ABOUT WWRIGHT LAWYER ABN 94 899 580 524

Land law NSW – Land title - Real Property Act Register – Errors in the Register – Powers of correction – Registrar-General - Torrens Assurance Fund - Common law title - Ordinary, Qualified & Limited titles

The New South Wales Real Property Act Register is one of the largest digitised land title registration systems on the face of the Earth with about 5 million parcels of land now governed by the provisions of the Real Property Act 1900. This register is the basis for the protection of private real property and the operations of capital.

The New South Wales statutory system was introduced in 1868. The State-guaranteed statutory record of land ownership in this State has almost completely displaced the English common law system. This has been done through Parts 4A and 4B of the Act; State-mandated conversion of common law titles to either ordinary, qualified, limited or qualified limited folios.

For all except the ordinary folio, the qualified or limited folios are still, for all practical intents and purposes, governed by the common law principles of a good root of title and boundary definition. They do not enjoy indefeasibility under the Act.

Recalling the foregoing, it is not surprising that errors occur in the Register. These errors may be inter partes or administrative or negligent errors by the Registrar-General.

Errors range from the trivial, a misspelled name, for example, to extremely serious such as interferences in the Register that affect extant rights and result in confusion while certainty of title is a tenet of the system. In one case, the Registrar-General, at the request of Crown lands, restored the recording of an omitted reserved Crown road. That resulted in compensation of about $650,000 to the affected title holder from the Torrens Assurance Fund.

The Registrar-General is not disposed to correcting errors inter partes. They must fix them up themselves.

But in the case of errors by the Registrar-General or in other cases where an amendment is deemed necessary, we need to pay attention to section 12 of the Real Property Act 1900 which I extract below. I’ve included the entire section because it provides a good overview of the Registrar-General’s powers in respect of the Register not just his powers of correction of the Register. It looks difficult and complicated but it is not. 

If you have a problem with a notation on your title that looks like it might be wrong or does not make senses, we can assist you with clarity on that and advise on how to fix it up if it may be fixed. 

Please use the Contact Us or EMAIL ME buttons on my web site at wrightlawyer.com.au  

REAL PROPERTY ACT 1900 – SECT 12

Powers of Registrar-General

12 Powers of Registrar-General

(1) The Registrar-General may exercise the following powers, that is to say:

(a) The Registrar-General may require any person who may have possession or control of an instrument relating to land the subject of a dealing, or relating to the title to any such land, to produce that instrument, and the Registrar-General may retain any such instrument, whether produced pursuant to this paragraph or otherwise, until it is no longer required for action in connection with a dealing lodged with the Registrar-General.

(b) The Registrar-General may summon any person referred to in paragraph (a) or any person who to the Registrar-General appears to be interested in any land, title to land, or instrument affecting land, the subject of a dealing to appear and give an explanation respecting that land, title, or instrument.

(c) The Registrar-General may administer oaths or may take a statutory declaration in lieu of administering an oath.

(d) The Registrar-General may, subject to this section and upon such evidence as appears to the Registrar-General sufficient, correct errors and omissions in the Register.

(d1) The Registrar-General may, subject to subsection (3A), on such evidence and after such notices (if any) as appear to the Registrar-General to be sufficient, and with the consent of the proprietors and any mortgagees of the land, correct the Register by correcting a reference to one or more lot numbers in a plan. The Registrar-General may make the correction on the application of a proprietor or mortgagee or on the Registrar-General's own initiative.

(e) The Registrar-General may record in the Register a caveat on behalf of any person under any legal disability or on behalf of Her Majesty to prohibit the transfer or dealing with any land belonging or supposed to belong to any such person as hereinbefore mentioned, and also to prohibit the dealing with any land in any case in which it appears to the Registrar-General that an error has been made by misdescription of such land or otherwise in any folio of the Register or instrument, or for the prevention of any fraud or improper dealing.

Editorial note : See Trustee Act 1925 , sec 11.

(f) For the protection of any person interested in land under the provisions of this Act the Registrar-General may record in the Register a caveat, or may otherwise record the interest of that person in the Register in such manner as appears to the Registrar-General to be appropriate.

(g) The Registrar-General may, on such evidence as appears to the Registrar-General sufficient, record in the Register any change in the name of a registered proprietor, whether the change is consequent upon the marriage of the proprietor or otherwise.

(h) The Registrar-General may at the Registrar-General's discretion, and notwithstanding anything in this Act, dispense with any advertisement or the supply to the Registrar-General of any information or the production to the Registrar-General of any instrument.

(h1) The Registrar-General may give notice by advertisement or by personal service, whenever and to whomever the Registrar-General thinks appropriate, of the intended exercise or performance of any power, authority, duty or function conferred or imposed by this Act. The Registrar-General may instead, if the Registrar-General considers it to be appropriate, direct another person to give notice in a manner and form approved by the Registrar-General.

(i) The Registrar-General may, where the Registrar-General is satisfied that an estate or interest has been extinguished by merger, make such recording in the Register as the Registrar-General considers appropriate.

(1A) Notwithstanding subsection (1) (h1), a notice of intention to bring land under the provisions of this Act or to grant a possessory application or to register a plan of survey lodged for the purposes of section 28V may be served by post.

(2) Where a person required to produce an instrument pursuant to paragraph (a) of subsection (1) fails to produce the instrument or to allow it to be inspected or, being summoned pursuant to paragraph (b) of that subsection, refuses or neglects to give an explanation which the person is, pursuant to that paragraph, required to give, or knowingly misleads or deceives any person authorised to demand any such explanation, the person shall for each such offence incur a penalty not exceeding 2 penalty units, and the Registrar-General, if the instrument or information withheld appears to the Registrar-General material, may reject the relevant dealing referred to in that subsection.

(3) Where the Registrar-General, in the exercise of the powers conferred upon the Registrar-General by subsection (1) (d), makes a correction in the Register:

(a) the Registrar-General shall, by an appropriate recording in the Register, authenticate the correction and record the date thereof, and

(b) to the extent that, but for this paragraph, the correction would prejudice or affect a right accrued from a recording made in the Register before the correction, the correction shall be deemed to have no force or effect, and

(c) subject to paragraph (b), the Register shall, as so corrected, have the same validity and effect as it would have had if the error or omission had not occurred, and

(d) the Registrar-General shall, while any right preserved by paragraph (b) is subsisting, maintain available for search a record of the date, nature and effect of the correction, and

(e) the Registrar-General must keep a record of every correction.

(3A) If the Registrar-General makes a correction referred to in subsection (1) (d1):

(a) the correction:

(i) must not make original words or symbols illegible, and

(ii) must be dated, and

(iii) must be initialled by the Registrar-General, and

(b) the correction takes effect as if the error corrected had not occurred, and

(c) the correction does not affect the construction of any instrument made or entered into before the correction so as to prejudice any person claiming under that instrument, and

(d) the Registrar-General must keep a record of every correction.

(4) Where the Registrar-General exercises the powers conferred upon the Registrar-General by subsection (1) (f) otherwise than by entering the Registrar-General's caveat, the interest recorded shall be deemed to be an interest within the meaning of section 42 but otherwise shall have no greater operation or effect than it would have had if not so recorded.

(5) Upon the recording, pursuant to subsection (1) (i), of the extinction of an estate or interest by merger, that estate or interest shall be deemed to have been extinguished accordingly.

(6) The powers of the Registrar-General under this section may be exercised with respect to electronic lodgments in conjunction with powers granted under the Electronic Conveyancing National Law (NSW) .

(7) A power to correct errors and omissions conferred by subsection (1) includes a power to correct errors and omissions resulting from a malfunction of an Electronic Lodgment Network or of any electronic system in which information is communicated between the Electronic Lodgment Network and the Registrar-General.