The priority notices regime was introduced into South Australia in April 2015, following the commencement of Part 13A of the Real Property Act 1886 (SA).
Priority notices reserve priority for an unregistered interest in land, and give notice to the rest of the world of a proposed registration of an instrument (which is a document such as a transfer or a mortgage). For example, when property is sold, the purchaser may register a priority notice for the transfer. If the purchase is being financed by way of a mortgage over the property, the Bank may also lodge a priority notice.
Priority is a way of establishing who has the first interest in property, and because the Torrens System is a system of title by registration, priority (or “first in time”) is an essential feature.
Lodgement of a priority notice is not mandatory, but may become a matter of good conveyancing practice. Fees for lodgement of a priority notice are quite low, compared to the lodgement of an instrument, and there is no fee to view or amend a notice. This reflects the temporary nature of the priority notice.
A priority notice lapses after 60 days if the instrument (such as a transfer or mortgage) is not lodged, but the notice can be extended a further 30 days. If the instrument is lodged, the priority notice remains in effect until registration is complete. If a priority notice lapses without registration of the instrument, a fresh one can be lodged, but it will not keep its priority if other notices are lodged first.
A self-represented party may only lodge a priority notice in person at the Lands Titles Office. Practitioners have access to an on-line system to allow notices to be easily lodged and amended.
A priority notice prevents registration of instruments that are not identified in the priority notice. However, there are exceptions to the priority rule – so a priority notice does not prevent the registration of a caveat, charging order, warrant of sale, workers liens, statutory charges and other similar instruments. [Real Property Act 1886 (SA) S154B]
If a person lodges a caveat to protect an interest in a family law situation or a deceased estate, assuming that the basis for the caveat is established, the caveat will take priority over the interest in the priority notice. Unlike a caveat, the registered owner of the property is not notified of the lodgement of a priority notice.
A registered proprietor of land may apply to the Registrar-General to have a priority notice cancelled. The Registrar-General also has the power to cancel a priority notice if satisfied that the interest is unlikely to be registered within the 90 day period. [Real Property Act 1886 (SA) S154F]
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