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1. Introduction

Local governments will from time to time face the situation where a person or company does not pay their rates or service charges for a number of years.

The intent of this guideline is to explain the process required to comply with the legislation governing the taking possession of land in order to recover rates and service charges that are unpaid after three years.

Throughout the guideline there are also references made to Landgate’s “Land Titles Registration Practice Manual” as many of the actions detailed have associated “Landgate” requirements.

Local governments may take action to lease or sell the land to recover rates and or service charges outstanding or they may cause the land to be transferred to the Crown or to itself.

Such action should only be considered when all other avenues of inquiry and action (such as the following examples) and where possible, consultation and negotiation for the debt recovery with the person or company, have been exhausted.

• Are the property owner’s whereabouts known? Has a Claim (General Procedure) been issued and served? If so, has a Property (Seizure and Sale) Order (PSSO) on Land (Minor Case) been issued through the Magistrates Court 14 days or more after the General Procedure was served?
• If the property owner’s whereabouts are not currently known, take steps to locate the owner. Does the owner own any other land anywhere else in Western Australia? Have water rates or land tax been paid by the owner? What address for the owner does the Water Corporation and/or the Office of State Revenue have?
• Is the property vacant or improved? Is it a rental property? If so, has an order been given to the tenant, under the provisions of section 6.60 of the Local Government Act 1995 (the Act), to pay rent?
• If it is an improved property, and the owner does not occupy it, check to see where the power supply provider for the property sends its accounts?
• Has the facility of a direct debit or Centrepay payment service (weekly, fortnightly or monthly) been offered?
• Has a title search been done recently to ascertain if there is any current mortgage or caveat over the property?

This guideline sets out the process, step-by-step, so that if followed correctly the legal requirements should be met.

If the before mentioned and any other steps have not produced any result, a report should be prepared for Council. The report should outline the overdue rates or service charge position, and the attempts at debt recovery and owner location.

The report (refer Attachment 1.) may recommend that Council resolves by simple majority to lease or sell the land to recover rates and or service charges outstanding or may recommend that the local government apply to the Minister for Local Government to have the land re-vested in the Crown in right of the State under section 6.74 of the Act or make an application for the land to be transferred to itself, under section 6.75 of the Act.

Note: Section 6.68 of the Act states that a local government is not required to attempt to recover money due to it where;

1. it has a reasonable belief that the cost of proceedings will equal or exceed the value of the land; or
2. having made reasonable efforts to locate the property owner is unable to do so. Any such decision and the reasons for the decision are to be recorded in the minutes of the meeting at which the decision was made.

There is a legislative process that must be followed to comply with the lease, sell or transfer requirements of the legislation so that any of these actions are legally enforceable.

The Landgate procedures outlined in these guidelines (highlighted text) are intended as a general guide only and are not a substitute for legal advice. Local governments and other parties should seek their own legal advice in respect of individual transactions. For further information, the most recent version of Landgate’s Land Titles Registration Practice Manual (Landgate Practice Manual) is available online.

Please note that references to particular paragraphs of the Landgate Practice Manual in these guidelines may be subject to change.

2. Legislation

The legislative requirements to take action against land where rates or service charges are unpaid are contained in Part 6, Division 6, sections 6.63 to 6.75 and Schedules 6.2 and 6.3 of the Local Government Act 1995 (the Act) and Part 5 of the Local Government (Financial Management) Regulations 1996 (FMR) regulations 72 to 78 and Forms 2 to 7. (Copies of these forms are available as Attachments 3 to 8).

The legislation relevant to each step of the process is identified in the checklist at Attachment 2.

A question of interpretation has been raised in relation to the meaning of section 6.64(1) of the Act which gives the power to a local government to take possession of land where any rates or service charges which are due to a local government in respect of any rateable land have been unpaid for at least 3 years.

Advice received by the department indicates that irrespective of any payment made towards the unpaid rates which have been outstanding for at least three years the process for taking possession of the land remains valid. It is considered that section 6.64(1) of the Act applies where any part of a sum (for rates and/or service charges) is still unpaid three years after it first became due.

3. Matters to Check

3.1 Preliminary

In determining whether the local government can take possession of the land, it must ensure that;

• the land is rateable. Except as provided for in s.6.26 of the Act, all land within a district is rateable.
• any unpaid service charge is not one that is imposed on the occupier of land who is not the owner of that land (s.6.63).
• the total amount of rates or service charges raised and due on the land by the issue of rate notices remain unpaid for at least the last three years. The three years is calculated from the date they became due (s.6.64).

For example, rates are outstanding for 2008/09, 2009/10 and 2010/11. The 2008/09 rates were levied on 10/08/2008; the rate notice was issued on 24/08/2008 and the nominated due date was 30/09/2011, which is the date to be used.

• the rates or service charges outstanding on the land are not deferred under s.33 of the Rates and Charges (Rebates and Deferments) Act 1992.
• the local government has the relevant certificate of title details.
• the person listed on the local government’s rate record is the same as the owner on the certificate of title for the land, or the person listed on the rate record meets the definition of ‘owner’ (s.1.4).
• flag the property to prevent payments being received electronically from someone who doesn’t have an estate or interest in the land.

3.2 Other matters to check

• Whether the owner’s goods and chattels remain on the property. Where the owner has long since vacated the property and their whereabouts are unknown, but they have left their goods and chattels behind, it is suggested that local governments have the ability to proceed with action to dispose of the goods and chattels under the Disposal of Uncollected Goods Act 1970.
• Whether there is an inhabitant on the property (other than the owner) that has no legal right of occupation (i.e. a squatter). In this case, this will mean that a person is trespassing on land which the local government has the right to possession. It is understood that the local government would be entitled to take steps to have the person removed (and the premises secured). It is suggested that in the context of a particular case, a local government seek its own legal advice.

3.3 Taking possession of the land

• Prior to taking action to lease, sell or transfer land, a local government must “take possession” of the land. 
• A notice, in the form of Form 2, advising that the local government has taken possession of the land, has to be given to the owner of the land (s.6.64(2); FMR r.72 and Form 2) Refer Attachment 3.
• A notice, in the form of Form 3, advising that the local government has taken possession of the land, has to be affixed to a conspicuous part of the land (s.6.64(2); FMR r.73 and Form 3) Refer Attachment 4.
• A local government is to surrender possession of the land if all rates and service charges due on the land are paid within 12 years of the taking of possession (s.6.67(1)). 
• A local government does not have to give up possession of the land if it receives a portion only of the rates and service charges due on the land or if it has exercised a power under s.6.64(1)(b) (c) or (d) of the Act and is in the process of selling or transferring the land to the Crown or to itself (s.6.67(1)).
• If all outstanding rates and service charges on the land are paid within 12 years of the taking of possession, and the local government has leased the land under s.6.64(1)(a), possession of the land is to be given up on the expiration of the lease (s.6.67(2).

Note: In this guideline, a reference to a Notice being ‘served’ or ‘given’, may be served or given in any of the ways provided for by sections 75 and 76 of the Interpretations Act 1984. Refer also to the Local Government Act 1995, Part 9 Division 3 - Documents.

3.4 Selling the Land

• The local government must have taken possession of the land (See 3.3).
  
• The power of sale of the land is not to be exercised unless the local government has made at least one attempt in the last three years under s.6.56 of the Act to recover the outstanding rates or service charges (s.6.68(1)).

Note: Court action must have been initiated.

The local government does not have to initiate recovery for money due on the land if it holds the reasonable belief that the cost of the proceedings under s.6.56 will equal or exceed the value of the land. (s.6.68(2)), or having made reasonable efforts to locate the owner of the property, is unable to do so. The local government is to ensure that such decisions are recorded in the relevant Council minutes.

• Before the power of sale is exercised, a notice in the form of Form 4 has to be served on the owner of the land personally or served by certified mail to the address appearing in the rate record or a register kept under the Transfer of Land Act 1893 or in a memorial or record kept by the Registrar of Deeds (s.6.68(3); Sch. 6.3 cl.1.(1)(a); FMR r.74, Form 4) Refer Attachment 5.
• The register kept under the Transfer of Land Act 1893 can be searched at Landgate.
• A search of certificate(s) of title can be conducted to obtain the address details of the registered proprietor of land under the Transfer of Land Act 1893.
  
• It should be noted that if the search of the certificate of title for the relevant land shows that the land is “subject to dealing” there may be unregistered documents which have been lodged but are yet to be processed. Such unregistered documents may affect the information shown on the title search. A facsimile request is required to obtain a copy of any unregistered document. Please note that because unregistered documents are searched manually, copies of the unregistered documents may take up to 48 hours.

Searches can be ordered through the Landgate website and paid for by credit card or through a Landgate account.

Searches can also be obtained in person or ordered by facsimile on 9250 3187.

For old system land, searches of the Register containing memorials under the Registration of Deeds Act 1856 to obtain the address and details of the registered proprietor can be conducted at Landgate, Midland upon payment of the prescribed fee:

Landgate
1 Midland Square Morrison Road (cnr Gt Northern Hwy)
Midland, Western Australia, 6056

Office opening hours: 8.00am - 5.00pm Monday to Friday

Document lodgement: 8.00am - 4.30pm Monday to Friday

For further information on searching the Register under the Registration of Deeds Act 1856 see Paragraph 10.1.7 of the Landgate Practice Manual, including a schedule of the fees charged for each document searched.

A notice in the form of Form 4 has to be served, on other persons whom records indicate have an estate or interest in the land, personally or served by certified mail to the address appearing in the rate record or a register kept under the Transfer of Land Act 1893 or in a memorial or record kept by the Registrar of Deeds. (Sch. 6.3 cl.1.(1)(b); FMR r.74, Form 4).

• In relation to land under the Transfer of Land Act 1893, a full title search may be conducted to obtain the details of estates or interests in the land which are registered on or noted against the certificate of title for the land (see above). A list of estates, interests, encumbrances and notifications appears in the second schedule of the certificate of title. Individual documents can be searched by document number.
• In relation to old system land, searches of memorials under the Registration of Deeds Act 1856 can be conducted at Landgate, Midland (see previous column).
• It should be noted that if the search of the certificate of title for the relevant land shows that the land is “subject to dealing” there may be unregistered documents which have been lodged but are yet to be processed. Such unregistered documents may affect the information shown on the title search. A facsimile request is required to obtain a copy of any unregistered document. Please note that because unregistered documents are searched manually, copies of the unregistered documents may take up to 48 hours.

A notice in the form of Form 4 has to be posted on the official notice board of the local government for not less than 35 days. (Sch. 6.3 cl.1.(1)(c); FMR r.74, Form 4).

The local government notice requiring payment is to:

• be in writing and dated and signed by the CEO;
• specify the land in respect of which the rates or services charges are owed;
• specify the total amount owing;
• include a statement that in default of payment the land will be offered for sale by public auction upon the expiration of 3 months from the date of the notice, at a time appointed by the local government; and
• be in or substantially in the form of Form 4. (Sch. 6.3 cl.1.(2)(a) to (e)) If no sufficient address can be found appearing in the rate record or a register kept under the Transfer of Land Act 1893 or in a memorial or record kept by
• the Registrar of Deeds for a person required to be served, the notice, in the form of Form 4, is to be served by the local government giving local public
• notice, as under s.1.7 of the Act. The notice may include land belonging to more than one person. (Sch. 6.3; FMR r.74 and Form 4).
• The local government must appoint a time, between 3 and 12 months from the service of the notice(s), at which time the land may be offered for sale by public auction. (Sch. 6.3 cl.1.(4)).
• The local government must advertise the sale by giving Statewide public notice, as required by s.1.7 and 1.8 of the Act, in, or substantially in, the form of Form 5 (Refer Attachment 6). In addition, the notice may be given in other means the local government considers is necessary or desirable, for example on its website. (Sch. 6.3 cl.2.(1) (a)(b); FMR r.75 and Form 5) The notice may include land owned by more than one owner, a description of the land and any improvements on it to convey to persons likely to be interested in the sale, the condition of the land and improvements.
• The local government is to provide to the Registrar of Titles or the Registrar of Deeds (as the case requires) a memorial (a copy of the Statewide public notice) and this is to be registered for each piece of land referred to in the memorial. (Sch. 6.3 cl.2.(3)).

See Paragraph 11.4.18.2 of the Landgate Practice Manual.

• A Memorial of the advertisement of the proposed sale by the local government for non-payment of rates must be lodged with the Registrar of Titles in an approved form.

The Memorial of Advertisement must comprise:

• a true copy of the original advertisement certified as such by the Chief Executive Officer of the relevant Local Government. The advertisement must be substantially in the form of the Notice of Sale Form 5 as set out in Regulation 75 of the Local Government (Finance Management) Regulations 1996;
• (b) a copy of the full page of the statewide newspaper containing the Notice of Sale Form 5; and
• a Landgate B2 or B4 form (available from Landgate’s website and via the Landgate Practice Manual) as the back page of the Memorial of Advertisement with all preparation and lodgement details completed on the form.
• No registration fees are payable for lodgement of the Memorial of Advertisement.
• A letter is sent by the Registrar of Titles to the relevant Local Government advising that the Memorial of Advertisement has been registered.
• Please note: if the advertisement is not substantially in the form of Form 5, contains errors or does not comply with Landgate’s requirements, the Memorial of Advertisement may not be accepted for registration by the Registrar of Titles or the Registrar of Deeds. For example, the Registrar of Titles may request re-advertising if the information contained in the Form 5 is incorrect.

Note: There is also provision for the Governor to rectify omissions and irregularities under section 9.64 of the Local Government Act 1995. After the memorial is registered, the Registrar of Tiles or the Register of Deeds is prohibited from registering or accepting an instrument affecting the land without the consent of the local government (Sch. 6.3 cl.2.(4)).

• A Memorial of Advertisement remains in force for twelve months from the date of registration and acts as an absolute caveat until it is withdrawn or expires.
• Documents that are not “instruments” for the purposes of the Transfer of Land Act 1893 may continue to be endorsed on the title to the land by the Registrar of Titles without the consent of the Local Government during the period that the Memorial of Advertisement is in force on the title. This includes such documents as: caveats, applications to amend the name of registered proprietors, surrenders of lease, discharges of mortgage, withdrawals of caveat and notifications.
• Documents lodged in registrable form together with the relevant local government’s consent will be processed in accordance with Landgate’s usual registration procedures.
• This prohibition covering the registration of the memorial does not extend beyond 12 months from the day on which the memorial is delivered to the Registrar of Titles or Deeds. This prohibition does not apply if a person having an estate or interest in the land, within seven days prior to the notified time of actual sale of the land, pays the local government the outstanding rates and or service charges and the costs incurred to that time in proceedings relating to the proposed sale of the land. (Sch. 6.3 cl.2.(4) and cl.7.; s.6.69)
• Acceptance of payment of the outstanding rates and or service charges by the local government, within the seven days prior to the notified sale, or after the seven days has elapsed on such terms and conditions as agreed between the parties, puts a stay on the proposed sale proceedings. (Sch. 6.3 cl.2.(4); s.6.69).

As soon as practicable after the acceptance of such a payment, the local government is to deliver to the Registrar of Titles or Deeds, a certificate, signed and dated by the Chief Executive Officer, certifying that all outstanding rates and service charges, costs and expenses have been paid and upon receipt of this certificate, the Registrar of Titles or Deeds will then endorse a memorandum that the land has ceased to be bound by the memorial. (s.6.69; FMR r.76)

A Certificate stating that all outstanding rates and service charges, costs and expenses have been paid is required to be lodged at Landgate and should comprise:

1. an original letter from the Chief Executive Officer of the relevant Local Government stating that the rates, costs and expenses have been satisfied; and
2. a Landgate B2 or B4 form (available from Landgate’s website) as the back page of the certificate with all preparation and lodgement details completed on the form.

Following lodgement of a Certificate in the appropriate form signed by the Chief Executive Officer of the Local Government, the Registrar of Titles causes to be entered on the relevant title a memorandum that the land has ceased to be bound by the Memorial of Advertisement.

No fees are payable for withdrawal of the Memorial of Advertisement. If after the expiry of twelve months the Memorial of Advertisement has not been removed, it is ignored as an encumbrance.

If a contract for sale has not been entered into within 12 months from the date that the land is offered for sale by public auction notice, in the form of Form 5, the proceedings for the power to sell the land cease to have effect.

Proceedings can however be recommenced after this 12 months period, and the same power of sale of land proceeding requirements apply again for any proposed future sale. (Sch. 6.3 cl.7.)

If a contract of sale is entered into within the twelve month period after the date the land is offered for sale pursuant to the power of sale, a Transfer (Landgate Form T5) giving effect to this sale may be accepted for registration by the Registrar of Titles during or after this period unless a dealing has been lodged which prevents registration of the Transfer.

The local government’s power of sale includes:

• the power to sell the land (in whole or in part, together or in lots) by public auction, or by private treaty if the land has been offered, though not sold, by public auction;
• the power to impose terms and conditions the local government thinks fit, for instance payment arrangements, and the fixing of a reserve price;
• the power to vary a contract of sale by agreement and to buy in at the auction;
• the power to rescind a contract for sale on default of the other party, without being answerable for loss occasioned by the rescission and resale; and
• the power to make thoroughfares, grant easements of right-of-way or drainage over the land as the circumstances require, and as the local government thinks fit. (Sch. 6.3 cl.3.(a) to (d)).

Note: An option open to local governments is to obtain an ‘occasional licence’ under the provisions of the Auction Sales Act 1973 and the Auction Sales Regulations 1974. An ‘occasional licence’ authorises the holder to act as and carry out the business of, an auctioneer in relation to the occasion and circumstances specified in the licence.

The application process for an Occasional Licence is summarised as follows:

1. Complete two (2) copies of the Occasional Auctioneers Licence Application Form (Form 3).
2. Obtain three (3) character references in duplicate.
3. Prepare a cheque or money order (payable to the Department of the Attorney General for the amount as specified in the Auction Sales Regulations 1974.
4. Lodge the applications, references and payment at the court nearest the applicant’s place of business.
5. If granted the licence will be valid for seven (7) days.

After Sales Matters

• Where a transfer or conveyance of an estate in fee simple is made under s.6.64(1)(a) to (d) of the Act, this matter is not able to be brought to court for prosecution on the grounds;
  • that no case has arisen, or
  • that the proper procedures were not followed, or – that the power was otherwise improperly or irregularly exercised (s.6.72).
• Should a person claim that there has been an unauthorised, or improper, or irregular use of the power, there is a remedy open to them in damages against the local government but not against the Crown (s.6.72).
• A sale of land by a local government discharges the land and the owners, present and past, from any liability for rates, service charges or other money due to the local government at the time of sale and secured by a charge over the land, or otherwise recoverable under the Act or another written law (s.6.73(a) to (d)).
• The local government is required to apply the proceeds from the sale of the land in the manner set out in Sch. 6.3 cl.5. This lists the priority of payment allocation from the sale proceeds, summarised as follows;

Priority and payment allocation:

1. The costs and charges and expenses incurred by the local government in the land sale process.
2. (i) Unpaid rates and service charges for the land
   (ii) Costs and other money due or imposed by the Crown or an instrumentality of the Crown (e.g. State agency or department)
   (iii) Other amounts due to the local government under the Act or other written law. Where insufficient funds remain after the first step has taken place, Sch. 6.3 cl.5.(b)(iii) provides the detail on how any remaining sale proceeds are to be distributed.
3. Vendor’s costs and expenses relating to the conferring of title upon the purchaser of the land.
4. The discharge of a charge on the land relating to drainage and sewerage connection and fittings.
5. The discharge of other mortgages and encumbrances on the land both registered and unregistered.
6. Within 12 months, payment of any sale proceeds that remain to the person or persons with an entitlement to the land but for the sale (Sch. 6.3 cl.5.).

Where the local government exercises its power of sale under sections 6.64(1)(b) and 6.68 and Schedule 6.3 of the Local Government Act 1995, a Transfer (Landgate Form T5) executed by the local government using its common seal is used for transfers of land under the Transfer of Land Act 1893.

If the land is old system land which has not been brought under the Transfer of Land Act 1893 the procedure for a conveyance of land under the Registration of Deeds Act 1856 will apply. See paragraph 10.1.3 of the Landgate Practice Manual.

The Transfer (Landgate Form T5) must be supported by a statutory declaration made on the back page of the Form T5 by the Chief Executive Officer, attesting to compliance with the provisions of Part 6 Division 6, Subdivision 6 of the Local Government Act 1995.

In circumstances where there is a duplicate certificate of title, it is not required to be produced but the Registrar may with the consent of the Commissioner of Titles dispense with the production of the duplicate certificate of title (if any). The Registrar has the power to make orders or require advertisement as if the duplicate title was lost or not produced under the Transfer of Land Act 1893.

Where a paper title is in existence, a new title is created and registered in the name of the transferee. In the case of a digital title, a new edition of the duplicate digital title is issued.

Please refer to 3.6, on removal of encumbrances.

The issue of a receipt by the local government for money paid on the sale of the land is sufficient discharge. (Sch. 6.3 cl.6.)

Refer to Sale of Land Checklist Attachment 2.

3.5 Leasing the Land

• When rates or service charges are due on rateable land and have not been paid for at least three years, a local government may take possession of the land and from time to time lease the land for a term, not exceeding seven years at one time, with such reservations, exceptions, covenants and conditions as the local government thinks fit. (s.6.65 and Sch. 6.2 cl.1.(1))
• The local government must have taken possession of the land, (See 3.3)
• Where the proposed lease of the land is to exceed 3 years, the local government is to produce the lease to the Registrar of Titles for registration purposes. (Sch. 6.2 cl.1.(2) and s.91 Transfer of Land Act 1893)

The following are some of Landgate’s requirements for registration of leases which may apply

• The consent of any mortgagee or annuitant registered in priority to the lease is required.
• A lease must be prepared on a Landgate L1 Form for a lease of freehold land.
• If the duplicate title is not produced for registration of the lease, the Registrar of Titles may with the consent of the Commissioner of Titles dispense with the duplicate title, but may cause orders and advertisements to be made as are provided for by the Transfer of Land Act 1893 in the case of a duplicate certificate of title which is lost or not produced (Schedule 6.2 cl.1.(2) (b) of the Local Government Act 1995).
• Where the lease relates to a portion of a Lot or Location, it must have a Land Description that is defined by a sketch or an “Interest Only” Deposited Plan. A lease of part of a building may have a narrative land description (see paragraph 2.8.4 of the Landgate Practice Manual).
• The term of the lease must be clearly defined, i.e. must have a commencement date (which may be a past date or up to 21 years in the future) and either a finish date or a finite term.

Please note that this is not an exhaustive list of Landgate’s requirements.

See paragraph 2.8 of the Landgate Practice Manual for further information on registration of leases.

• Land leased by the local government, exercising its power to do so under s.6.64(1)(a) of the Act, does not cease to be rateable land for the local government or prejudice or effect the recovery of rates or taxes due to the State or Commonwealth and their associated departments, instrumentalities and agencies. (s.6.66(1))(2))
• A lessee is entitled to possession as against persons with an estate or interest in the land, but this does not affect the rights of a local government under the lease, public easements that affect the land, or the rights of the State or Commonwealth and their associated departments, and agencies. (s.6.66(3))
• The local government is required to apply the rent or other money from the lease of the land in the manner set out in Sch. 6.2 cl.2. This lists the priority of allocation from the lease proceeds, summarised as follows:
  1. The costs and charges and expenses incurred by the local government in the land lease process.
  2. Unpaid rates and service charges for the land.
  3. Costs and other money due or imposed by the Crown or an instrumentality of the Crown (State, agency, department).
  4. Payment of any lease proceeds that remain to the person or persons with an entitlement to the land but for the lease. (Sch. 6.2 cl.2.)

3.6 Transfer of the Land to the Crown or to the Local Government

Where the land has been offered for sale for non payment of rates or service charges and a contract of sale has not been entered into at the expiration of 12 months from the date that the land is offered for sale by public auction notice (Form 5), the land may be transferred in fee simple, to the Crown in right of the State or to the local government. The transfer is subject to the Transfer of Land Act 1893, or by deed when it is not covered by the Transfer of Land Act 1893. (s.6.71(1); Sch. 6.3)

The local government must have taken possession of the land. (See 3.3)

Upon transfer to the Crown or to the local government, all encumbrances affecting the land are of no further force or effect against the land and the Registrar of Titles or Registrar of Deeds is to remove all encumbrances from the title to the land. (s.6.71(2))

Note: State Land Services (SLS) does assist local governments by accepting transfer of land under s.6.71 of the Act and re-releasing it under the Land Administration Act 1997 (LAA), often with covenants or conditions requiring development within specified timeframes. SLS also actively identifies parcels of Crown land in town sites that may be released for development. However, there are no provisions in the LAA for enforcing development on freehold lots.

• A Transfer (Landgate Form T5) executed by the local government using its common seal is used for transfers of land that is under the Transfer of Land Act 1893 (to either the Crown under section 6.71(1)(a) or to the local government under section 6.71(1)b)).
  
• If the land is old system land which has not been brought under the Transfer of Land Act 1893 the procedure for a conveyance of land under the Registration of Deeds Act 1856 will apply. See paragraph 10.1.3 of Landgate Practice Manual.
• The Transfer (Landgate Form T5) must be supported by a statutory declaration made on the back page of the Form T5 by the Shire or Town clerk, attesting to compliance with the provisions of Part 6 Division 6, Subdivision 6 of the Local Government Act 1995.
• In circumstances where there is a duplicate certificate of title, it is not required to be produced but the Registrar may with the consent of the Commissioner of Titles dispense with the production of the duplicate certificate of title (if any). The Registrar has the power to make orders or require advertisement as if the duplicate title was lost or not produced under the Transfer of Land Act 1893.
• Where a paper title is in existence, a new title is created and registered in the name of the transferee. In the case of a digital title, a new edition of the duplicate digital title is issued.
• No stamp duty or registration fees are payable in respect of the Transfer. x Please see below guidelines on removal of encumbrances.