Your title under the microscope - Part 1

The document that is the proof that you own a particular property is the Certificate of Title. If you are the owner (know as the "registered proprietor"), then your name will be listed on the title. If you have a mortgage over your property, the mortgage will usually be registered and noted on the title.

Sometimes there will be other interests registered on the title. There could be an easement on title, allowing your neighbour to use your driveway to access their property (very common for battle-axe blocks)  There could be a covenant on title, either in the form of a positive covenant (requiring you as the owner to actively do something) or a restrictive covenant (requiring you as the owner to refrain from doing something). There may also be a restriction on use which the local council may have required before approving the development of the property. The restriction could relate to an easement for drainage or maintenance of a sewer system, requiring the owner to not build over specified areas and maintain certain infrastructure on the property.

How do these impact on you? From the perspective of the purchaser, you should be fully aware of any restrictions or obligations that are attached to the property before you buy it. Your solicitor should advise you of any significant interests on the title that may have detrimental impact on you. If you are planning to build a huge in-ground swimming pool against the back fence, you may have to change your plans if there is an easement that runs parallel to the back fence. Sometimes covenants dictate the type of materials that could be used to construct the dwelling. If you have grand plans of building a mud-brick house in the middle of a suburban subdivision, make sure there aren't any covenants against non-brick housing materials.

If you are the owner, are you complying with any covenants or restrictions on use? Are you maintaining the pipes? Have you built over an easement? Are you renovating with prohibited materials? These are all important questions to ask yourself to ensure that no action is taken against you by council or a person who has the benefit of the easement or covenant.

Jonathan Marquet
Emil Ford & Co - Lawyers