Sir Robert Torrens
In the annals of time, proving you were the rightful owner of a plot of land meant providing a paper trail of ownership transfers right back to the original Crown grant – an increasingly incomprehensible task. The short version of the Torrens story is that Sir Robert, who worked as Registrar-General and Treasurer in South Australia – and later as a Member of the House of Assembly – rejigged the method of recording land ownership into a far more modern system whereby records of ownership, and changes in ownership are administered by central government agencies. With that stroke of genius, the Torrens Title system was born.
The NSW Land Registry Services
In New South Wales, that central repository of title records is administered by the office of Land Registry Services. Other states have departments by different names, but the essential principle of a central administration point is the same.
As with any database of records, it only works if changes to it are kept up to date. If circumstances change, and a property notated as being owned by two people is now going to be owned by one of them, there are procedures in place to maintain accurate records. There is an appropriate form to complete, there will be some fees and charges, and the possible need to provide evidence – a Death Certificate for example.
Reasons to remove a name from a Title
A property held in joint names will have both names listed on the title. The possible circumstances are many, but include property:
- owned jointly by a married or de facto couple
- owned by two or more friends or business partners in an investment
- owned by one or more parents and a child – perhaps an assisted purchase to provide for the future
The above circumstances may change, perhaps by:
- the death of one party in a relationship
- a breakup and subsequent financial settlement with a relationship breakdown
- a change of direction with a jointly owned investment
- changed circumstance in a property jointly owned by family members
Fees and charges
Whatever the particular circumstances, the appropriate forms will need to be completed and submitted along with the particular fee for doing so. At time of writing, this is approximately $150.
Transfer duty (formerly, stamp duty) may also need to be paid. It is important to note that this is based upon the current market value of the property, not the original price paid, and will apply to that portion of the property held by the name being removed. There are exceptions to this where one party in a relationship dies, with possible variations depending upon whether the property was owned as joint tenants or tenants in common.
Similarly, property which is part of a financial settlement following a relationship breakdown has unique considerations, and since there are myriad possible scenarios, sound legal advice from lawyers experienced in this field is vital.
A further consideration is that of capital gains tax, and professional advice on this potential consequence is also of paramount importance.
An often-overlooked factor is when a property is the security for a mortgage in joint names. When one party to the mortgage is removed from the title, it is invariably the case that the financial institution will require the discharge of the original mortgage and creation of a new one in the name of the remaining owner.
On face value, removing a name from a property title may seem trivial, but the considerations can be many, making sound legal advice essential.