The Homestead Act.-1895. 14. So soon as the homestead certificate shall have been registered pursuant to the preceding section, but not before, the Effect. homestead shall be deemed to be registered pursuant to this Act. 15. The Registrar may demand and receive in respect of the Fees. several matters provided for in this Act the several fees specified in the Fifth Schedule, and shall pay the same to the Treasurer as part of the revenue of the province. PART II. 16. The Governor may make regulations for carrying this Act Regulations. into effect. 17. The provisions of "The Real Property Act, 1886," relating Application of Real to the signing and sealing of instruments, and to their registration, Property Act. and to the reception of such instruments, or copies thereof, in evidence, and to the making of regulations and declarations, and to the alteration of fees and schedules, shall, so far as practicable, apply to similar matters under this Act. PART III. PROCEDURE TO SECURE REGISTRATION OF HOMESTEADS. PART III. 18. Applications for the registration of homesteads may be Applications. made to the Registrar in the form contained in the Second Schedule, and the statements made in every application shall be verified by the declaration of the applicant. 19. No application shall be received except in respect of land Applicants. upon which the applicant is residing and has resided as his home for at least one year immediately prior to the making of the application, nor in respect of any land of the value, with the improvements thereon, of more than One Thousand Pounds, nor in respect of any land of which the applicant is not either the owner for an unencumbered estate in fee simple or the holder of a perpetual lease from the Crown. 20. On the receipt of any application for the registration of a Notice. homestead, the Registrar shall cause notice thereof to be published in the Government Gazette and in one daily paper and one local paper (if any) circulating in the district in which the homestead is situated, in manner prescribed by regulation, and shall post a copy of such notice to each creditor of the applicant. 21. Any creditor of the applicant may, within six months after Caveats. the first publication of the notice provided for in the last section, enter a caveat against the granting of the application. 22. Every caveat shall be in the form contained in the Third Form of caveat. Schedule, and the statements made in every caveat shall be verified by the declaration of the caveator. 23. On PART III. Procedure upon caveat. Withdrawal by caveat. Compensation. Effect of caveat. Condition to removal of caveat. Procedure in default or removal of caveat. Protection of creditors at time of registration of homestead. The Homestead Act.-1895. 23. On the receipt of any caveat the Registrar shall cause a copy to be forwarded to the applicant, and the applicant may summon the caveator in chambers before any Judge of the Supreme Court, or the Special Magistrate of the Local Court of Adelaide, to show cause why such caveat should not be removed, and such Judge or Magistrate, on the hearing of such summons, may order the removal of the caveat, or may make any order in relation thereto which he shall think fit. 24. Any caveat may be withdrawn by the caveator by notice to the Registrar in the form contained in the Fourth Schedule. 25. If any person without reasonable cause enters or refuses to withdraw any caveat, compensation to the applicant may be awarded against him on the hearing of any summons for the removal of the caveat. 26. After the receipt of a caveat within the time provided the Registrar shall not proceed further with the application for the registration of a homestead until the caveat is withdrawn or removed. 27. No order shall be made for the removal of a caveat unless the applicant shall satisfy the Judge, or Special Magistrate, that he can pay and discharge his debts and liabilities without recourse to the land included in the application for registration as a homestead. 28. If within the time limited for the receipt of caveats no caveat is received against an application for the registration of a homestead, or if all caveats which have been received within such time are subsequently withdrawn or removed, then, on the expiration of such time or such withdrawal or removal, as the case may be, the Registrar shall proceed to register the land included in the application as a homestead in manner herein before provided. 29. No settlement of a homestead shall prevail against the claim of a creditor of the settlor in respect of a debt owing to such creditor by the settlor at the time of the registration of the homestead. PART IV. Effect of registration. PART IV. EFFECT OF REGISTRATION OF HOMESTEADS. 30. The effect of the registration of a homestead as regards the land the subject of such registration shall be to settle the same as follows: 1. For the benefit, use, or occupation of the settlor and family, until the period for distribution. 2. For distribution at the period for distribution amongst the family of the settlor then living: 3. So The Homestead Act.-1895. 3. So that no alienation or attempted alienation by the settlor or family shall have any force or effect, except as provided in sections 34 and 36. 4. So that the estate and interest of the settlor and family shall continue personal, absolute, indefeasible, and unaffected, to the value of One Thousand Pounds only, notwithstanding any bankruptcy, insolvency, assignment, judgment, order, execution, sale, transfer, matter, or thing, which but for this Act would or could directly or indirectly have affected any estate or interest in the land. PART IV. 31. If reasonable cause therefor be shown to a Judge of the Judge of Supreme Court may order Supreme Court, he may order such proceedings as may be necessary proceedings. to ascertain whether the value of any homestead exceeds One Thousand Pounds, and for making the surplus (if any) available for creditors and re-settling the balance, as nearly as the circumstances will allow, in the manner provided for by this Act. sale of homestead. 32. A Judge of the Supreme Court may at any time, if it shall Judge may order appear to him desirable for the benefit of the settlor and his family, order that a homestead shall be sold, and the proceeds thereof be settled or applied, as nearly as the circumstances shall allow, in accordance with the provisions of this Act. 33. The period for distribution of a homestead shall be the date Period for distribuof the death of the settlor, or the time when all the children of the tion. settlor shall have attained twenty-one years of age, or died under that age, whichever shall last happen. pation. 34. The settlor during life may regulate the occupation of the Regulation of occuhomestead by himself and family as the settlor shall think fit, or, in the case of a husband, may, with the consent of the wife, or, in the case of a wife, with that of the husband, let such homestead, and after the death of the settlor such occupation shall be regulated pursuant to any direction contained in the will of the settlor, and so far as no such direction shall extend the widow or widower of the settlor shall regulate such occupation, and after the death of suck widow or widower, subject to any direction given pursuant to this section, all the children shall be equally entitled to occupation of the homestead. three years. 35. No lease of any homestead shall be for a longer term than No lease to exceed three years from the making thereof, and such lease shall be granted without fine or premium, and shall reserve the best rent which can be reasonably obtained therefor as incident to the immediate reversion, to be paid at the least by quarterly payments; and the protection afforded by this Act to the homestead shall, so far as applicable thereto, apply in all respects to the rent. 36. The settlor, by direction contained in his will, may regulate Regulation of disthe distribution of the homestead pursuant to sub-division 2 of tribution. section PART IV. Exclusion from participation. Rescission of registration. Cesser of registration. Notification of rescission or cesser. Land under old system. The Homestead Act.-1895. section 30 in such manner as he shall think fit, and may include grandchildren in the benefit of such distribution, but subject to any such direction the widow or widower of the settlor (if living) shall take one-third and the children then living shall equally between them take the residue, grandchildren taking the share of their deceased parent, or, if there shall be no widow or widower then living, the whole of the homestead. If no child or grandchild shall at the period for distribution take any share or interest in the homestead, then the widow or widower, if living, shall take the whole. 37. Any regulation of occupation or distribution provided for by the two preceding sections may provide for the exclusion from participation of any persons who but for such regulation would be entitled to share therein, but so that no such regulation shall give any right, estate, or interest to any person not mentioned in such sections. 38. The registration of a homestead shall be rescinded by operation of law- (a) By the settlor, within twelve months after the date of the registration, becoming bankrupt, insolvent, or making any assignment for the benefit of his creditors, or taking the benefit of any Act for the relief of insolvent debtors: (b) By the death of the settlor within twelve months of the date of the registration, if the estate is insufficient for the payment and discharge of his debts and liabilities without recourse to the homestead. 39. The registration of a homestead shall cease to operate at the period for distribution, except for the purpose of giving effect to estates or interests acquired by virtue of such registration. 40. On the registration of a homestead being rescinded by operation of law, or on such registration ceasing to operate, the Registrar shall enter a memorial of such rescission or cesser on the homestead certificate, and on the certificate of title or last conveyance of the land affected, and in the case of land which is not held under “The Real Property Act, 1886," a memorial of such rescission or cesser shall also be registered in the General Registry Office. 41. In the case of land which is not held under "The Real Property Act," 1886, no homestead certificate or registration shall operate, except as regards the estate or interest of which the settlor is seised of or entitled to at the time of making the application. In the name and on behalf of Her Majesty, I hereby assent to this SCHEDULES. The Homestead Act.-1895. SCHEDULES. FIRST SCHEDULE. Homestead Certificate, not Transferable. [Insert name, address, and occupation] is now the proprietor of a homestead estate in all that piece of land [describe land according to the certificate of title or last indenture of conveyance, and refer to the volume and folio of the certificate of title or the registration reference to the indenture of conveyance upon which the indorsement has been made.] 18 I, [name, occupation, and address], do hereby declare that I am the owner of an estate of freehold in fee simple in all that piece of land [describe the land fully according to the certificate of title or last indenture of conveyance, and, if under the Real Property Act, refer to the registered volume and folio thereof, hereby apply to have the land above described registered as a homestead under "The Homesteads Act, 1894." And I further declare that I am residing upon the said land and that I have resided thereon as my home for at least one year prior to the date of this application, namely, since the day of [here state date of commencement of residence], and that the said land with the improvements thereon is of the value of £ and no more, and that I am able to pay and discharge all my debts and liabilities, of which a Schedule is hereto attached, with the names and addresses of my creditors, without recourse to the said land, and that there is no person entitled to the possession or occupation of the said lands adversely to my estate : And further that there is no mortgage, lien, incumbrance, or charge upon the said land or any part thereof. And I make this solemn declaration conscientiously believing the same to be true and appoint [here insert address within the city of Adelaide] as the address to which notices in respect of this application may be sent. |