Australia: Conveyancing through the ages in NSW

Have you ever thought about the evolution of land ownership in New South Wales from the land before time to the world of the modern day New South Welshman? No? Well here is a compact version of events.

Colonisation and land ownership

With the arrival of the First Fleet in 1788, the traditional Aboriginal inhabitants and owners of the land were dispossessed and the Colony of New South Wales was proclaimed for Britain as Crown land.

Governor Arthur Phillips was authorised to issue land grants, but no written record of land ownership was kept and in many cases ownership of land changed without any documentary evidence at all. It wasn't until 1792 that a Grant Register was established so ownership of land grants could be recorded.

There was no record of ownership of freehold land until 1802, when the owners of freehold land were invited to record their property ownership. This saw the commencement of the Old Register, recording the first registration of private dealings in land. The information was very brief and it was quite often difficult to relate the information to a particular parcel of land.

Introduction of legislation

1825 saw the introduction of the Deeds Registration Act 1825 and it was at this time the principle was introduced that any deed or instrument executed bona fide and for valuable consideration should take priority according to the date of registration and not execution. The first Registrar of Deeds was appointed and the Old System Deeds Register and Vendors' Index commenced.

In 1831 free land grants were abolished and from then on land was sold by public auction only. Despite the recording of land ownership, squatting continued and in 1836 the Squatting Act was proclaimed.

The Registration of Deeds Act 1843 established the Registrar General and provided a Register for the lodgement of a sworn complete copy of a Deed in that office. All existing records were transferred to the Registrar General. William Carter was the first Registrar General and on 1 January 1844 the Office of the Registrar General was constituted under the Colonial Secretary. The first Deed was registered four days later.

In 1847 the colony was divided into three districts: settled, intermediate and unsettled. In 1848 NSW was divided into the 141 counties and 7515 parishes that still exist today.

The next 13 years were turbulent and saw the Office of the Registrar General being abolished in 1849 and then re-established in 1855. In 1857, the Registrar of Deeds and all instruments were transferred back from the Supreme Court to the Registrar General. Later that year, the Registrar General was transferred back to the Supreme Court and the first Deposited Deed was received on 17 December 1858.

The Crown Lands Acts 1861 (NSW) introduced conditional purchase of Crown land which allowed a new group of small landowners to break up the squatter's monopoly of land.

Torrens Title system

The Torrens Title system came into effect in NSW in 1863, comprising a single register for each land holding which recorded all details and interests affecting that parcel of land. Each land owner was issued with a copy of the information recorded on the Register as documentary evidence of ownership. This documentary evidence is called a Certificate of Title (CT).

The Torrens Title system simplified the recording of land ownership in a single document guaranteed by the state government of NSW. The Register was in a paper format, the Certificates of Title were handwritten and each CT was issued a unique Volume and Folio number to assist with cataloguing and identification.

The Real Property Act 1900 commenced on 1 January 1900 and is still in force today. This act contains many of the provisions which govern the ownership of land in NSW.

Over the next 16 years other Acts were passed to assist with the administration of land within NSW. The Western Lands Act (1901) established the Western Lands Board to administer the land in western NSW. The Crown Lands (Amendment) Act (1908) enabled the conversion of leaseholds into freehold status. The Crown Lands Consolidation Act (1913) was passed to consolidate the provisions of the 36 Acts relating to Crown lands that had been passed since 1884.

Next, the Conveyancing Act 1919 was proclaimed, allowing the lodgement and recording of plans relating to Old System or Common Law title.

From 1923 to 1927, farms were provided to migrants under the Imperial Migrant Agreement of 1923. The main area of settlement was the Ben Lomond Estate near Glen Innes.

Impact of the Great Depression on NSW land ownership

The Great Depression had an impact on land ownership, causing the Department of Lands to implement a series of relief measures, such as reduction of interest and rentals, extensions of repayment periods, on occasion the postponement, waiver or remission of monies owed, deferment of payments until harvest or wool clip came in, a release of small land blocks for the unemployed and indigent to establish homes and mixed farming operations; and a loan scheme for rural landholders to enable the employment of unemployed citizens to develop land and eradicate rabbits.

During the post-war years there was a boom in suburban development and legislation was passed in 1945 to ensure that all private plans of subdivision were approved by council before registration.

How technology changed recording of land ownership

1957 saw the first use of a computer in the Department of Lands to record survey calculations.

Technology was making an impact on the Registrar General's department from the 1960s onward. In 1961 there was a mass production of Certificates of Title, resulting in the switch to a New Form Torrens Title Register. It was at this time that the lodgement of deposited plans was standardised and strata titles commenced with the proclamation of Conveyancing (Strata Titles) Act 1961.

Advances continued to be made in the planning and mapping industry with the introduction of electric distance measuring equipment, to then be followed by laser measuring equipment. This greatly simplified the surveying and mapping industry. The last hand drawn Crown plan was completed in 1975 and the system of Crown plan cataloguing ceased.

In 1975 the Department of Lands was formed, comprising of the Crown Lands Office (formerly the Lands Department), the Registrar General's Office, the Western Lands Commission and the Central Mapping Authority.

This amalgamation was short-lived, as the Department of Local Government and the Department of Lands were abolished in 1981, when the Department of Local Government and Lands was formed. Crown grants were no longer issued and were replaced by Certificates of Title due to amendments being made to the Crown Lands Consolidation Act 1913 and the Real Property Act 1900.

In 1983 the world's first computerised Torrens Title system was introduced and computer titles were created for lots in newly registered subdivision plans.

The Department of Lands was re-established in early 1984, when the Department of Local Government and Lands was abolished. In 1986 the Registrar General's Office (now known as the Land Titles Office) was removed from the Department of Lands and placed under the Attorney General's Department. However, in 1988 it was briefly returned to the Department of Lands before being established as a separate administrative unit in 1988.

The Department of Lands underwent major restructure during the financial years of 1988-1989 so as to allow greater focus on products and services, rather than procedures and inputs.

In 1991 the Land Titles Office and the Valuer General's Department incorporated the functions of the Department of Lands and Soil Conservation Service under the umberella of the Department of Conservation and Land Management. The Minister for Land and Water Conservation was appointed in 1993 and re-established the Soil Conservation Service as a separate organisation within the department.

The Native Title (New South Wales) Act 1994 was introduced for indigenous Australians to have continuing common law rights and interests in land still owned by the government. The department was responsible for the administration of Commonwealth legislation within NSW.

In 1995 the Department of Conservation and Land Management was abolished and the Department of Land and Water Conservation was established, consisting of three major branches – the Land Titles Office, Valuer General's Office and Land Information Centre.

In 1998, the Land Titles Office saw the establishment of three internal businesses, Soil Services, Land NSW and State Water. To ensure the separation of resource management and revenue generating activities in management, Land NSW evolved into a commercially operated business unit of the department. By 1999, Land NSW provided complete land and property management services, managing the sale, lease, or license of Crown lands or state-owned property not required for public purposes.

By March 1999 the administration of the Land Titles Office was transferred to the Department of Information Technology and administration of the State Valuation Office was transferred to the Department of Public Works and Services. The existence of the Land Titles Office as a separate entity ended in 2000 and Land and Property Information New South Wales (LPI) commenced.

Paper records a thing of the past

As paper-based records were progressively microfilmed and then imaged, increased focus was put on electronic service delivery. This saw the ePlan Project launched in 1990. By 1992 all LPI charting maps were imaged and made available electronically.

With advancement in technology a computerised system commenced in 1999, using Folio Identifiers instead of Volume and Folio numbers. The Folio Identifier was made up of the lot and deposited plan number, or the lot and strata plan number for the relevant property.

The Land & Property Management Authority (LPMA) was established in 2009, moving from being an Authority within the Super Agency Cluster of Services, Technology and Administration, to the Planning Super Cluster in 2010. LPMA maintained 50 locations across NSW.

LPMA was abolished as a division of the government service in 2011 and the branches were divided up into different departments. Land and Property Information (LPI) was now a division of the Department of Finance and Services. LPI represents knowledge, heritage and responsible land management.

From the first handwritten land records to the powerful online land data systems used today, LPI continues as a pioneering force in land management and has continued as the guardian of all land information in NSW.

e-Conveyancing makes Certificates of Title redundant

Recently we have seen considerable changes and reforms in the conveyancing industry, with technology driving more rapid change than ever before. The world never stands still and with the introduction of electronic conveyancing (e-conveyancing), title deeds will be a thing of the past.

Paperless conveyancing will be part of the norm by mid-2019. e-Conveyancing brings a quicker process to all sections of the conveyancing transaction, from the preparation of an eCOS, e-signatures, e-exchange to electronic settlement and registration of the transfer on the same day.

On 1 July 2017 the conveyancing industry saw substantial reform. The operations branch of LPI has been set apart in a stand–alone entity, while establishing a new and independent regulator to oversee LPI's performance. The regulator is the Office of the Registrar General. A private operator leases the right to operate the core services of LPI for a period of up to 35 years.

As of 1 December 2017, the operations branch of LPI had a name change to NSW Land Registry Services (NSW LRS). The services are intended to remain the same, with a focus on the customer – the conveyancer, solicitor and surveyor who directly interact with land title dealings.

No doubt there will be some teething problems with the new entity as the industry moves forward with e-conveyancing, however at the date of writing this article the NSW LRS are achieving their goals.

Merrill Phillips
Stacks Law Firm

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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