Laws For Real Estate In Australia

Laws For Real Estate In Australia

Australian property law is a set of laws that govern and prioritise individuals' property law rights, interests, and responsibilities in relation to 'things.' These are examples of 'property' or 'rights' to possess or own an object. The law organises or prioritises rights and categorises property as real and tangible, such as land, or intangible, such as an author's right to their literary works, or personal but tangible, such as a book or a pencil.

Real estate law is concerned with assisting clients in managing their rights and responsibilities as landowners, as well as advising on transactions to maximise the economic potential of their properties. Commercial property solicitors provide advice on business transactions such as acquisitions and disposals, leasing, development, joint ventures, estate management, and funding arrangements. They may also have to go to court if there is a dispute over real estate or property.

Features

Australian property law is primarily regulated at a state level through legislation such as The Real Property Act 1900 (NSW) and The Land Titles Act 1980 (Tasmania). Significant federal decisions regarding real estate and property laws include Mabo v Queensland (No. 2), which established native title, and P. J. Magennis Pty. Ltd. v. Commonwealth, which dealt with the Commonwealth’s right to acquire property.

The Land Law

Land is the predominant focus of Western property law, particularly Australian property law. Legal developments in this field outnumber those in other areas of property law, owing to the high value of land in comparison to other types of property, such as chattels.

Each state in Australia has its own regime for land regulation and bureaucratisation. It is primarily a statute-based area of the law, but it can still be influenced by common law and principles derived from Australia's history as a British colony, where land and estate law developed through the scope of feudalism.

Property law facilitates the use of land as an economic instrument by creating a system for evidencing, recognising, and transferring title to it. The mortgage, lease, covenant, and easement are other legal instruments in property law that facilitate private and commercial dealings with land.

Between 1857 and 1875, all Australian colonies (now states and territories) adopted the Torrens system of land registration. Sir Robert Richard Torrens, the Registrar-General of Deeds in South Australia, was the first to implement the Torrens Title System through The Real Property Act 1858. Victoria adopted the system with The Real Property Act 1862, and New South Wales followed suit on January 1, 1863, with the commencement ofThe Real Property Act 1862.

The Torrens Title System governs the majority of land in Australia, though remnants of the old system of land title still exist. The Australian Capital Territory's land is all leasehold (effectively Torrens freehold), whereas much of the Northern Territory is under Crown lease. Native Title is recognised as a distinct type of ownership. Some land is still Crown Land (i.e. in Australia, public land).

According to Torrens system principles, each state maintains a land titles register of land in the state that has been registered under the system, as well as the owner of the land. This system was designed to reduce the amount of land fraud caused by the falsification of title deeds. It does so by confirming 'ownership' of the land only upon registration of the property. i.e., 'it is not a title registration system, but a title by registration system.' This provides a purchaser with 'greater assurance, if not certainty, of title.' The Torrens title holder is further protected by the principle of 'indefeasibility' of title, which states that once a right is registered, it cannot be defeated by later rights except in certain circumstances.

The Torrens system also allows for the registration of other land entitlements, such as a mortgage, which is used to secure a loan.