s.42(2)(e) of Transfer of Land Act 1958

  • Author : Robert Hay QC - 19-07-2011

Traditionally leases in Victoria have not been registered because of the protection afforded by s. 42(2)(e) of the Transfer of Land Act 1958 which provides that :

“….land which is included in any folio of the Register or registered instrument shall be subject to - …..

(e) the interests of (but excluding any option to purchase) of a tenant in possession of the land;”

Because of s.42(2)(e) any purchaser of the relevant land was bound by the lease. The reference to “tenant in possession” means a person in actual possession of the land. See: Burke v Dawes (1937-38) 59 CLR 1 at 17-18; Balanced Securities Ltd v Bianco [2010] VSC 162 at [79].

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Robert Hay QC

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