PROPERTY & CONVEYANCING - DO I 'OWN' LAND?
NEW SOUTH WALES - UNDER 'THE OLD LAW'
In New South Wales, some land is still held under what is called ‘old law’. Titles under old law can be traced back to Crown (government) grants before 1863. Under this system title would be passed to a new owner by way of a deed. Each document would need to contain a description of the land and be signed, sealed and delivered. These documents together formed the chain of title. If one document was defective there would be a defect in the title. At one time, a person seeking to prove their title to old law land would have to trace their title back to the original owner! Now, however, title need only be traced back thirty years.
Even though you may hold the legal title to land, do you really own it?
A person who has purchased land, for example, does not truly own the land but rather has a legal interest in the land which gives rise to certain rights over it. These rights can be extinguished if another person can demonstrate that they have a better title over the land. Under the old law, an earlier possessor of land will usually have stronger claims to it in a dispute. There are countless cases where a person, having purchased a piece of land, has seen it taken from them for this very reason.
You may have heard or read stories where a ‘squatter’ lives in an unoccupied house for a number of years and ends up owning the land even though they have not paid any money for it. This is known as adverse possession. A person who can demonstrate uninterrupted possession of land for a period of time (12 years in NSW) will have the strongest claim to the land. The rights of the documented owner of the land will be extinguished after this time. This type of event may seem far-fetched or unlikely but adverse possession still takes place relatively regularly. Many instances of adverse possession occur due to a mistaken or undefined boundary.
As you can see then, paying good money for a piece of land does not mean that you actually ‘own’ it and more importantly that you have the strongest claim to it at law. It is therefore absolutely vital that an experienced solicitor is involved in old law land transactions to ensure you are aware of exactly what you are buying or selling and to avoid potential problems in the future.