A title is the right to ownership of real property (i.e. land). Prior to the development of the Torrens Title system for registering land interests the old English land law was difficult, time consuming and expensive.
To satisfy themselves that the vendor actually held the title to the land they were selling, under the old English system, a purchaser of land had to inspect all the written records of dealings relating to the land in question going back many years. In England the custom was to limit the search to 60 years, but in Australia the purchaser had to examine all documents in the ‘chain of title’ going back to the original Crown grant. This practice proved very difficult in the new colony of South Australia, particularly in a time when land speculation was rife with land changing ownership frequently.
Even with the most exhaustive and thorough of searches, under the old system, a purchaser still could not be guaranteed they had absolute certainty of title. For example, where a document was forged even the most exhaustive search could fail to detect this and the purchaser would not be protected when the forgery was discovered. In the same way, if a key document was lost then a person’s claim to title would also be destroyed.
The Torrens Title system was created to provide certainty. The innovation of this system was to create a central register of land where all dealings with individual parcels of land are recorded. Title to land, either as the owner, mortgagor, mortgagee, lessor or lessee, is passed upon registration of a transfer, mortgage or lease and the State guarantees the correctness of the register. Each parcel of land is identified by a unique register book volume and folio, so when larger parcels are subdivided into a number of new titles, new volume and folios numbers are created to identify the land.
The Torrens title system is described as a system of title by registration, meaning that the fact of registration of an interest (such as a transfer or mortgage) creates an indefeasible interest in the parcel of land. There are exceptions to this principle, including fraud or forgery. Legal advice should be immediately be sought if an interest in land is created without the registered owner's authority.
The Real Property Act 1886 includes other measures introduced to facilitate electronic conveyancing, and protect against fraud. These measures include:
- Verification of identity by a conveyancer or lawyer dealing with the transaction;
- Verification of authority to enter into the transaction;
- Authority given to the conveyancer or lawyer to sign documents;
- Priority Notices;
- Title watch service, which is a free online subscription service to alert property owners to activity on a certain parcel of land.
Further information about verification of identity requirements and verification of a person's authority to enter into the transaction can be found on the sa.gov.au website here.
Other Types of Interest
Land can be held under a strata or community title, or it can be subject to a Crown Lease. A Crown lease means that the owner is the Crown, and the lessee (tenant) usually pays a nominal rental for effectively unlimited use of the land, but does not own it.
Another type of interest that is much less common is a moiety title or company title, which typically covered maisonettes or attached cottages, means that the person owns a share of the whole of the land and leases a defined portion of the land for himself or herself from the other owner or owners. Most of these types of title have been converted to strata title or more recently, community titles. Banks are very reluctant to lend on this type of title given the uncertainty of the type of holding.
The content of the Law Handbook is made available as a public service for information purposes only and should not be relied upon as a substitute for legal advice. See Disclaimer for details. For free and confidential legal advice in South Australia call 1300 366 424.