Updated 31 October 2026
Contract for Sales - Seller’s Most Asked Questions #30. What is the importance of a title search?
Why is a title search important when selling property in NSW?
A current title search identifies the registered owner and recorded interests affecting the property, including mortgages, caveats and registered leases. Before selling, check that the correct legal entity is on title and that the contract matches the land being sold. Refresh the search before settlement and investigate every relevant entry.
- Confirm the owner, ownership shares and lot and plan details.
- Identify interests that must be discharged, withdrawn or disclosed.
- Obtain the underlying documents where a title notation needs explanation.
The Torrens Title Register records legal interests in land. Reviewing it early helps expose problems while there is still time to obtain documents, negotiate solutions and prepare an accurate contract.
How do you check that the right legal entity is on title?
Compare the registered proprietor with the proposed seller’s full legal identity. For a company, check its legal name and Australian Company Number against current ASIC records. For trust property, identify the trustee holding legal title and check the trust documents. A familiar business or trust name does not establish ownership.
A business name is not a substitute for its holder’s identity. A director, shareholder and related company are also not interchangeable with the company that owns the property. ASIC’s ACN guidance explains how the unique company number identifies the entity.
A trust is not a separate legal entity. Review the trust deed and trustee appointment documents separately. A name change and a change of trustee can require different action; do not assume every mismatch is a clerical correction.
Does being named on title prove authority to sell?
A title search alone does not verify the identity of the person giving instructions or their authority to sign. Your lawyer must also check identity and the right to deal with the property. Co-ownership, deceased estates, companies and powers of attorney can require additional evidence and registration steps before completion.
The Registrar General’s guidance warns that a person may share the registered owner’s name without being that owner. Supporting evidence must connect the client to the property.
Check every co-owner’s interest and authority for a sale of the whole property. Where an owner has died, the process depends on the ownership structure: survivorship and a notice of death differ from an executor’s transmission application. A death certificate alone does not establish an executor’s entitlement to registration.
When should you obtain a fresh title search?
Obtain an up-to-date title search when preparing the contract, review its currency before exchange and obtain a fresh search before settlement. A search records the position at a particular time; later dealings can change it. Recheck promptly if marketing is prolonged, settlement is delayed or new information raises a concern.
NSW abolished certificates of title on 11 October 2021. An old certificate or an Information Notice cannot establish the current state of the register.
Electronic title activity checks help identify changes, but PEXA’s Service Charter distinguishes workspace information from a title search. Investigate alerts and unresolved earlier entries. Ask your lawyer whether a priority notice is appropriate; it offers temporary registration protection, subject to its scope and exceptions, rather than replacing searches.
What should happen if a mortgage appears on title?
A registered mortgage requires investigation even if the seller believes the loan has been repaid. Confirm the lender, the amount required for release and the discharge arrangements. The title entry does not show the current payout figure, and repayment alone does not establish that the registered mortgage has been removed.
The Registrar General’s dealing descriptions distinguish a mortgage from its discharge. Give your lawyer details of every secured facility, including private lending and loans secured over multiple properties.
Arrange lender participation early. Where discharge is required at settlement, confirm that the sale proceeds and any additional funds can meet the agreed release conditions. Do not promise an unencumbered transfer merely because an account shows a zero balance.
Can a caveat delay or prevent settlement?
A caveat records a claimed interest and can prevent registration of affected dealings, potentially disrupting settlement. It does not itself prove that the claim is valid. Your lawyer should obtain the caveat, examine its scope and basis, and determine what consent, withdrawal or other legal process the transaction requires.
The Real Property Act 1900 governs caveats and their removal. The appropriate response may involve negotiation, a statutory lapsing procedure or court proceedings. The deadlines and available remedies depend on the circumstances.
Tell your lawyer immediately about ownership disputes, disputed loans or threatened claims. Never assume a caveat will disappear automatically or that paying an alleged debt necessarily resolves every requirement for its removal.
Will every lease or tenancy appear on the title search?
Registered leases appear on title, but unregistered tenancies and occupancy arrangements may not. A search showing no lease does not establish that the property is vacant or that vacant possession can be delivered. Provide every lease, option, variation and occupancy agreement so your lawyer can check the seller’s contractual obligations.
The NSW Small Business Commissioner’s lease guidance explains registration requirements for retail leases. Those requirements should not be treated as identical rules for every residential tenancy or commercial arrangement.
Check the actual occupants, remaining term, renewal rights and any agreed surrender. Some short tenancies can bind a new owner despite non-registration. Selling the property does not, by itself, guarantee that an existing tenant must leave.
What about easements, covenants and property boundaries?
A title search may identify easements, restrictions and covenants, but their practical effect usually requires the registered instrument and relevant plan. It is also not a current survey showing fences, buildings or encroachments. Check the documents and obtain a registered surveyor’s advice where the property’s physical boundaries are uncertain.
Review rights of way, drainage easements and restrictions affecting proposed use. Identify who benefits, where the right applies and any maintenance obligations. Some interests will remain after the sale and need accurate disclosure.
Match every lot being sold to the contract, including separately titled parking or storage. Legal Aid NSW’s boundary guidance explains the role of registered surveyors. A fence, online map or street address alone should not be treated as conclusive boundary evidence.
What title information belongs in the sale contract?
For a NSW residential sale, the contract must contain the prescribed documents applicable to the property, including the property certificate or title search. Relevant plans and instruments affecting the land also matter. Your lawyer should check the required attachments, statutory warranties and contract terms together, rather than relying on the search alone.
NSW Government contract guidance identifies title information, drainage diagrams, planning certificates and relevant dealings among the required documents. The Conveyancing (Sale of Land) Regulation 2022 sets out the prescribed requirements.
Give your lawyer information about known disputes and occupancy arrangements as well. Disclosure obligations depend on the law and circumstances; attaching a search is not a universal answer to misleading statements or missing documents. Arrange review before the property is marketed.
What does Black v Garnock show about settlement-day searches?
The High Court decision in Black v Garnock [2007] HCA 31 demonstrates that title information can change within hours. A search earlier on settlement day did not reveal a writ recorded later that morning. The purchasers completed the transaction but subsequently encountered an obstacle to registration of their transfers.
The approximately 9 am search revealed no unexpected encumbrance. A creditor’s writ was recorded at about 11.53 am, before settlement at about 2 pm. The High Court majority allowed the creditors’ appeal and overturned the NSW Court of Appeal’s protective orders.
The majority observed that a search immediately before settlement would have revealed the writ. The lesson remains relevant, although today’s electronic settlement processes and priority notices require current advice. The case does not justify assuming that an earlier search protects a transaction indefinitely.
What should sellers ask their lawyer to check?
Ask your lawyer to confirm the correct owner, the complete land description, the current title entries and the steps needed for settlement. Provide supporting ownership and authority documents early. Have the contract and any proposed solution checked before committing to deadlines, especially where a mortgage, caveat or lease remains unresolved.
- Who owns each title, and who is authorised to sign?
- Which interests will remain, and which require release or removal?
- Can the promised possession arrangements actually be delivered?
- When will the title be searched again, and who will investigate changes?
CM Lawyers’ property sale service can assist with reviewing title documents and preparing the contract. Contact Christine Manolakos and the team for advice on the property and proposed transaction.
General information about property sales in NSW, not individual legal advice. Have a lawyer check the current title, ownership and authority documents, disclosure obligations and sale contract against the property’s circumstances.
Key resources
Registrar General — title guarantee — the Torrens system and registered ownership.
Registrar General — electronic conveyancing — abolition of title certificates and the need for current searches.
Registrar General — identity and right to deal and ASIC — company numbers — verifying the owner and authority to act.
NSW Government — sale contract requirements and Conveyancing (Sale of Land) Regulation 2022 — prescribed documents and disclosure requirements.
Real Property Act 1900 — registration, caveats, mortgages and interests affecting title.
NSW Small Business Commissioner — registering a lease — retail lease registration and visibility in property searches.
PEXA Service Charter and Registrar General — dealing descriptions — title activity checks, discharges and priority notices.
Black v Garnock [2007] HCA 31 — High Court reasons concerning a writ recorded before settlement.
Legal Aid NSW — boundaries — surveying and resolving uncertainty about property boundaries.
