled as tenants in common to any estate or interest in land subject to
the provisions of this
Act, they shall unless the contrary intention is
expressed in the instrument of title, be deemed to hold the same in undivided
equal
shares.
Registrar to be guided by provisions of Act
35.-(1)
The Registrar shall not register any instrument purporting to transfer or
otherwise to deal with or affect any estate or interest
in land subject to the
provisions of this Act, except in the manner provided in this Act or unless such
instrument is in the form
prescribed under the provisions of this
Act.
(2) The Registrar shall have power to reject any instrument that he
considers unfit for registration.
Register to be open to search
36. Any person
may, upon payment of the prescribed fee, have access to the register for the
purpose of inspection during such hours and
upon such days as the office of the
Registrar is open for public business.
PART V-EFFECT OF REGISTRATION
Instrument not effectual until registered
37. No instrument
until registered in accordance with the provisions of this Act shall be
effectual to create, vary, extinguish or pass
any estate or interest or
encumbrance in, on or over any land subject to the provisions of this Act, but
upon registration the estate
or interest or encumbrance shall be created,
varied, extinguished or passed in the manner and subject to the covenants and
conditions
expressed or implied in the instrument.
Registered instrument to be conclusive evidence of title
38. No instrument
of title registered under the provisions of this Act shall be impeached or
defeasible by reason or on account of any
informality or in any application or
document or in any proceedings previous to the registration of the instrument of
title.
Estate of registered proprietor paramount, and his title guaranteed
39.-(1)
Notwithstanding the existence in any other person of any estate or
interest, whether derived by grant from the Crown or otherwise,
which but for
this Act might be held to be paramount or to have priority, the registered
proprietor of any land subject to the provisions
of this Act, or of any estate
or interest therein, shall, except in case of fraud, hold the same subject to
such encumbrances as
may be notified on the folium of the register, constituted
by the instrument of title thereto, but absolutely free from all other
encumbrances whatsoever except-
(a) the estate or interest of a proprietor claiming the same land, estate or interest under a prior instrument of title registered under the provisions of this Act; and
(b) so far as regards any portion of land that may by wrong description or parcels or of boundaries be erroneously included in the instrument of title of the registered proprietor not being a purchaser or mortgagee for value or deriving title from a purchaser or mortgagee for value; and
(c) any reservations, exceptions, conditions and powers contained in the original grant.
(2) Subject to the provisions of Part
XIII, no estate or interest in any land subject to the provisions of this Act
shall be acquired
by possession or user adversely to or in derogation of the
title of any person registered as the proprietor of any estate or interest
in
such land under the provisions of this Act.
'
Purchaser not affected by notice
40. Except in the
case of fraud, no person contracting or dealing with or taking or proposing to
take a transfer from the proprietor
of any estate or interest in land subject to
the provisions of this Act shall be required or in any manner concerned to
inquire or
ascertain the circumstances in or the consideration for which such
proprietor or in any previous proprietor of such estate or interest
is or was
registered, onto see to the application of the purchase money or any part
thereof, or shall be affected by notice, direct
or constructive, of any trust or
unregistered interest, any rule of law or equity to the contrary
notwithstanding, and the knowledge
that any such trust or unregistered interest
is in existence shall not of itself be imputed as fraud.
Instrument etc, void for fraud
41. Any
instrument of title or entry, alteration, removal or cancellation in the
register procured or made by fraud shall be void as
against any person defrauded
or sought to be defrauded thereby and no party or privy to the fraud shall take
any benefit therefrom.
Proprietors protected against ejectment
42.-(1)
No action for possession, or other action for the recovery of any land
subject to the provisions of this Act, or any estate or interest
therein, shall
lie or be sustained against the proprietor in respect of the estate or interest
of which he is registered, except
in any of the following cases:-
(a) the case of a mortgagee as against a mortgagor in default;
(b) the case of a lessor as against a lessee in default;
(c) the case of a person deprived of any land, estate or interest by fraud, as against the person registered as proprietor of that land, estate or interest through fraud, or as against a person deriving otherwise than as a transferee bona fide for value from or through a person so registered through fraud;
(d) the case of a person deprived of or claiming any estate or interest in land included in any grant or certificate of title of other land by misdescription of that other land, or of its boundaries, as against the proprietor of any estate or interest in the other land, not being a transferee or deriving from or through a transferee thereof bona fide for value;
(e) the case of a proprietor claiming under an instrument of title prior in date of registration, in any case in which two or more grants or two or more instruments of title, may be registered under the provisions of this Act in respect of the same land, estate or interest.
(2) In any case other than as
aforesaid, the production of the register or of a certified copy thereof shall
be held in every court
of law or equity to be an absolute bar and estoppel to
any such action against the registered proprietor of the land, estate or
interest
the subject of the action, any rule of law or equity to the contrary
notwithstanding.
(3) Nothing in this Act contained shall be so
interpreted as to leave subject to an action of ejectment or for recovery of
damages
or for deprivation of the estate or interest in respect of which he is
registered as proprietor any bona fide purchaser for valuable
consideration of
any land subject to the provisions of this Act, or any estate or interest
therein, on the ground that the proprietor
through or under whom he claims was
registered as proprietor through fraud or error or has derived from or through a
person registered
as proprietor through fraud or error; and this whether such
fraud or error consists in wrong description of the boundaries or of
the parcels
of any land or otherwise howsoever.
Instrument of title issued in name of deceased proprietor not void
43. If any
instrument of title is issued in the name of a person who has previously died,
the instrument shall not be void, but the interest
of such deceased person in
the estate or interest in land the subject of such instrument shall devolve in
like manner as if such
instrument had been issued immediately prior to his
death.
PART VI-TRANSFERS
Transfers
44.-(1)
The proprietor of any land subject to the provisions of this Act, or of
any estate or interest therein, may transfer the same by executing
a transfer in
the prescribed form, which transfer shall, for description of the land intended
to be dealt with, refer to the instrument
to the land, with such further
description as may be necessary, and shall contain a precise statement of the
estate or interest intended
to be transferred.
(2) Transfers shall be
registered in the prescribed manner and transferees shall have priority
according to the date and time of registration.
(3) Upon the registration
of a transfer, the estate and interest of the transferor as set forth in the
instrument of transfer, with
all rights, powers and privileges thereof belonging
or appertaining, shall pass to the transferee, and the transferee shall
thereupon
become the proprietor thereof and shall be subject to and liable for
all requirements and liabilities to which he would have been
subject and liable
if he had been the former proprietor of such estate or interest.
(4) By
virtue of the registration of a transfer of a mortgage or lease the right to sue
upon the mortgage or lease and to recover
any debt, sum of money, annuity, or
damages thereunder (notwithstanding that the same may be deemed or held to
constitute a chose
in action), and all interest in any such debt, sum of money,
annuity, or damages shall be transferred so as to vest the same at law
as well
as in equity in the transferee thereof:
Provided that nothing in this
section shall prevent a court of competent jurisdiction from giving effect to
any trusts affecting the
said debt, sum of money, annuity, or damages in case
the transferee holds the same as a trustee for any other person.
Procedure in case of transfer of land
45. If a transfer
purports to transfer the whole or part of the land mentioned in any grant or
certificate of title, the transferor
shall deliver up the duplicate grant or
certificate of title of the land, and the Registrar shall, when registering the
transfer,
enter in the register and on the duplicate grant or certificate of
title a memorial cancelling the same as to the whole, or partially
according as
the transfer purports to transfer the whole, or part, of the land mentioned in
such grant or certificate of title:
Provided that-
(a) if the whole of the land mentioned in any grant or certificate of title is transferred, the Registrar may, instead of cancelling such grant or certificate, enter in the register and on the duplicate grant of or certificate of title a memorial of such transfer and deliver the duplicate to the transferee;
(b) in the case of a transfer to tenants in common, the Registrar may, and shall if the transferees so desire, issue separate certificates of title in favour of each of the transferees for their respective shares, or may issue one certificate of title for the whole of their interests, or the Registrar may enter in the register a memorial of such transfer and deliver the duplicate certificate of title or grant to the transferees;
(c) in the case of a cancellation of a tenancy in common by transfer from tenants in common holding separate titles for their respective shares, the Registrar shall cancel the said certificates of title and issue a fresh certificate of title in favour of the transferee.
When new certificate of title to be issued
46. The
Registrar, upon cancelling any grant or certificate of title either wholly or
partially pursuant to any transfer, shall issue
in favour of the transferee a
certificate of title to the land mentioned in such transfer, and every such
certificate of title shall
refer to the original grant of such land and to the
instrument of transfer, and the Registrar shall retain every transfer and
cancelled
or partially cancelled grant or certificate of title and, whenever
required thereto by the proprietor of an unsold portion or balance
of the land
included in any such partially cancelled grant or certificate of title or by a
registered transferee of such portion
or of any part thereof, shall issue in
favour of such proprietor or transferee a certificate of title for the whole of
such portion
or any part thereof of which he is the proprietor or
transferee.
PART VII-RESTRICTIVE COVENANTS
Creation of restrictive covenants
47.-(1)
Restrictive covenants may be created and made binding in respect of land
subject to the provisions of this Act, so far as the law
permits, by instruments
in such form as may be approved by the Registrar, but no such covenant affecting
land subject to a mortgage,
lease or other encumbrance shall be binding against
a registered proprietor of such mortgage, lease or other encumbrance unless he
has consented in writing thereto prior to the same being registered.
(2)
Upon the registration of any instrument creating a restrictive covenant, it
shall not be obligatory on the Registrar to make any
entry relating thereto on
the instrument of title of any person entitled to the benefit
thereof.
(3) Where a restrictive covenant is entered into with the
consent in writing of a mortgagee, lessee or other encumbrancee the Registrar
shall also enter a notification of such consent on the original and duplicate
instrument of title to such mortgage, lease or other
encumbrance as the case may
be.
(4) A notification on a certificate of title of a restriction created
by a restrictive covenant shall not give the restriction any
greater operation
than it has under the instrument creating.
Discharge or modification of restrictive covenants
48.-(1)
Notwithstanding any other of the provisions of this Act to the contrary,
any covenant or agreement affecting or restricting the use
of land may be wholly
or partially discharged or modified by agreement by all persons interested in
the land affected by such covenant
or agreement consenting to such discharge or
modification.
(2) The Registrar shall, when satisfied that all parties
interested have agreed to the discharge or modification of any covenant entered
in the register, cause to be made an entry or memorandum of such discharge or
modification in the register.
PART VIII-EASEMENTS AND PROFITS A PRENDRE
Creation of easement and profits
49. Whenever any
easement or profit a prendre is created over any land, the grantor may execute a
grant of easement in the prescribed
form or a profit a prendre in such form as
may be approved by the Registrar and the Registrar shall enter a memorial of the
instrument
creating such easement or profit a prendre upon the folium of the
register constituted by the existing grant, certificate of title
or lease of the
grantor, and, except where an easement or profit a prendre is in gross, the
Registrar shall also enter a memorial
upon the folium of the register
constituted by the existing grant, certificate of title or lease of land to
which the easement is
annexed or with which it is used and enjoyed.
Consent of mortgagee, lessee or encumbrancee to easement or profit
50. No easement
or profit a prendre shall be binding against the proprietor of any prior
registered mortgage, lease or other encumbrance
unless he has consented to such
easement or profit a prendre prior to the same being registered.
Surrender of easements and profits
51. When any
easement or profit a prendre is surrendered in whole or in part, the proprietor
of the dominant tenement with the consent
of every person appearing by the
register to have an interest therein shall execute a surrender and upon
production of the surrender
to the Registrar, he shall cancel the easement or
profit a prendre or the part thereof surrendered by endorsing a memorial to that
effect on the original and duplicate instruments of title affected by such
surrender:
Provided that if any easement or profit a prendre or the
dominant tenement thereof is subject to any encumbrance, the easement or
profit
a prendre shall not be surrendered without the consent of the
encumbrancee.
Variation of easements and profits
52.-(1) Any term,
covenant or condition of any easement or profit a prendre registered or created
under the provisions of this Act may
be varied, negatived or added to by a
memorandum of variation in such form as may be approved by the Registrar,
executed by the registered
proprietor of the servient tenement and by the
registered proprietor of the dominant tenement or, in the case of an easement or
profit
a prendre in gross, by the registered proprietor of the servient tenement
and by the registered proprietor of the easement or profit
a prendre, and
registered before the expiry of the then current term of the easement or profit
a prendre.
(2) A memorandum of variation of an easement or profit a
prendre may be registered in like manner as the instrument creating the easement
or profit a prendre.
(3) If the dominant tenement or servient tenement or
easement or profit a prendre is subject to any encumbrance, the easement or
profit
a prendre shall not be varied by a memorandum of variation under this
section without the consent in writing of the encumbrancee.
(4) The
consent of the encumbrancee to the variation shall render the memorandum of
variation binding on him and on all persons who
may subsequently derive from him
any interest in the servient tenement or dominant tenement or easement or profit
a prendre.
PART
IX-DISCHARGE AND MODIFICATION BY COURT
OF
RESTRICTIONS AND
EASEMENTS
Discharge or modification by court of restrictions and easements
53.-(1)
Where land subject to the provisions of this Act, or any estate or
interest therein, is subject to any easement or restriction arising
under
covenant or otherwise as to the user thereof or the right of building thereon,
the court may, from time to time, on the application
of any person interested in
the land, by order wholly or partially discharge or modify the easement or
restriction upon being satisfied-
(a) that by reason of any change in the user of any land to which the easement or the benefit of the restriction is annexed or in the character of the property or the neighbourhood or other circumstances of the case which the court may deem material, the easement or restriction ought to be deemed to have been abandoned or to be obsolete or that the continued existence thereof would impede the reasonable user of the land subject to the easement or restriction without securing practical benefits to other persons or, as the case may be, would, unless modified, so impede such user; or
(b) 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 in respect of any estate or interest in the land to which the easement or the benefit of the restriction is annexed have agreed to the easement or restriction being discharged or modified or by their acts or omissions may reasonably be considered to have abandoned the easement or waived the benefit of the restriction wholly or in part; or
(c) that the proposed discharge or modification will not substantially injure the persons entitled to the easement or the benefit of the restriction.
(2) When
any proceedings by suit or otherwise are instituted to enforce an easement or a
restrictive covenant affecting land subject
to the provisions of this
Act, or
any estate or interest therein, any persons against whom the proceedings are
instituted may in such proceedings apply to the
court for an order under the
provisions of this section.
(3) Notice of any application under the
provisions of this section shall, if the court so directs be given to the
Director of Lands
and to such other persons or bodies and in such manner whether
by advertisement or otherwise as the court either generally or in
a particular
instance may order.
(4) An order under the provisions of this section
shall, when registered in accordance with the provisions of this Act, be binding
on all persons whether of full age and capacity or not then entitled or
thereafter becoming entitled to the easement, or interested
or thereafter
becoming interested in enforcing the restriction, which is thereby discharged,
modified or dealt with and whether such
persons are parties to the proceedings
or have been served with notice or not.
(5) The provisions of this
section shall apply to easements and restrictions whether subsisting at the
commencement of this Act or
imposed thereafter.
(6) The Registrar shall,
on application being made to him to that effect, make all necessary amendments
and entries in the register
for giving effect to such order in respect of all
instruments of title specified therein.
(7) The costs of and incidental
to an application to the court made pursuant to the provisions of this section,
shall not be awarded
against the defendant or respondent in any event.
PART X-LEASES
Form and registration of leases
54.-(1) When any
land is intended to be leased or demised for a life or lives or for any term
exceeding one year, the proprietor shall
execute in duplicate a lease in the
prescribed form which shall be registered in accordance with the provisions of
this Act, and
every such instrument shall, for description of land intended to
be dealt with, refer to the instrument of title of the lessor, and
shall give
such description as may be necessary to identify the land, and shall contain an
accurate statement of the land intended
to be leased.
(2) A lease
executed in the prescribed form may be registered notwithstanding that the term
thereof is for one year or less, but any
lease which shall have been granted for
a term not exceeding one year shall be valid without
registration:
Provided that no right or covenant to purchase the land
contained in any lease shall be valid as against any subsequent purchaser
of the
reversion unless such lease be registered.
Consent of mortgagee
55. No lease of
mortgaged land shall be binding upon the mortgagee unless he has consented to
such lease prior to the same being registered,
and a memorial of such lease
shall thereupon be endorsed by the Registrar on the original and duplicate
instruments of such mortgage:
Provided that the mortgagee shall not
withhold his consent unreasonably having regard to all the circumstances, and,
in the event
of any dispute arising, the mortgagor may, by originating summons,
refer the matter to the court and the court may make such directions
in the
premises as the justice of the case may require, including the payment of the
costs of the application.
Covenant not to transfer or sublet
56. Whenever
there is contained in any lease a covenant restricting or limiting the right of
the lessee to transfer or sublet, the Registrar
shall refuse to register a
transfer or sublease which appears to be in breach of such covenant.
Cancellation by Registrar
57. The
Registrar, upon proof to his satisfaction of lawful re-entry and recovery of
possession by a lessor either by process of law
or in conformity with the
provisions for re-entry contained or implied in the lease, shall cancel the
original of such lease and
enter a memorial to that effect in the register, and
the estate of the lessee in such land shall thereupon determine but without
releasing the lessee from his liability in respect of the breach of any covenant
in such lease expressed or implied, and the Registrar
shall cancel the duplicate
of such lease if delivered up to him for that purpose:
Provided
that-
(a) where the right of re-entry is based upon the non-payment of rent only, the Registrar shall, where any person other than the lessee has a registered interest in the lease, give notice to such other person at his address appearing in the register to pay the rent in arrear and, if the same is paid within one month from the date of the said notice, then the Registrar shall not cancel the original or duplicate of such lease; and
(b) unless the re-entry and recovery of possession have been by formal process of law, the Registrar shall require notice of application to register the same to be served on all persons interested under the lease, or, failing such notice, shall give at least one calendar month's notice of the application by publication in the Gazette and in one newspaper published and circulating in Fiji before making any entry in the register.
Variation
58. If the lessor
and lessee agree to a variation of the rental or of any of the covenants,
conditions or restrictions contained or
implied in any lease, or to an extension
of the term thereof, they may execute a memorandum of variation or extension of
the term
of the lease, and upon such memorandum being presented to the Registrar
he shall enter a memorial of such variation or extension
in the register, and
such variation shall have the same effect as if the same were expressed in the
original lease:
Provided that where a re-assessment of the rent payable
under the provisions of a Crown lease or of a native lease has taken place
in
accordance with the terms of such a lease, it shall not be necessary for the
lessee to produce the duplicate of such lease to
the Registrar for the
endorsement thereon of a memorial.
Consent to variation
59. No variation
or extension of a lease shall be binding against a mortgagee, of the land the
subject of the lease whose mortgage was
registered prior to the registration of
such variation or extension, unless such mortgagee has consented thereto prior
to the same
being registered.
Bringing down encumbrances on registration of new lease
60.-(1) Where in
the case of a lease which is registered under the provisions of this Act and is
subject to any encumbrances appearing
in the register, a new lease is registered
against the same land and the Registrar is satisfied that-
(a) it is in renewal of or in substitution for a lease previously registered;
(b) the lessee is the person registered as the proprietor of the prior lease at the time of the registration of the new lease or at the time of the expiry or surrender of the prior lease, whichever is the earlier, or the personal representative of that person; and
(c) the lessee or the registered proprietor of any encumbrance to which the prior lease was subject at the time of its expiry or surrender or the personal representative of the registered proprietor so requests, the Registrar shall state in the memorial of the new lease that it is in renewal of the prior lease or in substitution for the prior lease, as the case may be.
(2) In every such
case the new lease shall be deemed to be subject to all encumbrances to which
the prior lease is subject at the
time of the registration of the new lease or
at the time of the expiry or surrender of the prior lease, whichever is the
earlier.
(3) For the purposes of subsections (1) and (2) all references
in any Act or in any agreement, deed, instrument, notice or other document
whatsoever to the prior lease or to the estate or interest of the lessee
thereunder shall, unless inconsistent with the context or
with the provisions of
this section, be deemed to be references to the new lease or to the estate or
interest of the lessee thereunder,
as the case may be.
(4) Upon the
registration of a new lease in any case to which subsection (1) applies, the
Registrar shall enter a memorial on the
new lease of all encumbrances to which
it is deemed to be subject as aforesaid in the same order amongst themselves of
their priority
under this Act over the prior lease.
Bringing down encumbrances on acquisition by lessee of fee simple
61.-(1) Where the
proprietor of a lease of any land acquires the fee simple estate in that land,
the Registrar, upon the registration
of the transfer of the fee simple estate to
that lessee or his personal representative, and upon the request so to do by the
transferee
endorsed on or attached to the transfer at the time of its
registration, shall enter a memorial on the certificate of title to the
fee
simple estate in the order among themselves of their priority under this Act of
all the encumbrances to which the lease appeared
by the register to be subject
at the time of expiry of the term of the lease, whichever is the earlier; and
thereupon the certificate
of title to the fee simple estate shall be subject to
those encumbrances.
(2) Notwithstanding anything contained in section
23, any encumbrances, to which the fee
simple estate appeared by the register to be subject at the time of registration
of the transfer
shall have priority over those to which the estate is subject
under the provisions of subsection (1).
(3) Where the Registrar considers
it expedient so to do, he may make such entries in the register and endorsements
on the duplicate
certificate of title as he considers necessary to evidence any
such priorities.
(4) Encumbrances appearing in the register against the
certificate of title to the fee simple estate in any land pursuant to subsection
(1) shall, when so appearing, no longer have effect to prevent the merger of the
leasehold estate in the fee simple estate in respect
of that land.
Surrender of lease how registered
62. Whenever any
lease registered under the provisions of this Act is intended to be surrendered
in whole or in part, and the surrender
thereof is effected otherwise than by
operation of law or under the provisions of any Act relating to bankruptcy, the
parties may
execute a form of surrender, or partial surrender, as the case may
be, and upon such form being presented to the Registrar he shall
enter a
memorial of the surrender in the register, and thereupon the estate or interest
of the lessee in such land shall vest in
the lessor or in the person in whom,
having regard to intervening circumstances, if any, the land would have vested
if no such lease
had been executed:
Provided that-
(a) in the case of a surrender of the whole of the lease, the form of surrender may be endorsed on the duplicate instrument of such lease;
(b) no lease subject to any mortgage or sublease or other encumbrance shall be surrendered in whole or in part without the consent of the mortgagee, sublessee encumbrancee, as the case may be, of the lease or part thereof intended to be so surrendered, and the Registrar shall endorse on the original and duplicate instruments of such mortgage, sublease or encumbrance the fact of such surrender, and such consent shall operate as a discharge or cancellation of such mortgage, sublease or encumbrance as to the lease or part thereof surrendered, and the Registrar shall enter a memorial of such discharge or cancellation on the instruments of title affected.
PART XI-MORTGAGES
Mortgage to have effect as security only
63. A mortgage
registered in accordance with the provisions of this Act shall have effect as a
security, but shall not operate as a
transfer of the land or of the estate or
interest therein, charged.
Sub-mortgages
64.-(1)
A mortgage subject to a sub-mortgage shall not be discharged, nor shall
the terms thereof be varied, nor shall the power of sale contained
or implied
therein be exercised, without, the consent in writing of the
sub-mortgagee.
(2) The consent of the sub-mortgagee to the variation of
the terms of a mortgage shall render the instrument making the variation
binding
on him and on all persons who may subsequently derive from him any interest in
the mortgage.
Form of mortgage
65.-(1)
A mortgage of land subject to the provisions of this Act, or any estate
or interest therein, shall be in the prescribed form and shall
be executed by
the proprietor in duplicate and shall be registered in accordance with the
provisions of this Act, and every such
instrument shall, for description of the
land intended to be dealt with, refer to the instrument of title to the land,
with such
further description as may be considered necessary by the Registrar
and shall contain a precise statement of the estate or interest
intended to be
charged.
(2) The mortgagee or first mortgagee for the time being shall be
entitled to possession of the instrument of title.
Variation of mortgage
66. In the case
of every mortgage under this Act-
(a) the mortgage may be varied as follows:-
(i) the amount secured by the mortgage may be increased or reduced;
(ii) the rate of interest may be increased or reduced;
(iii) the term or currency of the mortgage may be shortened, extended or renewed;
(iv) the covenants, conditions and powers contained or implied in the mortgage may be varied, negatived or added to; and
(v) unmortgaged land which becomes included in the same certificate of title as land the subject of the mortgage may be included in and made subject to the mortgage by a memorandum in the prescribed form:
Provided that it shall not be necessary for a mortgagor to execute a memorandum of reduction, or for a mortgagee to execute a memorandum of increase, of the mortgage debt or of the rate of interest payable under a mortgage;
(b) the memorandum may include all or any of the matters mentioned in paragraph (a), and in that case the form shall be modified accordingly;
(c) the memorandum may be registered in like manner as the original mortgage;
(d) a memorandum varying a mortgage so as to include unmortgaged land shall be presented for registration at the same time as the application for the new certificate of title combining the unmortgaged land with the land already the subject of the mortgage is presented for registration;
(e) a memorandum or instrument varying the terms or conditions of any mortgage of any land, or of any estate or interest therein subject to a subsequent mortgage shall not be binding on the proprietor of any such subsequent mortgage unless he has consented thereto in writing on the memorandum but that consent shall render the memorandum binding on the mortgagee so consenting, and shall be deemed to be notice to and shall be binding on all persons who may subsequently derive from him any estate or interest in the mortgaged property.
Variation of priority of mortgages
67.
Notwithstanding anything to the contrary contained in section
23, the priority between themselves of
mortgages affecting any land or any estate or interest therein may from time to
time be varied
by a memorandum of priority in the prescribed form and registered
under the provisions of this Act and the following provisions shall
apply:-
(a) the memorandum of priority shall be executed by the mortgagor and also by the mortgagee under every mortgage that, by the memorandum, is postponed to any mortgage over which it previously had priority;
(b) where any mortgage so postponed is subject to a sub-mortgage, the memorandum of priority shall not be effective unless the submortgagee has consented thereto in writing on the memorandum;
(c) Upon the registration of the memorandum of priority, there shall be implied in every mortgage so postponed, except in so far as is otherwise expressed in the memorandum of priority, the covenants, conditions and powers set out in clauses (9), (10), and (11) of the Schedule to the Property Law Act, and also a covenant that any provisions of the postponed mortgage referring to any particular mortgage having priority thereto shall be deemed to refer to any mortgage at any time having priority to the postponed mortgage;
(Cap. 130)
(d) upon the registration of a memorandum of priority, the Registrar shall enter a memorial thereof in the register and endorse a like memorial on any relevant instrument of title:
Provided that no person appearing by
the register to have any estate or interest in the land shall be adversely
affected by a memorandum
registered under the provisions of this section unless
he has consented to the same prior to its being registered.
Discharge of mortgage
68. Upon
presentation to him of a form of discharge signed by the mortgagee and attested
by a witness, discharging any land, or estate
or interest therein, from the
whole or part of the principal sum or other moneys secured by a mortgage, or
discharging any part of
the land, or estate or interest, charged by such
mortgage from the whole of such principal sum or other moneys, the Registrar
shall
make an entry in the register noting that such mortgage is discharged
wholly or partially or that part of the land, or estate or
interest is
discharged as aforesaid, as the case may require, and, upon such entry being so
made, the land, or the estate or interest
therein, or the portion thereof
mentioned or referred to in such endorsement as aforesaid shall cease to be
subject to or liable
for such principal sum or other moneys or, as the case may
be, for the part thereof noted in such entry as discharged:
Provided
that, in the case of a full discharge, the discharge may be endorsed on the
duplicate instrument of such mortgage.
Discharge of mortgage in case of death of annuitant, etc.
69. Upon proof of
the death of the annuitant or of the occurrence of the event or circumstance
upon which, in accordance with the provisions
of any mortgage, the annuity, rent
charge or sum of money thereby secured shall cease to be payable, and upon proof
that all arrears
and interest have been paid, satisfied or discharged, the
Registrar, upon the application of the proprietor, shall enter a memorial
in the
register noting that such annuity or sum of money is satisfied and discharged
and shall cancel such instrument, and upon such
entry being made, the land, or
estate or interest therein, charged shall cease to be subject to or liable for
such annuity, rent
charge or sum of money, and the Registrar shall endorse on
the duplicate instrument of title of the mortgagor a memorandum of the
date on
which such entry was made by him in the register.
How mortgage discharged in absence of the mortgagee from Fiji
70.-{1)
If any mortgagor is entitled to pay off the mortgage money and the
mortgagee is absent from Fiji and there be no person authorized
to give a
receipt to the mortgagor for the mortgage money, the Chief Accountant may
receive such mortgage money with all arrears
of interest then due thereon in
trust for the mortgagee or other person entitled thereto, and thereupon the
interest upon such mortgage
shall cease to run or accrue and the Registrar
shall, upon the application of the mortgagor accompanied by the receipt of the
Chief
Accountant for the amount of such mortgage money and interest, enter a
memorial in the register discharging the mortgage and stating
the time at which
such entry was made, and such entry shall be a valid discharge of such mortgage
and shall have the same force and
effect as is therein given to a like entry
made under the provisions of sections
68 or
69, and the Registrar shall endorse the
like memorial on the duplicate instrument of the title of the mortgagor and also
on the duplicate
instrument of the mortgage, whenever those instruments shall be
brought to him for that purpose.
(2) If it be proved to the satisfaction
of the Registrar that the whole of the moneys payable under a mortgage whether
as principal
or as interest has been paid ,and that the mortgagee or his
transferee is dead or absent from Fiji or cannot be found and there is
no person
in Fiji empowered or authorised to discharge the mortgage on behalf of such
mortgagee or transferee, the Registrar shall
enter a memorial in the register
discharging from such mortgage the land, or estate or interest therein, charged
thereby, stating
the time at which such entry was and such entry shall be a
valid and sufficient discharge from such mortgage, and the Registrar shall
endorse the like memorial on the duplicate instrument of title when produced for
that purpose.
Transfer by mortgagee in exercise of power ,of sale
71. A transfer by
a mortgagee in exercise of the power of sale conferred by the instrument of
mortgage, or by any Act, made in the prescribed
form may be accepted by the
Registrar as sufficient evidence that the power has been duly exercised and he
shall not be bound or
required to call for proof that the power has been
properly exercised.
Effect of registration of transfer signed by the mortgagee
72. Upon the
registration of any transfer executed by a mortgagee in exercise of a power of
sale, the estate and interest of the mortgagor
expressed to be transferred
therein shall pass to and vest in the purchaser freed and discharged from all
liability on account of
such mortgage, or of any other estate or interest except
an estate or interest created by any instrument which has priority over
such
mortgage or which by reason of the consent of the mortgagee is binding on him,
and the purchaser when registered as the proprietor
thereof shall be deemed to
be a transferee of such estate or interest.
Application for foreclosure, how and when made
73.-(1)
Whenever default has been made in payment of the mortgage money and such
default continues for six months after the time for payment
specified in the
mortgage, the mortgagee may make application in writing to the Registrar for an
order for foreclosure.
(2) The application referred to in subsection (1)
shall state-
(a) that default has been made and has been continued for a period of not less that six months;
(b) that the land, or estate or interest therein, the subject of the mortgage has been offered for sale at public auction in compliance with the provisions of section 79 of the Property Law Act, by an auctioneer licensed under the provisions of the Business Licensing Act;
(Cap. 130. Cap. 204)
(c) that amount of the highest bid at the sale referred to in paragraph (b) was insufficient to satisfy the mortgage money together with the expenses of such sale;
(d) that notice in writing of the intention of the mortgagee to make application for foreclosure has been served on the mortgagor, and on every other person appearing by the register to have any right, estate or interest in the mortgaged land, or estate or interest therein, subsequent to the mortgage, by-
(i) being delivered to him personally; or
(ii) in the case of the mortgagor, by being left on the mortgaged land; or
(iii) being sent by registered post addressed to him at the address for service appearing in the register.
(3)
Any application for foreclosure made under the provisions of this section shall
be accompanied by a certificate of the auctioneer
by whom the land, or estate or
interest therein, was put up for sale, and by such other proof as the Registrar
may require testifying
to the correctness of the statements made in the
application and such application shall be effected by a qualified
witness.
Application to be advertised and Registrar to make order and register the mortgagee as proprietor
74. Upon an
application being made in pursuance of the provisions of section
73 the Registrar may cause notice of
such application to be published once in the Gazette and once in each of three
successive weeks
in at least one newspaper published and circulating in Fiji
offering such land, or estate or interest therein, for private sale,
which sale
if effected the mortgagee shall be bound to complete failing which his
application shall be deemed to be withdrawn, and
shall appoint a time not less
than one month from the date of the first of such advertisements upon or after
which the Registrar
shall issue to such applicant an order for foreclosure
unless in the interval a sufficient sum has been obtained by the sale of such
land, or estate or interest therein, to satisfy the principal and interest
moneys secured and all expenses occasioned by such sale
and proceedings, and
every such order for foreclosure under the hand of the Registrar, when entered
in the register, shall have the
effect of vesting in the mortgagee the land, or
estate or interest therein, mentioned in such order free from all right or
equity
of redemption on the part of the mortgagor or of any person claiming
through or under him subsequently to the mortgage, and such
mortgagee shall upon
such entry being made be deemed a transferee of the mortgaged land, or estate or
interest therein, and become
the proprietor thereof and shall be entitled to be
registered as proprietor of the same.
Foreclosure to be in full satisfaction of mortgage money
75.-(1)
On the registration of the mortgagee as proprietor of any land, or estate
or interest therein, under the provisions of section
74, the mortgagee shall be deemed to
have taken such land, or estate or interest, in full satisfaction of the
mortgage money, and his
right or equity to bring any action or take other
proceedings for the recovery of the mortgage money from the debtor, surety or
other
person shall be extinguished, and the right or equity of the mortgagor to
redeem such land, or estate or interest, shall be extinguished.
(2)
Nothing contained in this section shall be deemed to disentitle a mortgagee from
obtaining foreclosure of any other property over
which he holds security by way
of mortgage for the same money or part thereof or to enforce all or any rights,
powers and remedies
expressed or implied in such mortgage, except the right to
sue the mortgagor or any surety for the mortgagor either for the mortgage
money
or on any bill or note given as security for the mortgage money, as if this
section had not been enacted.
PART XII-LIFE ESTATES AND REMAINDERS
Estates for life in reversion or in remainder
76.-(1)
The registered proprietor of land subject to the provisions of this Act,
or of any estate or interest therein, may create and execute
any powers of
appointment or limit any estates, whether by remainder or in reversion or by way
of executory limitation and whether
contingent or otherwise, and for that
purpose may modify or alter any form of transfer
accordingly.
(2) In case of the
limitation of successive interests in accordance with the provisions of
subsection (1), the Registrar may cancel the
grant or certificate evidencing the
title of the transferor and may issue a certificate in the name of the person
entitled to the
freehold estate in possession, for such estate to which he is
entitled, and the persons successively entitled in reversion or in
remainder or
by way of executory limitation shall be entitled to be registered by virtue of
the limitations in their favour in the
instrument expressed, and each such
person upon his estate becoming vested in possession shall, if he so requests,
be entitled to
a separate certificate of title for the same.
PART
XIII-TITLE BY POSSESSION TO
LAND,
AND REMOVAL OF ABANDONED
EASEMENTS
Acquisition of title by virtue of adverse possession prior to commencement of Act
77.-(1)
Subject to the provisions of this Part, no person shall have or acquire
any right, title or interest in any land subject to the provisions
of this Act
or to the possession thereof by virtue of possession adverse of the proprietor
for any period prior to the commencement
of this Act unless within one year from
the commencement of this Act he has made application to the Registrar for a
certificate of
title pursuant to Part IX of the Land (Transfer and Registration)
Ordinance as in force immediately prior to such commencement and
within three
years from that commencement he has obtained a certificate of title to that
land.
(Cap. 136.) (1955 Edition)
(2) The
provisions of this section shall apply notwithstanding any rights which but for
this Act have accrued to any person by reason
of possession of land adverse to
the proprietor.
(3) For the purpose of any application under Part IX of
the Land (Transfer and Registration) Ordinance in respect of part only of
any
land the subject of an existing instrument of title, the plan referred to in
paragraph (e) of section
84 of that Ordinance shall not be
accepted by the Registrar unless it has been approved by the city or town
council in the case of land
included within the boundaries of any city or town
to which the provisions of the Local Government Act apply or in any other case
by the Director of Town and Country Planning under the provisions of the
Subdivision of Land Act.
(Cap 136)(1995 Edition) (Cap 125) (Cap 140) (Amended by 14 of 1975, s. 72)
Application for vesting order
78.-(1)
Where-
(a) Any person is in possession of any land subject to the provisions of this Act, for which a certificate of title has been issued or a Crown grant registered under the provisions of this Act; and
(b) such possession has been continuous for a period of not less than twenty years, and is such that he would have been entitled to an estate in fee simple in the land on the ground of possession if the land had not been subject to the provisions of this Act,
he may apply to the Registrar in the
manner hereinafter provided for an order vesting the land in him for an estate
in fee simple
or for such other estate or interest as may be claimed by
him:-
Provided that, unless such person has been in possession of such
land for a continuous period if not less than thirty years, no such
application
may be made in respect of any land or any part thereof, if the registered
proprietor of, or any person appearing by the
register to be entitled to the
benefit of, any estate or interest therein is under any disability.
(2)
For the purposes of this Part, possession of any land by any other person
through or under whom any person making application
under the provisions of this
section (hereinafter in this Part referred to as "the applicant") claims, shall
be deemed to be possession
by the applicant.
Form of application
79. Every
application made under the provisions of section
78 shall-
(a) be in writing in the prescribed form or in a form to like effect and shall include the several particulars therein mentioned or referred to;
(b) be signed by the applicant or, in the case of a corporation, by a person authorized in that behalf in writing under the seal of the corporation;
(c) be attested by a qualified witness;
(d) be accompanied by a survey plan (with field notes) of the land certified by a registered surveyor:
Provided that the requirements of
this paragraph may be waived in a case where the land the subject of the
application is the whole
of an island.
Powers and duties of Registrar
80.-(1)
On receipt of any application made under the provisions of section
78, the Registrar-
(a) if satisfied that the applicant has been in possession of the land in the manner and for the period therein specified and that the application is otherwise in order, shall accept the application; or
(b) if not so satisfied, may refuse the application either wholly or in part or may, by notice to the applicant, require the applicant to furnish him with such additional information or documents relating to the application as the Registrar thinks fit within such reasonable time as may be specified in such notice.
(2) If-
(a) the applicant fails to comply to the satisfaction of the Registrar with any of the requisitions contained in any notice given under the provisions of paragraph (b) of subsection (1) within the time specified in such notice or within such extended time as the Registrar, in his discretion, may allow; or
(b) after compliance by the applicant with the requisitions contained in such notice, the Registrar is not satisfied that the applicant has been in possession of the land in the manner or for the period specified in section 78 or that the application is otherwise in order,
the
Registrar shall refuse the application either wholly or, as the case may be, as
to the part thereof in respect of which he is
not satisfied as
aforesaid.
(3) If an application is accepted by the Registrar he shall
direct that notice thereof in the prescribed form be-
(a) advertised in the Gazette and at least twice at such intervals and in such one or more newspapers as he thinks fit, including at least one newspaper circulating in the locality in which the land is situated; and
(b) served on every person who appears by the register to have, or who in the opinion of the Registrar has or may have, any estate or interest, or any claim to have any estate or interest, in the land or any part thereof; and
(c) published in such other manner, or served on such other persons, as the Registrar may direct; and
(d) posted in a conspicuous place on the land or at such other place as the Registrar may direct and kept so posted for a period of not less than twenty-one days before the expiration of the time appointed under the provisions of paragraph (b) of subsection (1) of section 81.
Notice
81.-(1)
Every notice required under the provisions of subsection (3) of section
80 shall-
(a) specify the number of every grant or certificate of title affected by the application and of every mortgage, lease or other encumbrance registered thereon, together with the name and address appearing in the register of every registered proprietor thereof; and
(b) appoint a time, specified or approved by the Registrar, being not less than one month nor more than twelve months after the date of the first publication of any advertisement of such notice under the provisions of paragraph (a) of subsection (3) of section 80 after the expiration of which the Registrar may, unless, on or before the expiration of that time, a caveat has been lodged as hereinafter provided, grant the application; and
(c) where the application has been refused as to part of the land to which it relates, be given only in respect of the remaining part of the land to which the application relates.
(2) Any notice required to be served
on any person under the provisions of section 80 shall be served on him by
delivering it to him
personally or by sending it to him by registered post
addressed to his address (if any) appearing in the register, or, at his last
known place of abode or business in Fiji.
(3) The Registrar may at any
time before granting the application extend for such period as he thinks fit the
time appointed by any
notice in accordance with the provisions of paragraph
(b) of subsection (1).
Person claiming interest may lodge caveat
82.-(1)
Any person claiming any estate or interest, whether legal, equitable or
beneficial, in any land, or any part thereof, to which any
application made
under the provisions of section 78
relates may, at any time before the expiration of the time appointed in
the notice given under the provisions of subsection (3) of
section
80, or any extension thereof, lodge a
caveat with the Registrar forbidding the granting of the application in respect
of that land or
part thereof, as the case may be.
(2) A caveat lodged
under the provisions of subsection (1) shall, subject to the provisions of this
Part, in all other respects be
in the same form, be subject to the same
provisions and have the same effect with respect to the application against
which it is
lodged as a caveat lodged under the provisions of Part XVII.
Caveat by registered proprietor of estate in fee simple, etc.
83.-(1)
Where the Registrar is satisfied that the person executing a caveat,
lodged under the provisions of section
82, is the registered proprietor of an
estate in fee simple or an estate for life or in remainder, contingent or
otherwise, or an estate
by way of executory limitation that has not lapsed in
the land, or any part thereof, to which the application relates, the Registrar
shall refuse the application in respect of the land to which the caveat
relates.
(2) Where a caveat lodged under the provisions of section (1) is
executed by any person purporting to be the agent of the caveator
thereunder,
and the Registrar is satisfied that the caveator is the registered proprietor of
any of the estates referred to in subsection
(1), then unless the Registrar is
satisfied by evidence produced to him at the time of the lodging of the caveat
that the person
executing it has been duly authorised to do so, the Registrar
shall give notice to him requiring him to satisfy the Registrar, within
the time
specified in such notice, by confirmation of the registered proprietor or
otherwise, that he has been duly authorised as
aforesaid, and-
(a) if the Registrar is not so satisfied within the time specified in such notice or within such extended time as the Registrar, in his discretion may allow, the caveat shall be deemed to have lapsed at the expiration of that time or extended time, and the Registrar shall mark it as having lapsed under the provisions of this subsection; or
(b) if the Registrar is so satisfied, he shall refuse the application in respect of the land to which the caveat relates.
Caveat by person entitled to other estate or interest
84.
Where-
(a) the Registrar is satisfied that the caveator under a caveat lodged under the provisions of section 82 is the registered proprietor of, or a person appearing by the register to be entitled to, any estate or interest in the land, or any part thereof, to which the application relates (other than an estate in fee simple, or an estate for life or in remainder, contingent or otherwise, or an estate by way of executory limitation); and
(b) the application has not been refused, as to the whole of the land or as to that part, pursuant to any other of the provisions of this Part, the Registrar shall-
(i) notify the applicant that he will not proceed with the application unless and until the applicant agrees in writing to accept a certificate of title subject, to the same extent as the existing instrument of title, to the estate or interest of the caveator; and
(ii) take no further action in respect of the application until the applicant so agrees or until the estate or interest of the caveator is discharged, surrendered or otherwise extinguished; and,
if the applicant so agrees,
the caveat shall be deemed to have lapsed, and the Registrar shall mark it as
having lapsed under the
provisions of this section; and any certificate of title
issued in favour of the applicant shall be made subject to every such estate
or
interest as aforesaid.
Caveat by person claiming as beneficial or equitable owner of any estate or interest
85.-(1)
Where-
(a) the caveator under a caveat lodged under the provisions of section 82 claims to be the beneficial or equitable owner of any estate or interest in the land, or any part thereof, to which the application relates; and
(b) the application has not been refused, as to the whole of the land or as to that part pursuant to any other of the provisions of this Part,
the Registrar
shall, unless he is of the opinion that the estate or interest claimed is
sufficiently evidenced by the register, give
notice to the caveator requiring
him, within the time specified in such notice, being not less than three months
after the giving
of the notice, either-
(i) to establish such claim in law and cause himself to be registered as the proprietor of the estate or interest claimed; or
(ii) to satisfy the Registrar that such claim is valid but is of such a nature that it is not capable of being converted into a registered estate or interest.
(2) If, within the time specified in any notice given
under the provisions of subsection (1), or within such extended time as the
Registrar, in his discretion, may allow, the caveator neither causes himself to
be registered as the proprietor of the estate or
interest claimed nor satisfies
the Registrar as aforesaid, the caveat shall be deemed to have lapsed, and the
Registrar shall mark
it as having lapsed under the provisions of this
subsection.
(3) If-
(a) the Registrar is of the opinion that the estate or interest claimed in any caveat referred to in subsection (1) is sufficiently evidenced by the register; or
(b) within the time specified in any notice given under the provisions of subsection (1) or within such extended time as the Registrar, in his discretion, may allow, the caveator causes himself to be registered as the proprietor of the estate or interest claimed, or satisfies the Registrar that such claim is valid but is of such a nature that it is not capable of being converted into a registered estate or interest,
then,
(i) the Registrar shall in cases where the estate or interest claimed is an estate in fee simple or an estate for life or in remainder, contingent or otherwise, or an estate by way of executory limitation which has not lapsed, refuse the application in respect of the land to which the caveat relates; and
(ii) in the case of any other estate or interest, the provisions of section 84, as far as they are applicable and with any necessary modifications, shall apply as if the caveator were the registered proprietor of, or a person appearing by the register to be entitled to, that estate or interest at the date of the lodging of the caveat.
Notice of refusal of application to be given to applicant
86. Where, under
any of the provisions of this Part, the Registrar refuses any application made
under the provisions of section 78
either as to the whole or any part of the land to which it relates, the
Registrar shall give written notice of such refusal to the
applicant.
Power of Registrar to make vesting order
87. Where the
Registrar is satisfied in respect of any application made under the provisions
of section 78, that-
(a) the applicant has been in possession of the land, or any part thereof, in the manner and for the period therein specified and would, if such land, or part thereof, had not been subject to the provisions of this Act, be entitled to an estate in fee simple therein on the grounds of possession; and
(b) the applicant has complied to the satisfaction of the Registrar with all requisitions contained in any notices given to him by the Registrar under the provisions of this Part; and
(c) all notices required by or under the provisions of this Part to be advertised or given have been advertised or given in accordance with the provisions of this Part and with all directions of the Registrar made under the authority thereof; and
(d) all times, required by the provisions of this Part to expire, have expired, and that-
(i) no caveat has been lodged under the provisions of section 82 against the granting of the application; or
(ii) every caveat so lodged has lapsed or been withdrawn as to the whole of the land, or part thereof, to which the application relates; or
(iii) all caveats so lodged that have neither lapsed or been withdrawn affect part only of the land to which the application relates; and
(e) no sufficient reason to the contrary otherwise appears, he shall grant the application and make an order vesting the land remaining subject to the application, or, as the case may be, of such part of the land as is not, or has ceased to be, affected by any caveat lodged under the provisions of section 82, in the applicant or any other person entitled thereto for an estate in fee simple, or for such other estate or interest as may be claimed by him, freed of all prior encumbrances affecting such land or part thereof except those to which any certificate of title to be issued in favour of the applicant is to be made subject pursuant to any agreement by the applicant under the provisions of section 84 or 85.
Certificates of title to be issued
88.-(1)
Where a vesting order is made under the provisions of section
87, the Registrar shall, subject to
compliance by the applicant or other person entitled thereunder, with the
provisions of section
89-
(a) cancel the existing grant or certificate of title and every instrument, entry or memorial relating thereto in the register to such extent as is necessary to give effect to the vesting order; and
(b) issue a new certificate of title in favour of the applicant or other person entitled thereto for such estate or interest and subject to such encumbrances as may be necessary to give effect to the vesting order.
(2) Every certificate of
title issued under the provisions of subsection (1) shall be dated with the date
upon which the vesting order
was made and the person named in such certificate
of title as the proprietor of the estate or interest therein described shall be
deemed to have been the registered proprietor thereof as from that
date.
(3) Where a certificate
of title is issued under the provisions of this section in respect of land the
subject of a Crown or native grant
and the Registrar is satisfied that, by
reason of erroneous measurements in the original grant, the actual dimensions as
marked on
the ground exceed or fall short of the dimensions stated in the grant,
the certificate of title issued under the provisions of this
section may be
issued as if the dimensions marked on the ground had been the dimensions stated
in the original grant.
Duty to be paid
89.-(1)
Before any certificate of title is issued under the provisions of section
88 the person in whose favour such
certificate of title is to be issued shall pay to the Registrar a duty,
calculated at the rate applicable
to a transfer on sale of the land under the
provisions of the Stamp Duties Act.
(Cap. 205.)
(2)
For the purposes of subsection (1) the value of the land shall be as
declared by the applicant in the application made under the provisions
of
section 78:
Provided that if the
Registrar is not satisfied as to the correctness of such valuation he may
require such applicant to produce a
certificate of such value under the hand of
a valuer approved by the Registrar, which certificate shall be received as
conclusive
evidence of such value.
Certain lands exempt
90. The
provisions of sections 78 to
89 inclusive shall not apply with
respect to-
(a) any land owned or occupied by the Crown;
(b) any native land as defined in section 2 of the Native Land Trust Act;
(Cap. 134.)
(c) any land the registered proprietor of the fee simple of which is a local authority as defined in section 10 of the Public Health Act; or
(Cap. 111.)
(d) any land held in trust for any public purpose, of which trust the Registrar has notice.
Application for removal of abandoned easement
91.-(1)
The registered proprietor of any land subject to the provisions of this
Act, in respect of which any easement or profit a prendre
is registered under
the provisions of this Act, may apply to the Registrar in the manner hereinafter
provided for the cancellation
of any such easement or profit a prendre on the
ground that such easement or profit a prendre has been abandoned by virtue of
its
not having been used or enjoyed for a period of not less than twenty
years:
Provided that, unless such easement or profit a prendre has not
been used or enjoyed for a period of not less than thirty years, no
such
application may be made for the cancellation thereof, if the registered
proprietor, or any person appearing by the register
to be entitled to the
benefit thereof, is under any disability.
(2) Every application made
under the provisions of this section shall-
(a) be in writing and dated and shall include or contain a plan showing the extent to which such easement is affected;
(b) be signed by the applicant or, in the case of a corporation, by a person authorised in that behalf in writing under the seal of the corporation; and
(c) be attested by a qualified witness.
(3) On receipt of any application
made under the provisions of this section, the Registrar-
(a) if satisfied that the easement or profit a prendre in respect of which the application is made has not been used or enjoyed for the period specified in subsection (1) and the application is otherwise in order, shall accept the application; or
(b) if not so satisfied, may refuse the application or may, by notice to the applicant, require the applicant to furnish him with such additional information or documents relating to the application as the Registrar thinks fit within such reasonable time as may be specified in such notice.
(4) If-
(a) the applicant fails to comply to the satisfaction of the Registrar with any of the requisitions contained in any notice given under the provisions of paragraph (b) of subsection (3), or within such extended time as the Registrar, in his discretion may allow; or
(b) after compliance by the applicant with the requisitions contained in such notice, the Registrar is not satisfied that the easement or profit a prendre has not been used or enjoyed for the period specified in subsection (1) or that the application is otherwise in order,
the Registrar shall refuse the
application.
(5) If an application made under the provisions of this
section is accepted by the Registrar, he shall direct that notice thereof
in the
prescribed form be served on every person appearing by the register to have any
estate or interest in the land, to which the
easement or profit a prendre is
appurtenant, and on any other person appearing to the Registrar to be interested
therein.
(6) Every notice required under the provisions of subsection (5)
shall-
(a) specify the number of every instrument of title affected by the application and of every mortgage, lease or other encumbrance registered thereon; and
(b) appoint a time specified or approved by the Registrar, being not less than one month or more than three months after the date of such notice, after which the Registrar may, unless, on or before the expiration of that time, any objection has been lodged as hereinafter provided, grant the application; and
(c) be served on every person upon whom it is required to be served under the provisions of subsection (5) by delivering it to him personally or sending it to him by registered post addressed to his address (if any) appearing in the register, or, at his last known place of abode or business in Fiji.
(7)
Any person upon whom notice is required to be served under the provisions of
subsection (5), may, at any time before the expiration
of the time appointed in
such notice, lodge objection in writing with the Registrar against the granting
of the application.
Power of Registrar to cancel easement
92.-(1)
If, at the expiration of the time appointed in any notice required under
the provisions of subsection (5) of section
91 the Registrar is satisfied that the
easement in respect of which the application is made has not been used or
enjoyed for the period
specified in subsection (1) of section
91 and has been abandoned and that
there are no valid objections to the easement being cancelled, the Registrar
shall cancel such easement
by entering a memorial to that effect, stating the
circumstances and authority under which such cancellation is made, in the
register
and shall also endorse a like memorial on the duplicate instrument of
title when produced to him for that purpose or for the purpose
of any dealing
thereon.
(2) For the purpose of cancelling any endorsement on any
duplicate instrument of title under the provisions of subsection (1), the
Registrar may call in such duplicate and may retain it until such cancellation
is effected, and may refuse to register any dealing
with any estate or interest
in the land to which it relates until such duplicate instrument of title has
been produced to him for
the purpose of effecting such cancellation.
(3)
For the purposes of this section, the estate or interest of a registered
proprietor of any estate or interest in land shall be
deemed to be affected by
the cancellation of an easement whether in the position of a dominant or
servient tenement.
PART XIV-TRANSMISSIONS
Person claiming under transmission may be registered
93.-(1) Any
person claiming to be entitled to any estate or interest in land subject to the
provisions of this Act by virtue of any
transmission, whether as the result of
the death of the registered proprietor of such estate or interest or otherwise,
may make application
in the prescribed form to the Registrar to be registered as
the proprietor of such estate or interest.
(2) Every application made
under the provisions of subsection (1) shall be signed by the applicant and
attested by a qualified witness
and shall accurately define the estate or
interest claimed by the applicant, and shall state that he is entitled to the
estate or
interest in respect of which he is applying to be registered as
proprietor; and the statements in such application shall be supported
by the
production to the Registrar of the original or certified true copies of all
documents under which the applicant claims to
be entitled to such estate or
interest.
(3) If on any application made under the provisions of
subsection (1), and upon the evidence adduced in support thereof, the Registrar
is satisfied that the applicant is entitled to the estate or interest claimed,
the Registrar shall register the applicant as the
proprietor thereof, and the
person so registered shall hold such estate or interest subject to all equities
affecting the same, but
for the purpose of any dealing therewith shall be deemed
to be the absolute proprietor thereof.
(4) The title of every personal
representative of a deceased proprietor registered under the provisions of this
section shall relate
back to and take effect from the date of death of the
deceased proprietor.
Registrar may enter caveat
94. Upon
registration of the transmission of any estate or interest in land under the
provisions of section 93 the Registrar
may enter a caveat for the protection of the interests of any persons whom he is
satisfied are beneficially interested
in such estate or interest.
Change or correction of name of proprietor
95. Where it
appears to the Registrar that the proprietor of any estate or interest in land
subject to the provisions of this Act has
changed, by marriage or in any other
way, his, her or its name, or that the name of any such proprietor is
incorrectly stated in
the register, the Registrar may, on the application of
such proprietor and on payment of the prescribed fee, enter a memorial of
such
change of name on, or make the necessary change in, the register, and endorse a
like memorial or make the like change as the
case may be, on the duplicate
instrument of title of such proprietor:
Provided that no fee shall be
payable where any such correction is rendered necessary by reason of a mistake
made by the Registrar
or by any of his officers.
Trustee of bankrupt to be registered as proprietor
96. Upon the
bankruptcy of the proprietor of any estate or interest in land subject to the
provisions of this Act, the Registrar, upon
the application in writing of the
trustee of such bankrupt, accompanied by an office copy of the appointment of
such trustee or such
other evidence of the appointment as may be required by law
for the time being in force, shall register such trustee as the proprietor
of
such estate or interest.
Refusal by trustee to accept a lease to operate as a surrender
97. Upon the
bankruptcy of the proprietor of any lease, the Registrar, unless such lease be
subject to a mortgage, shall upon the application
in writing of the lessor
accompanied by a statement in writing signed by the trustee of such bankrupt
disclaiming the lease enter
in the register a note of such disclaimer and such
entry shall operate as a surrender of such lease.
Refusal to accept lease subject to mortgage to vest lease in mortgagee
98. Upon the
bankruptcy of the proprietor of any lease subject to a mortgage, the Registrar,
shall upon the application in writing of
the mortgagee, accompanied by a
statement in writing signed by the trustee of the bankrupt disclaiming the
lease, enter in the register
a note of the disclaimer, and subject to the
provisions of section 56 the entry
shall operate as a transfer to the mortgagee of the estate or interest of the
bankrupt in the lease.
Surrender not to prejudice cause of action against lessee
99. No entry of
discharge or surrender under the provisions of sections
97 or
98 shall operate to prejudice any
action or cause of action which has been previously commenced or has accrued in
respect of any breach
or non-observance of any of the covenants in such lease or
mortgage respectively.
Provision in case of persons holding for a deceased or bankrupt proprietor
100. The personal
representatives of a deceased proprietor or the trustee of a bankrupt proprietor
shall hold the estate or interest
in land in respect of which they are so
registered under the provisions of this Part upon the trusts and for the
purposes to which
the same is applicable by law and subject to any trusts and
equities upon which the deceased or bankrupt proprietor held such estate
or
interest but for the purpose of any dealings therewith under the provisions of
this Act they shall be deemed to be the absolute
proprietors thereof.
Survivorship
101. Upon the
death of any person registered together with any other person as joint
proprietors of the same estate or interest in any
land where there is right of
survivorship, the Registrar may, upon the application of the person entitled and
upon proof to his satisfaction
of such death and production of a certificate
from the Commissioner of Estate and Gift Duties certifying that all duties
payable
under the provisions of any law relating to estate duties have been
paid, or have been secured to his satisfaction, or that no duties
are payable,
register such person as proprietor of such estate or interest in the manner
herein provided for the registration of
a like estate or interest upon a
transfer of the land.
PART XV-TRUSTS AND TRUSTEES
Trustees
102.-(1) Except
as provided in subsection (2), no entry shall be made in the register of any
notice of trusts, and no such entry, if
made, shall have any
effect:
Provided that a provision in any instrument to the effect that
the person executing the instrument assumes liability only to the extent
of any
estate or interest of which he is trustee shall not be deemed to be a notice of
trust.
(2) Every memorial entered in the register or endorsed on any
duplicate instrument of title of any transfer of any estate or interest
in land
subject to the provisions of this Act in favour of any trustees shall, if the
instrument of transfer is supported by lodgment
with the Registrar of the
originals or certified true copies of all instruments creating or evidencing the
trust, include the words
"as trustees" after the names and designations of the
persons registered as the proprietors thereof, and the Registrar shall not
make
any other entry relating to any such trust in the register; but shall preserve
in the registry the original or certified true
copies as the case may be, of the
instruments creating or evidencing the trust produced to him under the
provisions of this subsection.
(3) The inclusion of the words "as
trustees" in a memorial or in any instrument of title shall not prejudice or
restrict the operation
of section
40.
(4) Where a trustee desires
to retire under the provisions of the Trustee Act, he may execute a form of
retirement, and the consents required by the provisions of that Act shall be
endorsed on the form of retirement,
and the Registrar shall enter a memorial of
the retirement in the register, and the trustee shall be deemed to have retired
from
the trust and shall be discharged therefrom..
(Cap. 65.)
(5)
Where it is desired to appoint a new trustee or new trustees under the
provisions of the Trustee Act, the person or persons empowered by that Act to
appoint a new trustee or new trustees may execute a form of appointment, and the
new trustee or trustees shall endorse his or their consent on the form of
appointment, and the Registrar shall enter a memorial of
the appointment in the
register and the land, or estate or interest therein, shall thereupon vest in
the new trustee or new trustees
and the surviving or continuing trustees.
(Cap. 65.)
PART XVI-JUDGMENTS AND EXECUTION
As to proprietor preferred by court
103.
Whenever the court has given any judgment, decree or order preferring as
proprietor of any estate or interest in land subject to the
provisions of this
Act, any person other than the registered proprietor thereof, the Registrar, on
being served with an office copy
of such judgment, decree or order, shall enter
a memorial thereof in the register and shall state in such memorial the date of
such
judgment, decree or order, the date and hour of its production to him, and
the name and description of the person in whom such judgment,
decree or order
purports to vest such estate or interest, and such person shall thereupon be
deemed to be the registered proprietor
of such estate or interest, and unless
and until such entry is made, the said judgment, decree or order shall have no
effectual operation.
Enforcement of judgments, etc. against land
104.-(1) No
judgment, decree or order for the payment of money, the sale of land or a sale
in pursuance of an execution under any such
judgment, decree or order issued
prior to or after the commencement of this Act shall bind, charge or affect any
estate or interest
in land subject to the provisions of this Act unless and
until the Registrar has been served with a copy of such judgment, decree
or
order certified by the court and accompanied by a statement signed by any party
interested or his barrister and solicitor or agent
specifying-
(a) the estate or interest sought to be affected thereby;
(b) the name, address and description of the person by whom or on whose behalf the same is lodged; and
(c) an address or place within Fiji at which notices and proceedings relating thereto may be served.
(2) The Registrar, on being served
with a copy of a judgment, decree or order under the provisions of subsection
(1) shall, after
marking upon such copy the time of service, enter the same in
the register; and with effect from the time of service thereof upon
the
Registrar such judgment, decree or order shall, subject to the provisions of
subsection (2) of section 105, have the
effect of, and be deemed to be, a caveat lodged under the provisions of section
106, subject to any prior registered
mortgage or charge forbidding the registration of any person as transferee or
proprietor of and
of any interest affecting, the estate or interest affected by
such judgment, decree or order other than in pursuance of such judgment,
decree
or order.
(3) Upon the estate or interest in respect of which a judgment,
decree or order has been registered under the provisions of subsection
(2)
having been sold pursuant to such judgment, decree or order, the Registrar
shall, on receiving a transfer thereof in the prescribed
form (which transfer
shall have the same effect as if made by the proprietor) enter a memorial of
such transfer in the register;
and on such entry being made the purchaser shall
become the transferee and be deemed to be the registered proprietor of such
estate
or interest.
(4) After the commencement of this Act, no
unregistered instrument, document or writing and no equitable mortgage by
deposit or otherwise
without writing affecting any estate or interest in land
shall prevail against a sale under the authority of a judgment, decree or
order
unless a caveat in respect of such unregistered instrument, document or writing
or equitable mortgage shall have been lodged
with the Registrar in pursuance of
the provisions of section 106 before
the service of the copy of the said judgment, decree or order on the Registrar
but, in the absence of a caveat, all of the
estate and interest of the judgment
debtor as well as of any unregistered purchaser, transferee, mortgagee or other
person claiming
through or under him shall be extinguished and shall pass to the
purchaser by virtue of a transfer under the provisions of this
section.
(5) The Registrar may register a transfer under the authority of
a judgment, decree or order without requiring the production of the
duplicate
instrument of title:
Provided that the Registrar shall give such notice
of intention to register the transfer, at the cost of the transferee, and cause
the same to be published, as in the case of the production of a duplicate
certificate being dispensed with under the provisions of
section
26.
Satisfaction, etc. of registered judgment
105.-(1)
Upon production to the Registrar, by way of application, of sufficient
evidence of the satisfaction of any judgment, decree or order
registered under
the provisions of section 104, he shall
direct an entry to be made in the register of a memorial to that effect, and on
such entry having been made, such judgment,
decree or order shall be deemed to
be satisfied.
(2) Every judgment, decree or order shall cease to bind,
charge or affect any estate or interest in land in respect of which it is
registered unless a transfer upon a sale under such judgment, decree or order
shall be presented to the Registrar for registration
within six months, or such
extended period as the court by order made on application to it upon summons
shall determine, from the
day on which the copy of such judgment, order or
decree was served.
PART XVII-CAVEATS
Caveat may be lodged
106. Any
person-
(a) claiming to be entitled or to be beneficially interested in any land subject to the provisions of this Act, or any estate or interest therein, by virtue of any unregistered agreement or other instrument or transmission, or of any trust expressed or implied, or otherwise howsoever; or
(b) transferring any land subject to the provisions of this Act, or any estate or interest therein, to any other person to be held in trust,
may at any time
lodge with the Registrar a caveat in the prescribed form, forbidding the
registration of any person as transferee
or proprietor of, and of any instrument
affecting, such estate or interest either absolutely or unless such instrument
be expressed
to be subject to the claim of the caveator as may be required in
such caveat.
Particulars to be stated in and to accompany caveat
107. Ever caveat
shall state the name, address and description of the person by whom or on whose
behalf the same is lodged and, except
in the case of a caveat lodged by order of
the court or by the Registrar, shall be signed by the caveator or his agent and
attested
by a qualified witness and shall state with sufficient certainty the
nature of the estate or interest claimed and how such estate
or interest is
derived.
Entry and service of caveats
108.-(1) No
caveat shall be accepted by the Registrar unless some address or place within
Fiji shall be appointed therein as the place
at which notices and proceedings
relating to such caveat may be served.
(2) Every caveat shall be entered
in the register as of the day and hour of its receipt by the
Registrar
(3) Every notice relating to a caveat and any proceedings in
respect thereof if served at the address or place appointed in the caveat
in
accordance with the provisions of subsection (1) shall be deemed to be duly
served.
Notice and opposition to caveat
109.-(1) Upon the
receipt of any caveat, the Registrar shall give notice thereof to the person
against whose application to be registered
as proprietor of, or, as the case may
be, to the registered proprietor against whose title to deal with, the land,
estate or interest,
the caveat has been lodged.
(2) Any such applicant or
registered proprietor, or any other person having any registered estate or
interest in the estate or interest
protected by the caveat, may, by summons,
call upon the caveator to attend before the court to show cause why the caveat
should not
be removed, and the court on proof of service of the summons on the
caveator or upon the person on whose behalf the caveat has been
lodged and upon
such evidence as the court may require, may make such order in the premises,
either ex parte or otherwise as to the
court seems just, and, where any question of right or title requires to be
determined, the proceedings shall
be followed as nearly as may be in conformity
with the rules of court in relation to civil causes.
Removal of caveat
110.-(1) Except
in the case of a caveat lodged by the Registrar the caveatee or his agent may
make application in writing to the Registrar
to remove the caveat, and thereupon
the Registrar shall give twenty-one days' notice in writing to the caveator
requiring that the
caveat be withdrawn and, after the lapse of twenty-one days
from the date of the service of such notice at the address mentioned
in the
caveat, the Registrar shall remove the caveat from the register by entering a
memorandum that the same is discharged unless
he has been previously served with
an order of the court extending the time as herein provided.
(2) Every
such application shall contain an address in Fiji at which notices and
proceedings may be served.
(3) The caveator may either before or after
receiving notice from the Registrar apply by summons to the court for an order
to extend
the time beyond the twenty-one days mentioned in such notice, and the
summons may be served at the address given in the application
of the caveatee,
and the court, upon proof that the caveatee has been duly served and upon such
evidence as the court may require,
may make such order in the premises either
ex parte or otherwise as the court
thinks fit.
Caveat may be withdrawn
111. Any caveat
may be withdrawn by the caveator or by his agent under a written authority, and
either as to the whole or any part of
the land affected, or the consent of the
caveator may be given for the registration of any particular dealing expressed
to be made
subject to the rights of the caveator.
No second caveat may be entered
112. When any
caveat has been removed under the provisions of section
109 or
110, it shall not be lawful for the
Registrar to receive any second caveat affecting the same land, estate or
interest by the same person,
or in the same right and for the same cause, except
by order of the court.
No entry to be made in register affecting land in respect of which caveat continues in force
113.-(1) Subject
to the provisions of subsection (2), except in the cases referred to in section
117, so long as any caveat shall remain
in force prohibiting absolutely any registration or dealing, the Registrar shall
not enter in
the register any change in the proprietorship of or any transfer or
other instrument purporting to transfer or otherwise deal with
or affect the
estate or interest in respect of which such caveat may be lodged.
(2)
Where an instrument is presented for registration and a caveat is lodged after
the time of the presentation of the instrument,
the caveat shall not have the
effect of preventing registration of the instrument but the caveat shall take
effect as if lodged after
registration of the instrument.
Compensation for lodging caveat without reasonable cause
114. Any person
lodging any caveat with the Registrar without reasonable cause shall be liable
to make, to any person who may have sustained
damage thereby, such compensation
as the court shall order and such compensation may be recovered by proceedings
at law if the caveator
has withdrawn such caveat and no proceedings have been
taken by the caveatee as herein provided but, if proceedings have been taken
by
the caveatee, then such compensation shall be decided by the court acting in the
same proceedings.
Memorandum of caveats to be fixed to certificates
115. The
Registrar shall cause a memorial to be entered in the register of every caveat
lodged under the provisions of section 106
and a copy of such caveat or so much thereof as the Registrar shall deem
material to the person notified shall be sent with the notification
required by
the provisions of section 109.
Removal of caveat where interest protected has ceased to exist
116.-(1)
Where it appears to the Registrar that the estate or interest claimed by
any caveator has ceased to exist, he may, either of his own
motion or on the
application of any person claiming any estate or interest in the land, serve
notice on the caveator requiring him
within twenty-one days from the date of
such notice to withdraw such caveat or within such time to commence proceedings
in court
to substantiate his claim, and in the event of the caveator failing to
comply with the requirements of such notice within the time
therein limited, the
Registrar may direct the removal of such caveat from the register and forward
notice of such removal to the
caveator.
(2) In any proceedings by a
caveator to substantiate his claim under the provisions of this section, he
shall, unless otherwise ordered
by the court, join as parties the Registrar, the
registered proprietor and any other person or persons affected by the existence
of such caveat.
Caveat on behalf of a beneficiary under a will or settlement does not bar registration in certain cases
117. Where a
caveat has been lodged by or on behalf of a beneficiary claiming under a will or
settlement and a change in the proprietorship
of or a transfer or other dealing
with or affecting the land, estate or interest in respect of which the caveat
was lodged is presented
for registration, the same may, notwithstanding the
provisions of section 113, be
registered without the caveat being withdrawn and without determining the
operation of the caveat, if the Registrar is of the
opinion that such change of
proprietorship or such transfer or other dealing is authorised by the will or
settlement and the caveator
either consents to the registration or does not
lodge a written protest against such reservation within twenty-one days after
being
served with notice as such caveator.
PART XVIII-POWERS OF ATTORNEY
Registered proprietor may deal by attorney
118. The
registered proprietor of any land subject to the provisions of this Act, or of
any estate or interest therein, may by power
of attorney in the prescribed form
or such other form as may be approved by the Registrar, and either in general
terms or specially,
authorise and appoint any person on his behalf to execute
transfers of, or other dealings with, such land, estate or interest, or
to sign
any consent or other document required under the provisions of this Act, or to
make any application to the Registrar or to
any court or judge in relation
thereto.
Powers of attorney to be deposited and registered
119. Every power
of attorney intended to be used under the provisions of this Act, or a duplicate
or certified copy thereof, verified
to the satisfaction of the Registrar, shall
be deposited with the Registrar who shall register the same by entering in the
register
to be known as the "Powers of Attorney Register" a memorandum of the
particulars therein contained and of the date and hour of its
deposit with
him.
Revocation of power of attorney
120.-(1) The
grantee of any revocable power of attorney may by notice to the Registrar in the
prescribed form revoke the power of attorney
either wholly or as to the land,
estate or interest specified in the notice, and upon receipt of such notice the
Registrar shall
enter a memorial thereof in the Powers of Attorney Register and
endorse a like memorial on the original, duplicate or certified copy
of such
power of attorney filed in his office.
(2) No power of attorney shall be
deemed to have been revoked by reason only of a subsequent power of attorney
being deposited without
express notice of revocation given under the provisions
of subsection (1), nor shall any such revocation take effect as to instruments
executed prior to receipt of such notice by the Registrar.
(3) No power
of attorney shall be deemed to have been cancelled or revoked by the bankruptcy
of the grantee or by the marriage of
a female grantee.
Cancellation of power of attorney
121. When the
authority of the grantee of a power of attorney is determined otherwise than by
notice of revocation by the grantor, the
Registrar may, upon production of
satisfactory evidence to that effect, enter a memorial thereof in the Powers of
Attorney Register
and endorse a like memorial on the original, or duplicate or
certified copy of the power of attorney filed in his office.
PART XIX-ATTESTATION, CERTIFICATION AND EXECUTION
Witnesses necessary in attesting documents
122.-(1) Every
instrument required to be registered under the provisions of this Act shall be
witnessed by one person who shall attest
such document in the prescribed form,
and, in case such witness shall not be a qualified witness, the person so
attesting shall appear
before a qualified witness who shall endorse upon the
instrument a certificate in the prescribed form.
(2) In any case where an
official holding a seal of office attests any application or instrument under
the provisions of this section,
such official shall authenticate his signature
by such seal.
(3) In case any instrument, the execution whereof by any
person by whom it purports to be executed is not attested or endorsed in
accordance with the provisions of subsection (1), is presented to the Registrar
for registration, filing or noting, the Registrar
may, in his discretion,
register, file or note such instrument if the genuineness of such execution is
proved to his satisfaction
by the statutory declaration of a person well
acquainted with the person executing the instrument and with the signature and
handwriting
of such person.
(4) A corporation, instead of signing any
instrument, may execute the same by affixing thereto the common seal of the
corporation
or the official seal for use in Fiji, or by attorney appointed under
the common seal, and any such seal affixed to any instrument
shall be sufficient
proof to the Registrar that the same was affixed under proper authority, and the
instrument is binding on the
corporation whose seal it bears.
(5) The
signature of every person by whom any application, instrument or other document
is required to be signed or attested shall
be written in ink or, if the person
signing such application, instrument or other document is unable to sign his
name, then such
signature shall be made by the left thumb print of the person
executing the same or by other sufficient mark to the satisfaction
of the
Registrar.
Application to have force of statutory declaration
123.-(1)
Every application under the provisions of this Act, when attested by a
qualified witness, shall have the same force and effect as
a statutory
declaration.
(2) Any person who knowingly and wilfully in any such
application makes a statement false in any material particular shall be guilty
of an offence and liable to imprisonment for a period not exceeding two years or
to a fine not exceeding two hundred dollars or to
both such imprisonment and
fine.
Instruments to be certified correct for registration
124.-(1) Subject
to the other provisions of this Act, the Registrar shall not receive any
instrument purporting to deal with or affect
any land subject to the provisions
of this Act, or any estate or interest therein, unless there is endorsed thereon
a certificate
that the same is correct for the purposes of registration under
the provisions of this Act, signed by the party claiming under or
in respect of
such instrument or by his barrister and solicitor or by a person authorised in
that behalf by the Chief Justice:
Provided that-
(a) if the person claiming under or in respect of such instrument is illiterate, the certificate shall be signed by his barrister and solicitor or by a person authorised in that behalf by the Chief Justice;
(b) in the case of a lease of any land from the native owners thereof or from the Crown which is not required to be endorsed on the lessor's instrument of title, or any extension of any such lease, the certificate required by the provisions of this subsection shall not be necessary.
(Amended
by 25 of 1974, s. 5.)
(2) The Registrar shall not be required to
compare any instrument with the duplicate or certified copy thereof and shall
not incur
or become subject to any liability, action or other proceeding in
consequence of any error, mistake or discrepancy therein.
(3) An person
who falsely or negligently certifies to the correctness of any such instrument
shall be guilty of an offence and liable
to a fine not exceeding one hundred
dollars:
Provided that such fine shall not prevent any person who has
sustained damage or loss in consequence of any error or mistake in any
certified
instrument or a duplicate thereof from recovering damages against the person who
has certified the same.
(4) It shall be lawful for a corporation to
appoint by writing under the common seal of the corporation any person on its
behalf to
sign the certificate of correctness for the purposes of this section,
and if any such person falsely or negligently so certifies
he shall be guilty of
an offence and liable to a fine not exceeding one hundred
dollars:
Provided that such fine shall not prevent any person who has
sustained damage or loss in consequence of any error or mistake in any
such
certified instrument or a duplicate thereof from recovering damages against the
corporation on whose behalf the same has been
certified.
Consent to dealing, how given
125. Where in
this Act the consent of any person is required for the registration of any
instrument, such consent shall be endorsed on
the instrument or annexed thereto
and the signature of the person giving such consent shall be attested in the
manner prescribed
for the verification of instruments under this Part or to the
satisfaction of the Registrar.
Prior encumbrances to be endorsed on instruments
126. Every
instrument presented for registration shall refer to all prior registered
encumbrances subsisting against the land, estate
or interest affected
thereby.
Appointment of liquidator of company to be entered in the register
127. Upon the
winding up of any company which is registered as the proprietor of any land, or
any estate or interest therein, the liquidator
shall serve notice of his
appointment in such form as may be approved by the Registrar and shall produce a
copy of the appointment
of such liquidator if appointed under a voluntary
winding up, or an office copy of the order appointing such liquidator if
appointed
by the court, and the Registrar shall enter a memorial of such
appointment in the register:
Provided that in the case of a voluntary
winding up the notice shall be supported by such evidence of the appointment
having been
legally made as the Registrar may require.
PART XX-GOVERNMENTS OF OVERSEA COUNTRIES
Governments of oversea countries may be registered proprietors
128.-(1) The
Government of any oversea country shall be deemed to be and to have always been
capable of being registered as the proprietor
of any land subject to the
provisions of this Act or any estate or interest therein, in the same manner as
if such Government were
a corporation.
(2) Any transfer or other
instrument purporting to transfer or in any way to affect land subject to the
provisions of this Act, or
any estate or interest therein may be executed, or
certified correct under the provisions of section
124, on behalf of any Government of any
oversea country by a representative in Fiji of that country.
(3) The fact
that any transfer or other instrument that has been presented for registration
purports to have been executed on behalf
of a Government of an oversea country
by a representative in Fiji of that country shall, in the absence of proof to
the contrary,
be sufficient evidence to the Registrar that the instrument was
executed under proper authority and is binding on such Government.
(4) In
this section-
"oversea country" means any country other than Fiji;
"representative" means any diplomatic or consular representative of any foreign state or Commonwealth country, and includes any person lawfully acting for any such representative.
PART XXI-SPECIAL POWERS AND DUTIES OF REGISTRAR
Power to call for documents
129.-(1) The
Registrar may require the proprietor of or any other person interested in any
land or any estate or interest therein in
respect of which any instrument is
about to be registered under this Act to produce any grant, certificate of
title, mortgage, lease,
or other instrument in his possession or within his
control affecting such land, estate or interest or the title thereto.
(2)
The Registrar may summon any such person to appear and give any explanation
respecting such land, estate or interest, or the instruments
affecting the title
thereto.
(3) If, upon requisition in writing made by the Registrar, such
person refuses or wilfully neglects to produce any such instrument
or refuses or
wilfully neglects to give any information or explanation which he is required to
give, or knowingly misleads or deceives
any person authorised to demand any such
explanation or information, he shall be guilty of an offence and liable to a
fine not exceeding
two hundred dollars and the Registrar, if the information or
explanation so withheld appears to him material, shall not be bound
to proceed
with the registration of the instrument sought to be registered.
(4)
Every summons issued by the Registrar under the provisions of this section shall
be in the prescribed form, and may be enforced
by him in like manner and by the
like proceeding as provided in sections
166 and
167 for the case of any instrument
issued in error or wrongfully retained.
To administer oaths
130. The
Registrar shall have power to administer oaths or take a declaration in lieu of
an oath for the purposes of this Act.
Powers to enter caveats, to correct certificates and to destroy documents
131.-(1) The
Registrar may enter a caveat on behalf of the Crown or on behalf of any person
who is under any disability, to prohibit
any transfer of, or other dealing with,
any land, or any estate or interest therein, belonging or supposed to belong to
the Crown
or to any such person, and also to prohibit any dealing with any land,
or any estate or interest therein, in any case in which it
appears to him that
an error has been made by misdescription of such land or otherwise in any
instrument, or for the prevention of
any fraud or improper dealing.
(2)
The Registrar may, upon such evidence as shall appear to him sufficient in that
behalf, correct errors in certificates of title,
or in the register, or in
entries made therein respectively, and may supply entries which have been
omitted to be made:
Provided that in the correction of any such error he
shall not erase or render illegible the original words, and shall insert the
date upon which such correction was made or entry supplied, and shall affix his
initials thereto, and every certificate of title
so corrected and every entry so
corrected or supplied shall have the like validity and effect as if such error
had not been made
or such entry omitted except as regards any entry made in the
register prior to the actual time of correcting the error or supplying
the
omitted entries.
(3) The Registrar may, notwithstanding any other of the
provisions of this Act, with the approval of the Minister destroy any record,
document, instrument, plan, diagram, book or paper, or any other paper writing
whether of the same kind as those above enumerated
or not, that is deposited
with or registered at his office, the retention of which in his opinion serves
no useful purpose.
To mark or stamp instrument
132. The
Registrar may mark or stamp any instrument produced to him with a memorandum
indicating such production and the number distinguishing
the application in
reference whereto the same was produced.
Exemptions from fees
133.-(1) No fees
shall be chargeable in respect of the registration, lodgement or filing of any
instrument or other document executed
by or on behalf of or in favour of the
Government in cases where, but for this exemption, the Government would be
liable to pay the
fees chargeable in respect of such instrument or other
document.
(2) No fees shall be chargeable in respect of any grant or
lease by the Crown to any mataqali
under the provisions of the Native Lands Act.
(Cap. 133.)
Registrar to keep account of moneys received
134. The
Registrar shall keep a correct account of all such sums of money as shall be
received by him in accordance with the provisions
of this Act, and shall pay the
same to the Chief Accountant at such times and in such manner as may be directed
by the Minister.
Registrar to carry out order vesting trust estate
135.-(i)
Whenever any person interested in land subject to the provisions of this
Act, or any estate or interest therein, shall appear to the
court or to the
Registrar to be a trustee of such land, estate or interest within the intent and
meaning of any Act now or hereafter
in force relating to trusts and trustees,
and any vesting order shall be made in the premises by the court or by the
Registrar, which
order he is hereby empowered to make concurrently with the said
court, the Registrar shall cause a memorial to be entered in the
register and
endorsed on the duplicate instrument of title the date of the said order, the
time of its production to him and the
name and description of the person in whom
the said order purports to vest the said land, estate or interest; and upon such
entry
in the register such person shall become the transferee and be deemed to
be the proprietor thereof.. Unless and until such entry
shall be made, such
order shall have no effect or operation in transferring or otherwise vesting the
said land, estate or interest.
(2) The provisions of this section shall
apply to any estate or interest in land which stands registered in the name of
any deceased
person who was at the time of his death a trustee thereof.
Power of Registrar to make a vesting order in cases of completed purchase
136. Where it is
proved to the satisfaction of the Registrar that any land subject to the
provisions of this Act or any lease thereof
has been sold by the proprietor
thereof and the whole of the purchase money paid and that the purchaser or those
claiming under him
have entered and taken possession under such purchase and
such entry and such possession have been acquiesced in by the vendor or
by his
personal representatives but that no transfer has ever been executed by the
vendor and cannot be obtained by reason that the
vendor is dead or residing out
of the jurisdiction or cannot be found, the Registrar may, in his discretion,
make a vesting order
in the premises and cause to be made the entries directed
to be made by section 135 in the case
of vesting orders, and the making of or the omission to make such entries shall
be attended by the same results as in
respect of the vesting orders in such
section mentioned.
Certain encumbrances which have ceased to affect the title may be removed for the register
137. Where it is
proved to the satisfaction of the Registrar that any right or interest notified
as an encumbrance on an instrument of
title has been fully satisfied,
extinguished or otherwise determined and no longer affects the land, estate or
interest to which
such instrument relates, the Registrar may either direct a
statement to that effect to be endorsed on the instrument of title or
permit any
subsequent instrument of title dealing with the said land, estate or interest to
be issued or made free from such encumbrance.
Satisfaction of judgment may be entered before the expiration of four months from the entry of copy writs
138. Where it is
proved to the satisfaction of the Registrar that any judgment, decree or order
entered under the provisions of section
104 has been satisfied before the
period for which such entry is binding or effective has elapsed, the Registrar
may write the word "satisfied"
with his signature and the date of the signing
upon or below the entry and thereupon such judgment, decree or order shall cease
to
affect the land, estate or interest in respect of which the entry was
made.
PART XXII-GUARANTEE OF TITLE
Indemnity
139. Neither the
Registrar nor any person acting under his authority shall be individually liable
to any action, suit or proceeding for
or in respect of any act or matter bona
fide done or omitted to be done in the exercise or supposed exercise of the
powers conferred
on him by or under the provisions of this or any other
Act.
Damages for mistake or misfeasance of Registrar
140. Any person
who either before or after the commencement of this Act-
(a) sustains loss or damages through any omission, mistake or misfeasance of the Registrar or of any of his officers or clerks in the execution of their respective duties; or
(b) is deprived of any land subject to the provisions of this Act, or of any estate or interest therein, by the registration of any other person as proprietor of such land, estate or interest, or by any error, omission or misdescription in any instrument of title, or in any entry or memorial on the instrument of title, or has sustained any loss or damage by the wrongful inclusion of land in any instrument as aforesaid, and who by this Act is barred from bringing an action for possession or other action for the recovery of such land, estate or interest,
may bring an action against the
Registrar as nominal defendant for the recovery of damages.
Notice of action to be served on Attorney-General and Registrar
141.-(1) Notice
in writing of every action against the Registrar and of the cause thereof and of
the amount claimed shall be served upon
the Attorney-General, and also upon the
Registrar, one month at least before the commencement of such action.
(2)
If the Attorney-General and the Registrar concur that such claim ought to be
admitted as to the whole or any part thereof without
suit or action and jointly
certify to that effect, the Chief Accountant may make payment
accordingly.
(3) If, after notice of such admission has been served on
the claimant, his barrister and solicitor or agent, the claimant proceeds
with
such action and recovers no more than the amount admitted, he shall not be
entitled to recover any costs as against the Registrar
and shall be liable to
such defendant for the costs of defending the action in like manner as if
judgment had been given for the
defendant in such action.
Liability of plaintiff for costs
142. If in any
action under the provisions of section
141, judgment is given in favour of the
Registrar or the plaintiff discontinues or is nonsuited, the plaintiff shall be
liable to pay
the full costs of defending such action, and the same when taxed
shall be levied in the name of the Registrar by the like process
of execution as
in other actions.
In case of fraud compensation paid and costs recoverable
143.-{1) Where
any sum of money has been lawfully paid out of the Consolidated Fund as
compensation for any loss occasioned by fraud
on the part of any person causing
or procuring himself to be registered as a proprietor by virtue of any dealing
with or transmission
from a registered proprietor, the amount of such
compensation together with all costs incurred in testing or defending any claim
or action in relation thereto shall be deemed a debt due to the Crown from the
person legally responsible for such fraud, and may
be recovered from him or his
personal representatives by action at law in the name of the Registrar or, in
case of bankruptcy, may
be proved as a debt due from his estate.
(2) A
certificate signed by the Chief Accountant verifying the fact of such payment
out of the Consolidated Fund shall be prima facie
proof that such payment was
duly made.
Consolidated Fund to be credited or debited
144.-(1) All
moneys recovered under the provisions of section
143 shall be paid to the credit of the
Consolidated Fund.
(2) All costs incurred by the Registrar with the
sanction of the Attorney-General in prosecuting, testing or defending any claim
or
action under this Act shall be paid out of the Consolidated Fund.
Judgment may be signed against absconders, etc.
145.-(1) Where
any amount has been paid out of the Consolidated Fund on account of any person
who has absconded or who cannot be found
within the jurisdiction of the court
and who has any real or personal estate within Fiji, the court, upon the
application of the
Registrar and upon the production of a certificate signed by
the Chief Accountant certifying that the amount has been paid in satisfaction
of
a judgment against the Registrar as nominal defendant, may allow the Registrar
to sign judgment against such person forthwith
for the amount so paid out of the
Consolidated Fund together with the costs of the application.
(2) Any
judgment signed under the provisions of subsection (1) shall be final and shall
be signed in like manner as a final judgment
by consent or default in a suit,
and execution may issue immediately.
Judgment recovered at any time
146. If the
person referred to in section 145 has
no real or personal estate within Fiji sufficient to satisfy the amount for
which execution has been issued as aforesaid, the
Registrar may recover such
amount or the unrecovered balance thereof by action against such person whenever
he may be found within
the jurisdiction of the court.
Crown not liable in certain cases
147. The Crown
shall not under any circumstances be liable for compensation for any loss,
damage or deprivation occasioned by any of
the following things notwithstanding
that effect may have been given to the same by entry on the register-
(a) by the breach by a registered proprietor of any trust; or
(b) by the same land having been included in two or more Crown or native grants; or
(c) by the improper use of the seal of any corporation or company; or
(d) by the registration of any instrument executed by any person under any disability unless the fact of such disability was disclosed on the instrument by virtue of which such person was registered as proprietor; or
(e) by the improper exercise of any power of sale or re-entry.
Value of land at time of deprivation to be measure of damages
148. No person
shall, as against the Registrar or the Consolidated Fund, be entitled to recover
any greater amount for compensation in
respect of the loss or deprivation of any
land or of any estate or interest therein than the value of such land, estate or
interest
at the time of such deprivation, together with the value of the
messuages and tenements erected thereon and improvements made thereto,
if any,
prior to the time of such deprivation, with interest at the rate of five per
cent per annum to the date of judgment recovered.
Limitation of actions
149.-(1) No
action for recovery of damages under the provisions of this Part shall lie or be
sustained against the Registrar unless such
action is commenced within the
period of six years from the date when the right to bring such action accrued,
but any person being
under any disability may bring such action within three
years from the date on which such disability ceased.
(2) For the purposes
of this section, the date when the right to bring an action accrues shall be
deemed to be the date on which the
plaintiff becomes aware, or but for his own
default might have become aware, of the existence of his right to make a
claim.
PART XXIII-SUBDIVISIONS AND ROADS
Power of Registrar to require plan
150. The
Registrar may require the proprietor of any land subject to the provisions of
this Act, or any estate or interest therein, desiring
to transfer or otherwise
to deal with the same or any part thereof to deposit with the Registrar a plan
of such land on such scale
and with such measurements thereon as may be
prescribed and with such further information as the Registrar may require, and
every
such plan shall be certified by a surveyor registered under the provisions
of the Surveyors Act.
(Cap. 260.)
Crown survey boundaries as marked on the ground to be deemed the true boundaries
151. The survey
boundaries of any Crown or native land marked on the ground at the time of the
survey thereof and shown by survey posts,
pegs, trenches or other survey marks
shall, as to any such land granted or demised whether before or after the
commencement of this
Act, be and be deemed to have been the true boundaries of
such parcel of land whether such boundaries upon a measurement are or are
not
found to be of the same dimensions or to include the same area as the boundaries
or description of such parcel given in the grant
or lease, as the case may
be.
Crown grant or lease deemed to convey land within survey boundaries marked on the ground
152. Every Crown
or native grant or lease purporting to grant or demise any land whether
describing it by a distinguishing number or
letter or by metes and bounds or
otherwise shall be deemed to grant or demise the land included within the survey
boundaries of the
area they include and the dimensions or area expressed in such
grant or lease, as the case may be, or shown in any plan used in connexion
with
the grant or demise of such land:
Provided that nothing in this or
section 151 shall apply to any such
land where an actual patent mistake or error has been made.
How survey boundaries may be proved in the absence of survey marks
153. When the
survey marks of the boundaries of any land have been removed or obliterated, the
survey shall be reconstituted in accordance
with recognized survey practice
approved by the Surveyor-General but if it is proved in a court of competent
jurisdiction or to the
satisfaction of the Registrar in any proceeding or
application in which the boundaries of such land have to be determined that any
buildings, fences, walls or other improvements of a permanent nature, or a
succession of such improvements-
(a) have, ever since the removal or obliteration of such survey marks indicated the position of the boundaries originally marked on the ground by the survey marks so removed or obliterated; or
(b) have, for a period of twenty years without interruption, been used and regarded by the owner or occupier or successive owners or occupiers of such parcel of land as marking or agreeing in position with the boundaries of the parcel of land comprised in the instrument of title under or by virtue of which such land is or has been occupied,
such proofs as aforesaid shall be
deemed and received as sufficient evidence of the true positions of the original
survey boundaries
of such land.
Margin of error allowed in description of boundaries
154.-(1) From and
after 1 August 1971 the dimensions of the boundaries of any land as stated in
any instrument of title now made or hereafter
to be made relating to such land
or as represented on any plan drawn on and referred to in any such instrument
shall, unless such
construction is expressly negatived or modified by such
instrument of title or any contract, be construed as though the phrase "a
little
more or less" followed immediately thereafter and referred to the dimensions so
stated or represented; and such phrase shall
in all cases, whether so implied or
expressed, be deemed to cover any difference between the dimensions so stated or
represented
and the actual dimensions of such boundaries as found by
admeasurements on the ground when such difference does not exceed the limits
of
error prescribed by any regulations for the time being in force relating to
survey for the class of land the subject of the survey.
(2) No action
shall be brought by reason or in respect of any such difference (whether of
excess or deficit) where such difference
does not exceed such limits; and in any
case where such difference does exceed such limits an action for damages or
compensation
in respect thereof shall only lie in respect of such
excess.
Registrar may disregard minute errors of dimensions
155. In dealing
with any application involving the amendment of an instrument of title or
adjustment of boundaries, the Registrar may
disregard any difference in the
dimensions of boundaries or any encroachment excess or deficit which does not
exceed the limits specified
in section
154.
Excess of land may be apportioned between different owners or proprietors
156. Where land
has been sub-divided and by reason of erroneous measurements in the original
survey the area of the land as marked on
the ground exceeds the sum of the areas
of all the sub-divisions and road ways (if any) as shown by any plan or
description used
at the time of sub-division or by the grants or certificates of
title of such sub-divisions, the total excess of area of the land
shall be
deemed originally apportionable amongst the sub-divisions and road ways (if any)
proportionate to their relative dimensions,
and, if the area of the land
included in any application for an amended certificate of title is in the
applicant's possession and
was in the possession of the applicant or of him and
those through whom he claims, for a period of not less than twenty years
previous
to the application and does not exceed the area attributable to the
sub-division or sub-divisions or fraction of a sub-division represented
by the
land included in such application after apportionment of such excess, the
Registrar may, without ascertaining the dimensions
of the other sub-divisions or
fractions of sub-divisions, and without the consent of the proprietors thereof,
issue a new certificate
of title in respect of the land included in such
application as if the whole of it had been included by metes and bounds in the
original
grant or certificate of title thereof.
Proprietor sub-dividing to deposit map if required
157. Any
proprietor sub-dividing any land subject to the provisions of this Act for the
purpose of selling or leasing the same in sub-divisional
lots shall lodge with
the Registrar a map or plan of such land if so required. Such map shall exhibit
distinctly delineated all roads,
streets or ways appropriated or set apart for
any other public purpose, and all permanent drains and also all sub-divisional
lots
into which the said land may be divided, marked with distinct numbers or
symbols, and shall also show the areas and shall comply
in every respect with
the prescribed requirements for plans. In case a portion only of the land
comprised in any certificate of title
shall be sub-divided, the existing
certificate of title shall be cancelled to the extent of such portion and a
fresh certificate
of title shall be issued for the same.
Number of allotment on plan of sub-division sufficient description for purposes of dealings
158. After the
sub-division of land and deposit of a map or plan under the provisions of
section 157, the numbers of the
sub-divisional lots marked upon such plan may be used as sufficient description
of the land for the purpose of
dealing with any one or more of such
sub-divisional lots on the sub-division and on any subsequent dealings
comprising the whole
of one or more sub-divisional lots.
Creation of easements by certificate and deposit of plan
159.-(1) A
proprietor of any land subject to the provisions of this Act may when depositing
a map or plan of such land under the provisions
of section
158 create an easement, other than an
easement in gross or an easement of access of light or air, over so much of the
land on such map
or plan as is shown and marked as such thereon by executing a
certificate of easement in the prescribed form.
(2) The certificate of
easement shall describe the land to be subject to the easement and the
sub-divisional lots on such map or plan
and any other areas of land to which it
is intended that the easement is to be appurtenant and shall set out the nature
of the easement
and the conditions of the grant thereof.
(Amended by Act 2 of 1979, s.2.)
(3) The certificate of easement shall be lodged for
registration with the Registrar at the same time as the map or plan is
deposited,
or at such other time as the Registrar shall, in his absolute
discretion, allow, and the Registrar shall enter a memorial of the
certificate
of easement on the folium of the register constituted by the instrument of
title.
(Amended by Act 2 of 1979, s.2.)
(4) On the transfer or lease of any sub-divisional lot
mentioned in the certificate of easement as one to which the easement is to
be
appurtenant a grant of such easement shall be deemed to have been made by the
transferor to the transferee or the lessor to the
lessee, as the case may be, on
the conditions contained in the certificate of easement in the same manner and
having the same force
and effect as if a grant of the easement had been executed
by both transferor and transferee or the lessor and lessee, as the case
may be,
and registered under the provisions of this Act and the Registrar shall enter a
memorial of the certificate of easement on
the folium of the register
constituted by the certificate of title to the land the subject of the transfer
or lease and on the duplicate
instrument of title.
(5)
No grant of easement arising by virtue
of this section shall bind the proprietor of any encumbrance to which the land
is subject unless
he shall have consented in writing on the certificate of
easement or on the relevant transfer or lease.
Plan of sub-division
160.-(1) If the
map or plan referring to the sub-division of land contains any road or street
not referred to in the grant or certificate
of title, the proprietor shall make
application to the Registrar to register the dedication of the road or street,
and the Registrar
shall enter a memorial of the dedication in the register and
on the duplicate certificate of title or grant:
Provided that if the land
be leased, mortgaged or otherwise encumbered, the Registrar shall not register
the dedication unless the
lessee, mortgagee or other encumbrancee surrenders or
discharges, as the case may be, the portion of the land the subject of the
dedication.
(2) If any map or plan referred to in this section purports
to sub-divide any land the sub-division of which requires the approval
of any
city or town council or other authority under the provisions of any Act, such
plan shall not be accepted by the Registrar
unless it has been endorsed with the
approval of such city or town council or other authority;
Provided that
no map or plan shall be registered by the Registrar unless it has been certified
as correct in every respect by the
Director of Lands.
Acquisition of land for public purposes
161.-(1) When the
Minister resolves under the provisions of the Crown Acquisition of Lands Act
that any land subject to the provisions of this Act is required for public
purposes, the Director of Lands shall file with the Registrar,
within fourteen
days of the publication in the Gazette of the notice of intention required under
the provisions of section 5 of the
Crown Acquisition of Lands Act, a notice of intention to acquire in the
prescribed form and shall attach thereto a copy of the Gazette notification
together with,
if available, a plan of the area proposed to be acquired or
resumed. The Registrar shall thereupon, without fee, enter a memorial
of the
notice of intention upon the instrument of title relating to the land so
intended to be acquired.
(Cap. 135.)
(2) Upon completion of an
acquisition, a notice to that effect in the Gazette shall be sufficient evidence
of the acquisition and
the Director of Lands shall file with the Registrar
within seven days of the publication in the Gazette of such notice, a notice
of
acquisition in the prescribed form. The Registrar shall thereupon, without fee,
enter a memorial of such acquisition in the register
and on such of the
duplicate instruments of title affected thereby as may be produced for
endorsement.
Vesting of public roads in the Crown
162. When any
road, street or other land is vested in the Crown under the provisions of any
Act for the time being in force relating
to roads the Registrar shall, without
fee, upon the application of the Director of Lands, enter a memorial of such
vesting in the
register and on such of the duplicate instruments of title
affected thereby as may be produced for endorsement.
Power of Registrar to issue certificate of title for street
163. When any
road, street or other land is vested in any municipality under the provisions of
the Local Government Act and no certificate
of title has been issued to such
municipality in respect thereof, the Registrar may, upon application by the
council of the municipality,
issue a certificate of title in favour of such
council in respect thereof.
(Cap. 125.)
(Substituted by 14 of 1975, s. 72.)
PART XXIV-SPECIAL JURISDICTION OF THE SUPREME COURT
Appeal to court from order of Registrar
164.-(l) If, upon
the application of any person interested to have any instrument registered, or
to have any instrument, instrument of
title, foreclosure order, vesting order or
other document issued under the provisions of this Act, or to dispense with the
production
of any instrument of title, or to have any act or thing done or
performed by the Registrar, which the Registrar refuses so to do,
such person
interested may require the Registrar to state in writing the grounds of his
refusal and such person may, if he thinks
fit, at his own cost, summon the
Registrar to appear before the court to substantiate and uphold the grounds of
his refusal, such
summons to be issued out of the court and to be served upon
the Registrar six clear days at least before the day appointed for hearing
the
complaint of such person.
(2) Upon the hearing of any complaint under the
provisions of this section, the Registrar shall have the right of reply and the
court
may, if any question of fact is involved, direct an issue to be tried to
decide such fact, and thereafter the court shall make such
order in the premises
as the circumstances of the case require and the Registrar shall obey such
order, and all expenses attendant
upon any such proceedings shall be borne and
paid by the person preferring such complaint unless the court orders the same to
be
paid out of the Consolidated Fund.
Reference to court on legal points, etc.
165. Whenever any
question arises with regard to the performance of any duties or the exercise of
any of the functions by this Act conferred
or imposed upon the Registrar or, in
the exercise of any of the duties of the Registrar, any question arises as
to-
(a) the true construction or legal validity or effect of any instrument; or
(b) as to the persons entitled or to the extent and nature of the estate, right or interest, power or authority, of any person or class of persons; or
(c) the mode in which any entry ought to be made in the register or any endorsement made on any instrument of title; or
(d) any doubtful or uncertain right or interest stated or dealt with by the Registrar,
it shall be competent for him to
refer the same to the court in the prescribed form, which shall require all the
parties interested
to appear and show cause in relation thereto, and if, upon
such reference, the court, having regard to the parties appearing before
it,
shall think proper to decide the question, it shall have power so to do or to
direct any proceedings to be instituted for that
purpose or, at the discretion
of the court, and without deciding such question, to direct such particular form
of entry or endorsement
to be made in the register or on the instrument of
title, as the case may be, as in the circumstances shall appear to be
just.
Correction of instrument issued in error
166. If it
appears to the Registrar that any grant, certificate of title or other
instrument of title has been issued in error or contains
any misdescription of
land or of boundaries, or that any entry or endorsement has been made in error
on any such instrument, or that
any such instrument, entry or endorsement has
been fraudulently or wrongfully obtained, or that any such instrument is
fraudulently
or wrongfully retained, he may summon the person to whom such
instrument has been so issued, or by whom it has been so obtained or
is
retained, to deliver up the same for the purpose of being cancelled or corrected
as the case may require, and, in case such person
refuses or neglects to comply
with such summons or cannot be found, the Registrar may apply to the court to
issue a summons for such
person to appear before the court and show cause why
such instrument should not be delivered to be so cancelled or corrected, and,
if
such person when served with such summons neglects or refuses to attend before
the court at the time therein appointed, it shall
be lawful for the court to
issue a warrant authorizing and directing the person so summoned to be
apprehended and brought before
the court for examination.
Power of court in case of refusal to deliver up instrument of title
167. Upon the
appearance before the court of any person summoned or brought up by virtue of a
warrant issued under the provisions of
section
166, the court may examine such person
upon oath and may order such person to deliver up such grant, certificate of
title or other instrument
of title, and, upon refusal or neglect by such person
to deliver up the same pursuant to such order, to commit such person to prison
for any period not exceeding six months unless such instrument shall be sooner
delivered up, and in such case, or in case such person
has absconded so that the
summons cannot be served upon him as hereinbefore provided, the court may direct
the Registrar to cancel
or correct any such instrument of title or any entry or
memorial in the register or of any endorsement relating to the land, estate
or
interest therein contained, and to substitute and issue such other instrument of
title or make such entry or endorsement as the
circumstances of the case may
require, and the Registrar shall give effect of such order.
Power of court to direct Registrar
168. In any
proceedings respecting any land subject to the provisions of this Act, or any
estate or interest therein, or in respect of
any transaction relating thereto,
or in respect of any instrument, memorial or other entry or endorsement
affecting any such land,
estate or interest, the court may by decree or order
direct the Registrar to cancel, correct, substitute or issue any instrument
of
title or make any memorial or entry in the register or any endorsement or
otherwise to do such acts as may be necessary to give
effect to the judgment or
decree or order of such court
Ejectors
169. The
following persons may summon any person in possession of land to appear before a
judge in chambers to show cause why the person
summoned should not give up
possession to the applicant:-
(a) the last registered proprietor of the land;
(b) a lessor with power to re-enter where the lessee or tenant is in arrear for such period as may be provided in the lease and, in the absence of any such provision therein, when the lessee or tenant is in arrear for one month, whether there be or be not sufficient distress found on the premises to countervail such rent and whether or not any previous demand has been made for the rent;
(c) a lessor against a lessee or tenant where a legal notice to quit has been given or the term of the lease has expired.
Particulars to be stated in summons
170. The summons
shall contain a description of the land and shall require the person summoned to
appear at the court on a day not earlier
than sixteen days after the service of
the summons.
Order for possession
171. On the day
appointed for the hearing of the summons, if the person summoned does not
appear, then upon proof to the satisfaction
of the judge of the due service of
such summons and upon proof of the title by the proprietor or lessor and, if any
consent is necessary,
by the production and proof of such consent, the judge may
order immediate possession to be given to the plaintiff, which order shall
have
the effect of and may be enforced as a judgment in ejectment.
Dismissal of summons
172. If the
person summoned appears he may show cause why he refuses to give possession of
such land and, if he proves to the satisfaction
of the judge a right to the
possession of the land, the judge shall dismiss the summons with costs against
the proprietor, mortgagee
or lessor or he may make any order and impose any
terms he may think fit;
Provided that the dismissal of the summons shall
not prejudice the right of the plaintiff to take any other proceedings against
the
person summoned to which he may be otherwise entitled:
Provided also
that in the case of a lessor against a lessee, if the lessee, before the
hearing, pay or tender all rent due and all
costs incurred by the lessor, the
judge shall dismiss the summons.
No necessity for writ of possession when order is obtained
173. When an
order for possession has been obtained under the provisions of this Part, the
plaintiff or his bailiff may enter and take
possession of the land named in such
summons without issuing out any writ of possession if such plaintiff or his
bailiff find no
person in possession of the land or the person or persons in
possession voluntarily gives and surrenders possession to such plaintiff
or his
bailiff.
Proprietor to allow his name to be used in any action upon application of person interested
174. The
proprietor of any land or of any estate or interest therein shall, on the
application of any beneficiary or person interested
therein, be bound to allow
his name to be used by such beneficiary or person in any action, suit or
proceeding which it may be necessary
or proper to bring or institute in the name
of such proprietor concerning such land, estate or interest or for the
protection or
benefit of the title vested in such proprietor, or of the interest
of any such beneficiary or person, but nevertheless such proprietor
shall in any
case be entitled to be indemnified in like manner as if, being a trustee, he
would before the passing of this Act have
been entitled to be indemnified in a
similar case of his name being used in any such action, suit or proceeding by
his cestui que
trust.
PART XXV-MISCELLANEOUS
Lands belonging to Crown may be withdrawn from operation of Act
175. The Minister
may, by notification, withdraw any lands, of which the Crown is registered as
the proprietor, from the operation of
this Act, whereupon the Registrar shall
cancel the certificate of title of the land specified in such notification and
call in and
cancel the duplicate of such certificate.
Service of notices
176.-(1) Any
notice required by or under the provisions of this Act to be served or given to
any person may be served or given by being
sent by registered post to that
person at his address for service.
(2) The address of any person as
entered in the register shall, until amended or altered, be his address for
service.
(3) The address or place in Fiji appointed in a caveat as the
address or place at which notices relating to the caveat maybe served
shall be
the address for service of the caveator for the purposes of this
section.
(4) The Registrar shall cause a copy of each notice so sent to
be filed with a memorandum of the same having been sent and such memorandum
shall be sufficient proof that the notice was duly sent.
(5) The
Registrar shall on request in writing made by any person whose address is
entered in the register or in the Powers of Attorney
Register and on production
to him of the duplicate instrument of title and on payment of the prescribed fee
amend or alter such address.
(6) The Registrar shall on request in
writing by a caveator and on payment of the prescribed fee amend or alter the
address appointed
in the caveat at which notices may be served and the
additional address (if any) given by the caveator.
(7) When any notice is
sent by registered post to any person at his address for service and the letter
is returned by the post office
the Registrar may if in the circumstances and
having regard to the provisions of this Act he thinks fit-
(a) direct any further notice to be given; or
(b) direct substituted service in such manner as he considers appropriate in the circumstances; or
(c) proceed without notice.
(8) The provisions of this section
shall apply notwithstanding any other of the provisions of this Act relating to
the service of
notices.
Regulations
177. The
Registrar, with the approval of the Minister may make regulations for the
purpose of giving better effect to the purposes and
provisions of this Act, and
without prejudice to the generality of the foregoing, may make
regulations
(a) prescribing the parcels of land which may be included in any one certificate of title;
(b) prescribing the medium in which documents presented for registration, lodgment or filing shall be written and executed and the kind or size of paper or other medium on which they shall be written;
(c) prescribing the forms to be used;
(d) prescribing the fees to be charged;
(e) prescribing the persons who, in Fiji or elsewhere, may be qualified witnesses;
(f) prescribing the procedures to be followed in the execution and attestation of instruments;
(g) regulating the practice and conduct of business under the provisions of this Act;
(h) regulating the scale of, and the details and information to be included in survey plans used in connection with the registration of titles and other matters under the provisions of this Act.
Repeal and saving
178. The Land
(Transfer and Registration) Ordinance and the Statute of Limitations Declaration
Ordinance are hereby repealed:
Provided that-
(a) subject to the provisions of section 77 of this Act, such repeal shall not affect any document made or anything whatsoever done before 1st August 1971 under the provisions of Ordinances so repealed or under any corresponding former provisions, and every such document or thing, so far as it is subsisting or in force at that date and could have been made or done under the provisions of this Act, shall continue and have effect as if it had been made or done under the corresponding provisions of this Act or, subject to any provision to the contrary contained in that Act, of the Property Law Act as if those provisions had been in force when the document was made or the thing was done;
(Cap. 130.)
(b) such repeal shall not affect the provisions of the Third Schedule* of the Land (Transfer and Registration) Ordinance, which provisions shall remain in force and shall be deemed to have been made by the Chief Justice by rules under the provisions of the Legal Practitioners Ordinance; and
(c) all moneys standing to the credit of the Land Assurance Fund Account under the provisions of section 159 of the Land (Transfer and Registration) Ordinance, shall as from 1 August 1971 be transferred to and form part of the Consolidated Fund and shall be paid into the Consolidated Revenue Account.
__________________________________________________________________
* The Third Schedule to the Land (Transfer and Registration) Ordinance was repealed by Legal Notice No. 158 of 1976.
Controlled by Ministry of Justice
CHAPTER 131
LAND TRANSFER
SECTION 177-LAND TRANSFER REGULATIONS
Regulations
21st fun., 1971, 21st Aug.,
1972,
25th Nov., 1974, 1st Sept.,
1977
Made by the Registrar
of Titles and approved by the Attorney-General
Short title
1. These Regulations may be cited as the Land Transfer
Regulations.
2.-(1) Every instrument, application or document intended
for registration, lodgment or filing with the Registrar shall be engrossed
on
good quality paper of size 9.84" x 13.90" (250 x 353 millimetres) or
thereabouts.
(Substituted by Regulations 21st August, 1972.)
(2) All
documents shall be clearly and legibly written, printed or
typewritten.
(3) Instruments, applications or documents which are wholly
or partly carbon impressions shall not be accepted as originals for retention
in
the Titles Office upon registration, lodgment or filing.
(4) All
documents, whether printed or otherwise, shall have margins of 2" on the top,
bottom and left hand sides and at least half
an inch on the right hand side.
Where use is made of the reverse side of the paper the side margins shall
conform with those on the
front.
(5) No writing shall appear in the
margin of any document except initialling when required.
(6) All
handwriting on documents including all signatures shall be in ink.
(7)
Where an instrument, application or document comprises two or more sheets of
paper, those sheets shall be securely sewn or otherwise
fastened
together.
(8) A sum of money shall be expressed both in figures and in
words where it is set out for the first time in the instrument.
(9) A
transfer of a partial interest in land or portion of land shall refer clearly to
the undivided share or interest concerned or
to the particular lot number or
part thereof and plan number of a deposited plan.
(10) Applications for
balance titles shall be preceded by the lodgment of balance plans where
considered necessary by the Registrar.
(11) Where a document deals with
more than one class of title to land the title references shall be arranged to
appear in the following
order:-
(a) Native Leases,
(b) Crown Leases,
(c) Certificates of Title,
and the title numbers in each class
shall be shown in strict numerical order.
Documents to be lodged manually
3. All documents shall be lodged manually at the public
counter of the Titles Office. No documents shall be received through the
post.
Certificates under section 124
4. The certificate required by section
124 of the Act, if given by a barrister
and solicitor, shall be signed by the barrister and solicitor in his own name
and not in the
name of any firm with which he may be connected, and shall show
that he is acting for the party claiming under the instrument.
Names and descriptions
5. -(1) Names of
Indians, male and female, shall be followed by their father's name.
(2)
Females may be described by reference to their occupations or marital or other
status.
(3) "Retired" alone is not a sufficient description.
Applications
6. All applications (except requests for new certificates
of title or an application to remove caveats) shall set out the grounds
of the
application and shall be attested by a qualified witness.
Alterations, etc to be initialled
7. Before documents are presented for registration they
should be carefully examined to see that they are properly prepared. All blanks
shall be ruled out and all interlineations, alterations and corrections shall be
properly initialled in any place in the document
before the date thereof by the
party adversely affected. If such party is illiterate, then it shall be
initialled by the witness
to his signature. Where alterations are made of a
material nature, the Registrar may require the document to be withdrawn.
No alterations after lodgement
8. No alteration or amendment of a material nature to any
document shall be made after lodgment. If necessary the document may be
withdrawn from registration, for which purpose a special office "Form of
Request" shall be used.
Execution by illiterate parties
9. Where a party is illiterate, a clear impression of his
left thumb mark shall be made. The impression shall be rolled and not just
"dabbed" on the document.
Execution by attorneys
10. When a document is executed by an attorney, acting
under a power of attorney, the usual certificate as to non-revocation of the
power of the attorney may be made in the body of the document, before the date
thereof, in which case no special attestation clause
is required. Where,
however, the certificate is not incorporated in the body of the document then it
shall be placed elsewhere on
the form and after the attestation of the
signatures to the document and shall be dated and signed by the attorney whose
signature
shall be attested by a qualified witness. No certificate or part of
the attestation clause shall be place in the margin.
Transfers
11.-(1) The
consideration shall be expressed in every transfer.
(2) A transfer
purporting to transfer separate parcels of land to separate transferees shall
not be accepted, except in the case of
a partition between co-proprietors when
separate registration fees shall be charged.
(3) Transfers by separate
registered proprietors of separate parcels of land to one transferee in one
instrument shall not be accepted.
In such a case, separate transfers shall be
prepared.
Fiduciary and beneficial interests to be separate
12. A person holding a fiduciary interest in a piece of
land may not deal with that land in the same instrument as any other land
beneficially owned by that person.
Mortgages
13. Separate pieces of land owned by separate registered
proprietors shall not be mortgaged by the same instrument, whether to the
same
mortgagee or otherwise.
Caveats
14. Every estate or interest in land claimed by a caveator
shall be clearly expressed in all caveats.
Leases
15.-(1) Leases
or sub-leases from separate registered proprietors to one lessee or sub-lessee
shall not be contained in one instrument.
(2) Transfers of undivided
interest in a lease or sublease may be accepted for registration, but no
transfer of a divided interest
shall be accepted.
Deposited plans
16.-(1) When a
deposited plan is registered in the Titles Office covering part or the whole of
a parcel of land the subject of a previous
Deposited Plan registered in the
Titles Office, the earlier plan shall be cancelled as to that part of the land
the subject of the
later subdivision.
(2) All plans deposited in the
Titles Office shall comply with the requirements of the Fourth Schedule.
Forms
17.-(1) The
forms set out in the First Schedule are prescribed for use under the provisions
of the Act and shall be followed as nearly as
circumstances permit.
(2)
In cases where no forms are prescribed, an instrument or document may be in any
form approved by the Registrar.
Qualified Witnesses
18. The persons specified in the Second Schedule shall be
qualified witnesses for the purposes of section
23 of the Act.
Fees
19.-(1) The fees
payable to the Registrar shall be as set out in the Third Schedule.
(2)
Any of the fees set out in the Third Schedule may be remitted by the Minister in
his discretion.
FIRST
SCHEDULE
(Regulation 17)
Under
Section
|
Form No
|
Form
|
11
|
1
|
Certificate of Title.
|
30
|
2(a)
|
Application for Search Certificate.
|
|
3(b)
|
Search Certificate.
|
32
|
4(a)
|
Application for Stay of Registration.
|
|
5(b)
|
Order for Stay for Registration.
|
44
|
6(a)
|
Transfer of Land in fee simple.
|
|
7(b)
|
Transfer of Lease, Mortgage etc.
|
49
|
8
|
Form of Easement.
|
54
|
9
|
Lease.
|
65
|
10
|
Mortgage.
|
67
|
11
|
Memorandum of Priority of Mortgage.
|
71
|
12
|
Transfer by mortgage in exercise of power of sale.
|
79
|
13
|
Application for Vesting Order.
|
93
|
14
|
Transmission by Death.
|
106
|
15
|
Caveat.
|
131
|
16
|
Registrar’s Caveat.
|
118
|
17
|
Power of Attorney.
|
120
|
18
|
Revocation of Power of Attorney.
|
122
|
19(a)
|
Certificate of Attesting Witness.
|
|
20(b)
|
Certificate of person taking declaration of attesting
witness.
|
129
|
21
|
Summons.
|
159
|
22
|
Grant of Easement by registered proprietor.
|
165
|
23
|
Application to court.
|
Section 11
|
Form1
|
Reference to previous
(Fiji Arms)
No.
C.G., N.G., or C.T.
FIJI
CERTIFICATE OF TITLE
A.B. (insert
name, address and occupation) pursuant to (transfer, or as the case may be) No.
is now the proprietor of an estate in fee
simple subject to the provisions and
reservations contained in the original Grant No.
and subject
to such encumbrances as are notified by memorial underwritten or
endorsed hereon in ALL THAT piece of
land delineated by the plan hereon known as
containing
(area) be the same a little more or less
and being Lot on Deposited Plan No. and situated
in the
of in the island of .
Dated this
day of , One thousand nine hundred and
(Seal of Office)
REGISTRAR OF
TITLES
Encumbrances referred to.
Section 30
|
Form 2
|
Application for Search Certificate
The Registrar of Titles,
Government
Buildings,
Suva.
Date...................
I hereby request to be
informed whether there is any and if any what obstacle to a dealing by (give
name of proprietor and number
of certificate or lease)-with the land comprised
in (certificate of title or lease)...............................
Signature of Applicant
Section 30
|
Form 3
|
Search Certificate No.
The last registered dealing or encumbrance affecting the
title of the proprietor to the land comprised in the above certificate of
title
or lease is noted upon the certificate as follows:-(Refer to the last entry upon
the certificate or lease in such a way as
distinctly to identify or if the title
be clear state that there is no dealing or encumbrance mentioned upon the
certificate or lease).
At the time of issuing this certificate there is
nothing to prevent the registration of a dealing by the registered proprietor
except-(If
the title be clear and there is nothing to prevent dealing strike out
the word "except").
(If there be any caveat dealing lodged for
registration, application by Official Receiver, notice of fi. fa. or other
obstacle to
dealing not noted on the certificate of title or lease, refer to
such obstacle in such a way as to give the applicant notice of it
and to enable
him to ascertain particulars by inspection).
The information above given
refers only to the present state of the register and the present right to
register a dealing with the
interest of the proprietor appearing on the
register.
The seal of the Registrar of Titles was affixed to this search
certificate at the hour of o'clock
on the
day of , 19 .
Section 32
|
Form 4
|
The Registrar of Titles,
Government
Buildings,
Suva.
Application for Stay of Registration as to Title of
A.B. to land comprised in
Certificate of Title or Lease No. as
to which Search Certificate
No. has been applied for.
I,
C. D. of now dealing bona fide for value with the
above-named A.B. as to land comprised in the above certificate
or lease in order
to protect such dealing hereby apply for a stay of registration of any
instrument affecting the land proposed to
be dealt with for forty-eight hours
from the time named in the search certificate. The particulars of the proposed
dealing are as
follows:-
The transaction is-(State whether sale,
mortgage, exchange, lease or other dealing for value). The consideration is -
(State the price
to be paid or amount be lent, to be paid or other
consideration).
The land to be comprised in the dealing is all the land
comprised in the above certificate or lease - (If not all strike out the words
following "is" and describe the land in such a manner as distinctly to identify
it).
Signature of the applicant or
his
barrister and solicitor.
I consent to the above application for stay of
registration and certify that the proposed dealing is as above stated.
Signature of the proprietor or of
his authorised agent.
Section 32
|
Form 5
|
Order for Stay of Registration.
I hereby direct that for forty-eight hours from
o'clock on the
day of , 19
nothing is to be entered on the register as to the land above described except
an instrument
giving effect to the above dealing which if lodged for
registration within that time is to have priority over all other instruments
which may be lodged for registration during such forty-eight hours.
Registrar of Titles
Section 44
|
Form 6
|
TRANSFER OF LAND IN FEE SIMPLE
I, A.B. (add full
name, residence and occupation or other description of the transferor) being the
proprietor of an estate in fee
simple, subject, however, to such leases,
mortgages and other encumbrances as are notified by memorandum underwritten or
endorsed
hereon of the following land:-
(Here describe the
land)
In consideration of the sum of
paid to me by E.F. (add residence, occupation or other description
of the
transferee) the receipt of which sum I hereby acknowledge do hereby transfer to
the said E.F. all my estate and interest in
the said land.
In witness
whereof I have hereunto subscribed my name this day of
, 19 .
A.B., Transferor
Attestation Clause
Section 44
|
Form 7
|
TRANSFER OF LEASE,
MORTGAGE OR ENCUMBRANCE
1, A.B. (add full name, address and
occupation or other description of the transferor) being the registered
proprietor of a lease
(or mortgage or as the case may be) numbered
................ subject, however, to such leases, mortgages and other
encumbrances
as are notified by memorandum underwritten or endorsed hereon of
the following land:-
(Here describe the land)
In consideration of
the sum of............................... paid to me by C.D. (add full name,
address and occupation or other description
of the transferee) the receipt
whereof I hereby acknowledge (or as the case may be) do hereby transfer to the
said C.D. all my estate
and interest in the said land.
In Witness whereof
I have hereunto subscribed my name this day of , 19
.
A.B , Transferor.
Attestation Clause
C.D , Transferee.
Attestation Clause
Section 49
|
Form 8
|
FORM OF EASEMENT
A.B. (insert addition), hereinafter called the grantor,
being proprietor, subject however to such leases, mortgages and other
encumbrances
as are notified by memorandum underwritten or endorsed hereon of
the following land (here describe land) in consideration of the
sum of
................................ (or as the case may be) paid to the grantor by
C.D. (insert addition), hereinafter called
the grantee, the receipt of which sum
the grantor hereby acknowledges, hereby transfers and grants to the grantee
(here describe
fully the nature of the easement created and the land for the
benefit of which such easement is created).
In witness whereof the
grantor has hereunto subscribed his name this
day of ,19 .
A.B., Transferor.
Attestation Clause.
Section 54
|
Form 9
|
LEASE
A.B. (insert addition), hereinafter called the lessor,
being proprietor, subject to such leases, mortgages, and other encumbrances
as
are notified by memorandum endorsed hereon, of the following land (here describe
land) do hereby lease to C.D. (insert addition),
hereinafter called the lessee,
all the said land to be held by the lessee as tenant for the period
of................................
from the .................... day of
.................. 19..., at the yearly rental of....................
payable.................
:
Subject to the following covenants, conditions
and restrictions (Here set out all special covenants etc., if any).
The
lessee hereby accepts this lease of the above-described land to be held by the
lessee as tenant and subject to the conditions,
restrictions and covenants above
set forth.
In Witness whereof the lessor has hereunto subscribed his name
this day of , 19 .
A.B., Lessor.
Attestation Clause
C.D. Lessee
Attestation Clause
Form 10
Section 65
MORTGAGE
A.B. (insert addition), hereinafter called the mortgagor,
being proprietor, subject to such leases, mortgages and other encumbrances
as
are notified by memorandum underwritten or endorsed hereon, of the following
land (here describe land) in consideration of the
sum of
lent to the mortgagor by C.D. (insert addition), hereinafter called the
mortgagee, the receipt of
which sum the mortgagor doth hereby acknowledge, doth
hereby covenant with the mortgagee that he will pay to the mortgagee the above
sum of on the day of
, 19 (or as the case may be).
Secondly that the mortgagor will
pay interest on the said sum at the rate of .................. dollars per cent
($
%) per annum by equal payments on the
day of and on the
day of
in every year.
Thirdly (here set forth special covenants, if any). And
for the better securing to the mortgagee the repayment in manner aforesaid
of
the principal sum and interest the mortgagor hereby mortgages to the mortgagee
all his estate and interest in the said land above
described.
In witness
whereof the mortgagor has hereunto subscribed his name this ..............day of
............19... .
A.B., Mortgagor.
Attestation Clause
Form 11
Section 67
MEMORANDUM
VARYING PRIORITY OF MORTGAGES
The priority of the following mortgages in so far as they
affect the land described in the Schedule is hereby varied as
follows:-
Mortgage No. dated in favour of E.F.
as mortgagee and securing the principal sum of
shall rank as first mortgage.
Mortgage No. dated
in favour of C.D. as mortgagee and securing the principal sum of
shall
rank as second mortgage.
(Insert necessary additional particulars
if there are more than two mortgages).
SCHEDULE
All that piece of land (Here describe the
land).
Dated this day of 19
.
A.B., Mortgagor.
Attestation Clause
C.D., Mortgagee.
Attestation Clause
Form 12
Section 71
TRANSFER BY MORTGAGEE IN EXERCISE OF POWER OF SALE
I, A.B. (add residence, occupation or other designation of
mortgagee), being the mortgagee under mortgage No.
over
the following and of which C.D. (name, residence, occupation
or other description of registered proprietor)
is the registered proprietor
subject, however, to such leases, mortgages and other encumbrances as are
notified by memorandum underwritten
or endorsed hereon:-(here describe the land
in full giving the title number and area).
In consideration of (write
amount both in words and figures and if the consideration be not pecuniary alter
accordingly) paid to me
by E.F. (name, residence, occupation, or other
designation of transferee), the receipt whereof I hereby acknowledge, do hereby
in
exercise of any power of sale as such mortgagee, transfer to the said (if to
two or more, state whether as joint tenants or tenants
in common) all the estate
and interest of the said (repeat name of registered proprietor) in the said
land.
In witness whereof, I have hereunto subscribed my name this
day of , 19 .
Transferor.
In the case of a transfer of a lease add-
Accepted:
Transferee.
Attestation Clauses
NOTE- A declaration by the
mortgagee setting out the facts relating to the exercise of the power of sale
and default up to date of
transfer must be furnished.
Form 13
Section 79
APPLICATION FOR VESTING ORDER
I, A.B. (insert addition) hereby apply for a vesting order
vesting in me the following land (here describe land) which land is numbered
as
Lot No. .............on Deposited Plan No. ............. for an estate in fee
simple in possession free from encumbrances (other
than any special reservation
exception or condition in the original Grant) and I declare:-
1. (Set
forth particulars of the possession on which the claim is based-
(a) the date and circumstances in which the possession commenced;
(b) the name of the person by whom the possession was commenced;
(c) the duration of his possession and the nature thereof; and
(d) the subsequent history and nature of the possession up to the time of lodging the application.)
2. That there are no documents
or evidence of title affecting such land in my possession or under my control
other than those included
in the Schedule hereto.
3. That there are no
leases, mortgages or encumbrances registered on the above-mentioned title save
and except the following (set
out short particulars and state whether these
leases, mortgages and encumbrances have been extinguished or ceased to affect
the land
and, if so, how).
4. That same as aforesaid I am not aware of
any lease, mortgage or encumbrance affecting the said land or that any person
other than
myself has any estate or interest therein (if there be any, add) save
and except (and set out same).
5. That the names and addresses so far as
is known to me of the occupants of all lands contiguous to the said land are as
follows:-
6. That the present value of the land including all
improvements thereon is dollars ( ) and no
more.
Dated this day of , 19
at .
A.B., Applicant.
Attestation Clause.
Form 14
Section 93
TRANSMISSION
BY DEATH
I, A.B. (insert full name, address and occupation or other
description) hereby apply to be registered as proprietor as (administrator,
or
executor or trustee or as the case may be) of the estate of C.D. deceased in
respect of the following land:-
(here describe the land)
subject to such
leases, mortgages and other encumbrances as are notified by memorandum
underwritten or endorsed hereon.
1. The said C.D. died at.............on
or about...............day..............of....., 19... .
2. Probate of
the will (or Letters of Administration of the estate) of the said deceased was
granted to me by the Supreme Court of
Fiji (or as the case may be) at...........
in.......on the...........day of........, 19.... as appears in the copy of the
said Probate
(Letters of Administration) annexed hereto.
Dated this
day of , 19 .
Signature of applicant
Attestation Clause.
Form 15
Section 106
CAVEAT
Dealing with Land
TO THE REGISTRAR OF TITLES.
Take notice that I
(Name of Caveator, residence, occupation or other description in full)
claiming an estate or interest as (here state nature of the estate or
interest claimed)
by virtue of (here state
the grounds upon which such claims are founded) in the land described as
follows:-(here describe the land)
forbid the registration of any transfer or other instrument affecting the said
land absolutely
(or unless such transfer or instrument be expressed to be
subject to my claim or until this Caveat is withdrawn by me or by order
of the
Supreme Court or until the same has been removed under section 110 (1) of the
Land Transfer Act, and I appoint the following address or place within Fiji at
which notices and proceedings relating to this caveat may be served.
Caveator's
address for service of notice is:-
Name and address of
Caveatee.
Dated this day of , 19
.
.......................................
Signature or left . thumb mark .
of Caveator or Agent.
Attestation Clause.
A declaration under the Statutory
Declarations Act saying that the allegations in the above caveat are true in
substance and in fact either from personal knowledge or information and
belief.
Form 16
Section 131
FIJI
COAT OF ARMS
LAND TRANSFER
ACT,
REGISTRAR'S
CAVEAT
TAKE notice that I, the Registrar of Titles, Fiji in order to
protect the interests of
..................................................................................................
in
the land described as follows:- (here describe the land) forbid the registration
of any person as transferee or proprietor of and
of any instrument affecting the
said estate or interest absolutely and appoint the Titles Office, Government
Buildings, Suva as the
place at which notices and proceedings relating to this
caveat may be served.
Dated this day of
, 19 .
Signed in the presence
of
..................................
Titles Office,
Suva
...........................
Registrar
of Titles.
Section 118
Form 17
POWER OF ATTORNEY
I, A.B. (add addition), hereby appoint C.D., of (address
and occupation), attorney on my behalf to (here state the nature and extent
of
the powers intended to be conferred, such as to sell, lease, mortgage, lands,
etc.) and to execute all such instruments and do
all such acts, matters, and
things as may be necessary for carrying out the powers hereby given and for the
recovery of all rents
and sums of money that may become or are now due or owing
to me in respect of my lands, and for the enforcement of all contracts,
covenants, or conditions binding upon any lessee or occupier of the said land or
upon any other person in respect of the same, and
for the taking and maintaining
possession of the said lands, and for protecting the same from waste, damage or
trespass.
In witness whereof I have hereunto subscribed my name this
day of , 19
A.B.
Attestation Clause.
Section 120
Form 18
REVOCATION
OF POWER OF ATTORNEY.
1, A.B. (add addition), hereby revoke the power of attorney
given by me to C.D., of (add addition), dated the
day of
, 19 and registered under No
Dated this
day of , 19 .
A.B.
Attestation Clause.
Section 122
Form 19
CERTIFICATE OF ATTESTING WITNESS
The signature (or mark) of A.B. was made in my presence
and I verily believe that such signature is the proper handwriting (or, left
thumb mark) of the person described as A.B. (insert addition) the transferor
(or, as the case may be), and I certify that the contents
hereof were read over
and explained to in the language and
he appeared to understand the
meaning and effect thereof.
C.D., Justice of the Peace
(or, as the case may be).
Section 122
Form 20
CERTIFICATE
OF PERSON TAKING DECLARATION OF
ATTESTING
WITNESS
Appeared before me at the
day of 19 , C.D. (insert addition)
the
attesting witness to this instrument, and declared that he personally knew A.B.,
the person signing the same, and whose signature
the said C.D. attested and that
the name purporting to be the signature of the said A.B. is his own handwriting
or left thumb mark
and that he is the person therein described as A.B. (insert
addition) the transferor (or, as the case may be).
E.F; Justice of the peace
(or,
as the case may be)
Section 129
Form 21
SUMMONS
In the matter of the Land Transfer Act, A.B. (insert address
and occupation) is hereby summoned to appear before me at
........................on the ............day of............
19....... at
........o'clock in the (fore or after) noon then and there to be examined at the
instance of C.D. (insert address and
occupation) concerning
...................... and the said A.B. is hereby required to bring with him
and produce at the time and
place aforesaid (describe documents) and all other
writings and documents in his custody or power otherwise relating to the
premises.
Given under my hand this day of 19
Registrar of Titles
Form
21
Section 159
EASEMENT CERTIFICATE
A.B. of (address and description) being the proprietor of
the land described in the
First Schedule hereto hereby CERTIFIES:
1.
That the easements specified in the said First Schedule, the servient tenements
in relation to which are shown on a plan of survey
lodged for deposit with the
Registrar of Titles under No........... , are the easements which it is intended
shall be created by
the operation of section 159 of the Land Transfer
Act.
2. That the said easements shall be of the nature described in the
said First Schedule and the conditions of the grant of the said
easements and
the rights and powers of the grantees thereunder shall be those set out in the
Second Schedule in respect of each easement.
FIRST SCHEDULE DEPOSITED PLAN NO. |
||||
|
Servient Tenement |
|
|
|
Nature of Easement |
Lot No. |
Colour or other means of identification of part subject to easement |
Dominant Tenement Lot Number(s) |
Title Reference |
(For example) Right of way...................
Right of Convey
Water......
Right to Drain Water.........
|
|
|
|
|
SECOND
SCHEDULE
CONDITIONS OF THE GRANT
OF EASEMENTS AND THE RIGHTS
AND
POWERS DEEMED TO BE VESTED IN
GRANTEES THEREOF
1. Rights and powers of
grantee under Easement of Right of Way- The full, free, uninterrupted,
and unrestricted right, liberty and privilege for the grantee, his servants,
tenants, agents, workmen,
licensees, and invitees (in common with the grantor
and any other person lawfully entitled so to do) from time to time and at all
times by day and by night to go pass and repass, with or without horses and
domestic animals of any kind and with or without carriages,
vehicles, motor
vehicles, machinery, and implements of any kind over and along the land over
which the right of way is granted.
2.
Rights and powers of grantee under Easement of Right to Convey Water- The
full, free, uninterrupted, and unrestricted right, liberty, and privilege for
the grantee and the grantee's tenants (in common
with the grantor, the grantor's
tenants, and any other person lawfully entitled so to do) from time to time and
at all times to take,
convey and lead water through pipes of a sufficient
internal diameter and of suitable material for the purpose in a free and
unimpeded
flow (except when the flow is halted for any reasonable period
necessary for essential repairs) and in any quantity, consistent with
the rights
of other persons having the same or similar rights, from the source of supply or
point of entry, as the case may be, and
following the stipulated course (where a
course is stipulated) across the land over which the easement is granted,
together with
the additional rights incidental thereto set out in clause
4.
3. Rights and powers of grantee
under Easement of Right to Drain Water- The full, free, uninterrupted,
and unrestricted right, liberty, and privilege for the grantee and the grantee's
tenants (in common
with the grantor, the grantor's tenants, and any other person
lawfully entitled so to do) from time to time and at all times to drain
and
discharge water (whether rain, tempest, spring, soakage, or seepage water) in
any quantities along the stipulated course (where
a course is stipulated) across
the land over which the easement is granted, together with the additional rights
incidental thereto
set out in clause
4.
4. Additional rights attaching to
Easements of Right to Convey Water and of Right to Drain Water- The full,
free, uninterrupted and unrestricted right, liberty, and privilege for the
grantee and the grantee's tenants (in common
with the grantor, the grantor's
tenants, and any other person entitled so to do) for the purposes of the
easement concerned-
(a) to use any line of pipes already laid on the proposed course or in the case of an open drain already constructed on the proposed course to use that drain and any line of concrete inverts laid therein or to use any pipe or pipes or invert or inverts in replacement or in substitution for all or any of those pipes or inverts, as the case may require;
(b) where no open drain or line of pipes exists, to construct and maintain, or to have constructed and maintained, an open drain, with or without concrete inverts therein, or to lay, place and maintain or to have laid, placed, and maintained, a line of pipes of a sufficient internal diameter and of suitable material for the purpose, in the case of an open drain, in and under, and in the case of a line of pipes, in and under or over, the surface of the land over which the easement is granted and along the line defined for the purpose where such a line has been so defined;
(c) in order to construct or maintain the efficiency of any such pipe line or open drain, the full, free, uninterrupted, and unrestricted right, liberty, and privilege for the grantee, the grantee's tenants, servants, and workmen, with any tools, implements, machinery, vehicles, or equipment of whatsoever nature necessary for the purpose to enter upon the land over which the easement is granted (or, where only the position of the pipe line or drain is defined in the easement, upon such part of the land of the grantor and by such route as is reasonable in the circumstances) and to remain there for any reasonable time for the purpose of laying, inspecting, cleansing, repairing, maintaining, and renewing the pipe line or any part thereof or the drain or any part thereof or the line of inverts therein or any part thereof and of opening up the soil of that land to such extent as may be necessary and reasonable in that regard, subject to the condition that as little disturbance as possible is caused to the surface of the land of the grantor and that the surface is restored as nearly as possible to its original condition and any other damage done by reason of the aforesaid operations is repaired.
5.
(Here set out terms, conditions, covenants or restrictions, if any, in respect
of the easements.)
Dated the day of 19
Proprietor's signature.
Attestation Clause.
NOTE
The easements specified in the first column of the First
Schedule and the clauses set out in the Second Schedule are given as examples
only and are not part of the prescribed form.
Form 23
Section 165
IN THE SUPREME COURT OF FIJI
(Date)
In the matter of the registration of transfer
(or as the case may be) A.B. to C.D.
Pursuant to section 165 of the Land
Transfer Act, the Registrar hereby humbly refers the following question to the
Court, to wit:-
(here state briefly the
difficulty that has arisen)
The parties interested so far as the Registrar knows or
has been informed are
(here give names)
Registrar of Titles
[L.S.]
SECOND
SCHEDULE
(Regulation
18)
_____________
QUALIFIED WITNESSES
For the purpose of section 122 the following shall be
qualified witnesses-
(a) within Fiji-
(i) the Registrar or Deputy Registrar of Titles;
(ii) the Director or Deputy or Assistant Director of Lands;
(iii) in the Department of Lands-
(a) a Lands Officer,
(b) a Leases Inspector,
(c) a land clerk,
(iv) a registered surveyor;
(v) the Secretary of the Native Land Trust Board;
(vi) the Conveyancing Clerk of the Native Land Trust Board;
(vii) the Land or Assistant Land Agent of the Native Land Trust Board;
(viii) a magistrate;
(ix) the Commissioner of a division or a district officer;
(x) a barrister and solicitor of the Supreme Court of Fiji;
(xi) a commissioner for oaths of the Supreme Court of Fiji;
(xii) a notary public;
(xiii) a justice of the peace;
(xiv) a bank officer, including an officer of the Fiji Development Bank;
(xv) any person specially appointed by the Registrar of Titles.
(b) in any Commonwealth country other than Fiji-
(i) a Registrar-General, a Deputy Registrar-General or a Registrar or Deputy Registrar or Recorder or Deputy Recorder of titles or deeds;
(ii) a notary public;
(iii) a commissioner empowered to take affidavits in such country;
(iv) a commissioner for oaths of the Supreme Court of Fiji;
(v) a barrister and solicitor or a barrister or a solicitor of the court in such country;
(vi) the mayor or recorder or other chief officer of any city or municipal corporation;
(vii) a stipendiary magistrate;
(viii) any person specially appointed by the Registrar of Titles;
(c) in any foreign country-
(i) any Commonwealth Consular officer;
(ii) a notary public;
(iii) any person specially appointed by the Registrar of Titles.
____________________
THIRD
SCHEDULE
(Regulation 19)
(Amended by Regulations 25th November, 1974.)
FEES
|
|
$ c |
1.On every application for vesting order under Part
XIII..............................20.00
2. On lodgement for registration of any lease, mortgage, or encumbrances, or discharge of a mortgage or
encumbrance wholly or partially or surrender of
of a lease
lodged...........................................................................2.00
(a) any transfer on sale for consideration- |
Not more than
|
$
|
$ c |
”
|
600
|
2.00 |
”
|
1,000
|
2.50 |
”
|
2,000
|
3.00 |
”
|
4,000
|
3.50 |
”
|
6,000
|
4.00 |
”
|
8,000
|
4.50 |
”
|
10,000
|
5.00 |
”
|
12,000
|
5.50 |
”
|
16,000
|
6.00 |
”
|
20,000
|
6.50 |
”
|
40,000
|
7.00 |
”
|
60,000
|
7.50 |
”
|
80,000
|
8.00 |
”
|
100,000
|
8.50 |
Over
|
100,000
|
9.00 |
(b) any transfer carrying out exchange of lands, the same fee as on a transfer on sale
(c)
any transfer other than a transfer on sale or
exchange..........................
3. On lodgment for registration of a transfer by direction-for each direction.... 4. For every certificate of title- (a) single form and including one simple diagram 5. On every application for the consolidation in one certificate of lands included in more than one grant or certificate or on a request for a new certificate of title for each certificate-for each grant or certificate to be consolidated........................................................................................................ 6. On every application for entry of an executor or administrator or trustee of a bankrupt as a transferee or proprietor, or for entry of survivors or other persons as proprietors in cases of joint proprietorship ....................................... 7. On every application for entry of notice of death........................................... 8. On lodgment of a caveat.................................................................................. 9. On lodgment of a withdrawal of caveat.......................................................... 10. On requesting 21 days notice on a caveat on registration of dealing.......... 11. On judgment writ, fieri facias, decree or order of any Court........................ 12. For each memorial required in respect of any instrument or document lodged.................................................................................................................. 13. On lodgment of an application for entry of foreclosure of a mortgage......... 14. On lodgment of an application for order dispensing with production of any duplicate grant, certificate or instrument affected........................................ 15. On every application for statement of grounds under section 166................ 16. On every plan of subdivision deposited........................................................ 17. For each lot on such plan of subdivision....................................................... 18. For furnishing diagrams-fee to be fixed by Registrar................................... 19. For taking affidavit or statutory declaration...................................... 20. For every search certificate requested............................................. 21. For every order staying registration.............................................................. 22. For every search for first title where volume and folium are supplied....... 23. For every title search after the first in one name or one set of names where volume and folium are not supplied.................................................................... 24. For every search for first title where volume and folium are not supplied... 25. For every title search after the first in one name or one set of names where volume and folium are not supplied.................................................................... 26. For search of each power of attorney, revocation of power of attorney, plan or index........................................................................................................ 27. For every certified copy, first folio of seventy-two words............................ 28. For every folio or part of a folio after the first.............................................. 29. For every summons....................................................................................... 30. For examination thereunder.......................................................................... 31. On lodgment of an application for the issue of a special duplicate instrument to title................................................................................................ 32. For every instrument of title issuing upon such application......................... 33. On every subpoena or demand to produce documents.................................. 34. Change of address for service of notices under section 176......................... 35. Any other instrument or application not otherwise provided for.................. |
2.00
2.00 10.00 20.00 1.00 2.00 2.00 2.00 2.00 1.00 2.00 2.00 1.00 4.00 3.00 4.00 10.00 1.00 .50 2.00 2.00 .40 .30 .50 .40 .30 1.00 .50 .50 1.50 5.00 5.00 5.00 2.00 2.00 |
FOURTH
SCHEDULE
(Regulation
16)
_______________
DEPOSITED PLANS
1. All plans which are intended to be deposited in the
Titles Office must comply with the provisions contained in the regulations
made
under the provisions of the Surveyors Act.
2. Every plan must be complete
in its information and proof of the correctness of the location of a parcel of
land must not be dependent
upon a reference to some earlier or subsequent plan
furnished to this office.
3. Diagrams shall be used in plans to show
small details which cannot be clearly shown in the body of the plan.
4.
No deposited plan shall be registered by the Registrar which shows-
(a) leasehold land together with freehold land, or two or more pieces of land registered in the names of different proprietors, unless the whole of the land is being acquired by the Crown or local authority for the purpose of any public work;
(b) any private street, road, lane, way or reserve over which the proprietor has no registered (or implied) rights.
Controlled by Ministry of the Attorney-General
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