Dowd and Co

Priority Notices to Replace Settlement Notices

Download PDF version

The Land and Other Legislation Amendment Act 2016 (LOLA Act 2016) became law on 30 March 2017.

The Act has amended the Land Title Act 1994 (Qld) and Land Act 1994 (Qld) to provide for Priority Notices to replace Settlement Notices and some other minor amendments.

Although the main functions of the new Priority Notice will fundamentally remain the same as Settlement Notices, there are some minor changes. These include:

1. Priority notices will commence by proclamation at a later date.
    This is anticipated for mid-2017 and there will be a transitional period to accommodate for Settlement Notices already registered.

2. A Priority Notice may be lodged by a person who is or will be a party to an instrument that will be lodged and will affect the lot or an interest in the lot.
    A Priority Notice will prevent an instrument affecting the lot or an interest in the lot being registered until the notice lapses or is withdrawn, removed or cancelled.

3. Unlike Settlement Notices, Priority Notices are not limited to just a Transferor/Transferee transaction.
    Priority Notices can now encompass a wider range of instruments and transactions;

4. Like Settlement Notices, Priority Notices will last for 60 days.
    Priority Notices, however, can also be extended by a further 30 days to a maximum of 90 days.

5. Previously Settlement Notices could only be lodged once.
    There is however no explicit restriction on lodging more than one Priority Notices after the lapsing, withdrawal or cancellation of the first Priority Notice.

It is important that future transactions take into account the additional protections afforded by Priority Notices and its effect on the property to which the notice relates.

Other key changes introduced by the LOLA Act include:

1. Section 109 How interest as trustee may be registered
    Currently, a person may be registered as trustee of an interest in a lot only by:

    1. the registration of an instrument; or
    2. to vest the interest in the person as trustee.
       The new subsection 2 allows a request to vest an interest in a lot to a person as trustee to now include a request to give effect to a court order appointing the person as trustee for the sale of the lot.

Section 112 Registering beneficiary

Previously a person who is beneficially entitled under a will to a lot or an interest in a lot of a deceased registered proprietor may apply to the registrar to be registered as proprietor of the lot, only if consent is provided by:

1. the deceased’s personal representative; or
2. a person who would succeed in an application for a grant of representation.

Consent can now be provided by a person who has:

1. obtained a grant of representation other than in Queensland; and
2. would, in the registrar’s opinion, succeed in an application for the resealing of the grant in Queensland.

2. Section 126 (Lapsing of caveat)

Subsection 1A was introduced to provide that a registered owner’s caveat will lapse if the grounds of the caveat relate to the acts of the mortgagee with respect to the registration of the mortgage or power of sale.

3. Section 130 (Compensation for improper caveat)

This section was amended to clarify that the Caveator (not the solicitor who signed the caveat), will be liable for compensation from an improper caveat.

Kathleen Ready | Senior Partner | +61 7 3238 0604 | kready@dowdandco.com.au

 

Area of Expertise

Commercial Property


© Copyright Dowd & Co. 2016