Office Circular No. 6/2021
DATE: 21 DECEMBER 2021
CIRCULAR MEMORANDUM: 6/2021
SUBJECT: CHANGE TO SECTION 63 OF THE LAND TITLES ACT 1980 REGARDING SEVERANCE OF JOINT TENANCIES
Why has there been a change to section 63 of the Land Titles Act 1980?
The Land (Miscellaneous Amendments) Act 2021 (“the Amendment Act") received Royal Assent on 29 November 2021.
The Governor has proclaimed that the provisions of the Amendment Act will commence on 1 January 2022.
The Amendment Act makes a range of amendments to land related legislation.
Section 63 of the Land Titles Act 1980 (“the LTA") is one of the sections amended by the Amendment Act.
How has section 63 been changed?
Section 63 of the LTA has been amended to amend the existing subsection 63(4) and remove subsection 63(5).
The effect of the amendment to subsection 63(4) is that where there is a joint tenancy of more than 2 owners of land, the actions of one owner to sever their interest does not by default sever the whole joint tenancy between the remaining owners.
For example, where there are four joint tenants, it will no longer be the case that the actions of one owner to sever their interest, by default ends the entire joint tenancy between all four owners. That decision will be one for the remaining three owners after the severance has occurred.
Subsection 63(5) has also been removed from the Act and has not been replaced. It was considered superfluous given that owners are of course free to adjust their estate and interest by way of transfer under the Act.
Why has there been a change to section 63 of the LTA?
In 2012, the Land Titles Amendment Act 2012 introduced section 63(4) of the LTA which provided that when a severance of joint tenancy was lodged by one owner it severed the entire joint tenancy, even in circumstances of more than two joint tenants.
It was considered necessary through the Amendment Act to remove and replace section 63(4) to avoid potentially unintended consequences which may, for example, undermine deliberate estate planning decisions in the initial creation of the joint tenancy.
What does this mean for lodgement of severance of joint tenancies where there are more than two registered proprietors?
The Office of the Recorder of Titles does not provide legal advice and parties will need to take their own legal advice on the effect of a severance of joint tenancy.
However, the intention of the amendment to section 63(4) of the LTA is to allow a 'severing joint tenant' to become a tenant in common with the remaining 'non-severing joint tenants'. The remaining 'non-severing joint tenants' will stay as joint tenants between themselves, unless one of them takes action to further sever that joint tenancy.
What does this mean for lodgement of a severance of joint tenancy where there are only two registered proprietors?
There is no change.
A severance of joint tenancy can still be lodged for registration with the Recorder of Titles by either registered proprietor.
This will sever the joint tenancy so that the registered proprietors become tenants in common in equal shares.
Have any forms changed?
The SJT (Severance of Joint Tenancy Form) available on TOLD remains the approved form for use for any intended severance of joint tenancy.
Recorder of Titles