A title search is a formal search of the official land register, conducted by a licensed conveyancer or solicitor, that confirms the legal ownership of a property and identifies any registered interests, encumbrances or restrictions affecting the title. In Queensland, the land register is maintained by the Queensland Titles Registry. In New South Wales, it is maintained by NSW Land Registry Services (LRS).
A title search is one of the most fundamental searches conducted in any property transaction in Australia. It is completed as part of the conveyancing process for buyers (purchasers) and sellers (vendors) in both QLD and NSW.
Why Is a Title Search Important?
A title search is important because it reveals the legal status of a property before ownership transfers. Without a title search, a buyer (purchaser) cannot confirm that the person selling the property actually has the legal right to sell it, or that there are no registered interests that could affect their use and enjoyment of the property after settlement.
A title search can reveal:
- Who legally owns the property and whether they have the legal authority to sell it
- Whether there is a mortgage or charge registered against the property
- Whether there are any easements affecting the land
- Whether any caveats have been lodged against the title
- Whether there are covenants restricting what can be done with the property
- Whether there are any writs or judgments registered against the owner
- Whether the property is affected by a resumption notice or government acquisition
- Whether the land is freehold, leasehold or strata title
What Is the Difference Between a Title Search in QLD and NSW?
Both Queensland and New South Wales maintain separate land registers, and while the purpose of a title search is the same in both states, there are some differences in terminology and process.
In Queensland, the title search is conducted through the Queensland Titles Registry and returns a document called a Title Search or Current Title Search. It shows the registered owner, any mortgages, caveats, easements and other registered interests in the property.
In New South Wales, the title search is conducted through NSW Land Registry Services and returns a Folio of the Register, commonly called a title search or title certificate. It similarly shows the registered owner, mortgages, caveats, easements, covenants and other registered interests.
In both states, the title search is one of the first searches ordered by the conveyancer at the commencement of a property transaction, for both the seller (vendor) and the buyer (purchaser).
What Is a Certificate of Title?
A Certificate of Title was the physical paper document that historically evidenced land ownership in both QLD and NSW. Both states have now moved to an electronic land register system, meaning physical certificates of title are no longer issued for most properties.
In NSW, existing paper Certificates of Title were cancelled as part of the transition to electronic conveyancing and the PEXA platform. In QLD, a similar transition has occurred. Ownership is now evidenced entirely by the electronic register, which is accessed and updated through the PEXA electronic settlement platform at settlement.
What Is an Easement and How Does It Appear on a Title Search?
An easement is a registered right that allows another party, such as a neighbouring property owner, a utility company or a local government, to use part of the land for a specific purpose. Common types of easements include:
- Right of way easements, allowing another party to pass through or over the land
- Drainage easements, allowing stormwater or sewage infrastructure to run through the property
- Electricity or telecommunications easements, allowing utility companies to maintain infrastructure on the land
- Positive covenant easements, requiring the owner to maintain a specific feature of the property, such as a retaining wall
Easements are registered on the title and will appear on a title search. They are binding on the current owner and all future owners, which means a buyer (purchaser) takes the property subject to any existing easements, whether they were aware of them before purchase or not. This is one of the key reasons why reviewing the title search carefully before exchange is essential.
What Is a Caveat and What Does It Mean on a Title Search?
A caveat is a formal notice registered on a property title that alerts the world to the fact that a third party claims an interest in the property. A caveat effectively prevents dealings with the property, such as a sale or mortgage, until the caveat is resolved.
A caveat appearing on a title search at the time of purchase is a serious issue that must be addressed before settlement. Common reasons a caveat may be lodged on a title include:
- An unregistered purchaser who has exchanged contracts but not yet settled
- A lender who has advanced money under an unregistered mortgage
- A person claiming a beneficial interest in the property under a trust or agreement
- A family law claim over the property
If a caveat appears on a title search, the buyer’s (purchaser’s) conveyancer must investigate the basis of the caveat and ensure it is removed before settlement can proceed.
What Is a Covenant and How Does It Affect a Property?
A covenant is a legal obligation registered on a property title that either requires the owner to do something (a positive covenant) or restricts what the owner can do with the property (a restrictive covenant).
Common examples of restrictive covenants include:
- Restrictions on the type of dwelling that can be built (for example, no dual occupancy)
- Requirements about the minimum floor area or building materials
- Restrictions on running a business from the property
- Restrictions on subdividing the land
Covenants are binding on all future owners of the property and will appear on the title search. A buyer (purchaser) who purchases a property without reviewing the covenants may find themselves restricted from doing something they had planned, such as building a granny flat or operating a home business, even though nothing in the contract specifically prevented it.
What Is the Difference Between Freehold and Leasehold Title?
A title search will confirm whether a property is held on freehold or leasehold title, a distinction that is important for buyers and purchasers to understand.
Freehold title means the owner owns the land outright, in perpetuity, subject only to any registered encumbrances. The vast majority of residential properties in QLD and NSW are freehold.
Leasehold title means the land is owned by the government or another party, and the occupant holds a long-term lease over the land. Leasehold properties are more common in the ACT, in some resort-style developments and in certain rural areas. Leasehold properties have different rights and obligations compared to freehold, and buyers (purchasers) considering a leasehold property should seek specific advice from their conveyancer.
What Is a Strata Title and How Does a Title Search Work for Strata Properties?
A strata title is a form of property ownership used for apartments, units and townhouses where individual lots are owned within a larger complex that includes common areas. In NSW, strata title is governed by the Strata Schemes Management Act 2015. In QLD, body corporate legislation applies.
For a strata titled property, the title search confirms ownership of the specific lot number within the strata plan, as well as any registered interests affecting that lot. In addition to the title search, a strata or body corporate records search is essential for strata purchases, confirming the financial health of the owners corporation or body corporate, any pending special levies, insurance details and the history of maintenance and disputes.
What Other Searches Are Conducted Alongside a Title Search?
A title search is one of several searches conducted as part of a complete property due diligence process. Other searches commonly ordered by conveyancers in QLD and NSW include:
- Section 10.7 Planning Certificate (NSW): confirms zoning and planning restrictions applicable to the property
- Section 603 Council Certificate (NSW): confirms outstanding council rates
- Section 22A Water Certificate (NSW): confirms outstanding water rates and charges
- Local Government Search (QLD): confirms rates, zoning, building approvals and other council matters
- Water and Sewerage Search (QLD): confirms water charges and infrastructure
- PPSR Search: Personal Property Securities Register search, relevant for certain commercial transactions
- Land Tax Search: confirms any outstanding land tax liability affecting the property
- Body Corporate or Strata Records Search: for strata or community title properties
When Is a Title Search Conducted During a Property Transaction?
In both QLD and NSW, a title search is typically conducted at multiple stages of a property transaction:
- At the commencement of the matter : to establish the baseline position of the title before the transaction proceeds
- Before exchange of contracts (NSW): the vendor’s conveyancer includes title information in the Contract for Sale prepared before marketing
- Shortly before settlement: a final title search is conducted to confirm that no new interests have been registered on the title between exchange and settlement, such as a new caveat or judgment
The final pre-settlement title search is a critical protection for both the buyer (purchaser) and their lender, confirming the title is clear and ready for the transfer of ownership.
How Much Does a Title Search Cost?
Title search fees are set by the relevant state land registry, Queensland Titles Registry in QLD and NSW Land Registry Services in NSW. The fees are relatively modest and form part of the disbursements charged by the conveyancer as part of the overall conveyancing cost.
Title search fees are passed through to the client at cost as part of the overall search and disbursement budget for the transaction. Your conveyancer will include an estimate of all search costs, including the title search, in their initial fee disclosure.
What Happens If a Problem Is Found on a Title Search?
If a title search reveals a problem, such as an unexpected caveat, an undisclosed easement, an outstanding mortgage that the seller (vendor) did not disclose, or a discrepancy in the ownership details, the buyer’s (purchaser’s) conveyancer will investigate and advise on the appropriate course of action.
Depending on the nature of the issue, the conveyancer may:
- Require the seller (vendor) to remove the encumbrance before settlement
- Negotiate a price adjustment to reflect the impact of the issue
- Advise the buyer (purchaser) on whether the issue materially affects their intended use of the property
- In serious cases, advise whether the buyer (purchaser) has grounds to terminate the contract
This is why having an experienced conveyancer review the title search, rather than simply filing it, is essential. A title search is only as useful as the professional interpreting it.
About Milana Law, Title Searches and Property Conveyancing in QLD and NSW
Milana Law conducts title searches and full property due diligence as part of every conveyancing matter across Queensland and New South Wales. Whether you are a buyer, seller, purchaser or vendor, residential, rural or commercial, Milana Law ensures every registered interest affecting your property is identified, investigated and resolved before settlement.
Milana Law’s NSW conveyancing is led by Kylie, a licensed conveyancer with over 20 years of experience in NSW property transactions, available after hours and fully online for clients across the state.
QLD: 07 3522 1422 | NSW: 02 8360 8999 | www.milanalaw.com.au