NSW progresses to digital conveyancing

Mar 16, 2022 | Property Law

The Registrar General of New South Wales (NSW) has declared that from 11 October 2021 (‘Cessation Day’), there will be no more paper certificates of title (“CT”) in the NSW land title system, becoming entirely electronic instead. The Real Property Amendment (Certificates of Title) Act 2021 will amend the Real Property Act 1900  (NSW) from 11 October in two main ways:

1. The legal effect of paper certificates of title will be revoked and the requirement to produce a certificate of title in some land transactions will be removed; and
2. The electronic lodgment (eConveyancing) of all land dealings in NSW will be accepted, including for leases.

Certificate of Title (CT) in the NSW Torrens Title system

 In the NSW Torrens Title system, registration of a land dealing in the land registry constitutes conclusive evidence of ownership of property. A CT is a document issued by the land registry to record the owner of the property, as well other interests and dealings held by third parties over the property. However, advancements in technology have now rendered the use of actual paper certificates unnecessary. Cessation Day is indicative of NSW’s efforts to convert to an entirely digital conveyancing jurisdiction. This will modernise the NSW land title system, keeping it in line with other Australian jurisdictions including Queensland, South Australia and the Australian Capital Territory who already no longer issue paper CTs.

Effects of the amendment on CTs

 All existing NSW CTs for land will no longer be legally valid from 11 October 2021, and no new CTs will be issued. Instead, the NSW Land Registry Services (“NSW LRS”) will issue an Information Notice which will confirm the land title dealings registered and their date of registration. Additionally, in the event of a subdivision or consolidation of land, a new folio of the Register will be created.

But what are the practical implications for landowners?

• If you are the landowner and hold a paper CT, you do not need to take any action in response to these amendments. We encourage you to keep your CTs to comply with any requisitions or outstanding notices which are not finalised ahead of Cessation Day.
• If another party is holding the paper CT on your behalf, you may wish to have that CT returned to you. From Cessation Day, under the Real Property Act 1900 (NSW) a court may order for the CT to be returned to the NSW LRS and for the said CT to no longer have a legal effect.

Effects of the amendment on electronic lodgement

 From Cessation Day, all dealings listed in the schedule of eDealings (which accounts for 99% of all land transactions) must be lodged electronically. Lodging these land dealings in paper form will not be permitted. The remaining 1% of land transactions will need to be prepared on paper but also lodged electronically with a ‘dealing of exception’ attached.

This change to electronic lodgement means that parties to land transactions will need to engage experienced lawyers, such as those at Etheringtons Solicitors, and licensed conveyancers to register their land dealings. Parties will also need to prove that they have a right to deal with the land, which may involve proving your identity with current documentation and establishing your connection to the property from an independent source.

Benefits of digital conveyancing

 In the past, CTs have been used to reduce the risk of fraud in the paper system and as security for financing arrangements. The amendments aim to create a faster and more secure process in their stead. The cessation of paper CTs will make land dealing transactions easier and a better experience for all parties. The NSW LRS makes electronic title searches available in a fast, cost effective way to anyone wanting to verify ownership records. This removes the hassle of finding an original paper CT which can be time consuming to locate and replace. All land dealings are now registered online using electronic settlement platforms (including PEXA), making electronic lodgement a logical progression.

How Etheringtons Solicitors can help

A solicitor at Etheringtons Solicitors can provide clarification of the relevant law and its relation to your individual circumstances. If you need further advice or assistance with property law matters, please contact one of our experienced solicitors on (02) 9963 9800 or via our contact form.

The Family Home Guarantee: Helping Single Parents Purchase Property

Mar 4, 2022 | Property Law

The Commonwealth Government introduced a scheme to support eligible single-parent families to enter the housing market that came into operation on 1 July 2021. Known as the Family Home Guarantee, this scheme is administered by the National Housing Finance and Investment Corporation (NHFIC), a corporate Commonwealth entity established under the National Housing Finance and Investment Corporation Act 2018 (Cth). By guaranteeing a participating lender up to 18% of the property’s value on behalf of the purchaser, the NHFIC allows a single parent to enter the housing market sooner.

What is the Family Home Guarantee?

The Family Home Guarantee (FHG) scheme supports eligible single parents with at least one dependent child to purchase a family home with as little as a 2% deposit as part of the purchaser’s home loan from a participating lender. The FHG is for a maximum of 18% of the property’s value (as assessed by the lender).

The guarantee itself is not a cash payment nor a home loan deposit, but it means that the eligible purchaser will not need to pay lenders mortgage insurance for having less than a 20% deposit. There are no costs or repayments associated with the FHG itself. However, scheduled repayments of the principal and interest of the associated home loan are required for the full loan agreement period, which must be no more than 30 years.

Eligibility for a property purchase with this scheme

From 1 July 2021 to 30 June 2025, 10,000 FHGs will be made available to eligible single parents. To be eligible for this scheme, at the time you are applying you must:

1. Be an Australian resident who is at least 18 years of age and single – meaning without a spouse (separated but not divorced is not considered single) or de facto This single parent must have a taxable income which does not exceed $125,000 per annum.
2. Have a least one dependent child living with you – meaning you are the natural or adoptive parent of a child who is either under 18 years of age or 16-22 years of age and receiving a disability support pension, indicating that you are legally responsible for their care, welfare and development.
3. Not currently own a home in Australia – meaning you must not currently have a freehold interest in real property, a lease of land or a company title interest in It does not matter whether you are a first home buyer or have previously owned a home, as long as you do not currently own a home.
4. Have the minimum 2% deposit available to pay for the residential
5. Be looking to purchase a residential property – such as a house, townhouse or apartment. The type of home you purchase will determine the time frame of your For example, if you are purchasing an existing dwelling, the contract of sale must be signed by you and dated on or after 1 July 2021 but other dates may apply if you are building the home.

Additional property price caps apply depending on your chosen location. In Sydney and regional centres within New South Wales, the property price threshold is $800,000. In the rest of the state, the property price threshold is $600,000. We have prepared another article on the hidden costs of purchasing property to ensure you do not encounter any unexpected costs in this process. Participating Lenders have additional property specific criteria which will affect your eligibility.

Applying for the Family Home Guarantee

All eligible purchasers need to consult with Participating Lenders as all applications for the scheme need to be made directly with them. Seeking legal advice from an experienced solicitor can help with this and also assist you to structure your loan agreement to best suit your personal circumstances.

How Etheringtons Solicitors can help

 A solicitor at Etheringtons Solicitors can provide clarification of the relevant property law and its relation to your particular property purchase and individual circumstances. If you need further advice or assistance with property law matters, please contact one of our experienced solicitors on (02) 9963 9800 or via our contact form.

Enforceable Covenants: Is the land readily identifiable?

Mar 2, 2022 | Property Law

Conveyancing is the process of transferring the legal title of property from one party to another, allowing the purchaser to be notified of any covenants (restrictions or rights) in advance of making their purchase. There are numerous requirements which must be met for a covenant to be enforceable against a purchaser. A recent case in the Victorian Supreme Court highlights the importance of making land affected by covenants readily identifiable, so that the covenant can be enforced.

What is a covenant?

Covenants are the obligations imposed during conveyancing, where the purchaser agrees to abide by the particular rules set out by the vendor relating to the property. There are two types of covenants:

1. A positive covenant: requires the owner of a parcel of land to conduct a certain act on or to the property. An example would be a requirement to landscape the gardens on a property.
2. A restrictive covenant: restricts the land from being used in a certain way. These types of covenants are far more common and can include things like no fences unless they are of a certain style or color, or no advertising signs to be placed on the property.

Covenants “run with the land”, meaning they apply to all of the successive owners, provided that the covenant benefits the land rather than any particular covenantee. Anyone can create and register a covenant to their property. They may be created by inclusion in a transfer or as set out in a deed agreement between the parties.

Covenants may be extinguished or modified if the owner of the land expressly releases the covenant or does so by implication where the changing nature of the land negates the covenant’s value. They may be extinguished where statute, such as the Conveyancing Act 1919 (NSW), requires the covenant to be released.

Enforcing a covenant

Covenants are enforceable against landowners under both the laws of contract and equity so long as the covenant “touches and concerns” the land, that is, the covenant requires an action that has some effect, direct or indirect, on what happens on the land. To be enforceable, the covenant must indicate that the land is “benefited” or “burdened”, meaning it must contain at least one clause that either includes a positive obligation on the owner or a restriction on the way the land is used.

Additionally, a covenant must touch and concern the land of the covenantee. A covenant which touches and concerns part of the land cannot be extended to benefit the entire land, meaning a covenant which restricts building on 18 acres does not restrict building across the entire 700 acre estate. A subdivision may benefit from a covenant if there was an intention to touch and concern the whole land. However, if the covenant does not benefit the subdivided part, the intention of the parties will be irrelevant and the covenant will be unenforceable.

The land must be readily identifiable to be enforceable: Re Ferraro [2021] VSC 166

In this matter, the Court held that the plaintiff’s land was no longer affected by restrictive covenants as the land to which the covenants conferred a benefit was no longer readily identifiable.

In 2019, the plaintiff became the owner of a parcel of land with two restrictive covenants preventing her from carrying out certain development plans which included the partial demolition and alterations to the existing dwelling on the land. The covenants were registered in 1907 and 1911 and prohibited the construction of certain structures, required the use of certain materials when building a dwelling house and required any development to be approved by a few named individuals.

The Court, in its findings, upheld the principle that a restrictive covenant will only run with the land if it is given for the benefit of land, not simply for the benefit of a covenantee, and such covenant must touch and concern the land. The wording of the covenants was also examined by the Court and it was found that the ambiguity as to who the transferees were meant that the benefited land could not be ascertained.

Contact Etheringtons Solicitors

We can help you navigate the process to ensure that you are able to obtain good title on any prospective property and that there are no unknown restrictions on the property before you buy. If you need assistance with a conveyancing matter (either buying or selling) or would like more information please call us on (02) 9963 9800 or via our contact form.