The Land Transfer Act 1952 made provision for the entry of “no survivorship” notations to provide court oversight and protection for beneficial owners for land held in joint ownership by trustees. While these provisions were repealed by the Land Transfer Act 2017, they are saved and continue to apply in respect of any land titles noted in that way before the repeal took effect (see clause 8, Part 1, Schedule 1 of the LTA 2017).
“No survivorship” joint tenancies were created under section 130 and 131 of the Land Transfer Act 1952 (LTA 1952). When transferring any land or estate or interest in land under the LTA 1952 to two or more people, a transferor could request that “no survivorship” be noted on the register. The Registrar-General of Land (RGL) would then note the ownership on the relevant title as “no survivorship”.
Often the notation was used to show that the title was held by the registered owners as trustees of a trust, given a trust could not be noted on the register.
Effect of “no survivorship” notation on transfers and other dealings
Where these ‘no survivorship’ provisions apply, any transfer, mortgage or other dealing with the land must involve no less than the number of joint proprietors who were registered when the words ‘no survivorship’ were first entered on the title. The only exception is where a dealing by fewer proprietors is sanctioned by the High Court, as provided in section 132 of the LTA 1952
For example, if there were two joint proprietors when the notation was first made on the title, they may transfer the land without Court sanction providing both are a party to the transfer. The new owners will be recorded on the title as holding the title “no survivorship”. If they transfer to a sole proprietor, that proprietor will then need to obtain High Court approval for any subsequent transfer, mortgage or other dealing with the land.
E-dealings against “no survivorship” titles
To assist practitioners, we have endeavoured to flag titles subject to the “no survivorship” provisions under the LTA 1952, regardless of whether the notation appears on the current view of the title. However, it remains the practitioner’s responsibility to review the title to check the status, whether or not the flag is in place. When an e-dealing is prepared for a title subject to the “no survivorship” provisions, Landonline displays a message to that effect. Upon pre-validation a message will display advising that the e-dealing will step down for LINZ checking.
In these cases, registration will only proceed if the instrument transferring or otherwise dealing with the land:
- involves no less than the original number of joint proprietors on the title when the “no survivorship” notation was originally entered, or
- is accompanied by a copy of High Court order sanctioning the dealing if fewer proprietors are involved.
Removal of “no survivorship” notation by order of the High Court
The “no survivorship” notation may be removed from a title by order of the High Court under section 133(2) of the LTA 1952. Upon receiving a sealed duplicate of the order, LINZ will remove the notation from the title in accordance with s 133(3) and these restrictions will no longer apply. This should be done by registering the order as a Court Order (instrument code: CO) against the affected title.
Subject to the comments below, the “no survivorship” notation cannot be removed simply by having the joint proprietors transfer the land to themselves or others.
Removal of “no survivorship” notation by application to the RGL
While the RGL does not have a general discretion to remove “no survivorship” notations, and the LTA 1952 clearly contemplates High Court involvement and oversight in these matters, the RGL will consider removing these notations without a supporting court order in certain cases, based on the judgment of Fogarty J in Sell v Registrar-General of Land [2013] NZHC 1219.
The RGL will consider removing “no survivorship” notations in circumstances where it is clear that the land has been sold, by the requisite number of proprietors, in exercise of an express power of sale in accordance with the trust on which the land is held. This may be evidenced by a statement in the form of a statutory declaration by the lawyer acting for the joint proprietors transferring the land, or by the joint proprietors themselves:
- that the “no survivorship” notation on the title refers to a trust of which the joint proprietors are trustees
- that the joint proprietors have sold the land in the relevant title to the transferees in exercise of an express power of sale under the trust
- that the “no survivorship” notation is no longer required, and
- requesting that the notation be removed from the title on registration of the transfer.
Another possible scenario is where trustees are simply winding up a trust, in exercise of an express power to do so in terms of the trust, but there is no sale to third parties. This is typically effected by a transfer by the requisite number of joint proprietors severing the joint tenancy, and evidenced by a statutory declaration. In these circumstances, the same reasoning in the Sell case applies. A request may be made for the removal of the notation, provided the relevant evidence is lodged with the dealing.
Removal of notation in other circumstances
In any other circumstances where removal of a “no survivorship” notation is sought without the sanction of the High Court, contact the RGL’s office in the first instance before attempting to lodge documentation for registration with LINZ by emailing customersupport@linz.govt.nz
“No survivorship” created by Māori Land Court Order
The Māori Land Court may lodge orders appointing trustees under the Te Ture Whenua Māori Act 1993 that include the words “no survivorship”. The “no survivorship” restrictions in the LTA 1952 do not apply to titles where the “no survivorship” has been entered under the Te Ture Whenua Māori Act 1993. Any subsequent transactions can be registered in accordance with the requirements of the Te Ture Whenua Māori Act 1993.