Major review calls for refresh of SA’s land laws

The review, “‘A Lasting Boon upon the Australian People’: a Review of the Role and Operation of the Real Property Act 1886,” was led by Associate Professor David Plater and Brooke Washusen in collaboration with a research team including Professor Paul Babie, Associate Professor Sylvia Villios, Anita Brunacci, Professor John Williams, Professor Peter Burdon, Michail Ivanov, Kane McAskill, Anh Caprile, Taylor Portelli, and Michelle Neumann.

“The review found that while the existing legal framework — particularly the Torrens system — continues to serve the state well, aspects of the Real Property Act 1886 (RPA) are outdated and in need of reform, particularly in light of technological advances and evolving community needs,” Washusen said. 

“With the current housing crisis and the increasing role of technology in property transactions, our land laws must be modern, responsive and effective, which makes this review particularly timely.”

SALRI’s review drew on a scoping study led by Professor Babie.

“It has long been recognised that the RPA includes outdated language, provisions and processes which hinder the adoption of electronic conveyancing,” Professor Babie said. 

Among the report’s 63 recommendations and three suggestions, the report highlights the need to:

• Clarify and update the RPA, particularly to support electronic conveyancing;
• Include a more inclusive and defined list of legal protection over property; and
• Conduct a specific review into easements and restrictive covenants.

One of the more surprising findings was the legal uncertainty surrounding “granny flat” arrangements, which are becoming more common in South Australia. These arrangements, often informal and made without legal advice, currently fall into a legal grey area and are not recognised in the RPA.

“There is significant scope for confusion and even abuse in regard to ‘granny flat’ arrangements,” Associate Professor Villios said.

“SALRI recommends that a ‘granny flat interest’ should be formally recognised in the Act, allowing for legal claims to be lodged and greater legal protection for elderly parents who often invest substantial sums into a property without holding legal title.”

Other key findings include:

• The recognition in the RPA of restrictive covenants as an interest that can be registered on title;
• Define what is a caveatable interest for clarity;   
• Widespread concern about the misuse of powers of attorney in land transactions and the need for stronger safeguards against fraud;
• Recognition of the ongoing practical utility of the doctrine of adverse possession, or incorrectly referred to as ”squatters’ rights”, which the report recommends retaining in the specific and limited circumstances that presently exist in South Australia; and
• Consideration of how express trust arrangements should be acknowledged on certificates of title.

The review of the RPA, which dates to 1886, was commissioned on 20 December 2023 by the Hon Nick Champion MP, Minister for Planning, through the Hon Kyam Maher MLC, Attorney-General, and officially began in early 2024. It was completed by SALRI over the course of 18 months.

“This review is significant not only in scope, being the largest in South Australian land law in decades, but also in historical context,” SALRI Director Professor Williams said.

“As the birthplace of the Torrens system, it’s fitting that South Australia leads efforts to modernise it.”

The Torrens system first came into effect in South Australia in 1858. It is the system of land ownership and registration now used across the country and overseas.

The RPA review was informed by wide-ranging consultation, including visits to regional towns such as Port Pirie, Clare, Mount Gambier, Jamestown, Crystal Brook, and Naracoorte.

SALRI also hosted stakeholder roundtables at the Adelaide Law School and received over 30 submissions from legal practitioners, conveyancers, experts, community members and interested agencies. The review also drew on background work of the Law Reform class at the University of Adelaide.

“The strength of this review lies in the breadth of SALRI’s research and community and industry input, SALRI thanks the many parties who generously contributed to this review by various means,” Associate Professor Plater said.

“We hope our findings lead to ongoing conversations and provide a strong foundation for the State Government as it considers future amendments to the RPA.”

The final report is now with the State Government for its consideration.