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1. General
The Registrar cannot enter trusts on a certificate of title but declarations of trust may be deposited with the Registrar under s.55 of the Transfer of Land Act 1893 (TLA). The original is1 deposited and a Registrar’s Caveat is lodged to protect the interests of the beneficiaries under the trust deed.
1"or duplicate" removed from sentence 24/06/2020
2. Form Requirements
There is no special form to be used (but may be prepared using a Blank Instrument Form), but any form used is to be duly stamped by Revenue WA (s11(1)(c) Duties Act) and it must contain:
- the name and address of the registered proprietor/interest holder2 (the trustee)
- the name and address of the beneficiary
- an accurate description of the land, and where applicable, the interest2
- a declaration by the trustee that the land/interest2 specified is held in trust for the beneficiary
and
- any special limitation, or condition on the powers of the trustee; and must be dated and signed by the trustee in the presence of an adult witness.
2Interest holder/interest added 24/06/2020
In the case of family trusts or settlements it is necessary to produce and file with a declaration of trust a copy of the family trust or settlement deed. Later declarations of trust in the same family trust or settlement should contain a reference to the number of the first declaration of trust in which the copy is filed. This is necessary because the Registrar must know who is to be protected and what powers, other than those in the Trustees Act 1962, the trustee has to deal with the land.
3. Removal Options
As a general rule the Registrar’s Caveat will remain in place to protect the identified beneficiaries until one of the following actions is undertaken.
The Registrar’s Caveat cannot be removed by anyone other than the Registrar of Titles.
3.1. By Transfer
Where a bona fide Contract of Sale for valuable consideration to an independent party is executed and upon lodgement of the stamped Transfer of Land , the Registrar of Titles will remove the caveat placed on the Certificate of title identifying the land as trust property. As the interest of a beneficiary in land does not cease until registration of a document, including a transfer to a third party, the transfer will need to be lodged subject to the caveat.
Where a transfer by mortgagee exercising Power of Sale, local government for non-payment of rates, or a sale pursuant to a Property (Seizure and Sale) Order, these types of transfers will remove the property as a trust asset. Upon the registration of the transfer, the Registrar’s Caveat will be removed.
The removal process occurs when the documents are lodged and are in a registerable form, not before.3
3Section 3.1 updated 15/08/2023
3.2. By Vesting / Winding Up / Termination of the Trust
Superannuation Funds and Trust Funds generally provide for the vesting, winding up or termination of the Fund. Each scenario may require different actions by the trustee and varies if the trustee is a company or individual(s).
If the trust property is held in the name of a trust company the relevant transfer is required and where appropriate supported by the relevant evidence, sometimes in the form of Vesting Deed or Agreement.
In the event that the trustee(s) are one and the same as the beneficiaries, a transfer cannot be used. See Transfer by a Proprietor to themselves (TFR-01 Transfers - Common Scenarios). A person seeking the withdrawal of the caveat needs to satisfy the Registrar of Titles that the proposed transaction is one that the trustee has authority to undertake. As part of that process, the person seeking withdrawal of the caveat should make the request in writing setting out the reason for the withdrawal of caveat, the basis on which it is claimed that the trustee has power to undertake that transaction and any additional evidence to support the written request, such as a statutory declaration(s), stamped contracts or agreements, beneficiaries consents to Trustee exercising a power which is not or may not be authorised by the Trust Deed, Will or Statute.
3.3. By Discharge/Surrender/Removal of the protected interest
Where the Registrar’s Caveat is protecting an interest over land (such as a Lease), the Registrar of Titles will remove the caveat placed on the Certificate of title upon the lodgement of a registerable discharge/application to remove/surrender.The evidence may be in the form of a Surrender of Lease or Transfer of Lease (see above section 3.1 of this topic).3
3Section 3.3 updated 15/08/2023
4. Transaction of land subject to a Trust/Registrar's Caveat4
As a general rule, the Registrar’s Caveat will remain in place to protect the identified beneficiaries and will not prevent the trustee from dealing with the land where its within their specified powers. This is because the interest of a beneficiary in land does not cease until registration of a document, such as a transfer to a third party.
The trustee’s powers are generally covered and identified in the Deed that established the Trust or within following Variation Deeds. It is the responsibility of the trustee and their representatives to ensure they are authorising the appropriate land transaction within their powers to do so.
A request to remove a Registrar’s Caveat prior to the lodgement is unlikely to be granted, as the interest of the beneficiaries does not cease until registration. The transaction(s) should be lodged subject to the caveat.
4.1 Transfer of Land to effect a change of Trustee
Where the trustee(s) of the trust has changed, a transfer changing trustee will need to be correctly prepared, and where relevant, the necessary deed presented as evidence. Upon lodgement, if the transfer is in a registerable form, the existing Registrar’s Caveat will be withdrawn and a new Registrar’s Caveat will be prepared to replace it. For further information, please refer to TFR-01 Transfers - common scenarios.
4.2 Refinancing
Where the trustee has the power to mortgage the land, a mortgage prepared in the name of the trustee will need to be prepared and lodged. If in a registerable form, the existing Registrar’s Caveat will be withdrawn and a new Registrar’s Caveat will be prepared to replace it.
Please note that reference to the trust should not be made in the mortgage document. For further information, please refer to MTG-03 Mortgage document preparation.
4.3 Other transaction types
As above, where the trustee has the express power to grant or take on or create that interest (lease/easements/subdivide) or transaction against real property, the document will be assessed on its merits, and if in a registerable form, the existing Registrar’s Caveat will be withdrawn and, where relevant, a new Registrar’s Caveat will be prepared to replace it.
In those cases where the transaction is not an instrument, the Registrar’s Caveat will remain unchanged.
4Section added 15/08/2023