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Duplicate Titles have been a feature of the Titles Register since its inception in 1875. Where there is one issued, a Duplicate Title is a paper version of the corresponding original Certificate of Title, with some differences and limitations. Limitations Many people may not be aware that Duplicate Titles have a number of limitations. For example, caveats, memorials, notifications and property (seizure and sale) orders have never appeared on Duplicate Titles such that they do not give a true indication of the encumbrances on a parcel of land. Removal One of the key changes brought about by the Transfer of Land Amendment Act 2022 (amending the Transfer of Land Act 1893) is the removal of “paper” Duplicate Titles from the land conveyancing process in Western Australia. Why? Interestingly, Duplicate Titles have been optional since 1996. WA has been transitioning to this point for a long time. Finally removing Duplicate Titles will clarify and simplify conveyancing in a way that does not detract from the integrity and security of the WA land Register. The change also aligns WA with ongoing advancements in electronic conveyancing around Australia. What to do with your existing Duplicate Certificates Duplicate Titles that existed before Monday, 7 August 2023 are automatically rendered invalid. They DO NOT need to be returned to Landgate or destroyed. Practically, what does this mean? From Monday, 7 August 2023, anyone with a Duplicate Title need NOT take any action. There is NO change to the way registered proprietors, encumbrances and other interests in land are recorded and searched on Certificates of Titles in the land titles Register. Land transaction documents which have been lodged with Landgate, but which remain unregistered by close of business on Friday, 4 August 2023 will not be able to create or issue Duplicate Titles. In the meantime Until Monday, 7 August 2023, registration requirements continue to apply for all documents lodged until the changes take effect. However, with Duplicate Titles no longer having any legal effect on and after Monday, 7 August 2023, Landgate recommends NOT lodging applications to replace lost Duplicate Titles or Applications to issue Duplicate Titles leading up to August UNLESS required for a land transaction or settlement taking place on or before Friday, 4 August 2023. Keepsake? Landowners can retain Duplicate Titles as a historical keepsake if they wish.

So you have entered into a contract for sale of land (Contract) in Western Australia. Congratulations! But what next? This article sets out some of the matters to consider when buying and selling land in Western Australia. Appoint a settlement agent or lawyer In Western Australia, only a licenced settlement agent or lawyer can act for you in your conveyance of land. The main difference between employing a settlement agent as opposed to a lawyer is that a lawyer is able to give you legal advice, whereas a settlement agent cannot. For a buyer, we suggest appointing a settlement agent or lawyer as soon as possible after entering into the Contract. For a seller, you could wait until the Contract is unconditional, but there is no harm in appointing a settlement agent or lawyer immediately after entering into the Contract. Pay the Deposit If you are the buyer, don’t forget to pay the deposit as required by the Contract. For example, the Contract may require that the deposit is due to be paid to the seller’s real estate agent within 5 days after the contract date (being the date on which the last party to sign the Contract, signs it). Contact your bank If you are buying the property with the help of a bank or if the seller has a property which is encumbered by a mortgage, we suggest contacting your bank as soon as possible to let them know about the purchase or sale. If you are the buyer and the offer is subject to finance approval, we suggest contacting your bank as soon as the property is under contract. Your bank will usually ask that you complete a loan application form or similar to kickstart the finance process. If your application is approved, your bank should provide you with a letter of approval. If your application is not approved, you bank should provide you with a letter of non-approval. In both cases, you should provide the letter of approval or non-approval to your settlement agent or lawyer. If you are the seller, then after the Contract becomes unconditional (which might be immediately after entering into the Contract or later if the Contract is subject to finance) then usually you would need to complete a discharge authority form and lodge it with your bank. Transfer duty Transfer duty is imposed upon agreements to transfer land in Western Australia. It is the buyer’s obligation to lodge the dutiable instrument (usually the Contract) with RevenueWA and then once assessed for duty, it is the buyer’s liability to pay the duty. Your settlement agent or lawyer should guide you in relation to transfer duty lodgement and payment. Don’t forget to include transfer duty when calculating how much you will need at settlement, eg if the purchase price is $450,000 then transfer duty (at the time of this article) is an additional $15,390.00 unless you are a first home buyer, in which case transfer duty could be reduced to $3,838.00 (being the first home owner rate of duty). If you are a foreign buyer, then you may need to pay an amount additional to the transfer duty. Try our Settlement Costs Calculator here to estimate the amount of transfer duty payable. First home owner grant (FHOG) If you are a first home owner, you may qualify for the FHOG (currently $10,000) if you are purchasing or building a new home. If you receive the FHOG you may also be eligible for the first home owner rate of duty (see the above example first home owner rate of transfer duty). Foreign resident capital gains withholding clearance certificate If you are an Australia resident and you sell property for $750,000 or more, then you may need to obtain a Foreign resident capital gains withholding clearance certificate from the ATO. Failure to obtain a clearance certificate may mean that the buyer is required to withhold a portion of the purchase price (currently 12.5%) and pay it the ATO. You can apply for a clearance certificate from the ATO by using this link. We suggest that the seller seek a clearance certificate as soon as possible to allow for ATO processing times. Festive season With the festive season upon us, please allow for additional processing times (as some organisations close over the Christmas – New Year period) and the statutory holidays when calculating contract deadlines. If you have any questions in relation to buying or selling land in Western Australia, please contact us here.

Lessees have an interest in the land leased pursuant to the lease. But is that leasehold interest guaranteed? Well, the answer is maybe. This article discusses what happens to unprotected leases, when you should protect a lease and how to protect a lease. Primewest In Primewest (Mandurah) Pty Ltd v Ryom Pty Ltd as trustee for Golden Asset Pty Ltd [2012] WASC 443 (Primewest) it was held that an unregistered lease for a term which exceeds five years is destroyed upon the transfer of the freehold property to a third party. Primewest considered section 68 of the Transfer of Land Act 1893 (WA) refers to the paramountcy of the estate of the registered proprietor, ie the registered proprietor holds the land free from prior unregistered interests. There is an exception in section 68(1A) for leases. The exception is for: “any prior unregistered lease or agreement for lease or for letting for a term not exceeding 5 years to a tenant in actual possession”; and “such lease or agreement is registered or protected by caveat”. For example, if a lease term is 4 years long and the lessee is in actual occupation, then it will be protected by section 68(1A). Alternatively, if the lease term is 7 years long and is registered or protected by caveat, then the lease will be protected. However, if the same lease is neither registered nor protected by caveat, then as contemplated in Primewest, the lease will be destroyed upon the transfer of the freehold property to a third party. How to protect your leasehold interest? If a lease is registerable, then our recommendation is to always seek to register leases. Registration of a lease will require the consent of all relevant interest holders and will therefore validate the lessee’s leasehold interest. However, if registration is not possible, then a lessee is free to register its leasehold interest on the title by way of caveat. Even if the term of the lease triggers the protection under 68(1A), a lessee may nonetheless choose to register a lessee caveat to put the world on notice of its interest in the property. How to lodge a lessee caveat? Landgate provides forms for the lodgment of caveats and provided the form is correctly completed, supported by the relevant evidence of the caveatable interest (being the lease for a lessee caveat) other required supporting documentation and lodgment fee, Landgate will register the caveat. In saying that, a successfully lodged caveat does not mean that the caveat is free of defect. For example, the caveatable interest could be incorrectly described leaving the caveat defective and the caveator unprotected. Accordingly, care must be taken when preparing a lessee caveat in order to ensure that the leasehold interest is adequately protected. Please contact us for assistance in lodging a lessee's caveat. Contact us.