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

Transmission application by executor, administrator or trustee

Form  03AE

Dealing type - AE

Legislation - section 93 Real Property Act 1900.

Stamp duty - not required.

NOS form - required for:

  • a change of the First Schedule
  • a change of the lessee of a Crown land tenure Term Lease or Crown land Real Property Act lease.

Panels 1, 2, 3B and 5 require completion.

Not required:

  • for a time-share title, minerals or coal
  • for a change of the Second Schedule
  • affecting a remainderperson.

Standard form of Caveat - does not prevent registration.

A caveat by the NSW Trustee and Guardian protecting the estate of a deceased registered proprietor will be lapsed on registration of a transmission application for that deceased registered proprietor.

Priority Notice noted on the Register - see Priority Notice page.

NOTE: This dealing type may be lodged as a Dealing with Exception provided it is accompanied by a completed Lodgment Rules Exception form. In all other instances, the electronic dealing must be used.

A Transmission application affecting more than one lease, mortgage or charge involving the same deceased registered proprietor (e.g. the same mortgagee) and applicant is a multiple instrument. See Fees page.

See Greg Stilianou, Land Titling Law and Practice in NSW, Lawbook Co. 2013 re:

  • tenants in common [5.20]
  • when to use the transmission application [5.60] and [5.270]
  • the applicant’s capacity on a transmission application and the schemes of ownership available [5.50]
  • apply in one capacity [5.130]
  • who may apply? - statutory machinery in section 93 [5.70]
  • evidence to be lodged in support of a transmission application by an executor, administrator, trustee and beneficiary [5.80] – [5.120]
  • conditional or limited grants of probate [5.180]
  • foreign grants of representation [5.190]
  • completion of the transmission application by executor, administrator or trustee form [5.280]
  • completion of the transmission application by devisee, beneficiary or next-of-kin form [5.290]
  • interplay between a caveat and a transmission application [5.330] – [5.360].

An application affecting a lease carried forward as a subsisting interest (shown on the folio of the Register as 'Bk ... No. ... Lease To ...') is acceptable for lodgment only under one of the following two conditions:

  1. Where it is registered as a deed in the General Register of Deeds and a Request form 11R together with an Old System search showing the party entitled to deal with the lease must be lodged to record the interest.  A change in proprietorship must be registered in the General Register of Deeds. See Baalman And Wells, Land Titles Office Practice, Lawbook Co. 2001 [390.100]. 
    NOTE: The Transmission Application form 03AE cannot be registered in this instance.
     
  2. Where it is accompanied by:
  • a search of the Old System leasehold folio, and
  • a statutory declaration made by the person who undertook the Old System search of the leasehold folio stating:
    • their qualification;
    • that he or she has inspected all deeds since the leasehold folio was created to the present time;
    • the registered "Book and No." and type of all instruments inspected to show the leasehold folio has not expired; and
    • the registered "Book and No." and type of all instruments to which the leasehold estate is subject.

A notification (code ULD): 'Devolution of Lease' is entered in the Second Schedule and all further transactions affecting the lease may be may be embodied in a Real Property Act dealing form and do not require further evidence of devolution.

(A)  The folio for the affected land must be stated.

(B)  The registered number of the lease, mortgage or charge affected by a transmission application must be stated. A lease must still be current regardless of any options. The folio for the affected land must be stated.

(D)  The full name of the deceased registered proprietor must be stated and must be identical to the name of the registered proprietor of the estate or interest affected as shown on the Register, and to the name of the deceased as shown in the probate etc.

NOTE: A transmission application claiming in a fiduciary capacity may be followed later by a transmission application claiming in a non-fiduciary capacity (alternatively, the executor etc may transfer the estate or interest to the beneficiary). The earlier transmission application must show:

  • that the deceased registered proprietor is the same as the deceased in the probate etc accompanying the later transmission application; and
  • the current registered proprietor holds in a fiduciary capacity.

This only applies to paper Transmission Applications. For an electronic Transmission Application a transfer must be lodged.

 

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

Where more than one applicant claims as executor, administrator or trustee, they will be recorded as joint tenants.

(F)  The claiming capacity of the applicant must be stated. The applicant must claim in one capacity only.

Where the executor for the deceased registered proprietor has died, the executor of the deceased executor may apply, i.e. executor by representation. The probate of the deceased executor must be retained. NOTE: The executor of a deceased administrator cannot apply as executor for the deceased registered proprietor's estate or interest.

The date of death of the deceased registered proprietor must be stated. The number of the probate/letters of administration and date of grant must be stated and be identical to the evidence retained. The terms that do not apply must be deleted and verified.

The transmission application must be supported by evidence of the applicant's right to be registered as proprietor. This evidence is not required to be uploaded or presented to NSW LRS. However, the evidence must be retained by the Subscriber to support the dealing in accordance with the NSW Participation Rules.

  • the relevant probate, letters of administration, or a copy thereof certified by a solicitor, barrister, licensed conveyancer, justice of the peace, or an authorised employee of an organisation (a stamp identifying the organisation must be affixed and the name and capacity of the employee must be stated) to be a true copy or
  • a Probate Division office copy or exemplification of the will.

The evidence must indicate to whom and in what capacity the applicant is to hold the land or interest.

NOTE: A Death Certificate is not an acceptable substitute for the evidence specified above.

A probate granted in another State must be re-sealed by the Probate Division of the Supreme Court of NSW.

Where a limited or contingent grant of probate or letters of administration is used as the basis of the application, a statutory declaration is required to establish that the grant has not been terminated by the happening of the subject event. In this instance, a copy of the limited or contingent grant of probate or letters of administration should also be furnished. See Baalman And Wells, Land Titles Office Practice, Lawbook Co. 2001 [170.450].

Where the NSW Trustee and Guardian is the executor or administrator of an estate, a certificate under section 122 NSW Trustee and Guardian Act 2009 may be used in place of the probate or letters of administration.

An application by trustees must be accompanied by:

  • a statutory declaration stating that the executorial duties have been completed and
  • the deed of appointment or other document through which the trustee claims.

(G)  The dealing must be executed by the applicant and be witnessed, or be executed on the applicant's behalf by the following:

  • solicitor or barrister
  • authorised officer and witnessed
  • licensed conveyancer

(H)  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.

Staff processing information

If in order proceed with registration except for the following.

Refer to SD2

A transmission application affecting an SD2 lease.

Refer to SM98

  • Where the Transmission affects a mortgage or charge and there are notifications recorded under the mortgage or charge that changed the ownership of the mortgage/charge or changed the name of the mortgagee/chargee.
  • Where the Transmission affects a lease or sub-lease.

Refer to Legal through the Senior Examining Officer

  • where the applicant claims as a trustee.
  • where an earlier Transmission Application has been registered (i.e. double probate has been granted). 
  • where the applicants claim as tenants in common.
  • affecting a Book and No. lease accompanied by evidence of devolution of the lease.

Registration procedure

CODE (name)    P, C or Q  [name of applicant; include all current registered proprietors]

TENANCY    S, J2 etc.

Affecting a lease

TRANSACTION  MOD

PRIME CODE    code of lease as shown on the Register

PRIME NO.    number of lease

SELECT  ‘Names’

CODE (name)     P, C or Q [name of all current lessees]

COPY & DELETE  (SEE [number of Transmission Application])

SELECT ‘Lease Terms’

PREMISES DESCRIPTION    (See [dealing numbers of previous notifications that changed lessee] [number of Transmission Application]). [Premises description if any.]

Note: Remove all previous dealings that changed lessee and add dealing numbers to the list of dealings in premises description, e.g. (See AA123456 AB456789 AC789123)

Affecting a sub-lease 

RP DETAILS    click Cancel

TRANSACTION MOD

PRIME CODE    code of lease affected by the sub-lease as shown on the Register

PRIME NO.     number of lease 

SUB CODE code of sub-lease

SUB CODE NO. number of sub-lease

SELECT  ‘Names’

CODE (name)     P, C or Q [name of all current sub-lessees]

COPY & DELETE  (SEE [number of Transmission Application])

SELECT ‘Lease Terms’

PREMISES DESCRIPTION    (See [dealing numbers of previous notifications that changed sub-lessee] [number of Transmission Application]). [Premises description if any.]

Note: Remove all previous dealings that changed sub-lessee and add dealing numbers to the list of dealings in premises description, e.g. (See AA123456 AB456789 AC789123)

Affecting a crown lease

PRIME CODE    code of lease as shown on the Register

PRIME NO.    number of lease 

SUB CODE

UCLTA (Crown land lease - for NOS purposes)

UWLTA (Western lands lease- for NOS purposes)

CODE (name)    P, C or Q  [name of lessee ; include all current lessees ].

Affecting a mortgage or charge

RP DETAILS    click Cancel

TRANSACTION    MOD

PRIME CODE    code of mortgage or charge as shown on the Register

PRIME NO.    number of mortgage or charge

CODE (name)     P, C or Q  [name of all current mortgagees or chargees].

DETAILS  (See [dealing numbers of previous notifications that changed mortgagee or chargee] [number of Transmission Application]).

Affecting a Book and No. lease with satisfactory evidence of devolution

 ADD. TRANSACTION    UNDR

PRIME CODE    code of lease as shown on the Register

PRIME NUMBER    number of lease

SUB-CODE    ULD  (Devolution Of Lease)