In some circumstances, the consent of another party (such as a prior mortgagee or caveator) may be required to enable the registration of a subsequent transaction.
Such requirements, which can be found in the Land Transfer Act 2017 and other statutes, ensure that the person providing consent has considered the effect of the instrument, and has agreed to its registration. Here’s what you need to know about practitioners’ certification obligations, who needs to give consent, and the types of instruments that may require consent.
Practitioners' certification obligations
When lodging an electronic instrument, practitioners may be required to certify any additional applicable matters specified in column 4 of Schedule 3 of the Land Transfer Regulations 2018 (the Regulations) which includes certifications as to consent, for example:
“The mortgagee has consented to registration of the instrument, and the certifier holds the consent.”
Practitioners who certify they hold the consent of an interest-holder must retain that consent and produce it if the dealing is selected for compliance review under section 30 of the Land Transfer Act 2017 (the Act). We recommend you retain the consent together with the client A&I form to ensure you produce it if your dealing is selected for review.
Evidence to support consent certifications
Evidence of consent will be sufficient if the consent:
- is given in writing
- clearly states who is giving consent and what is being consented to
- is signed by the person giving consent (or someone authorised to sign on their behalf e.g. an attorney, director(s) or authorised officer), and
- is witnessed (except where the entity does not require a witness when signing an instrument e.g. a company where two directors have signed).
Form 46 of the Approved Paper Forms for Land Transfer Act 2017 (linked below) demonstrates typical requirements.
Mortgagee consent in the form of a signed letter or email will also be sufficient where it is from a bank or other institutional chargeholder.
Where the consent is signed under a power of attorney, the appropriate form of certificate of non-revocation of power of attorney (dated the same date or later than the power of attorney) must also be retained as evidence.
Instruments without consent certifications
In some cases, practitioners may not be presented with a consent certification even though consent is required. In this case, attach the consent as an image to the instrument. The dealing will step down to Lodge and our people will check that the consent requirement has been complied with.
Who may need to give consent?
For electronic instruments under the Act, Schedule 3 of the Regulations details by instrument type whether consent certifications may be required. Consent may be required from:
- a caveator
- a claimant under a notice of claim
- a mortgagee
- a mortgagee of a submortgage
- a chargeholder of a statutory land charge, or
- a chargeholder/judgement creditor of a charging order
- the Commissioner of Crown Lands in relation to dealings with renewable leases or pastoral leases, or
- a territorial authority for a variation or surrender of a compulsory easement.
Further details can be found in the guidance below.
Caveator or claimant consent
A caveat against dealings will generally prevent registration of subsequent instruments (as provided in s140 of the Act) unless the caveator has consented to the transaction (as provided in s145 of the Act).
There are some exceptions where a caveat won’t prevent registration and consent is not required. These exceptions are listed in s140(2) and s141 of the Act.
Mortgagee or encumbrancee consent
Mortgagee or encumbrancee consent is needed in various circumstances as prescribed in the Act.
Chargeholder consents relating to statutory land charges and charging orders
Chargeholder consent is generally needed where land subject to a statutory land charge or charging order is being transferred or otherwise dealt with.
Consent requirements for land vesting on deposit of a plan
Consent from relevant interest-holders is needed in order for a plan to deposit and land to vest (s224(b) Resource Management Act 1991).
Territorial authority consent for easements
Territorial authority consent is required when:
- a surrender of an easement (SE, TSE, PSE)
- a variation of an easement (VE), or
- an extinguishment of an easement (EE) by merger under s113 of the Act,
affects a compulsory easement (i.e. where the easement was included in the Memorandum of Easements on the title plan as a condition of subdivision consent and the title is subject to section 243(a) Resource Management Act 1991).