Real Property Rights and Land Titling

Understanding Real Property

• Real property involves a bundle of rights associated with physical property (land, buildings).
• These rights are legally enforceable.

Bundle of Rights

• Right to occupy and live in the property.
• Right to sell the property.
• Right to exclude others from the property (trespass).
• Right to borrow against the property (mortgage).
• Right to convey ownership through gift or inheritance.

Partial Interests in Property

• Partial interests arise when an owner conveys some but not all property rights.
• Examples include:
  • Leasehold Estates: Tenant holds the right to occupy.
  • Life Estates: Rights exist only during a person's lifetime.
  • Undivided Interests: Shared ownership.
  • Rights of Way: Access granted over adjoining property.
  • Timeshares: Occupancy rights for specific periods.
  • Ownerships subject to financial obligations like a mortgage.

Land Titling: The Torrens System

• A certificate of title is official proof of real property ownership.
• Registration of Deeds (English System) initially required establishing an uninterrupted chain of title, which was complex and costly.
• Robert Torrens simplified the process in South Australia by introducing government-guaranteed ownership.
• This system eliminated the need to trace the chain of title as the government guarantees title correctness.
• The Torrens Titling System began in South Australia in 1858 and is now used in all Australian jurisdictions as well as many other locations around the world.
• The Torrens system operates on three principles:
  • Mirror principle: The register accurately reflects current title facts.
  • Curtain principle: All title information is on the Certificate of Title.
  • Indemnity principle: Compensation for losses from fraud or Registrar errors.

Types of Title in Australia

• Torrens Title: Owner controls the whole property from the surface to the earth's center.
• Strata Title: Includes an exclusive unit, subsidiaries, and jointly-owned common property managed by a body corporate, with boundaries in layers.
• Community Title: Lots and common property are included in either a Community Scheme or a Community Strata Scheme (similar to strata title).

Ownership Types

• Real property can be owned by one or more persons.
  • Joint Tenants: The survivor(s) inherit a deceased holder's share.
  • Tenants in Common: Shares can be dealt with separately and need not be equal.
• A legal presumption of joint tenants exists if not specified.
• Joint tenants can convert into a tenancy in common.

Certificate of Title Endorsements and Terms

• CAVEAT: A warning by someone claiming a land interest.
• COVENANT: A clause requiring or prohibiting certain actions.
• EASEMENT: A right over another's land (e.g., right of way).
• ENCUMBRANCE: A claim against clear title (e.g., mortgages, liens).
• LEASE: A grant of property possession for a fixed term, usually with rent.
• LIEN: A right due to an unpaid debt or duty.
• MORTGAGE: A charge over property as security for a loan.
• RIGHT OF WAY: A right to cross another's land.
• TRANSFER: An endorsement showing a change in ownership.

National Electronic Conveyancing System

• Introduced in 2016, changing property transfer methods.
• Title records are now electronic; physical duplicate titles are no longer used.
• Title Watch provides electronic notifications of title activity.
• Priority Notice prioritizes transactions.

Boundary Definition

• Boundaries are defined by surveyed land maps linked to the title.

Land Ownership Origins in Australia

• The British Crown assumed ownership, designating all land as crown land.
• Crown land was spatially subdivided into:
  • Counties
  • Hundreds (parishes)
  • Sections
  • Town Acres
  • Town Allotments
• Interests in crown lands may be sold (alienated or granted) or leased.
• Crown leases include categories such as Pastoral, Perpetual, Marginal Lands, Miscellaneous and Irrigation Leases.

Land Ownership Records

• Once alienated, land ownership records are either under the old system or the Real Property Act.
• Old System or General Law Land:
  • Applies to grants prior to the Real Property Act (RPA) of 1886.
  • Ownership depended on unchallenged possession and historical documents.
  • Registration of Deeds was introduced in 1841 but didn't guarantee title validity.
• Real Property Act (RPA):
  • Introduced in 1858, registering ownership and land matters on a Certificate of Title.
  • Originals are held at the Lands Title Office, duplicates by the proprietor.

Converting Old System Land

• Old system land can be converted to Torrens title with proof of ownership, survey plans, and fees.

Subdivision Approvals

• Subdivision of private land are approved by government bodies and registered as Filed Plans or Deposited Plans.
• Plans detail survey information, boundaries, and interests like easements.

Property Location Identification

• A unique legal description is essential.
• Street addresses may not be unique.
• The legal description on the Certificate of Title is used, based on a survey plan.
• Legal descriptions include:
  • South Australian Lands Title Registry Office. Register Book Volume ### Folio ##.
  • Allotment ### in S.A. L.T.R.O. Deposited Plan ###
  • County, Hundred, Section, Lot reference or Town Subdivision.

Rule of Law and Property Value

• Enforceable rules give value to property rights.
• The Certificate of Title guarantees ownership, enforced by courts.

Dimensions of Real Property

• Includes the surface, soil, rocks, and airspace.
• Legal limits exist on airspace and subsurface use.

Permanent Fixtures

• Permanently fastened objects become part of the real estate.

Appurtenant Rights

• Give the owner of one property the legal use of another property (e.g., water rights, easements).

Immovable by Law

• Personal property legally bound to the land becomes real property.

Factors Affecting Property Use

• Ownership benefits depend on available uses.
• Public and private restrictions impact potential opportunities.

Categories of Use Restrictions

• Countries with a British origin refer to land being owned but “The Crown” which refers to the government.
• Government Restrictions:
  • Regulatory power (police powers).
  • Compulsory purchase (eminent domain).
  • Taxation.
  • Escheat (reversion to the crown).

Regulatory Powers Affecting Real Estate

• Air and water pollution controls.
• Building, housing, and electrical codes.
• Coastal preservation zones.
• Endangered species act.
• Environmental controls.
• Flood zones.
• Heritage listings.
• Significant trees.
• Park dedications.
• Rent control.
• Subdivision requirements.
• Underground utility requirements.
• Zoning regulations.

Private Restrictions

• CC&Rs (Conditions, Covenants, and Restrictions).
• Private easements and contracts.

Market Restrictions

• The market encourages economically feasible land uses.

Land Use and Community Worth

• Government, private, and market restrictions determine the best use and community worth of land.

Urban and Regional Planning

• Planning involves researching, analyzing, anticipating, and influencing societal change.
• Planners manage suburban and regional development, balancing community and environmental needs.

Planning Controls in Australia

• Adelaide began as a planned city.
• South Australia has a strategic plan addressing infrastructure, housing, natural resources, sustainability and climate change.
• Development controls are through the Planning, Development & Infrastructure Act (2016) and are implemented through the Planning and Design Code.
• Information is accessed via SAPPA (South Australian Property and Planning Atlas).

The Planning System

• The planning system incorporates the Planning and Design Code, Development Application Process, and SAPPA.
• The Planning and Design Code replaced Development Plans at Local Government Area (LGA) level.

Performance Based Planning

• Performance-based planning focuses on land use intensity and physical characteristics rather than specific uses.
• Form-based codes define areas by suitable development scale and form.

Overlays (Hazards and Heritage)

• Overlays address location-specific planning issues of state interest such as flooding, bushfires, contaminated soils, and building heights.
• Heritage properties are indicated by overlays with development restrictions.

Neighbourhood Boundaries

• Set by economic factors, physical features, or legal boundaries.
• Can also be determined by occupant, building, or land use changes.

Neighbourhood Profile

• Typical features described for a residential neighbourhood include;
  • Location: urban, suburban, or rural.
  • Development and growth rate: The percentage of built-up land.
  • Trend of property values: Increasing, stable, or declining.
  • Demand/supply: Whether housing supply is short, in balance, or in oversupply compared with current demand.
  • Marketing time: Average time to sell.
  • Predominant occupancy: Owner or tenant, with approximate vacancy percentage.
  • Single-family housing price and age: Housing price range, predominant price, and typical age.
  • Present land use %: The percentage of each land use in evidence.
  • Land-use change: Likelihood of change.

Sources of Neighbourhood Data

• Local Building and Planning Agencies.
• Chambers of Commerce.
• Real estate sales and property management agencies
• Neighbourhood demographic services (such as census data) available on the Internet.

Factors Affecting Neighbourhood Quality

• Physical, economic, social, and political factors.
• Physical and Locational Factors:
  • Convenience to schools, employment, transportation routes, shopping, public health and medical facilities, religious and recreation centres.
  • Adequacy of utilities and other public services.
  • General appearance and compatibility of properties.
  • Appeal to the market.
  • Absence of toxic wastes and other adverse environmental conditions
• Economic Factors
  • Income level and employment stability.
  • Growth rate, trend of property values, supply and demand, marketing time for properties, and land-use changes in evidence
• Social Factors
  • Similarity of interests of the occupants.
  • Lifestyles, standards, education, occupations, ages, and family makeup.
  • Predominant occupancy (renters or owner-occupants).
  • Occupant turnover rate.
  • Neighbourhood groups and organizations.
  • Importance placed on building maintenance and modernization
  • Community support for the existing legal and political order.
• Political Factors
  • Level and fairness of taxes and assessments.
  • Services provided.
  • Governmental positions on air, soil, and water pollution, job safety, social programs, noise, odour, and ecological controls.
  • Many political factors are the ultimate result of social attitudes.

Neighbourhoods and Change

• Neighbourhoods go through a repeated cycle:
  • Development phase
  • Stable phase
  • Decline or decay
  • Renaissance

Evidence of Neighbourhood Change

• Growth phase to the stable phase--a decline in construction
• Stable phase to the declining phase--changes in existing buildings: reduced maintenance and/or higher density of use
• Renaissance--notable renovation of existing structures

Land Uses within a Community

• Broad categories include:
  • Residential
  • Commercial
  • Industrial
  • Recreational
  • Institutional
  • Rural and pastoral
• Their mix defines the neighbourhood character.

Community Origins and Growth

• Selection factors for townsites include:
  • Availability of food and water
  • Natural defenses
  • Religious purposes
  • Commercial benefits
  • Topography, resources, and transportation

Types of Towns

• The central town'
• The transportation service town
• Special-function towns

Changes in City Function

• Towns can change from one functional type to another.

Economic Growth

• Communities import goods, paying through export production.
• Local production serves residents.
• Export production forms the economic base.

Community Patterns

• Patterns form based on:
  • Topography
  • Town origins
  • Transportation systems
  • Existing uses

Typical Patterns

• Clusters at intersections
• Concentric rings around the core
• Linear strips along transportation lines

Current Trends

• Transportation lines create linear commercial strips.

Using Information about Communities

• Community trends affect real estate markets.
• Understanding origins and patterns helps uncover opportunities.

Using Neighbourhood Information

• Provides a socio-economic & political picture.
• Suggests the most profitable use of the property.

Key Socio-Economic Indicators

• Key socio-economic indicators describing neighbourhoods or suburbs may include;
  • Total population
  • Breakdown of population by age and sex
  • Breakdown of population by income & employment type
• Data collected by the Australian Bureau of Statistics (ABS) via the Census of Population and Housing available on various websites.