Published: 31 August 2018
Published: 31 August 2018
Author: Madlaina Meister
What is General Law land?
Do you have a stack of old looking documents, sometimes including large format parchments with ornate handwriting on it? Or have you been clearing out a recently deceased's relative's things and have come across such documents?
Whatever you do, do not destroy them. Take them into your solicitor's office to have them inspected, as they may well be the title to your or your relative's land.
Two title systems - a history lesson
If you own land that you have acquired in the last 20 years, you will be familiar with the title being a one-page document showing a:
- Volume and Folio number;
- Description of the land, usually by lot and plan number or sometimes by reference to a Crown Allotment, and
- Your details as registered proprietor.
This is a Torrens Title, also known as 'Land under the operation of the Transfer of Land Act 1958. When a Transfer is registered for Torrens Title land, a new title will issue in the name of the new registered proprietor, but with the same Volume and Folio number.
General Law land is different, and is described as follows by Land Victoria:
In Victoria today, 'General Law land' is the term used to described land alienated by the Crown between 1837 (the year of the first grants by the Governor of New South Wales of land in the District of Port Phillip) and 2 October 1862 which has not since been brought under the operation of the Transfer of Land Act (TLA).
From 2 October 1862, the date the Torrens Title system came into operation, to 31 December 1999 the two title systems ran parallel to each other.
How was General Law land transferred in the past?
General Law land was usually transferred by a Deed of Conveyance, setting out each party's names, the sale price, a detailed description of the land with reference to the parcels of land surrounding it and any easements, covenants or other encumbrances affecting the land. This deed was then registered at the Registrar General's office and assigned a unique Deed and Book number. These numbers refer to actual books kept at the Registrar General's office containing details of the dealings.
Once registered, this Deed of Conveyance was then added to the stack of deeds handed over to the Purchaser at settlement, and the whole stack, known as the 'Chain of Title', made up the title.
Any other dealings with the land, for example, Mortgages, Reconveyances (now known as Discharge of Mortgage), creation of Easements or Covenants, were processed in the same way and added to the Chain of Title.
The function of the Chain of Title is to show that the land has been correctly transferred by the person or persons with a right to transfer same at the time.
On 31 December 1999 the Registrar General's books were closed, and from 1 January 2000, any sale or transfer of General Law land could no longer be registered in this way.
Conversion to Torrens Title land
A lot of General Law land was voluntarily converted to Torrens Title land between 1862 and 1999, but some remained as General Law Land. From 1 January 2000, conversion became mandatory to be able to register a Transfer or other dealing, like a Mortgage.
There are different ways General Law land can be converted, but the most common way is by an application under Section 14 of the Transfer of Land Act. For a Section 14 Application, the following are required:
1. Conversion search
Your solicitor needs to obtain a title search to establish your right to deal with the land. This means that a search agent has to attend the Registrar General's office and conduct a manual search of the records held in relation to your land and put together a search report, listing the deed and book numbers and other details of each dealing registered for your land. These searches can be complex and the costs usually run to several hundred dollars.
2. Inspecting the Chain of Title
Once your solicitor receives the conversion search, s/he will check the search against the original documents contained in the Chain of Title. If you are buying General Law land your solicitor will make an appointment to inspect the chain at the Vendor's solicitor's office or at the Vendor's bank.
Ideally, the search will correspond with the documents contained in the Chain. However, occasionally your solicitor will discover a discrepancy, for example, documents missing from the search, or an undischarged Mortgage. S/he will then either send the search back to the search agent to be amended in the first case, or arrange for a Discharge of Mortgage to be prepared by the relevant bank in the second case.
3. Solicitor's Certificate
When your solicitor is satisfied that the Chain of Title is in order s/he will prepare a Solicitor's Certificate setting out the last conveyance in the chain, the 'Root of Title' (the oldest conveyance in the chain – sometimes this is the original Land Grant) and other details relevant to the land, like easements and covenants.
The solicitor's certificate will also contain qualifications, for example where any documents listed in the search were not available for inspection. This can happen where part of the land was sold to someone else in a past transaction and the documents relating to that part of the land are now part of another Chain of Title.
Your solicitor is now ready to lodge the Conversion Application. Land Victoria requires that either the original Chain of Title is lodged together with the Conversion Application or certified copies of all the documents in the Chain. Speak to your solicitor about the second option if you wish to retain the original Chain of Title as a piece of Victorian history.
Owning, purchasing and inheriting General Law land
If you own General Law land and you don't have any immediate plans for it you don't need to do anything. If you are planning on selling the land, make sure your solicitor knows it is General Law land and has the Chain of Title, as this needs to be disclosed to the Purchaser. However, it is usually the Purchaser's responsibility to have a Conversion Application prepared and pay the costs for this.
If you are purchasing General Law land it will generally be your responsibility to have it converted to Torrens Title land at your cost. Speak to our property law team about the process and the costs for preparing a Conversion Application.
If you are the Executor of a Deceased Estate involving General Law land there are a couple of possibilities:
1. The property is to be sold
You don't need to have a conversion done, this should be left to the Purchaser to do. (see (a) above).
2. The property is to be transferred to a beneficiary
It will be necessary to prepare a Conversion Application and lodge it together with a Transfer of Land. The costs for the Conversion Application will need to be paid by the Estate. The new title will issue as a Torrens Title in the beneficiary's name.
If you want to know more about General Law land and how to deal with it, contact our friendly property law team to discuss further.