Priority Notices take effect in South Australia

South Australia is the most recent state to introduce the Priority Notice (the Notice).

A Priority Notice is a notice which can be lodged by a party against a certificate of title or crown lease in order to protect their interests in the property. As the name suggests, it gives the lodger “priority” over the pending transaction in respect of particular property.

The Notice can be lodged at the Land Titles Office by anyone and for all dealings. However, the fact that the Notice must be lodged online via the South Australian Integrated Land Information System (the system), and that the lodger must have an account under the system, means that the Notice is usually lodged by conveyancers, legal practitioners and mortgagees. Nevertheless, self-represented parties can still have their Notice lodged by a registration counter staff member at the Land Services Group.

The effect of a Notice is that once it is lodged, only the dealings listed in the Notice are registrable. All other dealings do not become registrable until the period of effectives of the Notice has passed, that is, the Notice is either completed, withdrawn, cancelled or expired.

However, there are some exceptions. For example, dealings lodged before the Notice or consented to (in writing) by the lodging party of the Notice, can still be registered. Some other examples of dealings that are still registrable whilst the Notice is in force are caveats, court orders and statutory charges.

Generally, the period of effectiveness of the Notice is 60 calendar days from the date of lodgement, however, South Australia is the first Australian state which gives a lodger the option to apply for, only once, a further 30 calendar day extension for the Notice. Once this period has passed, the Notice automatically expires and ceases to have effect.

Further, a party may chose whether or not it wants to lodge a Notice. There is no legal obligation to do so. Where there has been more than one Notice lodged in respect of the same certificate of title, by the same or different parties, the Notices will be given priority according to the order of lodgement. It is important to note that once a party lodges the Notice, it cannot be amended or corrected.

The Notice will greatly reform the conveyancing process in South Australia. In addition to putting other parties on notice of a person’s priority in relation to a pending transaction, it will lead to more accurate title searches as well as help to deter fraud and make it easier to detect. Ultimately, it will better protect interests once electronic conveyancing and the removal of copies of certificates of titles, commences.

The South Australian Government’s consultation paper in relation to the Notice provides a helpful overview of how the Notice will operate and includes screen mock-ups to assist lodgers in lodging and withdrawing a Notice.

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