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1. General
This document is subject to the Verification of Identity Practice issued jointly by the Western Australian Registrar of Titles and Commissioner of Titles. Please refer to the VOI webpage.
Under the TLA, the land or interest in land of a registered proprietor may be seized and sold to satisfy a judgment made in the Magistrates, District or Supreme court. The appropriate means is to lodge a Property (Seizure and Sale) Order (see PSS-01 Property (Seizure and Sale) Order PSSO).
Before a transfer executed by the Sheriff or Deputy Sheriff can be registered, the Property (Seizure and Sale) Order must be lodged at Landgate and the sale period must still be current. A transfer must be on a:
Transfer of Land under Property (Seizure and Sale) Order form
or
Transfer of Mortgage, Charge, Lease etc. under Property (Seizure and Sale) Order form
and is effective as if made by the registered proprietor. The registration of such a transfer may be prevented or delayed by the presence on the Register of caveats and memorials prohibiting dealings. The effect of these documents is discussed separately below.
2. Effect on encumbrances1
2.1. Caveats
- when lodged prior to the Property (Seizure and Sale) Order:
an absolute caveat must be withdrawn. Subject to claim caveats may be withdrawn or they may be noted as encumbrances on the transfer;
- when lodged subsequent to the Property (Seizure and Sale) Order and without the consent of the Sheriff:
a caveat lodged specifically to prevent the sale will delay registration until withdrawn, removed or lapsed. All other caveats are automatically removed.
- when lodged subsequent to the Property (Seizure and Sale) Order and with the consent of the Sheriff:
an absolute caveat must be withdrawn. Subject to claim caveats may be withdrawn or they may be noted as encumbrances on the transfer.
2.2. Memorials
Memorials can be lodged pursuant to certain statutory provisions prohibiting dealings with the estate and interest of the registered proprietor. See MEM-01 Memorials for a detailed list of Statutes. The prohibition against dealing imposed by such memorials is effective irrespective of whether the memorial was lodged before or after the Property (Seizure and Sale) Order under which the power of sale is being exercised. Memorials must be withdrawn or the consent of the lodging authority obtained in writing on the transfer. Where consent is obtained, the memorial must be shown in the Limitations, Interests, Encumbrances and Notifications panel of the transfer.
2.3. Notifications
Notifications can be lodged against land pursuant to certain statutory provisions. See MEM-01 Memorials for a detailed list of Statutes. The notification has effect irrespective of whether it was lodged before or after the Property (Seizure and Sale) Order under which the power of sale is being exercised. The notification must be shown in the Limitations, Interests, Encumbrances and Notifications panel of the transfer.
2.4. Other PSSOs
A PSSO registered prior to the PSSO effecting the sale must be removed by A12 Application to Discharge a PSSO.
PSSO’s lodged subsequent to the PSSO effecting the sale will be removed on the registration of the transfer if the written consent of the Sheriff is obtained and filed with the transfer. Alternatively, a A12 Application to Discharge a PSSO could be used.
2.5. Mortgages
Sections 66, 67 and 80 of the Civil Judgments Enforcement Act 2004 detail how the Sheriff deals with the interests of others. This can include, but is not limited to, mortgages or co-owners.
A Transfer Pursuant to a Property (Seizure and Sale) Order should be lodged with a Discharge of mortgage for any mortgage registered prior to the PSSO effecting the sale (refer section 133 of the Transfer of Land Act 1893).
1Section updated 21/09/2022
Updated 07/08/2023 to remove reference to duplicate certificate of title