Land Titles in Victoria
Cadastral Surveying
A cadastral survey is a legalised boundary survey of a parcel or allotment (or lot) of land, which can only be carried out by a specially qualified land surveyor, licensed, or otherwise authorised, by the Surveyors Board of Victoria. In other words it defines the extent of any right, title or interest in a parcel of land. Such a survey is carried out either -
- When land is originally alienated from the Crown as freehold land, or
- Existing freehold land is subdivided into smaller lots.
In Victoria, prior to 1989, land could be subdivided for fee simple ownership:
- Into normal lots under the Local Govermment Act, or
- Strata titles to give ownership to individual flats, apartments and villa units under the Strata Titles Act 1967, or
- Cluster titles to subdivide land into lots, common land and possibly private streets under the Cluster Titles Act of 1974.
Now all the above types of land subdivision are carried out under the Subdivision Act 1988.
The purpose of a modern cadastral survey is to -
- Retrace and re-establish the boundaries in an original survey
- Mark the boundaries with pegs, (50mm by 50mm, white painted wooden pegs) so that the owner can construct fences, locate buildings and other engineering works
- Place other permanent survey marks to later replace lost pegs
- Enable the preparation of the legal documentation and plan to register the ownership of the land as a Certificate of Title under the Transfer of Land Act.
Such a title survey can only be carried out by a person licensed, or otherwise authorised, by the Surveyors Board of Victoria. It must have a standard of accuracy where the error in linear measurement per individual line does not exceed 1 in 10,000 within the City of Melbourne and in rural areas reducing to 1 in 4,000.
The original pegs of subdivided land have the lot numbers of adjacent lots stamped on each peg, so as to read right side up from a position in the numbered allotment, when looking at the peg. Also the general direction of the boundary lines away from the peg are shown by shallow trenches approx 600mm long, mainly in rural areas.
When building is to occur on a lot the correctness of the boundaries is of great importance. Such buildings are usually sited at the minimum distance permissible under the building regulations from one or more of the boundaries, or even on boundaries in some cases.
In Victoria, as in other Australian states, land which has had ownership transferred from the Crown as freehold is given a title which enables identification of that piece of land. Two distinct systems have been used to issue titles for land in Australia -
- The Torrens system and
- General law or Old Law System
The most common and still used system is the -
Torrens system
Sir Robert Torrens, South Australia's first Registrar General of Deeds, devised a system of land registration to overcome the obvious problems of the then used Common Law system of metes and bounds - ie descriptive text related to physical objects. The Torren's System replaced this with a dimensioned diagram, which was first legalised by the Real Property Act of South Australia in 1858.
This much simplified approach is now used in many other countries. The main objectives of the Torrens system were -
- To give State assurance that a title to estate in land is indefeasible, except in certain circumstances
- Enable proof of title, in the form of a certificate of title, on which a history of all subsequent dealings with the particular land are noted
- Make dealings with land simple. All instruments or dealings, such as transfer of title ownership, mortgages, easements, leases etc., must be registered to gain validity. Thus it is only upon the registration of a transfer, that a legal title passes to the transferee.
The Transfer of Land Act 1862, meant that the Torrens system applied automatically to all land subdivided or alienated by the Crown since 1862 in Victoria.
Certificate of Title
Freehold land is subdivided after planning approval under the Local Government Act and, after due process, a plan of subdivision is sealed. It is then submitted to the Titles Office for the issue of individual certificates of title under the Transfer of Land Act.
To enable registration to be effected by the Registrar of Titles, a register book of titles and dealings was established. Each title is recorded as a folio number in a volume, which is a numbered book in the register. Each book contains about 1000 folios.
Transfers, leases, mortgages, easements, etc., which must be registered, are given a registration number when lodged in the titles office and are filed away under these numbers.
Each title is in two parts:
- The original, which is always retained by the Titles Office
- A duplicate, which is issued to the proprietor - usually a lending institution
Each title contains the following information -
- Volume and Folio number
- A history of registered proprietors of the land
- A description of the land (see later notes)
- A plan with block dimensions and usually a distance to the nearest road comer - also units in links, feet or metres are shown
- Reference to all dealings and previous title if land was subdivided from freehold Any rights which accompany the land - eg a right to use adjacent land for drainage purposes or access
- Restrictions or encumbrances to which land is subject - eg easements for drainage, sewerage, electricity, party walls, etc - caveats and covenants affecting land use such as material used to build a house.
When titles to Crown land are issued in Victoria, it is current practice that they contain a depth limitation of 15m.
Old Law System
All land in Victoria released by the Crown before October 1st 1862 was given a title under General Law. Such a title to land is commonly known as a General Law or Old Law title.
Much of the land defined in these titles is by the metes and bounds method. A mete is a stated distance in a stated direction, whereas a bound is a physical object at a point on the ground, which is used to define a limit of a property.
When dealing with such a title it is essential to trace the history of all dealings - called a chain of title - from the Crown grant to the present owner. Such proof may range from a piece of paper to a lawyer generated indenture which may not be held by the Titles office. It is wise to have such titles converted to the Torrens system.
For a Torrens title, most people are capable of making their own search of title at the Titles Office. Since this may be time consuming however, it may be wise to pay for a professional searcher. However, searching for Old Law titles is generally regarded as a task for a lawyer.
Land Identification In Victoria
All land alienated from the newly proclaimed crown territory of Victoria after 1837 was under a Parish based land registration system. Surveyors started measuring, mapping and marking out land in portions that could be sold by the Crown to private individuals.
A system was devised such that a portion of land could be identified by a brief but unique description.
First the 87,844 square miles in Victoria was divided into Counties thus:
- Size about 40 miles by 40 miles square
- Natural boundaries such as rivers, streams and dividing ranges were used as borders where practical - thus size varied
- A total of 37 counties were created.
These counties were further divided into Parishes thus -
- Size about 5 miles by 5 miles square
- Again use natural boundaries if practical
- Each parish was assigned a name founded on the native appellation of any hill or place therein
- A total of 2004 parishes were formed in Victoria.
Within the parishes, land was further subdivided depending on its quality into either -
1. Sections with the following features:
- About one mile by one mile - 640 acres
- Were designated by a letter or a number in Roman figures
2. Or an ordinary number these sections were further divided into serially numbered Crown Allotments sometimes down to 40 acres with the following features:
- About one mile by one mile - 640 acres
- Were designated by a letter or a number in Roman figures or an ordinary number these sections were further divided into serially numbered Crown Allotments sometimes down to 40 acres
3. Or if land was considered eligible for towns, an area would be designated as a:
- Town or township and then subdivided as above into
- Sections and even smaller Crown Allotments.
Today, Crown grants are limited, but many of the original Crown grants have been and will continue to be subdivided into smaller building lots - now strictly governed by Planning controls.
Plans of private subdivision, after gaining planning approval, are sealed by the governing municipal council or shire under the Local Government Act.
The subdivision plans are then lodged with the Titles Office for the issue of individual titles. Once the plans are registered they are termed Lodged Plans or Plans of Subdivision which are given serially increasing numbers and each allotment is also given a Lot No.
Thus some examples of land description are as follows -
Lot No 91
Plan of Subdivision 92,761
Crown Allotment
7 Section 12
Parish of Bulleen
County of BOURKE
or for an original Crown grant -
Crown Allotment 4
Section XI
Parish of Buxton
County of Anglesey
Each description is unique and cannot apply to any other parcel of land within Victoria.
Guide to legal terms
Easement: limited right over land of another by a landowner - eg for drainage or right of way. Note - normally cannot be built on.
Covenant: an agreement creating an obligation on the use of the land. May or may not bind future buyers of the land - eg. all building work must be in keeping with a certain style of architecture.
Encumbrance: any restriction or charge affecting the title to land, eg. a restrictive covenant, a lease, a mortgage.
Transfer: a registered dealing endorsed on a title under the Torrens system - eg when ownership passes from vendor to purchaser or a covenant is placed on a title or a caveat is placed on a title.
Caveat: Latin for let him beware - a dealing on a title that restricts the transfer of that title to another person until the caveat is withdrawn. Caveats may be lodged for different reasons, ie. -
- By the executor of a deceased estate, which remain until the estate is finalised
- By a lending authority or bank - it remains until the loan is discharged
- By a prospective property purchaser who has paid a deposit - especially if jointly owned - remains until property is acquired or it is decided not to proceed.
Fee simple: an estate of freehold. It is the most extensive interest that can be had in land.
Consolidation of title: when two or more titles are legally combined to form one new title. It can only be done by a licensed surveyor.
Alignment: is the legal boundary between -
- A road and the adjoining land
or
- Adjacent titles
Grant: is when Crown land is alienated to a fee simple title.
Adverse Possession: land occupied for more than 15 years, by virtue of incorrect fencing, may by the law of adverse possession be claimed, even though title shows otherwise.
Conveyancing: is the paperwork and cross-checking process of ownership transfer of real estate from seller to buyer.
For a buyer, the main steps involved are:
- Have title searched - usually by a specialist firm of searchers - and check that the vendor has a clear title to the land
- Check the property dimensions with the title
- Obtain planning clearances from local authority and check that it is not affected by things such as new freeways etc. nearby or maybe is of national heritage significance - etc
- Check the contract drawn up by the vendor or their solicitors for detail accuracy and hidden snags Check if tax and rates are paid (State land tax commissioner, water rates, council rates)
- Calculate tax and rate adjustments so that they relate to settlement date
- Prepare the transfer of land form
- Arrange mortgage details if loan is needed Arrange settlement date for signing the final documents and handing over the cheques.
The main jobs for the vendor or their solicitors are:
- Draw up the contract of sale
- Arrange for discharge of mortgage
- Ensure all is ready for settlement