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Rights and registration

Rights

What types of holding right over real estate are acknowledged by law in your jurisdiction?

Real estate in Australia is generally either:

  • owned outright (freehold) – this is the most common form of ownership; or
  • leased under a long-term lease from the government – this is less common and generally found in specific jurisdictions (eg, the Australian Capital Territory) or various areas (eg, Sydney Harbour foreshore). 

Many other interests in land can also be granted, including native title rights, crown leases and mining leases. Real estate can be subject to short-term leases and licences to occupy. Freehold and leasehold owners can mortgage their interest and grant other rights, such as access rights.

Are rights to land and buildings on the land legally separable?

This is not common. Ownership of land is accompanied by ownership of all structures and fixtures erected on the land. However, it is possible for a land owner to grant a long-term lease of a building to a third party, which is a way of effectively separating ownership of the land and building.

Which parties may hold and exercise rights over real estate? Are there restrictions on foreign ownership of property?

Any legal entity (ie, an individual over the age of 18, a company or a trustee) may own real estate. There are restrictions on foreign ownership of real estate, but these are limited to a requirement that foreign parties obtain prior government approval. Generally, where there is an economic benefit to Australia, such applications will be approved; the exception is second hand (ie, not newly developed) residential real estate, where foreign buyers can buy only in limited circumstances. 

How are rights, encumbrances and other interests over real estate prioritised?

Real estate law across most jurisdictions in Australia operates on a system of registration, where a party has priority based on the order of registration, with exceptions only for fraud and other limited circumstances. Given that the title register is publicly searchable for ownership and other interests in real estate, and there being a general understanding of the importance of registering dealings such as leases, priority disputes are relatively rare.

Registration

Must real estate rights, interests and transactions be registered in your jurisdiction? What are the legal effects of registration?

Generally yes, but there are exceptions for some short-term leases. The legal effect of registration is the indefeasibility of title and priority over any later dealing. For example, the interest of a tenant who has registered the lease would be protected against action from any incoming mortgagee under a later mortgage.

What are the procedural and documentary requirements for entry into the national real estate register(s)? Can registration be completed electronically?

Registration is available to any member of the public through land title registries in each jurisdiction. There is a move towards all conveyancing being done electronically by 2019 and for paper certificates of title to be phased out ‒ although currently most registration is not done electronically.

What information is recorded in the national real estate register(s) and to what extent is such information publicly available?

The title to each property records the owner (name of the individual and company only) and full copies of any registered mortgage, lease, easement or other dealing. The purchase price for the property is generally known and discoverable, as it is included on transfers of property which can be publicly searched. There is generally a high degree of transparency as to who owns the property and the price paid.

Is there a state guarantee of title?

Each jurisdiction operates with different legislation. In New South Wales, for example, the Torrens Assurance Fund allows those deprived of property interests through fraud to make a claim.

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