After section 138 of the Principal Act , the following Parts are inserted:

PART IXA - Orders to vest land

138A.     Registration as proprietor of person entitled to land by operation of any Act

(1)  In this section,

Act includes an Act of the Commonwealth.

(2)  The Recorder, on proof to his or her satisfaction that a person other than the registered proprietor has become entitled to be registered as proprietor of registered land, either alone or jointly or in common with that registered proprietor, because –

(a) the land purports to have been vested in that person, or a person through whom he or she claims, by another Act, or by reason of anything done under another Act; or

(b) he or she is entitled to have that land so vested in him or her by the operation of another Act, either directly or by reason of anything done under that Act –

may, of his or her own motion, or on the application in an approved form of a person in whom the land is vested or who has become so entitled, on such evidence as appears to the Recorder sufficient, and after such notice (if any) to such person as the Recorder considers proper, register the person in whom the land is vested, or who has become so entitled, as the proprietor of such estate in the land as the Recorder considers appropriate.

(3)  For the purposes of subsection (2) , the Recorder may make such recordings, cancellations and corrections in the Register or a plan relevant to a folio of the Register, and issue such certificates of title, as appear to him or her to be necessary or proper and may call in any certificate of title, grant or duplicate registered dealing.

138B.     Recorder to carry out order of Supreme Court vesting trust estate

(1)  Where a person interested in registered land appears to the Supreme Court to be a trustee of that land and an order is made by the Supreme Court, the Recorder, on application supported by an office copy of the order, must make such recording in the Register as he or she thinks necessary to register the person in whom the order purports to vest the land as proprietor of the land.

(2)  Unless and until a recording is made under subsection (1) , the order referred to in that subsection has no effect or operation in transferring or otherwise vesting the land.

138C.     Registration of dealing by person appointed by court

Where a direction, judgment or order of a court of competent jurisdiction directs, appoints or empowers a person other than the registered proprietor to dispose of registered land, the Recorder may refuse to register a dealing executed under the direction, judgment or order unless the dealing –

(a) indicates that it is executed under; and

(b) is supported by an office copy of –

the direction, judgment or order.

138D.     Recorder may make vesting order in certain circumstances when purchaser in possession

(1)  If, on application to the Recorder, it is proved to his or her satisfaction that the applicant –

(a) is in possession of registered land and no claim to recover the land has been made by the registered proprietor of that land or his or her heirs, personal representatives or assigns; and

(b) is entitled in equity and good conscience to be registered as proprietor of an estate in fee simple in the land in consequence of a sale of the land; and

(c) is unable to obtain a transfer of the land from the registered proprietor of the land because the registered proprietor is dead or residing out of Tasmania or cannot be found or for any reason it is impracticable to obtain his or her signature within a reasonable time –

the Recorder may, if in his or her opinion the case can properly be dealt with under this section rather than by an application under section 138W , make an order vesting the land in that person for an estate in fee simple.

(2)  Where the sale referred to in subsection (1) was not made by the registered proprietor, the Recorder must not make an order under that subsection unless –

(a) at least 15 years have elapsed since the sale; and

(b) at least 15 years have elapsed since the last registration on the folio of the Register constituting the title to the land of a transfer, mortgage, encumbrance or lease.

(3)  An order made under subsection (1) vests the land in the applicant subject to registered easements and other registered interests, except that it may vest the land free from any mortgage or encumbrance which could be discharged under section 91 if evidence satisfactory to the Recorder is produced.

(4)  The Recorder may –

(a) reject an application under subsection (1) wholly or in part; or

(b) make such requisitions as to the title claimed to be acquired, or as to any other matter relating to the application, as he or she thinks fit.

(5)  The Recorder, if he or she does not reject an application under subsection (1) , must –

(a) direct that notice is to be given in a form approved by the Recorder once in a newspaper published in this State and circulating in the locality in which the relevant land is situated; and

(b) state in the notice that on the expiration of one month after the date of that notice the Recorder may make and register a vesting order in favour of the applicant.

(6)  The notice is to be given to every person appearing by the Register to have any estate or interest in the land, or in any mortgage or encumbrance recorded on the folio of the Register relating to that land.

(7)  An applicant under subsection (1) must cause a copy of the notice to be posted in a conspicuous place on the land or at such place as the Recorder may direct and to be kept so posted for not less than one month before the granting of the application.

(8)  The notice is to appoint a time, not less than one month from the advertisement or service of the notice at or after the expiration of which the Recorder, unless a caveat is lodged forbidding it, may make a vesting order as provided in this section.

(9)  At any time before making a vesting order under this section, the Recorder may, notwithstanding any direction previously given by him or her as to the application under subsection (1) , reject the application wholly or in part if the applicant fails to comply to his or her satisfaction with any requisition made or direction given by him or her.

(10)  On making a vesting order under this section, the Recorder –

(a) must make such recordings, cancellations and corrections in the Register as he or she considers necessary to give effect to the vesting order and to register the person in whom the order vests the land as proprietor of the land; and

(b) may call in any certificates of title and grants for the making of those recordings, cancellations and corrections.

138E.     Caveat forbidding granting of application under section 138D

(1)  A person claiming an estate or interest in the land in respect of which an application under section 138D is made may, before the Recorder makes a vesting order in respect of the application, lodge a caveat with the Recorder in an approved form forbidding the granting of the application.

(2)  A caveat under this section lapses unless the caveator has, within 30 days after lodgment, lodged with the Recorder a document in an approved form specifying the grounds for the caveat.

(3)  On receipt of the caveat, the Recorder must not proceed with the application to which it relates until the caveat has been withdrawn or has lapsed.

(4)  On considering the caveat, the Recorder may –

(a) grant or refuse the application; or

(b) conduct an inquiry under section 160(2) to determine whether the application should be granted; or

(c) refer the matter to the Supreme Court for determination.

(5)  On the application of the Recorder or of any person who the Supreme Court is satisfied has a proper interest in the matter, the Court may remove into the Court any proceedings before the Recorder on an application for an order under this Part.

(6)  A caveat under this section may be withdrawn as provided by section 133(5) and (6) but the other provisions of that section do not apply to the caveat.

138F.     Restriction on renewal of caveats

(1)  A caveat that has lapsed or been removed under section 138E may not be renewed by or on behalf of the same person in respect of the same interest unless an order to that effect is made by the Supreme Court.

(2)  A copy of an order made under subsection (1) is to be attached to the caveat to which it refers.

PART IXB - Possessory Title

Division 1 - Preliminary

138G.     Interpretation

(1)  In this Part –

dominant tenement means land that is claimed to have the benefit of rights amounting to an easement;

servient tenement means land that is claimed to have the burden of rights amounting to an easement.

(2)  For the purposes of this Part, a person is taken to be under disability while –

(a) he or she is an infant; or

(b) he or she is incapable, by reason of mental illness, of managing his or her property or affairs.

(3)  For the purposes of, but without limiting, subsection (2)(b) , a person is presumed to be incapable, by reason of mental illness, of managing his or her property or affairs –

(a) while he or she is subject to an initial order, a continuing care order or a community treatment order under the Mental Health Act 1996 ; or

(b) while a guardianship order or an administration order in respect of his or her estate is in force under the Guardianship and Administration Act 1995 ; or

(c) while the Public Trustee has under Part VII of the Public Trustee Act 1930 the powers of the administrator of his or her estate.

138H.   Application to unregistered land

The application of this Part extends to land which is not registered land.

Division 2 - Right to acquire easements

138I.   Abolition of common law rules

(1)  This Division supersedes the rules of the common law for the acquisition of easements by prescription.

(2)  The rule of law known as the doctrine of lost modern grant for the acquisition of easements is abolished.

138J.     Acquisition of easements by possession

A person who has used or enjoyed rights which may amount to an easement at common law for a period of 15 years, or 30 years in the case of a person under disability, may apply to the Recorder in an approved form for an order in accordance with Division 3 vesting an easement in respect of those rights in him or her.

Division 3 - Procedure for vesting of easements

138K.     Applicant to notify owner of servient tenement

(1)  Before lodging an application for an easement under this Part, the applicant must give written notice of the claim to the owner of the servient tenement and produce evidence satisfactory to the Recorder that he or she has done so.

(2)  The owner of the land may, within 30 days after receipt of the notice, lodge with the Recorder a notice of objection in an approved form against the easement claimed.

(3)  If the owner does not lodge a notice of objection, the Recorder must consider the application in accordance with this Part.

(4)  If the owner lodges a notice of objection, the Recorder may not consider the application unless he or she is satisfied that the applicant would suffer serious hardship if the application is not granted.

138L.     Requirements for application

(1)  In addition to the requirements of section 138K(1) , an applicant for an easement under this Part must show that –

(a) during the relevant period, he or she has enjoyed the easement in the relevant land as of right; and

(b) the easement has not been enjoyed by force or secretly; and

(c) during the relevant period, the enjoyment of the easement has not been by virtue of a written or oral agreement made before or during that period unless the applicant can show that the relevant period commenced after any such agreement had terminated; and

(d) during the relevant period, there has been no unity of seisin of the relevant dominant and servient tenements; and

(e) during the relevant period, the owner of the servient tenement knew, or as a reasonable owner of land diligent in the protection of his or her interests ought to have known, of the enjoyment of the easement; and

(f) the right for which the easement is claimed is not of a temporary nature; and

(g) the applicant is the holder of an estate in fee simple in the dominant tenement or is under this Act or any other law entitled to such an estate as against the holder of an estate in fee simple in the servient tenement –

and the applicant must produce evidence from at least one other person in support of the easement claimed.

(2)  An application under this Division is, unless the Recorder otherwise directs, to be supported by a plan of survey, with field notes, of the land in respect of which the easement is claimed certified as correct by a surveyor registered and certificated under the Land Surveyors Act 1909 .

(3)  The Recorder may –

(a) reject an application under this Division wholly or in part; or

(b) make such requisitions as to the easement claimed, or as to any other matter relating to the application, as he or she thinks fit.

(4)  At any time before the making of an order referred to in section 138J , the Recorder may reject the application, wholly or in part, if the applicant has failed within a reasonable time to comply to the Recorder's satisfaction with any requisition made by the Recorder.

138M.     Tenants in common

Where 2 or more applicants for an easement under this Part have interests in common, it is sufficient if one of them can show that he or she has complied with all the requirements of this Part.

138N.     No easement in gross

Nothing in this Part is taken to confer a right to acquire an easement in a case where there is no land capable of benefitting from the easement.

138P.     Character of easement

(1)  An easement that is vested under this Part –

(a) is to be in respect of a right that is capable of being granted as an easement under the common law or any enactment; and

(b) is to be capable of existing as an easement appurtenant to the dominant tenement or an ascertainable part of the dominant tenement; and

(c) is to be limited to the same character, extent and degree of use throughout the relevant period.

(2)  Where a person for whom an easement is vested under this Part has exercised additional rights for the period required under this Part, he or she is entitled to the grant of an additional easement in respect of those rights.

138Q.     Power of Recorder to make recordings, &c.

On the vesting of an easement under this Part, the Recorder –

(a) must make such recordings in the Register as he or she considers necessary to give effect to the easement and its effect on the dominant tenement and the servient tenement; and

(b) may call in certificates of title, grants and duplicate registered dealings for making those recordings.

138R.     Abolition of claim for profit à prendre

After the commencement of the Land Titles Amendment (Law Reform) Act 2001 a claim may not be made under this Part for a profit à prendre .

Division 4 - Caveat by owner

138S.     Power of owner to lodge caveat

(1)  An owner of land may lodge a caveat in an approved form with the Recorder giving notice that a person exercising rights which may amount to an easement is doing so with the permission of the owner.

(2)  If the caveat is lodged before the period when an easement may be claimed under this Part and the caveat is in force under this section –

(a) time does not run against the caveator or any person claiming through the caveator; and

(b) time does not run in favour of the person named in the caveat exercising rights which may amount to an easement or any person claiming through any such person; and

(c) the period of enjoyment of the easement before the lodgment of the caveat is to be discounted, whether or not the caveat is later withdrawn.

(3)  The caveat is to state –

(a) the name and address of the person exercising rights which may amount to an easement; and

(b) the folio of the Register of the dominant tenement; and

(c) the nature and description of the easement which may be claimed.

(4)  The Recorder must give notice of the caveat to the person named in the caveat exercising rights which may amount to an easement.

(5)  A caveat under this section may be withdrawn as provided by section 133(5) and (6) .

Division 5 - Title by possession

138T.     Title by possession

A person who has been in possession of land owned by another person may acquire title to that land in accordance with this Division but not otherwise.

138U.     Restriction on title by possession

(1)  For the purposes of an application to acquire title to any land by possession, any period during which council rates have been or are paid by or on behalf of the owner is to be disregarded.

(2)  This section does not apply to an application if the relevant council has certified in writing that it is unclear who has paid, or is paying, the relevant council rates.

138V.     Requirements for title by possession

In determining an application for title based on possession, the Recorder must consider all the circumstances of the claim, the conduct of the parties and in particular –

(a) whether, during the relevant period, the applicant enjoyed possession of the land as of right; and

(b) whether there is any reason to suppose that during the relevant period that enjoyment was by force or secretly or that that enjoyment was by virtue of a written or oral agreement made before or during that period unless the applicant can show that any such agreement terminated before that period; and

(c) the nature and period of the possession; and

(d) the improvements on the land and in particular –

(i) when they were made; and

(ii) by whom they were made; and

(e) whether or not the land has been enclosed by the applicant; and

(f) whether during the relevant period the applicant acknowledged ownership, paid rent or made any other payment in respect of the land –

and the applicant must produce evidence from at least one other person in support of the application.

138W.     Registered proprietor to hold land on trust

(1)  Subject to this section, the Limitation Act 1974 applies to the title of a registered proprietor of an estate in registered land in the same manner and to the same extent as that Act applies to the title of a proprietor of land which is not registered land.

(2)  The estate of a registered proprietor of registered land is not extinguished by the Limitation Act 1974 , but where the estate would have been extinguished if the land had not been registered land, the registered proprietor of the estate is taken to hold that estate in trust for the person who, under that Act, would have acquired title to that estate if that land had not been registered land.

(3)  Nothing in subsection (2) affects the estate or interest of any other person in the land which would not have been extinguished by that person's possession if that land had not been registered land.

(4)  A person who claims that the registered proprietor of an estate in registered land holds that estate in trust for him or her under subsection (2) may apply to the Recorder in an approved form for an order vesting in him or her the legal estate which he or she would have acquired if the land had not been registered land.

(5)  The right of a person to apply under subsection (4) is not affected during the period of his or her possession of the land by –

(a) the bringing of the land in respect of which that person applies under this Part or the repealed Act; or

(b) the making of a vesting order in respect of the land under –

(i) section 138D of this Act or section 14 of the Real Property Act 1893 ; or

(ii) the Real Property (Special Vesting Orders) Act 1973 .

(6)  The right of a person to apply under subsection (4) is not affected –

(a) by the registration of any dealing by, or the registration of the transmission of the title of, a registered proprietor of the land in respect of which that person applies; or

(b) by the recertification by the Recorder in the course of the administration of this Act or the repealed Act of the estate in the land in respect of which that person applies –

unless that person's possession ceased on or before 31 October 1974.

(7)  An application under subsection (4) is, unless the Recorder otherwise directs, to be supported by a plan of survey, with field notes, of the land certified as correct by a surveyor registered and certificated under the Land Surveyors Act 1909 .

(8)  Before making an application under subsection (4) , the applicant must –

(a) give notice in an approved form in a newspaper published in Tasmania and circulating in the locality in which the relevant land is situated stating that the applicant intends to make the application; and

(b) give notice of the application in an approved form to any person who, as endorsed on the folio of the Register relating to that land, has an interest in the land or in any mortgage or encumbrance recorded on that folio; and

(c) give notice in writing of the application to any person who has an unregistered interest in the land which may have been lodged with the Recorder; and

(d) cause a copy of the notice to be posted in a conspicuous place on the land and to be kept so posted for not less than one month before making the application.

(9)  An application for title by possession is to be lodged with the Recorder not later than 2 months after the date of the last notice given under subsection (8) .

(10)  A notice under this section is to be in a form approved by the Recorder.

(11)  The Recorder may –

(a) reject an application under subsection (4) wholly or in part; or

(b) make such requisitions as to the estate claimed to be held in trust, or as to any other matter relating to the application, as he or she thinks fit.

(12)  At any time before making the vesting order, the Recorder may reject the application, wholly or in part, if the applicant fails to comply to his or her satisfaction within a reasonable time with any requisition made.

138X.     Power of Recorder to make vesting order

(1)  Subject to section 138W , the Recorder may make an order vesting in the applicant under this Division the legal estate which the applicant would have acquired, if the land had not been registered land, free from –

(a) all estates and interests recorded on the folio of the Register or registered dealing evidencing title to the land which would have been determined or extinguished by the applicant's possession of the land; and

(b) any mortgage or encumbrance which could be discharged under section 91 if evidence satisfactory to the Recorder is produced; and

(c) any registered easement or profit à prendre which –

(i) is not an easement or profit à prendre created by a plan sealed under Part 3 of the Local Government (Building and Miscellaneous Provisions) Act 1993 ; or

(ii) has been proved to the Recorder's satisfaction to have been abandoned –

but subject to any restrictive covenant notified on that folio or registered dealing.

(2)  For the purposes of subsection (1) , the Recorder may treat evidence of failure to use an easement or a profit à prendre for a period of not less than 20 years as evidence that the easement or profit à prendre has been abandoned.

(3)  On making a vesting order under this section, the Recorder –

(a) must make such recordings, cancellations and corrections in the Register as he or she considers necessary to give effect to the vesting order and to register the person in whom the order vests the land as proprietor of the land; and

(b) may call in any certificates of title and grants for making those recordings, cancellations and corrections.

(4)  Where the registered proprietor whose registration is to be cancelled under subsection (3) is –

(a) a legal owner referred to in section 13(2) of the Limitation Act 1974 ; or

(b) a trustee referred to in section 13(3) of that Act –

his or her right to recover the land is not extinguished, notwithstanding the registration as proprietor of the applicant under this Division, or any person deriving title under him or her otherwise than as a purchaser in good faith for value, so long as any other person has a right under section 13 of that Act to recover the land.

(5)  The Recorder may, if he or she thinks fit, by reason of the imperfect nature of the evidence of title or otherwise, make a vesting order under this section subject to the condition that the title vested is to be a qualified title as mentioned in Division 4 of Part III .

138Y.     Avoidance of sub-minimum lots

(1)  In this section,

sub-minimum lot means a lot that does not have the qualities of a minimum lot as provided by section 109 of the Local Government (Building and Miscellaneous Provisions) Act 1993 .

(2)  If the Recorder is not sure whether the granting of an application under this Division would result in the continuation or creation of a sub-minimum lot, the Recorder may require the applicant to produce a certificate from the relevant council –

(a) that the application would not result in the continuation or creation of a sub-minimum lot; or

(b) that the council consents to the application.

(3)  If the applicant fails to produce a certificate required under subsection (2) , the Recorder is not required to proceed with the application.

Division 6 - Caveats against easements and title by possession

138Z.     Caveat forbidding granting of application under this Part

(1)  A person claiming an estate or interest in the land in respect of which an application under this Part is made may, before the Recorder makes a vesting order in respect of the application, lodge a caveat with the Recorder in an approved form forbidding the granting of the application.

(2)  The application of section 138E extends to a caveat under subsection (1) .

138ZA.     Restriction on renewal of caveats

(1)  A caveat under section 138Z that has lapsed or been removed under section 138E may not be renewed by or on behalf of the same person in respect of the same interest unless an order to that effect is made by the Supreme Court.

(2)  A copy of an order made under subsection (1) is to be attached to the caveat to which it refers.