Download Property Law Act 1974 PDF

TitleProperty Law Act 1974
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Table of Contents
	Part 1 Preliminary
		1 Short title
		2 Act binds Crown
		3 Dictionary
		4 Act not to be taken to confer right to register restrictive covenant
		5 Application of Act
		6 Savings in regard to ss 10–12 and 59
	Part 2 General rules affecting property
		7 Effect of repeal of Statute of Uses
		8 Lands lie in grant only
		9 Reservation of easements etc. in conveyances of land
		10 Assurances of land to be in writing
		11 Instruments required to be in writing
		12 Creation of interests in land by parol
		13 Persons taking who are not parties
		14 Conveyances by a person to the person etc.
		15 Rights of husband and wife
		15A Rights of aliens
		16 Presumption that parties are of full age
		17 Merger
		18 Restrictions on operation of conditions of forfeiture
	Part 3 Freehold estates
		19 Freehold estates capable of creation
		20 Incidents of tenure on grant in fee simple
		21 Alienation in fee simple
		22 Abolition of estates tail
		23 Abolition of quasi-entails
		24 Liability of life tenant for voluntary waste
		25 Equitable waste
		26 Recovery of property on determination of a life or lives
		27 Penalty for holding over by life tenant
		28 Abolition of the rule in Shelley’s Case
		29 Words of limitation
	Part 4 Future interests
		30 Creation of future interests in land
		31 Power to dispose of all rights and interests in land
		32 Restriction on executory limitations
	Part 5 Concurrent interest—co-ownership
		Division 1 General rules
			33 Forms of co-ownership
			34 Power for corporations to hold property as joint tenants
			35 Construction of dispositions of property to 2 or more persons together
			36 Tenants in common of equitable estate acquiring the legal estate
		Division 2 Statutory trusts, sale and division
			37 Definitions for div 2
			37A Property held on statutory trust for sale
			37B Property held on statutory trust for partition
			38 Statutory trusts for sale or partition of property held in co-ownership
			39 Trustee on statutory trusts for sale or partition to consult persons interested
			40 Right of co-owners to bid at sale under statutory power of sale
			41 Sale or division of chattels
			42 Powers of the court
			43 Liability of co-owner to account
	Part 6 Deeds, covenants, instruments and contracts
		Division 1 Deeds and covenants
			44 Description and form of deeds
			45 Formalities of deeds executed by individuals
			46 Execution of instruments by or on behalf of corporations
			47 Delivery of deeds
			48 Construction of expressions used in deeds and other instruments
			49 Implied covenants may be negatived
			50 Covenants and agreements entered into by a person with himself or herself and another or others
			51 Receipt in instrument sufficient
			52 Receipt in instrument or endorsed evidence
			53 Benefit and burden of covenants relating to land
		Division 2 General rules affecting contracts
			54 Effect of joint contracts and liabilities
			55 Contracts for the benefit of third parties
			56 Guarantees to be in writing
			57 Effect of provisions as to conclusiveness of certificates etc.
			57A Effect of Act or statutory instrument
			58 Insurance money from burnt building
		Division 3 Sales of land
			58A Definitions for div 3
			58B Meaning of settlement of a sale of land in an e-conveyance
			59 Contracts for sale etc. of land to be in writing
			60 Sales of land by auction
			61 Conditions of sale of land
			62 Stipulations not of the essence of the contract
			63 Application of insurance money on completion of a sale or exchange
			64 Right to rescind on destruction of or damage to dwelling house
			65 Rights of purchaser as to execution
			66 Receipt in instrument or endorsed authority for payment
			67 Restriction on vendor’s right to rescind on purchaser’s objection
			67A When statutory rights of termination end for land sales if e-conveyancing is used
			68 Damages for breach of contract to sell land
			68A Forfeiture of deposit on purchaser’s default
			69 Rights of purchaser where vendor’s title defective
			70 Applications to court by vendor and purchaser
			70A Computers inoperative on day for completion
		Division 4 Instalment sales of land
			71 Definitions for div 4
			71A Application of div 4
			72 Restriction on vendor’s right to rescind
			73 Land not to be mortgaged by vendor
			74 Right of purchaser to lodge caveat
			75 Right to require conveyance
			76 Deposit of title deed and conveyance
	Part 7 Mortgages
		77 Definitions for pt 7
		77A Application of pt 7
		78 Implied obligations in mortgages
		79 Variation of mortgage
		80 Inspection and production of instruments
		81 Actions for possession by mortgagors
		82 Tacking and further advances
		83 Powers incident to estate or interest of mortgagee
		84 Regulation of exercise of power of sale
		85 Duty of mortgagee or receiver as to sale price
		86 Effect of conveyance on sale
		87 Protection of purchasers
		88 Application of proceeds of sale
		89 Provisions as to exercise of power of sale
		90 Mortgagee’s receipts discharges etc.
		91 Amount and application of insurance money
		92 Appointment, powers, remuneration and duties of receiver
		93 Effect of advance on joint account
		94 Obligation to transfer instead of discharging mortgage
		95 Relief against provision for acceleration of payment
		96 Mortgagee accepting interest on overdue mortgage not to call up without notice
		97 Interest of mortgagor not seizable on judgment for mortgage debt
		98 Abolition of consolidation of mortgages
		99 Sale of mortgaged property in action for redemption or foreclosure
		100 Realisation of equitable charges by the court
		101 Facilitation of redemption in case of absent or unknown mortgagees
	Part 8 Leases and tenancies
		Division 1 Rights, powers and obligations
			102 Abolition of interesse termini as to reversionary leases and leases for lives
			104 Voluntary waste
			105 Obligations of lessees
			106 Obligations in short leases
			107 Powers in lessor
			109 Short forms of covenants and obligations of lessees
			110 Cases in which statutory obligations or powers not implied
			111 Lessee to give notice of ejectment to the lessor
			112 Provisions as to covenants to repair
		Division 2 Surrenders, assignments and waiver
			113 Head leases may be renewed without surrendering under-leases
			114 Provision as to attornments by tenants
			115 When reversion on a lease is surrendered etc. the next estate to be deemed the reversion
			116 Apportionment of conditions on severance
			117 Rent and benefit of lessee’s covenants to run with the reversion
			118 Obligation of lessor’s covenants to run with reversion
			119 Waiver of a covenant in a lease
			120 Effect of licences granted to lessees
			121 Provisions as to covenants not to assign etc. without licence or consent
			122 Involuntary assignment no breach of covenant
		Division 3 Relief from forfeiture
			123 Definitions for div 3
			123A Application of div 3
			124 Restriction on and relief against forfeiture
			125 Power of court to protect under-lessee on forfeiture of superior leases
			126 Costs and expenses
			127 Relief against notice to effect decorative repairs
			128 Relief against loss of lessee’s option
		Division 4 Termination of tenancies
			129 Abolition of yearly tenancies arising by implication of law
			130 Notice of termination of tenancy
			131 Form and contents of notice
			132 Manner of giving notice
			133 Notice to terminate weekly tenancy
			134 Notice to terminate monthly tenancy
			135 Notice to terminate yearly tenancy
			136 Notice to terminate other periodic tenancy
			137 Notice to terminate other tenancies
			138 Tenants and other persons holding over to pay double the yearly value
			139 Tenant holding over after giving notice to be liable for double rent
		Division 5 Summary recovery of possession
			140 Definitions for div 5
			141 Summary proceedings for recovery of possession
			142 Mode of proceeding
			143 Contents of complaint
			144 Summons upon complaint for recovery of possession of land
			145 Hearing and determination
			146 Warrant for possession
			147 Arrears of rent etc.
			148 Rehearing where proof made by affidavit
			149 Court’s powers in proceeding under this division
			150 Protection of justices etc.
			151 Protection of landlord entitled to possession
			152 Persons lacking right to possession not protected
		Division 6 Agricultural holdings
			153 Definitions for div 6
			154 Application of div 6
			155 Tenant’s property in fixtures
			156 Tenant’s right to compensation
			157 Intended improvements
			158 Agreements etc.
			159 Arbitration
			160 Notice of intended claim
			161 Rules for ascertaining amount of compensation
			162 Recovery of compensation
			163 Landlord who is a trustee
			164 Compensation to tenants, when mortgagee in possession
			165 Incoming tenant’s claim for compensation reserved
			166 Change of tenancy not to affect right to compensation
			167 Power of entry
	Part 10 Incorporeal hereditaments and appurtenant rights
		176 Prohibition upon creation of rent charges
		177 Release of part of land subject to rent charge
		178 No presumption of right to access or use of light or air
		179 Right to support of land and buildings
		180 Imposition of statutory rights of user in respect of land
		181 Power to modify or extinguish easements and restrictive covenants
	Part 11 Encroachment and mistake
		Division 1 Encroachment of buildings
			182 Definitions for div 1
			183 Application of div 1
			184 Application for relief in respect of encroachments
			185 Powers of court on application for relief in respect of encroachment
			186 Compensation
			187 Charge on land
			188 Encroaching owner—compensation and conveyance
			189 Adjacent owner—compensation and conveyance
			190 Vesting order
			191 Boundaries
			192 Suit, action or other proceeding
			193 Persons interested
			194 Costs
		Division 2 Improvements under mistake of title
			195 Application of div 2
			196 Relief in case of improvements made by mistake
			197 Nature of relief
			198 Right to apply or be served
	Part 11A Rights of way
		198A Prescriptive right of way not acquired by user
	Part 12 Equitable interests and things in action
		199 Statutory assignments of things in action
		200 Efficacy in equity of voluntary assignments
	Part 13 Powers of appointment
		201 Application of pt 13
		202 Mode of exercise of powers
		203 Validation of appointments where objects are excluded or take illusory shares
		204 Protection of purchasers claiming under certain void appointments
		205 Disclaimer etc. of powers
	Part 14 Perpetuities and accumulations
		206 Definitions for pt 14
		206A When disposition in will made
		206B When person to be treated as member of class
		207 Application of pt 14
		208 Powers of appointment
		209 Power to specify perpetuity period
		210 Wait and see rule
		211 Power to apply to court for declaration as to validity
		212 Presumptions and evidence as to future parenthood
		213 Reduction of age and exclusion of class members to avoid remoteness
		214 Unborn husband or wife
		215 Dependent dispositions
		216 Abolition of the rule against double possibilities
		217 Restrictions on the perpetuity rule
		218 Options
		219 Determinable interests
		220 Trustee powers and superannuation funds
		221 Non-charitable purpose trusts
		222 Accumulation of income
	Part 15 Corporations
		223 Devolution of property of corporation sole
		224 Vacancy in corporation
		225 Transactions with corporation sole
		226 Corporation incapable of acting
		227 Corporate contracts and transactions not under seal
	Part 16 Voidable dispositions
		228 Voluntary conveyances to defraud creditors voidable
		229 Voluntary disposition of land how far voidable as against purchasers
		230 Acquisitions of reversions at an under value
	Part 17 Apportionment
		231 Definitions for pt 17
		232 Rents etc. apportionable in respect of time
		233 Exceptions and application
	Part 18 Unregistered land
		Division 1 Application of part—interpretation
			234 Definition for pt 18
			234A Application of pt 18
		Division 2 Sales and conveyances
			235 No conveyance to have tortious operation
			236 Want of livery of seisin
			237 Statutory commencements of title
			238 Other statutory conditions of sale
			239 General words implied in conveyances
			240 All estate clause implied
		Division 3 Registration of deeds
			241 Registration of instruments and wills
			242 Mode of registration
			243 Signature on behalf of dead or absent party
			244 Receipts by registrar and endorsement
			245 Mistakes in registration
			246 Deeds to take effect according to priority of registration
			247 Fraud of conveying party
			248 Covenants to produce deeds
			249 Certified copy as evidence
		Division 4 Compulsory registration of title
			250 Progressive registration of unregistered land
			251 Claims by persons claiming to be entitled to land or registrable interests
			252 Vesting of land in Crown
			253 Powers and duties of the registrar
			254 Investigator of old system titles
			254A Continuation of division after commencement of Land Title Act 1994
	Part 19 Property (de facto relationships)
		Division 1 Preliminary
			255 Main purposes of pt 19
			255A Relationship of this part with the Family Law Act in relation to particular financial matters
			256 How main purposes are to be achieved
			257 Application of pt 19
			258 Other rights not affected
		Division 2 Interpretation
			Subdivision 1 General
				259 Definitions for pt 19
			Subdivision 2 De facto partner and relationship concepts
				260 Extended meaning of de facto partner for pt 19
				261 Meaning of de facto relationship
			Subdivision 3 Financial matters and financial resources concepts
				262 Meaning of financial matters
				263 Meaning of financial resources
			Subdivision 4 Cohabitation, separation and recognised agreement concepts
				264 Meaning of cohabitation agreement
				265 Meaning of separation agreement
				266 Meaning of recognised agreement
			Subdivision 5 Publication and account of a de facto proceeding concepts
				267 Meaning of publish
				268 Meaning of account of a de facto proceeding
		Division 3 Resolution of financial matters by de facto partners
			Subdivision 1 Purpose of division and use of agreements
				269 Purpose of div 3
				270 Cohabitation and separation agreements are valid
				271 Court’s jurisdiction may not be excluded
				272 Law of contract applies
				273 Effect of de facto partner’s death
			Subdivision 2 Relationship between recognised agreements and proceedings
				274 No property adjustment order inconsistent with recognised agreement
				275 Court to ignore revoked provision
				276 Court may vary recognised agreement if serious injustice or impracticable
			Subdivision 3 Relationship between agreements other than recognised agreements and proceedings
				277 Other cohabitation or separation agreements may be considered
				278 Court to ignore revoked provision
		Division 4 Resolution of financial matters by court
			Subdivision 1 Declaration of property interests
				279 Purpose of sdiv 1
				280 Court may declare property interests
				281 Court may give effect to declaration
			Subdivision 2 Adjustment of property interests
			Subsubdivision 1 General
				282 Purpose of sdiv 2
				283 De facto partner may apply
				284 De facto partners or child may benefit from adjustment
				285 Not affected by other rights
				286 Court may make property adjustment order
			Subsubdivision 2 Requirements for property adjustment proceedings
				287 Type of de facto relationship
				288 Time limit for making application
				289 Disclosure of financial circumstances
				290 Disclosure of child support and relevant orders
			Subsubdivision 3 Matters for consideration in deciding what is just and equitable
				291 Contributions to property or financial resources
				292 Contributions to family welfare
				293 Effect on future earning capacity
				294 Child support
				295 Other orders
				296 Other matters
			Subsubdivision 4 Additional matters for consideration to the relevant extent in deciding what is just and equitable
				297 Age and health
				298 Resources and employment capacity
				299 Caring for children
				300 Necessary commitments
				301 Responsibility to support others
				302 Government assistance
				303 Appropriate standard of living
				304 Contributions to income and earning capacity
				305 Length of relationship
				306 Effect of relationship on earning capacity
				307 Financial circumstances of cohabitation
				308 Child maintenance
				309 Other facts and circumstances
			Subsubdivision 5 Adjournment because of likely change in financial circumstances
				310 Likelihood of significant change in financial circumstances
				311 Matters for consideration by court
				312 Orders may be made before adjournment
				313 Adjournments on other grounds not affected
			Subsubdivision 6 Change in circumstances
				314 Delayed operation of order
				315 Effect on proceeding of death of party
		Division 5 Existence of a de facto relationship
			Subdivision 1 Declaration about existence of relationship
				316 Purpose of div 5
				317 Application
				318 Court may adjourn hearing if other affected person
				319 Court may make declaration about existence of relationship
				320 Court may make declaration about non-existence of relationship
				321 Declaration to include date
				322 Death of de facto partners irrelevant
				323 Effect of declaration
			Subdivision 2 Revocation of declaration
				324 Party or affected person may apply
				325 Court may adjourn hearing if other affected person
				326 Court may revoke declaration
				327 Court may make ancillary orders
				328 Effect of revocation
		Division 6 Courts
			Subdivision 1 Jurisdiction
				329 Courts having jurisdiction under pt 19
				330 Stay or dismissal of proceeding in relation to same person
				331 Transfer of proceeding to more appropriate court
			Subdivision 2 Powers
				332 Purpose of sdiv 2
				333 Court’s powers
				334 Variation and setting aside of orders
				335 Transactions to defeat claims
				336 Interests of other parties
				337 Duty of court to end financial relationship
			Subdivision 3 Miscellaneous matters concerning proceedings
			Subsubdivision 1 Intervention
				338 Application for leave
				339 Leave to intervene
				340 Intervener’s rights
			Subsubdivision 2 Costs
				341 Party bears own costs
			Subsubdivision 3 Publication of proceedings
				342 Specifically authorised publication
				343 No identification in general publication
				344 Offence
	Part 20 Miscellaneous
		345 Protection of solicitors and others adopting this Act
		346 Restriction on constructive notice
		347 Service of notices
		348 Payments into and applications to court
		349 Forms
		350 Approval of forms
		351 Regulation-making power
	Part 21 Transitional provision for Property Law (Mortgagor Protection) Amendment Act 2008
		352 Mortgagor protection
	Part 22 Transitional Provision for Civil and Criminal Jurisdiction Reform and Modernisation Amendment Act 2010
		353 Amendments do not affect existing matters
	Part 23 Transitional provisions for Land Sales and Other Legislation Amendment Act 2014
		354 Definitions for pt 23
		355 Application of s 68A
		356 Existing instalment contracts
	Part 24 Transitional provisions for Court and Civil Legislation Amendment Act 2017
		357 Application of s 57A
		358 Saving provision for s 57A
	Schedule 1 Procedure in cases of bona vacantia
		1 Procedure in cases of escheat or other like cases
		2 Writ of inquisition
		3 Return of writ
		4 Writ to be returned before new grant made
		5 Effect of certificate
		6 Saving
		7 Procedure when waiver by the Crown
		8 Power to regulate procedure with respect to escheats to the Crown
		10 Interpretation
	Schedule 3 Short forms of covenants in leases
	Schedule 4 Improvements by tenant
	Schedule 5 Rules as to arbitration
	Schedule 6 Dictionary
Document Text Contents
Page 1



Property Law Act 1974

Current as at 5 June 2017

Page 2


© State of Queensland 2019

This work is licensed under a Creative Commons Attribution 4.0 International License.

Page 138


[s 148]

Property Law Act 1974
Part 8 Leases and tenancies
be issued, a Magistrates Court at the place where the order
was made may, upon application in that behalf made by the
defendant or by the defendant’s counsel or solicitor, within 7
days after the date on which the order was made, if in its
opinion there is a proper reason for so doing, grant a rehearing
of the complaint upon which the order was made on such
terms and subject to the payment of such costs as it thinks fit.

(2) Upon and because of the grant of a rehearing—

(a) subject to subsection (4), the order for the issue of a
warrant made upon the first hearing and any warrant
issued under it shall cease to have effect; and

(b) the court may, with the consent of the complainant,
proceed with the rehearing immediately or it may and, if
the complainant does not consent to the court
proceeding with the rehearing immediately, shall set
down the rehearing for a later date; and

(c) on the rehearing, the complaint shall be reheard and
redetermined as if the rehearing were the original
hearing and determination.

(3) Upon the rehearing proof shall not be made by affidavit of any
of the matters required by section 145(1) to be proved.

(4) If the defendant when called does not appear at the time and
place appointed for the rehearing, the court, if it thinks fit,
may without rehearing the complaint order that the original
order (and, where applicable, warrant) be restored and such
order (and, where applicable, warrant) shall be restored to
effect accordingly and shall be deemed to have had force and
effect on and from the date when the order was first made or,
in the case of such warrant, it was first issued.

(4A) However, in the case of such a warrant the time limited for its
execution shall begin to run on and from the date of the order
restoring it to effect.

(5) Where in the case of a complaint containing a further matter
of complaint under section 147, the matters of complaint have
been heard together, then upon and because of the grant of a
rehearing of the complaint the order (if any) made against the
Page 136 Current as at 5 June 2017

Authorised by the Parliamentary Counsel

Page 139


[s 149]

Property Law Act 1974
Part 8 Leases and tenancies
defendant in respect of such further matter of complaint shall,
subject to subsection (6), cease to have effect and upon the
rehearing such further matter of complaint shall be reheard
and redetermined as if the rehearing were the original hearing
and determination of the original hearing.

(6) If, under subsection (4), the court orders the original order for
the issue of a warrant made upon the complaint to be restored
the order (if any) made against the defendant in respect of the
further matter of complaint shall, without any order of the
court be also restored to effect.

(7) However, the court, upon the application of the complainant
and upon proof, which may be by affidavit, of the amount
payable and unpaid at the date it restores the order for the
issue of a warrant made upon the original complaint, may vary
the order made in respect of the further matter of complaint so
as to require the payment of such amount.

149 Court’s powers in proceeding under this division

(1) The powers conferred on a court by this division are in
addition to the powers (including any power of amending a
complaint) of the court under the Justices Act 1886.

(2) In respect of a proceeding under this division upon a
complaint that includes a claim for the recovery of possession
of land the court shall have and may exercise all or any of its
powers as if the proceeding were upon a complaint for a
breach of duty.

(3) In respect of a claim for rent or mesne profits made before it
by way of complaint under this division the court shall have
and may exercise all or any of the powers conferred by the
Magistrates Courts Act 1921 on a Magistrates Court
constituted by the person or persons who constitute the court
in the proceeding in which the claim is made.

(4) An order made in a proceeding under this division for the
payment of money (including by way of costs) shall, for the
purposes of the enforcement of the order, be deemed to have
been made by a Magistrates Court in the exercise of its
Current as at 5 June 2017 Page 137

Authorised by the Parliamentary Counsel

Page 276


Schedule 6

Property Law Act 1974
president of the Law Society means the president for the time
being of the Queensland Law Society Incorporated
constituted under the Queensland Law Society Act 1952.

property adjustment order, for part 19, means an order under
section 286.

publish, for part 19, see section 267.

purchaser means a purchaser for valuable consideration, and
includes a lessee, mortgagee, or other person who for valuable
consideration acquires an interest in property.

recognised agreement, for part 19, see section 266.

registered means the making or recording by proper authority
in the appropriate register (if any) or other book, instrument or
document of such entries, endorsements, particulars or other
information as may be requisite for recording a dealing or
other transaction with respect to land.

registered land means land under the provisions of the Land
Title Act 1994.

registrar means the registrar of titles.

rent includes yearly or other rent, toll, duty, royalty, or other
reservation by the acre, hectare, the ton, tonne or otherwise.

sale means only a sale properly so called.

securities include stocks, funds, and shares.

separation agreement, for part 19, see section 265.

settlement, of a sale of land or a contract for the sale of land,
see section 58B.

subscriber, for part 6, division 3, see section 58A.

title deed includes a certificate of title to, or deed of grant in
respect of, registered land.

trustee corporation means the public trustee and any
corporation authorised by the Trustee Companies Act 1968 to
administer the estates of deceased persons and other trust
Page 274 Current as at 5 June 2017

Authorised by the Parliamentary Counsel

Page 277


Schedule 6

Property Law Act 1974
unregistered land means land that has been granted in fee
simple and is not registered land or land granted in trust under
the Land Act.

valuable consideration includes marriage but does not
include a nominal consideration in money.

warden has the meaning given by the Mineral Resources Act
Current as at 5 June 2017 Page 275

Authorised by the Parliamentary Counsel

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