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Property issues

 

How do I find out who owns land in WA?

In Western Australia, the owner of land is usually registered on the certificate of title, and is the registered proprietor of that land. The certificate of title is held in a central register at Landgate.

What is Landgate?

Landgate is the statutory authority responsible for Western Australia's land and property information.

What are the different ways to own land?

You can own land either as a joint tenant or a tenant in common.

Can there be more than one owner?

There can be more than one owner. If there are multiple owners, they can own the land either as joint tenants or tenants in common.

I am on the title as a joint tenant. What does that mean?

If you are a joint tenant it means:

  • you and the other owners jointly own the property
  • there are no specified shares
  • if one owner dies, the other owner/s automatically acquire that person's interest
  • no part of the property can be sold, given away or willed without the agreement of all the owners.

Unless stated otherwise on the certificate of title, it is presumed in WA that co-owners own land as joint tenants.

If I die who does the property I own as a joint tenant go to?

When a joint tenant dies, their ownership in the property automatically passes to the surviving joint tenants.

I want to end a joint tenancy. What should I do?

If you want to end a joint tenancy you should get legal advice.

What is the difference between owning property as a joint tenant or tenant in common?

If you are a tenant in common each co-owner has a defined share of the property, eg 50%, 25%, rather than owning the whole property together.

As a tenant in common you can transfer your share to someone else. This means you can leave your share in the property to someone else in your will.

What is conveyancing?

Conveyancing is the formal process of transferring an interest in land from one person to another.

What is a mortgage?

Where a purchaser for a property requires a loan to pay for property that loan will be generally secured against the property that is being purchased by a mortgage over the property:

  • the purchaser is the mortgagor
  • the lender is the mortgagee.

Each lender will have their own criteria and their own conditions for loans. The loan applicant has responsibility for reading and understanding those conditions, and all relevant documentation.

What if loan payments are not met?

If the mortgagor fails to make the agreed payments or otherwise is in default of the loan agreement, the lender can apply for possession of the secured property.

Get legal advice on the terms of the mortgage document and loan contract. For more information on contracts go to Contracts.  See Guarantors and co-borrowers for information if you are a guarantor or co-borrower.

What is a caveat?

A caveat is a notice registered on a certificate of title (a "registered interest"), that prevents dealings (eg buying, selling, registering a mortgage) with the land. A person who registers a caveat is known as a "caveator".

A caveat acts as:

  • a warning of an equitable interest in land
  • a statutory injunction.

A caveat can only be used to protect an interest in the land. It does not give a proprietary interest in land.

To lodge a caveat, the caveator (the person who takes out the caveat) must have a caveatable interest in the land, in other words, an estate or interest in the land. The types of caveatable interests are varied and complex. Generally, a claim should arise through a dealing with the registered proprietor.

You should get legal advice before lodging a caveat. There are costs consequences.

You can now lodge a caveat (improper dealings) with Landgate to help reduce the risk if improper dealings with your property. Once lodged this caveat will stop the registration of any instruments such as transfers, mortgages or leases that would usually need to be signed by the owner.  If there is more than one owner, all owners of the property must want to lodge this caveat.

If you are an owner who has a mortgaged property you should check your mortgage terms and contact your lender before lodging a caveat (improper dealings) as you may not be able to do so without the consent of your lender.

Fees are payable to lodge a caveat.

How can a caveat restrict dealings with land?

A caveat can act as an injunction to prevent the Registrar of Titles from registering any instrument either absolutely, or until after notice of the intended registration or dealing be given caveator, or unless such instrument be expressed to be subject to the claim of the caveator.  

Always seek legal advice before registering a caveat over another person's property.

If you have been served with a notice from the Registrar of Titles about a caveat you have lodged you require urgent legal advice, as time limits to respond are short.

How does the registered proprietor know about the caveat?

The Registrar of Titles (at Landgate) has to give notice to the registered proprietor that a caveat has been lodged against their property.

What if someone gets a caveat without a reasonable reason?

If a caveat is lodged without reasonable cause, the Supreme Court can order payment of compensation for damage caused. Get legal advice.

How can a caveat be removed?

A caveat can be withdrawn at any time by the person who lodged it (the caveator).

The registered proprietor, (or any person claiming under an instrument signed by the registered proprietor) can apply to court for the removal of the caveat.

In cases where it is clear that the caveator has no caveatable interest in the land, the registered proprietor may apply to the Registrar of Titles (at Landgate) to remove the caveat.

There are different requirements for the lodging and removal of a caveat (improper) dealings. See the Landgate website for more information.

What is an easement?

An easement is a right attached to land, so that land owned by another person can be used in a particular way. Types of easements include:

  • rights to install and operate drains and drainage works, and
  • rights to install, maintain and operate oil, gas or other pipelines.

Always seek legal advice about enforcing or disputing an easement.

What is a strata title?

Strata title is a form of ownership for grouped housing, for example, apartments, units, villas, flats and townhouses with shared areas  With strata title schemes there are individual lots, such as apartments, and common property, such as stairwells, gardens and common driveways. Landgate is the state government agency which administers strata law in WA. 

If you want more information, advice and guidance on strata title registration contact the Strata Titles Advisory Service at Landgate on (08) 9273 7044 or visit the Landgate website for A Guide to Strata Titles that can be downloaded or you can request a copy be sent to you. The guide is useful for anyone who lives in, owns or is a prospective owner of a unit.

What if I have a dispute about the title to land?

Disputes over who has better right and title to a particular piece of land can arise in numerous circumstances.

Court action to determine title, or to rectify title, occurs in the Supreme Court of Western Australia. It is usually costly and complex. Always get legal advice about a title dispute.

If there is a dispute between myself and other owners of property what should I do?

The law about solving property disputes is complex. You should get legal advice.

If you have separated after a marriage or de facto relationship see Financial matters

If you are not married or in a relationship and there is a dispute about property with another owner get legal advice.

Are there any protections available against identity theft to stop fraudulent property deals?

Homeowners in WA can take steps to minimise the likelihood of improper dealings on their property. The Landgate website has details of measures introduced by the Department of the Attorney General in WA to help protection against identity theft which can lead to fraudulent property dealings.

The Verification of Identity Practice has been issued jointly by the WA Registrar of Titles and the Commissioner of Titles. It sets out the minimum standard of verification of identity for registered proprietors and others who sign a range of real property documents that are to be lodged with Landgate.

Full compliance with this Practice is expected on documents lodged on and after 2 January 2013. You can read or download the Practice on the Landgate website so that you know how to verify your identity if you do not have a lawyer or a conveyancer. 

What if I want my name suppressed on the title?

Name Suppression is a service available from Landgate if your personal safety or your family's safety is at risk. The service suppresses details of your address and your interests in property on WA's Land Title Register (the register) and in the book of Powers of Attorney lodged at Landgate where a person conducts a name search of the Register. You can get a copy of a Name Suppression Application Pack which includes FAQs from Landgate.

Where can I get more information?

  • For information about fees and procedures about registration including a guide to lodging a caveat contact Landgate on (08) 9273 7373 (general enquiries), TTY (08) 9273 7571, regional Australia 1300 556 224 or visit its website.
  • For information on finding a lawyer and questions you should ask see Lawyers.

Last reviewed: 14/11/2013

Last Modified: 14/11/2013

Disclaimer

The material displayed on this page is intended for information only. If you have a legal problem, you should see a lawyer. Legal Aid Western Australia believes that the information provided is accurate, however does not accept responsibility for any errors or omissions.