The Land Title Act and Leasing

The Land Title Act and Leasing

The Land Title Act and Leasing

In Queensland, interests as to land rights are governed by the Land Title Act 1994 (Qld).
 
That Act (replacing the earlier Real Property Act) gives statutory effect to “Torrens” title in Queensland.
 
Previously (in England prior to Colonisation), in order to transfer land you had to legally prove ownership in the property, and trace the owners back to the Crown (who theoretically owned the land in the first instance).  This proved a difficult and expensive task, and gradually moved the system towards a more user-friendly process.  This method was introduced at Colonisation.
 
Robert Torrens (a South Australian) in 1858 introduced his new system – there would be a register held by the Government, and that register would be the start and the end of ownership.  Regardless, if your name was on the register you were the owner.  This is now known as the concept of indefeasibility.
 
In Queensland, a Lease for a term exceeding five (5) years must be registered in order to grant indefeasibility (s.181 of the Land Title Act).  Without registration, a lessee has no legal rights under the Act.
 
The position is confused however with section 71, which states that an unregistered lease is not invalid.
 
The Court of Appeal in Aston & Ors & Hunt [1998] QCA 308 (the only real definitive consideration of s.71) considered the position section 71 provided.
 
Thomas JA (writing the leading judgment) noted that until s.71, validity and indefeasibility had travelled hand-in-hand.  The effect of s.71 split those concepts – an unregistered lease now was effective to create an equitable interest, and was helpful in establishing the terms of a common law tenancy at will (meaning effectively an informal month to month arrangement), but that was all.
 
It is important, for both lessees and lessors, to ensure that leases exceeding five (5) years are registered – for a lessee it protects their legal right to use the land against all; for a lessor it provides an actionable right of action against a delinquent lessee, and avoids expensive proceedings establishing an alternate tenancy (ie, at will).
 
If you would like to check if your lease is registered, please feel free to contact one of our Commercial solicitors on 1300 HATZIS (1300 428 947) who will be able to discuss the matter with you and (for a small fee) conduct a search of the Land Title Register to ensure your lease is registered.

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