Property law

I lost my original certificate of title. Can I apply for a replacement with the Land Registry Services?

NSW Land Registry Services does not issue paper certificate of titles. 

All details about ownership of land will be held electronically on the Torrens Title Register.

Do I need to produce the original certificate of title when lodging a dealing with NSW Land Registry Services?

NSW Land Registry Services (NSW LRS) no longer accepts or issues certificates of title. The paper certificate of title is no longer a legal document. You can choose to keep the original certificate of title for sentimental purposes.

NSW LRS records information of land ownership and registered interests on the Torrens Title Register.

When you lodge a dealing with NSW LRS, you will receive an information notice about the registered dealing held in the Torrens Title Register. 

A dealing can only be lodged by a lawyer or a conveyancer subscribed to an Electronic Lodgment Network (ELN).

Can I lodge a dealing with NSW Land Registry Services (NSW LRS) without a lawyer or a conveyancer?

Paper dealings are no longer accepted by NSW LRS. 

You will need to see a lawyer or a conveyancer who is a subscriber to an Electronic Lodgment Network (ELN) to prepare and lodge dealings to be registered on the Torrens Title Register. 

What is a caveat?

A caveat is a notice recorded on the title to a property. It is recorded b​y a person claiming to have an interest in that property.

A caveat prevents registration of other dealings with the property (with some exceptions) unless consent is given by the person who lodges the caveat (the caveator) or the caveat is withdrawn or removed.

A caveat may be lodged on a property even if a person does not have title to the property where they believe they have an interest in the property, such as a family member who may have lent money for renovations but has not been repaid.

For more information, see Caveat on the NSW Land Registry Services website.

If you want to lodge a caveat, or if someone else has lodged a caveat against your property, you should get legal advice.

When can I lodge a caveat?

You should get legal advice from a lawyer to see if you have good grounds to lodge a caveat on title.

If a caveat is lodged without a good reason and the owner of the property suffers financial loss as a result, you may have to pay compensation to the owner.

For example, a creditor (a person who is owed money) who has received a court judgment in their favour is not automatically entitled to lodge a caveat on the debtor's (the person who owes the money) land.

How do I lodge a caveat?

NSW Land and Registry Services (NSW LRS) does not accept paper lodgments.

If you want to lodge a caveat, you will need to go to a lawyer or conveyancer.

A caveat can be prepared and lodged electronically by a lawyer or a conveyancer subscribed to an Electronic Lodgment Network (ELN).

How can I get a caveat removed after it has been lodged?

You should speak to a private lawyer or conveyancer to lodge a Withdrawal of Caveat form with the NSW Land Registry Services.

How do I have a caveat ​removed from the title to my property?

There are different ways of having a caveat removed from the title to your property. 

If there is a caveat on your property that you want removed, you should get legal advice from a private lawyer about your situation. 

What does​​​ conveyancing involve?

Conveyancing is the term used when you buy or sell property. It involves:

• preparing and advising on a contract for sale and purchase of land
• arranging building and pest reports, and other searches and inspections
• examining and exchanging the contract for the sale and purchase of land
  
• doing searches on government authorities that may have an interest in the property, for example, Revenue NSW or Transport for NSW
  
• overseeing the transfer of the certificate of title
  
• arranging settlement with the incoming or discharging mortgage.

For more information, see Buying & selling property on the NSW Fair Trading website.

Do I need a lawyer or conveyancer when buying or selling property?

When buying or selling property you can:

• use a licensed conveyancer
  
• use a lawyer, or
• do it yourself.

There are many risks involved in doing your own conveyancing. Conveyancers and lawyers have expertise in doing conveyancing and they have insurance that can be used to compensate their clients if they make a mistake. If you make a mistake when doing your own conveyancing, you are responsible for any loss that you suffer as a result. ​

What is the difference​ between a lawyer and a conveyancer?

Lawyers and conveyancers can do conveyancing work and give advice about conveyancing matters and contracts. However, lawyers can also give legal advice on other areas of law apart from conveyancing matters.

Some conveyancers may use a lawyer for more complex matters. If you believe your property transaction is complex, you should get a lawyer.

Are there any 'do-it-yourself kits' available for conveyancing?

LawAccess NSW can't recommend DIY kits produced by private companies.

Conveyancing can be complicated and DIY kits do not cater for all situations. 

Before doing your own conveyancing, you should get legal advice.

How do I find​ a conveyancer or a lawyer to help me buy or sell property?

The Law Society of New South Wales Solicitor Referral Service can give you the names of lawyers in your area who do conveyancing work. 

You can also look under Conveyancing Services in the telephone directory. 

Conveyancers in NSW must be licensed with NSW Fair Trading. There are also different licences available which will determine the types of conveyancing work a licensed conveyancer can undertake. Once you've found a conveyancer you should check with NSW Fair Trading to find out if they are licensed and what types of conveyancing their license allows them to do.

For more information, see Conveyancers licence check on the Fair Trading NSW website.

What can I do if I am not​​ happy with my conveyancer or lawyer?

You can contact NSW Fair Trading to complain about a conveyancer.

All licensed conveyancers must have insurance in case they make a mistake or are negligent in performing the conveyance. 

Before taking legal action against a conveyancer for negligence, you should get legal advice from a private lawyer.

For more information, see Conveyancing on the NSW Fair Trading website. 

If you have a complaint about your lawyer you can contact the Office of the Legal Services Commissioner. 

In some cases, you might also have a consumer claim that can be made at the NSW Civil and Administrative Tribunal (NCAT). Before you apply to NCAT, you should get legal advice.

What does the seller of the property have to disclose about the property when it is for sale?

The seller of the property is known as the vendor. If a property is put 'on the market' for sale, the seller must also have a contract for sale and purchase of land prepared to give to anyone who may want to purchase the property. 

In the contract, the seller must disclose any issues to do with the title. This means that the contract must include:

• a copy of a current title search
  
• a copy of the deposited plan or strata plan for the property
  
• copies of any document registered on title creating easements, covenants and other restrictions on the development or use of the land
• details of the seller's authority or right to sell the land if they are not the registered owner
• a zoning or planning certificate issued by the Local Council - this is often referred to as the section 10.7(2) and section 10.7(5) certificates (a section 10.7(5) is not compulsory but is sometimes included)
  
• a copy of the drainage diagram issued by the relevant water authority
• a copy of any proposal by a government authority to buy or acquire the land, for example, plans to widen a road that affect the land (if the vendor is aware of the proposal).

This is not a complete list of things the seller should disclose. 

If you are not sure whether something should be disclosed, you should get legal advice.

Does the seller have to ​​disclose a serious crime that was committed at the property?

The vendor (the seller) should tell their agent if a serious crime was committed at the property.

The agent is responsible for telling a purchaser all 'material facts' in relation to the property and this could include things such as a serious crime that may have taken place. 

If an agent does not disclose a 'material fact' they could be committing an offence.

What is a cooling-off​ period?

The cooling-off period is the time that the buyer has to pull out of a contract without being liable to pay the full purchase price. However, if a buyer pulls out in the cooling-off period they will lose 0.25% of the purchase price.

When you buy a residential property in NSW, you have a five business-day cooling-off period after you exchange contracts. The cooling-off period starts as soon as you exchange and ends at 5pm on the fifth business day after exchange. 'Exchange' means that the contracts have been signed by both the buyer and the seller.  

A longer cooling-off period applies for properties sold off the plan, because these contracts are often large and complex. A 10-business day cooling off cooling off period applies to these contracts.

There is no cooling-off period if:

• the property is bought at auction
• the purchaser waives their cooling-off rights by providing a section 66W certificate, or
• contracts are exchanged on the same day as the auction after the property has been passed in. ​
  

A cooling-off period can be extended in some circumstances. You should speak to your conveyancer or lawyer to request an extension from the seller's lawyer before the cooling-off period ends.

For more information, see Contracts and deposits on the NSW Fair Trading website.

Can the cooling-off ​​​period be waived?

The cooling off period can be waived by the purchaser's solicitor providing a certificate, called a section 66W certificate, to the seller's solicitor. 

How much deposit has to be paid when you buy a property?

The buyer will have to pay a deposit when contracts are exchanged on a property. The deposit is usually 10% of the purchase price but the buyer and seller can agree that the deposit can be less than 10%.

When a property is exchanged with a cooling-off period, the buyer is usually asked to pay 0.25% of the purchase price, then the remaining deposit has to be paid by the end of the cooling-off period.

If you are planning to purchase a property at an auction, you should negotiate the amount of the deposit before the auction date and confirm it in writing. 

What is a holding deposit?

A holding deposit is paid to a real estate agent or the seller before contracts are exchanged. Even though a holding deposit is paid, it does not stop the seller or agent advertising the property for sale or negotiating with other potential buyers.

The holding deposit is simply a way for a buyer to show they are genuinely interested in buying the property. You should get a receipt for any money that you pay to a real estate agent. If contracts are not exchanged, then the holding deposit is usually refundable. ​

Can the ​seller terminate our contract of sale because I was late in paying the deposit?

The payment of a deposit is an essential term of a contract for sale of land. If the deposit is not paid the seller can immediately terminate the contract without giving you another opportunity to pay.

The contract is terminated when the buyer receives a notice of termination. If the deposit is paid in full after the due date but before the notice of termination has been received, the contract may still be valid.

If the contract is terminated, the seller may make a claim for damages against you for breach of contract.

If you can't pay your deposit by the due date, you should get legal advice. ​

What ​can I do if the buyer hasn't paid the deposit but I still want to go through with the sale?

Non-payment of a deposit normally allows you (as the seller) to terminate the contract for sale. However, you can c​hoose to enforce the contract instead. This would involve taking legal action to force the buyer to pay the deposit and also to buy the property.

If you are considering legal action to enforce the contract, you should get legal advice.

Can I pull out ​of the contract if the cooling off period has ended and can I get my deposit back?

Generally, if you pull out of the contract after the cooling-off period has finished, you will lose the deposit. In addition to this, there may be other legal action that the seller could take against you.

Under standard contracts, there are a small number of circumstances where you may be able to pull out of the contract and get your deposit back. For example, if there is a problem with the seller's title to the property or if there is a missing document in the contract that is required by law.

If you want to pull out of the contract, you should get legal advice. ​

Can ​I get my deposit back if the seller decides to withdraw from the sale of the property?

If you have not done anything to breach the contract for sale and purchase of land and the seller chooses to terminate the contract, you are usually entitled to your deposit back.

You should get legal advice about your situation. ​

What are the duties of my real estate agent during a conveyance?

A real estate agent's duties are:

• to perform his or her obligations and to follow instructions
• to act with due care and skill
• to act in good faith
• not to delegate duties.
  

A real estate agent should not list a property for sale unless that agent holds a copy of the contract for sale and purchase of land that can be given to potential buyers.

A real estate agent who breaches their duties may have to compensate their client. If you have a dispute with your agent, you should try talking to your agent about how to resolve the dispute.

If you are unable to resolve your dispute with the agent, you should get legal advice.

What ​are the different types of agency agreements and what do they mean?

A seller can choose to enter into an agency agreement by appointing one or more selling agents. The important difference in the agency agreements is how and when the commission is owed to the agent.

For more information about the different types of agency agreements, see Agency agreements on the NSW Fair Trading website.

These issues can be complex and depend on the terms of the agreement between the seller and the agent.

If there is an issue about who is claiming commission or whether you are entitled to sell the property yourself, you should get a lawyer look at your agency agreement to give you advice about your situation.​

What if my agent​​ is pushing me to sell to a specific buyer but I don't want to?

A seller can refuse to sell to a buyer, either by revoking the offer to sell or by revoking the authority of the agent. An agent can't prevent you from revoking the agency or refusing to sell to a purchaser.

However, it is important that you make sure you do not breach any terms of an exclusive selling agency agreement or a sole selling agency agreement. If you do this, the agent can take legal action against you for breaching the agreement.

When is an agent entitled to​ commission from the sale of land?

Under standard agency agreements, your agent is entitled to commission when they introduce a buyer who:

• entered into a contract, and
• completed the purchase.

The agent's commission is payable out of the money received by the seller at settlement and is usually taken out of the deposit held by the agent.

Where a sale is not completed because the seller is unwilling or unable to complete, the seller is usually still liable to pay the agent's commission.

Where the buyer doesn't go ahead with the purchase the agent is not normally entitled to commission, even if the seller is entitled to keep the 0.25% deposit.

What can I do if ​I have a dispute with an agent about commission from the sale of my property?

You should look through your agency agreement for any terms relating to the commission. In some cases, you may be able to take action in the NSW Civil and Administrative Tribunal (NCAT) to resolve the dispute.

Before applying to NCAT, you should get legal advice.

I am looking at selling or leasing my property with a pool. What are my responsibilities?  

If you are selling or leasing a property with a swimming pool or spa pool, you must ensure that the contract for sale or new residential tenancy agreement includes:

• a valid swimming pool compliance certificate or a relevant occupation certificate issued within the last three years, and
• a certificate of registration.

You can search the NSW Government's Swimming Pool Register to check if a pool has been registered and whether a certificate of compliance has been issued.

If you want to apply for a compliance certificate, you should contact your Local Council or an accredited private certifier.​

What is an off the plan contract?

An off the plan contract is a contract for the sale of a residential lot that has not been created at the time the contract is entered into.

What is the cooling-off period for an off the plan contract?

From 1 December 2019, the cooling-off period for an off the plan contract is 10 business days.

Purchasers who pull out of the contract during the cooling-off period forfeit 0.25% of the purchase price.

The cooling off period can be waived or shortened, but only if the purchaser’s lawyer or conveyancer has explained to the purchaser the consequences of varying the cooling off period and provided the necessary certificate.

What are the disclosure requirements for an off the plan contract?

A new disclosure statement in the approved form must be attached to an off the plan contract before it is signed by the purchaser.

The disclosure statement must include:

• a copy of the draft plan prepared by a registered surveyor
• the proposed schedule of finishes
• other important documents depending on whether the property is in a strata lot or community scheme.

If the vendor does not attach a disclosure statement or a document required to be attached to the disclosure statement, the purchaser can rescind (cancel) the contract within 14 days after the contract is exchanged.

For more information, see New requirements for off-the-plan contracts from 1 December 2019 on the Office of the Registrar General website.

Who can hold the deposit for an off the plan contract?

From 1 December 2019, a deposit or any instalment for an off the plan contract must be held in a trust account of a lawyer, conveyancer or real estate agent until settlement. This means that the vendor cannot negotiate the release of the deposit before settlement.

When can the vendor require the purchaser to settle for an off the plan contract?

The vendor must provide the purchaser with a copy of the final registered plan and any other document that has been registered with the NSW Land Registry Services at least 21 days before settlement. A purchaser is not required to settle before the 21 days.

For more information, see New requirements for off-the-plan contracts from 1 December 2019 on the Office of the Registrar General website.

What is ​joint tenancy?

Joint tenancy is a form of property ownership where:

• each owner has an equal share in the property
• each owner can't sell the property without the other owner's agreement
• the share of an owner that dies will pass to the surviving owners (it does not form part of the deceased owner's estate).
  

What is tenancy in ​​common?

Tenancy in common is a form of property ownership where:

• each owner has a share in the property (which is not necessarily equal)
• an owner can sell their share of the property without the other owner's permission
• each owner's share of the property will be part of their estate when they die, meaning they can leave their share to someone in their will.

How can I find out if I am ​​a tenant in common or a joint tenant?

If you have a copy of the exchanged contract for sale, this will tell you whether you are a joint tenant or tenant in common. If you don’t have a copy, you can request a copy from your lawyer or conveyancer.

You can do a title search through NSW Land Registry Services​, a private lawyer or Information Broker. You will have to pay a fee for a title search.

If you own the property, the Torrens Title Register will also state each owner's share. For example, 'A and B as tenants in common in equal shares.' If the shareholding is uneven, then the Register may state, for example, "A as to a third share and B as to two thirds share as tenants in common."

For more information, see Land titles and access to land title information in NSW on the NSW Land Registry Services website.

How can I include​​​ my partner's name on the title to my property?

You can include your partner's name as an owner of the property by transferring a share in your property to your partner. 

You will need to see a lawyer or a conveyancer to prepare the Transfer form and lodge it electronically through an Electronic Lodgment Network (ELN). NSW Land Registry Services does not accept paper lodgments.

If you have a mortgage, your lender (the mortgagee) must approve the transfer of the title to include your partner's name. Your lender may also require that both you and your partner sign new mortgage documents before it approves the transfer. Your mortgagee will then record the changes on the Torrens Title Register held by NSW LRS. You should ask your lender what its requirements are for the transfer and get legal advice about your situation.

Before a transfer is registered, stamp duty must also be paid. In some circumstances you may be able to apply for an exemption from paying stamp duty. You should contact Revenue NSW to see whether you may be eligible to apply for an exemption.

Can I force the co-owner ​of my property to sell?

If you own a property as joint tenants, you need all co-owners to agree to sell a property.

If you own a property as tenants in common, each owner can sell their share of the property without the other owner's permission.

If your co-owners don’t want to sell but are willing to buy your share of the property, you can sell your share to your co-owners.

If your co-owners don’t want to sell or purchase your share in the property, you may be able to apply to the Supreme Court of NSW for an order that the property be sold or partitioned. Partitioning means dividing the land into separate lots so that each co-owner can sell or deal with the land in the way that they choose. If the court makes an order for sale a trustee will be appointed to sell the property and hold the proceeds in trust for the former co-owners.

Before applying for an order to sell or partition land, you should get legal advice from a private lawyer.

What can I do​​ if a person living in my property ​​refuses to leave?

This depends on whether the person is a co-owner, tenant or boarder or lodger. Your options can also vary depending on the reason why you want the person to leave, for example, if they are threatening or harassing you.

If the person is a tenant, see the factsheet Ending a residential tenancy on the ​NSW Fair Trading website for information on terminating a residential lease.

If the person is a boarder or lodger, see Boarding houses on the NSW Fair Trading website. If the dispute is not resolved, you should get legal advice.

If the person is a co-owner, the person usually will have a legal right to stay in the property. An exception to this is if there is a court order that says they can't access the property, for example, an Apprehended Violence Order (AVO).

What rights do squatters​ have?

A squatter is someone that lives in a property without the owner's permission. A squatter is different from a tenant, boarder or lodger.

Generally, a squatter does not have any legal rights to stay in a property and can be charged with trespassing by the police.

If, however, a squatter remains on a property without the owner's permission for more than 12 years, they may be entitled to claim a legal interest in the property based on 'adverse possession'. 

This can be a complex area of law. If you are in this situation, you should get legal advice from a private lawyer.

What can I do to force an adult child who has lived with me to move out of home?

Usually, if your adult child is living with you in your home, tenancy laws do not apply unless you have both entered into an agreement. This is because the law presumes that there is no legal arrangement between family members.

If you want your adult child to leave your home, you can:

• speak to them or write them a letter asking them to leave. You could give them written notice. There is no legal requirement to give notice, but it is better if you and your child can reach an agreement to avoid a dispute. Usually giving a reasonable amount of time for them to move out will help them to have time to pack up their things and make alternate living arrangements.
• try mediation, if there is a dispute. A Community Justice Centre may be able to help you to negotiate with your child about leaving your house.
• speak to the police, if they refuse to leave and no longer have your permission to stay in the home. The police may intervene and can charge a person with trespass if they stay on your property without your permission. Police may not take any action if they believe it is a civil law matter.
  
• get legal advice about any other options that might apply in your situation.

If your child has been violent or you have fears for your safety, you should contact the police. You may have grounds to apply for a​n Apprehended Violence Order (AVO).

For more information, see Adult children living at home on the Ways to get help section of our website.

What is an ​​easement?

An easement is a legal right relating to the use of a property. An easement:

• gives a person a right to use part of another person's land in a particular way, or
• imposes an obligation on the owner not to use their own land in a certain way.

Easements can be registered on title to the property.

For example, a Water Authority like Sydney Water often has registered easements over areas of land where stormwater drains or main sewerage pipes lie underground. The easement prevents the owner building on these areas so that pipes can be accessed by the Water Authority for repair and maintenance.

What is a covenant?

A covenant is a promise between owners of neighbouring land. A covenant can be a promise by an owner to do something or a promise by the owner not to do something on their land that may affect their neighbour.

For example, a covenant may be that the owner cannot build a fence above a particular height or to maintain an easement on the property.

Covenants can be registered with NSW Land Registry Services. However, even if a covenant is not registered, it may still be enforceable.

NSW Land Registry Services does not accept paper lodgments. A dealing can only be lodged by a lawyer or a conveyancer subscribed to an Electronic Lodgment Network (ELN).

If you are unsure whether a property is affected by a covenant, you should get legal advice from a private lawyer. ​​

What are my rights if I have a registered easement over my neighbour's land and the neighbour has blocked my access?

If the property is Torrens Title and your access is blocked despite having an easement, you may be able to:

• take action to remove the thing that is obstructing your ability to use the land in a particular way
• start legal action to force your neighbour to remove the obstruction or to prevent your neighbour from making the obstruction in the first place
• claim compensation from your neighbour.
  

If your property is under Old System Title, you should get legal advice from a private lawyer about your options.

How​​​​ do I find out if my easement is registered or not?

You can do a title search with NSW Land Registry Services as the search will show any registered easements on the title to a property.

Who has responsibility ​​​for repairing or maintaining a driveway I share with my neighbour?

If you share a driveway with your neighbour there may be an easement in place. An easement is a legal right that may allow you to use or control a piece of land that you do not own. You can check if there is a registered easement by applying for a title search with NSW Land Registry Services.

Easements have conditions with them which may include who has responsibilities to repair or maintain the easement.

If there are no conditions on the easement then the situation can be more difficult. You can speak to your neighbour about the repairs or maintenance needed to see if you can resolve the issue. You could also try mediation if you need help negotiating with your neighbour. If you can't reach an agreement with your neighbour about the issue you should get legal advice from a private lawyer.

How can I create​​ an easement?

If you and your neighbour want to create an easement over part of yours or their land, the owner of the property where the easement would be needs to complete a form to grant an easement through NSW Land Registry Services. In some cases, there may be other requirements, such as getting a survey report showing the proposed site for the easement.

You will also have to pay any relevant fees to create the easement to NSW Land Registry Services.

NSW Land Registry Services does not accept paper lodgments. A dealing can only be lodged by a lawyer or a conveyancer subscribed to an Electronic Lodgment Network (ELN).

How do I get an​​ easement removed?

An easement can be removed:

• if you and the other owner agree. You will need to complete a Release of easement form with NSW Land Registry Services.
• with the consent of the public authority, if the easement is a right of way giving access to a public road. You will need to complete a Release of a right of way form.
• by an order of the Supreme Court, if you can't reach an agreement with the other owner 
  
• by the Registrar-General of NSW Land Registry Services where:
  • the easement is considered to be abandoned (usually after 20 years of the easement being unused), and
  • the person whose land is affected by the easement applies for it to be removed.

NSW Land Registry Services does not accept paper lodgments. A dealing can only be lodged by a lawyer or a conveyancer subscribed to an Electronic Lodgment Network (ELN).

If you want an easement removed, you should get legal advice from a private lawyer.

What​ rights do I have if I have been using a right of way but an easement is not registered?

In some circumstances, you may still have rights to enforce your use of the right of way but it depends on your situation.

 You will need to get legal advice from a private lawyer about your options.