The State Government has announced the Level 1 COVID-19 Business Assistance Package.
Local governments will from time to time face the situation where a person or company does not pay their rates or service charges for a number of years.
The intent of this guideline is to explain the process required to comply with the legislation governing the taking possession of land in order to recover rates and service charges that are unpaid after three years.
Throughout the guideline there are also references made to Landgate’s “Land Titles Registration Practice Manual” as many of the actions detailed have associated “Landgate” requirements.
Local governments may take action to lease or sell the land to recover rates and or service charges outstanding or they may cause the land to be transferred to the Crown or to itself.
Such action should only be considered when all other avenues of inquiry and action (such as the following examples) and where possible, consultation and negotiation for the debt recovery with the person or company, have been exhausted.
This guideline sets out the process, step-by-step, so that if followed correctly the legal requirements should be met.
If the before mentioned and any other steps have not produced any result, a report should be prepared for Council. The report should outline the overdue rates or service charge position, and the attempts at debt recovery and owner location.
The report (refer Attachment 1.) may recommend that Council resolves by simple majority to lease or sell the land to recover rates and or service charges outstanding or may recommend that the local government apply to the Minister for Local Government
to have the land re-vested in the Crown in right of the State under section 6.74 of the Act or make an application for the land to be transferred to itself, under section 6.75 of the Act.
Note: Section 6.68 of the Act states that a local government is not required to attempt to recover money due to it where;
There is a legislative process that must be followed to comply with the lease, sell or transfer requirements of the legislation so that any of these actions are legally enforceable.
The Landgate procedures outlined in these guidelines (highlighted text) are intended as a general guide only and are not a substitute for legal advice. Local governments and other parties should seek their own legal advice in respect of individual transactions.
For further information, the most recent version of Landgate’s Land Titles Registration Practice Manual (Landgate Practice Manual) is available online.
Please note that references to particular paragraphs of the Landgate Practice Manual in these guidelines may be subject to change.
The legislative requirements to take action against land where rates or service charges are unpaid are contained in Part 6, Division 6, sections 6.63 to 6.75 and Schedules 6.2 and 6.3 of the Local Government Act 1995 (the Act) and Part 5 of the Local
Government (Financial Management) Regulations 1996 (FMR) regulations 72 to 78 and Forms 2 to 7. (Copies of these forms are available as Attachments 3 to 8).
The legislation relevant to each step of the process is identified in the checklist at Attachment 2.
A question of interpretation has been raised in relation to the meaning of section 6.64(1) of the Act which gives the power to a local government to take possession of land where any rates or service charges which are due to a local government in respect
of any rateable land have been unpaid for at least 3 years.
Advice received by the department indicates that irrespective of any payment made towards the unpaid rates which have been outstanding for at least three years the process for taking possession of the land remains valid. It is considered that section
6.64(1) of the Act applies where any part of a sum (for rates and/or service charges) is still unpaid three years after it first became due.
In determining whether the local government can take possession of the land, it must ensure that;
For example, rates are outstanding for 2008/09, 2009/10 and 2010/11. The 2008/09 rates were levied on 10/08/2008; the rate notice was issued on 24/08/2008 and the nominated due date was 30/09/2011, which is the date to be used.
Note: In this guideline, a reference to a Notice being ‘served’ or ‘given’, may be served or given in any of the ways provided for by sections 75 and 76 of the Interpretations Act 1984. Refer also to the Local Government Act 1995,
Part 9 Division 3 - Documents.
Note: Court action must have been initiated.
The local government does not have to initiate recovery for money due on the land if it holds the reasonable belief that the cost of the proceedings under s.6.56 will equal or exceed the value of the land. (s.6.68(2)), or having made reasonable efforts
to locate the owner of the property, is unable to do so. The local government is to ensure that such decisions are recorded in the relevant Council minutes.
Searches can be ordered through the Landgate website and paid for by credit card or through a Landgate account.
Searches can also be obtained in person or ordered by facsimile on 9250 3187.
For old system land, searches of the Register containing memorials under the Registration of Deeds Act 1856 to obtain the address and details of the registered proprietor can be conducted at Landgate, Midland upon payment of the prescribed fee:
1 Midland Square Morrison Road (cnr Gt Northern Hwy)
Midland, Western Australia, 6056
Office opening hours: 8.00am - 5.00pm Monday to Friday
Document lodgement: 8.00am - 4.30pm Monday to Friday
For further information on searching the Register under the Registration of Deeds Act 1856 see Paragraph 10.1.7 of the Landgate Practice Manual, including a schedule of the fees charged for each document searched.
A notice in the form of Form 4 has to be served, on other persons whom records indicate have an estate or interest in the land, personally or served by certified mail to the address appearing in the rate record or a register kept under the Transfer of
Land Act 1893 or in a memorial or record kept by the Registrar of Deeds. (Sch. 6.3 cl.1.(1)(b); FMR r.74, Form 4).
A notice in the form of Form 4 has to be posted on the official notice board of the local government for not less than 35 days. (Sch. 6.3 cl.1.(1)(c); FMR r.74, Form 4).
The local government notice requiring payment is to:
See Paragraph 126.96.36.199 of the Landgate Practice Manual.
The Memorial of Advertisement must comprise:
Note: There is also provision for the Governor to rectify omissions and irregularities under section 9.64 of the Local Government Act 1995. After the memorial is registered, the Registrar of Tiles or the Register of Deeds is prohibited from registering
or accepting an instrument affecting the land without the consent of the local government (Sch. 6.3 cl.2.(4)).
As soon as practicable after the acceptance of such a payment, the local government is to deliver to the Registrar of Titles or Deeds, a certificate, signed and dated by the Chief Executive Officer, certifying that all outstanding rates and service charges,
costs and expenses have been paid and upon receipt of this certificate, the Registrar of Titles or Deeds will then endorse a memorandum that the land has ceased to be bound by the memorial. (s.6.69; FMR r.76)
A Certificate stating that all outstanding rates and service charges, costs and expenses have been paid is required to be lodged at Landgate and should comprise:
Following lodgement of a Certificate in
the appropriate form signed by the Chief
Executive Officer of the Local Government,
the Registrar of Titles causes to be entered
on the relevant title a memorandum that
the land has ceased to be bound by the
Memorial of Advertisement.
No fees are payable for withdrawal of the
Memorial of Advertisement. If after the
expiry of twelve months the Memorial of
Advertisement has not been removed, it is
ignored as an encumbrance.
If a contract for sale has not been entered
into within 12 months from the date
that the land is offered for sale by public
auction notice, in the form of Form 5, the
proceedings for the power to sell the land
cease to have effect.
Proceedings can however be
recommenced after this 12 months period,
and the same power of sale of land
proceeding requirements apply again for
any proposed future sale. (Sch. 6.3 cl.7.)
If a contract of sale is entered into within
the twelve month period after the date
the land is offered for sale pursuant to
the power of sale, a Transfer (Landgate
Form T5) giving effect to this sale may be
accepted for registration by the Registrar
of Titles during or after this period unless
a dealing has been lodged which prevents
registration of the Transfer.
The local government’s power of
Note: An option open to local governments
is to obtain an ‘occasional licence’
under the provisions of the Auction
Sales Act 1973 and the Auction Sales
Regulations 1974. An ‘occasional licence’
authorises the holder to act as and carry
out the business of, an auctioneer in
relation to the occasion and circumstances
specified in the licence.
The application process for an Occasional
Licence is summarised as follows:
Priority and payment allocation:
Where the local government exercises its
power of sale under sections 6.64(1)(b)
and 6.68 and Schedule 6.3 of the
Local Government Act 1995, a Transfer
(Landgate Form T5) executed by the local
government using its common seal is
used for transfers of land under the
Transfer of Land Act 1893.
If the land is old system land which has not
been brought under the Transfer of Land
Act 1893 the procedure for a conveyance
of land under the Registration of Deeds
Act 1856 will apply. See paragraph 10.1.3
of the Landgate Practice Manual.
The Transfer (Landgate Form T5) must
be supported by a statutory declaration
made on the back page of the Form T5 by
the Chief Executive Officer, attesting to
compliance with the provisions of
Part 6 Division 6, Subdivision 6 of the Local
Government Act 1995.
In circumstances where there is a
duplicate certificate of title, it is not
required to be produced but the Registrar
may with the consent of the Commissioner
of Titles dispense with the production of
the duplicate certificate of title (if any). The
Registrar has the power to make orders or
require advertisement as if the duplicate
title was lost or not produced under the
Transfer of Land Act 1893.
Where a paper title is in existence, a new
title is created and registered in the name
of the transferee. In the case of a digital
title, a new edition of the duplicate digital
title is issued.
Please refer to 3.6, on removal
The issue of a receipt by the local
government for money paid on the sale
of the land is sufficient discharge.
(Sch. 6.3 cl.6.)
Refer to Sale of Land Checklist
The following are some of Landgate’s
requirements for registration of leases
which may apply
Please note that this is not an exhaustive
list of Landgate’s requirements.
See paragraph 2.8 of the Landgate
Practice Manual for further information
on registration of leases.
Where the land has been offered for
sale for non payment of rates or service
charges and a contract of sale has not
been entered into at the expiration of
12 months from the date that the land is
offered for sale by public auction notice
(Form 5), the land may be transferred
in fee simple, to the Crown in right of
the State or to the local government.
The transfer is subject to the Transfer of
Land Act 1893, or by deed when it is not
covered by the Transfer of Land Act 1893.
(s.6.71(1); Sch. 6.3)
The local government must have taken
possession of the land. (See 3.3)
Upon transfer to the Crown or to the local
government, all encumbrances affecting
the land are of no further force or effect
against the land and the Registrar of Titles
or Registrar of Deeds is to remove all
encumbrances from the title to the land.
Note: State Land Services (SLS) does
assist local governments by accepting
transfer of land under s.6.71 of the
Act and re-releasing it under the Land
Administration Act 1997 (LAA), often
with covenants or conditions requiring
development within specified timeframes.
SLS also actively identifies parcels of
Crown land in town sites that may be
released for development. However, there
are no provisions in the LAA for enforcing
development on freehold lots.
Do not submit enquiries with this form.