The very first thing a property lawyer should do, every time you are doing anything property-related at all, is “search the title”.
What do we mean by “search the title” and why do we do it every time?
We mean obtaining a copy of the Record of Title for the property. And it does need to be current.
What does the Record of title tell us?
- Size and shape
You may have thought the property was bigger. This can be very important, for example, if you are building and need to comply with boundary set backs. If its too small that house you’re planning might not fit.
Or if you plan to subdivide and suddenly you find the area is too small and it’s no longer a permitted activity.
The shape of the property can also be enlightening. You might actually be looking at the wrong title. I have seen this happen, especially with adjacent units where the one you are interested in is called Flat One but it’s actually showing on the title as unit B.
- Current owner
Or the names on the title are different to who you thought you were buying off. Why is that. Is there a sale that has to take place before your vendor can sell it to you? If there is, how comfortable are you about paying a deposit. How secure will that be if your vendor doesn’t end up buying off the names on the title?
- Type of ownership
You may have thought it was a freehold property. But the title might says its a unit title or a leasehold title. That makes a big difference. Suddenly there could be a body corporate to think about. You might have to ask others first instead of boxing on with that blue and gold paint job. Or there might be ongoing rental payments to make.
Easements are often there to make sure everyone has road access, and also to make sure that the normal services – water, power, stormwater, sewage, telecommunications etc – are available. A lot of the time these services will run along the vehicle access way but not always. Sometimes there will be issues regarding maintenance, or perhaps one of the neighbours has a history of parking his hummer on the driveway so nobody else can use it.
Land covenants typically set out certain restrictions. These often include the type of building materials you can use, height restrictions which might be stricter than the ones in the zoning rules, vegetation controls, colour controls etc. But they can also extend further and prohibit you from objecting to adjacent developments, for example.
- Consent Notices
Consent Notices set out Council obligations that run with the land even if the original developer is long gone. For example, an obligation to have a proper driveway over the footpath, or an obligation to have a water tank for firefighting purposes.
Encumbrances can be even harsher because they can act like a mortgage and allow the party who is entitled to the benefit of the encumbrance to take enforcement action if you don’t comply with the encumbrance. An example might be an encumbrance requiring the owner to abide by certain rules that affect a number of properties regarding landscaping or car parking.
Caveats can suddenly appear on a title, and often signify that someone has an interest in the property and wants to make sure that is protected from the risk of the owner selling the property without looking after their interest. A caveat will prevent the owner selling without the caveator finding out.
- When a title is being subdivided
Sometimes, if the title is fairly new (e.g. recently issued following a subdivision) you need to go further back and look at the previous title and plan in order to get a wider perspective, or in order to understand old easements that have “come down” onto the new title.
- Title defects
Occasionally you will run into a title that displays the words “limited as to parcels”. What this means is that the dimensions of the property are not guaranteed and possibly need to be surveyed. So that fence you thought was on the boundary might actually be two metres inside the neighbour’s property. Better to find that out now.
There are many other nuances that can appear on titles of different types. When we search the title we are not just doing it to fill in time. The Record of Title defines your legal rights in relation to that property so it is critical that you understand it. If you don’t you might not have what you thought. Or you might be about to pay too much.
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