Land Title System

 

 

Every parcel of land in South Australia has a unique legal description, mostly being based on combinations of plan/allotment or Hundred/Section or Government Town/allotment or Certificate of Title reference. Land division is the process which results in the creation of new plan parcels and the issue of new Certificates of Title, resulting in the former land parcels being superseded.
There are four types of Title as to how land can be legally held in ownership -

  • Torrens Title
  • Community Title
  • Community Strata Title
  • Strata Title

Torrens Title

Torrens title land division is the division of land into at least two allotments, which are held independently of one another. There are generally no shared facilities or infrastructure.

Community Title

A community title is the division of land into at least two lots and an area of common property. Common property relates to those parts that do not form part of a lot and typically includes the service infrastructure and driveways that are shared.

The following links provide further information on Community Titles:

04 Strata and Community Titles.pdf

Strata and_Community Titles Nov 09.pdf

Land Title System

More specifically, a community title is evidence of ownership of a lot in a community plan. There are two types of community titles depending on the nature of the scheme, namely a Community Scheme or a Community Strata Scheme.

All community titles include a Community Corporation, which has the role of administering the by-laws and managing the common property and any fixtures erected on it.  The by-laws are a compulsory document for all schemes and set out the obligations of the corporation in administering the scheme and the rules by which the scheme is to be run.

A Scheme Description is to provide a brief description of the nature of the scheme to which the Council has given its consent for the benefit of persons considering purchasing or entering into any other dealing with a lot created by the scheme. 

There is no need to prepare a Scheme Description if the community division does not create more than six community lots, and does not create a development lot and each of the community lots is intended to be used solely or predominantly for residential purposes.

Community Strata Title

In a community strata scheme there must be at least one lot that exists above another and the lot boundaries must be defined by reference to parts of the building. The structure itself forms part of the common property and it is therefore the responsibility of the corporation to maintain and insure it.

Strata Title

A strata title is a title associated with some forms of attached houses and “home units” and commercial uses such as shops or warehouses. The title is evidence of ownership of a unit in a strata plan. A strata plan divides a building and its associated land into units and common property, each of which has a title.

It is no longer possible to create new strata divisions but existing strata schemes can continue and are regulated under the Strata Titles Act. It is possible to amend an existing scheme or cancel and convert to Torrens Titles. These are considered as land division.

Certificates of Title

A Certificate of Title is a document or certificate issued by the Registrar-General pursuant to the Real Property Act 1886 and contains several components, including -

  • a Title reference, which consists of a Volume and Folio number
  • ownership details stating the name of the owner(s), address, mode of holding and the interest held in the land
  • a legal description of the land (usually, as a minimum, an allotment and plan number)
  • easements and rights of way affecting the land
  • encumbrances affecting the land, eg a mortgage or lease.

Further information regarding land and property and ownership can be found at the Land Services Group.

Encumbrances (private)

Private encumbrances are registered from time to time on Certificates of Title, however these matters do not involve statutory bodies.  They are distinct from statutory easements in favour of the Crown or Council.

In the matter of Karger v City of Onkaparinga [2005] SASC it was found that the Environment, Resources and Development Court had correctly decided to not treat the fact of a private encumbrance as a relevant issue in determining the appropriateness of a proposed development.  The following extract is instructive:

“A planning authority must be concerned only with the requirements of the Development Act, the Development Regulations, and the relevant Development Plan.  It is not for a planning authority to act as the enforcer of the provisions of such an encumbrance.  This is a matter for the encumbrancee.”

The Court observed that the only way that such development restrictions can be considered by a planning authority is if they are incorporated into a Land Management Agreement pursuant to Section 57(12) of the Development Act, 1993.

Easements

An easement is a right enjoyed by the owner of land over the lands of another, such as:

  • Rights of support
  • Rights to a flow of water, sewer, power etc.
  • Rights of way

Link to Land Services Fact Sheet on Easements:
http://www.landservices.sa.gov.au/5publications/Brochures_and_Fact_Sheets/_files/_Text_Versions/Fact_Sheet_3.htm