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

Possessory Application

NOTE: All statutory declarations and evidence that are lodged in support of land dealings will be treated as publicly accessible and will be disclosed to persons upon request. This includes any objections provided.

Form 04YA 

Dealing type - YA

Legislation - s45D Real Property Act 1900

Stamp duty -  required.

Certificate of Title - required if available

NOS form - required.  Panels 1, 2, 3B and 5 require completion.

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 and section 74W Real Property Act 1900.

The standard lodgment fee is payable on lodgment. 

(A) The reference to title for the affected land must be stated. 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.

(C) The full name of the current registered proprietor must be stated and must be identical to the name shown on the Register.

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.

(D) The full name of the applicant must be stated.

(E) Tenancy/shares must be stated where there is more than one applicant.

(F) If a lesser estate is involved reference to 'fee simple' must be deleted and the appropriate estate must be inserted and verified.

(G) 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.

(H) The following evidence is 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.

NOTE: Every possessory application is different and NSW LRS may require that additional evidence is provided in order 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. 

(I) The statutory declaration on the application form must be made by the applicant, the applicant's attorney or an authorised officer (the nature of the authority must be disclosed) and must be witnessed by a prescribed functionary. Where the declaration has been made outside NSW, reference to the Oaths Act 1900 must be deleted, the relevant local Act must be inserted and the alteration verified.

The information mentioned in Items I.1 and I.2 in the statutory declaration must be set out in Schedules One and Two in the application.

(J) This section is to be completed where the notice of sale data (see NOS form above) has been forwarded to NSW LRS through the eNOS facility.

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

Staff processing information

All evidence lodged must be filmed with the minute papers, and the minute papers retained permanently. 

Note  If the evidence required is not furnished with the application, accept the dealing for lodgment.

Refer to SM1

A possessory application affecting a manual folio of the Register. A copy of the folio must be attached to the case before referral to Legal through the Senior Examining Officer.

Refer to Legal through the Senior Examining Officer

A possessory application affecting a computer folio of the Register.

Registration procedure

Proceed with registration as directed.

CODE (name) P, C or Q  [name of applicant]

TENANCY S, J2 etc, T etc