A certificate of title is an official legal document that provides evidence of land ownership. It includes a description of the land, the name of the owner(s), how they own the land (i.e., as tenants in common or joint tenants) and details about any encumbrances on the land, such as a mortgage, easement and/or caveat. The land registry of each state holds all original certificates of title and it’s possible to order a copy of your certificate of title online, as well. In WA, our land registry is Landgate.
From 1875 to 1996, all land owners in WA were issued with a duplicate certificate of title (a physical, paper copy of the certificate of title). It was commonplace for duplicate certificate of titles to be used as security for a home loan whereby the lender would keep the duplicate certificate of title until the loan was repaid. During this time, the landowner would not have been able to sell or otherwise deal with the property. The lender’s loan was protected by the registration of a mortgage on the certificate of title. Duplicate certificates of title have been very important because in order to sell or otherwise deal with property, the duplicate certificate of title was required to be produced to Landgate.
In 1996 in WA, the issuing of a duplicate certificate of title became optional. Currently in WA, over 55% of titles do not have a duplicate certificate of title and in 2021, 99% of property transfers in WA involving a mortgage did not have a duplicate certificate of title issued.
The WA parliament has recently passed changes to the Transfer of Land Act 1893 (WA), one of which being that as of 7 August 2023, duplicate certificates of title will no longer exist in WA. This means not only will they no longer be issued, but any duplicate certificates of title that are currently in existence will cease to have legal effect. There will be no need to destroy your duplicate certificate of title or take any other action to void it – it automatically will not be effective anymore as of 7 August this year.
This means that if you hold a duplicate certificate of title of someone else’s property as security for an interest you have in the property, it will not have any legal effect as of 7 August 2023. This will mean that in order to protect your interest, it is essential to have that interest recognised on the original certificate of title, for example by way of a caveat.
There are many situations that can give rise to a caveatable interest, including but not limited to:
- If you contributed towards the purchase price but are not listed as an owner on the title;
- If the property is held in a trust and you are a beneficiary of the trust;
- If you are entitled to receive a portion of the proceeds upon sale of the property; or
- If you have a contractual right to put a caveat on the title.
If you are currently holding a duplicate certificate of title as security for an interest in a property and you have not registered that interest on the title, you should seek urgent legal advice about whether you have a right to do so. At Lynn & Brown Lawyers, we have a team of lawyers who are experienced in dealing with interests in land who would be happy to assist with any queries. You can call our office to book an appointment on 9375 3411.
About the authors: This article has been co-authored by Chelsea McNeill and Steven Brown. Chelsea is a lawyer that graduated from Murdoch University. Steven is a Perth lawyer and director, and has over 20 years’ experience in legal practice and practices in commercial law, dispute resolution and estate planning.
