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1. Overview
Any person who is under the age of eighteen years is a minor and as such is incapable of dealing in real property. However, a minor can become the registered proprietor of land. Section 59 of the TLA requires the Registrar to show the age of the minor on a certificate of title registered in the name of a minor.
Where a minor is required to execute an instrument as accepting party, it is a matter of discretion as to whether such instrument can be signed by the minor or should be signed by a parent or guardian on the minor’s behalf. A Court Order is required, appointing a person to sign instruments under the Act, where it is necessary or desirable for a minor to sell or mortgage land (see s.82 of the Trustees Act 1962).
The instruments are prepared in the name of the minor and executed by the person appointed in the Order. The Order must be produced when the instruments are lodged. A form of attestation suitable to such cases is:
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Signed by (Name of the Minor) as by (his or her) guardian ad litem (Name of Guardian) in the presence of Witness (Full Name, Address and Occupation) |
) ) ) (Signature of Guardian) ) |
To overcome this restriction, land held beneficially by a minor is frequently registered in the name of a trustee pursuant to a declaration of trust.
In certain cases, minors are given statutory power to deal with their real property. The Land Act 1933 (s.26 and 150) provided that a person over 16 years of age may select, acquire, transfer or hold and mortgage any land under the Land Act 1933. The TLA (s.81G) contains complementary provisions in respect of Crown leases registered under the TLA.1
The Land Act 1933 was repealed by the Land Administration Act 1997 (LAA). The LAA makes no specific provisions regarding minors dealing in Crown land.1
1Paragraph updated 15/02/2024