This is a question we are being asked more and more by our older clients who are now selling their family homes and long-term investment properties as they move into retirement. We felt it an important time to look back on recent changes, the digitisation of Queensland's property registers, and what exactly Title Deeds, Certificates of Titles and Title Searches are.
Before we dive in, it's important to understand exactly what a Title is. Simply put, a Title establishes ownership of real property.
As of 2021, titles relating to real property in Queensland are managed by Titles Queensland.
What's The Difference Between A Certificate Of Title, Title Deed & Title Search?
When people talk about a Certificate of Title, Title Deed or Title Search, they are all referring to a way to verify the ownership of a property. They are used interchangeably by lawyers, real estate agents and the government when discussing land ownership.
An important note, however, is that Certificates of Title and Title Deed are paper documents that show the current owner/s of a property, and any encumbrances that may be registered against the property, such as mortgages, easements, caveats, covenants, leases, charges or other registered notices.
A Title Search, meanwhile, is the name of an online enquiry (search) that reveals a digital record of the ownership of the property, and will similarly show registered encumbrances and notices.
Any confusion between these specific terms is drawn from over a hundred years of evolving property law in Queensland, and particularly the change from Old System Land to Torrens Title.
A Quick History Lesson: Old System & Torrens System
The methods adopted in the past to provide evidence of land ownership were based on the methods known and accepted at the time.
Under Registration of Deeds Act 1843, land was granted by the Crown by issue of a physical deed of grant. This was the only deed ever issued for the land, and it was written on long lasting parchment.
When the original owner sold the land, their solicitor would draw up a lengthy deed of conveyance necessary to legally transfer the land to the purchaser. This, together with the deed of grant, was given to the purchaser, who was required to keep them safe, as it was their ‘title’ of ownership.
No copy of the deed was maintained in a government register. It was up to the owner to prove ownership.
The old system was complicated and always open to fraudulent claims of property ownership. A 'chain' of title deed would need to be provided that showed all previous owners in order to legally transfer the property.
If you're thinking that it would be easier for all this information be stored in a central database, you weren't alone.
Under Real Property Act 1861, Queensland began introducing the Torrens System. While it's own history is complex and varied, its important to understand that the primary difference was that it enabled transactions over land to be recorded in a government managed register. It ensured that the interests of registered owners, and other registered proprietors of land were protected.
This system is still used today, and was expanded and refined extensively under the Land Titles Act 1994, whereby physical title documents were no longer required to prove property ownership (see section 215 of the Land Title Act 1994).
Since 1994, property ownership has been registered and held in digital records, managed by a central registry, Titles Queensland.
From 1994 to 2019, it was still optional to obtain a physical Certificate of Title, but it served no purpose other than to provide evidence of anything registered on the title at the time it was issued.
As of 1 October 2019, following the commencement of the Land, Explosives and Other Legislation Amendment Act 2019, paper certificates of title were no longer required when lodging dealing or registering property transfers, and were no longer issued by Titles Queensland. Even if the property you own once had a physical Certificate of Title, Titles Queensland does not hold these documents.
If you still hold a paper Certificate of Title, you may retain it for historical or sentimental reasons if you wish, but it has no legal status.
How Do I Get A Copy Of My Property's Title?
If you are selling your property, a real estate agent will generally obtain a Title Search as part of their role to ensure that the registered owners are listed correctly on the contract. They should include this title search as part of the contract of sale to ensure the seller has disclosed any registered encumbrances and/or notices.
Your lawyer also has a duty to undertake two title searches through the course of a standard residential conveyance, regardless of if you are buying or selling. They will perform a title search at the start of their engagement (which may not be needed if the real estate agent has performed it recently), and a second time on the morning of the settlement date to ensure there have been no changes and the transaction can proceed.
If a property transaction has been lodged digitally (for example, through PEXA), a Registration Confirmation Statement (RCS) will generally be provided. This document, in the instance of selling a property, will show the buyer as the new owner of the property.
If you are wanting proof of ownership, a lawyer can perform a title search at any time, and provide a copy to you.
Alternatively, if you would rather do this all yourself, property titles can be obtained online, in person or by telephone at Titles Queensland. Click here for a quick link to their website.
Note that there is a nominal fee to obtain these records, regardless of if you, a lawyer or real estate agent perform a title search.
Rest assured, a qualified and experienced lawyer will always ensure the appropriate searches are performed when required to protect your interests.
If you have any questions or concerns about any historical Certificate of Title or want to get a copy of a Title Search, please don't hesitate to contact us to discuss how we can help.
Disclaimer: This publication is not intended to be comprehensive, nor does it constitute legal advice. We are unable to ensure the information is current and there is no guarantee in relation to accuracy. You should seek legal or other professional advice before acting or relying on any of the content of this publication. The views and/or opinions expressed in this publication is that of the author and may not necessarily represent the views and/or opinions of RHC Solicitors.
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