Old System Title investigation is very relevant today and not just for a sale / purchase. In the 1960’s when the Office of NSW LRS (formerly the Registrar General’s Office) started creating Qualified Titles, it was the general consensus that all Old System Title land would be finished in 10 years. That has not happened.
We spoke with Mark Groll, our resident Old System Searcher, about the importance of conducting an old system search.
ITK: You’re a specialist in Old System Searching. What is old system searching and why is it so sought after?
MG: Old System Searching relates to Common Law Title land known as Old System Title, which is a title system with Land Grants commencing in 1792 and going through to 1862.
It is a system of searching where the inspection (searching) of the Old System Indexes (General Register) is required to be conducted to locate and identify the chain of ownership that is required to be conducted from a Good Root of Title (in most cases 30 years old at the time of conducting the search).
In the majority of cases, it is required when acting for a sale, purchase or finance of the property where the current title refers to Qualified and Limited, or Limited in the second schedule of the current title.
ITK: When would a lawyer or conveyancer conduct an Old System search?
MG: The majority of the time that the Old System Searches are conducted by the Solicitor or Conveyancer is when they are acting for the Vendor or the purchaser, and that the current title contains a Qualified Title and Limited Title notation, or either one of those notations.
More often, now Old System searches are conducted to determine if Rights of Ways and Easements have been properly created under Old System Title, for the purpose of noting the benefit of the Right of Way or Easement noted on the current title. The noting of a Right of Way or Easement on the title of a benefitting parcel of land that has been converted by way of Conversion Action or the former IVA action is not automatic. It is the procedure of the Office of NSW LRS to not note the benefit of a Right of Way or Easement on the title of the land benefitted until searches have been conducted against the affected land and benefitted land has been conducted, this is to confirm that the Right of Way or Easement has been properly created and then has not been cancelled by various means.
ITK: Please share a case study example of the power of an old system search.
MG: We recently conducted a search on a property in Albury. The case relates to Lot 1 DP 1240656 that benefited from a Right of Way over the land within the red edging. This Right of Way was noted on the benefiting title. After conducting the relevant searches required by the Office of NSW LRS, the Right of Way has since been noted on the title for Lot 1 D.P. 1240656.
Quite often, Clause 25 in the Contract for Sale is deleted by the Vendor side stating that an Abstract of Title will not be provided. The purchase of land is in most cases the biggest purchase of someone’s life. Over the years I have quite often found mortgages in the chain of title that have been forgotten about and never discharged. By doing the searches when acting for the purchaser will enable you to determine if the title is in good order and if an undischarged mortgage is found, then purchaser requisitions can be raised to the vendor requesting that the discharge of the unregistered mortgage be completed by the Vendor side.
Another good reason to conduct the Old System Searches is that references to benefiting rights of way might be found noted on the deeds when there is no reference to them on the current title.
ITK: Why isn’t Old System Searching taught at law school?
MG: The teaching of Old System Title at Law School was phased out quite some time ago. I can only guess that it was phased out along the lines of that is not deemed to be necessary anymore. However, it is still very relevant in today’s times and I would love to see it reintroduced even at a basic level so that an understanding on this system can be obtained.
ITK: Why is it important that you share your knowledge with junior members of the team?
MG: When I first started Old System Searching (1978) having started in Legal Industry in 1977, there would have been at least 50 people who could do Old System Searching for all aspects of land investigation purposes. Going forward to today (2021) there are only two people left, one being me, the other being a very good friend of mine who turns 71 this year, who can conduct an Old System Search for all aspects of land investigation purposes, including the search being required for Court purposes.
I feel that it is my obligation to ensure that the knowledge in the art of Old System land investigation (Searching) is passed on to the younger members of the team to ensure that this knowledge is not lost when my good friend and I are not around to provide this service anymore. By me teaching the younger members of the team will enable those team members to become more diverse in their knowledge and understanding of land titles and its various applications.
Conducting an Old System Search for your client whether the Vendor or Purchaser will give you peace of mind that the client is purchasing or selling a Good Title with no issues. This is a small cost to pay, compared to the Sale/Purchase price.
For more case studies and real life scenarios, register now for our complimentary webinar, 'The Importance of Old System Searching and Land Title Investigations' on May 18. Or, if you are looking to take your due diligence to the next level, conduct an Old System Search with InfoTrack today.