How Do I Transfer Only Part of My Land?

Selling a portion of a block rather than the whole raises a question the Register has to answer precisely: which part? The Land Registration Act deals with the mechanics; the Land Act 1996 usually has to be satisfied first.

Section 42(6)(b) — what issues on a partial transfer

Section 13 supplements this. Under section 13(3), where a transfer relates to part, the Registrar may, at the request of the transferor, issue him a new certificate as to the residue. Under section 13(4), a transferee of part shall take out a new certificate in his own name — that one is mandatory.

The survey comes first

You cannot transfer “the back half”. The part must be described so the Registrar can create a folio for it, which in practice means a survey plan.

Section 157 gives the Registrar the power to require it: he may require a plan to be prepared, certified as he directs and deposited within a period he directs — and if the proprietor neglects or fails to comply, the Registrar is not obliged to proceed with the registration. Once deposited, the plan is retained and registered, and the allotment numbers marked on it may be used to describe the land in later dealings.

Section 12 then allows the Registrar, where a plan has been registered, to require the proprietor to deliver up the duplicate for cancellation and take out a new certificate for each allotment on the plan.

For a State lease, subdivide first

Two features of that process are worth remembering: the new leases are of the same kind as the surrendered lease and expire on the same date it would have; and they preserve your rights in respect of improvements, which an ordinary surrender would not.

Ministerial approval still applies

The transfer of the subdivided portion remains a controlled dealing under Part XVII of the Land Act if the lease has more than five years to run. It is void without the Minister’s approval, and approval must be withheld unless rent is paid to date and the improvement conditions have been performed.

And section 35(4) of this Act independently bars the Registrar from registering the dealing unless satisfied of the same matters.

Mortgages, easements and access

1. A registered mortgage over the whole must be dealt with. The lender will need to discharge as to the part sold, or consent to a partial discharge, and will want security over the residue.
2. Access. If the part sold has no frontage, an easement must be created and registered. An omitted or misdescribed easement still binds under section 33(1)(d) — but relying on that is no substitute for creating it properly.
3. Services. Water, power and drainage crossing one part to serve the other need easements too.
4. Existing tenants. A tenancy of three years or less, or a tenant in actual occupation, binds the buyer of the part whether or not it is registered.

Sequence for transferring part

1. Check compliance — rent paid, improvement conditions performed.
2. Obtain planning permission for land in a physical planning area.
3. Survey and prepare the subdivision plan.
4. Apply to subdivide under Part XVIII; accept the conditions; surrender within 30 days and take the new leases.
5. Create any easements for access and services.
6. Obtain Ministerial approval of the transfer of the portion.
7. Execute the transfer in the approved form, stating the true consideration — misstating it is an offence under section 42(4).
8. Lodge with the duplicate title, promptly — priority runs from production, and under section 24(2) a later dealing lodged with the title beats an earlier one lodged without it.
9. Take a new certificate for the residue under section 13(3).