Handling Title And Ownership Issues During Conveyancing

Title refers to the legal right to own and deal with a property. When a buyer purchases a property, they are acquiring that title from the current registered owner. Conveyancing is the process of legally transferring that title, and part of that process involves investigating the title to confirm it is clear, accurate and capable of being transferred without complications.



Title and ownership issues arise when the investigation reveals something that affects the buyer's ability to take clear ownership, the seller's ability to transfer it, or both. These issues range from minor administrative matters that are resolved quickly to significant legal complications that can delay or derail settlement entirely if they are not identified and managed early.

Not all title problems are obvious, and some have been sitting unaddressed on a title for years before a transaction brings them to the surface. A thorough title search is the starting point for identifying what exists.

Common title issues that appear in conveyancing practice include:



• Caveats: A caveat is a formal notice lodged on title by a third party claiming an interest in the property. It effectively freezes dealings with the title until the claim is resolved or the caveat is removed. A caveat lodged by a former partner, a creditor or a party claiming a beneficial interest needs to be addressed before settlement can proceed
• Unregistered interests: Some interests affecting a property may not be formally registered on title but still bind subsequent owners. These include certain easements, informal agreements and rights that arise through long use
• Boundary and survey discrepancies: The physical boundaries of a property do not always match what appears on the title or deposited plan. Discrepancies can create disputes with neighbours and affect what the buyer is actually purchasing
• Outstanding notices or orders: Local council orders, heritage listing conditions or environmental protection orders affecting the land may not be immediately apparent from the title search alone and require additional searches to identify
• Unpaid rates or levies: Outstanding council rates, water charges or strata levies can attach to the land and become the buyer's problem after settlement if they are not identified and resolved beforehand

Many properties are owned by more than one person, and the legal structure of that co-ownership has significant implications for how the property can be dealt with.

In NSW, co-owners hold title either as joint tenants or tenants in common. Joint tenants own the property equally and without defined shares, and the right of survivorship means that when one owner dies, their interest passes automatically to the surviving owner rather than through the estate. Tenants in common hold defined shares that can be unequal, and each owner can deal with their share independently and leave it to whoever they choose in their will.

The practical complications this creates in a sale or purchase include:



• All registered owners must consent to and sign the contract for a sale to proceed. A co-owner who is uncontactable, mentally incapacitated, deceased or disputing the transaction creates a significant problem
• Where one co-owner has died and the right of survivorship has not been formally recorded, the title may still show the deceased person as a registered owner. This needs to be rectified before the property can be sold
• Tenants in common with defined shares may disagree on the price, timing or terms of a sale. Where agreement cannot be reached, a court application for a forced sale may be the only resolution
• Estates of deceased owners add an additional layer of complexity, as the executor or administrator of the estate must have authority to deal with the property and provide the appropriate probate documentation

Encumbrances are rights or obligations that attach to the land itself rather than the owner, meaning they pass with the property to each subsequent buyer. They affect how the land can be used and what the owner is obliged to allow or maintain.

Easements are among the most common encumbrances and are worth understanding before purchase:



• A right-of-way easement allows a third party to pass over part of the land, often for access to an adjoining property
• A drainage easement restricts what can be built over or near a drain that crosses the land
• A services easement protects underground utilities such as water, sewerage or electricity infrastructure running beneath the property
• A positive covenant imposes an obligation on the landowner to do something, such as maintain a boundary fence or manage stormwater in a particular way

Easements are disclosed in the contract, but buyers need to understand the practical implications. An easement that allows a neighbour to cross a portion of the rear yard may have little practical impact on most buyers but could be a significant issue for someone planning to build a pool or outbuilding in that area.

Encumbrances beyond easements include restrictive covenants that limit what can be built or done on the land, mortgages that must be discharged at settlement, and registered leases that give a tenant the right to occupy the property beyond the anticipated possession date.

A conveyancer's role in relation to title and ownership issues is both investigative and practical. The investigation phase involves ordering and reviewing a series of searches that go beyond the title register to include council records, government databases, water and drainage records, and other sources depending on the property type and location.

The searches typically ordered in a standard NSW conveyancing matter include:



• Title search confirming the current registered owner and any registered dealings on the title
• Land tax certificate confirming any outstanding land tax liability
• Council searches covering rates, outstanding orders, zoning and any notices affecting the land
• Water and drainage searches
• Sewerage searches and connection status
• Roads searches confirming the boundary and any proposed road widening that might affect the land

Where an issue is identified, the conveyancer works to resolve it before settlement. In many cases this involves correspondence with the other party or their representative, negotiation over who bears the cost of resolution, obtaining discharges or consents and coordinating with relevant authorities. More complex matters, such as a disputed caveat or a title that requires court rectification, may require involvement from a solicitor.

Title and ownership issues discovered late in the conveyancing process create pressure on everyone involved. Settlement dates are tied to financing arrangements, removalist bookings, other property transactions and sometimes employment relocations. When a title problem surfaces a week before settlement, the options for resolving it under time pressure are narrower and more expensive than they would have been if the issue had been identified at the start.

Engaging a conveyancer early, before an offer becomes binding, allows for a preliminary review of the contract and any disclosed encumbrances. It also means there is time to order the full suite of searches, identify any issues and seek resolution or negotiate terms accordingly before the buyer is locked in. For anyone searching for conveyancing near me, instructing a local conveyancer who knows the region and its common title characteristics is a practical advantage.

Properties in the Forster - Tuncurry and Great Lakes area can carry specific characteristics relevant to title, including foreshore restrictions, environmental protection areas and Crown land boundaries. A conveyancer familiar with the local landscape brings that contextual knowledge to the search and review process.

We at Morris Legal and Conveyancing work with buyers, sellers and investors across Forster - Tuncurry and the surrounding Mid North Coast region on property transactions of all types. If you are dealing with a property that has a complex ownership structure, a title issue that has been flagged or simply want to make sure the conveyancing process is handled thoroughly from the start, our team can help. Visit our conveyancing Forster - Tuncurry page to learn more about our service, or contact us directly to discuss your matter.