What is indefeasibility of title?

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What is indefeasibility of title?

June 11, 2021         Kaitlyn Oliver

Indefeasibility of title occurs once you have registered your title with the NSW Land Registry Services (NSW LRS). After registering your interest, it gains the highest priority of ownership above others and you can enforce your property interest against other claims. 

The Torrens System 

The Australian property system operates under the Torrens System which requires registration of land. This means a contract of sale for a property will be insufficient to transfer ownership in the property from the seller to the buyer. The buyer must register their property interest at the NSW Land Registry office or relevant land title office in another state or territory where the property is located. Upon registration of their interest, the buyer will have indefeasible title to the property. 

Torrens title records all dealings related to the land, such as mortgages, easements, covenants, changes in ownership and resumptions. Once a new interest is registered and approved, the property’s folio is updated to accommodate the change. Every land title has a single folio to help avoid confusion and provide a clear record. 

Accessing the Torrens Title Register 

The Torrens Title Register in NSW is largely stored electronically and maintained by NSW LRS. This Register can be searched online using a folio identifier which is a reference number generally found on documents such as valuation notices. If the folio identifier is unknown, a search of the lot/plan number or street address using the NSW LRS Online portal can reveal the interests registered for the land. It can be useful to check the Torrens Title Register before signing a contract to purchase a property to ensure you are aware of current registered interests that may impact your title to the land. 

Exceptions to Indefeasibility of Title 

Exceptions to indefeasibility of title vary from each state and territory. Exceptions include fraudulent conduct which occurred prior to or during the registration of your interest. Another exception is personal action taken against your interest. This refers to an action against the contract of your land or title deed. Other exceptions include forgery, prior registered interests, prior certificates of title or misdescriptions of title.

Key Points

The Torrens system and indefeasibility of title ensures that property buyers have certainty in making purchases, as they can rely on title registration to assert their ownership. This security is important in real property transactions. 

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About Kaitlyn Oliver

Kaitlyn is a paralegal with OpenLegal while she completes her law degree at UNSW. She has previously worked at Redfern Legal Centre, and the Australian Human Rights Institute.