People go overseas, fall ill, or run businesses from another province. Part XIII of the Land Registration Act lets someone else deal with registered land on the proprietor’s behalf — on conditions.
Section 128 — the terms
- “Donor” — the person who executed the power of attorney.
- “Attorney” — the person authorised and appointed by it.
- “Register” — in this Part, the separate register of powers of attorney kept under section 129(3).
Section 129 — creating and depositing the power
(1) The proprietor of an estate or interest may, by power of attorney (a) in a form used for that purpose before the commencement date, or (b) in the approved form, authorise and appoint a person to deal with the estate or interest in accordance with this Act.
(2) The person executing it, or the attorney, shall deposit an original or an attested copy with the Registrar.
The Registrar shall keep a register of powers of attorney affecting lands under the Act, and on deposit shall enter a memorial of the power in that register.
Section 129(5) — the effect of the entry
Subject to section 135(2), after the making of the entry, all acts lawfully done or performed by the attorney under the authority of, and within the limits prescribed by, the power have the same force and effect and are equally binding on the proprietor as if the acts had been done by him.
- “After the making of the entry” — the protection runs from the memorial being entered, not from the date the document was signed. Deposit it promptly.
- “Under the authority of, and within the limits prescribed by, the power” — acts outside the power do not bind the donor. Section 132 reinforces it: the power shall be exercised in accordance with the directions contained in the power.
Section 130 — the endorsement as proof
A power of attorney bearing an endorsement signed by the Registrar that a memorial has been entered shall be received in evidence as sufficient proof that the person to whom the power has been granted is duly authorised to make all contracts, sign all instruments, and perform all other lawful acts in accordance with the powers limited and appointed in the power of attorney.
So the endorsed instrument is the attorney’s credential. A counterparty dealing with an attorney should ask to see it, and should read the power itself to check the acts proposed fall within it.
Section 131 — the Registrar may presume it unrevoked
Where an instrument executed under a power of attorney is tendered for registration, it is not necessary for the Registrar to require proof that the power was unrevoked at the time of registration.
This is efficient for the system and dangerous for a donor. The Registrar will not check whether you have revoked the power. If you revoke, act positively:
- Notify the Registrar in writing and ask for the revocation to be recorded in the register of powers of attorney.
- Recover the endorsed instrument from the former attorney — it is their credential under section 130.
- Notify anyone likely to deal with them — your bank, your lawyer, any party to a pending transaction.
- Consider a caveat if you fear a dealing is imminent.
Drafting the power well
Because acts within the power bind you absolutely, the drafting is where the protection lies.
- Identify the land — volume and folio — rather than granting a power over “all my land”.
- Specify the acts permitted. Selling, mortgaging, leasing and surrendering are very different powers. Grant only what is needed.
- Set limits — a minimum price, a maximum borrowing, a required consent.
- Set an expiry date. Section 131 makes an open-ended power a standing risk.
- Say whether the attorney may benefit personally — and if not, say so expressly.
- Deposit it promptly, because the section 129(5) effect runs from the entry.
The other approvals still apply
A power of attorney lets someone act for you; it does not remove the controls on the dealing itself. A transfer of a State lease executed by an attorney is still a controlled dealing — void without Ministerial approval under section 128(2) of the Land Act 1996, and unregistrable unless rent is paid and improvement conditions performed under section 35(4) of this Act.
Where a power of attorney is not the answer
- The proprietor has died. A power of attorney does not survive death. The route is transmission under Part XII, by the executor, administrator or Public Trustee.
- The proprietor is insolvent. Division 1 of Part XII deals with transmission on insolvency.
- The proprietor lacks capacity. Take advice; a power executed after capacity is lost is not effective, and section 8(4) requires the Registrar to record the nature of a disability on a certificate of title issued to a person under one.
- A group holds the land. For customary land, the vehicle is an Incorporated Land Group acting through its representatives, not a power of attorney from individuals.
Sources
- Land Registration Act (Chapter 191) — ss 8, 128–132, 135; Parts XII and XIII
- Land Act 1996 — ss 127–129
- Wills, Probate and Administration Act (Chapter 291)
- Insolvency Act (Chapter 253)
Before relying on anything here, read the current text of the Land Act 1996 and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.