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New South Wales has, for decades, maintained a world-class system of land titling. Early title in NSW was based on the English Common Law system of title, a system known as “Old System”. In 1863, a more robust system of land titling was introduced called Torrens Title. Torrens Title is based on a single Register of all titles in the state. Each parcel of land is identified by the lot and deposited plan (DP) number. Land transactions including sales and affecting interests such as mortgages, leases, easements or covenants, are noted on the register as affecting or appurtenant to the specified parcel. The State of NSW guarantees the Torrens Register, meaning they vouch that the information noted on each certificate of title is correct and complete.

Under the Torrens system, the certificate of title for a parcel of land shows pertinent information relating to the parcel, including the description of the land, the owner or owners of the land, a description of the tenancy of the ownership of the land and a schedule of registered interests that burden or benefit the land such as easements, mortgages, leases, covenants and any other relevant dealing. Please see our blog on Certificates of Title for further information.

Old System title uses a system of registration that uses a separate document, or deed, every time the land is dealt with. As time goes on, the number of documents related to a parcel of land increases. This leads to a complex chain of documents that can relate to all or part of a parcel. Due to this complexity, there is a chance of documents being lost, damaged or destroyed. The complexity of an Old System deed is hard to visualise, however the following diagram gives some indication:

This small chain of documents illustrates that what started as a single parcel of land with a single deed quickly becomes two, then three parcels of land with 8 separate documents lodged in the system. As years progress and transfers occur, land is subdivided and subdivided again and transfers are created. Eventually, land making up a particular street address may include several parcels which were parts of the original parcel. It is not uncommon for a transfer to miss one of the parcels in such a case, leaving part of the land in the ownership of the previous owner. After a twelve-year period, this parcel may be subject to a primary application claim based on adverse possession. For further information on primary applications and adverse possession, please see our blog.

To add to the complexity of the chain of documents in Old System, not all plans of subdivision of Old System land were registered, and it is possible for documents to be lost. Unregistered deeds can be used to prove ownership, although registered deeds will have more weight in court. This makes proving ownership of Old System Land difficult, requiring a full chain of documentary evidence back to the first issue of title for the land. Due to the difficulties in proving ownership of land back through history, the Conveyancing Act 1919 introduced a limitation where only 30 years tracing of the deeds is required to satisfy the requirements for transfer, with some exceptions.

As Old System land is converted to Torrens title over time, the chain of evidence proving ownership can be overcome. Some conversions of Old System land to Torrens have been done by a simple conversion action (CA) which requires a primary application providing a clear chain of ownership for at least 30 years. In such cases, a certificate of title is issued on the Torrens register with cautions relating to the quality of the plan defining the land and the chain of ownership.

If the plan of the land is not considered adequate, either because of it was prepared without survey or before modern surveying requirements, a Qualified Title notation is placed on the title. In such cases, the State of NSW does not guarantee the boundary definition or land ownership. Qualified title cautions are placed on titles converted from Old System titles and warns persons dealing with the registered proprietor that the land is held subject to any ‘subsisting interests’ that may exist under Old System.

If the chain of evidence for land ownership is satisfactory but the plan of the land is not adequate, a Limited Title notation is placed on the plan. In such cases, the State of NSW does not guarantee the boundary definition of the land. When a title is subject to a limited title caution, it is a Certificate of Title issued for land converted from Old System title whereby the boundaries have not been adequately defined in a plan of survey and/or have not been investigated in LPI. A limitation is recorded in the second schedule.

Registered Old System deeds are filed as references to the deed book in which they are recorded. Typically, an old system deed will be known as Book XX Number YY and will contain a description of the land in metes and bounds, details of the vendor and purchaser, details of the transaction itself and information regarding any affecting interests such as easements granted during the transfer.

It was relatively common practice when subdividing Old System land to declare parts of the subdivision to be “roads” or “lanes”. Prior to the creation of local government, roads and lanes created in such a way in fact remained as residues of the original parcels, in the ownership of the person owning the land at the time of subdivision. In some cases, the local council took steps to make these old system roads and lanes public roads or lanes. In many more cases however, these parcels remain as old system residues, effectively “no man’s land” and liable to claim by primary application where applicable.

Careful research must be undertaken before assuming that a road or lane is a valid legal access. Old system roads and lanes in public use are notoriously difficult to claim via possessory title, and often the best outcome is for a local council to take steps to make these roads and lanes public roads under the Torrens system.

Extreme care must be taken with and dealing involving Old System land or Torrens Title land with a Qualified or Limited Title caution on it. The principle of Caveat Emptor applies – Buyer Beware! When purchasing land, it is recommended that an identification survey be performed on the land to ensure that the property you purchase is, in fact, what you believe you are buying.

If you have queries relating to Old System title, Qualified title or Limited title, please contact Doherty Smith & Associates.

Eric Smith

Registered Surveyor