Land Titles Regulation 2015

The regulation introduces or elaborates several concepts that operate within the broader framework of the Land Titles Act 1925.

Building management statement. This is a concept under Part 8B of the Land Titles Act. It is a document that creates mutual rights and obligations in relation to the management of a building that is subdivided into lots and common property, typically in unit title developments. The regulation under section 2A imposes mandatory insurance requirements that must be included in such a statement. The concept of "building management statement" is defined by the Act itself, but the regulation specifies what "an arrangement to insure a building" must contain.

Replacement value. The regulation requires insurance to cover the building to its replacement value from time to time. This is not a fixed sum but a standard that may require periodic revaluation. The phrase "from time to time" imposes a continuing obligation to ensure the insured amount is adequate as building costs change.

User pays or lease value. In allocating insurance premiums, the regulation allows either a user pays method (where costs are apportioned based on the actual use of the building or space) or a lease value method (based on the value of each leasehold interest). The phrase "or otherwise" leaves the door open to other allocation methods, provided they are set out in the arrangement. This gives flexibility but also creates ambiguity; parties must agree on a method and record it.

Affected residential premises register. This is a register maintained under the Dangerous Substances Act 2004, section 47P, for premises affected by loose-fill asbestos. Part 8A of the Land Titles Act requires certain notifications to be recorded on certificates of title for such premises. The regulation designates the Minister administering the Dangerous Substances Act as the authorised entity to receive those notifications or to perform functions under that part.

Purchaser identity verification. The Land Titles Act, section 178B, imposes a duty on parties to a land transaction to take reasonable steps to verify the identity of the purchaser. Subsection (2)(l)(iv) requires that a record be kept of "other details prescribed by regulation". Section 3 of this regulation now prescribes those details, which are essentially metadata about the identity document presented. The concept of "name change certificate" and "marriage certificate" are defined in subsection (2) of section 3.

Authorised entity. A concept used in Part 8A of the Act; the regulation simply picks the relevant Minister as that entity.

The regulation touches a narrow but commercially relevant set of actors.

Parties to building management statements. These are typically owners corporations, body corporates, unit trust holders, or developers of multi-lot buildings in the ACT. Anyone who enters into a building management statement under the Land Titles Act must ensure that the insurance arrangement complies with section 2A. That includes both the initial parties who sign the statement and any subsequent parties who become bound by it. For a new unit title development, the developer and the first purchaser or owners corporation must craft insurance terms that match the regulation. For existing buildings with an existing building management statement, if the statement was registered after the commencement of the insurance requirement (1 November 2020), it must comply. Older statements may need amendment upon any variation.

Insurers and brokers. The prescribed list of risks is extensive: fire, tempest, earthquake, explosion, riot, civil commotion, strikes, labour disturbances, malicious damage, bursting of water tanks and pipes, impact from aircraft, road vehicles, horses and cattle. An insurer writing a policy for a building subject to a management statement must cover all those perils to the "greatest practicable extent". This phrase creates potential for disputes over whether a policy that excludes a particular peril (say, earthquake in a low-risk area) meets the standard. The incidental costs (debris removal, architect fees) must also be covered.

Conveyancers, solicitors, and settlement agents. Section 3 imposes record-keeping obligations on those who verify a purchaser's identity under the Act. They must collect and retain the prescribed details for every identity document relied upon. This applies to every conveyancing transaction that triggers the identity verification duty under section 178B, which is most land transfers, mortgages, and leases. Practitioners must update their file management procedures to capture the kind of document, issuer, dates, numbers, and any former name from name change or marriage certificates.

Purchasers of land. Although not directly regulated, purchasers will need to present identity documents that generate the metadata required by section 3. If a purchaser has changed their name, they must provide a name change certificate or marriage certificate, and the practitioner must record the former name.

The Minister administering the Dangerous Substances Act 2004. That Minister (or their delegate) is the authorised entity for Part 8A functions. This affects the loose-fill asbestos scheme: the register of affected residential premises interacts with the land titles system, and the Minister's office must handle notifications.

ACT government and loose-fill asbestos eradication program. Section 2 connects land titles to the asbestos register. Owners of affected premises must have their title notation, and the authorised entity is relevant to that process.

The regulation creates few autonomous duties; most duties are derivative of obligations already in the Land Titles Act. The key duties are as follows.

Duty to insure to replacement value. For any building management statement registered under the Act, the arrangement to insure the building must cover the building to its "replacement value from time to time". This is a substantive duty. It requires that the sum insured be sufficient to rebuild the structure, including incidental costs (debris removal, professional fees). The phrase "from time to time" implies an ongoing obligation to keep the sum insured adequate, which may require periodic valuations or indexation. Failure to maintain adequate cover could render the building management statement non-compliant and potentially unregistrable or void to the extent of non-compliance.

Duty to insure against specified perils. The regulation lists eleven categories of risk, each with sub-categories. The arrangement must insure against all of them. There is no exception for self-insured entities, because the regulation requires an "arrangement to insure" (presumably with a third-party insurer). The duty is to the "greatest practicable extent", which introduces discretion but also liability for failing to obtain cover that is commercially available. If a risk is insurable in the ACT market, the statement should cover it.

Duty to set out premium allocation method. The arrangement must include a method for allocating insurance premiums between the parties. The regulation specifies two examples (user pays and lease value) but does not mandate them; "or otherwise" allows other arrangements. However, the method must be "set out" in the arrangement, meaning it must be sufficiently clear to operate without further agreement. This prevents parties from leaving allocation to be determined later; the building management statement must contain the formula or rule.

Duty to record verification details. Section 3 imposes a duty on any person who verifies a purchaser's identity to retain a record containing the prescribed details. This is a record-keeping duty ancillary to the duty to take reasonable steps to verify identity under section 178B of the Act. The details must be recorded for each document used, including its kind, issuer, dates, numbers, and any former name if the document is a name change or marriage certificate.

No new rights created. The regulation does not confer any new rights on parties. It does not create a private cause of action for inadequate insurance or identity verification. The rights are those already in the Land Titles Act: for instance, a party to a building management statement may be able to enforce the insurance requirements as a contractual term, or the Registrar-General may reject a statement that does not comply.

Right to choose allocation method. Within the constraints of section 2A(2), parties may choose any method for premium allocation. This is a flexibility rather than a right. The regulation does not require the method to be fair or proportionate, only that it be set out.

The regulation itself does not create any penalties, nor does it contain offence provisions. The Land Titles Regulation 2015 is a legislative instrument that prescribes matters for the purposes of the Land Titles Act 1925; the Act itself contains the enforcement machinery.

Penalty units. The republication notes that at the date of republication (16 July 2024) the value of a penalty unit for an offence against the regulation is $160 for an individual and $810 for a corporation, under the Legislation Act 2001, section 133. However, the regulation must first create an offence for that to apply. It does not. Therefore, the penalty unit value is irrelevant for this instrument; it is included in the republication as a standard note.

Enforcement of insurance requirements. If a building management statement does not include the required insurance arrangement, the Registrar-General may refuse to register it under the Land Titles Act. The Act, section 123F, sets out the content requirements for building management statements, and paragraph (h) requires "an arrangement to insure the building as prescribed by regulation". If the arrangement does not meet the regulation, the statement is not in the prescribed form. This is a gatekeeping function: registration is the key to the statement having legal effect. Additionally, once registered, any party to the statement could potentially seek injunctive relief or damages for breach of the statement's terms, including the insurance arrangement. But that is a matter of private contract law on the statement as a deed.

Identity verification failures. Failure to keep records containing the prescribed details under section 3 may constitute a failure to comply with the duty to take reasonable steps under section 178B of the Act. That could affect the validity of a transfer or mortgage, or expose the solicitor or conveyancer to professional discipline. The Act does not create a specific criminal offence for failing to record details, but the general duties may be enforceable through civil penalty provisions or professional standards boards.

No specific penalty provisions in the regulation. The regulation is entirely prescriptive; it does not empower any person to impose fines or sanctions. Any enforcement occurs through the primary Act, through common law actions for breach of contract (for building management statements), or through professional liability. This means the compliance burden is largely self-enforced through the risk of having a statement rejected or a transaction delayed.

The regulation sits within a web of ACT legislation.

Land Titles Act 1925 (the Act). This is the parent Act. The regulation is made under it, and every provision references a specific section of the Act. Section 2 is made under section 69B(d) of the Act (authorised entity for Part 8A). Section 2A is made under section 123F(1)(h) (insurance requirements for building management statements). Section 3 is made under section 178B(2)(l)(iv) (details in relation to identity verification documents). The regulation cannot expand or contract the Act's scope; it merely fills in details that the Act leaves open. For example, the Act requires a building management statement to include an insurance arrangement "as prescribed by regulation". The regulation tells you what that arrangement must contain. If the regulation did not exist, those provisions of the Act would be inoperative or require subjective interpretation.

Dangerous Substances Act 2004. Section 2 of the regulation directly references this Act. The Minister administering the Dangerous Substances Act, in respect of section 47P (affected residential premises register), is prescribed as the authorised entity for Part 8A of the Land Titles Act. This creates a link between the two regimes. Part 8A of the Land Titles Act deals with notifications and recordings on certificates of title for premises affected by loose-fill asbestos. The Dangerous Substances Act maintains the register. The regulation ensures that the person responsible for that register is the same person who acts as authorised entity for title notations.

Unit Titles Act 2001. Building management statements are used primarily in unit title developments. The Unit Titles Act governs the creation and management of units plans, and building management statements are often used to handle shared facilities. The regulation's insurance requirements (section 2A) will apply to such statements, adding a layer of mandatory terms beyond those in the Unit Titles Act.

Legislation Act 2001. This is the overarching legislation governing the making and interpretation of subordinate laws. The regulation is a subordinate law under that Act. The note in section 3(2) about "State includes the Northern Territory" is sourced from the Legislation Act dictionary. The penalty unit values are set under section 133 of the Legislation Act.

No direct interaction with Commonwealth laws. The regulation is state/territory only. However, identity verification documents may include passports issued under Commonwealth law (the Australian Passports Act) or foreign travel documents. The regulation does not restrict document types; it only requires recording details about whatever document is used. That could be a passport, driver licence, or birth certificate from any jurisdiction, including foreign.

Anti-money laundering and counter-terrorism financing (AML/CTF) regime. Though not referenced, the identity verification requirements in the Land Titles Act and this regulation operate alongside the Commonwealth AML/CTF framework. Conveyancers and lawyers may be reporting entities under the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth). The regulation adds a requirement to record specific details, which may overlap with or supplement existing AML obligations.

The regulation has been amended five times since its making in 2015.

2015 - Original making. The regulation was made as part of the Dangerous Substances (Loose-fill Asbestos Eradication) Legislation Amendment Act 2015 (A2015-6). It was taken to have been notified on 31 March 2015, with section 1 (name) commencing the same day and the remainder on 29 June 2015. The original regulation contained only sections 1 and 2. Section 2 prescribed the Minister administering the Dangerous Substances Act as the authorised entity.

2017 - Land Titles Amendment Regulation 2017 (No 1) (SL2017-29). This amendment inserted section 3 and a new schedule 1 (Identification documents) with parts 1.1 (primary identification documents) and 1.2 (secondary identification documents), as well as a dictionary defining terms like birth certificate and citizenship certificate. This was the first expansion into identity verification. The amendment commenced on 18 September 2017.

2020 - Unit Titles Legislation Amendment Act 2020 (A2020-4). This inserted section 2A (building management statement insurance requirements) into the regulation. It commenced on 1 November 2020. This was a response to the Unit Titles Act reforms and the introduction of building management statements.

2020 - Loose-fill Asbestos Legislation Amendment Act 2020 (A2020-20). This made a minor amendment to section 2, changing the reference from the Minister administering the Dangerous Substances Act generally to the specific section 47P. It commenced on 1 July 2020.

2023 - Justice and Community Safety Legislation Amendment Act 2023 (A2023-13). This was a significant pruning. It omitted section 1A (which had been inserted in 2017), omitted the entire schedule 1 (identification documents) and the dictionary, and omitted and reinserted section 3. The result was that the regulation reverted to having only sections 1, 2, and 2A. Section 3 was omitted, meaning identity verification details were no longer prescribed. The amendment commenced on 12 April 2023.

2024 - Housing and Consumer Affairs Legislation Amendment Act 2024 (A2024-29). This reinserted section 3, but with a much simpler set of prescribed details compared to the 2017 version. Instead of a schedule defining acceptable documents, the new section 3 simply requires recording metadata about any document used. It inserted a definition of "marriage certificate" and "name change certificate" in subsection (2). Commenced 16 July 2024.

The amendment history reveals a pattern of expansion (2017 added identity schedule; 2020 added insurance) followed by contraction (2023 removed identity schedule) and then a modest re-insertion (2024). The 2023 removal likely reflected a policy decision to simplify, but the 2024 reinstatement suggests that the original prescription of details was still needed, just in a less prescriptive form.

The source material does not record any litigation history specifically concerning this regulation. No cases are cited in the regulation or its endnotes. Given the narrow scope of the regulation and its status as a subordinate instrument, it is unlikely to have been the subject of standalone judicial consideration. Any legal challenge would more likely target the Land Titles Act itself.

However, two potential areas for future litigation can be identified from the text.

Interpretation of "greatest practicable extent" in section 2A(1). That phrase qualifies the obligation to insure against the listed risks. If a building owner obtains a policy that excludes coverage for, say, civil commotion or earthquake, a dispute may arise as to whether that exclusion is consistent with "greatest practicable extent". What is "practicable" may depend on market availability, cost, or building location. A court could be asked to determine whether a particular policy meets the standard. The phrase is ambiguous and could be argued to require the insured to seek the widest available cover in the market, or only to exclude perils that are genuinely uninsurable.

Allocation of premiums: "user pays, lease value or otherwise". If the building management statement sets an allocation method that a party later challenges as unfair or not properly "set out", a court might need to interpret the regulation's requirement. The regulation does not require the method to be reasonable, only that it be set out. But if the method is so vague that it cannot operate, the statement may be non-compliant.

The 2023 omission of the identity schedule also raises a transitional question. For transactions that occurred between 12 April 2023 and 15 July 2024 (when no section 3 was in force), there was no prescribed detail requirement. Any legal challenge to a practitioner's record-keeping during that gap would have no regulation to rely on. The 2024 reinsertion applies only from 16 July 2024, so previous periods are not affected.

No reported decisions from ACT courts or tribunals appear to exist on this regulation as of the republication date. The regulation is too recent and minor to have generated case law.

Several traps lurk in the regulation's brevity.

"Greatest practicable extent" is a subjective standard. Section 2A(1) does not require insurance "to the full replacement value" or "against all risks", but "to the greatest practicable extent". This imports a reasonableness standard that depends on what is commercially available. A party could argue that a particular risk was not insurable at a reasonable cost, and therefore exclusion was "practicable". But the risk lies in disagreement: who decides what is practicable? The building management statement must be registered, and the Registrar-General may reject it if the insurance arrangement is ambiguous. Practitioners drafting statements should either include a warranty that the insurance covers all risks to the fullest extent available in the market, or specifically list any exclusions and justify them as not practicable. Otherwise, a future party could sue for breach of the statement if damage occurs from an uninsured peril.

"From time to time" creates indexing risk. The requirement to insure for replacement value "from time to time" means the sum insured must be updated over time. If inflation or building cost increases cause the sum to become inadequate, the building management statement may be non-compliant even if the original policy was sufficient. Parties should include a mechanism in the statement for periodic revaluation, or at least an obligation to review the sum insured annually. Without it, a party may be liable for uninsured loss.

Premium allocation method must be "set out". Section 2A(2) says the arrangement must "set out a method for allocating the costs". This is a mandatory requirement. If the building management statement merely says "premiums shall be shared among the parties in a fair manner", that is likely insufficient. The method must be sufficiently concrete to be applied without further negotiation. The examples given (user pays, lease value) are specific. Using "or otherwise" allows creativity, but the method must still be reasonably ascertainable from the statement's terms. Vague terms could lead to disputes or unenforceability.

Identity details include "any individual reference number for the purchaser". Section 3(1)(f) requires a record of "any individual reference number for the purchaser". This is not a standard data field on most identity documents. It appears to refer to a number assigned by the party verifying identity, such as a file number or transaction reference. Practitioners need to ensure they have a system to generate and record such a number. Failure to do so could be a technical breach.

Former name requirement for name change or marriage certificates. Section 3(1)(g) requires the former name to be recorded if the document is a name change or marriage certificate. This means that even if the practitioner uses a driver licence to verify identity, if they also rely on a marriage certificate to prove the link between a maiden name and current name, they must record the former name from that certificate. The definition of marriage certificate includes foreign and interstate certificates, so a marriage certificate from another country triggers this requirement.

No transitional provision for identity details. The 2024 amendment reinserted section 3 without transitional provisions. It applies to identity verifications conducted on or after 16 July 2024. For transactions that commenced before that date but completed after, practitioners must determine whether the verification was "done" before or after the commencement. This could create scope for arguments about compliance if records are incomplete.

No penalty for non-compliance, but indirect consequences. While the regulation itself has no penalties, non-compliance can have serious indirect effects. A building management statement that fails to meet the insurance requirements may be rejected by the Registrar-General, causing delays in settlement or development. For identity verification, a failure to keep proper records could be used in a professional negligence claim if the transaction later turns out to involve fraud or mistaken identity.

Compliance with the Land Titles Regulation 2015 requires attention to three separate areas: building management statements, identity verification, and knowledge of the authorised entity for Part 8A. The last of these (section 2) imposes no obligation on private parties; it is a designation for government administration, so no action is needed.

For building management statements (section 2A). Any person who prepares or registers a building management statement must ensure that the arrangement to insure the building meets the following tests:

1. The insurance must cover the building for its "replacement value from time to time". Obtain a quantity surveyor's valuation or use an index-linked policy that adjusts the sum insured. Ensure the policy covers "costs incidental to reinstatement or replacement", including demolition, debris removal, and fees for architects, engineers, and other professionals.

2. The policy must cover all specified perils: fire, tempest, earthquake, explosion, riot, civil commotion, strikes, labour disturbances, malicious damage, bursting of water tanks and pipes, impact of aircraft (including falling objects), road vehicles, horses, and cattle. If any peril is excluded, document why it is not "practicable" to insure it (e.g., the peril is not offered by any insurer in the ACT market, or the premium would be so disproportionate as to make the insurance arrangement commercially unviable). Seek legal advice on the reasonableness of any exclusion.

3. The building management statement must include a written method for allocating premiums among the parties. The method should be clear enough that a third party could apply it. For example: "Premiums shall be allocated in proportion to the unit entitlement of each lot" would be a lease value method. Or "Premiums shall be allocated according to the floor area occupied by each party" is a user pays method. Whatever method is chosen, include it in the statement's text. Update the statement if the method changes.

4. When the building management statement is submitted for registration, provide evidence to the Registrar-General that the insurance arrangement complies (e.g., the policy schedule or certificate of currency). Keep a copy.

For identity verification (section 3). Any person who verifies a purchaser's identity under section 178B of the Land Titles Act must create and retain a record containing the following details for each identity document used:

• The kind of document (e.g., Australian passport, NSW driver licence, Medicare card).
• The entity that issued it (e.g., Australian Passport Office, Roads and Maritime Services).
• The date of issue (if present on the document).
• The expiry date (if present).
• Any unique identifying number (e.g., passport number, driver licence number).
• Any "individual reference number for the purchaser". This is a number you assign to the purchaser for that transaction, such as a file number or a sequential identifier. Record it each time.
• If the document is a name change certificate or marriage certificate (as defined in section 3(2)), record any former name of the purchaser shown on that certificate.

Maintain this record in a secure format (paper or electronic) for the period required by professional conduct rules or the Act - typically at least 7 years. The regulation does not prescribe retention periods, but the duty to take reasonable steps under section 178B implies that records must be kept until any challenge to the transaction is time-barred.

Practical checklist for conveyancers and developers:

• Update file checklists to include fields for the seven prescribed details.
• Train staff on what constitutes a "name change certificate" - any foreign law document certifying a name change - and "marriage certificate" - any territory, state, or foreign marriage certificate.
• When a purchaser presents a marriage certificate and also a passport in the new name, record both documents, but only the marriage certificate triggers the former name requirement.
• For building management statements, engage an insurance broker with experience in unit title insurance to draft the arrangement. Ensure the statement itself references the policy details and the allocation method. Do not leave insurance terms to be determined after registration.
• Review existing building management statements that were registered after 1 November 2020. If they lack the required insurance arrangement, consider a variation or a supplementary deed to correct the omission. Statements registered before that date are not automatically subject to section 2A, but any amendment after 1 November 2020 should comply.