On 11 October 2021, the Real Property Amendment (Certificates of Title) Act 2021 commenced, which abolished the Certificates of Title (CTs) and the control of the right to deal (CoRD) framework. All existing CTs have been cancelled and CTs will no longer be issued. Existing CTs will not need to be produced, and CoRD holder consent will not be required, for a dealing or plan to be registered. All existing Guidelines subject to this change are currently being reviewed and will be updated to reflect these changes. For further information regarding the abolition of CTs, please see https://www.registrargeneral.nsw.gov.au/property-and-conveyancing/eConveyancing/abolition-of-certificates-of-title

Application for a Possessory Title

This page aims to help you complete an electronic Application for a Possessory Title dealing form. This form is used as an application to be registered as proprietor of Torrens Title land based on possession pursuant to section 45D Real Property Act 1900. The application must be in respect of a whole parcel, i.e. the whole or residue of the land comprised in a folio of the Register or the whole or residue of a lot or portion in a current plan.

An application cannot be made in respect of Crown land or land held by a statutory authority, a local council, a joint organisation (as referred to in section 400O Local Government Act 1993) or the owner of a transacted distribution system or transacted transmission system (under the Electricity Network Assets (Authorised Transactions) Act 2015): see section 45D(3) Real Property Act 1900.
 
NOTE: An Application for a Possessory Title affecting part of the land or a manual title (i.e. a Volume Folio for which a computer folio has not been created) must be lodged as a Dealing with Exception.
 
NOTE: Every possessory application is different, and NSW LRS may require that additional evidence is provided to prove the possession of the affected land by the applicant. NSW LRS notes that all declarants should make statements about the following:

  • Information about the lot claimed:
    • the reference to title for the lot claimed
    • the full name of the applicant
    • if there is more than one applicant, the tenancy/shares in which they hold the land
  • Full details about the possession, including:
    • the declarant’s name, age and address
    • the declarant’s means of obtaining knowledge about the possession, to the best of their information and belief,
    • to the best of their information and belief, the time and circumstances under which the possession relied on commenced (in instances where the applicant(s) relies on a chain of possession).
    • when and how possession by the applicant(s) commenced
    • the manner and extent to which the land has been used and occupied, including detailed particulars of any acts of ownership upon which the allegation of possession is based
    • detail the extent, full or partial, and manner in which the land has been enclosed or the boundaries marked since the time the claim of possession commenced
    • the nature of any improvements (for example any buildings, fences etc.) on the land, when they were constructed and by whom
  • Full details of other matters or claims that would prevent the application being granted. For this purpose, statements about the following must be included:
    • whether they have heard of, or are aware of, any claim adverse to the claim by the applicant or their predecessors in possession i.e. a claim over land by some other person. If aware, full details must be provided
    • whether they have heard of, or are aware of any litigation involving the subject land. If aware, full details must be provided including the nature and result of such litigation.
    • whether they are aware of any restrictive covenant, or easement affecting the subject land, and if so provide details
    • whether, to their knowledge, the applicant(s) or their predecessors in possession have at any material time acknowledged the title of, or paid rent to any person
    • that the Limitations Act 1969 will not prohibit a possessory title being acquired against the persons interested in the land at law or in equity.

The above provides a guide about the type of information which is to be included in a declaration. Declarants must ensure that the evidence provided is applicable to the circumstances of each claim. Requisitions will be raised in instances where the statutory declaration is incomplete or has been copied from a guide or publication with information that is not applicable to the application.
 
NOTE: The declarations should make reference to a plan, which clearly identifies the land and indicates the nature of existing improvements and occupations erected thereon.
The plan may be:

  • a registered deposited plan of survey (include plan number)
  • an unregistered plan of survey, an identification survey plan or a sketch plan annexed to the declaration. 

NOTE: All Statutory Declarations and evidence that are lodged in support of this dealing will be treated as publicly accessible and will be disclosed to persons upon request. This includes any objections provided.

NOTE: The applicant must be represented in the workspace for this dealing form. 

Subscriber requirements

Before lodging this document electronically via an Electronic Lodgment Network, a Subscriber must:

  1. verify their Client’s identity
  2. establish their Client’s right to deal with the land
  3. have a properly completed and executed Client Authorisation form and
  4. retain evidence that supports the dealing (see Supporting Evidence below).

The Subscriber must also certify that they have taken reasonable steps to ensure that the instrument is correct and compliant with relevant law and any Prescribed Requirement.

For more information on these requirements see:

Residual Documents

Guide to complete

Legislation – section 45D Real Property Act 1900.

Stamp Duty – required.

Notice of Sale – required. There is no need to separately create a Notice of Sale form. The Notice of Sale form is automatically produced in the workspace and sent to NSW LRS when the instrument is lodged.

Standard Form of Caveat – a caveat noted on the Register will not prevent the registration of a possessory application, unless the caveat has been lodged before the grant of the application and Item (4) has been selected in ‘Schedule 2 Action prohibited by this caveat’ of the caveat. See section 74F and section 74H(1)(a)(ii) Real Property Act 1900.
However, NSW LRS will always consider the interest claimed in a caveat in accordance with section 74H(1) Real Property Act when determining whether the caveat will prevent the grant of a possessory application.

Priority Notice Noted on the Register - see Priority Notice page for more information.

The following headings refer to the data fields which must be completed in order to lodge an electronic Application for a Possessory Title dealing form.

Land Title

Enter the land title reference(s). The application must be in respect of a whole parcel, i.e. the whole or residue of the land comprised in a folio of the Register or the whole or residue of a lot or portion in a current plan.

Participant Details

Party Details – Party Name

Enter the name of the applicant.

Document

Create Document – Select Other Documents.

Select Application for a Possessory Title.

Registered Proprietor.

Select the registered proprietor.

Applicant

Select the applicant.

Tenancy/Shares of the Applicant

Enter the tenancy/shares of the applicant.

Encumbrances

Any registered lease, mortgage or charge that is to be cancelled and not carried forward on the title must be stated.

Evidence must be furnished to show how these interests have been extinguished. Enter N/A if not applicable.

Attachment

Attachment Type – Statutory Declaration

Complete and attach the Statutory Declaration and Schedule for an Application for a Possessory Title (Form SD-04YA).

The statutory declaration must be made by the applicant, the applicant's attorney or an authorised officer (the nature of the authority must be disclosed) of the applicant and must be witnessed by a prescribed functionary. 

General statutory declaration requirements can be found here

NOTE: The information mentioned in items 1 and 2 in the statutory declaration by the applicant must be set out in Schedules 1 and 2 in the Schedule to the Application for a Possessory Title.

Attachment Type – Supporting Evidence

Attach the supporting evidence. The following evidence in support of the application is also required:

  • a statutory declaration by the applicant
  • a statutory declaration by at least two disinterested witnesses corroborating the statutory declaration evidence provided by the applicant(s)
  • a letter from the Local Council re payment of rates for the limitation period and
  • a survey certificate re the definition of the affected land.

Attachment Type – Caveator’s Consent

Attach a caveator’s consent if required.

Supporting evidence

In addition to evidence supporting the steps taken by the Subscriber to verify the identity of their Client and establish their Client’s right to deal, the Subscriber may be required to retain other evidence to support the dealing.

The evidence that the Subscriber is required to retain to support an Application for a Possessory Title dealing form may include:

  • a true copy of the duly executed version of the document(s) uploaded as an attachment.

Other forms of evidence may be acceptable and it is a matter for the Subscriber to be satisfied that they have met the requirements for the dealing. Please refer to the ARNECC Guidance Note 5 for assistance on retaining evidence to support conveyancing transactions in accordance with the NSW Participation Rules.

All NSW legislation can be accessed at www.legislation.nsw.gov.au