OFFICE CIRCULAR No. 11-2018
DISTRIBUTION: SOLICITORS/SURVEYORS/COUNCIL
SUBJECT: LAND TITLES ACT 1980
On 15 October 2018, the Land Titles Amendment Bill 2018 (Amendment Bill) received Royal Assent.
The Amendment Bill concerned the repeal of section 146(2) of the Land Titles Act 1980.
Section 146(1) of the Act provides that a mortgagee, encumbrancee or lessor could apply to the Supreme Court of Tasmania for an order for possession of the premises where the term of a lease has expired in the case of a lessor, or default is made in the payment of any money secured in the mortgage, encumbrance or lease.
Under section 146(2) a summons issued by the Supreme Court of Tasmania directed the defaulting party being the mortgagor, encumbrancer, or lessee to show cause why that Court should not order possession of the premises to the mortgagee or encumbrancee.
In the opinion of the Supreme Court of Tasmania, issuing a summons as part of the section 146 process was unnecessary and in practice was disregarded by the person on whom it is served.
Section 146 has been amended as follows:
(a) by inserting in subsection (1) “to which the expiry of the term of the lease relates or" after “premises";
(b) by omitting subsection (2);
(c) by omitting from subsection (3) “of an order referred to in subsection (1)" and substituting “, on a lessee, mortgagor or encumbrancer, of an order under subsection (5)";
(d) by omitting subsection (4);
(e) by omitting from subsection (5) “If a person referred to in subsection (4) does not make the payment referred to in that subsection and does not at the time specified in the summons referred to in that subsection show good cause why the premises should not be recovered, then on" and substituting “If an application is made under subsection (1), then, on";
(f) by omitting paragraph (a) from subsection (5);
(g) by omitting from subsection (5)(c)(i) “referred to in subsection (4)";
(h) by omitting from subsection (5) “that summons" and substituting “the
application"
Section 148(1) amended as follows:
- by omitting “return day of the summons referred to in section 146" and substituting “day specified in an order under section 146(5) as the day on which possession of the premises to which the order relates is to be given";
(b) by inserting “to which the order relates" after “land".
The Land Titles Act 1980 has been amended accordingly.
ALICE KAWA
Recorder of Titles
31 October 2018