Australian Cyber Law Map

Real Property Law

13 December 2022 - 22:40 | Version 7 | JenniferWestmorland

In Australia, interests in land are regulated by statutes in each State and Territory that establish a registry of land title based on the Torrens system, supplemented by common law principles. Nowadays, transfers of land occur electronically through a process known as "e-conveyancing".

Under the Electronic Conveyancing National Law, all conveyancing transactions in NSW must be undertaken through an online settlement platform (e-conveyancing) operated by an Electronic Lodgement Network Operator, such as PEXA. Key features of the platform include:
- Funds of purchasers can be transferred into the selected account of the vendor quickly and with ease and facilitates the timely transfer of the property.
- Removal of need for deeds, bank cheques and other administrative requirements, which improves the efficiency of practices for the purchaser.
- Lawyers can now sign transfers on behalf of clients.

Under section 54A of the Conveyancing Act 1919 (NSW), all contracts in relation to the sale of land must be in writing, unless the test for part performance is satisfied: McBride v Sandland (1918) 25 CLR 69.
Equivalent rules apply in other Australian jurisdictions - e.g. Instruments Act 1958 (Vic) s 126.

Part 6 of the Real Property Act 1900 (NSW) establishes the Torrens register of interests in land: Perpetual Trustee v Westfield [2007] HCA 45.
Part 7 of the Act regulates transfers and dealings with interests in land, such that indefeasible title is acquired upon registration (Frazer v Walker (1967) 1 AC 569), subject to certain exceptions such as fraud (Grgic v ANZ Banking Group Ltd (1994) 33 NSWLR 202).
Equivalent systems exist in other Australian jurisdictions - e.g. Transfer of Land Act 1958 (Vic) Parts III and IV.

The Electronic Conveyancing National Law governs the provisioning and operation of electronic conveyancing in Australia. It is implemented by separate legislation in each State and Territory - e.g. the ECNL was first implemented in NSW as an Appendix to the Electronic Conveyancing (Adoption of National Law) Act 2012 (NSW).
See ARNECC Electronic Conveyancing National Law

Under legal profession rules, such as the Legal Profession Uniform Law , which applies in NSW and Victoria, lawyers must adhere to strict obligations regarding the receipt and handling of trust money, even though the money is dealt with electronically.