Real Property Act 1886

The Act directly affects all persons who hold, deal with, or claim an interest in land brought under its provisions. This includes:

• Registered proprietors - persons appearing in the Register Book as the owner of an estate or interest. They enjoy indefeasibility but are bound by notified encumbrances and the exceptions in section 69.
• Mortgagees and encumbrancers - who hold security over registered land. They have statutory powers of sale (section 133), rights to enter into possession and distrain (sections 137, 138), and a right to apply for foreclosure (section 140). They are subject to duties to verify identity and authority (sections 128A, 152A).
• Lessees and lessors - governed by Part 11. Leases for more than one year must be registered (section 116). Implied covenants run with the lease (sections 124, 125).
• Caveators and caveatees - anyone claiming an interest may caveat, but must act reasonably or face compensation liability.
• Legal practitioners and registered conveyancers - who are the primary parties responsible for lodging instruments, providing certifications under section 273(1), and fulfilling verification obligations. Lawyers and conveyancers are generally entitled to recover fees for work under the Act (section 274).
• The Crown - as grantor of Crown leases (Part 9) and as a party holding land under various designated Acts.
• Persons bringing land under the Act (Part 4) - original grantees and others seeking first registration.
• Applicants under Part 7A - persons claiming title by possession (adverse possession) to registered land, who may apply for a certificate if they would have obtained title by possession had the land not been under the Act.
• The Registrar-General and the Lands Titles Registration Office - who administer the system, register instruments, maintain the Register, and have special powers to compel documents, correct errors, and enter caveats (section 220).
• The Assurance Fund - which is available to compensate those who suffer loss due to the operation of the Torrens system, subject to exclusions.

Duty to verify identity and authority: A mortgagee must verify the authority of the intended mortgagor before entering into a mortgage (section 128A). A transferee of a mortgage must take reasonable steps to establish the transferor complied with its verification obligations (section 152A). These duties carry a maximum penalty of $10,000 or two years imprisonment. Section 69(i) further provides that a mortgagee’s interest is not indefeasible if the mortgagor is not the registered proprietor and the mortgagee failed to verify identity or authority.

Duty to provide certification: Under section 273(1), the Registrar-General must not register an instrument unless a prescribed person (legal practitioner, registered conveyancer, or the unrepresented party) provides certification that verification and execution requirements have been met. False certification is an offence (section 232). The person providing certification must have personal knowledge of the matters certified (section 273(1a)).

Duty to retain documents: Mortgagees, transferees, and others must retain copies of documents used for verification for the prescribed period (sections 128A(2), 152A(2), 273AA(2)). Failure attracts penalties.

Duty of unrepresented parties: A party not represented by a lawyer or conveyancer must satisfy the Registrar-General that they are authorised to enter into the transaction (section 273AA). They must also retain relevant documents.

Rights of mortgagees: A mortgagee has a statutory power of sale after one month’s default and one month’s further notice (sections 132, 133). The mortgagee may also enter into possession, distrain, let for up to one year, or bring an action for recovery (section 137). Upon foreclosure, the mortgagee becomes registered proprietor free of the equity of redemption (section 142). A mortgagee exercising power of sale passes title free of the mortgage and all interests to which the mortgage had priority, but subject to prior interests (section 136).

Rights of caveators: Any person claiming an interest may lodge a caveat (section 191(1)). The caveat may absolutely prohibit registration or require registration only subject to the caveator’s claim. A caveator may bring an action to establish the validity of the claim (section 191(fa)). However, if the caveat is wrongful, the caveator is liable for compensation.

Right to compensation from the Assurance Fund: A person deprived of land through fraud, error, or misdescription may sue for compensation (section 203). Where the person primarily liable cannot be found or is dead or bankrupt, proceedings may be taken against the Registrar-General as nominal defendant (section 205). The Fund is not liable for breach of trust or improper sale (section 211), and contributory negligence is taken into account (section 216).

Right to seek review: A person dissatisfied with a decision of the Registrar-General concerning registration, foreclosure, or other acts may seek review by the South Australian Civil and Administrative Tribunal (section 221). The Registrar-General may refer questions of law to the Supreme Court (section 223).

The Act creates a comprehensive regime of criminal offences and civil enforcement mechanisms.

Offences: Part 20 sets out specific offences. Section 229 makes it an offence to forge or fraudulently affix the Registrar-General’s seal, forge signatures of the Registrar-General or other authorised persons, or use forged documents with intent to defraud. Maximum penalty: $50,000 or 10 years imprisonment. Section 230 covers perjury in declarations under the Act (same penalty). Section 233 makes it an offence to wilfully and fraudulently make false statements in applications, suppress material documents, give false evidence, or alter certificates or the Register Book without authority. The same maximum penalty applies.

Verification offences: Sections 232A and 232B create specific offences for false statements about verification of identity or authority, with penalties up to $10,000 or two years imprisonment. Knowingly false or misleading statements, or producing false documents, carry higher penalties. Failing to retain documents as required is also an offence.

Certification offences: Falsely providing certification under section 273(1) is an offence with penalties up to $5,000 or one year imprisonment (simple) or $10,000 or two years imprisonment (knowingly false) (section 232). Employees of mortgagees who certify without personal knowledge are liable.

Improper witnessing: Section 268 makes it an offence to witness a signature without knowing the person or having reasonable grounds to be satisfied as to identity, or if the witness knows the signatory is not a party or lacks authority. Penalty: $5,000 or one year imprisonment.

Enforcement powers of the Registrar-General: The Registrar-General may summon persons to produce documents and give information, refuse to proceed if requirements are not complied with, reject instruments, correct errors in the Register Book, and enter caveats on behalf of the Crown or for fraud prevention (section 220). Section 220A gives power to require production of documents or information, with a penalty of $10,000 for non-compliance. The Registrar-General may also cancel registration of a mortgage where the purported mortgagor is not the registered proprietor and the mortgagee failed to verify identity (section 147).

Civil remedies: Section 64 allows the court to direct the Registrar-General to cancel, correct, or substitute certificates to give effect to a judgment. Section 234 provides that any certificate, instrument, or alteration procured by fraud is void as against parties to the fraud. Section 240 preserves civil remedies despite any criminal conviction.

Caveat enforcement: A caveatee may apply to the Registrar-General to remove a caveat after 21 days’ notice (section 191(e)). The court may award costs against a caveator who has acted wrongfully (section 191(h), (j)). A further caveat relating to the same matter cannot be lodged without the court’s permission (section 191(k)).

Priority notice enforcement: A person who suffers loss because a priority notice was lodged without entitlement or not withdrawn may recover compensation, including exemplary damages (section 154I). The defendant bears the onus of proving entitlement or reasonable conduct.

Section 6 provides that no law inconsistent with the Act applies to land subject to the Act, and no future law may so apply unless it expressly provides that it applies “notwithstanding the provisions of the Real Property Act 1886.” This supremacy clause ensures the Torrens system is not undermined by general legislation.

Crown leases: Part 9 governs Crown leases under designated Acts such as the Crown Land Management Act 2009 and the Pastoral Land Management and Conservation Act 1989. Section 95B provides that nothing in Part 9 overrides a designated Act, and the designated Act prevails to the extent of any inconsistency. Registration and indefeasibility under section 95 do not prejudice any right or remedy the Crown would otherwise possess.

Planning and development legislation: Part 19AB requires planning certificates (now under section 138 of the Planning, Development and Infrastructure Act 2016) before a plan of division can be deposited (section 223LD(5a)). The Act also accommodates statutory encumbrances under planning, heritage, and environmental legislation (definitions in section 223LA; see also section 223LDA for variation or termination of statutory encumbrances on division). Section 90B(9) restricts variation or extinguishment of easements that were required as conditions of planning approvals without the consent of the Development Assessment Commission.

Electronic Conveyancing National Law: The Act incorporates the Electronic Conveyancing National Law (South Australia) through cross-references in Part 20A (client authorisation), section 273 (certification for electronically lodged instruments), and sections 154A-154I (priority notices that may be lodged electronically). Participation rules determined by the Registrar-General under that Law apply to verification and execution.

Limitation of Actions Act 1936: Section 148A allows the Registrar-General, with the concurrence of a legal practitioner, to make an entry that the mortgagee’s rights are barred by the Limitation of Actions Act, and the mortgage is then deemed discharged.

Strata Titles Act 1988 and Community Titles Act 1996: These Acts interact with the Act through the definitions of “allotment” and through Part 19AB provisions that exclude community and strata plans from the division requirements (section 223LA(1) definition of “allotment” and section 223LC application).

General law and equity: Section 249 preserves the jurisdiction of courts in cases of actual fraud and over contracts, agreements, and equities generally. Unregistered instruments may still confer a right or claim to registration (section 246). However, no unregistered estate, interest, contract, or agreement prevails against a bona fide subsequent transferee, mortgagee, lessee, or encumbrancee for valuable consideration (section 249(2)). Section 72 clarifies that knowledge of an unregistered interest is not of itself evidence of want of bona fides.

Other Acts: The Act interacts with the Local Government Act 1934 (sale for non-payment of rates, section 102), the Survey Act 1992 (coordinated cadastre, section 51E; confused boundaries, section 255), the Heritage Places Act 1993 and Native Vegetation Act 1991 (statutory encumbrances), and the Land Acquisition Act 1969 (section 71(f) preserves the right of promoters to vest land by deed-poll).

The legislative history reveals major amendments in 2015, 2016, and subsequently, driven by the need to combat mortgage fraud, facilitate electronic conveyancing, and modernise land administration.

Real Property (Electronic Conveyancing) Amendment Act 2016 (Act 29 of 2016): This was a comprehensive amendment that introduced Part 20A (client authorisation), strengthened verification of identity and authority requirements, created new offences for false verification statements, and amended the indefeasibility provisions to deny indefeasibility to mortgagees who fail to verify identity (section 69(i)). It also updated provisions on execution, witnessing, and certification to accommodate electronic processes. The changes were needed to combat identity fraud in mortgage transactions and to align South Australia with the national electronic conveyancing framework.

Real Property (Priority Notices and Other Measures) Amendment Act 2015 (Act 4 of 2015): Inserted Part 13A, creating a priority notice system to protect conveyancing transactions during the gap between lodgement and registration. It also introduced the definition of “legal practitioner” and “registered conveyancer” into the interpretation section, and amended the review provisions to give SACAT jurisdiction over Registrar-General decisions. The rationale was to reduce the risk of priority disputes and provide a more transparent mechanism for preserving priority.

Real Property (Access to Information) Amendment Act 2012 (Act 35 of 2012): Allowed the Registrar-General to restrict access to Register Book particulars where personal safety is at risk (section 65). This responded to concerns about domestic violence and stalking through land title searches.

Statutes Amendment (Real Property) Act 2008 (Act 12 of 2008): Made numerous technical amendments including clarifying powers of the Registrar-General to correct errors, updating the easement variation and extinguishment provisions (section 90B), and inserting provisions for variation of statutory encumbrances on division (section 223LDA). It also updated the definition of “allotment” and removed obsolete references.

Real Property (Miscellaneous) Amendment Act 1994 (Act 11 of 1994): Introduced Part 7A (title by possession to registered land) and modernised the division of land provisions. The reform acknowledged that adverse possession should not be completely barred but provided a statutory route for possessory claims.

The overall trend has been towards strengthening the integrity of the Register through verification obligations, providing tools to prevent and remedy fraud, and enabling electronic transactions while preserving the core principle of indefeasibility.

The Torrens system, by design, generates litigation over the boundaries of indefeasibility. Key areas of controversy under the Act include:

The fraud exception (section 69(a)): The classic Torrens problem is whether a transferee who took with notice of a prior unregistered interest but without actual fraud is affected. Section 72 provides that knowledge of an unregistered interest is not of itself evidence of want of bona fides. The courts have grappled with the distinction between “mere notice” and “fraud” in the context of registered proprietors claiming through a forger. The Act now also includes the statutory fraud exception relating to verification failures (section 69(i)).

Forgery and disability (section 69(b)): The proviso protects a bona fide purchaser for value even if the instrument of title was obtained by forgery or from a person under disability. Litigation often arises when a mortgage is forged and the mortgagee claims to be a bona fide purchaser. The recent amendments (section 69(i)) add a new layer: a mortgagee who failed to verify identity cannot claim indefeasibility.

Adverse possession (Part 7A): Section 251 states that no person acquires title by adverse possession to land under the Act except under Part 7A. The Part 7A process involves application to the Registrar-General, notice, and caveat rights. Controversy has arisen over the interaction with the common law of adverse possession and the extent to which Part 7A provides an effective remedy for long-term occupiers.

Caveat disputes: Section 191 generates frequent litigation. The requirement that a caveator have an interest “at law or in equity” has been tested repeatedly. The court’s power under section 191(d) to remove a caveat on just terms is a common source of applications. The caveat cannot be used as a frivolous delay tactic; wrongfully lodging a caveat creates liability for compensation (section 191(j)). A registered proprietor may now lodge a caveat over their own land (section 191(3)), which has practical utility but also potential for abuse.

Assurance Fund claims: Part 18 has been litigated in cases where the Fund was sought for losses arising from fraud or error. The exclusion for breach of trust or improper exercise of a power of sale (section 211) has been contentious. The court must consider contributory negligence (section 216). Claims are subject to a twenty-year limitation (section 215).

Power of sale controversies: Section 133 gives a mortgagee a broad power of sale. Section 134 protects the purchaser from inquiring into the existence of default or notice. Challenges have arisen over whether the mortgagee owes a duty to the mortgagor to obtain a proper price. The Act does not expressly impose such a duty, but equity may do so. Section 135 requires the proceeds to be applied in a prescribed order.

Rectification of title (Part 19A): The Registrar-General’s power to amend certificates for boundary errors under sections 223A-223L has been used in cases of surveying mistakes. The provision that corrections are deemed to have been made prior to the registration of extant instruments (section 223L) can affect priorities.

Unlawful division of land (section 223LB): A transaction that contravenes the division provisions is void. This has led to disputes over whether a contract for sale of a part of an allotment is enforceable. Section 223LB(5) provides a saving for contracts that contemplate a future lawful division.

Practitioners and parties should be alert to several traps in the Act.

Failure to verify identity can destroy indefeasibility: Under section 69(i), if the mortgagor is not the registered proprietor and the mortgagee failed to comply with verification requirements (under the Act or the Electronic Conveyancing National Law), the mortgagee’s interest is not indefeasible. This applies even if the mortgagee took in good faith. The onus may shift to the mortgagee to prove compliance. The same applies to transferees of mortgages (section 152A).

Client authorisation must be properly obtained: Under section 240F, a legal practitioner or registered conveyancer who executes an instrument without a properly completed client authorisation, or without first verifying identity and authority, commits an offence with a maximum penalty of two years imprisonment. The defence of honest mistake (proving no negligence) is available but may be difficult.

Unrepresented parties must prove authority: Under section 273AA, a party not represented by a lawyer or conveyancer must satisfy the Registrar-General that they are authorised to enter into the transaction. Failure to do so can block registration. The party must also retain documentation, with a penalty of $10,000 or two years imprisonment for non-retention.

Division of land: contravention is void: Section 223LB makes it an offence to grant, sell, transfer, convey, mortgage or encumber an estate or interest in land that does not constitute the whole of an allotment (or a compliant part). Any transaction entered into in contravention is void, and no instrument purporting to give effect to such a transaction may be lodged for registration. This is a strict prohibition; even a mortgage of a part of an allotment (without prior division) may be void.

Caveat pitfalls: A caveat does not automatically extend indefinitely. The caveatee may apply to the Registrar-General to remove it after 21 days’ notice (section 191(e)). A caveator who fails to act may lose protection. Further, a caveator cannot lodge a further caveat relating to the same matter without court permission (section 191(k)). The liability for wrongful caveat is strict: if the caveat is “wrongfully and without reasonable cause,” compensation is payable.

Priority notice trap: A priority notice lasts only 60 days, extendable once for 30 days (section 154G). If the identified instruments are not lodged within that period, the notice ceases, and priority is lost. The person who lodged the notice may also be liable if they were not entitled to do so or unreasonably refused to withdraw it (section 154I).

Assurance Fund exclusions: The Fund does not cover losses from breach of trust or improper exercise of a power of sale (section 211). It also excludes misdescription of boundaries unless the person liable cannot be found or is insolvent (section 212). Contributory negligence reduces or defeats a claim (section 216).

Witnessing requirements: Under section 267, the witness must either know the signatory personally or be satisfied as to their identity. The witness must be aged 18 or over and not a party to the instrument. Improper witnessing is an offence (section 268). The witness’s full name, address, and telephone number must be legibly printed under the signature.

Implied covenants: The Act implies covenants in mortgages, leases, and transfers that parties may not expect. For example, a transferee of mortgaged land impliedly covenants to pay the mortgage debt and indemnify the transferor (section 97). A lessee impliedly covenants to repair (section 124(b)). These can only be excluded or modified by express declaration in or endorsed on the instrument (section 262).

No title by adverse possession except under Part 7A: Section 251 prohibits any acquisition of title by adverse possession to registered land. The only avenue is an application under Part 7A, which requires a formal process with notice, caveat, and satisfaction of the Registrar-General. This is a radical departure from the common law.

Crown lease consistency: A Crown lease registered under Part 9 has the benefit of section 95 indefeasibility, but only if any consent required under a designated Act was obtained. If the instrument is inconsistent with the designated Act, the Crown lease holder cannot rely on indefeasibility (section 95B). This is a significant qualification.

Vexatious priority notices: The Registrar-General may determine a person to be a vexatious lodger of priority notices (section 154A(12)). Subsequent notices by that person may be rejected. The person may seek review by SACAT (section 221(2)).

Execution by corporations: Section 270 provides that a corporation “may execute instruments under the provisions of this Act in any manner permitted by law.” This leaves scope for reliance on the general law of corporate execution, but practitioners should confirm compliance with the Corporations Act and the company’s constitution.

Compliance requires systematic attention to verification, documentation, and procedural steps.

Verify identity and authority: Before any dealing, the identity of every party must be verified in accordance with the verification of identity requirements prescribed under section 273A. The authority of each party to enter into the transaction must be verified in accordance with the verification of authority guidelines issued under section 273B. For mortgagees, this is mandatory under section 128A. For legal practitioners acting under a client authorisation, verification is a prerequisite under section 240F. Use current versions of the guidelines published on the Registrar-General’s website.

Obtain and retain client authorisations: If a lawyer or conveyancer is to execute documents on behalf of a client, a properly completed client authorisation (in the appropriate form) must be obtained before execution. The authorisation must be retained for the prescribed period (section 240G). Failure to do so is an offence.

Provide certification under section 273(1): For every instrument lodged for registration, a prescribed person (usually a lawyer or conveyancer, or the unrepresented party) must provide certification that verification, execution, and retention requirements have been met. The person certifying must have personal knowledge of the matters certified (section 273(1a)). Do not certify unless you have personally verified the facts.

Use appropriate forms: Section 54 requires instruments to be in the appropriate form and lodged in a manner approved by the Registrar-General. The forms are available from the Lands Titles Registration Office. If a document does not comply but substantially complies and loss would otherwise result, the Registrar-General may still register it (section 55), but this is discretionary.

Lodge priority notices when needed: For concurrent transactions (e.g., a transfer funded by a new mortgage), lodge a priority notice before any instrument that might otherwise gain priority. Ensure all instruments identified in the notice are lodged together within the 60-day period (or 90 days if extended). Do not lodge a notice unless you are entitled to do so; the liability for wrongful lodgement is real.

Comply with division requirements: Do not grant, sell, mortgage or encumber part of an allotment without first ensuring the land constitutes a compliant allotment or that a proper division has been completed under Part 19AB. Obtain the necessary planning certificate and consents from all affected parties. Contravention renders the transaction void.

Retain records: Retain all documents used for verification of identity and authority for the period prescribed by the regulations (currently not yet specified in the Act, but regulations may prescribe). This applies to mortgagees, transferees, lawyers, and unrepresented parties. Failure to retain is a criminal offence.

Be aware of implied covenants: When drafting mortgages, leases, and transfers, consider whether the implied covenants are appropriate. If not, negate or modify them by express declaration in or endorsed on the instrument (section 262).

Manage caveats carefully: A caveat should only be lodged if there is a genuine legal or equitable interest. Provide a correct address within South Australia for service. If challenged, be prepared to establish the claim promptly. Withdraw the caveat if the interest is satisfied or the claim fails; otherwise, liability for damages may arise.

Use short forms correctly: The Act provides short forms for easements (Schedule 6) and covenants (Schedule 16). Using these short forms incorporates the long form by reference unless the contrary intention appears (section 89A). Ensure the short form is used exactly as prescribed to avoid ambiguity.

Engage legal practitioners or registered conveyancers: Most dealings require the involvement of a lawyer or conveyancer, who are the only persons generally entitled to charge fees for such work (section 274). Unrepresented parties face additional obligations (section 273AA) and bear the risk of non-compliance.

Seek review or legal advice when disputes arise: If the Registrar-General rejects an instrument or makes a decision affecting your interest, you may seek review by SACAT within 21 days (section 221). For complex matters, particularly those involving fraud or interpretation of indefeasibility, early legal advice is essential.