Title fraud in New South Wales: how the Torrens Assurance Fund works

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Kooky

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A home in New South Wales is owned by whoever the land register says owns it. That single idea is the strength of the Torrens system, and it is also the reason a forged or unauthorised dealing matters so much: once a dealing is registered, the register itself has changed. The question this guide addresses is what stands behind the register when that happens.

The answer has three parts, each a New South Wales rule. There is a State guarantee of title, a statutory compensation scheme called the Torrens Assurance Fund that pays when the guarantee costs somebody their land or money, and a set of controls on who may lodge a dealing, which changed in 2021 when the paper certificate of title was abolished. This guide sets out what the Office of the Registrar General and NSW Land Registry Services publish on each of them, with the periods and conditions as those bodies state them. It also names, at the end, the points their published pages did not settle.

Periods as stated in the Torrens Assurance Fund Information Sheet of the NSW Office of the Registrar General, dated August 2017.

What the State guarantee of title means

The plainest official statement of the guarantee is in a fact sheet of the former NSW Department of Lands on the Real Property Amendment (Compensation) Act 2000, a document still hosted by NSW Land Registry Services. It carries a 2004 copyright line and states that its information may have been superseded, so every section number of the Real Property Act 1900 in this guide is the number that 2004 fact sheet cites, not one read in the current Act. It says the State guarantees the title of a person registered as proprietor "without fraud on their own part", and that such a person's ownership cannot be disturbed unless he or she was a party to the fraud.

The consequence is set out in the same fact sheet. Suppose a dealing is registered through a fraud in which the new registered owner played no part. Under the old common law system, the fact sheet explains, the innocent purchaser would lose out and forfeit the purchase price. Under the Torrens system it is the other way round: the innocent purchaser keeps the land, and the former owner is compensated financially. In the fact sheet's terms, a defrauded owner's right to recover the land is converted into a right to compensation.

So the protection an owner has in New South Wales is of two kinds, and they are not the same thing. Where the person now on the register was a party to the fraud, the guarantee does not shield that person. Where the person now on the register is innocent, the register stands and the former owner's remedy becomes money. The same fact sheet says the Torrens Assurance Fund is what underwrites that State guarantee.

Which of the two situations applies is a question of evidence in each case, and the published material does not offer a test for it. The Registrar General's own information sheet suggests independent legal advice to assess a claimant's prospects.

What the Torrens Assurance Fund is for

The Office of the Registrar General describes the Fund, in its information sheet dated August 2017, as a statutory compensation scheme for people who suffer loss or damage through the operation of the Real Property Act 1900 without their own fault. The 2004 Department of Lands fact sheet places the scheme in Part 14 of that Act, which it describes as having five divisions, with civil rights and remedies in Part 13.

Fraud is one ground among several. According to the information sheet, a person may be entitled to a payment for a loss in relation to land that is due to:

• an act or omission of the Registrar General;
• someone else being registered as owner of the land, or of an estate or interest in it;
• an error, misdescription or omission in the Register;
• land being converted to Torrens Title;
• fraud;
• an error or omission in an official search;
• an error in recording details supplied in a Notice of Sale.

The sheet adds one point that reflects how the registry is run today. The Registrar General has delegated titling and registry functions to an authorised operator, and a loss caused by an act or omission of that operator can also be claimed against the Fund.

The 2004 Department of Lands fact sheet gives a statutory reference for the list. Section 129(1) of the Real Property Act 1900, as that fact sheet described it in 2004, covers loss arising from the operation of the Act from six listed causes. The 2017 information sheet's own list runs to seven items. The two documents are thirteen years apart and neither reproduces the section, so this guide takes the list from the 2017 sheet and the section number, as it stood in 2004, from the older one.

Where compensation is reduced or refused

The Fund does not pay every loss connected with land. The information sheet separates two kinds of limit. Some reduce a payment "to the extent" that a stated factor contributed. Others exclude a loss altogether.

The partial exclusions are four. Compensation is reduced to the extent that the claimant's own conduct contributed to the loss, to the extent that the claimant failed to mitigate it, and to the extent that the loss was offset by a benefit. The fourth concerns professionals: the sheet lists a loss caused by a solicitor, a licensed conveyancer, a real estate broker or an information broker. The 2004 Department of Lands fact sheet puts that last item in narrower words. Compensation, it says, is not payable to the extent a loss results from fraudulent, wilful or negligent acts of solicitors, licensed conveyancers or real estate agents where the loss is compensable under a professional indemnity insurer's indemnity. On this guide's reading, the two documents describe a scheme in which insured professional error is left to the insurance that covers it. The 2004 fact sheet ties the first three to section 129(2) of the Act as it then stood, as its paragraphs (a), (c) and (d).

The full exclusions are a longer list. The information sheet says no compensation is payable for a loss that arises from an error or miscalculation in measuring land; a breach of trust by a registered proprietor; the same land being included in two or more grants; the recording of native title or a failure to record it; an error in a forestry lease plan; a mortgagee's failure to confirm identity; the recording or removal of a Registrar General's caveat; an attorney executing an instrument that the attorney was not authorised to execute; an easement not recorded in the Register, except where the Registrar General made the error; the improper exercise of a power of sale; the execution of a document by a corporation; and the Registrar General providing information that was supplied in a Notice of Sale.

Three of those concern the signing or checking of documents: the mortgagee's failure to confirm identity, an attorney executing an instrument without authority, and the execution of a document by a corporation. On the identity item, the sheet as read for this guide, re-opened on 10 October 2026, words the identity to be confirmed as that of "a mortgagee"; the guide could not settle whose identity is meant and does not interpret the item further.

What a fraud claim has to contain

A claim that rests on fraud or negligence carries extra requirements. The information sheet asks for the details of the alleged fraud or negligence: the date, and the name, postal address and occupation of the person concerned, together with the claimant's relationship with that person. It asks what recovery action has been taken. And it asks for the police report details, either the event number and the name of the investigating officer or a copy of the report itself.

Where a mortgagee is involved, the full loan and security documents go in with the claim. The sheet also asks for the details of any court proceedings, mediations, negotiations or other action taken to mitigate the loss, and for the details of any compensation already received, any indemnity given and any compromise entered into.

On this guide's reading, this list is the nearest thing in the published claim material to a record of what a claim is expected to show once a fraudulent dealing is suspected. The sheet does not instruct an owner to report to the police; it asks for the reference of the report. It does not instruct an owner to pursue recovery; it asks what recovery action was taken, and a separate line of the same sheet reduces compensation to the extent the claimant failed to mitigate. What steps are right in a particular case is a matter for legal advice, not for a general guide.

Lodging the claim

The procedure in the information sheet is short. The claimant completes and signs the form titled "Claim for Compensation from the Torrens Assurance Fund", with every field filled in, attaches all supporting information and copies of all the evidence relied on, and posts the package to the Torrens Assurance Fund claims team at the Office of the Registrar General in Sydney. The claimant or a representative may lodge it.

The form includes a declaration on its second page. It is signed by the claimant, by the claimant's attorney, in which case the power of attorney is produced, or by an authorised officer of a corporation, in which case the registered office details and the names and addresses of the officers are produced. A declaration made outside New South Wales is made under the equivalent local Act, before a witness prescribed by that Act.

One field may be left empty. Where the amount of the loss is not known, the sheet says the claimant may leave it blank, and the Registrar General will advise what steps are needed, which may include agreeing to an independent valuation.

The clock: six years, two months, twelve months

Four periods govern a claim, and each starts from a different event.

The first is the limit for lodging. The information sheet says a claim must be lodged within 6 years from the act or omission that gave rise to the loss, or within 6 years of the date the loss was suffered. The 2004 Department of Lands fact sheet gives the source, as the Act stood then, as section 131(2) of the Real Property Act 1900 and puts the second limb as 6 years after a later loss date.

The second applies once the claim is in. The claimant must cooperate fully with the Registrar General, comply with reasonable requests for additional information, documents or other action, and disclose any potential claims against other people and any related court proceedings. If a request is not complied with within 2 months, the sheet says, the claim may be refused. The 2004 fact sheet traces the duty to cooperate and to supply sufficient information to section 131(6) as it then stood.

The third is the Registrar General's own. After confirming receipt and assessing the claim, the Registrar General either offers to settle or refuses. The sheet gives no target time, saying only that it depends on the complexity of the claim and on whether further evidence is needed. But it sets a backstop: with certain exceptions, a claim is deemed refused if it has not been determined within 12 months of lodgement.

The fourth, covered in the next section, runs from the determination.

A worked example shows how the periods sit together. The dates are invented and the periods are those of the 2017 information sheet. Assume an act that caused a loss on 3 March 2019, with the loss suffered the same day. Six years from that date ends in March 2025, so a claim lodged on 10 June 2024 is inside the limit, with about nine months to spare. Assume the Registrar General asks for further documents on 1 August 2024: two months from then is 1 October 2024, and a claim left unanswered past that point may be refused. Assume no determination is made at all: twelve months from lodgement is 10 June 2025, when the claim is deemed refused unless one of the exceptions applies. In this example the whole administrative stage, from lodgement to the backstop, lasts one year, and it begins more than five years after the loss.

After the determination: the Supreme Court

The information sheet states that there is no internal review of a determination. A claimant who disagrees has one route, the Supreme Court of New South Wales, and the sheet gives 3 months from the determination date to apply.

The sheet also explains why the administrative claim normally comes first. Supreme Court proceedings for compensation from the Fund cannot be started unless one of three conditions is met: a claim has been lodged and has been determined, or 12 months have passed since it was lodged; the Supreme Court gives leave; or the Registrar General consents. The 2004 Department of Lands fact sheet attributes this rule to section 132 of the Act, as numbered at that date, and adds that such proceedings are brought against the Registrar General as nominal defendant.

On the time allowed after a determination, the two official documents do not agree. The 2017 information sheet says 3 months. The Department of Lands fact sheet, which carries a 2004 copyright line, says proceedings cannot be brought more than 12 months after the determination unless the Court gives leave or the Registrar General consents. The older document states that its information may have been superseded, and the 2017 sheet is the more recent of the two; the 3-month wording was confirmed in the 2017 sheet when it was re-opened on 10 October 2026. Neither figure was checked against the current Act. A claimant relying on either figure needs the wording of section 132 as it stands on the day, which this guide could not read on the New South Wales legislation website.

The fact sheet records three further features of the scheme as it was set up in 2000. Section 135, in the 2004 fact sheet's numbering, allows the Registrar General to settle claims, including through mediation. The Registrar General is subrogated to the claimant's rights against any other person, which means that once the Fund has paid, the right to pursue whoever caused the loss passes to the Registrar General. And the Minister's consent was needed before the Registrar General offered compensation of more than A$100,000. That threshold comes from the 2004 document only; the 2017 sheet does not mention it.

Continuing the worked example: assume the Registrar General had instead issued a determination on 14 April 2025. On the 2017 sheet's figure, an application to the Supreme Court would be due by 14 July 2025. Neither document says anything about legal costs.

What replaced the paper certificate of title

Until 2021 the New South Wales system used certificates of title, and the rules on who controlled the right to deal were built around them. That ended on 11 October 2021. NSW Land Registry Services announced that from that date, under the Real Property Amendment (Certificates of Title) Act 2021, certificates of title and the control of the right to deal framework, known as CoRD, were abolished.

The Registrar General's Guidelines state the result in four short points. All existing certificates of title have been cancelled. No new certificates will be issued. An existing certificate does not need to be produced for a dealing or a plan to be registered. And the consent of the CoRD holder is no longer required for registration.

What took the paper's place is the electronic channel itself. According to the NSW Land Registry Services announcement, nearly all Real Property Act dealings must now be lodged electronically, through what the announcement calls an ELNO, by a subscriber. The announcement names one exception, the Determination of Title Boundary. On this guide's reading, the requirement to produce a document has given way to a rule about who may lodge.

The announcement lists several side effects that matter to anyone who still has an old certificate in a drawer or a bank safe:

• the certificate inquiry service's physical delivery and controlling party information became redundant;
• the edition number on a certificate may not reflect the transactions on the folio of the Register;
• the certificate authentication code service is no longer a valid verification service;
• there was no bulk update of folios, so the change shows on a title from the first transaction on that folio on or after 11 October 2021;
• water access licences were unaffected, and the former certificate inquiry was renamed the Water Access Licence Inquiry.

On the announcement's and the Guidelines' terms, an old certificate may not reflect the current state of a title, and it does not need to be produced for a dealing to be registered.

Identity checks after the paper title

The second control named in the pages read is identity verification. The Registrar General's Guidelines record when the identity rule arrived in New South Wales: it took effect on 1 May 2016, the Registrar General allowed a transition period of 3 months, and full compliance has been required since 1 August 2016. The rule therefore predates the abolition of certificates by more than five years.

The Guidelines do not set out the method themselves. They refer practitioners to the Verification of Identity Guidance Notes published by the body the Guidelines call ARNECC, as the place that explains how to verify identity and what "reasonable steps" means. They also note that identity agents may be used to carry out a verification, with the details again on ARNECC's pages. The current Real Property Act 1900 provides for conveyancing rules in section 12E and lodgment rules in section 12F, according to the version on the New South Wales legislation website, which carries amendments up to an Act numbered 50 of 2025.

The link back to the Fund is the list of full exclusions: a mortgagee's failure to confirm identity is on it, in the wording discussed above.

What the published pages leave open

Several questions an owner would reasonably ask are not answered by the documents this guide rests on, and they are named here instead of being filled in.

The time allowed to go to the Supreme Court after a determination is 3 months in one official document and 12 months in an older one, as shown above. The A$100,000 ministerial consent threshold appears only in the older document. The text of Part 14 of the Real Property Act 1900, and of the provision that states the paramount title of a registered proprietor, was not available to read in full on the legislation website, so the section numbers in this guide are those cited by the 2004 Department of Lands fact sheet and may since have changed.

Whether and how the land registry can notify an owner of activity on a title is a natural next question. The NSW Land Registry Services page on that subject could not be read for this guide, so nothing is said here about what triggers a notice, how one is ordered or what it costs. The same applies to the Registrar General's general page on property fraud and to the content of the right-to-deal check that practitioners make before lodging: the Guidelines confirm that the CoRD framework has gone, but the pages read do not describe what a practitioner now examines in its place.

What the documents do establish is a sequence. The register decides ownership. The State stands behind the register. Where that costs an innocent former owner the land, the remedy is a claim on the Fund, made on a free form, within 6 years, supported by copies, a police reference and a record of every step taken to limit the loss.

In New South Wales the register is the title, and the compensation scheme exists because that rule can leave an innocent owner with money in place of land.

Kooky, from Shaka

Kooky edits Agents Estate and builds Shaka, the payment router he made for real estate professionals. One payment comes in, and every agent, agency and party in the deal receives their signed share on closing date.

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